Divorce

Divorce Lawyers in Charleston

Vitetta Law Group is highly experienced in assisting their clients in all aspects of a divorce and family law. We can help with the division of real estate, financial and retirement accounts, the resolution of alimony and child support issues and child custody issues.

We know that divorce is difficult. We’re here to support you.

We understand that divorce is different from any other kind of legal matter.

When you believe that divorce is your only option, the unknown can be very frightening.

From the initial consultation through the end of the process, we will make sure that you have the information you need to make good decisions for you and your family. We provide decisive and skilled legal work to make sure that the decisions you make have the best chance for a positive outcome for you and your family.

 

Filing a Domestic Relations Case South Carolina

Separate Support and Maintenance:

Husband and Wife must be living in separate households to file an action of Separate Support and Maintenance based.

…otherwise, evidence of the actual separation, which is the gravamen of a no-fault divorce, would exist only “behind the closed doors of the matrimonial domicile,” thus encouraging collusion between the parties. Theisen v. Theisen, 394 S.C. 434, 444, 716 S.E.2d 271, 275 (2011)

…the “living separate and apart” language of Section 20-3-10(5) requires that the parties live in separate domiciles for a period of a year. 
Barnes v. Barnes, 276 S.C. 519, 520, 280 S.E.2d 538, 539 (1981)

Divorce:

Actions for divorce can be filed if the parties are still residing together, but only if filed on one of the statutory grounds for a fault based divorce: Adultery, Physical Cruelty, and Habitual Drunkenness.

Filing a lawsuit in Family Court is done pursuant to the South Carolina Rules of Civil Procedure, specifically Rule 8. Rule 8 requires that pleadings contain “a short and plain statement of the facts showing that the pleader is entitled to relief”. Rule 7 states that the only permitted pleadings are the Complaint (the initial statement of facts by the Plaintiff stating the relief requested), an Answer (the Defendant’s denial or admission of the allegations in the Plaintiff’s complaint), a Counterclaim (the Defendant’s claim agains the Plaintiff for relief requested, and a Reply (the Plaintiff’s admission or denial of the Defendants Counterclaim)

The Temporary or Pendente Lite Hearing:

Pendente lite is a Latin term meaning “awaiting the litigation” or “pending the litigation” which applies to court orders which are in effect while a Family Court case is pending.

In South Carolina’s Family Courts, much of the contentiousness and acrimony typically associated with divorce matters begins in a hearing to determine temporary issues, such as spousal and child support, custody, possession of the marital residence, automobiles, payment of expenses, etc,. These are issues that are being resolved Pendente lite, or temporarily, until all issues have been fully litigated at a Merits Hearing or the matter is resolved by agreement.

A temporary order of the family court is without prejudice to the rights of the parties. Such orders are, by definition, temporary—they neither decide any issue with finality nor affect a substantial right. The family court at the final hearing has the authority to redress any error from the temporary order. Terry v. Terry, 400 S.C. 453, 734 S.E.2d 646, 648 (2012)

Temporary hearings are a “trial by ambush” in the truest sense of the word. The only evidence permitted to be presented at a Temporary Hearing are affidavits which “need not be served on the opposing party prior to the temporary hearing”. SC R FAM CT Rule 21 Furthermore, new administrative rules issued by the South Carolina Supreme Court limit the evidence that either party is permitted to submit at a Temporary Hearing to only 8 total pages of affidavits. Furthermore, “A written motion for temporary relief, and notice of the hearing thereof, shall be served not later than five days before the time specified for the hearing…” SC R FAM CT Rule 21 While attorney’s are encouraged to attempt to resolve Temporary Hearing’s by agreement, an attorney seeking an advantage can file a case, get a Temporary Hearing date, prepare for the hearing, and then give the opposing party only 5 days notice. Finally, all Temporary Hearing must be scheduled by the Clerk within 4 weeks of the date of the request.

While Temporary Hearings are unique to our Family Courts, within the ambit of the Temporary Hearing are other mechanisms that will permit a person to have a matter heard in less time that is provided by rules for scheduling of Temporary Hearings.

An Emergency Hearing can be heard within 48 hours of a request, and the opposing party is only required to receive notice prior to the hearing (waving the 5 day notice provision). Our judges have made it clear that only issues effecting the health and safety of a child are appropriate for an Emergency Request.
An Expedited Hearing is not an emergency in that the issues do not rise to the level of a health or safety issue effecting a child, but involves issues that are very serious and substantial harm (usually economic) may occur should a court not hear the matter sooner than the four weeks required for a normal Temporary Hearing. An Expedited Hearing will usually be scheduled within 10 days.

Sometimes an issue is so serious that a court will rule after hearing from only one side! When a court does this, it is called an Ex Parte Order, and a full evidentiary hearing will be ordered to take place usually on an Emergency or Expedited basis.

On November 21, 2012 the Supreme Court issued Administrative Order 012-11-21-04. This order requires, among other things, that all Temporary Hearing be scheduled within 4 weeks of the request, that the allotted time for hearing be limited to15 minutes, and that the parties shall be limited to eight (8) total pages of affidavits. Either party may request a thirty (30) minute hearing at which time the eight (8) page affidavit limit will be waived. However, the order appears to require that even the 30 minute hearings be scheduled within 4 weeks of the request. Furthermore, either party may request of the chief administrative judge that the matter be “deemed complex”, and if such a request is granted, then the chief administrative judge shall schedule the hearing for an “appropriate” time.

The Discovery Process:
Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Rule 26, SCRCP

In other words, discoverable evidence is all evidence relevant to an issue in controversy, or which could lead to relevant evidence.

This stage is also a time when the parties may file additional motions or request that the other be held in contempt of court for failure to abide by the terms of the Temporary Order. Most typically, motions to modify support, motions for the distribution of marital funds, and motions to compel discovery can be heard during this time.

Property Division:

The South Carolina Code provides for the equitable division of marital property. Equitable means “fair”, it does not mean 50-50. In order achieve an equitable, or fair, division of marital property the court is required to consider 15 separate factors regarding the acquisition, nature and use of the property. S.C. Code Ann. § 20-3-620. Our Appellate Courts have ruled that a person can generally expect to receive not less than 40% or more than 60% of all property determined to be “marital”.

Alimony:

S.C. Code Ann. § 20-3-130 sets forth 13 separate factors that a court must consider prior to making an award of alimony. These factors include things like the length of the marriage, relative earnings of the parties during the marriage, earning potential of the parties, relative physical and emotional health of the parties, etc. The court must consider all 13 and then can place weight on any one or several in making an alimony award. There is no “calculator”, like in child support, to determine alimony. It is a purely subjective analysis based upon what the judge has heard during a trial.

Alimony can be Periodic (permanent), Rehabilitative, Reimbursement or Lump Sum. If a person who has a claim to alimony commits adultery, then that person will be barred from receiving alimony.

Mediation:

The Family Court can only enforce an agreement that has been approved by the family court and made an Order of the Court.

The parties may contract concerning their property settlement and alimony, but the submitted agreement must be approved by the family court. The parties may specifically agree that the amount of alimony may not ever be modified by the court; they may contract out of any continuing judicial supervision of their relationship by the court; they may agree that the periodic payments or alimony stated in the agreement shall be judicially awarded, enforceable by contempt, but not modifiable by the court; they may agree to any terms they wish as long as the court deems the contract to have been entered fairly, voluntarily and reasonably. With the court’s approval, the terms become a part of the decree and are binding on the parties and the court. Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983)

Until a court has approved an agreement, the family court does not have jurisdiction to enforce it. In other words, if a signed agreement has been obtained, but not yet approved by the family court, the family court will not be able to enforce it provisions.

If a party comes to an agreement in principal during mediation, but later chooses to withdraw from the same, no mention of the agreement can be discussed by anyone at any later hearing unless all parties waive the confidentiality of mediation.

Communications during a mediation settlement conference shall be confidential. Additionally, the parties, their attorneys and any other person present must execute an Agreement to Mediate that protects the confidentiality of the process. To that end, the parties and any other person present shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial or other proceeding, any oral or written communications having occurred in a mediation proceeding. SC R ADR Rule 8

The Final Hearing, Trial, or Merits Hearing:
In South Carolina if the parties are unable resolve their case in mediation (very unlikely), then the matter shall be scheduled for a Final Hearing or Trial, otherwise known as a Hearing on the Merits, Merits Hearing, or Trial on the Merits (all of which are synonymous).

Trials in South Carolina are conducted by a Judge without a Jury (South Carolina Rules of Family Court 8). Prior to a case being scheduled for trial, a party must request a Pre-Trial Hearing. A Pre-Trial hearing will be a time for the parties to discuss unresolved legal or discovery issues with the Court, to plan any additional hearings to resolve these pending issues, and then to docket the case for a Final Hearing.

Final Hearings in Family Court are conducted pursuant to the South Carolina Rules of Civil Procedure. By the time the case is called for trial, both parties should have identical evidence regarding the matter in dispute (as all information should have been exchanged in discovery). Failure to disclose evidence prior to trial may result in a party being unable to present the evidence. The pleading party (the Plaintiff) shall go first and present their case. At the close of the Plaintiff’s case, the Defendant shall then be permitted to present evidence contained in their responsive pleadings (a Counterclaim). At the close of the Defendant’s case, the Plaintiff shall be permitted to present Reply evidence if the Defendant has filed a Counterclaim.

Parties can wait over 2 years to have a trial in the Family Court. The court dockets have become so congested that the Supreme Court issued Administrative Order 012-11-21-05 requiring an “A,B,C” docket to prioritize cases and hopefully reduce the waiting time. On March 14, 2013 the Supreme Court added the Ninth Circuit, Charleston and Berkeley Counties, to it’s list of counties that are required to participate in mandatory mediation of all Family Court cases.

Post Trial Matters:
Post trial matters involve Appeals, Motions for Reconsideration of the Judge’s Ruling, and Motions for Relief from Judgement or Order.
Request for a New Trial: A party may request either a new trial or an amended ruling should they be dissatisfied with the courts ruling in their matter. Should an aggrieved party request a new trial or an amended judgement, “the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment”. S.C. R. Civ. P. 59 Motions pursuant to this rule must be made within 10 days of the entry of judgement and are a condition precedent to the filing of an appeal.

Appeals: A notice of appeal shall be served on all respondents within thirty (30) days after receipt of written notice of entry of the order or judgment. S.C. App. Ct. R. 203. An appeal can only raise legal issues raised by an aggrieved party, no new facts can be raised on appeal. However, in all domestic relations actions, the the standard of review by the appellate courts is “De Novo”. This means that the appellate courts may review and consider the factual findings made by the court and reverse the courts ruling if they find that the courts factual findings are not consistent with the applicable law. While the appellate courts generally give great deference to the trial courts, occasionally a trial court is reversed because the factual findings are not consistent with applicable law.

Relief from Judgement or Order: A party may also request relief from a judgement, regardless of whether or not an appeal has been made, for (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application. S.C. R. Civ. P. 60 The time for filing a motion pursuant to this rule is within 1 year for reasons 1-3, and within a reasonable time for reasons 4-5.