Difficult Times During Holidays During/After Divorce
Thanksgiving has just passed, and Christmas is right around the corner. No matter what the circumstances are that surround your divorce, these times of year seem to be difficult. I've never found myself personally in that situation, so I don't always have the most applicable advice on what to do, but I found an article that I believe can be a help to you if you find yourself in this situation this year. While it is specifically written for a female audience, I believe it can be applicable to men as well.The article, "Christmas Joy After Divorce" is by Diane Overgard, Family Life Specialist & Coach, and you can find her at www.FindJoy.biz.
Who's Responsible for the Child?
When a couple is married and they have a child it is pretty easy to determine who is going to be responsible for the child financially should the marriage end in divorce. There is no question who the mother of the child is, and in the situation above, there is no question who the father is. The husband/biological father is going to be responsible for the child and should the mother be awarded custody of the child, the father will be required to pay child support.But what about the situation where the mom and dad are not married and they have a child together? In this case, the dad is still going to be responsible for financially supporting the child.That all seems pretty straight-forward, right? Pretty much what you would expect. But there is a curveball. Who is responsible when a couple is married, but the wife has a child by another man (not her husband). This does not always happen in some illicit affair. Many people that I have spoken with are married, but have not seen their spouse in over ten years and they have moved on (with everything except getting the divorce finalized). If the relationship between the mom and the biological dad do not work out in this case who is held responsible for the child? The husband.Gasp! That's right, not the biological father. When a couple is married in South Carolina and a child is born the husband is deemed to be the legal father of the child and if a support action is filed, the husband will be the defendant - not the biological father.So why is it set up like this? Because the government wants to make sure that children are supported and do not become dependent on the state.Is that fair? There is a case pending in Michigan right now about this very issue. You can read more about the paternity law issue in the Michigan courts here. Hat tip Family Law Prof Blog.
Happy Thanksgiving
"Thanksgiving Day is a jewel, to set in the hearts of honest men; but be careful that you do not take the day, and leave out the gratitude." -E.P. Powell
I wanted to write today wish you a Happy Thanksgiving. I know that many of my readers are going through a divorce or other taxing family court matter and this might be the first "big" holiday since the divorce process has begun or since it was finalized. I understand that these are hard times and you don't always feel like giving thanks. I hope that you are able to find blessings in your life to be thankful for.If you are going through a hard time this Thanksgiving, I would encourage you to take the time today to find something in your life to be thankful for and remember to "not leave out the gratitude."
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.