Do We Have to Separate and if I do, will I lose any rights?

Question: My spouse is threatening to sue me for abandonment if I leave and telling me that I won't get anything from the home if I leave the home.  Our marriage is over and I cannot stay there any longer.  Can I leave the home or am I required to stay?  Answer:This is a very common threat in divorce matters.  The fear of the unknown and a lack of understanding of the law keeps people together - even in dangerous or abusive situations.  So, let's look a little deeper.  Is is okay to leave the home or will you forfeit some rights if you move out?I'll start out by saying that the implications of moving out first can be far-reaching so you should definitely consult with a lawyer in your area about the specifics of your case to determine how this may affect you.In general, South Carolina law requires you to live separate and apart from one another to file for divorce on the grounds of continuous separation for more than one year (the South Carolina no fault divorce ground), desertion, and for separate support and maintenance (similar to a legal separation in other states).  In 2011 the South Carolina Supreme Court clarified this in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011).    It is possible to file for a divorce based on habitual drunkenness, adultery, and physical abuse while still remaining in the same home.So, it is possible to file some actions before you separate, but other actions require the separation.  So, when your spouse says that they will file for abandonment if you move out, that is usually a trumped up threat than cannot be backed up.  South Carolina law requires a physical separation in many cases.Now, can you forfeit rights by moving out?  This is always a risk on a temporary basis.  The issue is usually that you are seeking custody of the children and need to file for the divorce or separation but your spouse refuses to move out.  Sometimes your only option may be to move out so the court has jurisdiction to decide your case.  But, many times the judge may decide that the party who moved out chose not to live in the former marital home and may not allow them to return.  But, this is a temporary decision. In the overall division and apportionment of the marital assets/debts it will not matter which spouse moves out initially.Without moving out of the home you could attempt to come up with facts sufficient to claim a fault-based divorce ground to keep you from having to move out.  Many times this will lead people to making trumped up claims of fault with no real evidence and make the case more contested and more difficult to resolved by settlement later on.Like I stated before, the specific facts of your case may make your decision easier to make.  Please consult with a lawyer in your area to find out more.  I would be more than happy to schedule a time for us to discuss your divorce or separation case.

How Do We Prove the No Fault Divorce Ground: Continuous Separation for Over 1 Year

Question: My wife and I have lived apart for over ten months but the first 6 months she lived with her mother, the last four months she has owned her own home.  We both want a simple divorce, how do we account for the first 6 months of separation?Answer: The South Carolina Code of Laws sets forth five grounds for divorce in South Carolina in §20-3-10.  Sub-paragraph (5) is the provision for the no-fault ground as follows, "on the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year."The law essentially only requires living apart from one another for greater than one year.  Our appellate courts have identified some things that do not qualify as living "separate and apart" such as one spouse moving out of the marital bedroom and sleeping in the basement or the couch in the den.  Likewise, living in an RV in the backyard would also not be living separate and apart.Your case is different.  You did separate and your wife moved into her mother's home for the first six months of separation and later she purchased a home of her own.In a hearing for divorce on this ground the evidence is typically the testimony of a witness who has a good relationship with one or both of the parties who can corroborate that you have lived apart for more than one year and have not resumed cohabitation during that time.  So, in your case, perhaps her mother could testify that your wife moved in with her for six months and then moved into her own home.  She could go on to testify that when your wife moved out of her home she moved into a new home of her own and she keeps up with her daughter on a regular basis and is confident that the two of you have not resumed cohabitation.

My Spouse Won't Leave...Can I Still File for Divorce?

Recently, this question was posted as a comment on a blog post, "I want a divorce because my husband is a verbal and physical abuser when he drunks. Be won't leave the house. Can I still file for divorce?"South Carolina has five grounds for divorce: physical abuse, habitual drunkenness, adultery, desertion, and the no fault ground of living apart continuously for a period in excess of one year.  If you do not qualify for one of the fault-based grounds for divorce you could also file for separate support and maintenance.The desertion ground and no fault ground for divorce requires that you live separate and apart for more than one year.  You are also required to live in separate residences to file for separate support and maintenance.  So, if your circumstances fall into one of those three categories and you cannot get your spouse to leave the home, your only option will be to leave the home yourself and immediately file for separation or divorce and seek possession of the home as temporary relief at an initial hearing.If you are filing under physical abuse, habitual drunkenness, or adultery grounds you do not have to live separate and apart before filing for divorce.  Under those circumstances you may file while you are still living together.  But, just because you are able to do something doesn't mean it is the right course of action for you.  If your spouse is verbally and physically abusive under the best circumstances, how do you think they will respond when they have been served with divorce papers?  It would probably not be safe for you to remain in the home with your spouse during that time.I would suggest setting up a consultation with a divorce attorney in your area to discuss the circumstances of your case to determine if your case will qualify for one of those fault-based divorces and to come up with a strategy that will help you remain in your home, but under safe circumstances.

How do South Carolina Family Courts divide property and debts in divorce cases

There are two main division methods in divorce law nationwide: community property and equitable apportionment states.  South Carolina is an equitable apportionment state. So, what does that mean?Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage.  Our Code of Laws state that, during a marriage, spouses acquire a special equity and ownership right in the marital property and those rights are subject to apportionment between the spouses.  (See SC Code §20-3-610).  To break down that definition a little further it will be helpful to define marital property.  SC Code §20-3-630 defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation regardless of how legal title is held.  So it doesn't matter that the home is only in the husband's name or that the Wife is the only spouse who contributed to a 401(k) during the marriage.  Of course there are exceptions to every rule.  Property obtained by inheritance, devise, bequest, or gift from a party other than the spouse, property owned prior to the marriage, and property acquired after a temporary order is entered, a marital settlement agreement is executed, or a final order of property settlement is entered.  The first step the Family Court will take is to identify all of the marital property.  Once the marital property has been identified the court will determine how to divide the assets between the spouses.  SC Code §20-3-620 identifies 15 factors that the Family Court must consider in determining how to apportion the marital property among the spouses.  Those factors include things such as the length of the marriage, the ages of the parties at the time of the marriage and at the time of the divorce, the income and income potential of each party, the marital misconduct or fault of either party (meaning someone has committed adultery, physically abused a spouse, or is addicted to narcotic drugs or alcohol), the health of the parties, the non-marital assets of the parties, and several other factors.It is not uncommon for the Family Court to issue an order of apportioning the marital property in a 50/50 (equal) manner between the spouses.  But, it is not mandatory that the Family Court divide the marital property equally between spouses.  In cases where one spouse contributed significantly greater in the financial area of a marriage, the court may deviate and award a greater portion of the marital estate to that spouse.

What should I expect at the initial consultation with my divorce lawyer?

When you meet with a lawyer to discuss your divorce case you want to know something tangible.  You have hundreds of questions and worries floating around in your head.  How much with this cost?  What is the worst case scenario?  Will I lose my kids?  How long with this take?  And many more.The initial consultation is a time for you and the lawyer to get to know more about one another.  Your lawyer will likely ask you to complete a new client intake form.  This will ask information about you such as your address, date of birth and other personal information.  It will likely as for the same information about your spouse.Many forms also request information about the marriage such as the date of marriage, when you separated, the reason for the separation, number of children born during the marriage, and it will ask for what you are seeking in the divorce.  For example, do you want sole custody of the children?  Are you seeking a divorce on adultery or some other fault-based ground?  Are there assets and debts that need to be divided between you and your husband?This will help the lawyer to understand the level of complexity involved in the case.  Also, knowing the issues important to you, he can give you some direction about the law in those areas and can provide an overview of how the process works.Your lawyer cannot provide you with an exact game plan, certain results or even really exact legal advice at this time.  Great legal advice is based on knowing all of the specific facts of your case and there is usually not enough time to uncover all of that at an initial consultation.Think of the initial consultation as an interview.  All lawyers are ethically required to be competent in the areas they practice in, but that doesn’t mean all lawyers are equal.  Your personality will mesh with some lawyers and clash with others.  And, while lawyers love being retained for new cases, they don’t accept every case that comes through their doors.  So, understand that while you are determining if you can work with this lawyer, he is also trying to determine if he can work with you.So, at your initial consultation you should be looking to determine if this is a lawyer you feel has the knowledge necessary to provide you with the representation you need and if he is someone you feel comfortable working with.  Don’t select a lawyer just because that’s who your friend or family member used.  You should also try to get some questions answered, but understand that oftentimes at this stage of your case there is simply not enough information available for you to receive an exact answer.  The answer you receive will likely be qualified with lots of “ifs” based on how the facts play out.

What do I do about custody, visitation, property, and other issues while the divorce is proceeding?

Oftentimes, there are issues that must be addressed early on in a case.  Some of those issues include custody of minor children, child support, visitation, determining who gets to reside in the marital home and spousal support.  This relief comes through a Temporary Order.  Either party may file what is called a Motion for Temporary Relief.  Once filed, a hearing will be scheduled and the motion must be served on your spouse at least five business days prior to the hearing.  South Carolina Family Court Rule 21 states that the only evidence the Judge will consider at the temporary hearing will be: "pleadings, affidavits, and financial declarations".These hearings are short.  They are typically scheduled to last approximately 15 minutes.  At the conclusion of the hearing the Judge will issue his or her ruling which will become the Temporary Order.  This order will remain in place throughout the pendency of the case; however, it is important to note that this order has no effect on the judge who hears the case at the final hearing.Because these orders may be in place for over one year, it is important that you work with your attorney from the very beginning by being honest and upfront with him/her and provide all of the documents and other affidavits they request.  I have written more about Temporary Hearings and Affidavits here, here, here, here, here, here, and here.

I Saw Mommy Kissing Santa Claus: Is an Eyewitness Necessary to Prove Adultery in South Carolina?

To obtain a divorce on adultery grounds you will need more evidence than telephone records and e-mails.  But, you don’t need an explicit sex tape, a pregnancy, or an eyewitness to prove your case for adultery.In Prevatte v. Prevatte (297 SC 345), our Court stated, “Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.”Sufficient proof of adultery must establish that your spouse had motive and opportunity to have an affair.  Proof of motive shows there is a romantic relationship your spouse is involved in.  Proof of a date with another person, holding hands while walking through the park, telephone records showing numerous calls and text messages to one another.  That’s motive.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.

Service after a Separate Maintenance Hearing

I recently received this question:

"I filed for divorce in September 2012 and reached a settlement with my spouse that was approved by the court a few months ago, but we were not divorced at that hearing.  Since then my wife relocated to Ohio and I don't know where she is.  I want to finalize the divorce by year-end. I've been told that in this case I can simply send a certified letter to her last known address and that the 'green card' doesn't need HER signature.  Is this true?

The answer to your question will be different depending on how the court procedurally handled the order approving the agreement.  By approving the agreement, the court could have issued a final order of separate maintenance that approved the agreement.  The court could have also entered a final order as to the approval of the agreement and held open the issue for divorce.  If a final order of separate maintenance was issued that approved the agreement, then you would be required to file a new action for divorce and would have to prove service upon your wife in accordance with Rule 4 of the South Carolina Rules of Civil Procedure either by personal service or by producing the green card where she signed for receipt of the summons and complaint that was mailed to her certified mail, return receipt requested, restricted delivery.If the earlier case is still open and you are just mailing her a notice of the final hearing, Rule 17(a) of the SC Family Court Rules require notice of the final hearing to be "mailed to the defendant at [her] last known address, by certified mail, return receipt requested."  This is different from proving service of the summons and complaint as the rules require you to prove you mailed the notice in this particular manner but don't necessarily require you to prove she received the notice by tendering the green card to the court.