The Ostrich Defense Doesn't Work in Family Court

So what is the Ostrich Defense?  Well, apparently it is a myth, but it is thought that in times of danger, an ostrich would stick his head in the sand.  Sort of a "hear no evil, see no evil" approach.  My young son does this sometimes.  If I am coming to tickle him, he will bury his head in a pillow and hope that since he can't see me that I can't see him.  But I always find him.So how does this relate to divorce?  I know divorce is difficult.  No matter what the marriage is like, no one ever got married with the divorce in mind.  Depending on your religious background, divorce may be totally against the rules.  Whatever the reason, I meet with people that simply do not want to participate in the divorce case.  They believe that if they just keep their head down, the divorce will just blow over and nothing will happen - no divorce; no rights adjusted; things back to normal.Unfortunately, that is not how things work out.  If your spouse has decided to move forth with a divorce - regardless of your desires or beliefes, you should make sure that you protect yourself because for many issues, you must seek those rights immediately or they will be given up forever.  So, if your spouse who has always financially support you and your family moves out and seeks a divorce and you do not seek alimony or division of assets (such as his retirement account) you will not be able to go back to court again in the future to get that alimony.Many people think that if you are served with divorce papers and you simply do nothing, your spouse will not be able to move forward with the divorce.  But that is wrong.  When you are served you have 30 days to respond.  If you do nothing or respond late you will be in "default" which means that some of your rights and potential arguments are already terminated.So, even if you do not agree with the divorce, I would encourage you to at least look out for yourself and participate in the action.  That is the only way you can ensure that justice is done and you receive what you are entitled to without involuntarily giving up some rights and privileges that you are entitled to.Photo Credit: Gravitywave

Child Support Obligation when the Kids are With Me

Question:My ex has custody of our children and I pay child support to her.  I asked my ex to leave some of our kids’ clothes at my house but she refused and told me I need to go buy my own set of clothes for them to have at my house.  Shouldn’t that be included in the child support I pay?Answer:Child support is based on a calculation model that attempts to determine the share of each parent’s income that would be used on the children as if the parents were still together.  The calculation determines what the gross support obligation is a divides it up between the parents.  This is based on the parents’ gross income and how much time they spend with each parent.  Theoretically, your child support payment is what is needed as support only while they are at your ex’s home because you are given a credit for the time that the children are with you in your home.  Based on that theory of child support you need to provide the same necessities for your children when they are with you as they are provided at home with your ex.  Those necessities are food, clothing, shelter, utilities, appropriate furnishings, transportation, health care and recreation.If you feel like you are being gouged on child support or your children are spending much more time with you now than when the child support order was previously issued, I would recommend that you begin to keep a journal of the time you spend with your children, and specifically on the money that you are spending above and beyond the child support such as for food, clothing, household supplies (like toothpaste, soap, deodorant, diapers, etc.).  Things that are not just "fun things" and gifts to your kids.  You may be able to use this information to convince a court to reduce your monthly child support obligation by deviating from the South Carolina Child Support Guidelines.

When Will my South Carolina Divorce be Final?

One of the questions we have discussed on this blog is how long with my divorce case.  Another related question is when will my divorce be final.  In many states there is a waiting period for the divorce to be finalized following a trial.  However, in South Carolina there is no waiting period for the divorce to be finalized after the final hearing.  For your divorce to be final in South Carolina the judge has to sign your divorce decree and the decree must be filed in the Family Court clerk of court's office.  After it has been signed and filed with the clerk of court your divorce will be final.  Many times this happens on the day of the final hearing, especially if your case is an uncontested divorce.  If your divorce case is contested and goes to a trial it may take several weeks for the order to be sent to the judge because one of the lawyers will prepare the order and send it over to the other lawyer for his review.  They will go back and forth until they can agree on particular wording for the order and then it is submitted to the Judge for his/her review.

Can I Get a Divorce in South Carolina if I was Married in Another State?

In order for you to obtain a divorce in South Carolina, the South Carolina Family Court must have jurisdiction of your case before it can hear the case and make a ruling on it.  The South Carolina Family Court is a court born out of statute, therefore it has limited jurisdiction.  The Family Court can hear and decide cases involving all types of marital litigation and disputes between spouses involving children, termination of parental rights, custody, visitaiton, child support, alimony and spousal support, and division of marital property.In order for you to file for divorce in South Carolina you will be required to be a resident of South Carolina.  You cannot file for divorce in South Carolina unless the plaintiff or defendant in the divorce case has been a resident of the state for certain periods of time.  If the defendant does not live in South Carolina, the plaintiff must have resided within the state for at least one year.  If the plaintiff is a non-resident, the defendant must have resided in South Carolina for at least one year.  If both parties are residents of South Carolina, plaintiff must have only resided in South Carolina for three months prior to filing for divorce.So, depending on where your spouse lives, you or he/she will have to be a resident of South Carolina for a certain amount of time before you can file for divorce here no matter where you and your spouse were married.

Happy New Year!

As we welcome in 2010 and a new decade, I want to wish you a Happy New Year and wish you continued health and success in 2010.  If I can assist you at all in 2010, please do not hesitate to contact me!

Proving You've Been Separated for More than 1 year

When you have filed for an uncontested divorce in South Carolina usually the no-fault ground of more than one year's continuous separation is used as the ground for divorce.  This means that you and your spouse have not resided together in the same residence for more than one year.  I am questioned by clients about how they are going to prove this.  Sometimes, in counseling a client who is considering leaving their spouse, they want to know what they should do to make sure that once their one year passes they will not have to worry about their spouse being about to avoid the divorce by proving they have not lived separate and apart for more than one year.In a typical case, a witness who is at least 18 years old and has known the parties for more than one year is used to testify about the length of separation and that they are confident that the parties have not lived together in more than one year.  Their testimony could include that they call or visit one spouse on a regular basis and the other spouse is never present and it does not appear that the other spouse is residing in the home.  It is also nice to have testimony from the witness stating that they are confident that they know the parties (or one of the parties) well enough that if the couple had gotten back together they would know about.Unless the other party can prove that you have lived together in the last year you will not need any more than that to prove separation or the date of separation so it is usually not necessary for you to have a copy of the receipt from the hotel you booked the night you moved out.

Is a Hearing Required for an Uncontested Divorce in South Carolina

Many prospective clients have an idea that we can file some paperwork with the court and as long as everyone agrees with everything and wants a divorce that we won't have to go to court and have a hearing.  In a South Carolina divorce case, even in an uncontested divorce case, you will be required to go to a final hearing.The final hearing is where the judge will hear testimony from you and your witnesses about the grounds (or reason) for divorce and about any other issues such as a property settlement agreement or custody agreement.  It is the judge's duty to ensure that the marriage cannot be saved and that no counseling would help reconcile you and your spouse.  The judge will also look at your agreements to make sure they are fair to both parties and in the best interest of any minor children born of the marriage.In a typical uncontested divorce in South Carolina a final hearing will last between 10 and 15 minutes depending on how much information is needed to be put on the record.

How Long Does it take to get a Divorce in South Carolina

This is one of the most popular questions that I am asked as a divorce attorney.  People really want to know a time-line.  When are things going to happen.  How long am I going to be married to this (fill-in-the-blank)?  Sometimes, they even have another wedding planned an on the calendar and they are just trying to squeeze in a divorce before the next "big day."Giving an answer to this question is pretty difficult.  There are lots of things that play into determining how long it will take to finalize your divorce.  Some of these factors are: what are the issues in your case, are you filing based on fault or on the no-fault ground for divorce, do you and your spouse have any children together, has your spouse hired an attorney, who is that attorney, and on and on.Another large factor that plays into this equation is the Court docket.  Many court dockets are set out several months in advance, so if you were to request a hearing today, it could be four or five months before the hearing is set.If there are issues in your case such has who gets the marital home, how to divide up the retirement accounts, who will have custody and visitation of the children, etc.  Many times, people believe they have all of the issues in their case worked out and settled before they meet with a divorce lawyer, but many times they had an agreement in theory, but when you begin to look at how practical their agreement is, it becomes nearly impossible to execute it.  If you are filing for a divorce on a fault-based ground (adultery, physical cruelty, habitual drunkenness, desertion) then you will have a mandatory waiting period of 90 days following the filing of the divorce complaint before you can have a final hearing.  There is no waiting period for a final hearing based on the no-fault ground other than the proper time for the defendant to file an answer which is 30 days from the date of service of the Summons and Complaint.So, in broad generalities, It could take from about 60 days to over one year based on the specifics of your case to finalize your divorce matter.