9/2/10 9/2/10

College Expenses...Whoa now!

Here's an article that I recently wrote for the Legal Staff Professionals of Greenville (LSPG) monthly newsletter.

It’s that time of year again – school is back in session. These days college seems to be automatic for most high school graduates. The process begins early in high school preparing for entrance exams and completing applications, and with state support for colleges decreasing, the prices for those incoming freshmen, and their parents, continue to rise. College expenses are hard on married couples, but at least the child support laws allow divorced parents can get help from their former-spouses for college expenses, right?South Carolina Code §63-3-530(A)(17) states that the Family Court has jurisdiction to make orders for child support to run until the child turns eighteen (or until the child graduates from high school), becomes married or self-supporting. The statute goes on to allow a court order for child support past the age of eighteen when there is a specific agreement, when there are physical or mental disabilities of the child or in “other exceptional circumstances that warrant the continuation of child support beyond age eighteen.”In 1979, the South Carolina Supreme Court decided Rinsinger v. Rinsinger, 273 S.C. 36, which a child support order to continue past age eighteen because of college expenses incurred by the child and in part due to the parent’s ability to pay. It is important to note that this child support could only be continued from a previous order and not a new petition filed for child support. In this decision, the Court considered a child wanting to go to college as an “exceptional circumstance” provided they showed the aptitude for doing well, desired to attend college, and the parent’s had the financial ability to pay for college.This would seem to be a nice bonus to be able to offer our divorce and child support clients. But, everything changed this year.On April 19, 2010, the South Carolina Supreme Court ruled in Webb v. Sowell, 387 S.C. 328, that treating supporting parents in to different ways (those with a previous child support order and those without a previous support order) failed the rational basis test and violated the Equal Protection Clause of the United States Constitution. The current court position on this topic is that neither parent has a common law duty to provide for the post-secondary educational expenses of their children and that the statute should not allow the court to continue a previous support order beyond age eighteen for one supporting parent when they could not institute a new support order after age eighteen for another supporting parent. Because it treats two different “classes” of people differently, the statute is unconstitutional.Based on the decision in Webb, it appears that a court will no longer consider college expenses to be an “exceptional circumstance” that allows them to continue child support and the only way to attempt to have a former-spouse assist with college expenses would be to include a very specific provision regarding college expenses in a separation agreement during the initial divorce/custody litigation.

8/31/10 8/31/10

A Divorce Like Tigers'...

Ben Stevens at SCFamilyLaw.com wrote a great post this morning about divorcing like Tiger Woods. He analyzes Tiger's divorce and breaks it down into three main steps which are great advice for anyone going through the divorce process:

Determine your true priorities.
Take reasonable and prudent actions.
Hire the best attorney that you can afford.

Check out the entire post here: How to Make Your Divorce Like Tiger Woods'

8/26/10 8/26/10

Description of Family Court Mediation

In many South Carolina counties mediation is required in a contested family court matter. A contested case means that there are issues (no matter how big or small) that you and your spouse do not agree on.Mediation is an opportunity for you and your spouse to resolve the case yourselves without as much court intervention. In the long run, cases seem to be resolved more successfully because the people who know the most about the case and who have the most invested in the outcome of the case (you and your spouse) are the ones who are deciding how things will be resolved.Typically, mediation begins with you and your attorney in one room and your spouse and his/her attorney in a separate room. The mediator is typically another attorney, though they do not have to be, who has been trained by the South Carolina Bar in Family Court mediation. The mediator will explain the process and their role and a few rules about mediation. After these introductions with both parties, the mediator will begin discussing the specifics of the case with each party.The mediator's job is not to make any decisions or to tell you or your spouse that they are wrong and should do what you want them to do. The mediator's job is to help you and your spouse understand what is at stake and to help you find some common ground on the issues.The hopeful outcome of your mediation will be a complete agreement. However, if you are not able to resolve all issues in your case but you are able to resolve some your mediation will still have been a success because you will have eliminated some of the contested issues resulting in less court time required for the trial of your case and lower attorney fees.Good luck mediating your case!

8/25/10 8/25/10

Definition: Temporary Divorce Hearing

I meet with people who have recently been served with divorce papers. Many times, included in this paperwork is a Motion and Notice of Temporary Hearing. This causes many questions because the Motion seems to ask for the same relief that is requested in the Complaint. So what is a temporary hearing?A temporary hearing is an opportunity at the beginning of a divorce or child custody matter where you can ask the court to grant you some specific relief before the final hearing. That means when you file for divorce you don't have to wait the entire nine months or a year to get to the final hearing when you need to get alimony or child support started or a custody order so you can enroll your child in school.In most counties, your temporary hearing will be held about 3-4 weeks from the time your request the hearing and generally lasts 15-30 minutes. At this hearing you will generally not testify, but your case will be presented through your lawyer's arguments and through affidavits submitted by you to the Court. After that brief time, the Court will make a decision that will remain in effect throughout your case.

8/24/10 8/24/10

When you've been Served with Divorce Papers

Yesterday we discussed the process of serving your spouse with divorce papers. Today we are going to discuss what to do when you have been served with divorce papers. Being served with divorce papers really just means that the divorce papers have been properly delivered to you in a manner defined by South Carolina law. You can check out yeseterday's post about service of process to learn more about the proper ways to serve someone with divorce papers in South Carolina.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 and if you wait too long to respond to the papers you could forfeit all or some of your rights you have as they relate to this case.Next, you should read all of the paperwork that you received and make a note of all of the questions you have and what you agree and disagree with in the paperwork. 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.After you have read through the paperwork, you should set up a consultation with an experienced divorce lawyer to find out about the divorce process and more specific information about your case. At this meeting you will also find out how much that lawyer charges to handle a case like yours. If you hire an attorney then they will begin the process of formally responding to the Summons and Complaint by filing an Answer on your behalf. If you decide not to hire an attorney then you should begin preparing your Answer and filing it no later than 30 days from the date you were served.

8/23/10 8/23/10

Serving Divorce Papers on your Spouse

When you file for divorce (or child custody, etc.) in South Carolina you must serve a Summons and Complaint on your spouse before the Family Court will have personal jurisdiction over them and be able to grant you a divorce. So, how can your spouse be served? There are several ways all of which are governed by the South Carolina Rules of Civil Procedure and South Carolina Family Court Rules.

Acceptance of Service

First, in many no-fault or uncontested divorce matters, the defendant spouse will come to your lawyer's office and pick up the papers voluntarily and sign a document called an Acceptance of Service which is an affidavit to the Court stating that your spouse has freely and willfully accepted the divorce papers.

Service by Certified Mail

The second option is for your spouse to be served by Certified Mail. If you are serving your spouse by Certified Mail it must be sent Return Receipt Requested and Restricted Delivery. The return receipt will allow you to prove to the Court that your spouse received the documents and the restricted delivery means that only your spouse can sign for the papers and not their roommate or someone else at the home.

Personal Service

The third option is to serve your spouse personally. That means a process server will take the divorce papers and hand them to your spouse. This is done at their home, work, or other place and is proven by the process server filing an Affidavit of Personal Service stating the date, time and location of the personal service. Sometimes this is the only way to serve someone because they are intentionally trying to avoid being served papers and they will not accept the certified mail. When serving your spouse in this manner neither you, any other person who is a party to this action or your lawyer can act as the process server.

Service by Publication

Finally, if you are unable to locate your spouse and you have made a good faith effort to find them, you can petition the Court for permission to serve your spouse by publication. This means you will run a Summons and Notice of the hearing in a newspaper of general circulation in the place where your spouse was last known to reside. This notice will run one time per week for three weeks.Now that your spouse has been served the case has officially begun...

8/3/10 8/3/10

You Shouldn't Be Your Own Divorce Lawyer

Facing a divorce is difficult. It is probably one of the hardest things you will go through in your life. There are lots of emotions and questions. Then you are learning to live on your own again and budgeting based on a single income rather than two. I also understand that a divorce can be a very expensive proposition. You are faced with dividing up marital assets that you may have accumulated over decades of marriage, not to mention the attorney fees and court costs. This cost often leads people to attempt to represent themselves in the family court. Often times, people represent themselves even when their spouse has hired an attorney to represent their interests. In cases where there are no issues and no property to divide this might be okay, but if there are any issues that remain contested (child custody, support, visitation, alimony or property division) you should definitely have an attorney.(Aside: I know this looks self-serving coming from a divorce attorney, but I totally believe that it's true)

"A well-trained man knows how to answer questions; an educated man knows what questions are worth asking."
- E. Digby Baltzell (1955)

I like this quote. It reminds me about what a lawyer is supposed to do - that is, to know which questions are worth asking. A lawyer also knows the rules in the courtroom. How to make sure you ask the questions that are worth asking so you tell the judge everything he/she needs to know in order to decide the case the best way possible for you.