Working Parent's Work Used Against them in Custody Trial

Can your work be used against you in a custody case?  I read an article at WorkingMom.com entitled Custody Lost where a working mother was in a deep custody battle with her husband who had been unemployed for several years.  I have seen this from both sides: a dad tries to take custody away from the mother because of her job; and, I've also seen it the other way where moms try to use a dad's job to say that he is withdrawn from the children's life and should not be granted custody of them.So does your work play in to the custody determination?  Unfortunately, yes, it does.  Your work is a part of who you are.  You spend a considerable amount of time there each week and it removes some of your flexibility in life.  A family court judge trying to determine a custody case in South Carolina must decide what is in the child's best interest.  That is really the overarching concern in the case.  Your job is not going to be the be-all, end-all, but it is a factor that will be considered.  In my experience, most judges are not going to be swayed in one direction just due to a job because a judge is going to expect the parents to work to be able to provide for their family.  Where the rubber meets the road is whether the job materially impairs your parenting.  Are you constantly late getting your children to school or picking them up from day care, are your children doing poorly in school because you are working so much that you do not have time to assist them with their studies, are they acting out because they are spending more time with a baby sitter than with you because you work until after they have gone to bed for the night?  Keep these in mind if you are facing a custody battle and your spouse is going to try to use your work against you.  While it sucks, you should definitely be realistic about the demands of your job and how you prioritize things.

No Soap Operas = Cruelty Divorce

The BBC has reported that an Indian woman was recently granted a divorce on cruelty grounds because her husband refused to let her watch her favorite soap operas.  You can see that story here.  The husband's lawyers are arguing that this order is based on extremely flimsy grounds and, of course, they are appealing.So, would something like this fly in South Carolina?  I meet with people every week that have been mistreated in their marriage.  While many of them have not been physically beaten or injured, they have been mentally tortured for years.  They have finally mustered the courage to leave and seek legal assistance, and they are very interested in seeking a divorce on cruelty grounds.Here in South Carolina, one of the contested divorce grounds is physical cruelty.  In order to get a divorce on physical cruelty grounds in South Carolina there must be some physical aspect to the cruelty.  The South Carolina case of Brown v. Brown (215 S.C. 502) sets out the requirements: there must be "actual personal violence, or such a course of physical treatment as endangers life, limb or health, and renders cohabitation unsafe."Usually, a single act of violence during the marriage will not be enough for you to be granted a divorce on physical cruelty grounds unless it is very extreme.So, if you are being denied your favorite television show here in South Carolina, you're going to have to look outside of the physical cruelty realm to find your grounds for divorce.

Bankruptcy During Divorce

During this kind of economic time, people are dealing with overwhelming debts, potential foreclosure, and they are eying the real possibility of filing for bankruptcy.  This problem is compounded even further when the couple is facing a divorce as well and whether you should file bankruptcy together as a couple or not.  If you are facing both divorce and the possibility of bankrupcty, I would encourage you to check out this divorce and bankruptcy post at the Bankruptcy Law Network blog by attorney Craig Anderson.  Check it out!

Where can I find an Uncontested Divorce?

People want to know about uncontested divorces.  They want to know if there are ways they can file the paperwork themselves because they are wanting to get through the divorce process without spending an arm and a leg on legal fees much less on paying support and alimony.An uncontested divorce means that there is nothing to contest, nada, zilch, zip, zero.  But what a good divorce lawyer can help you with is identifying things that you may assume or not even think of at all which complicate your divorce more than you expected.  Many times, people will complain that the lawyer is just stirring up the pot so he/she can bill more fees.  But, I disagree.  The lawyer has studied and trained in the law.  It is their job in advising their client to help them apply the law and facts of the case in the best light for the client.  They are also required to to advise the client of their rights.  This is not the lawyer's life or case - it belongs to the client.  How can the client make a good, rational, well-thought out and considerate decision without knowing what their rights are under the law.  So when lawyers are accused of stirring things up, they are really trying to advise their clients of their rights under the law.Back to uncontested divorces.  There are really only a handful of issues in a divorce or family law case.  Typically, the issues are grounds for divorce, custody of minor children, support of minor children, visitation with the minor children for the non-custodial parent, division of marital assets and debts, and spousal support.  There are some other issues and there are many nuances to the issues above, but very simply, it breaks down like stated above.  A typical divorce that would be considered "uncontested" in South Carolina is when the grounds are the no-fault ground for divorce (one year separation), when there are no assets or debts to be divided, neither party is seeking any support from the other and there are no children of the marriage.  If there is even one hitch or issue, then the case is not "uncontested."

Is there an Advantage to Winning at the Temporary Hearing?

Not too long ago I wrote about what the Temporary Hearing in a South Carolina divorce or family court case and what happens after a Temporary Hearing but we did not talk about whether you have a specific advantage if you win at a temporary hearing.A temporary hearing can be very powerful.  It can give you a swing of momentum that may allow you to control some of the negotiation in your case.  However, a temporary hearing is not prejudicial on the trial judge who hears your case if you and your spouse are not able to work out an agreement and a trial is necessary.  Sometimes it is very helpful that the temporary order is "temporary."  Other times the temporary order is very helpful and we would like for that to just continue on forever.Since it is always better to start off strong, I take a lot of time with my clients to prepare an organized and well-thought-out plan for the temporary hearing.  Because of the format of the temporary hearing and the fact that there is little argument and no testimony our planning, organization and drafting of the affidavits are extremely important to the outcome of the hearing.  The client also a plays an important role in preparing for the temporary hearing.  Your lawyer needs to know what the other party is going to say about you.  If you know of anything "bad" that is going to be used against you, you should have a conversation with your lawyer beforehand so he/she isn't surprised in court.

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.