Service after a Separate Maintenance Hearing
I recently received this question:
"I filed for divorce in September 2012 and reached a settlement with my spouse that was approved by the court a few months ago, but we were not divorced at that hearing. Since then my wife relocated to Ohio and I don't know where she is. I want to finalize the divorce by year-end. I've been told that in this case I can simply send a certified letter to her last known address and that the 'green card' doesn't need HER signature. Is this true?
The answer to your question will be different depending on how the court procedurally handled the order approving the agreement. By approving the agreement, the court could have issued a final order of separate maintenance that approved the agreement. The court could have also entered a final order as to the approval of the agreement and held open the issue for divorce. If a final order of separate maintenance was issued that approved the agreement, then you would be required to file a new action for divorce and would have to prove service upon your wife in accordance with Rule 4 of the South Carolina Rules of Civil Procedure either by personal service or by producing the green card where she signed for receipt of the summons and complaint that was mailed to her certified mail, return receipt requested, restricted delivery.If the earlier case is still open and you are just mailing her a notice of the final hearing, Rule 17(a) of the SC Family Court Rules require notice of the final hearing to be "mailed to the defendant at [her] last known address, by certified mail, return receipt requested." This is different from proving service of the summons and complaint as the rules require you to prove you mailed the notice in this particular manner but don't necessarily require you to prove she received the notice by tendering the green card to the court.
Sister Wives Can't Share the Retirement Account - Update on Bigamous Marriage in South Carolina
Recently the South Carolina Supreme Court was asked to answer a question for the United States Court of Appeals for the Third Circuit about the status of South Carolina law related to a putative spouse - someone who is commonly believed to be married to someone else. In the case of Lavona Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan; Retirement Board of the Bert Bell NFL Player Retirement Plan v. Barbara H. Sullivan, Thomas Sullivan who happened to be a former football player in the NFL was married to Lavona Hill. They separated but never divorced. Then, several years later, Mr. Sullivan "married" Barbara Sullivan. The facts of the case indicate that Ms. Sullivan had no knowledge of Mr. Sullivan's prior marriage to Ms. Hill and had no idea that he was not divorced from her. Now, Mr. Sullivan's "wives" are fighting over who receives Mr. Sullivan's NFL retirement benefits - or should they share them.South Carolina law is pretty clear that a bigamous marriage is void ab initio. Specifically, S.C. Code §20-1-80 states, "All marriages contracted while either of the parties has a former wife or husband living shall be void. But this section shall not extend to a person whose husband or wife shall be absent for the space of five years, the one not knowing the other to be living during that time, not to any person who shall be divorced or whose first marriage shall be declared void by the sentence of a competent court." That means, no matter what, the marriage is void and cannot be made into a valid marriage.The issue here is that Ms. Sullivan had no idea that Mr. Sullivan was still married when she married him and she lived with him as his wife from their marriage in 1986 until his death in 2002. It would seem that Mr. Sullivan would probably want the woman he lived with as being married for over 20 years to receive his benefits and she did. Then, four years later Ms. Hill petitioned the plan to receive the benefits. A lawsuit was subsequently filed by Ms. Hill to seek the retirement benefits and the Third Circuit Court of Appeals posed the question to our state Supreme Court asking whether our law supported the "putative spouse doctrine." That would mean that even though Ms. Sullivan was not actually married to Mr. Sullivan because he was legally married to someone else, she could still lay claim to marital benefits if she was "married" to him in good faith with no knowledge of the fact of marriage. In this case the court could divide marital benefits up between the wife and putative wives as appropriate based on the circumstances and what promotes justice.The Court held that South Carolina does not recognize the putative spouse doctrine because "it is contrary to South Carolina's statutory law and marital jurisprudence."Lessons learned:
- When you decide to divorce your spouse, make sure you follow through and are actually divorced.
- When you decide to get married. Make sure your significant other is "available" to be married and not still married to someone else.
How Much Does Divorce Cost
The first thing that comes to my mind - and probably the only thing most people consider when asked this question - is the lawyer's fee. Of course that a significant expense with a large chunk normally due at the beginning of the representation. But there are other costs that can cause the price of your divorce to go up. I recently came across the article "How Much Does the Average Divorce Really Cost?" from Huffington Post that breaks things down.Let's look at some of the costs of divorce:Lawyer fees. Fees vary from state to state and from locale to locale. A more rural area may see lawyers charging lower fees for similar services offered by lawyers in more metropolitan areas of your state. Lawyers also charge fees in different ways. Many lawyers are going to fixed fee or flat rate billing. That way you know exactly what your divorce will cost you. In some cases, there is a "menu" of fees. For example, to file a motion for temporary relief, you may pay $1,500.00. If discovery is part of your case, you may pay an additional $1,000.00. If you violate the order and need your lawyer to represent you in rule to show cause action you know your lawyer charges $2,000.00 for that and so on. While the fee you pay up front may not be the total amount you pay, you can rest a little easier knowing what each step in the process will cost you. The other way divorce lawyers charge their fees is on an hourly basis and asking the client to pay a retainer or pre-payment of the fee. Essentially, the fee is held in trust and the lawyer does not receive the money for use in his practice until he has billed the client for the work.Court Costs. In order to file a new action with a South Carolina Family Court you will need to pay a filing fee of $150.00. If you are also filing a Motion for Temporary Relief, there is an additional $25.00 motion fee due. Additional motions during the litigation or a Rule to Show Cause to enforce the action would also be subject to additional motion fees.Litigation Costs. Once an action is commenced, the summons and complaint must be served on the defendant. The Rules of Civil Procedure govern the proper way to serve these papers, but it isn't as simple as the plaintiff handing them to their spouse in the driveway. Typically, a process server is hired and can range from $50 - $100 depending on the area and how difficult it is for the process server to locate the other party for service.Many counties in South Carolina now require litigants in contested actions to participate in mandatory mediation. A court-appointed mediator (and most private mediators) typically charge $200.00 per hour. Those fees are typically divided equally between the parties unless an order or agreement specifies differently. There are some other mediation options through non-profit mediation centers that charge less and are a good option for litigants with limited funds.Guardians ad Litem. In cases where custody or visitation issues are contested, the parties may agree or the Court may determine that the appointment of a Guardian ad Litem is necessary. Typically, the Court will order each party to pay one-half of the Guardian's initial retainer for the parties to pay in a set time. Depending on the complexity of the case, the initial retainer may be $500.00 apiece or much more.Other costs that you might not consider right off include bank fees and closing costs if you must sell or refinance your property. Then, there will be deed recording fees. There are also fees associated with the transfer of your retirement funds charged by the plan administrator for reviewing the domestic relations order.
What are some ways to keep costs down?
First, be honest with your lawyer up front. Don't let him/her get surprised with facts that you didn't think were relevant that would totally change the complexion of your case.Be on the ball. When your lawyer requests information from you, asks you to come in to review a document or discuss a settlement offer, don't dilly dally. Go ahead and schedule your appointment.Keep your appointment. Don't miss your appointments. Not only do you look flaky, but your lawyer is probably very busy keeping up with his clients and court schedule and it may take some time to get a new appointment scheduled that works for both of your schedules.Don't be petty. Many clients end up spending thousands of dollars in attorney fees fighting over the bad 80's VHS collection. Know when to say when and what fights to stay in and what fights to let go. Also, this means you should be reasonable while negotiating a potential settlement.
3 Reasons You Should Consider filing for Separate Support and Maintenance rather than Divorce
South Carolina does not recognize a legal separation; however, we do recognize what is known as "separate support and maintenance." An action for separate support and maintenance reaffirms that the marriage is still in tact but it offers an avenue to seek relief from the Family Court. Many times the sole reason someone chooses to file for separate support and maintenance because they do not have enough proof to prove a ground for divorce. But there are some other very valid reasons you may choose to seek a decree of separate support and maintenance in lieu of a divorce.
- You don't want to be divorced. You may have religious beliefs or other reasons for not wanting to be divorced, but you still don't feel like you can make the marriage work. In that case you may choose to file for separate support and maintenance to make sure you receive spousal support and get a proper custody order in place.
- Social Security Benefits. I see the confusion on your face. Federal law states that at the appropriate age a spouse or former spouse can choose to collect the Social Security benefits they are entitled to as a result of their employment history. But, if you have been married for a period of ten years or more you may elect to receive Social Security benefits at your spouse's or former spouse's level. This has no impact on the amount of the benefit they receive. Essentially, this makes sure that even a stay-at-home parent who never worked during the marriage can receive at least a minimal level of existence in retirement. Some couples may choose to remain married by filing for separate support and maintenance to make sure they reach this ten year threshold.
- Health Care. Every year health care gets more expensive and obtaining medical insurance coverage for many Americans is extremely taxing on their budget. You may be lucky enough to be married to someone who works for a great company that still provides excellent health care plans for their employees. But, a majority of the time a divorce would nix any access you have to your spouses insurance. But, since you are still married at the conclusion of a separate support and maintenance action you are able to remain on your spouse's employer-provided insurance policy.
Establishing Paternity of a Child born During a Marriage
So what happens when a couple is married but the wife becomes pregnant by another man? When a child is conceived during a marriage - even if the divorce is finalized prior to the birth - the husband, not the biological father, is considered to be the legal father of the child. This has far reaching effects.One of the more emotional issues comes out first - while still at the hospital, after the child is born, the mother finds out she cannot list the biological father on the child's birth certificate as the father.Second, the husband is the "legal father" and will be legally responsible to provide financial support to the mother for the child.Third, the child will inherit from the husband - not the biological father - and the husband will inherit from the child in the event of one of their deaths.So what can be done? The legal process to establish paternity in South Carolina is somewhat tedious. It requires a lawsuit to be filed in Family Court with the mother, legal father and the assumed biological father as parties. SC Code §63-17-10(E) requires a Guardian ad Litem to be appointed to represent the child. Paternity can be established by providing evidence of genetic testing, a signed voluntary acknowledgement of paternity, or a birth certificate signed by the mother and the putative father. The Court can even go as far as "viewing" the child looking for evidence of physical features that might help identify the father.Upon reaching a determination of paternity, the Family Court can order that the biological father be listed on the child's birth certificate, order the biological father to be responsible for financial support for the child, and can free the original legal father from any further legal responsibility for the child.
What is a parenting plan
Recently, South Carolina Family Courts started requiring parents involved in contested child custody actions to prepare and present a parenting plan to the Court at hearings. So what is a parenting plan? Essentially, the parenting plan is each parent's proposed plan that answers the questions about who they propose would have custody (father, mother, or some form of joint custody), how decisions will be made for the children going forward, and a placement plan that describes the time that the children will spend with each parent.Attached is a PDF version of the parenting plan used in South Carolina Family Courts.
What Impact will Adultery Have?
When consulting with potential clients about their divorce, I am often asked the following hypothetical question:
I would like to start dating again. What impact will it have on my case if I start seeing someone?
In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?
1. Divorce
The first place you should look is at the grounds for divorce. SC Code §20-3-10(1) allows for a divorce on the grounds for adultery. I wrote about the proof required for establishing a case of adultery in a previous post. By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.Most of the potential clients I meet with wouldn't have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.
2. Alimony
The second major issue deals with alimony. SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case. Subsection 10 of that section states that, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage[.]" Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship. See SC Code §20-3-130(A), "No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties."
3. Property/Debt Division
The third area to consider is the area of property and debt division. SC Code §20-3-620(B)(2) states, "marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:(a) entry of a pendente lite order in a divorce or separate maintenance action;(b) formal signing of a written property or marital settlement agreement; or(c) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties[.]"So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.
Ten Facts about Adoption-Related Tax Savings
Adoptions are an exciting time in a family, but they can also be extremely expensive. If you recently adopted or attempted to adopt a child, you may be eligible for a tax credit. You may also be eligible to exclude some of your income from tax. The IRS has recently released a list of 10 Facts about Adoption-related expenses and how they can impact your tax bottom line.1. The maximum adoption tax credit and exclusion for 2012 is $12,650 per eligible child.2. To be eligible, a child must generally be under 18 years old. There is an exception to this rule for children who are physically or mentally unable to care for themselves.3. For 2012, the tax credit is nonrefundable. This means that, while the credit may reduce your tax to zero, you cannot receive any additional amount in the form of a refund.4. If your credit exceeds your tax, you may be able to carryforward the unused credit. This means that if you have an unused credit amount in 2012, you can use it to reduce your taxes for 2013. You can carryover an unused credit for up to five years or until you fully use the credit, whichever comes first.5. Use Form 8839, Qualified Adoption Expenses, to claim the adoption credit and exclusion. Although you cannot file your tax return with Form 8839 electronically, the IRS encourages you to use e-file software to prepare your return. E-file makes tax preparation easier and accurate. You can then print and mail your paper federal tax return to the IRS.6. Adoption expenses must directly relate to the legal adoption of the child and they must be reasonable and necessary. Expenses that qualify include adoption fees, court costs, attorney fees and travel costs.7. If you adopted an eligible U.S. child with special needs and the adoption is final, a special rule applies. You may be able to take the tax credit even if you did not pay any qualified adoption expenses. See the instructions for Form 8839 for more information about this rule.8. If your employer has a written qualified adoption assistance program, you may be eligible to exclude some of your income from tax.9. Depending on the adoption’s cost, you may be able to claim both the tax credit and the exclusion. However, you cannot claim both a credit and exclusion for the same expenses. This rule prevents you from claiming both tax benefits for the same expense.10. The credit and exclusion are subject to income limitations. The limits may reduce or eliminate the amount you can claim depending on your income.