Backing up Financial Information Before You Go
If you are contemplating leaving your marriage you may consider taking a few steps before breaking the news to your spouse or leaving the house to make sure you protect yourself and your financial interests. South Carolina family courts are courts of equity when it comes to dividing up marital assets. But before you can divide up assets and debts you must be able to identify all of those assets debts and determine which portion of them are marital and non-marital. You may find that once you break the news to your spouse about the impending divorce communication may break down and walls of protection may go up around both of you. Before that happens you should attempt to gather as much information about your family finances as possible. Here are some tips:
- Gather copies of tax returns;
- Gather copies of financial statements;
- Gather copies of insurance policies (whether they are term or whole life policies with a cash value and if they have a cash value, what it currently is).
- Inventories of property in the house - using a video camera to record a walk-through of the house is a great way to do this to make sure you don't forget anything.
- Inventories of property in safe-deposit boxes (though you should take a witness with you to (1) verify what is in there when you went and (2) verify that you did not remove anything from the box)
- Retirement account statements.
- Appraisals of real estate and personal property like jewelry, art, etc.
- Copies of paystubs for you and your spouse for the year-to-date
Of course all of this information can theoretically be gathered in the discovery phase of your divorce litigation you can save a lot of time and a lot of money (on attorney fees) by having all of this information pulled together from the beginning. Not only will you save yourself money on attorney fees, but you put yourself and your attorney in a better position when it comes to negotiating prior to and arguing at a temporary hearing.Another thing that will come of this information is that the more your specific knowledge your attorney has about your case the better he/she will be able to advise you about the likely outcomes or the best courses of action for you with less assumption.Hat tip to the Ohio Family Law Blog for the tips in this post from their post 12 Proactive Steps to Take If You are Contemplating Divorce.
Filing Bankruptcy Can Improve Your Family Life
Parenting and stress go hand-in-hand. Mix in being buried in debt, and the financial pressures can begin taking a toll on your family, your health, and your emotional well-being.Going through tough financial times increases tension within the family and interferes with your relationship with your children and your spouse. Don’t let the situation make you feel cut off from your family.Parenting is all about teaching your children. Share financial issues with your children much as you can, depending on their age. Opening up the lines of communication will not only keep you connected to them, but may also provide an opportunity to teach them about finances.When you first realize you are in over your head and can’t make your payments, contact your creditors and try to negotiate repayment plans with you. Unfortunately, this is easier said than done.If you can’t restructure your debts, you should explore bankruptcy to relieve your financial stress. Bankruptcy was designed to help individuals stabilize their finances and get out from under their financial burden by protecting their property, lowering their stress levels, and allowing them to sleep at night.Keep in mind that filing bankruptcy is not the problem. The problem is not being able to pay your bills and not being able to provide for your family. This financial pressure causes the stress and anxiety to build. All this spills over into your family relationships.To decide whether bankruptcy is right for you, contact an experienced bankruptcy lawyer who can help you navigate the complicated bankruptcy process and advise you about whether Chapter 7 (“straight bankruptcy”) or Chapter 13 (“reorganization bankruptcy”) is best for you.Once you have gone through the bankruptcy process, rejoice in new beginnings. You went through bankruptcy to get to a fresh start. Now, begin by developing a sound financial plan that will protect your finances and your sanity. Establish a savings plan that will allow you to better absorb financial strain and plan for your family’s future. Once your present situation is under control, you can begin to look to the future and set aside money for your financial goals.But What If I’m Getting a Divorce? Sometimes divorce is inevitable. I practiced family law for ten years, so I know that debt not only can cause divorce but can also cause divorce proceedings to be more difficult than they would otherwise be.She says he spent too much. He says she spent too much. And neither can afford the credit card payments. The divorce case can come to standstill over debt.If that’s the case, both spouses should consider bankruptcy. Getting rid of debt means one less thing to fight over, and that’s a good thing for your divorce case.If you are married, you can file a joint bankruptcy case with your spouse. Depending on your situation, you may even be able to use the same bankruptcy lawyer to do this. Much hinges on whether there is any conflict of interest in having the same attorney represent you in your bankruptcy case—and that depends on the facts of your case.By using bankruptcy to get your financial house in order, you can reduce your stress, enjoy time with your family, and free up your mind to start planning for your future.Russell A. DeMott is a Charleston, South Carolina bankruptcy lawyer.
Divorce for No Sex in Over 1 Year
When things get sour in a marriage one of the first things usually to go is sex and usually one of the parties (not always the guy!) takes it personally and gets pretty upset about it. I have heard it termed that the withholding party was not living up to their "Marriage Contract". But can you get a divorce on that ground? A lot of times, people begin to think that is a really good reason for a divorce and an even better reason for their spouse to get nothing (property division and alimony) in the divorce.In Maryland, two legislators have filed a bill that, if passed, would allow a divorce on the grounds of no sex for a year. Alleging that it would ease the financial burdens on families who want a divorce but can't afford to support two households. (The finanical dilemma of supporting two households after a separation is a huge problem in almost any divorce).But, in South Carolina the no sex argument is not going to work to get you a divorce. Basically, you are still stuck with the same five options for divorce grounds: physical cruelty, habitual drunkenness, abandonment, adultery and the no fault ground of living in separate residences for more than one year (which by default also means no sex for more than one year).
The Ostrich Defense Doesn't Work in Family Court
So what is the Ostrich Defense? Well, apparently it is a myth, but it is thought that in times of danger, an ostrich would stick his head in the sand. Sort of a "hear no evil, see no evil" approach. My young son does this sometimes. If I am coming to tickle him, he will bury his head in a pillow and hope that since he can't see me that I can't see him. But I always find him.So how does this relate to divorce? I know divorce is difficult. No matter what the marriage is like, no one ever got married with the divorce in mind. Depending on your religious background, divorce may be totally against the rules. Whatever the reason, I meet with people that simply do not want to participate in the divorce case. They believe that if they just keep their head down, the divorce will just blow over and nothing will happen - no divorce; no rights adjusted; things back to normal.Unfortunately, that is not how things work out. If your spouse has decided to move forth with a divorce - regardless of your desires or beliefes, you should make sure that you protect yourself because for many issues, you must seek those rights immediately or they will be given up forever. So, if your spouse who has always financially support you and your family moves out and seeks a divorce and you do not seek alimony or division of assets (such as his retirement account) you will not be able to go back to court again in the future to get that alimony.Many people think that if you are served with divorce papers and you simply do nothing, your spouse will not be able to move forward with the divorce. But that is wrong. When you are served you have 30 days to respond. If you do nothing or respond late you will be in "default" which means that some of your rights and potential arguments are already terminated.So, even if you do not agree with the divorce, I would encourage you to at least look out for yourself and participate in the action. That is the only way you can ensure that justice is done and you receive what you are entitled to without involuntarily giving up some rights and privileges that you are entitled to.Photo Credit: Gravitywave
When Will my South Carolina Divorce be Final?
One of the questions we have discussed on this blog is how long with my divorce case. Another related question is when will my divorce be final. In many states there is a waiting period for the divorce to be finalized following a trial. However, in South Carolina there is no waiting period for the divorce to be finalized after the final hearing. For your divorce to be final in South Carolina the judge has to sign your divorce decree and the decree must be filed in the Family Court clerk of court's office. After it has been signed and filed with the clerk of court your divorce will be final. Many times this happens on the day of the final hearing, especially if your case is an uncontested divorce. If your divorce case is contested and goes to a trial it may take several weeks for the order to be sent to the judge because one of the lawyers will prepare the order and send it over to the other lawyer for his review. They will go back and forth until they can agree on particular wording for the order and then it is submitted to the Judge for his/her review.
Can I Get a Divorce in South Carolina if I was Married in Another State?
In order for you to obtain a divorce in South Carolina, the South Carolina Family Court must have jurisdiction of your case before it can hear the case and make a ruling on it. The South Carolina Family Court is a court born out of statute, therefore it has limited jurisdiction. The Family Court can hear and decide cases involving all types of marital litigation and disputes between spouses involving children, termination of parental rights, custody, visitaiton, child support, alimony and spousal support, and division of marital property.In order for you to file for divorce in South Carolina you will be required to be a resident of South Carolina. You cannot file for divorce in South Carolina unless the plaintiff or defendant in the divorce case has been a resident of the state for certain periods of time. If the defendant does not live in South Carolina, the plaintiff must have resided within the state for at least one year. If the plaintiff is a non-resident, the defendant must have resided in South Carolina for at least one year. If both parties are residents of South Carolina, plaintiff must have only resided in South Carolina for three months prior to filing for divorce.So, depending on where your spouse lives, you or he/she will have to be a resident of South Carolina for a certain amount of time before you can file for divorce here no matter where you and your spouse were married.
Proving You've Been Separated for More than 1 year
When you have filed for an uncontested divorce in South Carolina usually the no-fault ground of more than one year's continuous separation is used as the ground for divorce. This means that you and your spouse have not resided together in the same residence for more than one year. I am questioned by clients about how they are going to prove this. Sometimes, in counseling a client who is considering leaving their spouse, they want to know what they should do to make sure that once their one year passes they will not have to worry about their spouse being about to avoid the divorce by proving they have not lived separate and apart for more than one year.In a typical case, a witness who is at least 18 years old and has known the parties for more than one year is used to testify about the length of separation and that they are confident that the parties have not lived together in more than one year. Their testimony could include that they call or visit one spouse on a regular basis and the other spouse is never present and it does not appear that the other spouse is residing in the home. It is also nice to have testimony from the witness stating that they are confident that they know the parties (or one of the parties) well enough that if the couple had gotten back together they would know about.Unless the other party can prove that you have lived together in the last year you will not need any more than that to prove separation or the date of separation so it is usually not necessary for you to have a copy of the receipt from the hotel you booked the night you moved out.
Is a Hearing Required for an Uncontested Divorce in South Carolina
Many prospective clients have an idea that we can file some paperwork with the court and as long as everyone agrees with everything and wants a divorce that we won't have to go to court and have a hearing. In a South Carolina divorce case, even in an uncontested divorce case, you will be required to go to a final hearing.The final hearing is where the judge will hear testimony from you and your witnesses about the grounds (or reason) for divorce and about any other issues such as a property settlement agreement or custody agreement. It is the judge's duty to ensure that the marriage cannot be saved and that no counseling would help reconcile you and your spouse. The judge will also look at your agreements to make sure they are fair to both parties and in the best interest of any minor children born of the marriage.In a typical uncontested divorce in South Carolina a final hearing will last between 10 and 15 minutes depending on how much information is needed to be put on the record.