Does the Family Court Have to Consider Expected Increases in Value of Assets when determining Alimony
Alimony is one of the most challenging issues to advise clients about in their divorce cases. SC Code Ann. Section 20-3-130(C) sets forth the 13 factors that the Family Court judge must weigh in determining whether to award alimony. But, once the Family Court has determined that alimony is appropriate to order in a particular case there is no guidance on the amount.
The South Carolina Supreme Court addressed an issue related to alimony in its opinion that was issued on March 20, 2019 in Sweeney v. Sweeney.
This case deals with a very specific issue about whether there should be a requirement for the Family Court judge to assign a specific value to a party's investment income when determining an alimony award. This clarifies one of the alimony factors found in S.C. Code Ann. Section 20-3-130(C)(6), "the current and reasonably anticipated earnings of both spouses" by examining what level of specificity is needed to be considered by the Family Court when evaluating the "reasonable anticipated earnings" of a spouse.
The Court specifically framed the issue as determining whether there should be a requirement for the Family Court Judge to consider the expected increase in value of a party's assets in determining alimony awards.
In Sweeney, Husband and Wife were married nearly 30 years. At the beginning of the marriage, Wife supported Husband as he earned his Masters Degree. Later in the marriage he began a consulting business which became successful enough for the family to be financially secure and for Wife to no longer need to work and remain home caring for the children. More specifically, Husband's gross monthly income was in excess of $30,000.
For the lawyers out there that want to know about the other alimony factors the Family Court considered, let's dive in: (1) parties were married nearly 30 years, (2) Husband's adultery contributed to the breakdown of the marriage - though Husband alleged that his affair did not begin until after the parties separated and had been having marital difficulties, (3) the parties enjoyed a well above-average lifestyle, and (4) Husband has the ability to pay alimony.
In the trial of the case, Husband's financial expert presented evidence that alimony was unnecessary in this case because Wife will be receiving a significant sum in equitable apportionment and this sum - a large amount of investments - will provide wife a substantial income each month in excess of her reported living expenses. Wife's expert disputed the claim and alleged that investment income from the investments should not be considered in the calculation of support because it was too speculative and Wife would have to invade the principal of the investments to maintain her lifestyle while Husband would not have to invade his portion of the assets.
The Family Court ordered $5,000 per month in alimony even though Wife "would receive substantial income from her share of the assets" though it did not specify or estimate how much "substantial income" would be.
The Supreme Court reviewed the record along with the statutory alimony factors and considered the Family Court's review of the factors and declined to require Family Court judges assign a specific number to future investment income of the parties when considering alimony awards.
Does your lawyer know the judge?
Does it matter if your lawyer knows the judge? In South Carolina Family Courts, judges can retain jurisdiction over a case and be the judge for the life of the case (or through a certain portion or issue); however, that is the minority of cases. While you may have several hearings during your divorce or custody case, the chances of having the same judge are pretty slim.
It is helpful for your lawyer to be familiar with the judges who regularly preside over cases in your county. Why, because judges are human too. Since they are not robots with programs telling them how to make decisions or to handle cases, they are all different. For example, temporary hearings are typically determined by the judge considering the pleadings, financial declarations, and affidavits of the parties. Some judges will painstakingly read every word in the packets submitted by the parties. Other judges will skim the packets and ask a lot of questions of the lawyers and parties. Knowing what your judge's preferences are will allow your lawyer to present your temporary hearing documents in a way that will most benefit your case.
On the other hand, while relationships with judges are important, I would be wary of a lawyer who represents to you that because of a relationship he has with a judge you will have a better outcome in your case.
What Should I Expect in my Divorce Mediation?
In November 2015, the South Carolina Supreme Court issued an order requiring all domestic relations actions in this state to be subject to mediation. So, if you are a part of a divorce action in South Carolina your case is subject to be mediated unless you resolve the outstanding issues on your own.A mediator is a trained neutral who will assist the parties in attempted to negotiate a settlement. He or she may be a lawyer, but is not required to be a lawyer. The mediator is completely neutral. That means, the mediator does not have an interest in the outcome of the case and has never been involved with either party such that there may be a conflict of interest. The mediator will listen to both parties, offer suggestions, discuss the possible outcomes in trial, and so forth. But, it is not the job of the mediator to determine the outcome of your case. In fact, that is exactly what you are trying to avoid. If you are unsuccessful in mediation, then you will be required to bring your divorce case to the Family Court where the judge will listen to both sides of the case and review all of the evidence presented and then dictate how your children will be parented, how your belongings will be divided, and how your incomes will be shared. You have lost control at that point. In mediation, you and your spouse remain in control of the outcome of your divorce.Mediators fees are generally divided equally between the spouses in a divorce mediation. In South Carolina, most mediator fees range in the $150-200 per hour range and the rules allow the mediator to charge an hour in addition to the time spent mediating to prepare for the mediation and to prepare a mediation report following mediation.In many cases, divorce mediation is done with the parties in separate rooms and the mediator floats back and forth between the rooms to relay information and offers.I remind my clients that mediation is not an appointment to come to without being ready to make some decisions. Mediation is a negotiation and requires some give and take from both spouses to result in a settled resolution. If you are not ready to make decisions about the outcome of your divorce then this mediation will be very frustrating for both you and your spouse. In order to be ready to make decisions you need to be prepared for mediation. Often times, it feels like mediation is blown off as just one more step that doesn't really matter. Then, in the midst of the mediation while the parties are make some headway towards a resolution there are gaps of information missing that would be helpful in resolving an issue. Having information about values of assets and amounts of debts, income information for both parties, living expenses for yourself, and other relevant information you will be better prepared to reach an agreement that you can live with.
Should I hire a Private Investigator
The answer is...it depends. What are the issues that you are trying to prove? What is the investment that you will be making in the private investigator? What do you hope to get out of the investigation? Whenever we use the services of another professional in the divorce process it is important to determine the cost and the return on investment.
So, what are some ways to measure your return on investment?Alimony. The law in South Carolina states that an adulterous affair that occurs before a couple of things happen (the signing of a marital settlement agreement or a final order of separate maintenance) is an absolute bar to alimony. So, if you are in a position where it is likely that you will be required to pay your spouse alimony, then spending some money - even spending a lot of money - on a private investigator will provide a great return on your investment by preventing you from making an alimony payment every month for the rest of your spouse's life if the PI can establish an adulterous affair.Divorce. Often adulterous relationships happen in mysterious places and in hidden locations. These are not things most people do out in the open. So, obtaining proof of an affair is not always easy. If you are certain that you want to proceed with filing for divorce on adultery grounds then you should consider hiring a private investigator. PI's work with attorneys to know what evidence is needed for the attorney to establish adultery. In this case, the ROI is probably best measured in the speed of the divorce. It is possible if all other issues can be worked out quickly for your divorce to be final in as little as 90 days. Though, if any other issues (property division, custody, etc.) remain contested then your divorce is likely to take a much longer time.Children's Issues. Depending on what you are trying to prove, your ROI will be less about making money on this issue and more about proving with photographic and third party evidence what you believe is going on. Clients make claims about their spouse's behavior with the children all the time based on what they hear the children say or what their "gut" is telling them. But it is hard to convince a judge to take some action such as restricting visitation in some way without some physical evidence. A PI can surveil your spouse to determine if they are really taking care of the child or determine if they are allowing the children to have contact with people they are forbidden to see such as a boyfriend or girlfriend.Financial Issues. Sometimes a person's financial declaration would have you believe that they are destitute and can't go on living if they are made to pay alimony or child support. Most of the time this is when a spouse is self-employed and they do not receive a paycheck from an employer to establish their true income. But, when you really dig into their lifestyle you see that they have a pretty extravagant lifestyle that would require an pretty significant income. When you actually look at the living expenses such as mortgages, car payments, and spending on fun activities you can try to establish that there is an income greater than what the other spouse is trying to portray.So, depending on the issue you desire to have investigated, you should work with your divorce lawyer and private investigator to determine about how much of an investigation is going to cost you and what you can benefit by having the investigation done. Sometimes the return will not be worth it. Other times it will be very much worth it!
Should I Skip Hiring a Divorce Lawyer Since we have a Simple Divorce?
It is tempting to hold off on hiring a lawyer to review your case or simply represent you when you feel like your divorce case is fairly simple and straightforward. The problem is that a divorce can seem very simple on the surface, but the underlying effects of an order can be very far-reaching and many times the results are not what you anticipated.
Even in situations where you and your spouse are working together amicably and have negotiated an agreement together, I would encourage you to seek legal counsel from a lawyer in your jurisdiction to make sure you fully understand the implications (explicit and implied) in your agreement.Here's a quick example. Many times, after a separation the spouses tend to get along better than they were while they were living together. This helps negotiations go smoothly. During the negotiations it was agreed that Wife would have primary custody of the children and Husband would receive reasonable visitation with the children. While you are working well together, this is probably ideal. Husband most likely sees the children much more than a standard visitation schedule would allow. But then things change when he brings home a girlfriend or Wife begins dating a boyfriend. Sometimes these new relationships change the spouses' priorities and that once amicable relationship changes to something more hostile. Now those reasonable visits that Husband was receiving look more like one time per month or whenever it works best for Wife - which is becoming less and less often. Because Husband didn't realize he did not have a specific visitation/placement schedule he must file a new lawsuit to seek a specific schedule to ensure he can maintain his relationship with the children.Your case may not be about child custody. Maybe it's about how to divide the equity in the home or how long one spouse will have to refinance the mortgage and remove you from the debt. Maybe it is a more complex issue about the tax implications of dividing a qualified retirement account.You may save yourself a lot of money (and certainly some headaches) in the long run by going ahead and obtaining legal counsel on the front end.
Divorce Mediation: Ready to Make Some Hard Decisions
Mediation is a requirement for most South Carolinians facing divorce. A majority of our counties now have a mandatory mediation requirement before a final divorce hearing can be scheduled. Even though mediation is becoming mandatory in most areas, it is also a great idea to go through mediation if you cannot resolve your case on your own. So how can you make the most of your mediation?
I am a certified family court mediator and I represent a lot of people who are facing divorce. Because of those two roles I have been involved as a mediator or as a lawyer in a lot of mediations. One of the frustrating things about mediation is when lawyers and clients fail to come prepared to the mediation to make a decision. This can happen for a number of reasons. Perhaps the lawyer just did not have an adequate opportunity to prepare. There may have been some difficulty obtaining discovery responses from the opposing party. It may just be a lack of understanding of the issues involved in the case. Sometimes clients come to mediation with an attitude that their case can never settle or they have not considered what they are willing to accept to have their case resolved.Mediation is a long process and in order to successfully resolve your divorce through mediation you must come prepared. Here are three divorce mediation tips:1. Understand the issues involved in your case. In order to make the best decisions possible you need to work with your lawyer to understand the issues and how the law applies to them. This is where you engage your lawyer's duties as a counselor. Understand where your case is strong and where it is weak.2. Come to mediation with priorities. Know what you are willing to let go of and what is non-negotiable. If you wait to consider these items for the day of mediation you will quickly feel overwhelmed and not be able to make a decision.3. Come prepared to make a decision. Mediation is a negotiation. You likely won't have a share a conference room with your spouse and you will have your lawyer there with you, but make no mistake, you will be asked to be an active participant in the mediation. It is very difficult to get a case resolved when clients are unable to make a decision about the issues in their case. That paralysis and failure to make a decision is actually a decision not to make a decision. That choice can lead to continued litigation, contested trials, increased attorney fees, and the risk of having a judge determine the outcome of your case thereby removing any control and decision-making from you.
Why do I have to complete a financial declaration?
In family court matters, most clients are asked to complete a financial declaration to present to the Court and other parties. When I make the request for my clients to complete this form, I am often met with a lot of questions and push back. The reasons vary: they think it isn't relevant because they reached an agreement, they are afraid that a judge will change their agreement because of what is shown on the financial declaration (good or bad), or they may just value their privacy. So why do you have to complete a financial declaration?
Rule 20 of the South Carolina Family Court Rules states that whenever the financial condition of a party is relevant or is an issue to be considered by the court a financial declaration (on the court form) must be served and filed by all parties. The rule requires filing and service prior to the first hearing (which is normally a temporary hearing) or within 45 days of filing.You will be asked to complete a financial declaration whenever your financial condition is relevant or one of the issues being considered by the court. In almost all circumstances, this will be required. When there are minor children, financial declarations will be required when considering child support. If alimony is an issue, the financial situation of the parties is certainly relevant. Even if there are no child support or alimony issues, but the parties are dividing assets/debts as part of their divorce the financial declaration will be required. Many judges will require a financial declaration even in the simplest of divorce cases.Many people complete these financial very quickly without giving it much thought, but that can be very dangerous. When presenting this information to the court, it is very important to remember a couple of things. First, this document is one of the most important documents that the court will consider when determining the financial issues in your case. Second, you are signing this document in the presence of a notary. This is a sworn document and is the same as if you were testifying in front of a judge in open court. That means it is subject to the same penalties as perjured testimony in court.
Where do I file my divorce?
When you are preparing to file for a divorce most people would like to file it in the county/court most convenient to them, but that is not always proper or allowed. When considering the proper county for filing your divorce you are considering the proper "venue". In South Carolina, the proper venue is determined by SC Code §20-3-60.
South Carolina law requires divorce and separate support and maintenance actions to be filed in the county
- where the Defendant resides at the time of filing your divorce case;
- where the Plaintiff resides if the Defendant lives out of state or if the Defendant cannot be found; or,
- where the Plaintiff and Defendant last resided as husband and wife - unless the Plaintiff is not a resident of the State of South Carolina. In that case the divorce must be filed in the county where the Defendant is living.
So you can see that the Plaintiff cannot necessarily file the divorce in the most convenient forum. They must follow these rules. Here are some examples:
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff remains in Greenville County and Defendant moved to Horry County. Plaintiff may file for the divorce in either Greenville County or Horry County because that satisfies paragraph 1 and 3, above.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in North Carolina. Defendant has moved to Spartanburg County. Plaintiff must file for the divorce in Spartanburg County since that is where the Defendant is now living.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in Greenville County. Defendant resides in New Mexico. Plaintiff must file in Greenville County since the Defendant resides out of state.