Changing Child Custody in South Carolina
When you separate from your spouse or when you get a divorce there are lots of different reasons why couples agree to certain custody arrangements for their minor children. If you did not pursue custody in your divorce or you believe it is time for a change of custody of your minor children here are some things that you will need to be able to prove according to South Carolina child custody law.In order to change or modify a child custody order in South Carolina you must show that the circumstances surrounding the original child custody order have substantially changed after the original child custody order and that those changes substantially affect the welfare and interests of the children in question (Moss v. Moss, 274 S.C. 120 (1980)).Of course, in any case where there is a question regarding the children, the absolute most important consideration the court must make is determining what is in the "best interest of the children."Generally, there is no black or white answer when it comes to child custody and changes of child custody in South Carolina. The court will most likely look at the entire set of circumstances surrounding your children to determine what they feel is in the best interest of the children. Also, it is usually based on many factors, not just one - but that isn't to say that the court could not use just one factor to make the decision to modify a previous child custody order.
Do You Need an Attorney to Represent You in Your Divorce
The following article was written by Alabama Family Law Attorney, Michael Sherman, author of the Alabama Family Law Blog.
- Is custody of your children disputed? Even if you are a good parent, you do not want to risk losing custody of your children. A lawyer will help you present a stronger case for custody to the court.
- Has your spouse hired a lawyer? The laws and procedures involved in a divorce are quite complex. Do not let yourself be outmaneuvered by someone who knows the ropes. The court will not protect you when you make errors. Even in an uncontested divorce case, do not make the mistake of thinking that the lawyer your spouse hired can represent both of you. A lawyer is ethically prohibited from representing both sides of a legal dispute (it is called a conflict of interest). If your spouse gets a lawyer to draft a proposed agreement, at least retain a lawyer to review it and make suggested changes on your behalf.
- Do you have significant assets to protect? Obviously, the more you have at stake, the more value you stand to receive from hiring a divorce specialist to represent you. A lawyer will ensure that you pay only a fair amount in support payments and that the property is divided fairly. An experienced lawyer can also minimize the amount of taxes you pay by structuring the property settlement properly.
- Is your spouse claiming spousal support? The area of spousal support is the most uncertain area of divorce law. Alabama does not have guidelines for determining alimony, and courts sometimes come to very different conclusions about how much spousal support should be paid, even on similar facts. Your lawyer will help ensure that the amount of spousal support is fair.
- Do you have a retirement account (and your marriage is 10 years or longer)? For many of my clients, their second most valuable asset after their home is their retirement account. In Alabama, if you have been married for more than 10 years, then the portion of the retirement account that has been acquired during the marriage can be split equally. The law regarding how these accounts should be divided is complicated. Your lawyer will help ensure that it is valued and divided fairly.
- Does your souse tend to dominate you in your relationship? There is an imbalance in power between you and your spouse. If your spouse is domineering or controlling, you will be better off dealing with him or her through a lawyer.
- Are there allegations of domestic violence or child abuse? Even if the allegations are not true, they can have a devastating effect and must be dealt with quickly and appropriately. Do not take such serious allegations lightly.
- Are you unable to communicate effectively with your spouse? You will not be able to settle things with your former spouse if the two of you cannot communicate. You will need a lawyer to help ensure that you get a fair settlement.
- Are you or your spouse self-employed? The valuation of a business is complicated and you will need a lawyer to help with that process. Also, the amount of spousal and child support payments that must be paid is based on income. It is often easy for someone who is self-employed to manipulate income or to hide assets. An experienced lawyer will know how to best try to prove unreported income.
I recognize my own bias on this issue. But, the truth is in only the simplest of divorce cases (i.e. very short-term marriage, no children, no joint property and no joint debts) do I think you should consider not having a lawyer. Even in those cases, if your spouse gets a lawyer to draft the proposed divorce agreement, I recommend you at least pay your own lawyer to review it on your behalf.
And now I'd like to invite you to learn more about Alabama divorce laws, the divorce process and other tips on finding the right divorce lawyer in Alabama when you visit http://www.AlabamaFamilyLawBlog.comFrom Michael Sherman - Alabama Divorce Lawyer, Fellow in the American Academy of Matrimonial Lawyers, and named to The Best Lawyers in America.
New Video Posts Coming to UpstateFamilyLawBlog.com
One of the ways I am wanting to use UpstateFamilyLawBlog.com to educate people is by using video to really explain certain topics that just can't be written about very easily. My goal is to give you at least one video post every week discussing a topic related to South Carolina Divorce and Family Law.I hope you enjoy them. If you would like to have a specifc question answered, please comment on this post or send me an e-mail directly through the "connect with us" page on this site.
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.