Potential Income Used for Calculating Child Support
Sometimes potential clients for issues of alimony or child support ask about what would happen if their spouse quit their job or was fired or laid off and their income dramatically changed. Typically, the other spouse threatens you by saying if you file for child support or alimony I will just quit my job and you won't get any money from me. Sometimes, the threat may be to just quit working the consistent overtime hours that are always available to significantly reduce the payor spouse's income.Last year I represented a client whose husband of 30 years abruptly left the home, quit his job that paid over $100,000 per year, and moved out of state in an effort to avoid having to pay his wife alimony. She came in very concerned that she would not be provided for financially. Here's what we discussed:
Potential Income Used in Calculation of Child Support
The South Carolina Child Support Guidelines set out the following as it relates to potential income:"If the court finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income which would otherwise ordinarily be available to the parent.""In order to impute income to a parent who is unemployed or underemployed, the court should determine the employment potential and probable earnings level of the parent based on that parent's recent work history, occupational qualifications, and prevailing job opportunities and earning levels in the community."This means that a party who the Court finds has greater potential income than they are showing at that time due to intentionally quitting his/her job (or somehow have their income reported as much lower than normal) during the time that a child support matter is ongoing the Court may calculate the child support as if the payor spouse was still making the larger amount of money.
Potential Income Used For Calculation of Alimony
When a Court is determining whether to award alimony to a spouse in South Carolina, they refer to the statute that sets out the factors for the court to consider. After weighing all of the factors, the court will have a lot of discretion in determining the amount of alimony to award. Among the 13 factors outlined in SC Code §20-3-130(c), sub-paragraph 4 states that the Court must consider, "the employment history and earning potential of each spouse".So, if your spouse threatens to quit his/her job to reduce the amount of alimony he/she would otherwise have to pay, you can be sure the Court will consider that in the alimony determination.
5 Reasons to Mediate Your Divorce
South Carolina Family Courts will all soon require you to mediate your divorce case before you can have a final hearing. Many clients look at this as just another way to feed the system, just one more thing to do before we can resolve the case, and just one more waste of time. If this is your attitude, let me encourage you to look on the bright side of mediation.
1. Proximity
Mediation gets all of the decision-makers together under one roof. Depending on your mediator, you likely won't share a conference room, but you will be just down the hall from one another and having everyone in the same place at the same time cuts down many barriers that people like to hide behind.
2. Control
This will be one of, if not the, final times you have any control over the outcome of your case. A mediator is not a judge. He will not sit in with you and your spouse, listen to both sides, and render a verdict. In fact, that is what you are trying to avoid. You and your spouse are the only ones who truly know all of the facts and circumstances of your marriage and divorce. Who better to decide the outcome, right? The other option is for you to spend a day or more in trial, presenting your facts to a judge who knows nothing about you and your spouse (really, he knows what he hears during the case and he may have a totally different impression of the facts than you do) and hoping the judge rules in a favorable way to you.One thing I like to tell parties as they enter a mediation is that since they are in control of crafting the outcome, they can be creative in how things are resolved and can specifically tailor the result to their lives. If they leave it up to a judge, the judge will be pigeonholed by state law and public policy and will be less creative with his ruling.
3. (More) Affordable
I know you probably look at mediation as another person with their hand out. This is another lawyer who gets to charge you $200 per hour and has no interest in the outcome of the case. I want to encourage you that this is a great opportunity to save a lot of money. While your mediator may charge $200 per hour (with each party responsible for half) and you are paying your lawyers to be there, the alternative if to schedule a trial with the court that could last a day or longer and pay your lawyer to prepare and represent you in trial, and to pay your expert witnesses and other subpoena fees.Let's do some quick math. For this example let's assume your lawyer's hourly rate is $200 per hour.A one day trial will cost you:6 hours of court x your lawyer's hourly rate of $200 = $1,200 for court.Your lawyer probably spent 3 hours preparing for every hour of court time so that's 18 hours x $200 per hour = $3,600.00That's nearly $5,000 for the privilege of having your case decided by a judge.That compared with the $400 or so you could have spent on a mediator.
4. Time
If you successfully mediate your divorce, you will only need a short hearing (15 minutes or so) to finalize the divorce and seek approval of the mediated agreement. This can typically be heard by the court within 4-6 weeks. If, you don't reach an agreement and an extended trial is necessary it can take months or years for your case to be heard.
5. The Process is Less Adversarial
The divorce process is typically pretty hostile and not a lot of fun. If you think getting served and reading your spouse's pleadings or affidavits was a drag, wait until you get cross-examined by his lawyer during the trial. It's really no fun. The process is grueling, demanding, and can lead to spouses disliking one another even more. When there are children involved it is important to retain some ability to communicate and work together. By working together to resolve the divorce through mediation you cut out additional opportunities for each spouse to throw mud and fire at the other and to damage the future relationship and ability to co-parent the children. Mediation opens the lines of communication up between the parties so the conversation is less posturing and more successful in making progress to end the litigation.
I Saw Mommy Kissing Santa Claus: Is an Eyewitness Necessary to Prove Adultery in South Carolina?
To obtain a divorce on adultery grounds you will need more evidence than telephone records and e-mails. But, you don’t need an explicit sex tape, a pregnancy, or an eyewitness to prove your case for adultery.In Prevatte v. Prevatte (297 SC 345), our Court stated, “Because adultery, by its very nature, is an activity which takes place in private, it may be proved by circumstantial evidence.”Sufficient proof of adultery must establish that your spouse had motive and opportunity to have an affair. Proof of motive shows there is a romantic relationship your spouse is involved in. Proof of a date with another person, holding hands while walking through the park, telephone records showing numerous calls and text messages to one another. That’s motive.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.
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.