South Carolina Uncontested Divorce Clinic

If you reside in South Carolina you can participate in a "Pro Se Uncontested Divorce Clinic" that are being scheduled around the state and put on by South Carolina Legal Services.  The calendar for these seminars is located at the South Carolina Legal Services website.  In order to attend this clinic and be able to file for your uncontested divorce - you should be filing for divorce on the grounds of more than one year's continuous separation, have no property or debt to divide, have no minor children, and you must know where your spouse resides. In order to attend the clinic you need to register beforehand.  Please check out the South Carolina Legal Services web site for more information about upcoming clinics and to get registration information.

Do You Need an Attorney to Represent You in Your Divorce

The following article was written by Alabama Family Law Attorney, Michael Sherman, author of the Alabama Family Law Blog.

You may not need a lawyer to represent you in your divorce case.  You do have the right to represent yourself. Representing yourself is a lot cheaper than hiring a lawyer.  However, you may be familiar with the old saying that the person who represents himself has a fool for a client.  The fact of the matter is that if you represent yourself, you potentially risk giving up important rights.  So how do you know whether you need a lawyer or not?I recommend that you hire a lawyer if you answer any of the following questions in the affirmative:

1. Is custody of your children disputed? Even if you are a good parent, you do not want to risk losing custody of your children.  A lawyer will help you present a stronger case for custody to the court.
2. Has your spouse hired a lawyer? The laws and procedures involved in a divorce are quite complex.  Do not let yourself be outmaneuvered by someone who knows the ropes.  The court will not protect you when you make errors.  Even in an uncontested divorce case, do not make the mistake of thinking that the lawyer your spouse hired can represent both of you.  A lawyer is ethically prohibited from representing both sides of a legal dispute (it is called a conflict of interest).  If your spouse gets a lawyer to draft a proposed agreement, at least retain a lawyer to review it and make suggested changes on your behalf.
3. Do you have significant assets to protect? Obviously, the more you have at stake, the more value you stand to receive from hiring a divorce specialist to represent you.  A lawyer will ensure that you pay only a fair amount in support payments and that the property is divided fairly.  An experienced lawyer can also minimize the amount of taxes you pay by structuring the property settlement properly.
4. Is your spouse claiming spousal support? The area of spousal support is the most uncertain area of divorce law.  Alabama does not have guidelines for determining alimony, and courts sometimes come to very different conclusions about how much spousal support should be paid, even on similar facts.  Your lawyer will help ensure that the amount of spousal support is fair.
5. Do you have a retirement account (and your marriage is 10 years or longer)? For many of my clients, their second most valuable asset after their home is their retirement account.  In Alabama, if you have been married for more than 10 years, then the portion of the retirement account that has been acquired during the marriage can be split equally.  The law regarding how these accounts should be divided is complicated.  Your lawyer will help ensure that it is valued and divided fairly.
6. Does your souse tend to dominate you in your relationship? There is an imbalance in power between you and your spouse.  If your spouse is domineering or controlling, you will be better off dealing with him or her through a lawyer.
7. Are there allegations of domestic violence or child abuse? Even if the allegations are not true, they can have a devastating effect and must be dealt with quickly and appropriately. Do not take such serious allegations lightly.
8. Are you unable to communicate effectively with your spouse? You will not be able to settle things with your former spouse if the two of you cannot communicate.  You will need a lawyer to help ensure that you get a fair settlement.
9. Are you or your spouse self-employed? The valuation of a business is complicated and you will need a lawyer to help with that process.  Also, the amount of spousal and child support payments that must be paid is based on income.  It is often easy for someone who is self-employed to manipulate income or to hide assets.  An experienced lawyer will know how to best try to prove unreported income.

I recognize my own bias on this issue.  But, the truth is in only the simplest of divorce cases (i.e. very short-term marriage, no children, no joint property and no joint debts) do I think you should consider not having a lawyer.  Even in those cases, if your spouse gets a lawyer to draft the proposed divorce agreement, I recommend you at least pay your own lawyer to review it on your behalf.

And now I'd like to invite you to learn more about Alabama divorce laws, the divorce process and other tips on finding the right divorce lawyer in Alabama when you visit http://www.AlabamaFamilyLawBlog.comFrom Michael Sherman - Alabama Divorce Lawyer, Fellow in the American Academy of Matrimonial Lawyers, and named to The Best Lawyers in America.

New Video Posts Coming to UpstateFamilyLawBlog.com

One of the ways I am wanting to use UpstateFamilyLawBlog.com to educate people is by using video to really explain certain topics that just can't be written about very easily.  My goal is to give you at least one video post every week discussing a topic related to South Carolina Divorce and Family Law.I hope you enjoy them.  If you would like to have a specifc question answered, please comment on this post or send me an e-mail directly through the "connect with us" page on this site.

Divorce Process: What is a Temporary Hearing

You are in the beginning of your divorce.  You have filed and served your spouse or they have filed and served you.  One of the documents you have received is a Notice of Temporary Hearing.  So what is a Temporary Hearing?In contested South Carolina divorce and other Family Court Matters, a temporary hearing is held at the very beginning of the case.  On your paperwork, this may also be referred to as a Pendent Lite hearing for temporary relief.  The basic purpose of a temporary hearing is to get an Order in place for the pendency of the action.  That means the relief ordered by the Family Court at a Temporary Hearing is (1) temporary, lasting only for the duration of the case, and (2) binding on the parties - meaning if you don't do what you are supposed to do, you can be held in contempt and punished by the Family Court's contempt powers.The temporary issues that the court normally determines in a this type of hearing are typically:

1. Child custody
2. Child support
3. Visitation
4. Spousal support/alimony
5. Use of some marital property like the home or vehicles
6. Orders requiring people to maintain current insurance coverages
7. Restraining orders against harassment or sale or marital property

By definition, a temporary Order is only good until a Final Order has been signed by the judge.  At that point, you must comply with the final order.  A result at a temporary hearing also does not prejudice a party at the final trial.  Just because your spouse was awarded custody or alimony at a temporary hearing, does not mean they will automatically be victorious on those issues at trial.  You should definitely consult with an attorney to determine your best chances in those situations.A South Carolina Family Court temporary hearing is different for another reason.  There is generally no testimony taken at a temporary hearing.  The parties are required to provide affidavits to the Court and are limited to 8 pages of affidavits.  You must also provide a financial declaration for the judge to review.  After reading the affidavits, the judge may allow for a short argument on the issues by the attorneys and will usually then make their ruling for the Temporary Order.While this may not be the best or fairest way to determine the pendente lite rulings, it is the current state of the law and how we must proceed in our cases.

Helping Children Cope with Divorce Seminar

Compass of Carolina will be presenting a seminar on the topic of helping Children cope with divorce.  The seminar is scheduled for October 10, 2009 and is a four hour program designed for parents who are going through or have completed their divorce and forcueses on helping parents develop a cooperative co-parenting relationship and teaches parents the skills useful in helping their children adjust to the divorce and the life changes that accompany divorce.  The program begins at 9 am and concludes at 1 pm.For more information, visit the Compass of Carolina website.There is a cost to attend an they require you tor register in advance.  The link above has all of the information about cost, scheduling, and registration.

Divorce and Reconciliation Attempts

If there are no fault-based grounds for divorce in your case you will have to be separated for more than one year before you can file for divorce from your spouse.  Sometimes during that year separation a couple will want to "make sure" they have done everything they can to save their marriage and if it doesn't work out then they can feel like they at least tried one last time.  So, this begs the question, if you do attempt reconciliation with your spouse will this start your one year time over?The answer is, "it depends."  How is that for a lawyer answer?Really, it depends on a few things.  First, it depends on your intent when you and your spouse get back together.  If you believed and intended that you had resolved your differences and you were resuming the marital relationship then your time will probably start over.  If you go into it intending that this time is just a trial reconciliation and you are not intending to completely reconcile the marital relationship at this time then perhaps the time does not start over.Next, the amount of time that you spent together will make a difference.  If it only lasted one night or a few days then it is more likely that a judge would allow you to proceed.  If it lasted for several weeks or months, it is more likely the time starts over.Third - and this is probably the most important factor - it depends on which judge you have presiding at your trial.  A strict reading of the statute says that the one year period must be "continuous."  That means with no interruptions.  So a very strict reading of the law means that any reconciliation attempt would start the time over.  From a public policy perspective this is bad.  This would mean that you would be punished by the Court (and the State, in essence) for trying to do everything possible to work out your marriage.  In other words, it appears that this strict reading would really be encouraging not attempting a reconciliation.Other nearby states use a "totality of the circumstances" approach to determine whether a reconciliation attempt should start the clock over or should not.  That really means that the judge would listen to the reasons why you attempted reconciliation, how it went, what your intent was, how long you were back together, etc. to determine whether you should be able to proceed with your divorce on the no-fault ground or if you have to wait start the one year clock over again.What are your thoughts?

What is a Divorce Temporary Hearing

In many divorce cases in South Carolina the first hearing that you will participate in will be the Temporary Hearing.  It is called a temporary hearing because you are requesting that the court provide you with some "temporary" relief.  "Temporary" means that you this court order will govern your case from the time of the temporary hearing until a final hearing or later order in your case.When you go to the temporary hearing you should know that there is generally no testimony taken at the hearing.  So you will not be called to go up to the witness stand and testify about the reason for your divorce or why you need the relief you are requesting.  When you go to your temporary divorce hearing you should prepare affidavits from you and your close friends and family that are relevant to the issues in your case.  So that may mean that your affidavits need to discuss why you are a better parent or why you should receive custody, child support, alimony, attorney fees, etc.  You will also include a financial declaration with your affidavits.  You should also note that the different courts and different counties have different rules regarding the number of pages they allow at their temporary hearings.  Greenville County caps the number of pages you can have to 8 (not including your financial declaration and attorney fee affidavit).Any questions about the temporary hearing or other procedural issues in your South Carolina divorce case?

South Carolina No Fault Divorce Ground

Earlier this week I posted about a new series that is going on for a few days or weeks discussing in detail the five grounds for divorce in South Carolina.  This first post is going to discuss the no fault ground for divorce in South Carolina which is living separate and apart without cohabitation for more than one year.

What does "no fault" mean, anyway?

Well, a no fault divorce means that you do not qualify for a fault-based ground or you do not want to pursue a fault based ground for divorce.  The fault based grounds for divorce are adultery, abandonment, physical cruelty and habitual drunkenness/drug use.  Many times in an uncontested matter or when the husband and wife have been separated for several years, they may decide to forgo filing on a fault-based ground even though they could substantiate that with evidence in court.

How to Prove a No Fault Divorce in South Carolina

In order to prove a no fault divorce in South Carolina you must show several things: (1) the separation must be voluntary; (2) you must be living separately and apart; (3) must be for more than one year.  Let's take these in order.

1.  Voluntary Separation

In order to qualify for the divorce on no fault grounds, you must be voluntarily separated.  Now, sometimes in marriages one person really wants a divorce and the other person really wants to save the marriage, but the first person moves out any way.  While this is not "voluntary" on the part of the spouse who wants to save the marriage, it is voluntary separation because the parties have the choice to live together or not.  This is easier to see when described from another viewpoint.  An involuntary separation would be one where one spouse was carried off to jail during the marriage and while the parties are separated, the "free" spouse decides she should get a divorce and move on.  If the separation only occured because of the arrest and incarceration then that is not voluntary.

2.  You Must Live Separate and Apart

When couples begin to feel the strain and they are leaning towards a separation they may, at first, in an attempt to save money have one of the parties move into the bedroom down the hall or into the basement so they are not sleeping together.  But, under South Carolina statutory and common law this is not living separate and apart.  In order to obtain the no fault divorce in South Carolina you must live in separate residences.  The South Carolina Supreme Court has also held that living in a camper on the same property is not living separate and apart because the husband was still using the house for cooking, showering, etc., even though he was doing that stuff after the wife had gone to work.

3.  Separated for More than One Year

Before you can even file for divorce in the family court on the no fault ground you must have been voluntarily living separate and apart for more than one year. That means just what it says - more than 365 days must elapse from the time you separate before you file for divorce.I recently wrote a post about how "legal" the separation has to be but to summarize, you do not have to have a court ordered "legal separation" before the clock starts to run on your 12 months.  The time starts ticking the day one of you moves out.  But, if you move back in together to attempt reconciliation (or even just for one night of passion) your time could start back over.  The law is not clear on that point.It is also interesting to point out that this divorce ground can be awarded immediately upon the filing of responsive pleadings (an Answer by the defendant).  That means there is no waiting or time limit involved like in the fault-based grounds where you must wait at least 90 days from the time you file your action to have a final hearing.