12/8/10 12/8/10

Understanding the Risks Involved in Litigation

Many of the prospective clients I meet with are dealing with one of the most difficult situations they have faced in their lives. They are hurt, angry, and confused. They never imagined they would find themselves in a divorce lawyer's office or that they may find out their spouse has been cheating on them or some other drama.This is usually not the best mindset for someone to be considering litigation and making decisions that will affect them for the rest of their lives. Sometimes firing off a lawsuit and getting the litigation started is a good decision - other times it is premature and leads to more stress and problems.To make sure you and your lawyer make the best decision for you and your case, do these things:

Make sure you are totally forthcoming with your lawyer. He/She can't help you without knowing everything about your case. You may not think that drug conviction 10 years ago is important (you may have tried to forget about it), but your spouse who is trying to win custody of your minor children won't forget about it so your lawyer needs to know about it.
Make sure you evaluate the risks. Your lawyer should be able to help you understand the risks of litigation. Is there a possibility that you could lose custody or have to pay your spouse alimony? You need to make sure you calculate the risk before starting something you can't stop. I want to avoid any kind of conversation with a client that starts off with, "you didn't tell me I could lose custody," or, "you didn't tell me that I might have to pay $3,000.00 per month in alimony!"

I hope you see these two things work hand-in-hand. Your lawyer can't give you good advice without knowing all of the facts of your case and without knowing what "bad things" your spouse might bring up to use against you in trial.

12/1/10 12/1/10

Your Favorite Posts for November 2010

Based on my Google Analytics reports, these are the top 10 most visited posts of November 2010 for UpstateFamilyLawBlog.com:

11/25/10 11/25/10

Happy Thanksgiving!

I would like to take a moment to wish everyone a happy Thanksgiving.I hope you have an opportunity today to reflect on what you have to be thankful for in 2010. I have been truly blessed this year and look forward to the blessings of 2011.

Rejoice always, pray continually, give thanks in all circumstances; for this is God’s will for you in Christ Jesus.
1 Thessalonians 5-16-18

11/24/10 11/24/10

Living in the State for 12 Months Prior to Filing

There are certain time frames that must be followed before a divorce can be filed in South Carolina. In order to determine how long you must live in South Carolina prior to filing for divorce, the answer will depend on where both spouses reside. The answer to this question is governed by South Carolina Code §20-3-30. Specifically, it states as follows:

If Both Spouses Reside In South Carolina

If both you and your spouse live in South Carolina, then you must only prove that you both have lived in South Carolina for the three months leading up tot he commencement of the divorce action.

The Filing Spouse Lives in South Carolina But the Defendant Spouse is Not a Resident of South Carolina

If you want to file for divorce in South Carolina but your spouse is not a resident of this state, then you must prove that you have lived in South Carolina for 12 months before the commencement of the divorce action.

If the Filing Party is Not a Resident But the Defending Party is a Resident

If the filing party lives in another state but is filing for divorce in South Caroline because the defending party is a resident of South Carolina, the defending party who lives in South Carolina must have resided in South Carolina for more than one year prior to the filing of the action for divorce.

11/23/10 11/23/10

The Other Side of the Coin - Getting into It

Ah, irony, you always add so much humor to my life. This past weekend I experienced something new. I was asked to officiate a wedding. Not because of my polished public speaking skills, friendship with the bride and groom or because I am an ordained minister. I'm not. Basically, it came down to I was the guy everyone knew who was a South Carolina Notary Public. Romantic, huh?So, while I was sick this weekend hoping I didn't mess up this couple's wedding day and hoping they didn't find out my days were spent as a divorce lawyer, I thought I should write a quick post about how you get into this thing called marriage.In South Carolina there are two ways: (1) the statutory marriage by marriage license and (2) the common law marriage. Here's a quick run down of both:

The Statutory Marriage: Marriage License

Everyone is familiar with this way of getting married. In fact, most people have been to at least one wedding and many have been in several weddings (as a groomsman or bridesmaid, of course). This is where you stroll down to your county's probate court and fill out a marriage license application. Wait 24 hours and return to pick up your completed license that will be signed by you and your wedding officiant after your ceremony.In order to get married in this manner in South Carolina you must be apply for a marriage license, have a ceremony performed by a minister of the Gospel, Jewish rabbi, or officer authorized to administer oaths in South Carolina such as a notary public.There are a few rules about who can get married in South Carolina as found in S. C. Code § 20-1-10 and some following sections:

The law prohibits those closely related by blood or marriage to marry one another.
Both parties must be mentally competent to marry one another so they can have the requisite intent to marry.
You can't get married when you are currently married to someone else. This is known as bigamy.
You must be at least 16 years old.
Same sex marriages are not allowed in South Carolina.

The Common Law Marriage

"Yes," is the answer to your first question. Common law marriage is still alive and kicking in South Carolina. And most times causing huge problems and lawsuits. A common law marriage is where the couple is married because of their actions/lifestyle, not because they filed any legal paperwork or had a ceremony. The paperwork and ceremony are not required in this case.After the first question, the second one is, "how long do we have to live together before we are considered to be common law married." The answer is that there is no set time period for living together to be common law married. Basically, you prove that both parties have an actual and mutual agreement to live publicly together as husband and wife. Rogers v. Herron, 108 S.C. 271, 276 (1954). There are several factors that when combined prove the intention to be common law married. Here are the factors that must be proven for a common law marriage to be recognized:

Cohabitation with one another.
Hold yourself out as husband and wife. This can be done by introducing each other as your husband/wife or by filing joint income taxes together and other things like this.
That there are no impediments such as age (under 16) or being currently married to another person.

11/22/10 11/22/10

Reporting Alimony Received on Income Taxes

Alimony is a tricky issue in a divorce case. Many people want it (or don't want to pay it) but the tax implications of alimony are important to note and consider in the negotiation of your divorce settlement. In general, alimony is taxable income to the recipient and is a deduction for the payor.The Tax Girl, Kelly Phillips Erb, recently answered a question on her tax blog about claiming alimony on your income tax return. It's a quick and short read, but provides some good guidance on the importance of claiming alimony received on your income tax return even if that is the only income you had for the year.

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.