Divorce Process: What is a Temporary Hearing
You are in the beginning of your divorce. You have filed and served your spouse or they have filed and served you. One of the documents you have received is a Notice of Temporary Hearing. So what is a Temporary Hearing?In contested South Carolina divorce and other Family Court Matters, a temporary hearing is held at the very beginning of the case. On your paperwork, this may also be referred to as a Pendent Lite hearing for temporary relief. The basic purpose of a temporary hearing is to get an Order in place for the pendency of the action. That means the relief ordered by the Family Court at a Temporary Hearing is (1) temporary, lasting only for the duration of the case, and (2) binding on the parties - meaning if you don't do what you are supposed to do, you can be held in contempt and punished by the Family Court's contempt powers.The temporary issues that the court normally determines in a this type of hearing are typically:
- Child custody
- Child support
- Visitation
- Spousal support/alimony
- Use of some marital property like the home or vehicles
- Orders requiring people to maintain current insurance coverages
- Restraining orders against harassment or sale or marital property
By definition, a temporary Order is only good until a Final Order has been signed by the judge. At that point, you must comply with the final order. A result at a temporary hearing also does not prejudice a party at the final trial. Just because your spouse was awarded custody or alimony at a temporary hearing, does not mean they will automatically be victorious on those issues at trial. You should definitely consult with an attorney to determine your best chances in those situations.A South Carolina Family Court temporary hearing is different for another reason. There is generally no testimony taken at a temporary hearing. The parties are required to provide affidavits to the Court and are limited to 8 pages of affidavits. You must also provide a financial declaration for the judge to review. After reading the affidavits, the judge may allow for a short argument on the issues by the attorneys and will usually then make their ruling for the Temporary Order.While this may not be the best or fairest way to determine the pendente lite rulings, it is the current state of the law and how we must proceed in our cases.
Facebook, Social Media and Divorce
So you and your spouse have been separated for a while but neither of you have filed an action. Meanwhile, you've been hanging out on Facebook, MySpace, Twitter. Maybe you've connected with an old flame or maybe you're just bashing your "ex." Whatever you're doing, I want to warn you to be careful. Most of these communications online are open to the public and they are permanent.While your spouse may not be your "friend" on Facebook, that doesn't mean he/she won't be able to find out what's going on on your page through a friend or someone else.This doesn't just apply in divorce cases either! I have worked in child custody matters before where one of the parents who is fighting for custody or fighting to keep custody have posted their party pictures where they are drinking, passed out, drugged or worse. Can you imagine how that looks to a judge?So what are you supposed to do? Abandon Facebook and Twitter altogether? No, I don't think you have to go to that extreme. What I would recommend is that you should use common sense. Keep in mind your current circumstances or what you may be going through in the future (if you think you may be going through a divorce or custody action in the future). You should probably not be putting photos of your children online if you are going through a custody battle and you should definitely refrain from badmouthing or putting down your spouse online. While you may think it is funny or that it really isn't hurting anyone, you better keep in mind your case and the dramatic negative impact it could have on it.While your spouse won't be able to necessarily prove adultery or any wrong doing by your postings the old adage, "where there's smoke, there's fire" is all too true and you definitely don't want a judge making negative assumptions about your case because of some stupid comments or photos on your website or social media page.
Divorce and Estate Planning
It is important for all people to have an estate plan (which may consist only of a Will, power of attorney, and healthcare power of attorney). An estate plan does not have to have a bunch of trusts and family partnerships or anything else - though, these are important tools if the circumstances are correct. When you are married, and particularly if you have children, it becomes extremely important to have an estate plan to ensure the proper transfer of your assets upon your death. A lot of people do not have any type of estate plan and their assets are passed along to their family according to South Carolina law which may be totally opposite of your intentions. But what happens to your estate plan when you divorce?
Divorce and Your Will
As soon as your divorce is final, you any provision leaving anything to your former spouse becomes void. Therefore, your former spouse will no longer inherit from you. Most of the time, that is what people, want, but occasionally, I have run into folks who still want their former spouse to inherit from them. In that case, a new will must be prepared. If you do not have a will, then when you are divorced, you do not have to worry about your former spouse inheriting from you.In any case, after a divorce, I would recommend that you get with an estate planning attorney to have your estate plan reviewed to make sure it still does what you want it to do.
Divorce and Powers of Attorney/Healthcare Powers of Attorney
The law helps you out when you go through a divorce by automatically making provision in your will that your former spouse will not inherit from you (if that's what you want). However, this is not so in the case of a power of attorney. Your power of attorney is filed of public record to put the world on notice that you have someone else who can act on your behalf legally. This notice is good until you officially revoke this power of attorney. So, upon your divorce you should file a revocation of your power of attorney on the public record to make sure that your former spouse cannot legally bind you any longer (if that is your desire). I would also recommend that you put other businesses that would have dealt with your former-spouse on your behalf in the past on notice that she no longer has that power. These businesses would include doctors offices, banks, etc.Your healthcare power of attorney is a little different. This is not put on public record so when you create a new document, you automatically void your prior document. However, you should make sure your healthcare providers have up-to-date copies with your current agents listed so they do not inadvertantly seek information or guidance from your former spouse.
Divorce and Life Insurance/Retirement Accounts
This is the biggie! Once you and your former spouse go through your divorce and all of your assets have been divided (by agreement or by the court) you may be left with your retirement accounts and some life insurance. These documents are considered "non-probate" assets, meaning they pass outside of the probate process and outside of your will because they have beneficiary clauses in them. If you forget to change your beneficiary on these types of accounts, then your former spouse could take your life insurance or retirement account because you forgot to change the beneficiary form. This may be disastrous if you are remarried when you die and leave nothing to your current spouse planning on the life insurance to take care of them. It happens more than you think so be sure you make this change.
Helping Children Cope with Divorce Seminar
Compass of Carolina will be presenting a seminar on the topic of helping Children cope with divorce. The seminar is scheduled for October 10, 2009 and is a four hour program designed for parents who are going through or have completed their divorce and forcueses on helping parents develop a cooperative co-parenting relationship and teaches parents the skills useful in helping their children adjust to the divorce and the life changes that accompany divorce. The program begins at 9 am and concludes at 1 pm.For more information, visit the Compass of Carolina website.There is a cost to attend an they require you tor register in advance. The link above has all of the information about cost, scheduling, and registration.
Happy Labor Day!
I hope you're having a great Labor Day and some time off at home with your family and loved ones. We'll be back to normal tomorrow with our South Carolina divorce and family law discussions.
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.