How Do I Convert My Separation into a Divorce
Many states recognize a "legal separation" which can be a precursor to divorce. South Carolina does not have a legal separation. Instead, our state offers what is called a decree of separate support and maintenance. In both a legal separation and separate support and maintenance action, the Family Court is called upon to determine all of the same issues that are generally handled in a divorce: child custody, visitation, child support, spousal support, and division of property and debt. However, at the end of the process, you are still married. Because the marriage has not been legally ended, obtaining a decree of separate support and maintenance does not allow either party to get re-married. The most common reason I see for people desiring to file for separate support and maintenance is that the client does not have a fault-based ground such as adultery or physical abuse to file for the divorce immediately, but they have immediate needs such as spousal support, child support or custody that need to be addressed now - not in 12 months. Often times, parties simply desire to work through all of the property/debt/financial issues immediately so they can go ahead and take care of those items now and not let them sit around for a year.Sometimes I meet with prospective clients who have been through the separation process and have obtained a decree of separate support and maintenance from the Family Court and they are ready to get a divorce on the no fault ground of living separate and apart for more than one year continuously. Many times the client believes that as soon as the one year separation rolls around, the divorce is automatically granted. That is not true.In order to become divorced following the grant of a decree of separate support and maintenance, it is necessary to file an entirely new action with the family court with a final divorce as the relief being sought. This requires a new filing fee with the Family Court, filing a Summons and Complaint seeking the divorce, properly serving the defendant spouse, and a final divorce hearing.So, to answer the initial question posed, you cannot convert a decree of separate support and maintenance to a divorce in South Carolina.
Proof of Adultery
I recently received this question:
I am seeking a divorce for adultery. I have no physical proof of this but there have been a number of emails planning to meet with escorts. Can I go through with divorce without solid proof or do I need to find some other means? Will we have to agree on no fault in order for it to get done?
To obtain a divorce on adultery grounds you will need more evidence than some e-mails. Often times, people may make the plans, but fail to follow through due to guilt or some other reason. While that doesn't make them a great husband or wife, it doesn't result in your ability to pursue a divorce on adultery grounds for an attempted adultery. That said, you also don't need to have an explicit sex tape from your spouse's indiscretions (though it would certainly be an easy adultery case to make).The type of proof that you will need typically is made up of two components: motive and opportunity. In your example, you probably have motive. Your spouse's emails show that he/she has an inclination to commit adultery. They are actively seeking an affair. This could also be shown by witness testimony or photographs of your spouse on a date with another person, holding hands walking through the park, telephone records showing numerous calls and text messages to one another. All of this by itself does not prove adultery. You need step 2: the opportunity.Opportunity is where your spouse and his/her new "friend" are together, privately, in a place where they have a chance to consummate the affair. So if all you can prove is that they are having dinner together regularly, then you probably don't have a case. However, if they spend a lot of time together at the friend's apartment and no one else is home with them, in sum with the motive evidence, you probably have a solid case for divorce on grounds of adultery.
Temporary Hearing - What's Next?
Previously I have written about what to expect at a temporary hearing in a divorce or custody case (here and here) and I recently received a question about what happens after the temporary hearing. Let's review just a bit:At a temporary hearing, the judge is going to make a ruling that will govern the parties conduct throughout the remainder of the case. In a typical divorce case the temporary issues typically are: child custody, visitation, child support, alimony, possession of certain assets like the house and cars, insurance coverage, service of debts, restraining orders and attorney fees. In most cases, the first temporary hearing is the only temporary hearing and the last time you will be in front of a judge before the final hearing. Because of the importance of a temporary hearing, a lot of time and effort goes in the preparation for this hearing by you and your lawyer.So after the hours of work, the gathering of affidavits, preparation of your arguments and your responses to the opposing side's arguments - what's next?Well, things vary from case to case. Often times, it is best to allow some cooling time for both parties to emotionally absorb what just happened. Often, when we walk out of a temporary hearing, client's have no idea what just happened or what the judge even said. It may take a little while to get the order back from the judge and to allow time for counsel with your lawyer to find out where you are and put together a game plan for what happens next.In a contested custody matter, a Guardian ad Litem will generally be appointed by the Court at the temporary hearing. After the order has been signed the case documents will be sent by both lawyers to the Guardian and he/she will begin his/her investigation which will include interviews with parents, children, teachers, counselors, therapists, and others with relevant information.Discovery is often begun at this point depending on the complexity of the issues involved in the case. Discovery is the process where both sides exchange information about the case to the others (documents, witness lists, answer specific questions asked by the other side, etc.). This process typically takes a couple of months.From there, mediation may be required depending on where you live. In the event you county doesn't require mediation, an informal settlement conference or attempts to negotiate between the parties takes place and then a final hearing is requested. If an agreement is worked out, a final hearing may be set in a matter of weeks. If a contested trial is demanded it may take over a year for the trial to be heard by the family court.
What is Family Court Mediation?
Greenville County is one of several counties in South Carolina that requires all contested family court matters to be mediated. Many of my clients feel like if they could work out their divorce case with their spouse, they would have already done it and they wouldn't have needed to spend money for lawyers and other legal stuff related to the litigation. They feel like the mediation is just a formality that is going to be a waste of their time and money.As a lawyer I am constantly fighting those thoughts and trying to get my clients to go into mediation with an optimistic outlook about our opportunity to settle their case without the need for further litigation.Mediation is often referred to by local mediators as the last opportunity for parties to a domestic case to work out the case on their own before the case is set for a trial where the judge is going to determine the outcome. You may ask, what is so bad about having a judge determine a case? Well, I guess nothing. It's the process that's bad. It will take months to have your trial scheduled, then your lawyer is going to spend many hours in preparation for your trial, you are going to have to go through the stress of a trial, not knowing how a judge will rule on many issues, take time off of work and spend lots of money. Then, the judge, who will have known you for only a few hours at trial will make a decision that will impact you for the rest of your life. Also, it isn't the judge's job to be fair to either party. It's the judge's job to fairly administer the law of South Carolina based upon the facts of the case. Trial involves a lot of risk.Mediation is process by which you can work with a trained neutral third-party to attempt to settle your case. The mediator will try to work with you and your spouse to find common ground among the issues in your case, and help you to balance risks and rewards with the mediation and trial processes. The mediator isn't a judge and can't force you to do anything. Mediation typically lasts for several hours, but if successful, can save you and your attorney much more time and definitely a lot of money. In my experience, mediation has helped resolve many of my cases with good results for my clients.If you're interested in looking into more information about family court mediation process here are some resources:
Understanding the Risks Involved in Litigation
Many of the prospective clients I meet with are dealing with one of the most difficult situations they have faced in their lives. They are hurt, angry, and confused. They never imagined they would find themselves in a divorce lawyer's office or that they may find out their spouse has been cheating on them or some other drama.This is usually not the best mindset for someone to be considering litigation and making decisions that will affect them for the rest of their lives. Sometimes firing off a lawsuit and getting the litigation started is a good decision - other times it is premature and leads to more stress and problems.To make sure you and your lawyer make the best decision for you and your case, do these things:
- Make sure you are totally forthcoming with your lawyer. He/She can't help you without knowing everything about your case. You may not think that drug conviction 10 years ago is important (you may have tried to forget about it), but your spouse who is trying to win custody of your minor children won't forget about it so your lawyer needs to know about it.
- Make sure you evaluate the risks. Your lawyer should be able to help you understand the risks of litigation. Is there a possibility that you could lose custody or have to pay your spouse alimony? You need to make sure you calculate the risk before starting something you can't stop. I want to avoid any kind of conversation with a client that starts off with, "you didn't tell me I could lose custody," or, "you didn't tell me that I might have to pay $3,000.00 per month in alimony!"
I hope you see these two things work hand-in-hand. Your lawyer can't give you good advice without knowing all of the facts of your case and without knowing what "bad things" your spouse might bring up to use against you in trial.
Living in the State for 12 Months Prior to Filing
There are certain time frames that must be followed before a divorce can be filed in South Carolina. In order to determine how long you must live in South Carolina prior to filing for divorce, the answer will depend on where both spouses reside. The answer to this question is governed by South Carolina Code §20-3-30. Specifically, it states as follows:
If Both Spouses Reside In South Carolina
If both you and your spouse live in South Carolina, then you must only prove that you both have lived in South Carolina for the three months leading up tot he commencement of the divorce action.
The Filing Spouse Lives in South Carolina But the Defendant Spouse is Not a Resident of South Carolina
If you want to file for divorce in South Carolina but your spouse is not a resident of this state, then you must prove that you have lived in South Carolina for 12 months before the commencement of the divorce action.
If the Filing Party is Not a Resident But the Defending Party is a Resident
If the filing party lives in another state but is filing for divorce in South Caroline because the defending party is a resident of South Carolina, the defending party who lives in South Carolina must have resided in South Carolina for more than one year prior to the filing of the action for divorce.
What is Collusion and How Does it Affect Me?
So you've probably heard about collusion before but usually between competing companies who are working together to keep their prices high or something along those lines. But you may not have considered the impact of collusion on your divorce case. In South Carolina, collusion is a defense that can be used in divorce proceedings that will basically prevent a fault-based divorce from being granted.Merriam-Webster defines collusion as, "a secret agreement or cooperation especially for an illegal or deceitful purpose."S.C. Code §20-3-70 states,"[i]f it shall appear to the satisfaction of the court that the parties to any divorce proceeding colluded or that the act complained of was done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce."So what does that mean? If you and your spouse are contemplating a divorce and you find out that you do not have any fault-based grounds for divorce (physical cruelty, habitual drunkenness, or adultery) and you are going to have to live separate and apart for more than one year to get a divorce, you may try to come up with a plan where one spouse goes out and has an "affair" so you can move ahead and get your divorce quicker. If this happens, it is likely that your divorce won't be granted because you and your spouse committed this action for the "purpose of obtaining a divorce."
Custody at Issue in a Divorce when DSS already has Custody
Recently, I received this question on the blog:
My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a "custody" decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.Thank you for your help in this matter,Ryan S.
The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children. In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child's return and custody given back to you.