9/4/13 9/4/13

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.

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.
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.
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.

2/26/13 2/26/13

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:

Relationship;
Age;
Residency;
Support;
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.

1/25/13 1/25/13

Adultery: What Proof is Required

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

What do I need to be able to show to prove my spouse is having an affair? or,
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.

11/13/12 11/13/12

What Goes in my Affidavit?

Family court cases typically get kicked off with a temporary hearing. I have written about temporary hearings here, here, here and here. At these temporary hearings, there is typically no testimony, very short oral arguments by the attorneys, submission of affidavits and exhibits for the judge to review and then the judge renders a decision. In fact, Rule 21(b) of the South Carolina Family Court Rules states that "evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary."Many times courts allow the attorneys an opportunity to make a brief argument on behalf of their clients, but there have been some occasions where the court advises that they do not have time for arguments and they are only going to consider the pleadings, affidavits and financial declarations in their temporary decision. Needless to say, the content of your affidavits are extremely important. When it comes to affidavits there are two main types: the client's affidavit and supporting affidavits.

The Client's Affidavit

Here are some things I try to focus on when helping clients prepare temporary hearing affidavits (or affidavits for other hearings):The first set of tips has to do with the format. I would recommend having a type-written affidavit using a normal 12-point font with double line spacing to make the affidavit easy to read. I know how frustrated I can get reading tiny fonts, bad handwriting, or tightly spaced wording (typed or not) and I can only assume that judges also have a more difficult time reading these kinds of affidavits.Next, consider the content. I usually ask clients to have a brief history of the marriage. Beginning with when and how you met, began dating, and some information about the marriage. Then, we move into the reason for the separation and what led up to the divorce proceedings.The next step is to address the contested issues and I like to organize them according to my client's priorities. Typically, the issues of custody and visitation top the list. You should describe your involvement as a parent, who primarily takes care of the children, what the routine looks like and what your plan would be if you were awarded custody of the children. You should also discuss the role your spouse has played in the lives of your children. Also, consider what kind of visitation you would want your spouse to receive and how you are going to encourage the relationship between the children and the non-custodial spouse. You should also describe to the court concerns you have about your spouse, but this is not an opportunity for you to trash your spouse. For example, has he/she been involved in an adulterous affair and involved your children in that relationship? Does your spouse have an anger issue, or addiction to alcohol or drugs?Before discussing your desire for child support and/or alimony, I suggest that you discuss you and your spouse's educational backgrounds, work/employment history, reasons for jobs changes (e.g. fired, laid off, resigned for better position, etc.), pay history, and current employment. For the issue of temporary spousal support it is also helpful to remind the court of any fault in the breakdown of the marriage (e.g. adultery, physical abuse, habitual drug use or alcoholism). I think it is also helpful to relate this paragraph to your financial declaration to point out how your (very reasonable) living expenses exceed your gross income and either how you need additional money from your spouse to help ends meet or you can't afford to pay more than reasonable child support because of your other financial obligations incurred during the marriage. Now that we have the basis for your understanding of the parties' income you can begin to frame your request for (or against) child support, alimony, and attorney fees.You should also ask for specific items you are requesting such as continued health insurance coverage for you or the children, possession of the marital residence and a determination of who should be paying the bills, possession of the vehicles and other items of personal property.

Supporting Affidavits

When it comes to supporting affidavits, I know I am not the only attorney who has reviewed dozens of pages from brothers, sisters, friends, parents, and other family members describing how great my client is. But the truth is, the court would expect family members to be on our side and provide glowing reviews of our client's behavior and parenting skills.What is more beneficial to the case are affidavits from neutral third-parties such as a teacher, daycare provider, doctor, counselor, or private investigator. While I somewhat belittled having family members give affidavits, if they have very specific information they can provide about instances they personally witnessed that back up your claims then it is more effective.These affidavits should set out the relationship of the affiant (the person writing the affidavit) to the client and his/her spouse, how long they have known them, how frequent the contact is, and their specific points about things they have witnessed that support our case or contradict allegations the spouse is making.

8/3/12 8/3/12

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.

4/8/11 4/8/11

Family Court Dictionary: Continuance

We continue through the new series about legal terminology and what different words mean when you hear your lawyer or a judge say them. Last week we discussed Summons and Complaint. Today we are going to discuss a continuance.When you are going through your divorce or family court matter, you may hear your attorney mention that he is going to request a continuance for a hearing or that the other party is requesting a continuance. You may find yourself in the courtroom at what you think is your final hearing (as I did this week) and the judge announces that this matter must be continued for another day. Typically this situation arises because one of the parties has backed out of an agreement or issues that were previously agreed upon are now being contested requiring additional time for the trial of the case. Sometimes a case is continued because the other party was not given proper notice of the hearing. Sometimes, a party or lawyer is just sick or a lawyer gets called into another court with higher priority.So what is a continuance?In plain English, a continuance means the case is being postponed for another date. So when your case is continued that means that a hearing that has been scheduled will now just be heard on a different date. Sometimes this is pretty frustrating as you were hoping to get your case finalized on that date. Most attorneys will allow the opposing attorney a continuance in a case as a professional courtesy.So there you have it, that's a continuance.

4/4/11 4/4/11

Family Court Dictionary: Summons and Complaint

Lawyers have a bad habit of speaking Legalese. Because we spent (at least) four years in college, three years in law school, and because we hang out with lawyers all the time, we kind of forget that we have our own language and that our clients don't have a clue what we are talking about (or a judge during a hearing for that matter). So, I thought it might be helpful to go through some common terms to lay out a definition as to what they are and how they impact you during case.So this is the first installment of the Family Court Dictionary...enjoy!

Summons and Complaint

When you decide you are going to file a divorce, you will need to prepare a series of documents that are filed with the court that officially begin the process. These documents are called a Summons and Complaint. The Summons is a document that is served with the complaint that gives the court jurisdiction over the parties to hear the case. It also informs the defendant of the time limits to respond to the demands in the complaint before any of his rights may be compromised.The complaint is the document that sets out what you are hoping to get out of the case. There are different rules in different states about the requirements of specificity for the Complaint. The differences lie in how specific you must be with facts in the Complaint. Federal Rules of Civil Procedure only require notice of a particular claim. In a federal case, the requirement is for the Complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FRCP 8(A)(2). In South Carolina the rules are a little different. South Carolina is a "fact pleading" state and the South Carolina Rules of Civil Procedure require the Complaint to be "a short and plain statement of the facts showing that the pleader is entitled to relief." SCRCP 8(A)(2). The difference in the rules is subtle, but the implication is pretty large. Federal Rules only require notice of the claim while South Carolina rules require a statement of the facts proving relief. Maybe an example of the difference would be helpful. The following sentence would probably be acceptable under the federal rule, but not under the South Carolina rule. That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery. That gives you a pretty clear idea of the claim for relief which satisfies the Federal Rule, but doesn't list any specific facts relating to the adultery claim. Here's another try that probably complies with the South Carolina rule:That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair with his secretary, Jane Doe, beginning on or about February 2011 and continuing to present; that the parties had an affair on March 4, 2011 at the Roach Motel on Woodruff Road, and at other times unknown to Plaintiff; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery. To wrap up, here is a short definition for you though: A summons and complaint are the documents that:

Are filed with the court and served on the opposing party that officially starts the case,
Provides specific facts about why you are entitled to the specific relief you are asking for, and
Asks for the outcomes that are important to you.