Adultery: What Proof is Required

One of the most common threats I discuss with prospective clients is framed in one of two ways:

  1. What do I need to be able to show to prove my spouse is having an affair?  or,
  2. My spouse is threatening to file for divorce on adultery grounds, can he/she do that?

When this is the case, my initial instinct is to believe that the proof of such an affair is thin at best or non-existent at worst.  Perhaps a the prospect has caught the spouse engaging in an "emotional affair" with an old classmate on Facebook that expands into text messages or telephone calls or maybe it is a internet pornography addiction.So what level of "infidelity" is required to substantiate a divorce on the ground of adultery in South Carolina?South Carolina law requires that the spouse seeking a divorce on the ground of adultery to show their spouse had the (1) inclination (or motive) to have an affair and the (2) opportunity to have an affair.  Inclination can be proven by showing the text messages, telephone calls, dates, public displays of affection, and so forth.  But that isn't enough.  We must also show that the offending spouse had the opportunity to complete the affair.  In our fact patterns above, our proof of opportunity is lacking.  While there may be some bad behavior going on, there isn't proof of an affair.The other side of the coin is this: the law doesn't care what your spouse was doing while they were alone with their girlfriend/boyfriend, as long as they were alone for a time long enough for the affair to occur.

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How to File Your Taxes

It's January and you're starting to get your W-2's, 1099's and other tax documents in the mail and you're ready to file your taxes.  You may have been through a divorce in 2012, contemplating divorce, or you may have received a final decree of separate support and maintenance but haven't been divorced yet.  The question comes up often about what filing status you should use when you prepare your tax returns: married filing jointly, married filing separately, head of household or single.There is often a benefit to filing married filing jointly or as head of household rather than filing married filing separately or single.  I'm sure people file with the incorrect status every year so they can get a larger refund or have to pay less in taxes.  Here's how to figure out the status you should file:

You filed for divorce in 2012 but the divorce has not been finalized and there is no final order of separate maintenance.

Since you are still married and there has been no action for separate support and maintenance filed, your options for filing status will be limited to married filing jointly or married filing separately.

A Final Order of Separate Support and Maintenance was entered in 2012

Since you have been issued a final order of separate support and maintenance you are still married, so you have the option to file married filing jointly, married filing separately, or head of household if you meet the additional requirements for that filing status.

You were divorced in 2012

Your marital status on December 31 is the determining factor for your tax filing status for that year.  Even if you were married the majority of the year, but you were divorced sometime in 2012, you must file either single or head of household (if you meet the additional requirements).

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Family Law 101 Family Law 101

What Goes in my Affidavit?

Family court cases typically get kicked off with a temporary hearing.  I have written about temporary hearings here, here, here and here.  At these temporary hearings, there is typically no testimony, very short oral arguments by the attorneys, submission of affidavits and exhibits for the judge to review and then the judge renders a decision.  In fact, Rule 21(b) of the South Carolina Family Court Rules states that "evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary."Many times courts allow the attorneys an opportunity to make a brief argument on behalf of their clients, but there have been some occasions where the court advises that they do not have time for arguments and they are only going to consider the pleadings, affidavits and financial declarations in their temporary decision.  Needless to say, the content of your affidavits are extremely important.  When it comes to affidavits there are two main types: the client's affidavit and supporting affidavits.

The Client's Affidavit

Here are some things I try to focus on when helping clients prepare temporary hearing affidavits (or affidavits for other hearings):The first set of tips has to do with the format.  I would recommend having a type-written affidavit using a normal 12-point font with double line spacing to make the affidavit easy to read.  I know how frustrated I can get reading tiny fonts, bad handwriting, or tightly spaced wording (typed or not) and I can only assume that judges also have a more difficult time reading these kinds of affidavits.Next, consider the content.  I usually ask clients to have a brief history of the marriage.  Beginning with when and how you met, began dating, and some information about the marriage.  Then, we move into the reason for the separation and what led up to the divorce proceedings.The next step is to address the contested issues and I like to organize them according to my client's priorities.  Typically, the issues of custody and visitation top the list.  You should describe your involvement as a parent, who primarily takes care of the children, what the routine looks like and what your plan would be if you were awarded custody of the children.  You should also discuss the role your spouse has played in the lives of your children.  Also, consider what kind of visitation you would want your spouse to receive and how you are going to encourage the relationship between the children and the non-custodial spouse.  You should also describe to the court concerns you have about your spouse, but this is not an opportunity for you to trash your spouse.  For example, has he/she been involved in an adulterous affair and involved your children in that relationship?  Does your spouse have an anger issue, or addiction to alcohol or drugs?Before discussing your desire for child support and/or alimony, I suggest that you discuss you and your spouse's educational backgrounds, work/employment history, reasons for jobs changes (e.g. fired, laid off, resigned for better position, etc.), pay history, and current employment.  For the issue of temporary spousal support it is also helpful to remind the court of any fault in the breakdown of the marriage (e.g. adultery, physical abuse, habitual drug use or alcoholism).  I think it is also helpful to relate this paragraph to your financial declaration to point out how your (very reasonable) living expenses exceed your gross income and either how you need additional money from your spouse to help ends meet or you can't afford to pay more than reasonable child support because of your other financial obligations incurred during the marriage.   Now that we have the basis for your understanding of the parties' income you can begin to frame your request for (or against) child support, alimony, and attorney fees.You should also ask for specific items you are requesting such as continued health insurance coverage for you or the children, possession of the marital residence and a determination of who should be paying the bills, possession of the vehicles and other items of personal property.

Supporting Affidavits

When it comes to supporting affidavits, I know I am not the only attorney who has reviewed dozens of pages from brothers, sisters, friends, parents, and other family members describing how great my client is.  But the truth is, the court would expect family members to be on our side and provide glowing reviews of our client's behavior and parenting skills.What is more beneficial to the case are affidavits from neutral third-parties such as a teacher, daycare provider, doctor, counselor, or private investigator.  While I somewhat belittled having family members give affidavits, if they have very specific information they can provide about instances they personally witnessed that back up your claims then it is more effective.These affidavits should set out the relationship of the affiant (the person writing the affidavit) to the client and his/her spouse, how long they have known them, how frequent the contact is, and their specific points about things they have witnessed that support our case or contradict allegations the spouse is making.

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Child Support Child Support

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. 

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Divorce Divorce

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.

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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.

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Divorce Divorce

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. 

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Miscellaneous Miscellaneous

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.

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