South Carolina Divorce and Family Law » Family Law 101

“Just Right”: A parable of neckties and communicating with your lawyer

Tripp — Fri, 30 Jul 2010 21:43:40 +0000

This morning I was putting on a tie. It’s a court day that means suit and tie. I was feeling good so I went for the dark gray suit, white shirt (with my initials on the cuff) and the red tie. My power suit. I threw the tie around my neck, passed it over itself a couple of times and pulled it tight. It was a little long and hung down way too low. So I untied it, made a few adjustments and went back to work tying it again. This time – too short. I was frustrated. Having a tie that is tied too long is okay, especially if you are going to wear a coat to cover it up, but a tie that is too short just looks tacky and odd. It’s just an inch or two either way but looks bad nonetheless. But as we work on tying the tie several times we find out where we need to position the tie so that we can get it tied “just right.” The more information we learn the better off we are (we look).

So what does this have to do with your family law case or litigation in general? The more information you share with your attorney about yourself and the issues involved in your case the better off you are going to be. Sometimes clients don’t share some of the bad information with their attorney because they are afraid it will hurt their case. They “forget” about their criminal background, that they were abusive to the children, that they had addictive tendencies, that they didn’t do what they were previously ordered to do and so on. They hope everyone else forgets about these things too. The truth is the opposing side in your litigation does not forget about those things. They want to use it against you in the litigation. When you fail to share that information with your lawyer, he has no way to prepare a defense. Now, your worries have come to reality. You were scared that this information would hurt your case and it has, two-fold. Not only has the other side used the information against you, but because you withheld it from your lawyer you have prevented him from being able to mitigate the damage that it causes.

Back to the necktie: the more information your lawyer has about your case the better job he can do in presenting it to the court on your behalf.

Who’s In the Court Room?

Tripp — Wed, 14 Jul 2010 12:37:27 +0000

One of the concerns I hear from clients as we are preparing for both contested and uncontested divorce hearing is who is going to be in the court room with us? Family Courts, except for cases like child abuse and neglect matters, are open to the public and that means any one could be sitting in on your hearing.

The reality is that in nearly every case you will only find a handful of people in the courtroom with you:

Family Court Judge
Court Report – the person who is recording everything that is being said in the courtroom to keep an exact record of what is happening in there.
Deputy/Bailiff
Lawyers
Parties
Witnesses

That’s pretty much it. Occasionally, a law student, newly minted lawyer, or paralegal student will be observing cases as part of a class assignment or bar requirement to practice.

What Happens After my Temporary Hearing?

Tripp — Thu, 08 Apr 2010 19:59:20 +0000

A temporary hearing in a divorce case can set the tone for the rest of the matter. It is probably good to note right here that the decision made by a judge at a temporary hearing is temporary in nature (hence the name) and it carries no weight as far as what the trial judge may or may not rule on. Therefore, if you are ruled against at the temporary hearing it isn’t the end of the world. However, when a judge rules for or against a person at a temporary hearing it seems to give each party some false sense of power or weakness in the case.

After your temporary hearing a temporary order will be prepared and signed by the judge and that sets the standard of conduct for the remainder of the litigation. Generally, in this period between the temporary hearing and the final hearing the parties will engage in discovery, potentially take depositions of key witnesses, mediate the case, and attempt to reach a negotiated settlement. If there are minor children involved, a guardian ad litem will be appointed who will perform an investigation into the issues surrounding the minor children.

This process can take several months. Often, depending on the complexity of the case, it can last over a year. The final phase before the final hearing is the trial preparation phase where you and your lawyer will be preparing for trial by meeting with witnesses, preparing any necessary witness subpoenas, creating trial exhibits, etc. All of this leads up to the final hearing in your case.

Do You Get a Free Lawyer for Your Child Support Contempt Hearing?

Tripp — Thu, 01 Apr 2010 21:04:01 +0000

One question I hear frequently is whether you can get a court-appointed attorney in your divorce or child support case. The answer is no. There is no constitutional right to have an attorney provided for you in a private family court matter like there is in a criminal prosecution or even in a DSS abuse and neglect case. This issue recently was before the South Carolina Supreme Court in Rebecca Price v. Michael D. Turner.

In this case a father had previously been ordered to pay child support for his children and had not made a payment in over a year and a half. He was over $6,000.00 behind in his child support payments and the Court “ruled him in.” Basically, when a non-custodial parent is ordered to pay child support through the family court the clerk of court monitors the cases and requires any person not paying on time to come to court and tell the judge their reason for not paying as ordered. Mr. Turner’s excuses were that his failure to pay was due to incarceration, drug addiction, unemployment, and injury. At a hearing like this the defendant could be sentenced to one year in jail for civil contempt of court. In Price v. Turner, the defendant was sentenced to one year in jail, but he could get out of jail sooner if he paid the total child support arrears that he owed. Mr. Turner appealed this ruling because he did not have an attorney present at the hearing and he asserted that he has a constitutional right under the Sixth and Fourteenth Amendments of the U.S. Constitution.

The SC Supreme Court held that there is no right to legal counsel for a civil contempt case. The difference between civil contempt and criminal contempt is that the person sentenced to incarceration for civil contempt can purge their prison sentence by doing the activity that they previously refused to – in this case, pay child support. In the case of criminal contempt, you cannot purge your jail sentence – you must serve the sentenced time in jail.

If you find yourself in the position that you are behind on child support and you are going to a Rule to Show Cause (contempt) hearing in the Family Court, you will not be offered to have a court appointed attorney represent you so you should either be prepared to represent yourself or retain a lawyer to defend you prior to your hearing.

Filing Bankruptcy Can Improve Your Family Life

Tripp — Wed, 03 Mar 2010 17:42:31 +0000

Parenting and stress go hand-in-hand. Mix in being buried in debt, and the financial pressures can begin taking a toll on your family, your health, and your emotional well-being.

Going through tough financial times increases tension within the family and interferes with your relationship with your children and your spouse. Don’t let the situation make you feel cut off from your family.

Parenting is all about teaching your children. Share financial issues with your children much as you can, depending on their age. Opening up the lines of communication will not only keep you connected to them, but may also provide an opportunity to teach them about finances.

When you first realize you are in over your head and can’t make your payments, contact your creditors and try to negotiate repayment plans with you. Unfortunately, this is easier said than done.

If you can’t restructure your debts, you should explore bankruptcy to relieve your financial stress. Bankruptcy was designed to help individuals stabilize their finances and get out from under their financial burden by protecting their property, lowering their stress levels, and allowing them to sleep at night.

Keep in mind that filing bankruptcy is not the problem. The problem is not being able to pay your bills and not being able to provide for your family. This financial pressure causes the stress and anxiety to build. All this spills over into your family relationships.

To decide whether bankruptcy is right for you, contact an experienced bankruptcy lawyer who can help you navigate the complicated bankruptcy process and advise you about whether Chapter 7 (“straight bankruptcy”) or Chapter 13 (“reorganization bankruptcy”) is best for you.

Once you have gone through the bankruptcy process, rejoice in new beginnings. You went through bankruptcy to get to a fresh start. Now, begin by developing a sound financial plan that will protect your finances and your sanity. Establish a savings plan that will allow you to better absorb financial strain and plan for your family’s future. Once your present situation is under control, you can begin to look to the future and set aside money for your financial goals.

But What If I’m Getting a Divorce?

Sometimes divorce is inevitable. I practiced family law for ten years, so I know that debt not only can cause divorce but can also cause divorce proceedings to be more difficult than they would otherwise be.

She says he spent too much. He says she spent too much. And neither can afford the credit card payments. The divorce case can come to standstill over debt.

If that’s the case, both spouses should consider bankruptcy. Getting rid of debt means one less thing to fight over, and that’s a good thing for your divorce case.

If you are married, you can file a joint bankruptcy case with your spouse. Depending on your situation, you may even be able to use the same bankruptcy lawyer to do this. Much hinges on whether there is any conflict of interest in having the same attorney represent you in your bankruptcy case—and that depends on the facts of your case.

By using bankruptcy to get your financial house in order, you can reduce your stress, enjoy time with your family, and free up your mind to start planning for your future.

Russell A. DeMott is a Charleston, South Carolina bankruptcy lawyer.

Most Popular Posts of February 2010

Tripp — Tue, 02 Mar 2010 03:49:39 +0000

In case you missed them, here were the most popular South Carolina divorce and family law blog posts of February 2010:

The Lawyer’s 2 Hats: Advocate and Counselor

Tripp — Wed, 10 Feb 2010 12:00:45 +0000

I guess I’ve always known it. Though, they don’t really teach it in law school. When you think of a lawyer, you think of the person who is going to stand beside you in the courtroom and zealously represent you. You think of the bulldog. The person who has only your interest in mind. That’s the advocate. That is just one part of your attorney.

The other hat your attorney wears is that of counselor. This is the hard part for lawyers. You have to be able to deliver bad news to your client. You have to help clients when the judge does not order something in their favor. Clients don’t like the counselor. This part is hard. But it is also extremely important. A lawyer needs to be able to discuss your case openly with you. It is important that they discuss the pros and cons of your case. In family law, as with almost any other area of the law, things are gray. There is not one “right” answer but many workable answers. So many factors play into a court decision and what could happen in the case. A client should know where their case is strong and where it is weak or there is no way they can effectively resolve their case.

So, as a client, don’t get mad when your lawyer discusses the weak parts of your case with you. He isn’t on your spouse’s side when he does this, he is just making sure you know the good and bad of your case and how the law applies to it. Of course, when it comes time to put on the suit and head to the courthouse, your lawyer is going to do all he can to be your advocate and highlight the “highlights” of your case.

When Will my South Carolina Divorce be Final?

Tripp — Thu, 07 Jan 2010 14:44:46 +0000

One of the questions we have discussed on this blog is how long with my divorce case. Another related question is when will my divorce be final. In many states there is a waiting period for the divorce to be finalized following a trial. However, in South Carolina there is no waiting period for the divorce to be finalized after the final hearing. For your divorce to be final in South Carolina the judge has to sign your divorce decree and the decree must be filed in the Family Court clerk of court’s office. After it has been signed and filed with the clerk of court your divorce will be final. Many times this happens on the day of the final hearing, especially if your case is an uncontested divorce. If your divorce case is contested and goes to a trial it may take several weeks for the order to be sent to the judge because one of the lawyers will prepare the order and send it over to the other lawyer for his review. They will go back and forth until they can agree on particular wording for the order and then it is submitted to the Judge for his/her review.

Can I Get a Divorce in South Carolina if I was Married in Another State?

Tripp — Tue, 05 Jan 2010 17:12:08 +0000

In order for you to obtain a divorce in South Carolina, the South Carolina Family Court must have jurisdiction of your case before it can hear the case and make a ruling on it. The South Carolina Family Court is a court born out of statute, therefore it has limited jurisdiction. The Family Court can hear and decide cases involving all types of marital litigation and disputes between spouses involving children, termination of parental rights, custody, visitaiton, child support, alimony and spousal support, and division of marital property.

In order for you to file for divorce in South Carolina you will be required to be a resident of South Carolina. You cannot file for divorce in South Carolina unless the plaintiff or defendant in the divorce case has been a resident of the state for certain periods of time. If the defendant does not live in South Carolina, the plaintiff must have resided within the state for at least one year. If the plaintiff is a non-resident, the defendant must have resided in South Carolina for at least one year. If both parties are residents of South Carolina, plaintiff must have only resided in South Carolina for three months prior to filing for divorce.

So, depending on where your spouse lives, you or he/she will have to be a resident of South Carolina for a certain amount of time before you can file for divorce here no matter where you and your spouse were married.

Proving You’ve Been Separated for More than 1 year

Tripp — Wed, 30 Dec 2009 12:32:15 +0000

When you have filed for an uncontested divorce in South Carolina usually the no-fault ground of more than one year’s continuous separation is used as the ground for divorce. This means that you and your spouse have not resided together in the same residence for more than one year. I am questioned by clients about how they are going to prove this. Sometimes, in counseling a client who is considering leaving their spouse, they want to know what they should do to make sure that once their one year passes they will not have to worry about their spouse being about to avoid the divorce by proving they have not lived separate and apart for more than one year.

In a typical case, a witness who is at least 18 years old and has known the parties for more than one year is used to testify about the length of separation and that they are confident that the parties have not lived together in more than one year. Their testimony could include that they call or visit one spouse on a regular basis and the other spouse is never present and it does not appear that the other spouse is residing in the home. It is also nice to have testimony from the witness stating that they are confident that they know the parties (or one of the parties) well enough that if the couple had gotten back together they would know about.

Unless the other party can prove that you have lived together in the last year you will not need any more than that to prove separation or the date of separation so it is usually not necessary for you to have a copy of the receipt from the hotel you booked the night you moved out.