4/8/10 4/8/10

What Happens After my Temporary Hearing?

A temporary hearing in a divorce case can set the tone for the rest of the matter. It is probably good to note right here that the decision made by a judge at a temporary hearing is temporary in nature (hence the name) and it carries no weight as far as what the trial judge may or may not rule on. Therefore, if you are ruled against at the temporary hearing it isn't the end of the world. However, when a judge rules for or against a person at a temporary hearing it seems to give each party some false sense of power or weakness in the case.After your temporary hearing a temporary order will be prepared and signed by the judge and that sets the standard of conduct for the remainder of the litigation. Generally, in this period between the temporary hearing and the final hearing the parties will engage in discovery, potentially take depositions of key witnesses, mediate the case, and attempt to reach a negotiated settlement. If there are minor children involved, a guardian ad litem will be appointed who will perform an investigation into the issues surrounding the minor children.This process can take several months. Often, depending on the complexity of the case, it can last over a year. The final phase before the final hearing is the trial preparation phase where you and your lawyer will be preparing for trial by meeting with witnesses, preparing any necessary witness subpoenas, creating trial exhibits, etc. All of this leads up to the final hearing in your case.

4/8/10 4/8/10

Family Court Mediation is Confidential

Mediation is required for all contested family court cases in Greenville County and in many other South Carolina counties. One of the concerns that I hear as a mediator and as a lawyer who attends mediation with his clients is that clients are concerned with what they are saying to a third-party lawyer (the mediator) or the kinds of offers or counter-offers that are being made and how that might come back to haunt them down the road should their case not settle.In South Carolina, all family court mediations are confidential on several levels. First, when you communicate something to your mediator, you can specify that you do not wish for the mediator to share that with the opposing party. Second, everything you discuss in mediation is confidential so that if you and your spouse do not settle the case at mediation, you do not have to worry about them bringing up what you offered in trial. The mediator cannot be called to testify about the mediation and his notes cannot be subpoenaed.This confidentiality gives you a "free bite at the apple" so to speak. You have an opportunity to be creative with your spouse to resolve the contested issues in your case. You may make some offers that you ordinarily would not in an effort to settle the case without fear that they could be used against you later on.

4/5/10 4/5/10

5 Child Custody Tips

When you are involved in a case regarding custody of your children things can get crazy and out-of-hand very quickly. So, here are a few tips to help you out in your child custody case.

Really try to work with your spouse to parent together regardless of the custody arrangement. When you are going through a divorce (or you are already divorced and you are fighting over custody) things can really turn ugly, and I mean fast. What almost immediately happens is that the parents cease communications with one another and therefore cease parenting together and consistently. This causes confusion for the children and can lead to problems for you in the lawsuit. Just a few weeks ago I was in a custody hearing and each party was talking about "my son this" and "my son that." The judge quickly lashed into them and reminded each of the parties that this was "their son" and they had to parent together.
Don't bad-mouth your spouse in front of the children. Let's face it, kids talk. I never know what is going to come out of my two year old's mouth, but it is almost always something he heard his mother or me say. I'm sure your kids are the same way. When you talk to you kids about their other parent you really put them in a bad predicament. You confuse them and you cause them to lose respect for their parent. Depending on how mature they are, they may even lose respect for you.
Don't bad-mouth your spouse in front of the Guardian ad Litem. In any contested custody matter, the court is going to appoint a Guardian ad Litem to represent the best interest of the minor children in the case. It is the Guardian's job to investigate the circumstances surrounding the children and present a report to the hearing judge about his or her findings. During the litigation, the Guardian ad Litem is likely to meet with you several times to discuss the case. During these meetings it is your job to make sure you build up yourself as a good parent and not spend the entire time bashing your spouse. That never works for winning a custody case. It just shows you are bitter and angry and that takes away from your ability to be a good parent. There are almost always concerns about the other parent's ability to be a good custodial parent, so bring those up and move on. Don't dwell on them.
Help your children. When you are trying to win a custody case you should be spending quality time with your children. Too often parents think trips to the park and arcade are all the quality time they need. On one hand you will probably win the heart of your child if all you do is take them out to do the fun things and buy them nice gifts, but you are probably not doing your custody case chances any favors unless you are also doing the "hard stuff." Parenting requires you to punish, help with homework and projects, teach, have fun, cry, and everything in between. If you're just doing the fun stuff you're only part of the way there.
Stabilize your life. Do you move around a lot? Do you change jobs often? What's your lifestyle like? When you are involved in a custody dispute you should try to stabilize yourself. Make sure you have had a stable place to live for a while and that your home has ample room for your children. If you have teenager and their are opposite sexes they should probably have separate rooms. Can you hold down a job? Having a stable job history shows that you can provide for yourself and your children and that you are loyal and consistent. Good parenting attributes. Do you party? Do you stay out all hours of the night? During a custody dispute don't be surprised to find out your spouse has had a private investigator following you. If someone was documenting everything you were doing, would that help or hurt your custody case? If that PI went on your Facebook or Twitter page would they find that you have been out partying and drinking all night the last week?

4/2/10 4/2/10

Top UpstateFamilyLawBlog.com Posts for March 2010

In case you missed them, here are the top 10 posts from this blog in March 2010 (according to Google Analytics). And no, I'm not getting anything from Google for saying that.

Just for kicks, here are some of the top keywords used to find UpstateFamilyLawBlog this month:

how long does it take to get a divorce in south carolina
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how long does an uncontested divorce take in south carolina
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4/1/10 4/1/10

Do You Get a Free Lawyer for Your Child Support Contempt Hearing?

One question I hear frequently is whether you can get a court-appointed attorney in your divorce or child support case. The answer is no. There is no constitutional right to have an attorney provided for you in a private family court matter like there is in a criminal prosecution or even in a DSS abuse and neglect case. This issue recently was before the South Carolina Supreme Court in Rebecca Price v. Michael D. Turner.In this case a father had previously been ordered to pay child support for his children and had not made a payment in over a year and a half. He was over $6,000.00 behind in his child support payments and the Court "ruled him in." Basically, when a non-custodial parent is ordered to pay child support through the family court the clerk of court monitors the cases and requires any person not paying on time to come to court and tell the judge their reason for not paying as ordered. Mr. Turner's excuses were that his failure to pay was due to incarceration, drug addiction, unemployment, and injury. At a hearing like this the defendant could be sentenced to one year in jail for civil contempt of court. In Price v. Turner, the defendant was sentenced to one year in jail, but he could get out of jail sooner if he paid the total child support arrears that he owed. Mr. Turner appealed this ruling because he did not have an attorney present at the hearing and he asserted that he has a constitutional right under the Sixth and Fourteenth Amendments of the U.S. Constitution.The SC Supreme Court held that there is no right to legal counsel for a civil contempt case. The difference between civil contempt and criminal contempt is that the person sentenced to incarceration for civil contempt can purge their prison sentence by doing the activity that they previously refused to - in this case, pay child support. In the case of criminal contempt, you cannot purge your jail sentence - you must serve the sentenced time in jail.If you find yourself in the position that you are behind on child support and you are going to a Rule to Show Cause (contempt) hearing in the Family Court, you will not be offered to have a court appointed attorney represent you so you should either be prepared to represent yourself or retain a lawyer to defend you prior to your hearing.

3/23/10 3/23/10

Is Your Facebook Page Going to Be Used Against You in Your Divorce?

A few weeks ago I attended a continuing legal education seminar and one of the topics of discussion was finding information about a party using the internet. Now this isn't any deep private investigator stuff this is using public information like someone's public Facebook, MySpace, LinkedIn and Twitter profiles to learn about a person. The speaker was really more experienced in using these sites to gain information about parties to injury cases, but I have seen it used in divorce and child custody matters as well.There are tons of stories out there of old high-school sweethearts rekindling their relationships on Facebook with current marriages left in the dust. But, how can Facebook or Twitter be used against you in a divorce or child custody case? I've even seen a newspaper article from the UK where a wife found out that her husband was divorcing her because he changed his marital status on Facebook.If your spouse suspects that you are cheating on him/her they could go to your social media accounts and print out the conversations and photographs you have put up there for the world to see. Those conversations can be pretty damning - especially if they are pulled out of context. The photographs can also be pretty harmful. Last year, I worked on a child custody case and represented the father. The mother tried to use photos and comments on his Facebook and MySpace accounts showing him partying and drinking to prove that he was a bad father. I have used Facebook conversations and photos to help prove adultery in divorce cases.One way to find information about your spouse is to use an online tool called Flowtown. Flowtown lets you enter an e-mail address and it shows you where that person is interacting with social media online.Is there evidence that can be used against you on your Facebook page?If you use Facebook or other social media sites and you are facing divorce, a child custody suit or other legal matter, here are some resources for you to check out form other legal blogs:

Facebook No-No's for Divorcing Couples by Ben Stevens at www.SCfamilylaw.com
How to Find the Opposing Party on Facebook by Lee Rosen at Divorce Discourse
Using Social Networks to Gather Evidence by the Trial Technologist's View
Social Networking Sites can Provide Key Evidence by Dan Berexa at Dan Berexa's Tennessee Law Blog
Florida Couples try to Sway Divorce Proceedings with Evidence from Facebook by Keith Maynard at the Jacksonville Divorce Lawyer Blog.
Here's a great video by Lee Rosen about this topic as well:

3/8/10 3/8/10

Backing up Financial Information Before You Go

If you are contemplating leaving your marriage you may consider taking a few steps before breaking the news to your spouse or leaving the house to make sure you protect yourself and your financial interests. South Carolina family courts are courts of equity when it comes to dividing up marital assets. But before you can divide up assets and debts you must be able to identify all of those assets debts and determine which portion of them are marital and non-marital. You may find that once you break the news to your spouse about the impending divorce communication may break down and walls of protection may go up around both of you. Before that happens you should attempt to gather as much information about your family finances as possible. Here are some tips:

Gather copies of tax returns;
Gather copies of financial statements;
Gather copies of insurance policies (whether they are term or whole life policies with a cash value and if they have a cash value, what it currently is).
Inventories of property in the house - using a video camera to record a walk-through of the house is a great way to do this to make sure you don't forget anything.
Inventories of property in safe-deposit boxes (though you should take a witness with you to (1) verify what is in there when you went and (2) verify that you did not remove anything from the box)
Retirement account statements.
Appraisals of real estate and personal property like jewelry, art, etc.
Copies of paystubs for you and your spouse for the year-to-date

Of course all of this information can theoretically be gathered in the discovery phase of your divorce litigation you can save a lot of time and a lot of money (on attorney fees) by having all of this information pulled together from the beginning. Not only will you save yourself money on attorney fees, but you put yourself and your attorney in a better position when it comes to negotiating prior to and arguing at a temporary hearing.Another thing that will come of this information is that the more your specific knowledge your attorney has about your case the better he/she will be able to advise you about the likely outcomes or the best courses of action for you with less assumption.Hat tip to the Ohio Family Law Blog for the tips in this post from their post 12 Proactive Steps to Take If You are Contemplating Divorce.

3/3/10 3/3/10

Filing Bankruptcy Can Improve Your Family Life

Parenting and stress go hand-in-hand. Mix in being buried in debt, and the financial pressures can begin taking a toll on your family, your health, and your emotional well-being.Going through tough financial times increases tension within the family and interferes with your relationship with your children and your spouse. Don’t let the situation make you feel cut off from your family.Parenting is all about teaching your children. Share financial issues with your children much as you can, depending on their age. Opening up the lines of communication will not only keep you connected to them, but may also provide an opportunity to teach them about finances.When you first realize you are in over your head and can’t make your payments, contact your creditors and try to negotiate repayment plans with you. Unfortunately, this is easier said than done.If you can’t restructure your debts, you should explore bankruptcy to relieve your financial stress. Bankruptcy was designed to help individuals stabilize their finances and get out from under their financial burden by protecting their property, lowering their stress levels, and allowing them to sleep at night.Keep in mind that filing bankruptcy is not the problem. The problem is not being able to pay your bills and not being able to provide for your family. This financial pressure causes the stress and anxiety to build. All this spills over into your family relationships.To decide whether bankruptcy is right for you, contact an experienced bankruptcy lawyer who can help you navigate the complicated bankruptcy process and advise you about whether Chapter 7 (“straight bankruptcy”) or Chapter 13 (“reorganization bankruptcy”) is best for you.Once you have gone through the bankruptcy process, rejoice in new beginnings. You went through bankruptcy to get to a fresh start. Now, begin by developing a sound financial plan that will protect your finances and your sanity. Establish a savings plan that will allow you to better absorb financial strain and plan for your family’s future. Once your present situation is under control, you can begin to look to the future and set aside money for your financial goals.But What If I’m Getting a Divorce? Sometimes divorce is inevitable. I practiced family law for ten years, so I know that debt not only can cause divorce but can also cause divorce proceedings to be more difficult than they would otherwise be.She says he spent too much. He says she spent too much. And neither can afford the credit card payments. The divorce case can come to standstill over debt.If that’s the case, both spouses should consider bankruptcy. Getting rid of debt means one less thing to fight over, and that’s a good thing for your divorce case.If you are married, you can file a joint bankruptcy case with your spouse. Depending on your situation, you may even be able to use the same bankruptcy lawyer to do this. Much hinges on whether there is any conflict of interest in having the same attorney represent you in your bankruptcy case—and that depends on the facts of your case.By using bankruptcy to get your financial house in order, you can reduce your stress, enjoy time with your family, and free up your mind to start planning for your future.Russell A. DeMott is a Charleston, South Carolina bankruptcy lawyer.