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Family Law
University of South Carolina School of Law
Yablon - Zug, Marcia A.

Domestic Relations
 
 
I.      Prenuptial Agreements: generally valid—must be made in good faith and w/out undue influence. Spouse seeking to enforce agreemt must establish:
·         it was voluntarily made, in good faith, and it’s fair and equitable.
·         In SC, under 20-7-473, prenups must be voluntarily made, both parties must have been separately represented by counsel, and must have full financial disclosure. 
·         Prenups usually pertain to prop and principles of contract construction apply. 
·         These K’s can NOT authoritatively determine spousal support, child support, or child custody—this is against public policy.
·         Prenups fall w/in the SOF and must be in writing (altho partial performance of an oral K may remove transaction from statute)
·         Marriage is consideration for the K.
·         K can be altered, revoked, or rescinded as can any K, and ct can modify the prenup to fit with changed circumstances.
·         However, court will NOT look to reasonableness of the agreemt, unless there was separate representation or there wasn’t full financial disclosure.
·         Prenups can also determine prior to marriage what will be marital prop.
Questions to ask
·         What are your goals in making a prenup?
·         Include anything particular of sentimental or monetary value that you absolutely would want in the event of divorce (collections, etc.)
·         include lists of property and assets
·         educational background and training
·         past and present occupations                                **there are professional ethics issues
·         immediate occupational plans                               in representing both parties–conflict
·         family planning plans                                            of interest.
·         religious practices
·         childrearing beliefs
 
I.      Marriage: economic partnership—provides companionship, economic support, opportunity for childbearing
Terms of this K
·         Church: “in sickness and in health, love/honor/cherish, to have/hold, ‘til death do us part”
·         Civil law: “’til divorce do us part”—jt financial enterprise, faithfulness and sexual fidelity, duty to live together, mutual consortium, rt to have kids, mutual rt of inheritance, confidentiality, mutual support.
·         Necessaries doctrine: food, med care, shelter, clothing—common law rule.
            20-5-60: A husband shall not be liable for the debts of his wife contracted prior to or after their marriage, exc for her necessary support and that of their minor children residing with her. 
·         H &W required to support each other. In SC, necessaries doctrine applies when:
1.     necessaries were provided to spouse
2.     they were married at the time when necessaries were provided.
3.     despite demand, the payment for necessaries has not been made.
 
·         Decide grounds for divorce—file complaint—5 grounds for divorce in SC:
1.     Adultery
2.     Physical Cruelty
3.     Habitual Drunkenness
4.     No Fault
5.     Desertion
·         Pendente lite Hearing: ask for specific temporary relief—to get some issues resolved temporarily—usually w/in a month of filing.
·         If you don’t have one of these 5 grounds, separate for a year: file an action for Separate Support and Maintenance. Can’t file for desertion or no fault until 1 yr passes. Can resolve everything at sep support & maint hearing exc divorce.
 
DIVORCE
·         SC didn’t recognize divorce until 1949.
·         SC is the only state to incorporate Divorce Law into the state Constitution
·         SC is the only state in the country that doesn’t recognize mental cruelty or irreconcilable differences as grounds for divorce.
·         SC is reluctant to grant divorces: concerns about kids, religious beliefs about marriage.
 
Grounds for Divorce: 20-3-10
1.     Adultery: common law def: illicit intercourse of 2 persons one of whom is married. Now: Enough to show sexual intimacy (don’t have to have sex in SC)
·         if proven, person who committed adultery is barred from ever rec’g alimony
·         Elements: inclination to commit offense and opportunity to do so.
·         artificial insemination is controversial issue—SC has no guiding statute, but in oth states, it’s adultery if oth spouse hasn’t consented.
·         adultery is crime that someone can be criminally prosecuted for. If one spouse pleads the 5th, can make a negative inference from the pleader.
·         Can prove adultery up to the point of either signing the final agreement or signing of final order.
·         adultery doesn’t have to be proven by direct evidence b/c it’s so clandestine—can’t be proven by circumstantial evid: just have to be clear and positive evid by preponderance of evid.
·         sometimes cts will strain to try to give W alimony.
2.     Desertion for a period of one year
a.     cessation of cohabitation
b.     intent on part of absent party not to resume habitation
c.      absence of opposite party’s consent
d.     absence of justification
·         Advantage of using this ground is that it can be used as fault when dividing prop and oth assets.
·         Constructive desertion: person who leaves can bring action for divorce on grounds of CD, but can’t prove CD w/out proving one of the oth fault grounds. Can’t leave unless the oth party is at fault.
3. Physical Cruelty: actual personal violence or such a course of physical treatment as endangers life, limb, or health, and renders cohabitation unsafe. 
a.      one episode of physical cruelty can be grounds for divorce if proven to be life threatening or raise an inclination to do serious bodily harm
b.     not vague allegations of physical cruelty—have to show consistent pattern of abuse.
c.      To constitute phys cruelty, there doesn’t have to be touching b/t parties.
d.     Proof: can’t get it on W’s testimony alone—need corroboration of witnesses. Good to use dr’s testimony if treatmt sought/neighbors—don’t need eyewitness, but need corroboration. 
4.     Habitual Drunkenness: must show that abuse of alcohol caused breakdown of the marriage and that such abuse existed at or near the time of filing for div. Cts haven’t defined what amt of alcohol is enough to prove habitual drunkenness—no standard—proven on a case by case basis.
5.     One Year Continuous Separation: parties live apart for one year continuously.
**Note: when filing for div on grounds of adultery, physical cruelty, or habitual drunkenness, you can file for div same day as hearing, but hearing can’t be held less than 60 days of opposing party receiving notice.
 
Pendente Lite Hearing: temporary hearing for which you get temporary order (hearing set in less than 30 days)
·         only requires 5 days notice to schedule a hearing
·         this is the most important event in div hearing
·         can waive alimony at this hearing if both parties consent
·         judge makes ruling on affidavits pre

ontinuous separation w/out cohabitation
·         Prove one yr separation w/ corroborating witness: objective view of div
·         Ct can grant BOTH parties a div based on this ground if they plead it
·         Fault can play factor in who gets prop, alimony, and div of prop
·         Both parties have to be aware, conscious and competent of the separation in order to be granted div based on 1 yr continuous sep
·         Have to live separate and apart in diff domiciles to get div on 1 yr cont sep.
**Note: If one’s spouse serves in the military and the parties separated BEFORE the military service began OR when the separation is independent of military service, divorce on the grounds of 1 yr separation is proper.
 
Statutory Requirements for a Valid Marriage: 
·         Annulment: marriage never valid in the first place
·         20-1-15—same sex marriages prohibited. Federal Defensive Marriage Act: states aren’t required to give full faith and credit to oth state’s rewarding of same sex marriage license. This is constitutional issue to which strict scrutiny and compelling state interest must be applied—law of same sex marriages will evolve.
·         In SC, you can marry your first cousin.
·         Incest is prohibited civilly (ct says you can’t marry) and criminally (ct imposes $500 fine and jail time)—medical reasons/birth defects. Religious teachings prohibit incestuous relationships. Importance of maintaining familial harmony/integrity.
·         Polygamy—children can be taken away from polygamous family b/c parents teaching children how to commit felony.
·         Bigamy
·         Void: null, doesn’t exist, never happened. Good for no legitimate purposes
·         Voidable: only by parties to the marriage (i.e. the parties had to take legal action to render the marriage officially over) and only during the parties’ lifetimes. Legal action must be taken to make the marr a legal nullity.
“A marriage is termed void when it’s good for no legal purpose, and its invalidty may be maintained in any proceeding, in any Court, between any parties, whether in the lifetime or after the death of the supposed H and W, and whether the ? arises directly or collaterally. A Marriage is voidable when in its constitution there is an imperfection which can be inquired into only during the lives of both of the parties, in a proceeding to obtain a sentence declaring it null. Until set aside, it’s practically valid; when set aside, it’s rendered void from the beginning.”
a.      Incestuous marriages are voidable, not void. (b/c statute doesn’t say it’s “void.”)
·         Mental incompetence at time of marriage—period of lucidity takes care of that.
·         Duress: when one party’s not a FREE AGENT. This great fear of bodily harm must dominate throughout the transaction.