Should I hire a Private Investigator

The answer is…it depends.  What are the issues that you are trying to prove?  What is the investment that you will be making in the private investigator?  What do you hope to get out of the investigation?  Whenever we use the services of another professional in the divorce process it is important to determine the cost and the return on investment.

alf_privateiroiSo, what are some ways to measure your return on investment?

Alimony.  The law in South Carolina states that an adulterous affair that occurs before a couple of things happen (the signing of a marital settlement agreement or a final order of separate maintenance) is an absolute bar to alimony.  So, if you are in a position where it is likely that you will be required to pay your spouse alimony, then spending some money – even spending a lot of money – on a private investigator will provide a great return on your investment by preventing you from making an alimony payment every month for the rest of your spouse’s life if the PI can establish an adulterous affair.

Divorce.  Often adulterous relationships happen in mysterious places and in hidden locations.  These are not things most people do out in the open.  So, obtaining proof of an affair is not always easy.  If you are certain that you want to proceed with filing for divorce on adultery grounds then you should consider hiring a private investigator.  PI’s work with attorneys to know what evidence is needed for the attorney to establish adultery.  In this case, the ROI is probably best measured in the speed of the divorce.  It is possible if all other issues can be worked out quickly for your divorce to be final in as little as 90 days.  Though, if any other issues (property division, custody, etc.) remain contested then your divorce is likely to take a much longer time.

Children’s Issues.  Depending on what you are trying to prove, your ROI will be less about making money on this issue and more about proving with photographic and third party evidence what you believe is going on.  Clients make claims about their spouse’s behavior with the children all the time based on what they hear the children say or what their “gut” is telling them.  But it is hard to convince a judge to take some action such as restricting visitation in some way without some physical evidence.  A PI can surveil your spouse to determine if they are really taking care of the child or determine if they are allowing the children to have contact with people they are forbidden to see such as a boyfriend or girlfriend.

Financial Issues.  Sometimes a person’s financial declaration would have you believe that they are destitute and can’t go on living if they are made to pay alimony or child support.  Most of the time this is when a spouse is self-employed and they do not receive a paycheck from an employer to establish their true income.  But, when you really dig into their lifestyle you see that they have a pretty extravagant lifestyle that would require an pretty significant income.  When you actually look at the living expenses such as mortgages, car payments, and spending on fun activities you can try to establish that there is an income greater than what the other spouse is trying to portray.

So, depending on the issue you desire to have investigated, you should work with your divorce lawyer and private investigator to determine about how much of an investigation is going to cost you and what you can benefit by having the investigation done.  Sometimes the return will not be worth it.  Other times it will be very much worth it!

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.

Sister Wives Can’t Share the Retirement Account – Update on Bigamous Marriage in South Carolina

1167997_10201920719567398_1881456886_nRecently 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:

  1. When you decide to divorce your spouse, make sure you follow through and are actually divorced.
  2. When you decide to get married.  Make sure your significant other is “available” to be married and not still married to someone else.

 

What Impact will Adultery Have?

impact_of_adulteryWhen consulting with potential clients about their divorce, I am often asked the following hypothetical question:

I would like to start dating again.  What impact will it have on my case if I start seeing someone?

In other words, what impact will your spouse proving you have had an adulterous relationship have on your divorce case?

1. Divorce

The first place you should look is at the grounds for divorce.  SC Code §20-3-10(1) allows for a divorce on the grounds for adultery.  I wrote about the proof required for establishing a case of adultery in a previous post.  By establishing the proof necessary for adultery, your spouse can divorce you without having to live separate and apart from you for the no fault 12 month period.

Most of the potential clients I meet with wouldn’t have a problem with this aspect of adultery because it means they are potentially getting their divorce sooner and then they can openly or legally move on with their new relationship.

2. Alimony

The second major issue deals with alimony.  SC Code §20-3-130(C) sets out a list of factors that the family court judge must consider and weigh when determining whether to award alimony to one of the spouses in the case.  Subsection 10 of that section states that, “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[.]”  Adultery is considered marital misconduct and fault so it can be a factor weighed against you if your spouse is seeking alimony.

On the other hand, if you are seeking alimony, you may barred from receiving alimony due to your adulterous relationship.  See SC Code §20-3-130(A), “No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) 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.”

3. Property/Debt Division

The third area to consider is the area of property and debt division.  SC Code §20-3-620(B)(2) states, “marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce as such, if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage; provided, that no evidence of personal conduct which would otherwise be relevant and material for purposes of this subsection shall be considered with regard to this subsection if such conduct shall have taken place subsequent to the happening of the earliest of:

(a) entry of a pendente lite order in a divorce or separate maintenance action;
(b) formal signing of a written property or marital settlement agreement; or
(c) 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[.]”

So depending on when the adultery occurred and the impact on the financial or economic circumstances of the parties, there could be an adjustment made to the equitable apportionment of marital assets and debts.

Should I Pay Off Debts or Purchase Luxury Items prior to Filing for Divorce?

I recently received the following two questions from a prospective client.  It is something that comes up in many cases where the parties are trying to work out an agreement prior to filing for divorce, but there is a feeling like the the other spouse may just stop negotiating in good faith once he/she gets what they want.  So this is where the questions usually stems from:

  1. Is there any clear advantage/disadvantage to me paying off shared debt over the next few months, be it student loan, credit card, etc? I want to pay it down as quickly as possible but wasn’t sure if that could somehow work against me in an assets/liabilities kind of way.
  2. Should I refrain from purchasing anything that could be considered a “luxury” until we file? (e.g. TV, computer, etc.)

South Carolina Code §20-3-630(A) defines the term “marital property” as, “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation…regardless of how legal title is held.”

In South Carolina, anything that is considered marital property that was purchased during the marriage and owned or owed as of the date of filing of your case can be divided by the Family Court.  So, if you pay off a bunch of debt prior to filing, you would be removing debts that could be shared between the two of you by the Court because they would no longer be owed as of the date of filing the marital litigation.  At the same time, even if you and your spouse have been separated for a while, anything you purchase prior to filing for divorce would be divisible by the court as marital property because it was purchased during the marriage, prior to the filing of marital litigation, and it doesn’t matter whose name is listed on the title of the property.