Is Overtime Counted when Calculating My Child Support?
First, a short story...About two weeks after I was sworn in to practice law, my boss, who was the only other lawyer in our office, was temporarily suspended from the practice of law. At the moment that telephone call came in about the suspension I was the only lawyer in the office and took over responsibility for a large number and a large variety of cases. One of those revolved around the custody, visitation, and support of a child and the temporary hearing was happening about an hour after finding out my boss was suspended. So I crammed to prepare for the hearing as much as I could. Our client prepared his own financial declaration and brought it to court without my review (a lesson I learned the hard way) and we met at the family court to prepare for the hearing.
At the hearing, the judge reviewed the financial declarations from both of the parents and the pay stubs that are required to be submitted along with the financial declaration. Then he got this puzzled look upon his face. He feverishly typed away on his calculator and made some notes. Then he began berating my client with questions about his income which eventually led to the judge to declare that he was turning my client in to the solicitor's office for perjury by submitting a false financial declaration.The issue revolved around my client's income and the overtime he received at work. He took the advice of a friend who said the court cannot take your overtime into consideration rather than asking his attorney whether to include it on his financial declaration.
While we were able to work things out with the judge and smooth things over so there was no issue of perjury, the question came up multiple times during my representation of him. Is my overtime included in the calculation of child support?
The first stop I make is to the Family Court Rules to review Rule 20 regarding financial declarations. Rule 20 requires a financial declaration "[i]n any domestic relations action in which the financial condition of a party is relevant or is an issue". Next, we'll head over and review the South Carolina Child Support Guidelines. A party's gross income is defined by the child support guidelines as, "the actual gross income of the parent, if employed to full capacity, or potential income if unemployed or underemployed." It goes on to state that gross income includes "income from any source including salaries, wages, commissions..." and most other types of income. Your overtime income falls under wages and is not specifically labeled as "not gross income" anywhere in the guidelines.
Finally, we can review footnote 2 to Form 430, the financial declaration form, that describes how to calculate your overtime. Essentially, your overtime will be averaged out over the year so you won't be penalized if you just happen to find yourself in court determining the child support amount during the part of the year when you receive a large amount of child support.
Having Second Thoughts about Filing for Divorce
I received this question recently:
I filed a fault divorce and my husband has not been served yet, I am having second thought about this divorce and not sure if I want to go through with it. Is it too late to stop?
Sometimes people really think they are ready to file for divorce, but when it comes to filing and getting ready to serve the papers, reality can set it and sometimes when you re-evaluate your situation a divorce may not be the best way to go. But the questions is are you stuck with the divorce if you have filed it but it hasn't been served yet.Rule 41(a)(1), South Carolina Rules of Civil Procedure states that, "an action may be dismissed by the plaintiff without order of court...by filing and serving a notice of dismissal at any time before service by the adverse party of an answer or motion for summary judgment, whichever first occurs[.]"Since your husband has not been served with the Summons and Complaint you filed, you will be able to dismiss your divorce action by submitting an order of dismissal to the Family Court and paying the motion fee of $25.00. This dismissal is typically "without prejudice" which means that you may file for divorce again and allege the same claims as you did in the current divorce complaint and you will not be penalized.Occasionally, a client will decide to reconcile with their spouse after service of the Summons and Complaint - sometimes much later in the litigation. In the event the parties mutually agree to dismiss the divorce action, they both are required to sign an order consenting with the dismissal. This dismissal is also without prejudice unless otherwise stated.
What is Proper Service of a Summons and Complaint for Divorce in South Carolina?
I received this question on the blog recently:
My papers were stuck in the door jamb at my house when I was out for the day. There were big storms that afternoon, high winds and heavy rain. These papers could have blown away and I NOT show up at the meeting. This is a big deal to me. Must a server actually hand you the papers or can they be dropped off like they were?
If this type of service of process were effective, then this could lead to total disaster for defendants of family court matters in that someone could leave a document in an obscure location at someone's home where they would never find it so that they would miss any hearing and the moving party would get everything they asked for without contest from their spouse. Right off the bat that sounds ridiculous, but let's look at the South Carolina Rules of Civil Procedure just to make sure the proper ways to service a Summons and Complaint.Rule 4 of the SC Rules of Civil Procedure provides us the guidance we are looking for:
(c) By Whom Served. Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action. Service of all other process shall be made by the sheriff or his deputy or any other duly constituted law enforcement officer or by any person designated by the court who is not less than eighteen (18) years of age and not an attorney in or a party to the action, except that a subpoena may be served as provided in Rule 45.
I quoted paragraph (c) just to point out who can properly effect service of summons and complaint in South Carolina. The Sheriff, his deputy, or any other person 18 years or older who is not an attorney or party to the action may serve the summons and complaint in a case. So that means if the plaintiff was the person who stuck the papers in the door or delivered them in some other valid way to the Defendant there would not be valid service of process.
(d) Summons: Personal Service. The summons and complaint must be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Voluntary appearance by defendant is equivalent to personal service; and written notice of appearance by a party or his attorney shall be effective upon mailing, or may be served as provided in this rule. Service shall be made as follows:
(d)(1) Individuals. Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.
When serving an individual as done in a family court case, the process server must deliver the summons and complaint to the defendant personally. That means the summons and complaint must be placed in the defendant's hands. Leaving it under the mat or jammed in the door is not personal service. Also, it is proper service is the papers are left with a person of "suitable age and discretion" who also resides in the usual place of abode (the home) of the defendant.
(d)(8) Service by Certified Mail. Service of a summons and complaint upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule may be made by the plaintiff or by any person authorized to serve process pursuant to Rule 4(c), including a sheriff or his deputy, by registered or certified mail, return receipt requested and delivery restricted to the addressee. Service is effective upon the date of delivery as shown on the return receipt. Service pursuant to this paragraph shall not be the basis for the entry of a default or a judgment by default unless the record contains a return receipt showing the acceptance by the defendant. Any such default or judgment by default shall be set aside pursuant to Rule 55(c) or Rule 60(b) if the defendant demonstrates to the court that the return receipt was signed by an unauthorized person. If delivery of the process is refused or is returned undelivered, service shall be made as otherwise provided by these rules.
The rule also goes on to state that it is proper to serve a summons and complaint to individuals by mailing the documents through the U.S. Postal Service via certified mail, return receipt requested and with delivery restricted to the addressed defendant. The post office is not supposed to let a letter sent in this manner be signed by someone other than the addressee, but sometimes it happens and that would not be proper service upon the defendant and could yield any relief received based on that service void.
(j) Acceptance of Service. No other proof of service shall be required when acceptance of service is acknowledged in writing and signed by the person served or his attorney, and delivered to the person making service. The acknowledgement shall state the place and date service is accepted.
Also wanted to point out another way that service can be made on a defendant. An acceptance of service is mostly used by attorneys when the defendant already has an attorney representing him/her prior to service of process or in an uncontested case where the defendant agrees to receive the papers. Essentially, this requires the defendant to sign a document known as an Acceptance of Service that states that he is has received the specified documents, and the date and location of the acceptance of service.
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.
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.
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.
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.
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