by Alex KornfeldA REVIEW OF ‘YOU HAVE THE RIGHT TO REMAIN INNOCENT’
I recently reviewed You Have The Right To Remain Innocent by Professor James Duane. The book is only 119 pages. Duane posted a highly viewed lecture on YouTube titled “Don’t Talk to Police”. In this short book, Duane articulately and concisely explains why you should not talk to officers investigating a crime.
He explains that humans are subject to what psychologist call confirmation bias. Confirmation bias occurs when one comes to a conclusion and then contemplates that the conclusion may be faulty. It is much easier to convince yourself that you did not make a mistake than it is to admit that you may not have been correct. One may misremember, recall nonexistent details, or persuade themselves things occurred that didn’t to corroborate their story.
Duane’s book is filled with sites to creditable sources and studies. He explains ‘the most recent and comprehensive investigation, which took a careful look at 250 prisoners exonerated by DNA evidence, found that 16% of them made what’s called a false confession: admitting to the commission of a crime that they did not commit.’ In 2015 the author of Contaminated Confessions wrote an updated review in the Virginia Law Review.
Duane speaks of the overcriminalization that is occurring. There are tens of thousands of laws of which you could have possibly violated. He quotes Supreme Court Justices that echo his warning and succinctly states: ‘In other words: ‘the deck is stacked heavily against you, and you have no idea what you are up against.’ Duane goes on to say that people incorrectly believe that there are rules that restrict officers from using deception, informing you that they have more information than they do, or trying to trick you otherwise but that people are wrong. He cites the United States Court of Appeals, concerning promises police make to those they interrogate, has ruled that a promise of immunity is no good unless it is authorized by an Assistant United States Attorney in the case of United States v. Flemmi, 225 F3d 78, 91 (1st Cir. 2000).
Duane is highly skeptical of eye witness identifications. Out of hundreds of wrongly convicted people that were later exonerated by DNA evidence, 76% were mistakenly identified by an eyewitness. In a study of over 250 cases in which a defendant was later exonerated by DNA evidence, forensic evidence was used to help convict an innocent suspect 74% of the time.
He explains the difficulty and inaccuracy cross-racial identifications are riddled with and how it has caused innocent men like Earl Ruffin to be wrongfully convicted.
Don’t plead the 5th, Duane advises as it could now be used against you thanks to Salinas v. Texas.
He advises the reader that pleading the 5th is now more complicated than ever and that you should simply, clearly, and unequivocally state, ‘I WANT A LAWYER’ and repeat it until the cops realize you know how the judicial system works.
by Alex KornfeldCRACK, CONFESSION, AND A TV
A case review of State v. Derek Vander Collier’s case filed In The Court of Appeals on October 4, 2017.
YOU MAY BE HIGH ON CRACK, AND A COP MAY HAVE PROMISED YOU TELLING THE TRUTH WOULDN’T HURT YOUR SITUATION BUT YOUR STATEMENT WILL BE CONSIDERED VOLUNTARY AND IT WILL BE USED AGAINST YOU
On November 20th and 21st of 2013 the room doors at the Jamaican Motor Inn in Myrtle Beach were being repainted. I guess Justin Kirkman was a big wig in the subcontractor industry because he stayed on the fifth-floor penthouse and was in charge of checking the doors at thirty-minute intervals and closing them when the paint dried. On November 21, 2013 Kirkman was in the penthouse between the tough job of door checking when he noticed the light in one of the rooms was on even though he had turned it off. Kirkman went to the room and saw a man attempting to take a T.V. Kirkman said he confronted the man and the man pulled, what looked like, a handgun and fled the room. Kirkman said he saw the man face-to-face for 10 to 15 seconds. He followed the man to the parking lot and saw him drive away in a four-door sedan where he noticed a TV in the back seat of the sedan. He tried to get a license number but didn’t quite. (I know this is incorrect grammar but the line ‘didn’t quite’ is in a James McMurty song and this is on a blog so piss off!)
About a week after the incident Kirkman went to the police station to meet with an artist. (I guess the penthouse was nice. He didn’t have time to go down to the cop shop any sooner.) The artist created a computer sketch of the suspect based on Kirkman’s description. Later, Kirkman viewed a lineup and narrowed his selection down to two photos. (Talk about a beauty pageant you don’t wanna win. AmIright?) Out of the two, Kirkman could not make a final decision. (He loves me, he loves me not?)
A detective recognized Derek Collier on the street and tried to contact Collier because he was facing several burglary charges. Collier gave a false name but the police already knew who he was and arrested him.
First Interrogation: The detective then interrogated Collier about 5 to 10 minutes after Collier was arrested. Collier told the detective he smoked crack cocaine a short time earlier. However, the detective stated Collier ‘did not appear to be under the influence of any drugs’ and wanted to proceed with the interview. Collier admitted to burglarizing several hotels claiming he did so to help his financially strapped mother and further admitted that he had been to the Jamaican multiple times.
Second and Third Interrogation: Another detective interrogated Collier two more times on January 30 and 31 of 2014. In the 3rd interrogation Collier admitted Kirkman had encounter him at the Jamaican but denied pulling a gun on him.
Collier went to trial, was found guilty of 2nd degree burglary, and was sentenced to 13 years in prison.
The issues the Court of Appeals were concerned with were:
Did the trial court improperly limit Collier’s closing argument by prohibiting him from responding to the State’s alleged bolstering of its key witness?
Did the trial court err in allowing the jury to hear recordings of Collier’s first
and third police interviews?
Did the trial court err in allowing Kirkman’s in-court identification of
Collier?
The only issues that this article addresses are the interviews.
Collier argued the jury should not have heard the recording of the first interrogation because it took place just after Collier smoked crack cocaine. Collier argued the highly addictive and intoxicating effects of the drugs were likely to have induced him to do almost anything to avoid prison. See Tyrone Biggums. Collier argued the 3rd interrogation was requested by him because of concerns about the admission he made during the first interview and because law enforcement promised leniency during the interview that overbore his will. (Did someone say ‘Freeeedom’?) The trial court ruled the statements were made voluntarily and allowed the admission to be heard by the jury. The Court of Appeals reasoned that the detective testified Collier did not appear to be under the influence of drugs and that Collier refused to postpone the first interrogation. The Court found that Collier appears relaxed and forthcoming in the ‘interview’ and that it did not appear that the detective was overreaching. Collier argued the 3rd tape should have been suppressed because had he not made the 1st statement after just smoking crack cocaine he wouldn’t have made the 3rd, so the 3rd statement was also involuntary. The Court didn’t buy it, stating the first interview was voluntary so the 3rd interview was voluntary too.
Collier argued his cooperation with detectives was only a desperate attempt to appease the police in order to avoid incarceration. The Court stated that the detective only assured him that telling the truth would not hurt his situation.
The moral of the story is that it doesn’t matter if you’re high on crack cocaine and make a confession if you don’t appear to be under the influence and are ‘eager’. (Aren’t crackheads stereotypical ‘eager’?) and even if an officer tells you ‘telling the truth won’t hurt your situation’ your statement will be considered voluntary unless there is a ‘promise of leniency that is so connected with the inducement as to be a consequence of the promise’ (What’s that mean???? These words…”Because I don’t understand them, I’m gon’ take them as disrespect”)
Source: State v. Collier
by Alex KornfeldWARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
A review of STATE V. ROBERT LEE MOORE.
In the case of State v. Moore the South Carolina Court of Appeals ruled a limited warrantless search of Moore’s cellphone was not in violation of the law, therefore it was admissible. Moore was found guilty of attempted murder and sentenced to 30 years.
On a winter day in 2013, a victim was found shot in the head at a Taco Bell parking lot in Spartanburg. When officers arrived at the Taco Bell, the victim was draped over the driver’s side door of his vehicle. Three cell phones were found in the car. The phone at issue was found almost under the driver’s side seat according to officers. Money and drugs were also found in the car to round out the trio of clues.
The cops took pictures of the phones and took them to a detective to do a forensic examination on the phones to determine who owned each phone. To determine the ownership of the phone in question the detective took the SIM card from the phone and got the number of that particular phone. The detective told another cop of the phone number who ran it through a database. The database determined the phone belonged to Moore. Then, and only then, the cops applied for a search warrant to examine the stored data on the phone. After the search warrant was granted the detective did a full forensic examination of the phone in which stored contacts, images, call logs, and text messages were gathered.
Moore moved to suppress any and all information gathered from the search of his phone pursuant to Supreme Court case, Riley v. California, 134 S. Ct. 2473 (2014).
Moore correctly argued the search warrant affidavit submitted to support the phone warrant application was conclusory and did not support the finding of probable cause needed for issuance of a search warrant. Therefore, the evidence should be suppressed. The trial court denied Moore’s motion, ruling the phone was abandoned.
At trial, the State established the victim was at his mother’s home before the shooting and that five calls were made to the victim’s phone between 1:03 p.m. and 2:06 p.m. After the shooting, witnesses saw a white Chrysler 300 fleeing the scene. Surveillance footage from a nearby gas station showed Moore and his co-defendant exit a white Chrysler 300 and go into the gas station. At trial, there was testimony from witnesses, video surveillance, and testimony from the co-defendant that Moore got in the victim’s vehicle and pulled a gun on the victim. The co-defendant testified that a struggled occurred between Moore and the victim and the tried to open the car but the doors were locked. Then, Moore shot the victim.
On appeal, Moore argued the search of the phone violated the Fourth Amendment, and no exception to the warrant requirement applied. The Court held Moore’s Fourth Amendment right was not violated relying on persuasive rulings in other states. In this case, the Court reasoned the officer ‘removed the phone’s SIM card and processed it from the limited purposed of obtaining the telephone number. I recognize that even small manipulations of personal property have been held to be Fourth Amendment searches. However, under the facts of this case, law enforcement’s limited search of the SIM card to obtain the phone number did not constitute an unreasonable search under the Fourth Amendment because Moore had no reasonable expectation of privacy in the number itself.’ The Court went on to state the officers got a warrant before performing any further analysis to examine the phone’s content.
That’s basically it. The opinion is more detailed than that but that’s basically it concerning the phone search. Here’s why they got it wrong and why I predict, should this case go to the South Carolina Supreme Court Supreme Court, the search will be deemed a violation of the Fourth Amendment—it appears the Court incorrectly assumes that one can take a SIM card out of a phone without opening it or manipulating it. A cursory youtube search informs one that taking a SIM card out of a phone is a search that requires some difficulty. https://www.youtube.com/watch?v=DRKF_C-dA5o
This was appreciated by the United States Supreme Court as they ruled ‘Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant’. See Rliey v. California.
Judge Konduros of the South Carolina Court of Appeals respectfully dissented. (Thank you Judge!) She correctly stated, ‘The minute Officer McGraw removed the SIM card, he had access to digital information in which our courts have recognized an expectation of privacy.’ Further, she states the Officer got more than the cell phone number. He got thirty-four contacts and three text messages.
‘THE FACT THAT TECHNOLOGY NOW ALLOWS AN INDIVIDUAL TO CARRY SUCH INFORMATION IN HIS HAND DOES NOT MAKE THE INFORMATION ANY LESS WORTHY OF THE PROTECTION FOR WHICH THE FOUNDERS FOUGHT.’-Justice Roberts
by Alex KornfeldIT DEPENDS ON WHAT THE DEFINITION OF ‘KNOWINGLY’ IS
In the Case of State v. Miles The South Carolina Court of Appeals clarifies the definition on ‘knowingly’ in a rather entertaining opinion written by Greenville native, Judge Hill.
Lance L. Miles was convicted for trafficking illegal drugs. Miles was sentenced to 25 years and was ordered to pay a $100,000 fine. In Miles’ appeal he argued that the trial court improperly instructed the jury that the State did not have to prove Miles specifically knew which drugs he was in possession of; he also argued statements were admitted in Court that were in violation of Miranda. This article will focus on the Court’s clarification of the word ‘knowingly’.
The Lexington County Sheriff’s Office were scanning parcels at a FedEx office. Apparently, the Sheriff’s became suspicious of a package and arranged for a controlled delivery of the package. The Sheriff’s observed the delivery person ring the doorbell and leave the package by the front door. Moments later a cop saw Miles exit another apartment. The cop then saw a female emerge from the delivery address. The cop stated she looked at the package, got on her phone, hung up and went back inside. Miles then picked up the box and started back to his apartment. Miles noticed the cops closing in on him and he tried to ditch the box. The cops caught up to Miles and cuffed him.
One of the cops immediately asked Miles about what was in the package. Miles stated he did not know what was inside the package. The cop then asked if drugs were in the package to which Miles responded that drugs were probably in the package but he was unsure of what kind of drugs. Then the cop read Miles his Miranda rights and asked Miles whether there were drugs in the box again. Miles responded as he had prior to Miranda. The cop obtained a search warrant and got Miles’ consent to search the package. The cop found 300 pills that contained a total of 9 grams of oxycodone. The cop asked Miles to write down everything he knew about the drugs. The cop then read Miles his Miranda rights again! Miles wrote a statement that he had been paid $100 to pick up the package from someone named “Mark” that had called him to pick it up, and the owner of the package was a “Stacks” from Tennessee.
At trial, Miles’ argued the case should be dismissed because the State could not prove Miles knew the box contained oxycodone. Miles’ argued that the term “knowingly” applied to each element of the trafficking offense reasoning that the State had to prove that Miles knowingly intended to sell, manufacture, cultivate, or possess illegal drugs AND that Miles had precise knowledge of the type of drugs he had in this case. The Court of Appeals sited precedent which stated that criminal laws that open with ‘knowingly’ don’t necessarily require that each element of the law be proven by that level of intent. The Court reasoned that the Legislature did not intend to require the State to prove a defendant knew the specific type of illegal drug he was trafficking. The Court stated, ‘were we to adopt Miles’ version of subsection (e), the State would have to convince the jury beyond a reasonable doubt the defendant not only knew the drugs were oxycodone, but also knew that oxycodone is a “morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin.’ The Court reasoned, “We doubt the Legislature, in passing the drug trafficking law, meant to create a scenario where a defendant is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter White.”
Lawyers are often ridiculed as being too persnickety about the precise definition of words but an advocate must focus on words as in this case the interpretation of words was the difference between a dismissal and a mandatory 25 year prison sentence.
As one of my wisest law professors, Gerald Moran, once said, ‘law school has no meaning, we just play with words’.
Source: State v. Miles
Alex Kornfeld is a Criminal Defense Attorney in Greenville, South Carolina. If you have been arrested or are under suspicion of a crime, it may be in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.
by Alex KornfeldSOUTH CAROLINA WILL TRY YOU IN YOUR ABSENCE
A REVIEW OF STATE V. STANLEY LAMAR WRAPP
What if I don’t show up? They can’t try me in my absence, can they? Maybe they’ll just forget about it? These are just some of the thoughts a defendant may have. The pressure of a criminal trial is immense. Your very freedom is at stake but not showing up for trial is not a good idea.
In this case review, Stanley Lamar Wrapp appeals his convictions for possession with intent to distribute cocaine base and driving under suspension. Wrapp argued he did not have proper notice of his trial date. The Court agreed with Wrapp so the case will be remanded for a new trial. It will not be dismissed and I can bet Wrapp’s counsel would have preferred if Wrapp appeared for trial.
The appeals Court ruled that in order to try a defendant! in his absence the Judge must rule that the Defendant received notice of his right to be present AND that the Defendant was warned he would be tried in his absence should he fail to attend.
In this case, the Court found there was no finding from the Court that Wrapp was informed that he could be tried in his absence.
!In a non-capital case.
Sources: http://www.sccourts.org/opinions/HTMLFiles/COA/5510.pdf
by Alex KornfeldStand Your Ground Comes Down To Witness Credibility
In The Case of State v. Preston Ryan Oates
On July 26, 2017, The South Carolina Court of Appeals affirmed the Circuit Courts ruling denying Oates motion for immunity from prosecution pursuant to the Protection of Persons and Property Act as well as Oates’ challenge alleging the Circuit Court was incorrect in refusing to grant a directed verdict of acquittal on the grounds that the State failed to disprove self-defense.
On Christmas Eve of 2010 the deceased was visiting his brother and his family. The deceased parked his vehicle on the street in the neighborhood. Parking on the street was prohibited by the HOA. Oates was a tow truck driver hired by the HOA to tow vehicles parked on the streets. Oates put a boot on the deceased vehicle and was beginning to hook the vehicle up to the tow truck. A neighbor informed the deceased that his vehicle was in the process of being towed. The deceased, the deceased’s brother, and the neighbor asked Oates not to tow the vehicle. Oates felt intimidated and got back into his truck and locked it. Oates testified that the deceased told the neighbor to ‘go get my shotgun’. Deceased’s brother told Oates to ‘take that[boot] off his vehicle’. Oates said he responded, “Okay, let me call my office and see what they [want to] do and we’ll get a handle…It’s not a problem, we can work this out.” Oates testified he heard a round being chambered. Deceased allegedly said, ‘You’re going to take this off right now and I’m leaving”. Oates allegedly stated that was fine. The deceased brother stated the deceased pulled a gun out of his pants, ratcheted the gun, and said, “Nobody’s going to take my car.” This made Oates nervous. Oates began fumbling his keys when the deceased’s brother grabbed them. Oates stated the deceased inquired whether he had any paper work on the vehicle because he did not want law enforcement to ‘come look’ for him. Oates showed the deceased a ledger to assure him he had no paperwork on the minivan. Oates also pulled out his gun from the glove box at this time. Oates testified that a concerned lady that lived nearby offered to call 911 but that Oates stated, ‘Don’t worry about it, everything’s fine, go back inside, he’s got a gun, so everything’s okay here’ hoping to alert the lady without alerting the other men. The deceased then demanded that Oates take the book off the vehicle.
At this time a struggle ensued. This case came down to the credibility of the witnesses. Ultimately, Oates lost the battle of credibility and was found guilty of voluntary manslaughter and sentenced to 26 years.
Procedurally, Oates requested immunity from prosecution because he argued there was evidence the deceased was trying to remove him from his vehicle. To be granted immunity Oates would have had to show that he had a reasonable fear of imminent peril of death or great bodily injury to himself while using deadly force when the deceased unlawfully and forcibly entered the vehicle he occupied or that the deceased attempted to remove Oates from his vehicle.
The Circuit Court denied Oates’ request for immunity reasoning that the facts did not show that the deceased was unlawfully or forcibly entering, or had entered Oates’ vehicle at a time when Oates’ had a reasonable fear of imminent peril of death or great bodily injury. The Circuit Court found the deceased was walking away from Oates’ truck at the time Oates’ got out and shot the deceased. Further the Circuit Court held that Oates’ ‘use of deadly force against the victim was not necessary to prevent his own death or great bodily injury or the commission of a violent crime.” Further reasoning, ‘assuming that there was an “attack” previously, there was no such event at the time of the shooting.’
The Court clarified issues concerning the burden of proof concerning self-defense ruling that the State is not required to disprove the elements of self-defense beyond a reasonable doubt at an immunity hearing but would have the burden if self-defense is properly submitted to the jury.
This appears to be a case that was decided almost entirely on the testimony of the eye witnesses and the forensic pathologist. In analyzing whether one has a self-defense claim testimony and timing are all too important.
Alex Kornfeld is a Criminal Defense Attorney in Greenville, SC. If you have been arrested or are under suspicion of a crime, it may be in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.
Source: State v. Preston Ryan Oates
by Alex KornfeldCONSENSUAL ENCOUNTER DEPENDS ON WHETHER ONE IS FREE TO LEAVE?
SOUTH CAROLINA BY WAY OF THE CHINESE BUS LINES. AM I FREE TO LEAVE?
The Court of Appeals Rules in the case of State v. Eric Terrell Spears (S.C. App., 2017).
It matters whether a reasonable person believes they are free to leave in determining whether police are in a consensual encounter with suspects.
In this particular case, Mr. Spears was sentenced to 30 years from trafficking cocaine between ten and twenty-eight grams. DEA agents working with a sheriff’s office received a tip that one or two black males were traveling from NYC to South Carolina on the ‘Chinese bus lines.’ It was believed that the buses departed from Chinatown and oftentimes drug dealers used the buses. On March 29, 2012 two of the Chinese bus lines were scheduled to arrive in South Carolina. Three law enforcement officers were dispatched to one of the bus stops. Spears and a woman were getting off the bus. They retrieved four large bags and appeared to be nervous, they kept looking at the agents, and were talking amongst themselves.
Spears and the woman left the bust stop on foot. The agents followed them. Spears looked back. Williams (the woman) looked back. It appeared to law enforcement that the woman handed something to Spears. Law enforcement briskly caught up to the couple, identified themselves, and asked to speak with Spears and the woman. One of the law enforcement officers told Spears and the woman that in the past there had been wanted subjects, drugs, counterfeit merchandise on the line and asked them for an id.
An officer asked Spears if he had any illegal weapons. It was reported that Spears hesitated before saying “no”. An officer then asked about illegal items and Spears began to put his hands underneath his shirt and push the shirt away from his waistband and body. Spears did this two more times after being asked not to do it and an Officers told Spears he was going to search him for weapons. During the search, an officer felt an object consistent with the feel of crack cocaine. The officer removed the object.
Spears lawyer motioned to suppress the drugs based on the Fourth Amendment. The trial court implicitly ruled the encounter was consensual and denied Spears’ motion because Spears willingly stopped and talked with agents and the agents did not tell Spears he was not free to leave.
The Court of Appeals ruled the trial court erred by denying Spears’ motion reasoning that a person has been seized when a reasonable person would have believed that he was not free to leave. A crucial question the Court considered was whether a person ‘would have felt free to decline the officers’ requests or otherwise terminate the encounter’. The Court ruled that under the totality of the circumstances a reasonable person would not believe he would be free to leave. Spears and Williams were approached by law enforcement officers, some of which had visible weapons. The officers followed Spears and the woman but waited to engage them until after they were alone, and the officers did not inform Spears he was free to go. The Court held that the officers lacked the reasonable suspicion necessary to stop him. Here, the Court ruled the information the officers acquired amounted to a hunch, which is not enough to rise to a level of reasonable suspicion.
Alex Kornfeld is a Criminal Defense Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Alex by phone at 864-335-9990.
Source: State v. Eric Terrell Spears (S.C. App., 2017).
by Alex KornfeldSOUTH CAROLINA FLAT FEE UNCONTESTED DIVORCE FROM FILING TO DIVORCED
CONSIDERING WHETHER I HAVE AN UNCONTESTED DIVORCE
No one would call divorce pleasant, but that doesn’t mean they have to be a painful, protracted process.
No matter the duration of a marriage, it is never going to be an easy process for the spousal parties or their families. Despite the agreement of both parties’ during an uncontested divorce, there are still legal steps that must be taken.
The easiest way to define an uncontested divorce is a situation in which both parties agree to all issues and terms of the divorce. General issues include: property division, alimony, child support, custody and visitation. Unless the court has reason to suspect that the agreement is not reasonable or in the best interest of the child(ren), you are simply asking the court to review your agreement, approve the terms and legally end the marriage.
A question our firm is frequently asked is if a couple can have an uncontested divorce when a child is involved. The answer is a resounding yes. As long as both parties can agree on a parenting plan that addresses custody, visitation and child support that the court will approve, the two parties can proceed with an uncontested divorce.
It’s quite often the case that couples who can communicate effectively and amicably mediate the terms of their divorce end up with a much more satisfactory agreement than couples who “fight it out” in court and must have a Judge decide issues related to children, often leaving both parties feeling as if they’ve won a pyrrhic victory at best. When parties are in disagreement over their child(ren), the court is left to decide what is in the children’s best interests. In most cases, the couple is left with an arrangement that is less than ideal. The Judge does not know your children as well as you do, nor do all the facts and details of your life and your family.
An uncontested divorce must be truly and completely uncontested. This means that you and your spouse must agree on every issue to include but not be limited to property division, asset and debt division, alimony, custody, and child support. If you took your spouse’s last name at marriage and would like to revert to your former name you should decide that prior to filing. If you decide that you would like to change your name after your divorce is finalized you must petition the Court for a name change and you will incur additional cost.
It would be careless not to mention the possibility of reconciliation. If you and your spouse can agree on all issues then maybe you can reconcile your marriage. I know that if you’re reading this then you’ve probably given it a considerable amount of thought and you don’t believe reconciliation is possible. On the other hand, South Carolina is in favor of reconciliation and prior to being granted a divorce you will be asked if reconciliation is possible.
If you want to file for divorce in South Carolina you or your spouse need to reside in South Carolina for a continuous year prior to filing for divorce. If you and your spouse both live in South Carolina for three continuous months prior to filing then you can file for divorce after three months of residency.
Many people ask me, ‘How quickly can I get a divorce?”. The rule of thumb is that you’ll be waiting at least 3 months before finalizing your divorce even if it is uncontested. In some rare instances a divorce can be finalized prior to three months after filing.
In most uncontested divorces, the parties file on the grounds of being separate and apart for a continuous year. This means that you and your spouse have not spent the night under the same roof or on the same property for at least a year prior to filing and that you and your spouse have continued to live separately throughout the case.
Even if you meet the requirements for an uncontested divorce, a final written settlement agreement is something to consider. If you have children you will most likely want a written custody and child support agreement that is specific and detailed to your life. If you have been married for a considerable amount of time, and have considerable assets and/or debts you should talk to a lawyer about whether a final written settlement agreement is right for you. A Judge must approve the agreement and the Judge has the right to reject an agreement if the Judge believes the agreement to be unfair or inequitable. This should not be taken lightly.
Some individuals have requested that one attorney represent both parties in a divorce. I will not represent both parties in a divorce because I don’t know what the future holds. A lawyer has a fiduciary duty to his client and if a lawyer were to represent both parties in a divorce, even an uncontested divorce, and one client divulged information that the client wanted to keep confidential from the other client it puts the lawyer in quite a conundrum and one I believe would be difficult to successfully avoid without violating attorney-client privilege.
Some things to keep in mind during an uncontested divorce:
-It’s always best to remain as civil as possible, even though sometimes that may be hard to do. Emotions run high (naturally) during a divorce, but an excess of tension is not conducive to producing an acceptable settlement agreement and will quite often make for a breakdown in communication.
-As hard as it may be at times, it is important to keep the bigger picture in mind. While you may be hurt by what has transpired between you and your spouse, it is important to not lose focus on your goals. Where do you want to be in 1 year? 3 years? 5?
-Don’t be afraid to ask for what you want and feel you deserve. Be prepared to ask for term you think are fair and appropriate and be ready to defend them with facts rather than emotional pleas. Don’t wait for your spouse to offer what you want. When you know the minimum that you will accept, you can negotiate much more effectively.
-The old saying about assuming rarely rings more truly than in this scenario. It’s vitally important to use clear, concise language to eliminate any potential misunderstandings that can lead to hurt, anger or confusion.
-It’s a very useful exercise to make a legitimate attempt to put yourself in your spouse’s shoes. Though it’s not necessarily easy, if you can put aside any hurt and anger you are feeling and really, truly try to see things from their perspective, it can lead to much more productive, pleasant and reasonable discourse between the parties.
A few ideas to help with property division:
-Make a complete list of everything you and your spouse own. Mark items that you believe are not marital property (I.e. family heirlooms, inherited jewelry etc.) Then mark the marital property that you think should be given to you.
-It helps greatly to value your property. Any asset valued at over $500 or more should be noted and things like homes, real estate and vehicles should be valued by a Realtor or appraiser.
-It’s rarely worth it to fight over the small stuff. Make a list of items that you could do without even though you allege the property should be yours. There are always some items that you may want but are willing to give up to retain other items that are more important to you. Essentially, it ca help to make a “wish list” and a “reality list” prepared before discussing property division.
-Situations could arise where you have to sell an item. If you and your spouse can not agree on who should maintain possession of an item, you may be able to agree to sell the item and divide the proceeds.
-It’s important to check on any retirement plans you or your spouse may have. Some retirement plans do not allow for division of assets without a court order. Look into any retirement plans’ terms of agreement before discussing property division.
Sources: SC§20-3-10; SC§20-3-30; SC§20-3-60; SC§20-3-80; SC§20-3-90; SC§20-3-180
If you are interested in seeking an uncontested flat fee divorce please either file out this form and we will call you or call Alex Kornfeld at 864-335-9990.
by Alex KornfeldGREENVILLE AND PICKENS IMPLEMENT NEW SUBSTANCE ABUSE DIVERSIONARY PROGRAM-DRUG CHARGES CAN BE DISMISSED
The Thirteenth Circuit Solicitor’s Office has implemented a pilot program for people charged with non-violent drug offenses. The program is at the discretion of the Solicitor and participation is voluntary.
If admitted to the program one must complete a twelve-week drug rehabilitation program. If one successfully completes the program the drug charges will be dismissed.
If you have been charged with a drug offense give Alex a call at 864-335-9990.
http://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2017-04-18-02
by Alex KornfeldGOLF CART PERMIT LAWS IN SOUTH CAROLINA
Golfers, tourist, tailgaters, and beach bums have inquired about golf cart laws in South Carolina. In this article, I’ll explain what is required for one to drive a golf cart on a public road and the restrictions that apply.
First, a golf cart owner must get a permit decal and a registration from the SCDMV upon payment of a five dollar fee, proof of ownership, and proof of liability insurance. You also have to declare under penalties of perjury that you will maintain liability insurance throughout the registration period. The registration period is five years and must be renewed every five years or when the permit holder changes his address, whichever occurs first. The statute does not state what the penalty is for failing to maintain liability insurance.
Second, a person operating a permitted golf cart must be at least 16 years of age, hold a valid driver’s license, and must have the registration certificate issued by the DMV, proof of liability insurance, and his driver’s license.
Thirdly, a permitted golf cart can be operated:
During daylight hours within 4 miles of the address (you can have up to two addresses) on the registration certificate on secondary streets where the posted speed limit is 35 miles an hour or less;
OR 4 miles from the entrance to a gated community so long as the cart is being operated on a secondary highway where the posted speed limit is 35 miles an hour or less during daylight hours;
OR during daylight hours on an island on a secondary street where the speed limit is 35 miles an hour or less and is not accessible by a bridge designed by automobiles.
You can cross a highway or street where the highway has a posted speed limit of more than 35 miles an hour.
A political subdivision may reduce the area in which a permitted golf car may operate from 4 miles to two miles.
References:
http://www.scstatehouse.gov/code/t56c002.php
http://www.scdmvonline.com/DMVNew/forms/GC-2.pdf