Child Custody: Mom Automatically Wins, Right?
It is a common misconception that the mother is automatically entitled to receive custody of the minor children, especially when the children are very young. The "tender years presumption" is an old factor that used to automatically grant the mother custody of young children because it was assumed that she was the best person to be the primary caretaker of the children.This presumption is no longer valid. In fact, South Carolina law has abolished the tender years presumption (S. C. Code §63-15-10). Now, in order to determine who gets custody of the minor children in a custody battle in South Carolina a judge will consider what is in the "best interest of the children" along with several other factors.The factors considered in custody cases are:
- Resources of the parents
- Who has been the primary caretaker
- Immoral conduct of the parents
- Child's reasonable preference
- Domestic Violence
- Relgious faith
- A Guardian ad Litem's report
While there is no tender years presumption any more, that does not mean that the mother will not win custody. It just means that it is not an automatic decision. Mothers are winning custody of their children every day in South Carolina. Basically, in overruling this presumption, the courts are saying that this is not the best resolution in every case so all of the evidence should be considered and what is in the best interest of the children will prevail.There are a couple of other factors that will not be considered:
- No gender bias: that means that a daughter will not automatically be placed with their mother and a son will not automatically be placed with their father.
- Race is not a factor in determining who the custodial parent shall be.
I'm Separated from my Spouse. Can I Date?
One thing people want to know often is how soon can they start dating again after they have separated from their spouse. Their main concern tends to be what constitutes adultery and when is it safe for them to get back out and start dating.When you are separated from your spouse you are still legally married. So, technically, any new relationship could potentially be viewed as an adulterous relationship and your spouse could pursue a divorce against you on the grounds of adultery. So, to be absolutely safe and to be sure that you do not have to worry about an adultery defense, you should avoid any relationships until you are legally separated or divorced from your spouse.As long as you are still married, I cannot recommend that you begin dating. While you may not think you have a lot to lose or that your spouse may not have a lot to gain by filing for divorce on adultery grounds against you, it could turn into a huge hassle for you.
How to Calculate Child Support in South Carolina
In theory, the calculation of child support should be very simple. South Carolina has worked out a calculation found in the South Carolina Child Support Guidelines that calculates child support based on several factors - mainly the parent's gross income, whether they are under a previous order to pay child support for another child, if there are other children in the home that will not be covered by this support order, health insurance premiums for the children, work related childcare expenses, and extraordinary medical expenses for the children. In theory, you just plug these numbers in and out pops the parent's monthly support obligation.The video shows you the South Carolina Department of Social Services web child support calculator located at:http://www.state.sc.us/dss/csed/calculator.htmIn practice, what happens is people quit jobs and take lower paying jobs so their child support obligation will be lower. They claim that the bad economy should allow them to pay less each month. Perhaps the mother has been a stay-at-home mom during the marriage, but the father believes that she is capable of working and since they are going through the divorce she should go get a job and he is asking that the court impute wages to her. Many times, one of the parents has worked for cash and he/she does not report all of his/her income so it may be hard to determine upon first glance what his/her income truly is. To impute wages means that the court will calculate child support as if that parent was earning the amount of income the court believes they are capable of earning.If you are going through a divorce or child support is an issue in your life, I would encourage you to consult with an attorney. There are so many intricacies and nuances where people will try to take advantage of a trusting spouse when it comes to child support and having to pay out money every month. Even if you plan on moving forward without an attorney, I would recommend that you at least consult with an attorney to get an idea of what child support should be if you believe your spouse is capable of earning more than they currently do or if you believe they are going to try to take advantage of you.
How Long Do I Have to Live in South Carolina to Obtain a Divorce
In order to get a divorce in South Carolina, the South Carolina family court must have jurisdiction over the parties to be able to hear the case. In order for the court to have personal jurisdiction at least one of the following conditions must be met:
- If both of the parties are residents of South Carolina, then the plaintiff must have resided in South Carolina for more than three months.
- If the defendant is a resident of South Carolina, but the plaintiff is not, the defendant must have been a resident of South Carolina for more than one year prior to filing the complaint.
- If plaintiff is a resident of South Carolina, but defendant is not, plaintiff must have resided in South Carolina for more than one year prior to filing the complaint for divorce.
Just to clarify, the plaintiff is what the court refers to as the person who has filed the divorce action. The defendant is what the court will refer to as the person who is being sued for divorce. So, bottom line, if you have been a resident of South Carolina for at least one year you will be able to file for divorce in South Carolina.
One Year Divorce: When Does the Time Start?
Question: I want to get a divorce from my spouse, but I do not have a ground for divorce. Do I have to file for legal separation to start the clock running on the one year separation?Answer: I'm sorry you and your spouse are facing divorce. In order to get a divorce on the no fault ground for divorce in South Carolina, more than one year's separation, you and your spouse must live in separate residences. In order to start the clock running on your one year separation you or your spouse do not have to file for a legal separation. You only have to live in separate residences. Now, some people want to just move down the hall and stay in another bedroom. But, this won't work in South Carolina. You must actually live in separate residences.
Can You Guarantee Me a Fast Divorce?
I'm asked a lot by prospective clients if I can guarantee them a fast divorce. The truth is that there are way too many factors that go into determining how long your case is going to be to that I just can't guarantee that it will be done within a certain amount of time. However, based on my exerience handling similar cases in the past, I should be able to give you a good approximation of how long it will take your case to be resolved.Some of the factors that determine how long it will take to resolve your divorce case in South Carolina are:
- The contested issues in your case. How many there are and what type of issues are they? Are we fighting only about child support or are custody, visitation, and alimony also at issue? Perhaps you and your spouse have already reached a complete agreement about how things will be resolved between you.
- What county are you filing in? Some counties are pretty fast about moving cases through, others are not. This is a factor of the backlog of cases and the number of family court judges in each particular county. Some cases can be done is about 60 days in one county and over 6 months in another so venue is extremely important.
- Who the parties are? Are you and your spouse both stubborn. Do you definitely feel like you won't agree unless it is totally, 100% on your terms? Your and your spouse's willingness to cooperate and compromise are factors in the length of time it takes to get divorced in South Carolina.
If you would like to discuss your particular case, I would love to meet with you at no obligation or cost to you to discuss your South Carolina divorce matter. Our meeting is confidential and free. You may contact me through the "Connect with Us" page or by calling my office directly.
How Do South Carolina Divorce Lawyers Charge for Services
One of the first questions that I am asked by a prospective client is, “how much is this going to cost me?” and “Can we work out payments?”.
Many people even ask this question over the telephone when they are scheduling their initial consultation to meet with me.
As a general practice, most lawyers do not quote fees until they have met with you to discuss your case because the fee quoted is based on the complexity of issues in your case and the time that the lawyer anticipates having to spend on it. Lawyers charge their fees in two main ways when it comes to representing someone in a divorce, child custody, or other family law case: hourly and flat fee billing. There are advantages and disadantages to both.
The tried and true method that most attorneys, especially attorneys who have been out practicing for a while is to charge the client an initial retainer and to bill the client on an hourly basis for the work that is completed on the case. That retainer is then placed in the attorney trust account. Then, as work is completed on the case and invoiced, the fees are withdrawn from the retainer and paid on the client’s account. Generally attorneys will have a minimum amount of money that they require the clients to keep in their trust account and they send a bill every month (or sometimes more often than that).The good thing for the lawyer is that they know they can get paid on a case.
Many divorce attorneys charge between $200 and $450 per hour depending on their experience, training, and other factors. That means that your 15 minute telephone call to check on the status of your case will cost you anywhere from $37.50 to $75. I hope you enjoyed that phone call!
Another option for billing in divorce matters is flat fee billing. Flat fee billing is where you know exactly what it is going to cost you to get your divorce up front. Generally, these fees are earned when paid so your attorney will not be billing you by the hour and you won't be entitled to a refund if the case is resolved quickly. On the other side of that coin, however, you won't be billed more if your case is more time consuming than the lawyer initially expected either. Flat fee billing means that you will know when you leave your initial consultation what your divorce is going to cost you. It may be split up into different phases of your case or it may all be due at once.
The flat fee may actually give you sticker shock when you first hear the number. It may sound like a crazy quote to handle your divorce case when you compare it to the other attorney who bills by the hour. But when you actually calculate the number of hours the attorney will most likely bill you for, along with the activities you get billed for, and the rate at which your attorney bills his divorce clients (probably $200-450 per hour), it adds up quick and you will most likely surpass the flat fee quote.
Finally, no matter which way your attorney bills, you are almost always going to be responsible for all out of pocket costs. This usually includes court filing fees, service of process fees, mediation costs, Guardian ad Litem fees, expert fees, subpoena fees, court reporter fees, and more. Some attorneys also charge for copies, credit card fees, postage, and other expenses.
South Carolina Uncontested Divorce Clinic
If you reside in South Carolina you can participate in a "Pro Se Uncontested Divorce Clinic" that are being scheduled around the state and put on by South Carolina Legal Services. The calendar for these seminars is located at the South Carolina Legal Services website. In order to attend this clinic and be able to file for your uncontested divorce - you should be filing for divorce on the grounds of more than one year's continuous separation, have no property or debt to divide, have no minor children, and you must know where your spouse resides. In order to attend the clinic you need to register beforehand. Please check out the South Carolina Legal Services web site for more information about upcoming clinics and to get registration information.