3/30/11 3/30/11

"That's Why I Paid a Lawyer"

Ever said that? Or thought it? You have a case (a divorce in this context) and you have hired a lawyer to represent you through the case. Your lawyer meets with you a few times and then he prepares the summons and complaint: the paperwork that is filed with the court that officially launches your divorce case. Your lawyer also files a motion for temporary relief so that you can get in to see a judge as quickly as possible to tie up some loose ends like getting child support started. So you're part is done. It's all up to the lawyer now, right?NO! You play a very important role throughout the entire case. Some phases of your case will be more demanding of your time and attention than others, but all are important. In the beginning as your lawyer is learning more about you and your case, you will be providing a lot of information to your lawyer by affidavit, intake forms, client information worksheets, financial declarations, and probably some more stuff. You will probably have to meet with your lawyer on many occasions throughout the process. If custody is at issue, there will probably be a significant chunk of time spent with the Guardian ad Litem discussing the case and the children.Just keep in mind, that as you walk through this process with your lawyer, it is a team effort. You are an important part of the team and will be asked to contribute during the litigation.

3/28/11 3/28/11

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.

3/25/11 3/25/11

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.

2/3/11 2/3/11

Happy New Year! Top Posts for 2010

I hope everyone has a Happy New Year! I'm very excited about what 2011 is going to bring to my law practice and life - but I know that no matter what new things may come along I will still be helping people through my practice. I have some big plans for the blog including more posts, videos and more for 2011. If you have some ideas or things you would like to see please let me know!Here are the top 10 posts from 2010 at UpstateFamilyLawBlog.com:

12/27/10 12/27/10

Should I Consider Filing for a "Legal Separation"

When you and your spouse have separated with the intention of getting a divorce you have 2 general options when filing depending on the circumstances of your case. First, you could file for divorce. South Carolina has five grounds for divorce – four fault-based grounds (physical cruelty, habitual drunkenness, adultery and abandonment) and one no-fault ground (continuous separation for more than one year).The second option is that you can file for a decree of separate support and maintenance which is more commonly known as a legal separation? When you file for separate support and maintenance, you will go through and resolve all of the same issues as if you were getting a divorce; however, you will not be divorced at the end of the case.There is a certain amount of art that goes into determining how you want to file. Sometimes, there is no fault-based ground for divorce available for your situation, but there are other facts that cause us to want to go ahead and get the case filed immediately. For example, you have young children and you need a custody order and some financial assistance from your spouse to make ends meet.Other times, there are no pressing issues that require us to spend the money to file for separate support and maintenance, so it may be safe to wait for the year’s separation before filing anything.This is not specific legal advice for your case as the facts and circumstances play a big role in determining how you should approach your legal issues. Before you rely on this post (and blog) to determine what needs to happen in your case you should consult with a lawyer to ensure that all relevant facts are considered.

12/1/10 12/1/10

Your Favorite Posts for November 2010

Based on my Google Analytics reports, these are the top 10 most visited posts of November 2010 for UpstateFamilyLawBlog.com:

11/23/10 11/23/10

The Other Side of the Coin - Getting into It

Ah, irony, you always add so much humor to my life. This past weekend I experienced something new. I was asked to officiate a wedding. Not because of my polished public speaking skills, friendship with the bride and groom or because I am an ordained minister. I'm not. Basically, it came down to I was the guy everyone knew who was a South Carolina Notary Public. Romantic, huh?So, while I was sick this weekend hoping I didn't mess up this couple's wedding day and hoping they didn't find out my days were spent as a divorce lawyer, I thought I should write a quick post about how you get into this thing called marriage.In South Carolina there are two ways: (1) the statutory marriage by marriage license and (2) the common law marriage. Here's a quick run down of both:

The Statutory Marriage: Marriage License

Everyone is familiar with this way of getting married. In fact, most people have been to at least one wedding and many have been in several weddings (as a groomsman or bridesmaid, of course). This is where you stroll down to your county's probate court and fill out a marriage license application. Wait 24 hours and return to pick up your completed license that will be signed by you and your wedding officiant after your ceremony.In order to get married in this manner in South Carolina you must be apply for a marriage license, have a ceremony performed by a minister of the Gospel, Jewish rabbi, or officer authorized to administer oaths in South Carolina such as a notary public.There are a few rules about who can get married in South Carolina as found in S. C. Code § 20-1-10 and some following sections:

The law prohibits those closely related by blood or marriage to marry one another.
Both parties must be mentally competent to marry one another so they can have the requisite intent to marry.
You can't get married when you are currently married to someone else. This is known as bigamy.
You must be at least 16 years old.
Same sex marriages are not allowed in South Carolina.

The Common Law Marriage

"Yes," is the answer to your first question. Common law marriage is still alive and kicking in South Carolina. And most times causing huge problems and lawsuits. A common law marriage is where the couple is married because of their actions/lifestyle, not because they filed any legal paperwork or had a ceremony. The paperwork and ceremony are not required in this case.After the first question, the second one is, "how long do we have to live together before we are considered to be common law married." The answer is that there is no set time period for living together to be common law married. Basically, you prove that both parties have an actual and mutual agreement to live publicly together as husband and wife. Rogers v. Herron, 108 S.C. 271, 276 (1954). There are several factors that when combined prove the intention to be common law married. Here are the factors that must be proven for a common law marriage to be recognized:

Cohabitation with one another.
Hold yourself out as husband and wife. This can be done by introducing each other as your husband/wife or by filing joint income taxes together and other things like this.
That there are no impediments such as age (under 16) or being currently married to another person.