3/1/10 3/1/10

Most Popular Posts of February 2010

In case you missed them, here were the most popular South Carolina divorce and family law blog posts of February 2010:

2/11/10 2/11/10

Divorce for No Sex in Over 1 Year

When things get sour in a marriage one of the first things usually to go is sex and usually one of the parties (not always the guy!) takes it personally and gets pretty upset about it. I have heard it termed that the withholding party was not living up to their "Marriage Contract". But can you get a divorce on that ground? A lot of times, people begin to think that is a really good reason for a divorce and an even better reason for their spouse to get nothing (property division and alimony) in the divorce.In Maryland, two legislators have filed a bill that, if passed, would allow a divorce on the grounds of no sex for a year. Alleging that it would ease the financial burdens on families who want a divorce but can't afford to support two households. (The finanical dilemma of supporting two households after a separation is a huge problem in almost any divorce).But, in South Carolina the no sex argument is not going to work to get you a divorce. Basically, you are still stuck with the same five options for divorce grounds: physical cruelty, habitual drunkenness, abandonment, adultery and the no fault ground of living in separate residences for more than one year (which by default also means no sex for more than one year).

2/9/10 2/9/10

Most Popular Posts of January 2010

In case you missed them, here are the most popular posts (in terms of how much traffic they garnered) last month. Enjoy:

2/10/10 2/10/10

The Lawyer's 2 Hats: Advocate and Counselor

I guess I've always known it. Though, they don't really teach it in law school. When you think of a lawyer, you think of the person who is going to stand beside you in the courtroom and zealously represent you. You think of the bulldog. The person who has only your interest in mind. That's the advocate. That is just one part of your attorney.The other hat your attorney wears is that of counselor. This is the hard part for lawyers. You have to be able to deliver bad news to your client. You have to help clients when the judge does not order something in their favor. Clients don't like the counselor. This part is hard. But it is also extremely important. A lawyer needs to be able to discuss your case openly with you. It is important that they discuss the pros and cons of your case. In family law, as with almost any other area of the law, things are gray. There is not one "right" answer but many workable answers. So many factors play into a court decision and what could happen in the case. A client should know where their case is strong and where it is weak or there is no way they can effectively resolve their case.So, as a client, don't get mad when your lawyer discusses the weak parts of your case with you. He isn't on your spouse's side when he does this, he is just making sure you know the good and bad of your case and how the law applies to it. Of course, when it comes time to put on the suit and head to the courthouse, your lawyer is going to do all he can to be your advocate and highlight the "highlights" of your case.

2/8/10 2/8/10

The Ostrich Defense Doesn't Work in Family Court

ostrich 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

2/4/10 2/4/10

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.

1/7/10 1/7/10

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.

1/5/10 1/5/10

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.