4/17/12 4/17/12

How Do I Convert My Separation into a Divorce

Many states recognize a "legal separation" which can be a precursor to divorce. South Carolina does not have a legal separation. Instead, our state offers what is called a decree of separate support and maintenance. In both a legal separation and separate support and maintenance action, the Family Court is called upon to determine all of the same issues that are generally handled in a divorce: child custody, visitation, child support, spousal support, and division of property and debt. However, at the end of the process, you are still married. Because the marriage has not been legally ended, obtaining a decree of separate support and maintenance does not allow either party to get re-married. The most common reason I see for people desiring to file for separate support and maintenance is that the client does not have a fault-based ground such as adultery or physical abuse to file for the divorce immediately, but they have immediate needs such as spousal support, child support or custody that need to be addressed now - not in 12 months. Often times, parties simply desire to work through all of the property/debt/financial issues immediately so they can go ahead and take care of those items now and not let them sit around for a year.Sometimes I meet with prospective clients who have been through the separation process and have obtained a decree of separate support and maintenance from the Family Court and they are ready to get a divorce on the no fault ground of living separate and apart for more than one year continuously. Many times the client believes that as soon as the one year separation rolls around, the divorce is automatically granted. That is not true.In order to become divorced following the grant of a decree of separate support and maintenance, it is necessary to file an entirely new action with the family court with a final divorce as the relief being sought. This requires a new filing fee with the Family Court, filing a Summons and Complaint seeking the divorce, properly serving the defendant spouse, and a final divorce hearing.So, to answer the initial question posed, you cannot convert a decree of separate support and maintenance to a divorce in South Carolina.

11/24/11 11/24/11

Happy Thanksgiving, Everyone!

I'll take a break from our normal topic of family to take a second to wish you a happy Thanksgiving. I hope you can take some time over this Thanksgiving holiday to reflect on the many blessings in your life and what you have to be thankful for in 2011.Now, please enjoy a quick tune from my four year old, Cole. One of the many things I am thankful for.

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.