What do I do about custody, visitation, property, and other issues while the divorce is proceeding?
Oftentimes, there are issues that must be addressed early on in a case. Some of those issues include custody of minor children, child support, visitation, determining who gets to reside in the marital home and spousal support. This relief comes through a Temporary Order. Either party may file what is called a Motion for Temporary Relief. Once filed, a hearing will be scheduled and the motion must be served on your spouse at least five business days prior to the hearing. South Carolina Family Court Rule 21 states that the only evidence the Judge will consider at the temporary hearing will be: "pleadings, affidavits, and financial declarations".These hearings are short. They are typically scheduled to last approximately 15 minutes. At the conclusion of the hearing the Judge will issue his or her ruling which will become the Temporary Order. This order will remain in place throughout the pendency of the case; however, it is important to note that this order has no effect on the judge who hears the case at the final hearing.Because these orders may be in place for over one year, it is important that you work with your attorney from the very beginning by being honest and upfront with him/her and provide all of the documents and other affidavits they request. I have written more about Temporary Hearings and Affidavits here, here, here, here, here, here, and here.
Almost Daily Inspirational Post: Happiness
As you go through a separation or divorce mindset plays a key role in determining how you view the process, the outcome, and how you come out on the other side. I plan to begin a new series with inspirational quotes to help keep you in a great mindset as you make your way through this process. Here's today's first installment:"The happiness of your life depends on the quality of your thoughts." - Marcus AureliusYou can make the choice to harbor resentment, anger, hatred, and other negative feelings or you can choose to focus on how your are going to move forward through this process.
SC Separation and Divorce Essentials: Live Webinar
On February 26th at 12 PM, I'm hosting a free webinar about the essentials of Separation and Divorce in South Carolina, so:1. You’ll discover the basics of South Carolina separation and divorce law so you can feel confident as you enter the process.2. You'll discover the legal process and timeline so you know what to expect as you enter this journey.3. You’ll discover tips and strategies for dealing with your spouse on issues related to your separation and divorce.4. You’ll gain helpful knowledge to help make better decisions as you navigate your divorce case.5. You’ll leave this seminar knowing the right questions to ask as you begin the process of interviewing divorce attorneys.There will also be some Q&A time at the end of the webinar.If you want to join me on the webinar (or know someone who could benefit from it) here's the link where you can watch it. It's FREE and it's online so you can attend from the privacy of your home or office:http://www.upstatefamilylawblog.com/livewebinar
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.