4/8/11 4/8/11

Family Court Dictionary: Continuance

We continue through the new series about legal terminology and what different words mean when you hear your lawyer or a judge say them. Last week we discussed Summons and Complaint. Today we are going to discuss a continuance.When you are going through your divorce or family court matter, you may hear your attorney mention that he is going to request a continuance for a hearing or that the other party is requesting a continuance. You may find yourself in the courtroom at what you think is your final hearing (as I did this week) and the judge announces that this matter must be continued for another day. Typically this situation arises because one of the parties has backed out of an agreement or issues that were previously agreed upon are now being contested requiring additional time for the trial of the case. Sometimes a case is continued because the other party was not given proper notice of the hearing. Sometimes, a party or lawyer is just sick or a lawyer gets called into another court with higher priority.So what is a continuance?In plain English, a continuance means the case is being postponed for another date. So when your case is continued that means that a hearing that has been scheduled will now just be heard on a different date. Sometimes this is pretty frustrating as you were hoping to get your case finalized on that date. Most attorneys will allow the opposing attorney a continuance in a case as a professional courtesy.So there you have it, that's a continuance.

4/4/11 4/4/11

Family Court Dictionary: Summons and Complaint

Lawyers have a bad habit of speaking Legalese. Because we spent (at least) four years in college, three years in law school, and because we hang out with lawyers all the time, we kind of forget that we have our own language and that our clients don't have a clue what we are talking about (or a judge during a hearing for that matter). So, I thought it might be helpful to go through some common terms to lay out a definition as to what they are and how they impact you during case.So this is the first installment of the Family Court Dictionary...enjoy!

Summons and Complaint

When you decide you are going to file a divorce, you will need to prepare a series of documents that are filed with the court that officially begin the process. These documents are called a Summons and Complaint. The Summons is a document that is served with the complaint that gives the court jurisdiction over the parties to hear the case. It also informs the defendant of the time limits to respond to the demands in the complaint before any of his rights may be compromised.The complaint is the document that sets out what you are hoping to get out of the case. There are different rules in different states about the requirements of specificity for the Complaint. The differences lie in how specific you must be with facts in the Complaint. Federal Rules of Civil Procedure only require notice of a particular claim. In a federal case, the requirement is for the Complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FRCP 8(A)(2). In South Carolina the rules are a little different. South Carolina is a "fact pleading" state and the South Carolina Rules of Civil Procedure require the Complaint to be "a short and plain statement of the facts showing that the pleader is entitled to relief." SCRCP 8(A)(2). The difference in the rules is subtle, but the implication is pretty large. Federal Rules only require notice of the claim while South Carolina rules require a statement of the facts proving relief. Maybe an example of the difference would be helpful. The following sentence would probably be acceptable under the federal rule, but not under the South Carolina rule. That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery. That gives you a pretty clear idea of the claim for relief which satisfies the Federal Rule, but doesn't list any specific facts relating to the adultery claim. Here's another try that probably complies with the South Carolina rule:That the parties have been living separate and apart continuously since on or about October 27, 1995 without intervening cohabitation; that the parties separated when plaintiff discovered that defendant was and is conducting an adulterous affair with his secretary, Jane Doe, beginning on or about February 2011 and continuing to present; that the parties had an affair on March 4, 2011 at the Roach Motel on Woodruff Road, and at other times unknown to Plaintiff; that plaintiff has not forgiven or condoned defendant for his adulterous activity; and that plaintiff is informed, alleges and believes that she is entitled to a divorce a vinculo matrimonii from defendant on the statutory grounds of adultery. To wrap up, here is a short definition for you though: A summons and complaint are the documents that:

Are filed with the court and served on the opposing party that officially starts the case,
Provides specific facts about why you are entitled to the specific relief you are asking for, and
Asks for the outcomes that are important to you.

3/30/11 3/30/11

"That's Why I Paid a Lawyer"

Ever said that? Or thought it? You have a case (a divorce in this context) and you have hired a lawyer to represent you through the case. Your lawyer meets with you a few times and then he prepares the summons and complaint: the paperwork that is filed with the court that officially launches your divorce case. Your lawyer also files a motion for temporary relief so that you can get in to see a judge as quickly as possible to tie up some loose ends like getting child support started. So you're part is done. It's all up to the lawyer now, right?NO! You play a very important role throughout the entire case. Some phases of your case will be more demanding of your time and attention than others, but all are important. In the beginning as your lawyer is learning more about you and your case, you will be providing a lot of information to your lawyer by affidavit, intake forms, client information worksheets, financial declarations, and probably some more stuff. You will probably have to meet with your lawyer on many occasions throughout the process. If custody is at issue, there will probably be a significant chunk of time spent with the Guardian ad Litem discussing the case and the children.Just keep in mind, that as you walk through this process with your lawyer, it is a team effort. You are an important part of the team and will be asked to contribute during the litigation.

3/28/11 3/28/11

Proof of Adultery

I recently received this question:

I am seeking a divorce for adultery. I have no physical proof of this but there have been a number of emails planning to meet with escorts. Can I go through with divorce without solid proof or do I need to find some other means? Will we have to agree on no fault in order for it to get done?

To obtain a divorce on adultery grounds you will need more evidence than some e-mails. Often times, people may make the plans, but fail to follow through due to guilt or some other reason. While that doesn't make them a great husband or wife, it doesn't result in your ability to pursue a divorce on adultery grounds for an attempted adultery. That said, you also don't need to have an explicit sex tape from your spouse's indiscretions (though it would certainly be an easy adultery case to make).The type of proof that you will need typically is made up of two components: motive and opportunity. In your example, you probably have motive. Your spouse's emails show that he/she has an inclination to commit adultery. They are actively seeking an affair. This could also be shown by witness testimony or photographs of your spouse on a date with another person, holding hands walking through the park, telephone records showing numerous calls and text messages to one another. All of this by itself does not prove adultery. You need step 2: the opportunity.Opportunity is where your spouse and his/her new "friend" are together, privately, in a place where they have a chance to consummate the affair. So if all you can prove is that they are having dinner together regularly, then you probably don't have a case. However, if they spend a lot of time together at the friend's apartment and no one else is home with them, in sum with the motive evidence, you probably have a solid case for divorce on grounds of adultery.

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!