1. Divorce & Spousal Support/Alimony
You can file for divorce after you and your spouse have been living separate and apart for one year. This means you both must live under separate roofs with no intermittent resumption of marital relations. It must be 12 consecutive months of separation.
Do I have to wait and entire year before resolving property and child custody issues? Can’t I get a “Legal Separation”?
You do not have to wait an entire year to resolve your property and custody related issues. South Carolina does not have a “Legal Separation” per se. However, once two people have physically separated, the court can make orders, or accept agreements, permanently resolving all property and spousal support issues. The court can also make rulings, or accept agreements, regarding children’s issues, such as custody, visitation and child support. However, all issues regarding chidden can always be revisited by the family court if there is showing of a substantial change of circumstances effecting the welfare of the child.
This will often depend on the emotional state of you and your husband, the quality and experience of your attorney’s, and the legal process used to resolve the issues. If either you and your spouse are emotionally distraught and interested in “fighting”, and involved in litigation, the process could take up to two years go to trial in the family court. However, Charleston County is a mandatory mediation county, so all divorce and custody cases in the family court will be ordered to mediation, usually well within the first year of litigation. You can expect a 75% to 95% chance of your case settling in mediation if you attorneys are prepared and you have a good mediator. On the other hand, if you use the Collaborative Practice process, your case will generally be resolved inside of 6 to 9 months.
We have found that just the opposite is likely to happen. Non lawyers simply do not understand the nature of pleadings and the “demands” that are contained in them, so a rather routine complaint can get a person quite upset and wanting to “fight back”. We have found it is always best to send a letter asking for an out of court resolution (collaborative practice, mediation, etc) before filing a lawsuit in appropriate cases.
Sometimes this could be difficult. However, South Carolina law provides that in certain circumstances, a court may order a spouse to advance legal fees to the other spouse. If your case is properly presented to the court, we may be able to get your spouse ordered to advance to you legal fees so that you and your spouse are on equal footing moving forward.
Both sides will almost always ask for this, and the rules are pretty clear about when your spouse may be ordered to pay your legal fees. If one side is at a significant financial disadvantage, often times fees will be paid by the spouse with the greater earnings, either by court order or by agreement.
In South Carolina, the rules regarding the apportionment of marital property say that martial property is to be divided “equitably”. This means “fairly” (not 50-50) and a court is required to consider 15 separate statutory factors and then make a decision regarding what is “fair”. Our courts have ruled that a person can expect to never receive less than 40% nor more than 60% of marital property unless they agree otherwise.
I just left my spouse, and no one was at fault. Is there anything I can do to protect myself before we have been separated for a year?
It will be best to have an agreement in writing and then approved by the family court regarding the division of marital property, responsibility for debts, and child related issues. This can all be done within the one year mark by agreement or by order of the court.
Adultery, Physical Cruelty, Habitual Drunkenness (or substance abuse), or Desertion for a period of more than one ye
If a spouse has a claim for alimony, proof of adultery will bar the spouse from receiving alimony. Adultery may also effect custody and visitation and possibly even property division.
A person seeking to prove adultery must prove both that there was an opportunity to have an adulterous relationship and the inclination to do so. Proof of adultery as a ground for divorce must be clear and positive and the infidelity must be established by a clear preponderance of the evidence. A preponderance of the evidence is evidence which convinces as to its truth.
No, not without a court order.
My spouse and I are still together in our home, but I want to leave. Is there anything I can do legally?
Yes, you can leave and file for an action for Separate Support and Maintenance. Once you are no longer residing in the same home with you spouse, the court has jurisdiction to make orders permanently resolving property issues and spousal support, and orders resolving issues regarding children (which can always be modified upon a showing of a substantial change of circumstances effecting the children). We do not recommend doing this without coordinating with an at
If your spouse has moved out and begun to live somewhere else, yes.
I would not recommend this. Store it safely. It is marital property and if it is damaged or destroyed, you may be required to pay the replacement cost.
If you are living together and are receiving mail to the home where you both live it will most likely not be a problem. We would consider mail being delivered to the marital residence as marital property. I would not open mail from an attorney, however, unless it is addressed to you.
The best way is to hire an accountant who is trained in divorce law. You will need a forensic accounting going back as many as 5 or 10 years to trace income, acquisition of assets and debts. This can be very expensive, but if you spend $10,000 and find $100,000, it will have been a good investment!
You should speak with your attorney about this first. There is nothing preventing you from doing this, but it could cause problems with automatic drafts and deposits. Also, if this the the only source of income for your spouse, closing the account will cut them off financially and this may be viewed harshly by a family court judge.
I would caution against this unless your spouse has another source of income sufficient for him or her to live on. Sometimes credit cards are the only way a supported spouse pays for their expenses, and to cut off the credit cards would be to cut them off from all access to money, and may be viewed harshly by the court. This is something best left to an attorney to deal with.
In South Carolina you can only record your own telephone conversations. In other words, it’s okay if you record your conversations with another person, even if they are not aware of the recording, but you can not record conversations between two other people without their consent.
If you are both living together, and it is your spouse’s personal email, this would be permissible. You could get in trouble if you read your spouses work email, so be careful with this.
If you suspect your spouse of adultery, hiring a private investigator can often be a smart move if you are planning for a divorce. However, it is best coordinate this through your divorce attorney, as we often have relationships with investigators whose work we trust and whose fees are reasonable.
If we catch your spouse committing adultery, we may simply decide to file the information away and use it at the most opportune time in your divorce case; this is hardball and we want to make sure you have every advantage. On the other hand, we may use it as the basis of filing an action for divorce. Our decision will simply depend on the circumstances of your case in consultation with you.
Permanent, periodic alimony is a substitute for support which is normally incidental to the marital relationship. Generally, the purpose of alimony is to place the supported spouse, to the extent possible, in the position she or he enjoyed during the marriage.
Yes, alimony is gender neutral.
Yes, there is Permanent (also called Periodic) Alimony, Rehabilitative Alimony, Lump Sum Alimony, Reimbursement Alimony and Separate Support and Maintenance.
In awarding alimony in a divorce case in South Carolina, a judge is required consider 13 separate factors. These factors are such things as the duration of the marriage, standard of living during the marriage, the education of both parties, the physical and emotional health of both parties, the earnings of both parties during the marriage, and reasonably expected anticipated earning, etc. The judge will then give whatever weight she or he feel is appropriate to one or more factors, and then establish alimony. We currently have 64 family court judges in South Carolina, and each one of them will view your claim for alimony as it applies to the 13 factors differently.
Upon a change in circumstances, the family court may modify an alimony obligation. Changes in circumstances must be substantial or material to justify modification or termination of an alimony award. Moreover, the change in circumstances must be unanticipated. The party seeking modification has the burden to show by a preponderance of the evidence that the unforeseen change has occurred. NOTE: Retirement is not necessarily a change in circumstance!
2. About Child Custody
No. Joint custody means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training; however, a judge may designate one parent to have sole authority to make specific, identified decisions while both parents retain equal rights and responsibilities for all other decisions
Sole custody means a parent who has temporary or permanent custody of a child and, unless otherwise provided for by court order, the rights and responsibilities for major decisions concerning the child, including the child’s education, medical and dental care, extracurricular activities, and religious training.
Standard visitation is generally every other (alternate) weekend visitation, with perhaps one overnight on the intervening weeks. It is becoming more and more common for courts to order much more visitation than every other weekend for the non-custodial parent. If the custodial parent is adamant that alternate weekends is all that will be permitted, it may be best to have the matter heard by a court or arbitrator.
The South Carolina Child Support Guidelines are a simple formula that calculates child support based upon the gross income of both parties, work related child care costs and medical insurance costs for the minor children.
Yes, but you will likely be imputed an income and the child support and/ or alimony calculation will be based upon your imputed income. In other words, a court will assume that you can earn money based upon your education and work experience and in any case, it will be assumed that you can earn minimum wage.
You have several options. The least expensive is to assign your case to Social Services who will then be charged with the responsibility of collecting support. You could also hire an attorney to collect support. Hiring an attorney will be much faster, but it will also cost you legal fees and the likelihood of getting reimbursed by your spouse is low (being that he/ she is not even paying child support). Finally, if support is being paid through the court, the court will attempt to collect the support if it has not been paid.
In order to change a custody agreement or order, without the agreement of the other parent, you must be able to show a change in circumstances. A change in circumstances justifying a change in the custody of a child simply means that sufficient facts have been shown to warrant the conclusion that the best interests of the children would be served by the change. The change of circumstances relied on for a change of custody must be such as would substantially affect the interest and welfare of the
This is a complicated area of the law. If you have a current court order granting custody, you must read your order to see if there is language prohibiting this. Generally there is not, only a requirement that you provide the other parent sufficient “notice” of your intent to relocate. Our courts have declined to hold relocation in itself is a substantial change in circumstance affecting the welfare of a child. Relocation is one factor in considering a change in circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the child as would another.
3. Legal Fees
Legal fees in a contested case that goes to trial can cost between $25,000 to $50,000 per side, and even more if the case is highly contentious and complicated. A contested case that goes through the discovery process and then settles in mediation can cost anywhere between $10,00 and $20,000, per side, and again it could be more (or less) depending on the circumstances. Collaborative practice cases generally cost around $5,000 per side with perhaps another $1,000 to $3,000 if other professionals are involved (financial neutral, coach, child specialist, etc.).
Our fees are set on a case by case basis. We will set our fees based on what we believe to be the complexity of your case, the animosity between you and your spouse, and the other attorney who is involved (if known). All fees are are based upon billable hours charged against a retainer paid in advance. Fees could greatly exceed the retainer and you will be required to replenish your trust account in order for us to continue to work on your case. In a Collaborative Practice case, we will do your case on a fixed fee basis (in other words, we will do your entire case for a set fee paid in advance, usually around $5,000) if the other attorney is willing to do the same.
Alternative fee arrangements are a new development in the setting of legal fees. They can be fixed fees for an entire case, or setting fixed fees based upon work performed for certain segments of a case. The idea is to get away from billable hours and provide clients some degree of certainty in the ultimate cost of their case.
First, never engage an attorney without a written fee agreement outlining all costs, hourly rates, and how you will be billed. Second, if you are on a billable hour plan (as almost all divorce lawyers are) then you should receive detailed monthly billing statements showing exactly what work your lawyer has performed, how much has been transferred from your trust to their operating account, and what remains in your trust account.
4. Hiring an Attorney
The law has become very complicated in the 21st century. Our firm only handles family law, divorce and custody cases. We do this because we believe that focusing our practice in only one area will provide our clients with a very high standard of practice. You may also want to see how an attorney’s colleagues perceive and rate them. The oldest and most respected peer review rating service is Martindale-Hubbell Peer Review Ratings. Virtually all established attorneys who are fully engaged in their law practices will have a peer review rating by Martindale-Hubbell.
In South Carolina attorneys are not permitted to call themselves “specialists” unless we practice bankruptcy, employment, estate planning or tax law. In South Carolina there is no such thing as a “Family Law” or “Divorce” specialist.
Yes, you must to go mediation. All divorce, custody and family law cases in South Carolina must go to mediation before a final hearing (trial) by order of the South Carolina Supreme Court.
Most often your attorney will select the mediator in coordination with your spouses attorney. However, if they cannot agree, the court will choose one.
You and your lawyer will almost always be in a separate room from your spouse and his/her lawyer. The mediator will then begin the process by taking an offer from one side (usually the plaintiff) to the other room, then returning with a counter offer. This process will continue back and forth, with the mediator assisting the parties in structuring the offers and counteroffers, until an agreement is reached.
Almost always the parties share this cost. Sometimes by agreement or court order, one party will either pay the fee, or advance the fee subject to being repaid later out of the division of assets.
Always by agreement between you, your spouse and the attorneys.
First, most arbitrations are not appealable, so if you want an end to your divorce and will not be appealing the ruling, arbitration may be appropriate. Also, financial matters are perfectly suited to arbitration. Custody and visitation issues are also appropriate for binding arbitration, but I would be careful here and discuss this with your attorney carefully before making a decision.
Arbitration is like having a trial with a private judge, outside of the courtroom, with rules regarding the presentation of evidence that are agreed upon by you, your spouse and the attorneys. It is much less expensive than a trial, it is faster than a trial, and may be an excellent option for you to bring your divorce, custody or family law case to an efficient resolution.
7. About Collaborative Law
It involves using a completely different dispute resolution process called “interest based negotiation”. Interest based negotiation, if done properly with qualified professionals, results in a “win-win” resolution. The adversarial divorce process in the family court results in a “win-lose” outcome.
Your divorce or custody case will be appropriate for a collaborative resolution if you trust that your spouse will be forthcoming with financial matters. Secondly, you both must want to ensure that the well being of your children is the most important part of the divorce and separation process.
First we go to mediation. 95% of the time this will result in an agreement. If we are unable to reach an agreement in mediation, we will assist you in the transition of your case to litigation counsel. The litigation counsel will pick up where we left off, prepare the case for trial and then try the case in the family court.
No, Interest Based negotiation has been utilized by conflict resolution professionals for nearly half a century dealing with such diverse problems as international disputes between nations, employment matters and neighborhood problems.
All the same information and documents available to litigation counsel.
What happens if one side is dishonest or misuses the collaborative law process to take advantage of the other party?
The collaborative process may fail.
In our experience, when properly done by qualified professionals, it is far superior to divorce and custody litigation in the Family Courts of South Carolina
Then we will handle your case in the traditional manner.