Help! How Can I Get Started Seeking Financial Assistance from my Spouse?
Question: My husband has deserted me and refuses to help me financially. He has moved in with his mistress and won't have any contact with me! How do I file for spousal support? He is refusing to help me.Answer: You should consult with a lawyer immediately so that you can move forward with the Family Court to get some immediate relief. Unfortunately, the only way to obtain the relief you are seeking is to file an action with the Family Court for divorce/separation and request this relief through a Motion for Temporary Relief. I strongly suggest hiring a lawyer because alimony is a complex issue and there are some strict procedural rules about what the Court may consider at a temporary hearing and if you do not comply with those rules you may forfeit your rights or just plain miss out on relief you are entitled to.In South Carolina you have the option to file for divorce using one of five grounds (physical abuse, habitual drunkenness, adultery, desertion, or continuous separation for more than one year). You also have the alternative to file for separate support and maintenance which is similar to a legal separation. Those are essentially your keys to the courthouse. No matter which way you file, you will be able to ask the court to award you immediate relief such as alimony/spousal support, custody of minor children, child support, use of the marital home, health insurance coverage, etc.The family court will consider multiple factors in determining whether to award you alimony or not, and then if it does determine that you are eligible for support the Court will determine how much to award. The factors considered will be things like your ages, physical and mental health, employment history, income history, why you are currently unemployed (e.g. agreement to stay at home and raise the children), other assets you have, tax implications, length of the marriage, and a few more.As a side note and warning, I would encourage you to file something sooner rather than later. The longer you go without financial assistance from your spouse, the more it appears that it is not needed. While that is not a specific factor considered by the Court it could be relevant and a long term separation without a request for support could make it unlikely that you would be awarded support.To learn more about Temporary Hearings, check out these posts:
Divorce Process: What is a Temporary Hearing
What is a Divorce Temporary Hearing
Definition: Temporary Divorce Hearing
Temporary Hearing – What’s Next?
What Happens After my Temporary Hearing?
My Spouse Won't Leave...Can I Still File for Divorce?
When it is time for a divorce, who gets to remain in the home is often a hot issue. But what if you want a divorce and your spouse won't leave? Can you file? Are you stuck? What do you do?
Recently, this question was posted as a comment on a blog post, "I want a divorce because my husband is a verbal and physical abuser when he drunks. Be won't leave the house. Can I still file for divorce?"South Carolina has five grounds for divorce: physical abuse, habitual drunkenness, adultery, desertion, and the no fault ground of living apart continuously for a period in excess of one year. If you do not qualify for one of the fault-based grounds for divorce you could also file for separate support and maintenance.The desertion ground and no fault ground for divorce requires that you live separate and apart for more than one year. You are also required to live in separate residences to file for separate support and maintenance. So, if your circumstances fall into one of those three categories and you cannot get your spouse to leave the home, your only option will be to leave the home yourself and immediately file for separation or divorce and seek possession of the home as temporary relief at an initial hearing.If you are filing under physical abuse, habitual drunkenness, or adultery grounds you do not have to live separate and apart before filing for divorce. Under those circumstances you may file while you are still living together. But, just because you are able to do something doesn't mean it is the right course of action for you. If your spouse is verbally and physically abusive under the best circumstances, how do you think they will respond when they have been served with divorce papers? It would probably not be safe for you to remain in the home with your spouse during that time.I would suggest setting up a consultation with a divorce attorney in your area to discuss the circumstances of your case to determine if your case will qualify for one of those fault-based divorces and to come up with a strategy that will help you remain in your home, but under safe circumstances.
How do South Carolina Family Courts divide property and debts in divorce cases
There are two main division methods in divorce law nationwide: community property and equitable apportionment states. South Carolina is an equitable apportionment state. So, what does that mean?Equitable Apportionment means that South Carolina Family Courts have jurisdiction in a divorce case to divide up the marital assets and debts acquired during the marriage. Our Code of Laws state that, during a marriage, spouses acquire a special equity and ownership right in the marital property and those rights are subject to apportionment between the spouses. (See SC Code §20-3-610). To break down that definition a little further it will be helpful to define marital property. SC Code §20-3-630 defines marital property as all real and personal property acquired by the parties during the marriage which is owned as of the date of filing or commencement of marital litigation regardless of how legal title is held. So it doesn't matter that the home is only in the husband's name or that the Wife is the only spouse who contributed to a 401(k) during the marriage. Of course there are exceptions to every rule. Property obtained by inheritance, devise, bequest, or gift from a party other than the spouse, property owned prior to the marriage, and property acquired after a temporary order is entered, a marital settlement agreement is executed, or a final order of property settlement is entered. The first step the Family Court will take is to identify all of the marital property. Once the marital property has been identified the court will determine how to divide the assets between the spouses. SC Code §20-3-620 identifies 15 factors that the Family Court must consider in determining how to apportion the marital property among the spouses. Those factors include things such as the length of the marriage, the ages of the parties at the time of the marriage and at the time of the divorce, the income and income potential of each party, the marital misconduct or fault of either party (meaning someone has committed adultery, physically abused a spouse, or is addicted to narcotic drugs or alcohol), the health of the parties, the non-marital assets of the parties, and several other factors.It is not uncommon for the Family Court to issue an order of apportioning the marital property in a 50/50 (equal) manner between the spouses. But, it is not mandatory that the Family Court divide the marital property equally between spouses. In cases where one spouse contributed significantly greater in the financial area of a marriage, the court may deviate and award a greater portion of the marital estate to that spouse.
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