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Holland & Usry, P.A.

Honest Answers From Your South Carolina Family Law Firm

When you’re faced with a major life event, you’re filled with questions and uncertainty. Get the straight answers you’re looking for from a South Carolina attorney.

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  • I am a pretty smart person who normally handles my own affairs, and I don’t see why my divorce should be any different. After all, I know what I think is fair. Should I try to save some money by not getting a lawyer and negotiating my own marital settlement agreement?

    The answer is almost certainly not. I have seen many people regret the day they represented themselves in a divorce, particularly when there is an attorney on the other side. Often, these are educated people. Sometimes, they run successful businesses that they created from the ground up. And many times, they end up with agreements approved by the family court that are unfair to them or not practical in their application, or both.

     

    The following are some of the reasons why you should get an attorney:

    • Some portions of agreements are final (unless very special circumstances exist), such as equitable division and a waiver of alimony.
    • Some things, like child-related issues and support obligations, can’t be changed unless there is a change in circumstance. So if you later realize you don’t like it or it’s unfair, you can’t necessarily change it.
    • Ambiguous terms and obligations can leave you paying more than you anticipated.
    • There are certain tax consequences of which you should be aware.

     

    Family law may seem straightforward, but it is the details that are often difficult. Many lawyers who don’t practice in family law are surprised to learn how complicated it can sometimes be. If some lawyers find it difficult, and they are trained to practice law, that should tell non-lawyers to pause before deciding to represent themselves.

     

    Consider the following examples…

     

    • The person who agrees to receive a certain amount of alimony on a monthly basis. This person believes it is enough to meet his monthly needs, until he realizes that it is taxable. But there has been no change of circumstances, so he is likely stuck.

     

    • The person who agrees to pay certain monthly obligations, such as continuing health insurance, instead of a set alimony payment. What happens over the years if this health insurance premium increases, going from $300 to $600 a month? Can the spouse who was ordered to pay it, get it changed? Maybe it is a change in circumstance, but was it an anticipated change? And doesn’t the spouse who is covered now have different circumstances too? It is unclear.

     

    • The person who takes his share of the marital estate in a 401(k) without considering that, to get the cash portion of it, he will be penalized and taxed. Again, equitable division is almost always final.

     

    • The person who agrees to college support. One of the most well-intentioned unrepresented pitfalls in the family court is the provision that simply says: Father (or mother) will pay college expenses. What happens when the child elects to go to an expensive private school at the other parent’s insistence—the  one who’s not paying—and no effort is made to obtain grants or scholarships? What happens when the child loses the Legislative Incentive for Future Excellence (LIFE) scholarship because he is not interested in doing well in school and isn’t invested in his education? The child suffers no financial consequences when he makes all Cs or Ds, and the parent who agrees to pay college expenses is probably stuck footing the bill. Not only is a lot of money wasted, but the child graduates college (if he graduates) viewing the world as a place where he is rewarded for no reason and effort is unnecessary.

     

    The above are examples of how not having a lawyer can come back to haunt you. Getting divorced is serious business, and you should have a lawyer who is well versed in handling these sorts of issues. If you are facing a divorce or a Decree of Separate Maintenance and would like to discuss it, please do not hesitate to contact the lawyers at Holland & Usry, PA at 864.582.0416 or toll free at 888.230.1841 for your confidential consultation.

     

  • I have a pending divorce. I hear a lot about people hiring private investigators. Is this something I should consider?

    Maybe. Each case in the family court is different with different circumstances. There are many times when hiring a private investigator can have a significant impact on the outcome.

    However, a private investigator can be expensive. Sometimes a private investigator can capture some bad behavior by the other party. But if that bad behavior doesn’t help your case, what is the point? You have just spent money without strengthening your case.

    Two Areas Where an Investigator May Be Useful

    Let’s look at two areas where some of our clients have gained an advantage in the past by hiring investigators:

    Custody Cases

    A private investigator can prove one parent is living a party lifestyle, such as coming and going at all hours of the night, alcohol abuse, and drug abuse. This kind of behavior could certainly have an impact on a custody case. Or you may suspect that the other parent is exposing your children to a person who should not be around them. A private investigator may be able to prove how often your kids are in the company of this bad influence. All of these things could have an impact on a custody case.

    Adultery

    Adultery is one of the fault grounds South Carolina allows by which a person can get a divorce. Being able to achieve a fault ground divorce may allow you to get through the process faster. Fault ground divorces can be obtained after 90 days, while no-fault divorces take much longer. However, in practice we find that fault-based divorces often take longer than 90 days, because the spouses need a longer period to resolve the issues between them.

    One of the primary reasons people hire private investigators to look for evidence of adultery, is that adultery almost always bars the adulterer from receiving alimony. If you have alimony exposure, it is well worth it to prove adultery. Paying a private investigator several thousand dollars could save you tens—if not hundreds of thousands—of dollars over a lifetime.

    While these are some of the most common reasons people hire private investigators, there are others, such as for uncovering financial evidence. Perhaps you believe your spouse is wasting marital money at a casino. Maybe your spouse claims he can’t work, so he can’t pay as much support as you need; a private investigator may reveal that not only can he work, he is working and simply not reporting the income.

    For many reasons a private investigator may be helpful. But just as you exercise great care when you choose your lawyer, so too it’s important to be selective in hiring a private investigator. You should not be penny-wise and pound-foolish. You don’t want to try to save a thousand dollars by hiring a cut-rate private investigator, only to later find he can’t get the job done, and you’re left to pay alimony.

    If you are going through a divorce and need to discuss it with an attorney, please do not hesitate to contact the lawyers at Holland & Usry, P.A. at 864.582.0416 or toll-free at 888.230.1841 for your confidential consultation.

     

  • I am going through a divorce. My spouse and I disagree on who should have custody. The court just appointed a guardian ad litem. What should I expect?

    When people are engaged in a custody dispute, it is very common for the court to order a guardian ad litem (GAL) to represent the best interest of the children. We have previously discussed the obligations imposed on the guardian ad litem, along with the rights that the guardian ad litem has and the way the court relies upon the GAL’s investigation in making a determination. But practically, what can you expect?

    Guardian Ad Litem in South Carolina Custody Cases

    The court will issue an order appointing the guardian. Sometimes this occurs early in the divorce process, often at a temporary hearing if custody or visitation is contested. At other times, the lawyers recognize that a guardian ad litem is required, so the parties consent to the appointment of a guardian ad litem.

    Once the order is signed by a judge appointing the GAL, our office will provide the guardian ad litem with information about your case, such as affidavits prepared for court, court paperwork, and prior orders. We will also provide the guardian with your contact information. We will copy you with the cover letter to the GAL with the information about your case and your contact information.

    While certain things are required of a GAL, each guardian will conduct his own investigate in his own unique style. I have found that the GAL will usually contact our client directly. However, it is not a bad idea for the client to contact the GAL if the client has not heard from the GAL within a week or 10 days of the guardian’s being appointed and provided information about the parent or party.

    It is important to cooperate with the guardian ad litem and to follow your court orders. If the court order requires you to provide something to the guardian, do it in a timely manner. Cooperate with reasonable requests. Be on time. This is common sense, and should not be done simply for the sake of getting on the Guardian’s good side; rather, this demonstrates to the GAL and also the court that you are responsible and your intent is directed towards the best interest of the children.

    Often, the court will direct in its first order that the GAL prepare a preliminary report and file it with the court within a fixed amount of time—for example, within 45 days of the order.

    The GAL is not a judge and is not expected to micromanage every aspect of conflict between the parents. So the GAL should not be inundated with every minor disagreement. Ask the guardian ad litem at your first meeting what sort of things she would like brought to her attention while your case is pending. Ask your lawyer for guidance on this issue if you’re unsure.

    The guardian ad litem also participates in court hearings and in the merits trial.

    The role of the guardian ad litem is very important: it keeps the focus on the children in a custody case or any family court dispute. Although the guardian is not exactly on “your side”—certainly not in the way your attorneys are dedicated to your side—the guardian is committed to the best interest of your child or children. You have to respect that.

    Contact Our South Carolina Family Law Attorneys For Help

    If you are engaged in a custody or visitation dispute and you would like to talk to a lawyer about your case, please do not hesitate to contact the lawyers at Holland & Usry, P.A. at 864.582.0416 or toll-free at 888.230.1841.

  • I was just served with family court paperwork. It looks like my husband is trying to get a divorce. It says there is a motion hearing in three weeks. What is a motion hearing?

    In the family court, a motion hearing, also called a temporary relief hearing, is a hearing before a judge where one or both parties seek relief. The term “relief” has a special legal meaning here: it means that one side or the other is asking the court to issue orders about how to conduct certain family functions for the immediate future.

    These hearings are usually short, often only 15 minutes, and the relief issued is temporary in nature.

    The court at a temporary hearing can address various questions, such as:

    • Which spouse/parent is to have custody of the children?
    • What sort of schedule for visitation with the minor children should be in place while the action is pending?
    • What will be each parent’s child support obligation?
    • Should one of the partners be obligated to pay spousal support to the other? If so, how much?
    • Who gets to control and use of marital property, such as houses and cars?

    It’s important enough that we should stress this again: any decisions reached from the motion hearing will be temporary. The arrangements can change (and probably will change) in the final decision made by the court.

    The idea is that before the court can make a final determination on such things as custody, visitation, support, and equitable division, among other things, there should be a merits hearing, where both folks can submit all the relevant and admissible evidence they reasonably choose, offer witnesses, and cross-examine the witnesses of the other party. These merit hearings or trials can last days. Before a lengthy trial can be scheduled, there is much work to be done, including the exchange of information and mandatory mediation.

    But some relief cannot wait ten months for a trial, such as spousal or child support if one spouse leaves the home and is not voluntarily assisting. So that’s why you and your attorney will request such a hearing.

    If you are faced with a matter in the family court and need to discuss with a family court lawyer, please do not hesitate to contact the lawyers at Holland & Usry, P.A. toll-free at 888.230.1841 or locally at 864.582.0416 to set up a consultation.

     

  • When I appear at my temporary hearing with my lawyer, will I have to speak?

    Probably not. Motion hearings are for temporary relief. The law limits the sort of evidence that may be received by the court to pleadings, affidavits, and financial declarations. The rule does state for good cause shown, the court may rely on other evidence of testimony; however, this is very unusual, and rarely occurs.

    If you have carefully chosen a skilled and experienced family law attorney to represent you, he will be familiar with the procedures and requirements for the motion hearing. You should not have to worry about presenting evidence or speaking before the court.

    Your lawyer will argue your position by presenting the facts sworn to in the affidavits and financial declarations that are submitted to the court. The arguments are brief, usually no more than a matter of minutes. The judge usually does not ask questions directly to the spouses. If the judge has questions, he or she will usually ask the lawyer.

    If you are faced with a matter in the family court and need to discuss it with a family court attorney, please do not hesitate to contact the lawyers at Holland & Usry, P.A. toll-free at 888.230.1841 or by local call at 864.582.0416 to set up a consultation.

     

  • My wife and I had an intense argument yesterday morning, and today I was served with a petition for an Order of Protection. A hearing is scheduled for tomorrow. What is an Order of Protection?

    An order of protection is an order issued by the family court to protect an abused person by stopping the abuser from the ability to abuse, threaten to abuse, or molest the victim. The order forbids the abuser from communicating or attempting to communicate with the victim in any way, including preventing the abuser from entering the victim’s places of residence, employment, education, or other location as the court may determine.

    It has some teeth to it because a violation of this order is a criminal offense punishable by 30 days in jail or a fine of $200. Additionally, it may constitute contempt of court punishable by up to one year in jail and a fine up to $1,500. If a police officer determines that a person has violated an order of protection, he may arrest the accused without obtaining an arrest warrant.

    A hearing for the order of protection is heard in the family court by a family court judge. If a petition is filed seeking an order of protection, the hearing can be heard within twenty-four hours. The person seeking the order of protection must show that the accused person committed some sort of abuse: physical harm, bodily injury, assault, or the threat of physical harm.

    An order of protection is only available when the victim and the abuser are mutual household members, such as spouses, former spouses, persons who have a child in common, or a man and woman who are cohabitating or have formerly lived together. The victim can be a minor child.

    If an order of protection is granted, the person accused of abuse can be prohibited from any contact with the petitioner for a term from 6 months to a year. The court may also order temporary custody and visitation for any children; temporary financial support for both petitioner and the children; and temporary possession of a residence and personal property.

    Domestic violence and abuse is serious, and is treated seriously by our courts. A judge determines after trial whether to issue an order of protection. During the trial, both parties have the right to offer witnesses and cross-examine the witnesses of the other. The rules of evidence apply. It is not to be taken lightly.

    The family law attorneys at Holland & Usry, P.A., have handled many order of protection hearings over the years. We have both defended the accused and prosecuted on behalf of the abused. If you are facing an order of protection (or if you believe your safety requires an order be placed against someone) and would like to discuss it with one of our lawyers, please do not hesitate to contact our office at 864.582.0416 or toll-free at 888.230.1841 to set up a consultation.

  • I have only been married a couple of months. Am I entitled to an annulment?

    Probably not.

    An annulment is an order from the Family Court stating that a marriage is invalid, meaning the parties are to be treated as if they were never married. Our office is frequently asked if a person is entitled to an annulment, and the answer is usually no.

    The law states that only certain reasons—called grounds—will allow a marriage to be erased so thoroughly. The grounds for annulment in South Carolina are very, very limited.

    A spouse may be able to get an annulment if he or she can prove any of the following reasons applies:

    Failure to consummate by cohabitation

    If the marriage has not been consummated by the cohabitation of the parties, the Court may declare the marriage void and grant an annulment. Cohabitation is living together as husband and wife. It does not necessarily require sexual activity by the parties. Spending one night together likely makes a party ineligible for an annulment on this ground.

    Duress

    A marriage can be annulled where either party entered into the marriage without his or her consent. South Carolina law has said the duress, or being forced into marriage, must be so great that the person was unable to act as a free agent and the party being forced into marriage must have great fear of bodily harm.

    Fraud

    One may be entitled to an annulment if he or she can establish that the person to whom they are married lied about something essential to the marriage. There is only a handful of examples that courts have found to be fraudulent representations. Those cases include misrepresentation about a person’s sanity or insanity (this does not include treatment for mental illness); not being truthful about known impotency; not being truthful about known sterility; and inclination to have children when prior to the marriage it was agreed not to have any. Many examples are considered insufficient, such as misrepresentations about wealth, social standing, or a person’s character.

    Affinity and Consanguinity

    The terms affinity and consanguinity refer to close relationships as relatives. Some people are so closely related that they would be entitled to an annulment if they asserted this ground after having been married. For example, if a man were to marry a woman whom he later found out to be his sister, he or she would be entitled to an annulment. First cousins are not so close in relationship that they would be entitled to an annulment. There are other unusually close relationships that entitle a person to seek an annulment, such as a man marrying his daughter, granddaughter, mother, and so on—and a corresponding list for a woman who marries a relative just as close.

    The odds are if you are married, you are probably not entitled to an annulment; it will require a formal divorce to end your marriage. In rare cases, some grounds do allow an annulment. If you believe that you may be entitled to an annulment, please feel free to contact our family law attorneys at Holland & Usry, P.A., by calling 864-582-0416 or toll-free at 888-230-1841. Each case is different and we will be happy to talk to you about your case.

     

  • I’m going through a nasty divorce right now and I’m concerned about my welfare when it’s all over. Is my ex required to pay alimony? How can I get the spousal support in South Carolina that I need to live?

    In South Carolina there is often confusion surrounding the terms alimony and separate support and maintenance. Some use the terms interchangeably, however there is a difference. Alimony refers to support payments made by one former spouse to another former spouse. Alimony is post-divorce. Separate support and maintenance refers to support payments made by one spouse to another spouse, for instance a support obligation required by a Decree of Separate Maintenance. This form of support is pre-divorce. Temporary support can be awarded to give a spouse sufficient means for support while a divorce action is pending.

    Once your divorce is finalized, you have the opportunity to receive alimony from your former spouse to help support you. Here are three ways you can receive alimony:

    • Periodic alimony. This type of alimony arrives at regular intervals, such as bi-weekly or monthly payments. This is usually paid for the rest of your life, or until you move in with or marry someone new.
    • Lump-sum alimony. This is a one-time payment that is made to you after the divorce is over. This usually cannot be altered or changed.
    • Rehabilitative alimony. This type of alimony is made periodically. It is intended to terminate or stop after a certain amount of time. This is really meant to help you get back on your feet after a divorce.

    Requesting your alimony can be a difficult process. In South Carolina the Family Court considers many factors (13 in all) in determining alimony. You may think you need more than what your former spouse is willing to provide. With help from an alimony attorney in Spartanburg at Holland & Usry, you can get the legal support you need to ensure you receive what is fair and just in your divorce. Call us today toll free at 888-230-1841 or 864-582-0416 to get started.

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