11/12/10 11/12/10

What is Collusion and How Does it Affect Me?

So you've probably heard about collusion before but usually between competing companies who are working together to keep their prices high or something along those lines. But you may not have considered the impact of collusion on your divorce case. In South Carolina, collusion is a defense that can be used in divorce proceedings that will basically prevent a fault-based divorce from being granted.Merriam-Webster defines collusion as, "a secret agreement or cooperation especially for an illegal or deceitful purpose."S.C. Code §20-3-70 states,"[i]f it shall appear to the satisfaction of the court that the parties to any divorce proceeding colluded or that the act complained of was done with the knowledge or assent of the plaintiff for the purpose of obtaining a divorce the court shall not grant such divorce."So what does that mean? If you and your spouse are contemplating a divorce and you find out that you do not have any fault-based grounds for divorce (physical cruelty, habitual drunkenness, or adultery) and you are going to have to live separate and apart for more than one year to get a divorce, you may try to come up with a plan where one spouse goes out and has an "affair" so you can move ahead and get your divorce quicker. If this happens, it is likely that your divorce won't be granted because you and your spouse committed this action for the "purpose of obtaining a divorce."

11/9/10 11/9/10

Custody at Issue in a Divorce when DSS already has Custody

Recently, I received this question on the blog:

My wife and I have a 15 month old daughter. She was removed from our custody by DSS on April 17, 2010. We signed over for my parents to get full custody of her about two weeks ago. I know we are not getting custody of our daughter back and have already been informed by DSS. Since I know there will not be a "custody" decision made for our daughter, do I still file having a child or not? My wife and i have been seperated since May 2010.Thank you for your help in this matter,Ryan S.

The reason custody must be included in a divorce when there are children of the marriage is so there will be a court order governing the placement, support and care of the children. In this case, there is already a court order related to the minor child of your marriage so it is not necessarily an issue that would have to be dealt with in your divorce case unless you were going to fight for the child's return and custody given back to you.

11/3/10 11/3/10

Your Favorite Posts of October 2010

Here are the most popular posts from October 2010 according to Google Analytics:

10/20/10 10/20/10

What to Expect from the Guardian ad Litem

South Carolina law requires that a Guardian ad Litem to be appointed in cases where the issues of child custody or child visitation are contested issues. The Guardian ad Litem is typically an attorney (though it doesn't have to be) who represents the children in the matter and performs an investigation into both parties and the minor children. One of the most important things the Guardians do is to prepare a report that is presented to all parties and to the Court that details the facts of their investigation, though it is not allowed to make a recommendation as to which party should be awarded custody. So what should you expect when a Guardian ad Litem is appointed in your case? Here are some things that I do when I am appointed as Guardian ad Litem and from what I have witnessed other Guardians ad Litem do in my client's cases.As soon as a Guardian ad Litem has been appointed, the lawyers in the case will notify the Guardian and the Guardian will send the parents a questionnaire to complete and return. At that point, an in-office meeting will usually take place at the Guardian's office so he/she can meet with both parents individually. The children should not attend this meeting because some of the topics of discussion will not be appropriate for them to be apart of. Most Guardian's make home visits to the homes of each parent to make sure places are clean and appropriate for the children. This is also a chance for the Guardian to witness the children interacting in each parent's home environment.The Guardian ad Litems will also want to meet privately with the children. This may take place at their home or at school. This time with the Guardian is important for the Guardian to speak with them without the influence of either parent.The Guardian ad Litem may also interview other people who know the children and the parties. These other people may include the teachers of the children, guidance counselors, grandparents, neighbors, and doctors.

10/18/10 10/18/10

My Spouse Won't Let Me See My Children

Many times after parties separate, one of the parties withholds the children from the other spouse. Sometimes for good reason. But, if you are the parent not getting to spend time with your children this can be extremely frustrating. But what can you do?

There is No Court Order in Place

If you and your spouse have just separated and neither of you have petitioned the family court for custody, then there is no court order in place governing the custody and visitation of your children. In this case, if your spouse will not agree to allow you time with your children your main option in this case is to file an action in the family court with part of the relief you are seeking being the visitation or custody of your children. At the time your action is filed, a Motion for Temporary Relief can also be filed where you can have a Temporary Hearing within a few weeks to have an order put in place for the pendency of your legal action.

There is an Order and My Spouse Ignores It

When there is already an order in place (whether it is a temporary or final order) either spouse can enforce the provisions of the order against the other spouse by what is known as a Contempt action. If either of you are found to be in willful violation of the Family Court's order you could be punished by being held in contempt of court which holds penalties of up to one year in jail, community service and/or fines by the Court. This is the "teeth" of the order and most people are not willing to chance jail time just because they do not want their spouse or ex-spouse to have time with the children.

10/10/10 10/10/10

DSS Emergency Removal: The 72-Hour Probable Cause Hearing

When children are removed from an emergency basis from their parents/guardians the Court is required to hold a probable cause hearing within 72 hours of removal where DSS has to prove that it had probable cause at the time of removal and that probable cause still exists at the time of the hearing such that it is necessary to keep custody of the children.

This hearing comes very fast and in most instances, parents attend the hearing without a lawyer. I don't know if this is because they can't afford representation or they just don't know what their rights are.

In the event you are unable to find an attorney to go the 72-hour Probable Cause hearing with you, these are a few quick tips that will hopefully help prepare you a little bit:

The 72-hour probable cause hearing is similar to a preliminary hearing in criminal court. That means DSS's burden of proof is extremely low to establish the existence of “probable cause”. You do not get to testify at a probable cause hearing. DSS will present testimony by way of their investigator or by the law enforcement officer of the circumstances that led to the removal of your children by DSS. Additionally, DSS will present evidence about whether probable cause exists to keep the children in foster care based on whatever post-removal investigation that has been completed.

Even though you cannot testify, you are given the opportunity to cross-examine any witness DSS puts up. You also have the right to submit affidavits on your behalf to the family court. This is a substitute for your testimony. But, remember that anything you say can be used against you so depending on the circumstances of your case, you. may not want to share information with the Court or DSS at this time.

If you are indigent, you will have an opportunity at this hearing to request the appointment of legal counsel to assist you in this case and you will be notified of the date of a merits hearing where you will be able to contest the removal of your children further.

10/2/10 10/2/10

Weekend Reading Material

Here are some things I came across this week that I think you will find interesting:

11 Questions We Should Ask About Our Marriage by Perry Noble
Divorcing Couples Adopting Social Media Policies and Agreements by Janet Langjahr
Divorcing in a Down Economy - Insights about divorce mediation and collaborative divorce by Stephen F. McDonough at The Divorce Collaborative, LLC

10/1/10 10/1/10