11/3/10 11/3/10

Your Favorite Posts of October 2010

Here are the most popular posts from October 2010 according to Google Analytics:

10/2/10 10/2/10

Weekend Reading Material

Here are some things I came across this week that I think you will find interesting:

11 Questions We Should Ask About Our Marriage by Perry Noble
Divorcing Couples Adopting Social Media Policies and Agreements by Janet Langjahr
Divorcing in a Down Economy - Insights about divorce mediation and collaborative divorce by Stephen F. McDonough at The Divorce Collaborative, LLC

10/1/10 10/1/10

1 Way You Can Help Your Children Cope with Divorce

Compass of Carolina is pleased to announce the 2010 “Children Cope with Divorce/TransParenting” schedule. This court-approved program is for separating/divorcing parents who want to learn how to help their children move through the challenging process of divorce.The remaining 2010 seminar schedule is as follows:Saturday, October 9 9am-1pmSaturday, December 11 9am-1pmThe cost of this seminar is $75/person which includes educational materials. Please call (864) 467-3434, ext. 3328 to register.

9/22/10 9/22/10

Questions or Answers

Recently, Seth Godin wrote a blog post, Questions and Answers that spurred this post.When you arrive to see your divorce lawyer for the first time you may be seeking two things from them. One of them is obvious, but the other is not so obvious, but perhaps much more important. Questions and answers. I'll start with the answers because that is the most common and what everyone expects.When you go through the phone book, internet search or from a personal referral to speak with a lawyer, you expect that lawyer to be an expert. It is understood that they will know the answers to your questions (or to be able to find out for you after some research). Everyone going through a divorce wants to know similar things: how long is the divorce process, can I get alimony, who will be awarded custody of our children, how much will this cost, and so on. Everyone comes to the initial consultation seeking answers so that is expected.Did you ever think you might be getting a great value from your lawyer if they are also asking you a lot of questions? This part is very important. The lawyer has been trained to carefully examine your case to determine the issues that are present and advise you on the impact it will have on you as well as to advocate for your position. Sometimes, knowing the right question to ask leads to the breakthrough that will provide key information for a lawyer or, more than likely, it will open your mind to things you never considered were possible (or you never thought you were entitled to) before speaking with your divorce lawyer.

9/17/10 9/17/10

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.”

9/14/10 9/14/10

Open Thread: What are Your SC Divorce and Family Law Quedtions?

Do you have a general question about an impending divorce, child custody case, adoption, or other South Carolina Family Court issue? Leave your question in the comments to this thread and I will post an answer in an upcoming blog post. Please do not use your whole name for your own privacy.Thanks!