3/25/11 3/25/11

Temporary Hearing - What's Next?

Previously I have written about what to expect at a temporary hearing in a divorce or custody case (here and here) and I recently received a question about what happens after the temporary hearing. Let's review just a bit:At a temporary hearing, the judge is going to make a ruling that will govern the parties conduct throughout the remainder of the case. In a typical divorce case the temporary issues typically are: child custody, visitation, child support, alimony, possession of certain assets like the house and cars, insurance coverage, service of debts, restraining orders and attorney fees. In most cases, the first temporary hearing is the only temporary hearing and the last time you will be in front of a judge before the final hearing. Because of the importance of a temporary hearing, a lot of time and effort goes in the preparation for this hearing by you and your lawyer.So after the hours of work, the gathering of affidavits, preparation of your arguments and your responses to the opposing side's arguments - what's next?Well, things vary from case to case. Often times, it is best to allow some cooling time for both parties to emotionally absorb what just happened. Often, when we walk out of a temporary hearing, client's have no idea what just happened or what the judge even said. It may take a little while to get the order back from the judge and to allow time for counsel with your lawyer to find out where you are and put together a game plan for what happens next.In a contested custody matter, a Guardian ad Litem will generally be appointed by the Court at the temporary hearing. After the order has been signed the case documents will be sent by both lawyers to the Guardian and he/she will begin his/her investigation which will include interviews with parents, children, teachers, counselors, therapists, and others with relevant information.Discovery is often begun at this point depending on the complexity of the issues involved in the case. Discovery is the process where both sides exchange information about the case to the others (documents, witness lists, answer specific questions asked by the other side, etc.). This process typically takes a couple of months.From there, mediation may be required depending on where you live. In the event you county doesn't require mediation, an informal settlement conference or attempts to negotiate between the parties takes place and then a final hearing is requested. If an agreement is worked out, a final hearing may be set in a matter of weeks. If a contested trial is demanded it may take over a year for the trial to be heard by the family court.

2/3/11 2/3/11

Are Your Lottery Winnings Getting Separted in the Divorce?

The Background

Imagine being separated from your spouse for several years. When you were together, you didn’t really have any property or debts. You didn’t have a lot of money in general. You left because you were tired of being abused and so you could protect your children. Since you separated, it has been a nightmare to try to collect child support. Your spouse rarely pays, and when he/she does, it isn’t on time. Since money is tight and divorce is expensive, you decided not to proceed with a divorce until you really needed to.Then, you hit the lottery. Literally. You are the new overnight millionaire. You and your children’s lives just got a whole lot better. And now, because of the notoriety and because of the money, you’re not just hearing from those long lost family members who would like a “loan” but your old flame just wandered back into the picture, and sent you a message, “you’ll be hearing from my lawyer.”What?!? Is he/she entitled to some of my lottery winnings? You may have heard about this situation recently on the morning shows. This is basically the facts of a real life case out in Utah where Holly Lahti won one-half of the Mega Million $380 million jackpot. She cashed in and took the lump sum payment of $80.6 million. There is some question about what percentage, if any, of the payout that her estranged husband would be entitled to since she never filed for divorce or legal separation. Let’s say that rather than being in Utah that this was going on in South Carolina. What would happen?

South Carolina Equitable Division

SC Code §20-3-630 defines marital property as "all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation ... regardless of how legal title is held." So, since no divorce action or separate support and maintenance action had been filed by either party prior to Ms. Lahti winning the lottery, the lottery winnings would be considered "marital" and would therefore be subject to potential division by the court in subsequent divorce action.Since the property is subject to potential division, it would fall to several factors contained in SC Code §20-3-620 which gives the Court direction on how to apportion the marital property. Potential relevant factors in this case would include marital misconduct or fault of one of the spouses (since Ms. Lahti's husband was allegedly abusive during the marriage which is a ground for divorce in South Carolina), the contribution of each spouse to the acquisition of the property, and finally a "catch all" that let's the judge consider other "relevant factors".I don't know exactly what a South Carolina Family Court Judge would do in this situation, but I think based on the abusive marriage and the time the parties have been separated (and that neither was relying on the other financially in any way) that very little of the lottery winnings (if any) would be apportioned to the husband. Sorry dude!

1/21/11 1/21/11

Tripp Atkins - Live and In Person!

Next Friday, January 28, 2011, I'll be presenting a topic at the South Carolina Bar Guardian ad Litem CLE course. If you're interested in more information about the conference, for more information or to register you can check out the program page at the SC Bar website (here). Gregory Forman, a family law attorney in Charleston, is moderating the event and has put together what looks like a very interesting day of speakers. I'm looking forward to heading down to Columbia next week.

1/20/11 1/20/11

What is Family Court Mediation?

Greenville County is one of several counties in South Carolina that requires all contested family court matters to be mediated. Many of my clients feel like if they could work out their divorce case with their spouse, they would have already done it and they wouldn't have needed to spend money for lawyers and other legal stuff related to the litigation. They feel like the mediation is just a formality that is going to be a waste of their time and money.As a lawyer I am constantly fighting those thoughts and trying to get my clients to go into mediation with an optimistic outlook about our opportunity to settle their case without the need for further litigation.Mediation is often referred to by local mediators as the last opportunity for parties to a domestic case to work out the case on their own before the case is set for a trial where the judge is going to determine the outcome. You may ask, what is so bad about having a judge determine a case? Well, I guess nothing. It's the process that's bad. It will take months to have your trial scheduled, then your lawyer is going to spend many hours in preparation for your trial, you are going to have to go through the stress of a trial, not knowing how a judge will rule on many issues, take time off of work and spend lots of money. Then, the judge, who will have known you for only a few hours at trial will make a decision that will impact you for the rest of your life. Also, it isn't the judge's job to be fair to either party. It's the judge's job to fairly administer the law of South Carolina based upon the facts of the case. Trial involves a lot of risk.Mediation is process by which you can work with a trained neutral third-party to attempt to settle your case. The mediator will try to work with you and your spouse to find common ground among the issues in your case, and help you to balance risks and rewards with the mediation and trial processes. The mediator isn't a judge and can't force you to do anything. Mediation typically lasts for several hours, but if successful, can save you and your attorney much more time and definitely a lot of money. In my experience, mediation has helped resolve many of my cases with good results for my clients.If you're interested in looking into more information about family court mediation process here are some resources:

1/3/11 1/3/11

Marriage Tips from NBA "Player X"

When I got home from work this afternoon I started browsing through the January 10, 2011 issue of ESPN The Magazine. One of my favorite articles in the magazine is the NBA Player X article and the NBA Player X blog. I like the inside look at the league and the perspective of some amazing athletes and businessmen.

I'm not sure that I ever thought my ESPN The Magazine subscription would give me a lot of inspiration for my family law blog, but I was proven wrong this evening. The title of this edition of the NBA Player X article is "Why should you take marital advice from a pro? Because we've seen it all."I guess I should start with the title. I have no doubt that these guys are put in the throws of some crazy temptation as soon as they get off the plane each night in whatever distant city they are playing in. Player X describes the temptations as "crazy" and says that it is almost impossible for a married professional athlete not to cheat because of the temptations, long times away from family, "targets on our chest" and women who are "fine as hell."So, based on that premise, this NBA pro has some marital advice for young pros. Here's the summary of his tips:

Have a prenup in place before you get married.
Perhaps an "open door" policy with your spouse will make your marriage stronger
Don't mess with your teammates' partners

So, let's start with the prenup. A prenuptial agreement is basically where you and your soon-to-be spouse sign a written agreement that has been mutually negotiated and when each party has been advised by independent counsel. This is the place where Player X recommends that you get a prenuptial agreement in place before you get married so you don't end up like Tiger Woods where his ex-wife Elin "took" him for $100 million. Basically, his advice boils down to this - if your wife won't sign the prenup don't marry her.A prenuptial agreement may be what's in your best interest if you are trying to protect wealth or other interests that you have obtained prior to your marriage to your prospective wife. I would add some recommendations to this point for Player X:First, don't spring this on your fiancee. I've seen it several times in my practice where a groom tells the bride a few days before the wedding that he would like her to sign a prenup that his lawyer has prepared. This is bad in more ways than one. First, it's just bad form. Second, it may lead a judge down the road if you face divorce to throw the prenup out because your wife didn't have adequate and reasonable time to have the prenup reviewed by an independent lawyer, to obtain full financial disclosure from you and negotiate fairly.Second, don't sign the prenup without obtaining advice and counsel from a lawyer. You may be giving up a lot - you may be giving up nothing, but you won't know without the competent advice of a lawyer. Many times, I have advised clients not to sign a prenup because it is not in the client's best interest. Most of the time, they sign it anyway (against my advice) because they want to get married.The second bit of advice from Player X is to talk to your wife "about the temptations [you] face, answer all their hard-hitting questions and come to an understanding." The proposed understanding is that if the guy can play around so can the wife - as long as everyone is up front about it and not doing it behind their partner's back. Oh - and don't forget the man code where you can't do it with my teammate.The only good part of this advice is the encouragement to talk to your husband/wife about the temptations that you face. Spouses should be open with one another about all matters in their life. Temptations, failures, victories, finances, friends, etc. I meet with people every week who have separated from their spouses and most of the time a certain portion of it is due to a lack of communication between spouses. Secrets, lies, and insecurities are born out of failure to communicate.I'm not sure the rest of his advice is good in any world except the wacky world of the NBA. I think most women I know would be thinking about a divorce if their husband came to them proposing an open relationship. Maybe I'm the only one? Player X says this will make the marriage stronger and will also make things better for each spouse and the kids. Personally, I think it sets a terrible example for the kids.Finally, there's a short anecdote about Dwayne Wade's fight for custody of his kids. I totally respect D-Wade for wanting to be the primary caretaker for his children after his divorce. It's a position that most men simply don't want. But, I think it shows a lot when a parent is ready to step up because he/she thinks they are raise their children in a better way than their spouse. Some fights are worth getting into.

12/31/10 12/31/10

Happy New Year! Top Posts for 2010

I hope everyone has a Happy New Year! I'm very excited about what 2011 is going to bring to my law practice and life - but I know that no matter what new things may come along I will still be helping people through my practice. I have some big plans for the blog including more posts, videos and more for 2011. If you have some ideas or things you would like to see please let me know!Here are the top 10 posts from 2010 at UpstateFamilyLawBlog.com:

12/27/10 12/27/10

Should I Consider Filing for a "Legal Separation"

When you and your spouse have separated with the intention of getting a divorce you have 2 general options when filing depending on the circumstances of your case. First, you could file for divorce. South Carolina has five grounds for divorce – four fault-based grounds (physical cruelty, habitual drunkenness, adultery and abandonment) and one no-fault ground (continuous separation for more than one year).The second option is that you can file for a decree of separate support and maintenance which is more commonly known as a legal separation? When you file for separate support and maintenance, you will go through and resolve all of the same issues as if you were getting a divorce; however, you will not be divorced at the end of the case.There is a certain amount of art that goes into determining how you want to file. Sometimes, there is no fault-based ground for divorce available for your situation, but there are other facts that cause us to want to go ahead and get the case filed immediately. For example, you have young children and you need a custody order and some financial assistance from your spouse to make ends meet.Other times, there are no pressing issues that require us to spend the money to file for separate support and maintenance, so it may be safe to wait for the year’s separation before filing anything.This is not specific legal advice for your case as the facts and circumstances play a big role in determining how you should approach your legal issues. Before you rely on this post (and blog) to determine what needs to happen in your case you should consult with a lawyer to ensure that all relevant facts are considered.