Why do I have to complete a financial declaration?
In family court matters, most clients are asked to complete a financial declaration to present to the Court and other parties. When I make the request for my clients to complete this form, I am often met with a lot of questions and push back. The reasons vary: they think it isn't relevant because they reached an agreement, they are afraid that a judge will change their agreement because of what is shown on the financial declaration (good or bad), or they may just value their privacy. So why do you have to complete a financial declaration?
Rule 20 of the South Carolina Family Court Rules states that whenever the financial condition of a party is relevant or is an issue to be considered by the court a financial declaration (on the court form) must be served and filed by all parties. The rule requires filing and service prior to the first hearing (which is normally a temporary hearing) or within 45 days of filing.You will be asked to complete a financial declaration whenever your financial condition is relevant or one of the issues being considered by the court. In almost all circumstances, this will be required. When there are minor children, financial declarations will be required when considering child support. If alimony is an issue, the financial situation of the parties is certainly relevant. Even if there are no child support or alimony issues, but the parties are dividing assets/debts as part of their divorce the financial declaration will be required. Many judges will require a financial declaration even in the simplest of divorce cases.Many people complete these financial very quickly without giving it much thought, but that can be very dangerous. When presenting this information to the court, it is very important to remember a couple of things. First, this document is one of the most important documents that the court will consider when determining the financial issues in your case. Second, you are signing this document in the presence of a notary. This is a sworn document and is the same as if you were testifying in front of a judge in open court. That means it is subject to the same penalties as perjured testimony in court.
Where do I file my divorce?
When you are preparing to file for a divorce most people would like to file it in the county/court most convenient to them, but that is not always proper or allowed. When considering the proper county for filing your divorce you are considering the proper "venue". In South Carolina, the proper venue is determined by SC Code §20-3-60.
South Carolina law requires divorce and separate support and maintenance actions to be filed in the county
- where the Defendant resides at the time of filing your divorce case;
- where the Plaintiff resides if the Defendant lives out of state or if the Defendant cannot be found; or,
- where the Plaintiff and Defendant last resided as husband and wife - unless the Plaintiff is not a resident of the State of South Carolina. In that case the divorce must be filed in the county where the Defendant is living.
So you can see that the Plaintiff cannot necessarily file the divorce in the most convenient forum. They must follow these rules. Here are some examples:
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff remains in Greenville County and Defendant moved to Horry County. Plaintiff may file for the divorce in either Greenville County or Horry County because that satisfies paragraph 1 and 3, above.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in North Carolina. Defendant has moved to Spartanburg County. Plaintiff must file for the divorce in Spartanburg County since that is where the Defendant is now living.
- Plaintiff and Defendant lived together in Greenville County before they separated. Plaintiff now resides in Greenville County. Defendant resides in New Mexico. Plaintiff must file in Greenville County since the Defendant resides out of state.
Do We Have to Separate and if I do, will I lose any rights?
Question: My spouse is threatening to sue me for abandonment if I leave and telling me that I won't get anything from the home if I leave the home. Our marriage is over and I cannot stay there any longer. Can I leave the home or am I required to stay? 
Answer:This is a very common threat in divorce matters. The fear of the unknown and a lack of understanding of the law keeps people together - even in dangerous or abusive situations. So, let's look a little deeper. Is is okay to leave the home or will you forfeit some rights if you move out?I'll start out by saying that the implications of moving out first can be far-reaching so you should definitely consult with a lawyer in your area about the specifics of your case to determine how this may affect you.In general, South Carolina law requires you to live separate and apart from one another to file for divorce on the grounds of continuous separation for more than one year (the South Carolina no fault divorce ground), desertion, and for separate support and maintenance (similar to a legal separation in other states). In 2011 the South Carolina Supreme Court clarified this in Theisen v. Theisen, 394 S.C. 434, 716 S.E.2d 271 (2011). It is possible to file for a divorce based on habitual drunkenness, adultery, and physical abuse while still remaining in the same home.So, it is possible to file some actions before you separate, but other actions require the separation. So, when your spouse says that they will file for abandonment if you move out, that is usually a trumped up threat than cannot be backed up. South Carolina law requires a physical separation in many cases.Now, can you forfeit rights by moving out? This is always a risk on a temporary basis. The issue is usually that you are seeking custody of the children and need to file for the divorce or separation but your spouse refuses to move out. Sometimes your only option may be to move out so the court has jurisdiction to decide your case. But, many times the judge may decide that the party who moved out chose not to live in the former marital home and may not allow them to return. But, this is a temporary decision. In the overall division and apportionment of the marital assets/debts it will not matter which spouse moves out initially.Without moving out of the home you could attempt to come up with facts sufficient to claim a fault-based divorce ground to keep you from having to move out. Many times this will lead people to making trumped up claims of fault with no real evidence and make the case more contested and more difficult to resolved by settlement later on.Like I stated before, the specific facts of your case may make your decision easier to make. Please consult with a lawyer in your area to find out more. I would be more than happy to schedule a time for us to discuss your divorce or separation case.
South Carolina Child Custody
If you are facing a separation/divorce matter or you are aren't married but have children with someone and you are considering separating you most likely have many questions related to the child custody laws in South Carolina, how things will look when you separate, and what you can expect when it comes to time and responsibility for your children. When you discuss things with friends who have "been there, done that" or you begin your research online you hear lots of terms. Many of them are confusing or seem contradictory.When it comes to custody of children I encourage people to ignore general words like sole custody, joint custody, shared custody and consider two things: (1) the time with their children and (2) the responsibility and decision-making for the children. Let's look at each individually.
Time with your children
The SC Code identifies two types of custody in §63-15-210: joint custody and sole custody. These terms really have nothing to do with the time you have with your children. The court may identify a parent to be the "primary" parent for issues such as school assignments but that doesn't mean that one parent has the child the majority of the time.In a child custody case - and primarily while being negotiated by the parties - an agreement can be reached that resolves the time with each parent issue in creative ways. The parents may agree to divide the weeks equally, alternate weekly, have the child live with one parent the majority of the time and available when the other parent is off of work, and countless other options. Judges are even beginning to stray from the old every other weekend mentality by extending those weekends and adding more off-week time with the children and the non-custodial parent.All of that to say: don't assume one parent has to have the children the majority of the time and the other parent has to settle for alternating weekends.
Responsibility and Decision-making for the children
South Carolina custody laws set forth two types of legal custody: joint custody and sole custody. These specifically related to the responsibility and decision-making for the children. §63-15-210 defines joint custody when parents have equal rights and responsibilities for major decisions concerning the children. This can work in many cases, but can also be a bad decision for other parents who simply can not co-parent and work together. The court can designate one parent to be the primary decision-maker for several or all issues including the children's health, education, religious upbringing and general wellbeing. The court can also So in the event the parents cannot agree to a final decision one of them can make a decision. This primary decision making can also be broken up between the parents where one parent is the primary decision-maker for health and religious issues and the other would be the primary decision-maker for educational issues. Even in instances where there is a primary decision-maker, the requirement is still there for the parties to confer jointly in the decision-making process. The primary decision-maker does not have the right to make all of the decisions without conferring with the other parent.In the case of sole legal custody of the children the custodial parent has the legal authority to make all of the decisions for the children without the input or opinion of the other parent. In cases where one parent has not been involved in the life of the children or the parents simply cannot put aside their differences and work together to co-parent, this is the most likely outcome in a custody case.
Alimony in South Carolina
Alimony is a hot topic in many South Carolina divorce cases, but many times spouses ask for it in order to punish their spouse for some bad deeds committed during the marriage. So what is alimony?Alimony is defined as "a substitute for the support which is normally incident to the marital relationship" Lide v. Lide, 277 SC 155 (1981). What does that mean? It means that while the couple is together they have some expectation that there is some mutual financial support for the marriage. When the marriage is ending and the parties separate alimony helps the spouse with the smaller income to have a similar lifestyle to that which he/she became accustomed to during the marriage.SC Code §20-3-130(A) states that the Family Court may award alimony "in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case". Essentially what that means is that the Family Court Judge who is deciding the case has a lot of discretion to determine the amount of alimony that is awarded. Unlike child support, there is no calculator or formula for the court to use to determine an amount.
Types of Alimony
In general, the statute outlines four different types of alimony that can be awarded by the Court in SC Code §20-3-130(B):(1) Periodic alimony. This is alimony that is paid every month on an ongoing basis and is generally thought to be permanent. This type of alimony will only end when the receiving spouse remarries or on their continued cohabitation or either spouse dies. This alimony therefore may be terminated and is modifiable upon a showing of a substantial change in circumstances.(2) Lump-sum alimony is a set amount of money that is paid as alimony and not as a property division. It can be paid in one lump sum or it can be paid out in installments over time, but the end amount that is paid is fixed. For example, Husband agrees to pay Wife the sum of $100,000 in lump sum alimony. He can write her a check for $100,000 or they could agree for him to pay $10,000 per month for 10 months. This type of alimony is not modifiable and is only terminable upon the death of the supported spouse.(3) Rehabilitative alimony is another fixed sum of alimony that is paid in installments and is used in many cases to help the supported spouse financially while he/she obtains new training or completes their education that will allow them to become self-supporting. This type of alimony is terminable on the remarriage or continued cohabitation of the supported spouse and the death of either spouse, or when a certain event happens in the future (e.g. the supported spouse graduates from college). This type of alimony is also modifiable when an unforeseen event occurs that prevents the supported spouse from becoming self-supporting or if it frustrates the ability of the supporting spouse to continue to pay.(4) Reimbursement alimony can be paid in a lump sum or in installments and will end on the remarriage or continued cohabitation of the supported spouse, or upon the death of either spouse. This alimony will not end and cannot be modified based upon changed circumstances in the future. The statute describes this form of alimony as an options the the Court believes it is "desirable to reimburse the supported spouse from the future earnings of the payor spouse based upon circumstances or events that occurred during the marriage." A good example of this is when one spouse dutifully supports the other spouse as they go through medical school. Once the doctor spouse graduates from medical school and begins to earn some substantial income he/she decides to divorce the spouse that supported him/her through school. This allows the non-doctor spouse the opportunity to benefit from the investment they made into the family's future income.
Factors Considered by the Family Court to Determine Alimony in South Carolina
SC Code §20-3-130(C) sets forth the factors that the Family Court must consider when determining whether to award alimony and how much alimony should be awarded:(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;(2) the physical and emotional condition of each spouse;(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential;(4) the employment history and earning potential of each spouse;(5) the standard of living established during the marriage;(6) the current and reasonably anticipated earnings of both spouses;(7) the current and reasonably anticipated expenses and needs of both spouses;(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;(10) 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, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) 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;(11) the tax consequences to each party as a result of the particular form of support awarded;(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and(13) such other factors the court considers relevant.
