South Carolina Separation Agreement Law


Divorce – Separation Agreements – South Carolina

 

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Note:  This summary is not intended to be an all inclusive discussion of the law of separation agreements in South Carolina, but does include basic and other provisions.

General Summary: South Carolina law encourages the parties to reach an extrajudicial agreement on marital issues, even a plain, unambiguous agreement is nevertheless finally subject to the duty of the Family Court judge to rule upon its fairness.  A separation agreement approved by the court which unambiguously stipulates that the terms may not be altered, binds the court as well as the parties with the exception of provisions relating to child support.

Statutes:

SOUTH CAROLINA CODE OF LAWS
Title 20 – Domestic Relations
CHAPTER 3. DIVORCE

Award of alimony and other allowances:

(G) The Family Court may review and approve all agreements which bear on the issue of alimony or separate maintenance and support, whether brought before the court in actions for divorce from the bonds of matrimony, separate maintenance and support actions, or in actions to approve agreement where the parties are living separate and apart. The failure to seek a divorce, separate maintenance, or a legal separation does not deprive the court of its authority and jurisdiction to approve and enforce the agreements. The parties may agree in writing if properly approved by the court to make the payment of alimony as set forth in items (1) through (6) of subsection (B) nonmodifiable and not subject to subsequent modification by the court.  SECTION 20-3-130.

Equitable apportionment of marital property; criteria;  finality of order:

In a proceeding for divorce a vinculo matrimonii or separate support and maintenance, or in a proceeding for disposition of property following a prior decree of dissolution of a marriage by a court which lacked personal jurisdiction over an absent spouse or which lacked jurisdiction to dispose of the property, and in other marital litigation between the parties, the court shall make a final equitable apportionment between the parties of the parties’ marital property upon request by either party in the pleadings.

In making apportionment, the court must give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;

(2) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic  circumstances of the parties, or contributed to the breakup of the marriage;  provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of (a) entry of a pendente lite order in a divorce or separate maintenance action;  (b) formal signing of a written property or marital settlement agreement; or (c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;

(3) the value of the marital property, whether the property be within or without the State.  The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker;  provided, that the court shall consider the quality of the contribution as well as its factual existence;

(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;

(5) the health, both physical and emotional, of each spouse;

(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses’s income potential;

(7) the nonmarital property of each spouse;

(8) the existence or nonexistence of vested retirement benefits for each or either spouse;

(9) whether separate maintenance or alimony has been awarded;

(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;

(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;

(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;

(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;

(14) child custody arrangements and obligations at the time of the entry of the order;  and

(15) such other relevant factors as the trial court shall expressly enumerate in its order.

The court’s order as it affects distribution of marital property shall be a final order not subject to modification except by appeal or remand following proper appeal.  SECTION 20-7-472.

Case Law:

Although South Carolina law encourages the parties to reach an extrajudicial agreement on marital issues, even a plain, unambiguous agreement is nevertheless finally subject to the duty of the Family Court judge to rule upon its fairness.  Fischl v. Fischl, 272 S.C. 297, 251 S.E.2d 743 (1979)

A formal support, custody and property settlement agreement that provided it could not be altered except by written agreement between the parties, which was approved by the Family Court but not merged into the order, would control any subsequent modification of the agreement. Sattler v. Sattler, 284 S.C. 422, 327 S.E.2d 71 (1985)

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