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.

1. 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.
2. 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.
3. 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.

What does Twitter Archive mean to your divorce or custody case?

What will Twitter Archive mean to your case?  Social media evidence has come into use greatly over the last couple of years.  And, why not?  People record and publish their every move throughout the day - the mundane and of course the exciting highlights.But, many people fail to use common sense when they post to social media.  They forget that they are embroiled in a highly contested custody case or a divorce matter where they have been accused of being a drunk or having an affair.I've written about social media use in trial before (here and here) so you can find out how these things can be used against you, but the saving grace before was that it was difficult to get companies like Twitter and Facebook to comply with subpoenas to provide all of your tweets or status updates or things were only archived for public viewing for a short period of time.  However, now Twitter Archive allows each individual member of twitter to download their entire tweet history back to when they joined Twitter.  So as part of a Request to Produce a copy of your Twitter Archive could be requested by your spouse and every tweet you sent out could be used against you in your case.

Who Gets to Claim the Children on Taxes?

In a custody case, one of the issues involved in many negotiations is who will get to claim the children as dependents on their income tax returns.  This is called the dependency exemption.  Children can be quite valuable when it comes to filing taxes and how much a person will owe or receive back as a refund.  Many clients, especially lower income clients who receive the Earned Income Tax Credit can receive thousands of dollars back which is more than several months of income from their job.South Carolina Family Courts have the authority to determine which parent gets to claim the children on the income tax return (SC Code Ann. §20-3-130(F)); however, the Court will not be able to allocate or distribute this exemption unless it is specifically asked for or allowed to be tried as an issue without objection from both parties.Typically, the custodial parent will be awarded the dependency exemption; however, if the non-custodial parent is allowed to claim the dependency exemption for one or all of the children, the custodial parent will be required to complete and execute IRS Form 8332 each year and that form must be included with the non-custodial parent's tax return when he/she files it.But what if you don't have a court order - before anyone has filed for custody?  The IRS has a five part test for determining which parent may claim the dependency exemption:

1. Relationship;
2. Age;
3. Residency;
4. Support;
5. Joint Return.

The Relationship test means that the dependent you are claiming is your son or daughter (natural or adopted), a foster child, brother, sister, half-brother, half-sister, or a descendent of any of them.The Age test simply means that your child is under age 19 at the end of the year and younger than you (or your spouse) or they are a student under the age of 24 at the end of the year and younger than you or your spouse.  Finally, regardless of age, you may claim a child if they are permanently and totally disabled.To meet the requirements of the Residency test, your child must have lived with you for more than half the year. There are some exceptions for temporary absences such as illness, education, military service, or vacation.The Support Test requires that you provided at least one-half of your child's support for the year and the child did not provide more than one-half of his/her support for the year.  Most of the time this is not an issue; however, if your child works and earns enough income to support himself/herself, then you may lose this credit.The Joint Return test means that the child cannot file a joint return for the year.

Tie Breakers

Absent a Family Court Order outlining who can claim the children, it is entirely possible that both parents would qualify to claim the child as a qualifying dependent using the dependency exemption.  So who would get to claim the child in that case?

• If the parents do not file a joint return together but both parents claim the child as a qualifying child, the IRS will treat the child as the qualifying child of the parent with whom the child lived for the longer period of time during the year. If the child lived with each parent for the same amount of time, the IRS will treat the child as the qualifying child of the parent who had the higher adjusted gross income (AGI) for the year.
• If no parent can claim the child as a qualifying child, the child is treated as the qualifying child of the person who had the highest AGI for the year.
• If a parent can claim the child as a qualifying child but no parent does so claim the child, the child is treated as the qualifying child of the person who had the highest AGI for the year, but only if that person's AGI is higher than the highest AGI of any of the child's parents who can claim the child. If the child's parents file a joint return with each other, this rule can be applied by dividing the parents' combined AGI equally between the parents.

Adultery: What Proof is Required

One of the most common threats I discuss with prospective clients is framed in one of two ways:

1. What do I need to be able to show to prove my spouse is having an affair?  or,
2. My spouse is threatening to file for divorce on adultery grounds, can he/she do that?

When this is the case, my initial instinct is to believe that the proof of such an affair is thin at best or non-existent at worst.  Perhaps a the prospect has caught the spouse engaging in an "emotional affair" with an old classmate on Facebook that expands into text messages or telephone calls or maybe it is a internet pornography addiction.So what level of "infidelity" is required to substantiate a divorce on the ground of adultery in South Carolina?South Carolina law requires that the spouse seeking a divorce on the ground of adultery to show their spouse had the (1) inclination (or motive) to have an affair and the (2) opportunity to have an affair.  Inclination can be proven by showing the text messages, telephone calls, dates, public displays of affection, and so forth.  But that isn't enough.  We must also show that the offending spouse had the opportunity to complete the affair.  In our fact patterns above, our proof of opportunity is lacking.  While there may be some bad behavior going on, there isn't proof of an affair.The other side of the coin is this: the law doesn't care what your spouse was doing while they were alone with their girlfriend/boyfriend, as long as they were alone for a time long enough for the affair to occur.

How to File Your Taxes

It's January and you're starting to get your W-2's, 1099's and other tax documents in the mail and you're ready to file your taxes.  You may have been through a divorce in 2012, contemplating divorce, or you may have received a final decree of separate support and maintenance but haven't been divorced yet.  The question comes up often about what filing status you should use when you prepare your tax returns: married filing jointly, married filing separately, head of household or single.There is often a benefit to filing married filing jointly or as head of household rather than filing married filing separately or single.  I'm sure people file with the incorrect status every year so they can get a larger refund or have to pay less in taxes.  Here's how to figure out the status you should file:

You filed for divorce in 2012 but the divorce has not been finalized and there is no final order of separate maintenance.

Since you are still married and there has been no action for separate support and maintenance filed, your options for filing status will be limited to married filing jointly or married filing separately.

A Final Order of Separate Support and Maintenance was entered in 2012

Since you have been issued a final order of separate support and maintenance you are still married, so you have the option to file married filing jointly, married filing separately, or head of household if you meet the additional requirements for that filing status.

You were divorced in 2012

Your marital status on December 31 is the determining factor for your tax filing status for that year.  Even if you were married the majority of the year, but you were divorced sometime in 2012, you must file either single or head of household (if you meet the additional requirements).

Having Second Thoughts about Filing for Divorce

I received this question recently:

I filed a fault divorce and my husband has not been served yet, I am having second thought about this divorce and not sure if I want to go through with it. Is it too late to stop?

Sometimes people really think they are ready to file for divorce, but when it comes to filing and getting ready to serve the papers, reality can set it and sometimes when you re-evaluate your situation a divorce may not be the best way to go.  But the questions is are you stuck with the divorce if you have filed it but it hasn't been served yet.Rule 41(a)(1), South Carolina Rules of Civil Procedure states that, "an action may be dismissed by the plaintiff without order of court...by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs[.]"Since your husband has not been served with the Summons and Complaint you filed, you will be able to dismiss your divorce action by submitting an order of dismissal to the Family Court and paying the motion fee of $25.00. This dismissal is typically "without prejudice" which means that you may file for divorce again and allege the same claims as you did in the current divorce complaint and you will not be penalized.Occasionally, a client will decide to reconcile with their spouse after service of the Summons and Complaint - sometimes much later in the litigation.  In the event the parties mutually agree to dismiss the divorce action, they both are required to sign an order consenting with the dismissal.  This dismissal is also without prejudice unless otherwise stated.

What is Proper Service of a Summons and Complaint for Divorce in South Carolina?

I received this question on the blog recently:

My papers were stuck in the door jamb at my house when I was out for the day. There were big storms that afternoon, high winds and heavy rain.  These papers could have blown away and I NOT show up at the meeting.  This is a big deal to me.  Must a server actually hand you the papers or can they be dropped off like they were?

If this type of service of process were effective, then this could lead to total disaster for defendants of family court matters in that someone could leave a document in an obscure location at someone's home where they would never find it so that they would miss any hearing and the moving party would get everything they asked for without contest from their spouse.  Right off the bat that sounds ridiculous, but let's look at the South Carolina Rules of Civil Procedure just to make sure the proper ways to service a Summons and Complaint.Rule 4 of the SC Rules of Civil Procedure provides us the guidance we are looking for:

(c) By Whom Served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.

I quoted paragraph (c) just to point out who can properly effect service of summons and complaint in South Carolina.  The Sheriff, his deputy, or any other person 18 years or older who is not an attorney or party to the action may serve the summons and complaint in a case.  So that means if the plaintiff was the person who stuck the papers in the door or delivered them in some other valid way to the Defendant there would not be valid service of process.

(d) Summons: Personal Service. The summons and complaint must be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Voluntary appearance by defendant is equivalent to personal service; and written notice of appearance by a party or his attorney shall be effective upon mailing, or may be served as provided in this rule. Service shall be made as follows:

(d)(1) Individuals. Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.

When serving an individual as done in a family court case, the process server must deliver the summons and complaint to the defendant personally.  That means the summons and complaint must be placed in the defendant's hands.  Leaving it under the mat or jammed in the door is not personal service.  Also, it is proper service is the papers are left with a person of "suitable age and discretion" who also resides in the usual place of abode (the home) of the defendant.

(d)(8) Service by Certified Mail. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.

The rule also goes on to state that it is proper to serve a summons and complaint to individuals by mailing the documents through the U.S. Postal Service via certified mail, return receipt requested and with delivery restricted to the addressed defendant.  The post office is not supposed to let a letter sent in this manner be signed by someone other than the addressee, but sometimes it happens and that would not be proper service upon the defendant and could yield any relief received based on that service void.

(j) Acceptance of Service. No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.

Also wanted to point out another way that service can be made on a defendant.  An acceptance of service is mostly used by attorneys when the defendant already has an attorney representing him/her prior to service of process or in an uncontested case where the defendant agrees to receive the papers.  Essentially, this requires the defendant to sign a document known as an Acceptance of Service that states that he is has received the specified documents, and the date and location of the acceptance of service.