What should I expect at the initial consultation with my divorce lawyer?
When you meet with a lawyer to discuss your divorce case you want to know something tangible. You have hundreds of questions and worries floating around in your head. How much with this cost? What is the worst case scenario? Will I lose my kids? How long with this take? And many more.The initial consultation is a time for you and the lawyer to get to know more about one another. Your lawyer will likely ask you to complete a new client intake form. This will ask information about you such as your address, date of birth and other personal information. It will likely as for the same information about your spouse.Many forms also request information about the marriage such as the date of marriage, when you separated, the reason for the separation, number of children born during the marriage, and it will ask for what you are seeking in the divorce. For example, do you want sole custody of the children? Are you seeking a divorce on adultery or some other fault-based ground? Are there assets and debts that need to be divided between you and your husband?This will help the lawyer to understand the level of complexity involved in the case. Also, knowing the issues important to you, he can give you some direction about the law in those areas and can provide an overview of how the process works.Your lawyer cannot provide you with an exact game plan, certain results or even really exact legal advice at this time. Great legal advice is based on knowing all of the specific facts of your case and there is usually not enough time to uncover all of that at an initial consultation.Think of the initial consultation as an interview. All lawyers are ethically required to be competent in the areas they practice in, but that doesn’t mean all lawyers are equal. Your personality will mesh with some lawyers and clash with others. And, while lawyers love being retained for new cases, they don’t accept every case that comes through their doors. So, understand that while you are determining if you can work with this lawyer, he is also trying to determine if he can work with you.So, at your initial consultation you should be looking to determine if this is a lawyer you feel has the knowledge necessary to provide you with the representation you need and if he is someone you feel comfortable working with. Don’t select a lawyer just because that’s who your friend or family member used. You should also try to get some questions answered, but understand that oftentimes at this stage of your case there is simply not enough information available for you to receive an exact answer. The answer you receive will likely be qualified with lots of “ifs” based on how the facts play out.
When should you seek modification of your child support?
A while back, I made a rare visit to the county jail to meet with a client. Several years ago, he and his former wife reached an agreement in their divorce about custody, visitation and child support. Things were pretty good – as far as divorces go.Fast forward a few years…his dependable job and income went away with the recession along with his income. He wasn’t able to keep his bills current and he quickly fell behind in his child support. He kept in contact with his former wife and did other things to try to help when he couldn’t make a child support payment. But he continued to fall further and further behind.One day, his wife had enough and filed a Rule to Show Cause with the Family Court because my client had fallen nearly $20,000 behind in his support.At the rule to show cause hearing the presiding judge found him to be in willful contempt of court, sentenced him to 90 days in county jail, ordered him to pay all of his former wife’s attorney fees, and before he could purge his jail sentence he would have had to pay all of the arrears and attorney fees. To add insult to injury, even after finishing the jail sentence, he will still owe the arrears and his new support payments will include some extra amount to be applied to his child support arrears.He never called a lawyer until he had been served with the contempt complaint. Even when served with the complaint he failed to make an appointment to discuss the case and did not take a lawyer with him to the rule to show cause hearing. He did retain me after being sentenced to jail. At that point we had very limited options to get him out of jail, get the future child support worked out, and get some of the arrears paid for, and to pay for his former wife's attorney fees. They really had a lot of leverage.
So, what should he have done?
Any issue related to children: custody, visitation and child support - are subject to modification by the Family Court upon a showing of a substantial change in circumstances. This particular client should have consulted with a lawyer as soon as he lost his job and especially after he was unable to quickly find a new job. It only worked against him to continue to fall further and further behind. Rather than looking out for himself, it looked like he was a deadbeat dad and didn't care about supporting his children.If you find yourself falling behind in child support, meet with a lawyer now. You should obtain some legal advice about your options. If you like, you can set up a consultation to discuss your case now.
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.