Why do some divorce cases settle and some go to trial?
This is kind of an interesting question to answer especially within the family court and divorce realm. I think there are a number of reasons why some cases are able to settle and some are destined to be expensive and to be tried before a family court judge. I have learned that I shouldn't categorize my cases by which ones I think will be easily resolved and which ones won't because I am constantly surprised when one case that I expected to go to trial settles and one where there seems to be no issues suitable for trial goes on and on. Some of the things I have heard from divorce clients in the past is that "it is just the principle of the thing." Sometimes, a person would rather fight it out and spend money over "principle" rather than let their spouse have the satisfaction of getting them to "settle." Many cases go to court for the wrong reasons. Just like the quote above, the main denominator in these matters is that pride gets in the way.Then again, there are those hard cases that need to be tried. Recently, I handled a custody matter that went to trial. Honestly, the children would have probably been fine with either parent and both parents wanted them. The Guardian ad Litem for the children had a hard time with any type of recommendation and actually waffled back and forth. These types of cases usually come down to one or two very minor things that neither party is willing to acknowledge or give in on and that is why they must go to trial.So, to be honest with you, it is hard to predict whether your case will settle or go to trial. Sometimes it can be harmful to go into the beginning of the case with the mindset that we are just out to settle. My goal is to always get the best outcome possible for my client. That may require them to settle, but other times it may require them to forgo settlement and go to trial.
South Carolina No Fault Divorce Ground
Earlier this week I posted about a new series that is going on for a few days or weeks discussing in detail the five grounds for divorce in South Carolina. This first post is going to discuss the no fault ground for divorce in South Carolina which is living separate and apart without cohabitation for more than one year.
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.
Legal Name Change in South Carolina
So you are wanting to change your name in South Carolina? and you want to know how to change your name or what to expect if you are meeting with an attorney about legally changing your name.
Here are the steps that will be required when you want to change your name in South Carolina.
Legal name changes are governed by South Carolina Code Section 15-49-10. Before a name change petition can be filed with the Family Court, you must take care of some administrative things. Before you can file, the law requires that you have been a resident of South Carolina for at least six months unless you fall into a category where this requirement can be waived (related to the petitioner’s safety). Once you satisfy that hurdle, you will complete a SLED fingerprint card and background check . You should go to a local law enforcement office to get fingerprinted. That fingerprint card should be sent to SLED with the background check form and affidavit along with a check for $25.00. A few days later you will receive a copy of the background check from SLED that also confirms you are not listed on the State Sexual Offender Registry.
You must also obtain a screening statement from the Department of Social Services stating that you are not on any child abuse or neglect registries. There is an $8.00 charge for this statement. You will need to fill out a form and mail the form and payment in and several days later you will receive that report.
After you have obtained the requisite background checks, and an affidavit that comports with the language contained in the name change statute and you or your attorney will file a petition for name change with the Family Court asking for the legal name change.
From there you will most likely have a hearing where you have to testify before the judge about the reason you are seeking a name change. The statute does not say that a hearing is absolutely required, so to me that leaves it up to the discretion of the Family Court judge. I have seen it go both ways, where a judge signs a name change order without a hearing and other times where the judge requires a hearing. It usually depends on the reason for the name change or if there are concerns about the background check or DSS registry check.
Will I have to go to Court?
Do you have to go to Court to finalize your divorce case? Yes. In order for you to finalize your divorce case in South Carolina and get a divorce decree you must appear in court if you are the plaintiff in the case. That means if you were the one who hired the attorney and filed the papers at the court house for divorce, you must appear in court and provide evidence to the court regarding the reason for your divorce (prove the grounds for divorce like one years separation or adultery). You must also testify to things relating to your case such as the agreement you and your spouse have signed or the reason you should be entitled to custody of your children.Depending on the complexity of your case, your final hearing may last five minutes or less or it may last several days or weeks.In many cases, you will be required to have a witness (or many witnesses) depending on what needs to be proven in your case.
What is an Uncontested Divorce in South Carolina?
So what is an uncontested divorce in South Carolina? There are several things that must be in place before your divorce is considered uncontested. An uncontested divorce looks good to people because they believe it can be obtained more cheaply and quicker than trying to duke it out in court.Sometimes it makes sense to proceed with trying to get an uncontested divorce. I have met with a lot of potential clients recently who have been living separate from their spouse for many years. They have moved on emotionally and physically, but they have never done anything about the marriage.An uncontested divorce is good when the couple does not have any property to divide, when there are no children, and when there is no alimony to be paid from one spouse to the other. If there are issues like property that must be divided, child custody, property division, alimony, child support and so on then you may need to forget about the uncontested divorce and make sure you are protected.If you and your spouse are able to work out those issues, it is normally possible for you to put your agreement in writing is a separation agreement which is presented to the court for the court's approval. This agreement must settle all issues in the marriage before you can proceed like the divorce is an uncontested divorce.Finally, an uncontested divorce is filed on the grounds of more than one year's continuous separation. Without going into a huge discussion of the law on what that means, basically it means that you have been voluntarily separated from your spouse for more than one year. Voluntarily means that the separation is not due solely because your spouse is incarcerated or because they have been deployed by the military. Separated means they are living in a totally separate residence. Not that they are sleeping in the bedroom down the hall or the basement or not because you haven't had sex in over a year. Finally, you must have been separated as described above for more than one year or you cannot ask for a divorce on that ground.For a description of what the process is like, and more information about uncontested divorce visit the South Carolina Uncontested Divorce page on this blog.
Can You Guarantee a Fast Divorce
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 we 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."
Proving One Year Separation
The no-fault ground for divorce in South Carolina is to prove that you and your spouse have lived separately and apart for more than one year. That means that you have intentionally and voluntarily lived in a separate residence from your spouse for more than one year. This does not include sleeping in the guest bedroom down the hall.Many clients ask me if they need to bring in a copy of an apartment lease or hotel receipt to prove the time they moved out. Usually this is not necessary. You will simply testify that you moved out or separated from your spouse on a certain date. Then you will need a witness who knows you well enough that if you were to get back with your spouse they would probably know about it. Someone who visits your home regularly and calls you on the telephone regularly. This witness needs to be at least 18 years old, can be a family member or friend, but should not be a child of the marriage. Their testimony will corroborate yours and that will be enough proof for your divorce.
What Happens If I Don't Know Where My Spouse Is?
Question: I would like to get a divorce from my spouse, but I do not know where they are or how to find them. Is it still possible to get a divorce from them?Answer: 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.