When South Carolina legalized same-sex marriage in 2014, many couples were thrilled to finally receive the same legal recognition and rights as their heterosexual counterparts. However, with the right to marry also comes the possibility of divorce, and this can be a particularly difficult and confusing process for same-sex couples.
If you and your same-sex spouse are considering divorce in South Carolina, it is crucial to understand your rights and options. In this article, we will cover the basics of same-sex divorce in South Carolina, including grounds for divorce, property division, child custody, and other important considerations.
Grounds for Divorce: A Complex Decision
In South Carolina, there are five “fault” grounds for divorce, which require one spouse to prove that the other spouse did something wrong. These grounds are characterized by adultery, desertion for one year, physical cruelty, habitual drunkenness or drug use, and one year’s continuous separation.
Proving adultery in same-sex divorces can be challenging, as the legal definition in South Carolina requires voluntary sexual intercourse between a married person and someone other than their opposite-sex spouse. However, the other four grounds are not gender-specific and can apply equally to same-sex couples.
Alternatively, South Carolina recognizes the “no-fault” ground of irreconcilable differences, which means that neither spouse is to blame for the breakdown of the marriage. The divorce can proceed without either spouse having to prove misconduct.
Property Division: Equitable Distribution and Challenges
South Carolina follows the principle of equitable distribution when dividing marital property, striving for fairness rather than strict equality between spouses. However, determining what constitutes marital property can be complex in same-sex divorces.
Before the Obergefell v. Hodges Supreme Court decision in 2015, same-sex couples in South Carolina lacked legal recognition and property rights. This can pose challenges when dividing property in a same-sex divorce, especially for couples who were together for a significant time before being legally married.
To ascertain what counts as marital property, South Carolina courts will generally consider the length of the marriage and each spouse’s contributions to property acquisition and maintenance. In navigating this intricate process, it is important to consult an experienced divorce attorney to safeguard your rights.
Child Custody: Prioritizing the Best Interests of the Child
Similar to property division, child custody can be complicated for same-sex couples seeking divorce. South Carolina recognizes both legal and physical custody, which refer to the rights to make decisions about the child’s upbringing and the child’s primary residence, respectively.
When making custody decisions, South Carolina courts prioritize the best interests of the child. Factors taken into account include each parent’s ability to provide for the child’s physical and emotional needs, the child’s age and preferences, and any history of abuse or neglect.
It is worth noting that South Carolina courts have traditionally been conservative in granting custody rights to non-biological parents in same-sex divorces. However, since Obergefell v. Hodges, more courts have recognized the rights of non-biological parents and base custody decisions on the child’s best interests, rather than the parents’ gender or sexual orientation.
Other Considerations: Protecting Your Rights
In addition to the aforementioned issues, several other considerations may be relevant in same-sex divorces in South Carolina. These include:
- Spousal support: South Carolina allows for both temporary and permanent spousal support in divorces where one spouse is financially dependent on the other. Proper legal guidance can ensure fair support arrangements.
- Name changes: Same-sex couples who married before the Obergefell v. Hodges decision often encountered challenges in obtaining legal name changes, particularly if they wished to match their spouse’s last name. Thankfully, with same-sex marriage legal nationwide, name changes have become much more straightforward.
- Immigration: In cases where same-sex couples have disparate citizenship statuses, divorce may have significant implications for immigration status. Consulting an experienced immigration attorney is crucial to address this concern effectively.
In conclusion, same-sex divorce in South Carolina can be a complex and emotionally challenging process. However, with the assistance of an experienced divorce attorney, you can navigate the legal system and protect your rights. If you are considering divorce, it is imperative to act swiftly and seek legal assistance promptly.