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.
Alimony in South Carolina
Alimony is a hot topic in many South Carolina divorce cases, but many times spouses ask for it in order to punish their spouse for some bad deeds committed during the marriage. So what is alimony?Alimony is defined as "a substitute for the support which is normally incident to the marital relationship" Lide v. Lide, 277 SC 155 (1981). What does that mean? It means that while the couple is together they have some expectation that there is some mutual financial support for the marriage. When the marriage is ending and the parties separate alimony helps the spouse with the smaller income to have a similar lifestyle to that which he/she became accustomed to during the marriage.SC Code §20-3-130(A) states that the Family Court may award alimony "in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case". Essentially what that means is that the Family Court Judge who is deciding the case has a lot of discretion to determine the amount of alimony that is awarded. Unlike child support, there is no calculator or formula for the court to use to determine an amount.
Types of Alimony
In general, the statute outlines four different types of alimony that can be awarded by the Court in SC Code §20-3-130(B):(1) Periodic alimony. This is alimony that is paid every month on an ongoing basis and is generally thought to be permanent. This type of alimony will only end when the receiving spouse remarries or on their continued cohabitation or either spouse dies. This alimony therefore may be terminated and is modifiable upon a showing of a substantial change in circumstances.(2) Lump-sum alimony is a set amount of money that is paid as alimony and not as a property division. It can be paid in one lump sum or it can be paid out in installments over time, but the end amount that is paid is fixed. For example, Husband agrees to pay Wife the sum of $100,000 in lump sum alimony. He can write her a check for $100,000 or they could agree for him to pay $10,000 per month for 10 months. This type of alimony is not modifiable and is only terminable upon the death of the supported spouse.(3) Rehabilitative alimony is another fixed sum of alimony that is paid in installments and is used in many cases to help the supported spouse financially while he/she obtains new training or completes their education that will allow them to become self-supporting. This type of alimony is terminable on the remarriage or continued cohabitation of the supported spouse and the death of either spouse, or when a certain event happens in the future (e.g. the supported spouse graduates from college). This type of alimony is also modifiable when an unforeseen event occurs that prevents the supported spouse from becoming self-supporting or if it frustrates the ability of the supporting spouse to continue to pay.(4) Reimbursement alimony can be paid in a lump sum or in installments and will end on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse. This alimony will not end and cannot be modified based upon changed circumstances in the future. The statute describes this form of alimony as an options the the Court believes it is "desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage." A good example of this is when one spouse dutifully supports the other spouse as they go through medical school. Once the doctor spouse graduates from medical school and begins to earn some substantial income he/she decides to divorce the spouse that supported him/her through school. This allows the non-doctor spouse the opportunity to benefit from the investment they made into the family's future income.
Factors Considered by the Family Court to Determine Alimony in South Carolina
SC Code §20-3-130(C) sets forth the factors that the Family Court must consider when determining whether to award alimony and how much alimony should be awarded:(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 action between the parties;(2) the physical and emotional condition of each spouse;(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;(4) the employment history and earning potential of each spouse;(5) the standard of living established during the marriage;(6) the current and reasonably anticipated earnings of both spouses;(7) the current and reasonably anticipated expenses and needs of both spouses;(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) 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;(11) the tax consequences to each party as a result of the particular form of support awarded;(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and(13) such other factors the court considers relevant.
Help! How Can I Get Started Seeking Financial Assistance from my Spouse?
Question: My husband has deserted me and refuses to help me financially. He has moved in with his mistress and won't have any contact with me! How do I file for spousal support? He is refusing to help me.Answer: You should consult with a lawyer immediately so that you can move forward with the Family Court to get some immediate relief. Unfortunately, the only way to obtain the relief you are seeking is to file an action with the Family Court for divorce/separation and request this relief through a Motion for Temporary Relief. I strongly suggest hiring a lawyer because alimony is a complex issue and there are some strict procedural rules about what the Court may consider at a temporary hearing and if you do not comply with those rules you may forfeit your rights or just plain miss out on relief you are entitled to.In South Carolina you have the option to file for divorce using one of five grounds (physical abuse, habitual drunkenness, adultery, desertion, or continuous separation for more than one year). You also have the alternative to file for separate support and maintenance which is similar to a legal separation. Those are essentially your keys to the courthouse. No matter which way you file, you will be able to ask the court to award you immediate relief such as alimony/spousal support, custody of minor children, child support, use of the marital home, health insurance coverage, etc.The family court will consider multiple factors in determining whether to award you alimony or not, and then if it does determine that you are eligible for support the Court will determine how much to award. The factors considered will be things like your ages, physical and mental health, employment history, income history, why you are currently unemployed (e.g. agreement to stay at home and raise the children), other assets you have, tax implications, length of the marriage, and a few more.As a side note and warning, I would encourage you to file something sooner rather than later. The longer you go without financial assistance from your spouse, the more it appears that it is not needed. While that is not a specific factor considered by the Court it could be relevant and a long term separation without a request for support could make it unlikely that you would be awarded support.To learn more about Temporary Hearings, check out these posts:
Divorce Process: What is a Temporary Hearing
What is a Divorce Temporary Hearing
Definition: Temporary Divorce Hearing
Temporary Hearing – What’s Next?
What Happens After my Temporary Hearing?
How do South Carolina Family Courts divide property and debts in divorce cases
There are two main division methods in divorce law nationwide: community property and equitable apportionment states. South Carolina is an equitable apportionment state. So, what does that mean?Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage. Our Code of Laws state that, during a marriage, spouses acquire a special equity and ownership right in the marital property and those rights are subject to apportionment between the spouses. (See SC Code §20-3-610). To break down that definition a little further it will be helpful to define marital property. SC Code §20-3-630 defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation regardless of how legal title is held. So it doesn't matter that the home is only in the husband's name or that the Wife is the only spouse who contributed to a 401(k) during the marriage. Of course there are exceptions to every rule. Property obtained by inheritance, devise, bequest, or gift from a party other than the spouse, property owned prior to the marriage, and property acquired after a temporary order is entered, a marital settlement agreement is executed, or a final order of property settlement is entered. The first step the Family Court will take is to identify all of the marital property. Once the marital property has been identified the court will determine how to divide the assets between the spouses. SC Code §20-3-620 identifies 15 factors that the Family Court must consider in determining how to apportion the marital property among the spouses. Those factors include things such as the length of the marriage, the ages of the parties at the time of the marriage and at the time of the divorce, the income and income potential of each party, the marital misconduct or fault of either party (meaning someone has committed adultery, physically abused a spouse, or is addicted to narcotic drugs or alcohol), the health of the parties, the non-marital assets of the parties, and several other factors.It is not uncommon for the Family Court to issue an order of apportioning the marital property in a 50/50 (equal) manner between the spouses. But, it is not mandatory that the Family Court divide the marital property equally between spouses. In cases where one spouse contributed significantly greater in the financial area of a marriage, the court may deviate and award a greater portion of the marital estate to that spouse.
Potential Income Used for Calculating Child Support
Sometimes potential clients for issues of alimony or child support ask about what would happen if their spouse quit their job or was fired or laid off and their income dramatically changed. Typically, the other spouse threatens you by saying if you file for child support or alimony I will just quit my job and you won't get any money from me. Sometimes, the threat may be to just quit working the consistent overtime hours that are always available to significantly reduce the payor spouse's income.Last year I represented a client whose husband of 30 years abruptly left the home, quit his job that paid over $100,000 per year, and moved out of state in an effort to avoid having to pay his wife alimony. She came in very concerned that she would not be provided for financially. Here's what we discussed:
Potential Income Used in Calculation of Child Support
The South Carolina Child Support Guidelines set out the following as it relates to potential income:"If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent.""In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community."This means that a party who the Court finds has greater potential income than they are showing at that time due to intentionally quitting his/her job (or somehow have their income reported as much lower than normal) during the time that a child support matter is ongoing the Court may calculate the child support as if the payor spouse was still making the larger amount of money.
Potential Income Used For Calculation of Alimony
When a Court is determining whether to award alimony to a spouse in South Carolina, they refer to the statute that sets out the factors for the court to consider. After weighing all of the factors, the court will have a lot of discretion in determining the amount of alimony to award. Among the 13 factors outlined in SC Code §20-3-130(c), sub-paragraph 4 states that the Court must consider, "the employment history and earning potential of each spouse".So, if your spouse threatens to quit his/her job to reduce the amount of alimony he/she would otherwise have to pay, you can be sure the Court will consider that in the alimony determination.
How Much Does Divorce Cost
The first thing that comes to my mind - and probably the only thing most people consider when asked this question - is the lawyer's fee. Of course that a significant expense with a large chunk normally due at the beginning of the representation. But there are other costs that can cause the price of your divorce to go up. I recently came across the article "How Much Does the Average Divorce Really Cost?" from Huffington Post that breaks things down.Let's look at some of the costs of divorce:Lawyer fees. Fees vary from state to state and from locale to locale. A more rural area may see lawyers charging lower fees for similar services offered by lawyers in more metropolitan areas of your state. Lawyers also charge fees in different ways. Many lawyers are going to fixed fee or flat rate billing. That way you know exactly what your divorce will cost you. In some cases, there is a "menu" of fees. For example, to file a motion for temporary relief, you may pay $1,500.00. If discovery is part of your case, you may pay an additional $1,000.00. If you violate the order and need your lawyer to represent you in rule to show cause action you know your lawyer charges $2,000.00 for that and so on. While the fee you pay up front may not be the total amount you pay, you can rest a little easier knowing what each step in the process will cost you. The other way divorce lawyers charge their fees is on an hourly basis and asking the client to pay a retainer or pre-payment of the fee. Essentially, the fee is held in trust and the lawyer does not receive the money for use in his practice until he has billed the client for the work.Court Costs. In order to file a new action with a South Carolina Family Court you will need to pay a filing fee of $150.00. If you are also filing a Motion for Temporary Relief, there is an additional $25.00 motion fee due. Additional motions during the litigation or a Rule to Show Cause to enforce the action would also be subject to additional motion fees.Litigation Costs. Once an action is commenced, the summons and complaint must be served on the defendant. The Rules of Civil Procedure govern the proper way to serve these papers, but it isn't as simple as the plaintiff handing them to their spouse in the driveway. Typically, a process server is hired and can range from $50 - $100 depending on the area and how difficult it is for the process server to locate the other party for service.Many counties in South Carolina now require litigants in contested actions to participate in mandatory mediation. A court-appointed mediator (and most private mediators) typically charge $200.00 per hour. Those fees are typically divided equally between the parties unless an order or agreement specifies differently. There are some other mediation options through non-profit mediation centers that charge less and are a good option for litigants with limited funds.Guardians ad Litem. In cases where custody or visitation issues are contested, the parties may agree or the Court may determine that the appointment of a Guardian ad Litem is necessary. Typically, the Court will order each party to pay one-half of the Guardian's initial retainer for the parties to pay in a set time. Depending on the complexity of the case, the initial retainer may be $500.00 apiece or much more.Other costs that you might not consider right off include bank fees and closing costs if you must sell or refinance your property. Then, there will be deed recording fees. There are also fees associated with the transfer of your retirement funds charged by the plan administrator for reviewing the domestic relations order.
What are some ways to keep costs down?
First, be honest with your lawyer up front. Don't let him/her get surprised with facts that you didn't think were relevant that would totally change the complexion of your case.Be on the ball. When your lawyer requests information from you, asks you to come in to review a document or discuss a settlement offer, don't dilly dally. Go ahead and schedule your appointment.Keep your appointment. Don't miss your appointments. Not only do you look flaky, but your lawyer is probably very busy keeping up with his clients and court schedule and it may take some time to get a new appointment scheduled that works for both of your schedules.Don't be petty. Many clients end up spending thousands of dollars in attorney fees fighting over the bad 80's VHS collection. Know when to say when and what fights to stay in and what fights to let go. Also, this means you should be reasonable while negotiating a potential settlement.
3 Reasons You Should Consider filing for Separate Support and Maintenance rather than Divorce
South Carolina does not recognize a legal separation; however, we do recognize what is known as "separate support and maintenance." An action for separate support and maintenance reaffirms that the marriage is still in tact but it offers an avenue to seek relief from the Family Court. Many times the sole reason someone chooses to file for separate support and maintenance because they do not have enough proof to prove a ground for divorce. But there are some other very valid reasons you may choose to seek a decree of separate support and maintenance in lieu of a divorce.
- You don't want to be divorced. You may have religious beliefs or other reasons for not wanting to be divorced, but you still don't feel like you can make the marriage work. In that case you may choose to file for separate support and maintenance to make sure you receive spousal support and get a proper custody order in place.
- Social Security Benefits. I see the confusion on your face. Federal law states that at the appropriate age a spouse or former spouse can choose to collect the Social Security benefits they are entitled to as a result of their employment history. But, if you have been married for a period of ten years or more you may elect to receive Social Security benefits at your spouse's or former spouse's level. This has no impact on the amount of the benefit they receive. Essentially, this makes sure that even a stay-at-home parent who never worked during the marriage can receive at least a minimal level of existence in retirement. Some couples may choose to remain married by filing for separate support and maintenance to make sure they reach this ten year threshold.
- Health Care. Every year health care gets more expensive and obtaining medical insurance coverage for many Americans is extremely taxing on their budget. You may be lucky enough to be married to someone who works for a great company that still provides excellent health care plans for their employees. But, a majority of the time a divorce would nix any access you have to your spouses insurance. But, since you are still married at the conclusion of a separate support and maintenance action you are able to remain on your spouse's employer-provided insurance policy.
What Impact will Adultery Have?
When consulting with potential clients about their divorce, I am often asked the following hypothetical question:
I would like to start dating again. What impact will it have on my case if I start seeing someone?
In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?
1. Divorce
The first place you should look is at the grounds for divorce. SC Code §20-3-10(1) allows for a divorce on the grounds for adultery. I wrote about the proof required for establishing a case of adultery in a previous post. By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.Most of the potential clients I meet with wouldn't have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.
2. Alimony
The second major issue deals with alimony. SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case. Subsection 10 of that section states that, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage[.]" Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship. See SC Code §20-3-130(A), "No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) 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. Property/Debt Division
The third area to consider is the area of property and debt division. SC Code §20-3-620(B)(2) states, "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[.]"So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.