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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How is a mediated settlement agreement in family court approved over the objection of the other party?
South Carolina law requires mediation in almost all custody and/or divorce actions before the parties may have a trial on contested issues. As we have previously discussed, the goal of mediation is to reach a settlement agreement between the parties. When this happens, the agreement can and should be produced in writing and signed by the parties and lawyers.
Approving Agreements Over the Objections of One Party
From time to time, one party changes their mind and wishes to repudiate—or back out of—the agreement. When this occurs, the party wishing for the agreement to be approved may seek approval of the settlement agreement notwithstanding the other party’s objection. This makes sense; otherwise, the mandatory mediation loses much of its effectiveness in resolving disputes.
When one party attempts to back out of a mediated settlement agreement, the Court should approve the agreement if it finds four factors have been met:
- Is there an agreement?
- Did the parties freely and voluntarily enter into the agreement?
- Is the agreement fair from procedurally and substantive perspectives?
- Is the agreement detrimental to children? (only if relevant)
Why You Need a Strong Advocate
If you are involved in a divorce and/or custody case, it is important to have a lawyer who will advocate for you. If you have an experienced family court attorney by your side during mediation, you are less likely to be guided down the path where you would wish to back out of an agreement.
Likewise, if you need to enforce an agreement, an experienced family law attorney will know how to present evidence in such a way as to give you the best shot at having the agreement approved. Don’t go at it alone—there is too much at stake.
If you have questions about your divorce and/or custody case, please do not hesitate to call toll-free at 888-230-1841 and set up a consultation with an experienced family court attorney.
What is mediation in family court in South Carolina?
Mediation is a form of alternate dispute resolution required in most family court actions as a way to resolve disputes between the parties without the necessity of trial. If you are going through a divorce and/or custody case, your case will be mediated, if it has not been already, prior to a contested final hearing.
What to Expect From Mediation
In mediation, a neutral third party attempts to assist the parties in negotiating a settlement. Most of the time, the parties’ attorneys are present. Most mediators place the parties, with their respective attorneys, in separate rooms and move back and forth trying to narrow the disputed issues.
If an agreement can be reached on some or all of the issues, an agreement can be drafted and signed by the parties and their lawyers. Once this occurs, absent special circumstances, the agreement is enforceable and cannot be changed except by agreement of both parties.
Why You Need a Lawyer
Mediation, like all aspects of family court, should be taken very seriously. You need an advocate on your side who knows how to protect your interests. Too often, I see folks squander their opportunity at reaching an agreement and avoiding the expense and acrimony of a full-blown trial. On the other side of the coin, I often see folks enter into an agreement that is poorly worded or one-sided, which the person is likely stuck with. An experienced family court attorney can help you avoid these pitfalls.
If you are going through a divorce and/or custody case and have questions as to mediation or your case in general, it is important to have a lawyer on your side. If you would like to discuss your case with a lawyer, do not hesitate to call toll-free at 888-230-1841 and set up a consultation.
What are the factors the courts consider in equitable division of marital assets and debts?
South Carolina law sets forth factors for the court to consider when dividing married folks’ assets and debts. The factors the court considers are as follows:
(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance or other marital action between the parties;
(2) 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;
(3) the value of the marital property, whether the property be within or without the State. The contribution of each spouse to the acquisition, preservation, depreciation, or appreciation in value of the marital property, including the contribution of the spouse as homemaker; provided, that the court shall consider the quality of the contribution as well as its factual existence;
(4) the income of each spouse, the earning potential of each spouse, and the opportunity for future acquisition of capital assets;
(5) the health, both physical and emotional, of each spouse;
(6) the need of each spouse or either spouse for additional training or education in order to achieve that spouses' income potential;
(7) the nonmarital property of each spouse;
(8) the existence or nonexistence of vested retirement benefits for each or either spouse;
(9) whether separate maintenance or alimony has been awarded;
(10) the desirability of awarding the family home as part of equitable distribution or the right to live therein for reasonable periods to the spouse having custody of any children;
(11) the tax consequences to each or either party as a result of any particular form of equitable apportionment;
(12) the existence and extent of any support obligations, from a prior marriage or for any other reason or reasons, of either party;
(13) liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage;
(14) child custody arrangements and obligations at the time of the entry of the order; and
(15) such other relevant factors as the trial court shall expressly enumerate in its order.
Why You Need to Consult an Attorney
When facing the breakdown of a marriage, many things are at stake—one of which is the apportionment of marital assets and debts. The court can make a determination as to who receives the marital home, decide whether or not retirement accounts are divided, address ownership of family businesses, and divide any other asset which is deemed marital property. Likewise, the court can require one party to be responsible for certain debts over the other, and vice versa. For this reason, when you are facing a divorce or other marital litigation where the division of assets and debts needs to be determined, you must have an attorney who can advocate for you.
Your attorney should be able to explain the factors as set forth above and how they are often considered by the courts. Additionally, your attorney needs to know how to best present evidence to the family court as to the facts in your case and how they are applied to the factors for consideration in order to obtain the best possible result for you under the circumstances.
If you have questions about divorce or would like to discuss the division of assets and debts, please call toll-free 888-230-1841 to set up a consultation.
What are the factors in determining child custody in South Carolina?
South Carolina law requires that family court judges consider the best interest of a child or children in making a custody determination. The courts are provided 17 factors that they may consider in making such a determination. A family court judge is not precluded from considering other factors if he/she believes they are relevant in considering the child’s best interest.
Factors Used to Determine Child Custody in South Carolina
Factors set forth by South Carolina law to consider in a child custody case are:
- the temperament and developmental needs of the child;
- the capacity and the disposition of the parents to understand and meet the needs of the child;
- the preferences of each child;
- the wishes of the parents as to custody;
- the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child;
- the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders;
- the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
- any effort by one parent to disparage the other parent in front of the child;
- the ability of each parent to be actively involved in the life of the child;
- the child's adjustment to his or her home, school, and community environments;
- the stability of the child's existing and proposed residences;
- the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child;
- the child's cultural and spiritual background;
- whether the child or a sibling of the child has been abused or neglected;
- whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child;
- whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and
- other factors as the court considers necessary.
One of the most important issues a family court attorney deals with is the issue of custody. The development of children into healthy and prosperous adults is all any parent can ask for.
How We Can Help
If you are facing a custody dispute, it is important to have an attorney who will advocate for you. Your attorney should be able to explain the factors as set forth above and how they are often considered by the courts. You need an attorney who knows how to present evidence to the family court as to these factors to present the best case possible for you under the circumstances in your custody case.
If you have questions about custody, please do not hesitate to call toll-free 888-230-1841 to set up a consultation to discuss your legal rights with an attorney.
What are the grounds for divorce in South Carolina?
South Carolina law recognizes five grounds for divorce. Four of these are fault ground and one is a no-fault ground. The grounds are as follows:
- One-year continuous separation (no-fault ground)
- Desertion for a period of one year (rarely used because of the availability of the no-fault divorce)
- Physical cruelty
- Habitual drunkenness which also includes the use of narcotic drugs
All five of the grounds above require corroboration although, generally speaking, it requires stronger evidence to prove the four fault grounds. The one-year continuous separation divorce cannot be filed until after the parties have been apart for one year. Adultery, drunkenness, and physical cruelty can be filed while the parties are residing together.
How the Grounds for Divorce Affect Your Case
The obtaining of a fault ground divorce may have an impact on equitable division, alimony, custody, and other issues. Certain defenses may be available to the spouse alleged to have committed behavior entitling the other to a fault ground divorce. If grounds are unavailable to a spouse who wishes to institute an action in the family court, they may file a Decree of Separate Maintenance action to address things such as child and financial related matters, however, they must be separated from their spouse.
If you have questions about the various grounds for divorce, please do not hesitate to call toll-free at 888-230-1841 to set up a consultation to discuss your legal rights with an attorney.
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:
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 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.