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.
Can I Appeal the Temporary Order
I have written about the importance of temporary hearings in the past on this blog. Getting the case started out right from the beginning is important for your case. However, some times no matter how well you and your lawyer prepare, things don't go so well during at the temporary hearing. Occasionally, it is obvious that bad things are going to happen at a Temporary Hearing. Other times the Court's ruling can come as a surprise. Either way, it is hard to deal with the consequences of some court orders. In Family Court, these orders often deal with subjects that are near and dear to your heart: your children and your money.You may disagree on how the Court ruled on custody for your children or you don't know how you can afford the child support and alimony that the judge ordered you to pay. Perhaps, you don't know how you will live on the support amount you were awarded.So, can you appeal the temporary order?In a word, no. In 2012, the South Carolina Supreme Court answered this question for us in the case of Terry v. Terry (400 S.C. 453). The Court held that these temporary orders in Family Court are just that - temporary. These orders are without prejudice to the rights of the parties and do not decide any issue with finality nor affect a substantial right. Additionally, the family court has the authority to correct any error from the temporary order at the final hearing, Terry v. Terry, 400 S.C. 453, (456-457).
What recourse does one have when a temporary order doesn't go their way?
This ruling seems to indicate that one's redress comes at a final hearing. But, there are some things that can be done in the mean time. It is possible to file a motion requesting the Court to reconsider its ruling. Unless there is clear law on point; however, it will be difficult convincing the Court to modify its order. It is also entirely possible that when the Court reconsiders its ruling that the new ruling could be worse than the original ruling.The next option would be to put the litigation on the fast track. Move as quickly as is prudent and reasonable through the discovery process and any investigation that must be done and get your final hearing scheduled as quickly as possible.
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!
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.
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.
What should I expect at the initial consultation with my divorce lawyer?
When you meet with a lawyer to discuss your divorce case you want to know something tangible. You have hundreds of questions and worries floating around in your head. How much with this cost? What is the worst case scenario? Will I lose my kids? How long with this take? And many more.The initial consultation is a time for you and the lawyer to get to know more about one another. Your lawyer will likely ask you to complete a new client intake form. This will ask information about you such as your address, date of birth and other personal information. It will likely as for the same information about your spouse.Many forms also request information about the marriage such as the date of marriage, when you separated, the reason for the separation, number of children born during the marriage, and it will ask for what you are seeking in the divorce. For example, do you want sole custody of the children? Are you seeking a divorce on adultery or some other fault-based ground? Are there assets and debts that need to be divided between you and your husband?This will help the lawyer to understand the level of complexity involved in the case. Also, knowing the issues important to you, he can give you some direction about the law in those areas and can provide an overview of how the process works.Your lawyer cannot provide you with an exact game plan, certain results or even really exact legal advice at this time. Great legal advice is based on knowing all of the specific facts of your case and there is usually not enough time to uncover all of that at an initial consultation.Think of the initial consultation as an interview. All lawyers are ethically required to be competent in the areas they practice in, but that doesn’t mean all lawyers are equal. Your personality will mesh with some lawyers and clash with others. And, while lawyers love being retained for new cases, they don’t accept every case that comes through their doors. So, understand that while you are determining if you can work with this lawyer, he is also trying to determine if he can work with you.So, at your initial consultation you should be looking to determine if this is a lawyer you feel has the knowledge necessary to provide you with the representation you need and if he is someone you feel comfortable working with. Don’t select a lawyer just because that’s who your friend or family member used. You should also try to get some questions answered, but understand that oftentimes at this stage of your case there is simply not enough information available for you to receive an exact answer. The answer you receive will likely be qualified with lots of “ifs” based on how the facts play out.
SC Separation and Divorce Essentials: Live Webinar
On February 26th at 12 PM, I'm hosting a free webinar about the essentials of Separation and Divorce in South Carolina, so:1. You’ll discover the basics of South Carolina separation and divorce law so you can feel confident as you enter the process.2. You'll discover the legal process and timeline so you know what to expect as you enter this journey.3. You’ll discover tips and strategies for dealing with your spouse on issues related to your separation and divorce.4. You’ll gain helpful knowledge to help make better decisions as you navigate your divorce case.5. You’ll leave this seminar knowing the right questions to ask as you begin the process of interviewing divorce attorneys.There will also be some Q&A time at the end of the webinar.If you want to join me on the webinar (or know someone who could benefit from it) here's the link where you can watch it. It's FREE and it's online so you can attend from the privacy of your home or office:http://www.upstatefamilylawblog.com/livewebinar
Service after a Separate Maintenance Hearing
I recently received this question:
"I filed for divorce in September 2012 and reached a settlement with my spouse that was approved by the court a few months ago, but we were not divorced at that hearing. Since then my wife relocated to Ohio and I don't know where she is. I want to finalize the divorce by year-end. I've been told that in this case I can simply send a certified letter to her last known address and that the 'green card' doesn't need HER signature. Is this true?
The answer to your question will be different depending on how the court procedurally handled the order approving the agreement. By approving the agreement, the court could have issued a final order of separate maintenance that approved the agreement. The court could have also entered a final order as to the approval of the agreement and held open the issue for divorce. If a final order of separate maintenance was issued that approved the agreement, then you would be required to file a new action for divorce and would have to prove service upon your wife in accordance with Rule 4 of the South Carolina Rules of Civil Procedure either by personal service or by producing the green card where she signed for receipt of the summons and complaint that was mailed to her certified mail, return receipt requested, restricted delivery.If the earlier case is still open and you are just mailing her a notice of the final hearing, Rule 17(a) of the SC Family Court Rules require notice of the final hearing to be "mailed to the defendant at [her] last known address, by certified mail, return receipt requested." This is different from proving service of the summons and complaint as the rules require you to prove you mailed the notice in this particular manner but don't necessarily require you to prove she received the notice by tendering the green card to the court.