9/6/10 9/6/10

Happy Labor Day from the Atkins Law Firm, P.A.

I hope everyone has a great Labor Day and enjoys the extra time off and time with friends and lived ones.

9/4/10 9/4/10

5 Cool Family Law Blog Posts from around the Blogosphere

For your weekend reading - here are five great blog posts (in no particular order) related to family law and divorce from around the blogosphere this week. Enjoy!

"Clothes make the man. Naked people have little or no influence on society." Mark Twain: How not to bug the judge - From Domestic Diversions
The Not so Innocent Friend Request from Michael Viola's One (Divorce) Lawyer's Perspective
Gift Ideas for the Newly Divorced from Robert Mues' Ohio Family Law Blog
Pre-nuptial Concerns from Ben Attwood (Pannone Legal Services)
Put in in Writing from Gregory S. Forman's Charleston, SC Family Law Blog

9/3/10 9/3/10

What To Expect when Going to Court?

This morning I was getting ready for a marathon couple of days. I have hearing this morning in the Spartanburg County Family Court and this afternoon I head over to Laurens County Family Court for a quick hearing. Then, first thing tomorrow it is back to the Greenville County Family Court for a child support hearing. As I was putting my tie on, I realized that this was what I did every day and I knew what was coming, but it hit me that my clients probably had a good deal of anxiety about what to expect.When I work with a client, I always have at least one appointment prior to the hearing to prepare the client for the hearing. We talk about who are judge is going to be and what kinds of questions to expect from them. I also go through who is in the court room and what to expect from the experience.So, what can you expect in your divorce hearing? The answer depends on the type of case you have at the family court as well as whether your case is contested or if you and the opposing party (normally your spouse or former spouse) have reached an agreement on all or just some of the issues.When your case is called you will go into the courtroom and sit at one of the tables in front of the judge. Your spouse will sit at the other table.If your case is a divorce case the judge will then ask both parties if there is anything the court could do to help reconcile the marriage and help get the parties back together again such as marriage counseling or time spent with a minister or priest. Assuming the answer is no to that question, the case will begin.The plaintiff (the person who filed for divorce) will then be called as a witness to lay the groundwork for the case and any other witnesses required will be called at this time as well. After the plaintiff's side questions witnesses, the defendant's side will have an opportunity for cross-examination. When all of the plaintiff's witnesses have been called, the defendant will then have an opportunity to present his/her side of the case.In an uncontested case, there are usually 2 witnesses - the plaintiff and the corroborating witness to confirm the parties have lived separate and apart for more than one year. If the case is contested there may be many witnesses including friends, experts, accountants, and so forth to build up the case for each party.Depending on the county, an uncontested matter may take between 5 and 15 minutes where a contested case could last for days.

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.