Can a Couple get Married without a Ceremony?

In South Carolina there are essentially two main ways for you to get into a marriage.  The first is the traditional "statutory marriage."  That is where you go down to the probate court in the county where you live and get a marriage license with your significant other and have a marriage ceremony.The other way for you to get married is what is called the "common law marriage."  What I hear from prospective clients and friends about common law marriage is that they believe that you are automatically common law married with someone after you have lived with them for a certain amount of time.The truth is, time does not play in to determining if you are common law married.  There are several factors that will determine whether you are married or not.Here they are:

• Cohabitation: You and your significant other must be living together to get common law married.
• Hold Yourself Out as Husband and Wife: You and your significant other must be holding yourself out as husband and wife.  That means when you go out you introduce them as your husband/wife.
• Both parties are over 16 years old
• Neither party is currently married to another person.

If you are common law married, that is the same as being married.  You have the same rights, etc. as if you are married the traditional way.  If things don't work out you would have to get a divorce.

What if My Spouse Doesn't Respond to the Court Papers?

Sometimes spouses don't have anything to do with a divorce case.  There are many reasons...maybe they don't agree with the divorce, maybe they don't want to spend any money or take the time to worry about, or maybe it is some other reason.  Whatever the reason, my client wants to know what will happen if their spouse does not respond to the court papers.  Can they move on and get their divorce anyway?  Will they be able to force their spouse to sign papers or come to court?The answer is this: your spouse must be served with your Summons and Complaint for divorce.  Once he/she is served with the divorce complaint he/she will have 30 days to respond by filing their answer.  If your spouse fails to respond then they are in "default."  That means they have not responded to the complaint and are deemed to agree with what you alleged in your complaint.  In civil court in South Carolina you would basically win automatically at this point.  However, in South Carolina Family Courts your spouse still has the opportunity to put on evidence and defend claims on all issues with the exception of the grounds for divorce.However, after the 30 days have elapsed and your spouse has gone into default, you can request a final hearing in your case.  If your spouse does not come to court or does not contest any of the issues you will be able to obtain your divorce even though your spouse has not cooperated or responded in any way to the divorce papers you served them.

What Do You Do When You are Served Divorce Papers in South Carolina

So you have been served with divorce papers by your spouse?  First, let's define what "being served" really means.  When you are served, your spouse has had someone deliver the papers to you.  South Carolina laws prevent your spouse or his/her attorney from being the people that actually serve you and Rule 4 of the Rules of Civil Procedure govern and determine what proper service is and how service can be made on a defendant.So, now that you have been delivered your divorce papers, you don't know what to do.  Well, the first thing you should do is make a note of when you were served the papers.  The date and time will be very important in your divorce case because of strict time lines that apply to both you and your spouse.The next thing you should do is read the paperwork that is served on you.  Many times in a divorce case the plaintiff's attorney will request a hearing at the very beginning of the case called a temporary hearing where they will request some specific relief such as child custody, child support an alimony.  The rules only require you to get five days notice of this hearing so you may need to act quickly to schedule a consultation with a divorce lawyer in order to have them represent you at the temporary hearing.The next time line that applies is 30 days.  You have thirty days from the date you are served to file an answer to your spouse's complaint.  If you are later than 30 days you may be in default and can forfeit some of your rights provided by the law.  Therefore, it is extremely important that you formally respond to the allegations in your spouse's complaint by filing an "Answer" with the family court and serving that on your spouse and his/her attorney.I do not recommend that you go it alone in your divorce case.  As soon as your are served with divorce papers, I recommend that you immediately consult with an attorney to learn your rights and to get a game plan.  You may not like the attorney you meet with initially and may want to consult with several attorneys.  If you wait too long and do not leave yourself and your future attorney any time to respond you will lose the opportunity to shop and find the right attorney for you.

Myriad of Emotions in Dealing with Divorce

When faced with a divorce everyone involved will go through a myriad of emotions and everyone will deal with the changes differently.  A great South Carolina divorce attorney, Ben Stevens had a great post at the South Carolina Family Law Blog recently how sports broadcaster Jim Nantz and his wife dealt with the emotions in their divorce in his post Divorce can be Difficult, Even for Professional Broadcasters.  I think you will find this helpful no matter what stage of divorce you are in right now.

What Happens If DSS Takes Your Children?

DSS may come into your life for multiple reasons.  Sometimes it is for a good reason and sometimes it is completely frivolous.  When it comes to having your children removed from by DSS it can be a very distressing situation. 

Regardless of the reason for the removal of your children, the Family Court must hold a probable cause hearing within 72 hours to determine if DSS had probable cause or a good enough reason to remove your children. At this hearing, DSS generally has the upper hand.  In almost all cases, parents are not represented by an attorney at this hearing and they have no idea why they are in court, what has happened to their children, and what they have to do to get their children back. 

At the probable cause hearing, DSS will call witnesses and attempt to prove their case while you will not be allowed to testify.  You will have an opportunity cross-examine the DSS witnesses and you will be able to submit affidavits to the court supporting your situation.If you are unrepresented at this hearing and are unable to afford an attorney to represent you, the family court will appoint an attorney to represent you.  A guardian ad litem will also be appointed to represent your children and to perform an investigation for the Court with their mind set on determining what is in the best interest of the children.I would recommend that if your children have been taken from you by DSS you should immediately contact an attorney who is experienced in representing people in DSS matters. 

There are strict time lines and regulations that DSS must comply with and if they don't it can help your case.  Only an experienced professional will know these things.  You should not go to a probable cause hearing unrepresented if you can help it.

After the probable cause hearing, DSS will schedule a merits removal hearing within 35 days where the issue of whether there was child abuse or neglect occurred, and if it did what treatment services will be required before the children can be returned to the custody of the parents.

The goal in these cases is generally to return the children to your physical custody as quickly as possible. Sometimes, it will take some time before the parents are able to regain custody. I encourage parents to look for friends and family members who may be willing to take temporary custody of the children so they are no longer in foster care as a way to have the children placed with people who know and love them and get them away from the foster care system. Obviously, this helps the children cope with the circumstances, but also can help facilitate more time between the parents and children as the DSS visitation standards are very low (usually two hours per month of visitation).

Spiritual Healing v. Medical Treatment for Children

A Wisconsin couple was sentenced to jail time after they were convicted this week of second-degree reckless homicide after their three year old daughter died from untreated diabetes.  Rather than seeking medical treatment for their daughter, the parents prayed for her and sought spiritual healing for her even as her health declined and she could no longer walk or talk.  Here's the news story.Now this couple is forced to spend 30 nights in jail each year for the next 6 years and their other children are required to be taken to medical checkups periodically.This begs the question: do you have the right as a parent to determine what type of treatment your children receive - or if they receive treatment at all?  What do you think?  Should a parent be able to decide if their child should only receive spiritual treatment versus medical treatment?Via Family Law Prof Blog

Who's the Star of Your Case?

Heeeeeeeeerrrrreeeee's Johnny!  Actually, when it comes to your divorce case, you can insert your name.  You will be the star of your case.  You are going to be front and center throughout the case.  A lot of decisions will be required of you throughout your divorce case.  If your case goes to a trial, you will be required to testify and may spend a good deal of time on the witness stand.Not only will you be "on stage" during your trial, but your actions will be under close scrutiny throughout the entire time of your marital litigation.  Every move you make could be used against you in your trial.  My best advice would be that you should be on guard.  Understand that you will be scrutinized.  Use common sense.Don't do things that you will be used against you in the trial.  Don't start dating too soon.  Don't talk bad about your spouse in front of your children.  Don't trash your spouse to the guardian ad litem.  Don't discuss the case with your children.Just keep in mind that you are the star and you are on stage during the course of your divorce case.  If you have questions about your divorce case, I would be glad to meet with you to discuss your divorce case.

What Happens after my Temporary Hearing?

So you've made it through the temporary hearing in your divorce case.  Maybe that turned out great for you.  Perhaps the temporary hearing was a disaster.  You may be extremely happy, or you could be pretty scared and depressed.  As an attorney, I've been on both sides.  So what happens after your temporary hearing?  Well, the case will move on.  Typically, discovery is the next step.  Discovery can consist of sending requests for information from your spouse and subpoenaing information from other entities.After we have a grasp of what the case is about and some more specific information that we have gained through discovery we can move on to mediation.  In Greenville County, mediation is mandatory in a contested divorce case.  If we are able to settle your case at mediation we will be able to request a final hearing immediately.  If not, we can continue to negotiate as we move forward towards a trial.The length of this phase of your case can vary based on the complexity of your case and the type of final hearing we need.  If we only need a 15 minute hearing, we could get into court quickly.  If, however, we need the court to set a trial that will last a day or longer we could be waiting several months for our court date.  This, of course, extends the amount of time necessary for you to continue as ordered under the temporary order.