11/14/11 11/14/11

Should I Pay Off Debts or Purchase Luxury Items prior to Filing for Divorce?

I recently received the following two questions from a prospective client. It is something that comes up in many cases where the parties are trying to work out an agreement prior to filing for divorce, but there is a feeling like the the other spouse may just stop negotiating in good faith once he/she gets what they want. So this is where the questions usually stems from:

Is there any clear advantage/disadvantage to me paying off shared debt over the next few months, be it student loan, credit card, etc? I want to pay it down as quickly as possible but wasn't sure if that could somehow work against me in an assets/liabilities kind of way.
Should I refrain from purchasing anything that could be considered a "luxury" until we file? (e.g. TV, computer, etc.)

South Carolina Code §20-3-630(A) defines the term "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."In South Carolina, anything that is considered marital property that was purchased during the marriage and owned or owed as of the date of filing of your case can be divided by the Family Court. So, if you pay off a bunch of debt prior to filing, you would be removing debts that could be shared between the two of you by the Court because they would no longer be owed as of the date of filing the marital litigation. At the same time, even if you and your spouse have been separated for a while, anything you purchase prior to filing for divorce would be divisible by the court as marital property because it was purchased during the marriage, prior to the filing of marital litigation, and it doesn't matter whose name is listed on the title of the property.

8/2/11 8/2/11

Happy Birthday UpstateFamilyLawBlog.com!

Happy Birthday to the blog! The first blog post here at UpstateFamilyLawBlog.com came two years ago so today I’m celebrating the blog’s birthday!In the last two years, I have written 141 posts, there have been over 20,000 page visits, 45,000 pageviews, and many comments.I’m so thankful for being able to share some of what I do every day to help other South Carolinians who are going through the divorce process. This blog has allowed me to interact with many of my readers on a personal basis and in some cases that has led to representation opportunities and speaking engagements.

4/25/11 4/25/11

Time Magazine: Divorce and Taxes

The TaxGirl, Kelly Phillips Erb wrote a piece at TIME.com about divorce and taxes. While tax day just passed us by last week, it's an interesting piece and answers many questions that I often receive from clients.Here's a sneak peek at the 5 points in the article:

Filing Status is based on the Calendar - not the date of your divorce decree. Basically, if you are divorced between January 1 and April 15, but you were married on December 31, you will be filing as "married" (either jointly or separately). But, if you get divorced in December you can't file as married, but you have the option of filing head of household (if you qualify) which could be beneficial.
If you are awarded the marital home in the divorce you could be responsible for capital gains taxes when it is sold since you don't have the joint marital capital gains wiggle room.
Just because you have the kids for equal time during the year doesn't make them your dependents for filing purposes.
Alimony is tax deductible for the paying spouse and it is deductible even if you do not itemize your deductions each year.
Child support is always tax neutral so no one gets a deduction or pays taxes for child support.

Check out the entire article here: Divorce and Taxes: Five Things You Need to Know

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.