W e hope it's something you never have to go through, but statistics show that at least half of married mothers will face divorce. The ending of a marriage, like the beginning, is life-changing on many levels — even more so when children are involved.
As if the emotional turmoil weren't enough to deal with, legal and financial matters make divorce even harder to navigate. For this second article in our four-part “Family Matters” series, we've gathered some basic information to give you the lay of the land. Whether you've ever considered divorce, there's no harm in knowing the facts and the law. If the day does come when the D-word enters the conversation — or you're going through it now — here are a few of the many things you'll need to know:
1. You need a plan.
In general, women are planners — and that's a good thing! But throw in the heated emotions of marital conflict and sometimes our feelings can get the best of us. Before you blurt out, “I want a divorce!” in the heat of the moment, take time to educate yourself and have a plan.
Family Law Attorney Lynn Murphy, owner and principal of Murphy Law Firm LLC in West Ashley, said having a plan should include researching the law, as well as your own household.
“In more traditional households in which the mom is primarily responsible for raising the children, often the husband will be responsible for the financial end of the situation,” she said. “If there is to be a separation or divorce, you'll be handling your own finances and the finances for your children. So become educated, gather the documents and prepare early rather than late.”
If you don't already have a good understanding of your family's income and expenses, now is the time to figure it out. Look at what your family spends annually, how much money is in all the accounts and all debts, said Diane Blackwelder, certified divorce financial analyst with Charleston Financial Advisors LLC.
Start saving cash, too, Murphy suggests. Ideally, at least a month's worth of family expenses.
“If it's a contested case and the husband isn't being cooperative or forthcoming with the finances, or he's moved the money somewhere else and you can't access it, have some resources ready or have your own credit card,” Murphy said. “Have a plan on how you're going to service the bills, how you're going to care for the children, where additional childcare is going to come from if necessary.”
Finding an attorney early is also key, she said. Ask for recommendations from family or friends and look for someone who has extensive experience in family court specifically.
“You can consult with numerous people before you decide on one attorney,” Murphy said. “You want to feel that the fit is right because it can be a long process, so who you select may be in your life for a period of time. You want to feel comfortable with that person, you want to feel as if they're hearing you. Do that early on so that person can give you specific guidance for your needs.”
2. Your lifestyle will change.
Not only will you be going from a two-parent household to two separate one-parent households, divorce also means losing income from your spouse, which inevitably means changes.
“Most of us aren't fortunate enough that if we were to divide our household we could live at the same standard of living that we lived at before,” Blackwelder said. “So the first step is to really understand what the lifestyle is going to look like after the divorce and what can we afford to do. Recognize that it costs more to run two houses than to run one. So unless there is a lot of extra income in the family, both parties are going to have to change their lifestyle.”
Consulting a financial advisor (together or separately) can help a divorcing couple come up with a budget for their two new households, she said. You'll look at things such as: Can we afford to keep the house or do we need to sell it? Does one need spousal support (alimony) or money to go back to school? All that can be worked out in the divorce settlement, Blackwelder said. But the key is knowing how much you'll need and coming up with a plan for how you're going to make ends meet separated from your spouse.
“A lot of women don't divorce because they can't figure out how they'd do it financially without their spouse,” Blackwelder said. “You can do it, you just need a plan. Make a budget and start figuring out how to live through that new revenue source. If it's not enough, go out and get new training. Don't be afraid to put in the negotiation that you want to be able to go back to school and how can we fund that?”
Don't forget you'll have to pay for the divorce itself, too, Blackwelder said, which can run anywhere from $5,000 to $10,000 or more, depending on attorney and court fees.
3. You'll probably need to separate first.
To obtain a no-fault divorce under South Carolina law, usually a couple is required to be separated for at least one year first, Murphy said. And separated means actually living under different roofs — different bedrooms doesn't count.
“A common misconception is that you have to wait a year before doing anything, though,” Murphy said. “People hear about the year and they equate that to mean taking any action toward the divorce. You can begin getting prepared and start working out a settlement while you and your husband are still in the same house. There's nothing that precludes that. However, you can't file anything with the court, except in certain circumstances, until you and your husband are living under different roofs.”
For families with children, you'll need certain parameters and guidelines in place during the separation — who's going to live in the house, who will have custody of the children, and how are the finances going to be handled? Often this is taken care of before the divorce during a separation case, which is called a Separate Support and Maintenance case, Murphy said.
“The separation case occurs first and will occur shortly after someone moves out of the house,” she said.
You may not need to be separated a full year if you're filing for a fault-based divorce, Murphy said. The three primary grounds for fault-based divorce in South Carolina are adultery, physical cruelty and habitual drunkenness (drug use also falls under the later category,) Murphy said. You'll need proof to file for these reasons, but if you have it, it'll let the court know there are issues going on other than, “We just can't get along.”
Proving fault can affect custody decisions, visitation rights and even alimony. In South Carolina, adultery can be a complete bar to alimony, Murphy said. Your dating life after separation can have a similar affect, she said.
“One of my biggest tips is: Do not date,” Murphy said. “It can affect custody, it can affect spousal support. And do not have anyone you might be romantically involved with around the children. Even if you're not romantically involved with them, if it could appear to an outsider that there's something going on, then you absolutely want to stay away from it. That's very different from other states. But the letter of the law here is until you are legally divorced, you're not supposed to be involved with anyone else.”
4. You'll have to compromise.
Communication is usually not the best between divorcing spouses, but a good amount of it is required to complete the process. To make the ordeal as smooth and non-confrontation as possible, Murphy suggests staying cool, calm and collected during discussions with your spouse and trying to mediate as soon as possible.
“In general, mediation is a process by which either individuals on their own or individuals that are represented can sit down with a third-party, certified family court mediator and have that third party help them overcome their differences,” Murphy said. “They'll help them resolve the issues of custody, visitation or custodial periods, child support, spousal support, as well as address the often immediate issue of who's going to move out of the house and how are we going to deal with two sets of bills.”
You can do voluntary mediation before anyone files a case, Murphy said. But it is now mandatory in the state that in cases involving custody, that you do mediation before you get a trial date, she said.
“Mediation is a great way for people to come together and bridge their differences,” Murphy said. “Everyone has to give a little bit, generally, to get a case resolved, but the vast majority of mediations are successful. And it causes less conflict in the family when Mom and Dad can sit down and work our their own parenting plan to figure out what's best for the children.”
To avoid the court system all together, a level-headed couple might choose to divorce through collaborative law, an option that is becoming more and more popular.
“Under collaborative law, the parties are required to enter into an agreement wherein they will warrant they won't file anything in the family court until they've agreed on the contested issues,” Murphy said. “Collaborative law also involves — this is optional but recommended — a joint financial planner and for each party to see a therapist or counselor at least once to address the inherent issues of living separate and apart.”
Blackwelder, who often works with the South Carolina Collaborative Law Institute as a joint financial advisor, said she thinks collaborative divorce is a great option for couples who want to save money (from excessive court and attorney fees) and want to work together to avoid the messiness of the court system.
“My role is to be a neutral with all the parties to help come up with creative financial solutions that help the family,” she said. “When everyone's working together, we can get very creative with how we do things.”
Dividing assets is a large part of divorce mediation and collaborative law, she said.
Anything that was acquired during the marriage is marital property — whether it's in her name or his, she said. Though assets are usually split 50-50, not all assets are created equal, she said.
“Most people think that you just take each account and divide it in half and that's just how you do it,” Blackwelder said. “It's just the overall total of net worth. The wife, if she gets the house, may get very little of retirement and other things. So it's important to weigh what kind of assets you're getting based on how that may support you going forward.”
Custody is another issue that is often complicated, Murphy said. Fortunately, most cases are resolved by agreement as to custody, and joint custody is becoming much more common, she said.
“The trend is evolving away from sole custody to one parent,” she said. “And the court encourages both parents to be very active in the children's lives. The days of the every-other-weekend father, we're starting to go away from that. Fathers are being awarded much more time with the children, or mothers are agreeing for the father to have much more time.”
If custody can be resolved by agreement, the couple can customize visitation how they'd like. It's important to remember there's a difference between joint legal custody and joint physical custody, too, she said.
“Joint legal custody refers to who makes the important decisions in a child's life,” Murphy said, “which would be education, extra curricular activities, medical care and religion. Physical custody is where they lay their heads at night.”
5. You need to grieve — and let your children do the same.
Although divorce can sometimes seem like a very business-like matter of separating assets and conducting negotiations, the proceedings generate a whirlwind of emotions throughout the family.
Judy Heath, psychotherapist and counselor at the Life Guidance Center in West Ashley, said going through divorce is a loss similar to bereavement. Emotions will vary, often conflicting with one another, and it's important to let yourself go through the grieving process.
“Even people who didn't want to be married anymore go through grief, because they wake up one morning and their whole lifestyle, their whole world, is different,” Heath said. “They also go through a lot of secondary loss, of financial (security) and of status — they're no longer a spouse or a wife. Their role changes.”
Seeing a therapist or a counselor can help women through the emotional ups and down of divorce, she said. It provides a safe environment for talking about the emotional side of the relationship without weighing down friends and family. In an ideal case, the wife, husband and children would seek family counseling together.
One of the things we work on is the relationship between the separating parties, because it's the animosity between them that creates the biggest problem for children,” Heath said. “It's not so much the fact that they're going to be living in two separate houses, but also how the parents deal with one another.
“I'm an advocate of people going through some kind of counseling with their spouse to work on how to do this as amicably as possible for the children.”
Children also will grieve in their own ways, Heath said. Securing a counselor or therapist for the kids will allow them to talk about their feelings without worrying about choosing sides between their Mom and Dad.
“Somehow or another it is a rip in the universe for the children, and the mother and father, as well,” Heath said. “So for them to be able to put these pieces back together and start a whole new path, it's a lot. It takes time and it takes healing.”