What's Up with Family Court Mediation?
If you have already filed your divorce action you have probably already found out that in many counties in South Carolina, you will be required to go to divorce mediation in your case.So what is mediation? Most simply, mediation is a negotiation meeting between you and your spouse. It acts as a chance to get everyone "to the table" so to speak where the case can be discussed and hopefully all of your issues can be resolved without a trial.Generally, you and your spouse will be sitting in separate rooms with your attorneys and the mediator will go back and forth between the rooms to assist you in finding some common ground and helping you to see how things more clearly about your case. While a mediator is often an attorney who has experience with similar cases to yours, the mediator is a neutral who has no experience with you or your spouse and they can not give you legal advice about your case.There are several rules that you should know about before going to mediation. First, everything that is discussed at mediation is confidential. That means if you and your spouse are not able to work out an agreement whatever you have discussed cannot be brought up at trial and used against you. That means you get a free bite at the apple. You may offer something to your spouse as a way to settle your case that you don't necessarily believe they are entitled to. But, if you do not settle your case they can't throw that back in your face later on.The next thing you need to know about mediation is that many issues are settled there. Mediation is a success if only some of the issues are settled - even if the entire case is not resolved. This saves you money and time in the long run because you are not forced to litigate every single issue in your case. What?!? Let's just use the following facts as a sample. You file for divorce against your husband and you seek custody of your children, child support, reasonable visitation for your husband, property division (specifically your husband's 401(k) and the marital home) and alimony. At mediation you can't come to an agreement on alimony or how much you feel you should get from your husband's retirement account, but you do settle the custody, child support and visitation issue. This means you don't have to worry about the expense of a Guardian ad Litem for your children and you do not have to litigate the sticky child custody issue that could take up significant time in the final trial.One thing I like to urge people when I mediate their divorce case is not to assume that the case won't settle. Many cases seem to start out a long way apart, but end up settling many (if not all) of the issues.Do you need more information about divorce mediation? Comment below or send me your questions.
10 Questions to Get Answered Before Hiring Your Divorce Attorney
I have produced a free report entitled, "10 Questions to Get Answered Before Hiring a Divorce Attorney." All you have to do is fill out the form at the top of this page and you will automatically receive a link to download the free report. We will also follow up with you to provide information about the divorce process in our divorce e-course and what you need to know before you go.Please fill out the form and get your FREE Report now!
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.
"Legal" Separation for South Carolina No-Fault Divorce
Question:I am seeking a divorce from my spouse. There are no fault-based grounds for me to file on so I have to wait for the year to pass before I file for divorce. Do I have to file for legal separation in order to start the time running for my divorce?Answer:Thanks for your question. I’m sorry to hear that you are contemplating divorce, but to answer your question, no, you are not required to file for a legal separation in order for the time to begin running. South Carolina law requires that in order to obtain a no-fault divorce the couple must live separately for more than one year. So the clock starts to tick the very first day that you and your spouse live in separate residences. It is important to note that your separation cannot be that you have moved into the bedroom down the hall. You must physically live in a different residence from your spouse to start the separation clock.
When can a Child Determine Which Parent He Will Live With?
Question: What age can a child determine which parent he will live with?Answer: This is a question I receive quite often from parents going through a custody fight with their spouse or former spouse. There is a misconception that the South Carolina child custody law allows children who have reached a certain age to make decisions on where they should live. This is simply not true.Children, no matter what their age, generally lack the knowledge and life experience to make a binding decision on their own. If the custody of a child is a contested matter, then the child will not get the final say on where he or she lives. This does not mean the child gets no say, but just not the final say.In a contested South Carolina child custody matter, the Family Court will determine what is in the best interest of the child. The “best interest of the child” is the overarching consideration in any issue regarding children. The child communicates to the Court through the Guardian ad Litem appointed to represent the child and provide information to the Court about the details surrounding the children. The judge will use the Guardian’s report along with the other evidence from trial to determine what is in the child’s best interest and in whose custody they should be.
What's a Reason for Divorce
While I know there are many reasons and circumstances that lead to a couple or spouse determining it is time for a divorce, South Carolina only grants divorces when you are able to prove one of five divorce grounds. Over the coming days we are going to delve into the five divorce grounds in depth, but today I want to highlight them for you and let you know what you are in store for.So what are divorce grounds? Divorce ground are the reason you are getting a divorce that state law recognizes as a way to get divorced? For example, if your spouse cheats on you it is possible to proceed with a divorce on the grounds of adultery. However, if there are no specific fault based reasons for divorce but you and your spouse simply can't stay married for any other number of reasons you would proceed on the no-fault ground for divorce in South Carolina which is by being separated from your spouse for more than one year continuously.The five divorce grounds in South Carolina are:
- Physical Cruelty
- Habitual Drunkenness and Drug Use
- Adultery
- Abandonment
- More than one year's continuous separation.
The first four grounds listed above are all fault based grounds. Number five is the no-fault divorce ground in South Carolina. If you file for divorce using a fault-based ground, you must wait at least 90 days from the date of filing before you can request a final hearing. Stay tuned for a more detailed discussion of each of the divorce grounds coming soon.