Divorce and Reconciliation Attempts
If there are no fault-based grounds for divorce in your case you will have to be separated for more than one year before you can file for divorce from your spouse. Sometimes during that year separation a couple will want to "make sure" they have done everything they can to save their marriage and if it doesn't work out then they can feel like they at least tried one last time. So, this begs the question, if you do attempt reconciliation with your spouse will this start your one year time over?The answer is, "it depends." How is that for a lawyer answer?Really, it depends on a few things. First, it depends on your intent when you and your spouse get back together. If you believed and intended that you had resolved your differences and you were resuming the marital relationship then your time will probably start over. If you go into it intending that this time is just a trial reconciliation and you are not intending to completely reconcile the marital relationship at this time then perhaps the time does not start over.Next, the amount of time that you spent together will make a difference. If it only lasted one night or a few days then it is more likely that a judge would allow you to proceed. If it lasted for several weeks or months, it is more likely the time starts over.Third - and this is probably the most important factor - it depends on which judge you have presiding at your trial. A strict reading of the statute says that the one year period must be "continuous." That means with no interruptions. So a very strict reading of the law means that any reconciliation attempt would start the time over. From a public policy perspective this is bad. This would mean that you would be punished by the Court (and the State, in essence) for trying to do everything possible to work out your marriage. In other words, it appears that this strict reading would really be encouraging not attempting a reconciliation.Other nearby states use a "totality of the circumstances" approach to determine whether a reconciliation attempt should start the clock over or should not. That really means that the judge would listen to the reasons why you attempted reconciliation, how it went, what your intent was, how long you were back together, etc. to determine whether you should be able to proceed with your divorce on the no-fault ground or if you have to wait start the one year clock over again.What are your thoughts?
What is a Divorce Temporary Hearing
In many divorce cases in South Carolina the first hearing that you will participate in will be the Temporary Hearing. It is called a temporary hearing because you are requesting that the court provide you with some "temporary" relief. "Temporary" means that you this court order will govern your case from the time of the temporary hearing until a final hearing or later order in your case.When you go to the temporary hearing you should know that there is generally no testimony taken at the hearing. So you will not be called to go up to the witness stand and testify about the reason for your divorce or why you need the relief you are requesting. When you go to your temporary divorce hearing you should prepare affidavits from you and your close friends and family that are relevant to the issues in your case. So that may mean that your affidavits need to discuss why you are a better parent or why you should receive custody, child support, alimony, attorney fees, etc. You will also include a financial declaration with your affidavits. You should also note that the different courts and different counties have different rules regarding the number of pages they allow at their temporary hearings. Greenville County caps the number of pages you can have to 8 (not including your financial declaration and attorney fee affidavit).Any questions about the temporary hearing or other procedural issues in your South Carolina divorce case?
I've Been Served with Divorce Papers - What Now?
So you have been served with divorce papers in South Carolina and you don't know what to do? First, you need to make sure that you speak with an attorney immediately. You have a limited amount of time to respond to the claims in the divorce complaint that you were served so you don't need to waste any time meeting with an attorney. It may take you meeting with several attorneys before you find someone you feel comfortable with representing you.If you do not file an answer you may be giving up your right to some relief that you would otherwise be entitled to. In other civil courts in South Carolina not filing an answer and going into default means that you have "agreed" to all of the allegations in the complaint filed against you. While South Carolina family court rules change this rule a little bit in South Carolina Family Courts, it is still not a good idea not to respond. Because the South Carolina Family Court is also a court of equity, the family court will allow you to bring up and argue issues of alimony, property division, child custody, child support and child visitation even if you do not file an answer - but you cannot contest any issue regarding the grounds for divorce.Bottom line: meet with an attorney and retain them as soon as possible after you have been served. If you cannot afford to retain an attorney, you need to make a written response to the complaint that was served against you so you are not assumed to agree with everything it says.
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.