10/1/10 10/1/10

Reviewed: Discussing the No Fault South Carolina Divorce

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.

9/15/10 9/15/10

Reviewed: Can You Guarantee me a Fast Divorce in South Carolina?

Occasionally I am asked by someone to guarantee that I can get their divorce done by a certain date. This happens for a variety of reasons (sometimes because there is another wedding planned) but the bottom line is that they want the divorce to be finished fast! So how long does it take to get a divorce? Are there loop holes that some attorneys know to get the divorces over faster?The truth is, a lawyer simply cannot guarantee with a whole lot of certainty when a case will be done. Based on how long I’ve been practicing and how many cases I have handled I can make a pretty good guess at when a final hearing might take place in a fairly simple case (like a South Carolina uncontested divorce case where there are no issues). However, in a case where there are substantial issues like custody or property division the things that effect the length of time a case could take begin to multiply and compound.So, can I guarantee when a case will be over? No. The only guarantee I can make is that we will work as hard as I can for you. While I understand that any type of legal matter is stressful and is usually better when it is over, it may not be to your best interest to buzz through the case just so it is over.But, just so you don’t feel like I totally wimped out on this answer, here is a general timeline for an uncontested divorce case in South Carolina (and more specifically Greenville County). First, the complaint must be filed with the Family Court. After the complaint has been filed, it must be served on your spouse. In some cases, the couple is working together to resolve their case and service is quite simple and fast. But there are other cases where the spouse is avoiding service of the complaint and it takes much longer to get them served. Once your spouse is served, he/she will have 30 days to file an answer or respond to our complaint. If they are in agreement (like they are many times in an uncontested divorce) they sign an Answer that agrees with what we asked for in a complaint and we are able to move on to the next step. Sometimes, however, they do not sign the answer or they just forget about things. When this happens, we have to wait for the entire 30 days to pass before we can move forward. The other thing that might happen is for your spouse to hire an attorney which may transform your case from an uncontested case to a contested matter with issues. The next step (if the case is uncontested) is to request a hearing. The hearing can be requested either after the 30 days has passed or after your spouse has signed the Answer agreeing to the relief you requested. Then we wait on the Court to set our hearing. The time it takes for the Court to set your final hearing varies from county to county. Greenville County is fairly quick with uncontested final hearings being set about 7 weeks from the date of request. Other counties that are smaller and have fewer family court judges take longer to get a case set. Some counties take four months or longer.I hope that helps show you some of the complexities and variables that play into determining how long it is going to take to finish your case up. So, next time if you ask your divorce lawyer how long, don’t be surprised when he says, “it depends.”

9/13/10 9/13/10

Reviewed: I Don't Know Where My Spouse Is - Can I get a Divorce?

So you would like to get a divorce from my spouse, but you don't know where they are or how to find them. It is still possible to get a divorce from them.In order for the family court to hear your case they must have personal jurisdiction over you and your spouse. The court gets this personal jurisdiction over your spouse when they are served with the complaint (the papers filed with the family court). Usually this is done by personally serving your spouse according to the South Carolina Rules of Civil Procedure. Typically, you would have a process server or some independent third party serve your spouse by personally handing them the papers.Well, clearly this can’t be done if your spouse is no where to be found. In this case, you must serve them by publication. What that means is that an advertisement or legal notice is run in the legal notice section of a newspaper of “general circulation” in the county where your spouse was last known to reside. In order to run this advertisement; however, you must perform a diligent search for your missing spouse and then file a motion asking the family court’s permission to serve your spouse by publication and including an affidavit stating everything you have done to attempt to locate your spouse.Once your motion has been approved, a legal notice is run one per week for three weeks. At the end of the third week, your spouse has 30 days to respond. If there is no response, then your spouse is in “default” meaning they have not responded and you can proceed with your case.

9/8/10 9/8/10

Should I Communicate with my Spouse During Our Divorce?

I think this question will get different answers from different attorneys, and I think the main difference will revolve around the individual attorney's opinion on the "best way" to resolve your marital issues. Here are the two viewpoints:

Do Not Communicate with Your Spouse

A lawyer may recommend that you not communicate with your spouse during the divorce if he/she feels like a trial and decision by a judge or for the lawyers to solely negotiate the outcome of the case are the best ways to resolve your case.Of course, there may be times when you and your spouse do not need to speak with one another regardless of the opportunity to settle. When there is a history of abuse (both mental and physical) or if things always escalate into an argument or a fight then you may want to hold off on working with them.

Communicate with Your Spouse

When an attorney encourages you to speak with your spouse during the course of your divorce case, it is usually because they recognize that you and your spouse know more about your case than anyone else on the earth and that you are in a better position to know what you need in order to resolve your case. All that said; however, your attorney knows what you are entitled to receive in your divorce case, so you should consider your attorney's advice on what not to give up in your negotiations with your spouse.

What Should You Do?

I think it is ultimately up to you. Your attorney may encourage you to communicate with your spouse or he may ask you not to speak to your spouse about your case to allow him to assist you through the negotiations to make sure you aren't taken advantage of by your spouse. You know yourself and if you believe you are likely to be influenced by your spouse to accept something that is not in your best interest or less than you are entitled to, you should probably make that known to your attorney so he knows that you should have limited communication with your spouse on your own when it comes to negotiating in your case.

8/31/10 8/31/10

A Divorce Like Tigers'...

Ben Stevens at SCFamilyLaw.com wrote a great post this morning about divorcing like Tiger Woods. He analyzes Tiger's divorce and breaks it down into three main steps which are great advice for anyone going through the divorce process:

Determine your true priorities.
Take reasonable and prudent actions.
Hire the best attorney that you can afford.

Check out the entire post here: How to Make Your Divorce Like Tiger Woods'

8/25/10 8/25/10

Definition: Temporary Divorce Hearing

I meet with people who have recently been served with divorce papers. Many times, included in this paperwork is a Motion and Notice of Temporary Hearing. This causes many questions because the Motion seems to ask for the same relief that is requested in the Complaint. So what is a temporary hearing?A temporary hearing is an opportunity at the beginning of a divorce or child custody matter where you can ask the court to grant you some specific relief before the final hearing. That means when you file for divorce you don't have to wait the entire nine months or a year to get to the final hearing when you need to get alimony or child support started or a custody order so you can enroll your child in school.In most counties, your temporary hearing will be held about 3-4 weeks from the time your request the hearing and generally lasts 15-30 minutes. At this hearing you will generally not testify, but your case will be presented through your lawyer's arguments and through affidavits submitted by you to the Court. After that brief time, the Court will make a decision that will remain in effect throughout your case.

8/3/10 8/3/10

You Shouldn't Be Your Own Divorce Lawyer

Facing a divorce is difficult. It is probably one of the hardest things you will go through in your life. There are lots of emotions and questions. Then you are learning to live on your own again and budgeting based on a single income rather than two. I also understand that a divorce can be a very expensive proposition. You are faced with dividing up marital assets that you may have accumulated over decades of marriage, not to mention the attorney fees and court costs. This cost often leads people to attempt to represent themselves in the family court. Often times, people represent themselves even when their spouse has hired an attorney to represent their interests. In cases where there are no issues and no property to divide this might be okay, but if there are any issues that remain contested (child custody, support, visitation, alimony or property division) you should definitely have an attorney.(Aside: I know this looks self-serving coming from a divorce attorney, but I totally believe that it's true)

"A well-trained man knows how to answer questions; an educated man knows what questions are worth asking."
- E. Digby Baltzell (1955)

I like this quote. It reminds me about what a lawyer is supposed to do - that is, to know which questions are worth asking. A lawyer also knows the rules in the courtroom. How to make sure you ask the questions that are worth asking so you tell the judge everything he/she needs to know in order to decide the case the best way possible for you.