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.
IS AN ENGAGEMENT RING MARITAL PROPERTY IN SOUTH CAROLINA?
An engagement ring given prior to the marriage is considered a conditional gift. A conditional gift is a gift that is ‘conditional’ upon another act. In the case of an engagement ring, the condition that must be met is the marriage. If an engagement is ‘broken off’ then the condition is not met and the ring should be returned to the person who gave the ring if he requests the return of the ring.
If an engagement is ‘broken off’ and the ‘giver’ of the ring wants the ring back it is best for the ‘giver’ to request the return of ring in a timely fashion or else the ‘giver’ may expose themselves to a more complex legal action in which the question may become, ‘Whether the ring was conditional or whether it was an outright gift’.;
If the parties get married:
If, however, an engagement ring is given prior to the marriage and the parties wed the condition has been met and the engagement ring is considered the woman’s non-marital property in South Carolina.
If one party files for divorce:
If a party files for divorce under the scenario explained above the engagement ring will most likely be considered the non-marital property of the wife.
Sources: McClerin v. McClerin, 425 S.E.2d 476 (1992); Campbell v. Robinson, No 4969 (SC Ct. App., May 9, 2012); SC Code of Laws § 20-3-630
Alex Kornfeld is a Divorce and Family Law Attorney in Greenville, South Carolina. His practice consists primarily of Family, Criminal Defense, and Business Law issues. You may reach Atty. Kornfeld at his office at 864-335-9990.
The factors a Court considers when determining support depends on the parties gross income or potential gross income, daycare expenses, extraordinary medical bills, insurance coverage, educational expenses or other expenses that are relevant to protecting the best interest of the child.
In most cases, the Courts follow the South Carolina Child Support Guidelines. The Court might also look at income generating assets.
The Court will considered support of other children or adopted children living in the payee’s home. A payee who also supports a step-child that is in the home is not included in equating child support unless the payee is legally responsible for support that child.
The guidelines have three separate worksheets; sole, split, and shared custody. Each worksheet quantifies the amount of time spend with each child to decide what amount of support is appropriate for the child.
In South Carolina, the Court has discretion to Order the payee to pay the payor directly or pay through the Court. If the Court orders the payee to pay through the Court the payee will be required to pay an additional 5% court cost.
If you are curious about what amount of support may be awarded you may go to http://www.state.sc.us/dss/csed/calculator.htm. This is just an estimate and certain factors that may be unknown could change the amount significantly. If you are interested in reading the guidelines go to http://www.state.sc.us/dss/csed/forms/2006guidelines.pdf.
Alex Kornfeld is a Family Law Attorney here in Greenville, South Carolina. His practice consists primarily of Family Law, Criminal Defense, and Business Law. You may reach Atty. Kornfeld at his office 864-335-9990
Sources: Marriage and Divorce Law in South Carolina, A Layperson’s Guide 3rd edition;
The SCDSS website.
CAN YOUR SPOUSE BE FORCED TO TESTIFY AGAINST YOU IN SOUTH CAROLINA?
With the recent plot of Breaking Bad, I’ve received some inquires about whether a person can be compelled to testify against their spouse during a trial (civil or criminal) in a South Carolina State Court. In most cases, the answer is ‘no’ unless the communication was not vocal or if it concerned or was based on child abuse, neglect, the death or a child, or criminal sexual conduct involving a minor. See SC Code 19-11-30.
In this season (season 5) of Breaking Bad it will be interesting to see whether Jesse Pinkman divulges any information about a child’s death that would make an otherwise valid spousal immunity privilege that may be invoked by Walter or Skyler invalid if they were charged with a crime in South Carolina.
In short, Skyler can choose to testify against Walter, but she can’t be forced to unless it involves the death of a child, or an exception like the one stated above.
Once can only presume the legislatures intent when drafting this law was to promote confidential communication amongst spouses.
The spousal immunity privilege is not as strong as an attorney-client privilege because this privilege can be enacted by a spouse but a spouse can also choose not to enact the privilege. Further, the South Carolina Supreme Court held that the physical act of assault may not be considered as communication. In the case of State v. Govan, 320 S.C. 392 the Court held a spouse can be compelled to testify to what occurred between spouses if the occurrence is an action. Essentially, acts are not considered communication that would be eligible for the spousal immunity privilege.
Alex Kornfeld is a Criminal Defense and Family Law 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 Atty. Kornfeld at his office 864-335-9990
Grandparents Rights in South Carolina
Controlling Statute: SC Code Ann. § 63-3-530 (A)(33) (2009) …(33) to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
(1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
(2) the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and
(3) that awarding grandparent visitation would not interfere with the parent-child relationship; and:
(a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.
The Court will consider the best interest of the child, as well as any harm caused by too many people having Court ordered rights to a child, as well as the grandparents’ bond with the child.
South Carolina Grandparents Rights to Visitation:
The Family Court is a Court of Equity and the Judge has wide latitude to rule. The Judge will consider several factors before ruling. If the grandparents have created a very strong bond with the grandchild(ren) the Court may order up to one week each month and up to two weeks each summer. If there is a less than strong bond and the Judge still rules in favor of the grandparent the Judge will order as she/he feels is in the best interest of the child(ren).
Relevant Case Law:
Dodge v. Dodge, 332 S.C. 401, 505 S.E.2d 344
Troxel v. Granville, 530 U.S. 57
Grantham v. Weatherford, 425 S.C. 111
SC Bar: Grandparent Rights
The article below was taken from the SC Bar Website. You can read it below or find it here: https://www.scbar.org/public/get-legal-help/common-legal-topics/grandparent-rights/
In South Carolina, grandparents’ rights are derivative of their child’s rights. This means that in typical circumstances, a grandparent may visit with a grandchild only when the grandparent’s child has visitation.
The law is clear that parents have a protected liberty interest in the care, custody, and control of their children, and that this is a fundamental right protected by the Due Process Clause in the United States Constitution. The court must give “special weight” to a fit parent’s decision regarding visitation. A court considering grandparent visitation over a parent’s objection must allow a presumption that a fit parent’s decision is in the child’s best interest. So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parents children. Camburn v. Smith, 355 S.C. 574, 586 S.E.2d 565 (2003).
The Family Court can grant visitation to a third party over a fit parent’s objection when faced with compelling circumstances, such as significant harm to a child. Compelling circumstances will be determined on a case-by-case basis, but the Court will consider the children’s best interests in deciding custody and the judge will consider several factors including: the children’s relationship with each other and with their parents; the children’s adjustment to home, school, and community; the mental and physical health of all children and their parents; and, in certain circumstances, the wishes of the child or children. However, it is not enough just that a child may benefit from contact with a grandparent.
When one parent dies, the parents of the deceased may still be able to have visitation rights if the meet the criteria in S.C. Code Ann. § 63-3-530(33) and can show compelling circumstances.
South Carolina also recognizes the doctrine of a psychological parent. There is a 4-part test which is used to evaluate whether or not a person qualifies as a psychological parent:
1. that the child’s biological or legal parent or parents consented to and facilitated the formation and establishment of a parent-like relationship with the child;
2. that the petitioner and the child lived together in the same household;
3. that the petitioner undertook obligations of parenthood through responsibility for the child’s care, education, and development without expectation of financial compensation;
4. that the petitioner has been in a parental role for a length of time sufficient f or a parental bond to be established with the child. Middleton v. Johnson 369 S.C 585, 633 S.E.2d 162 (Ct.App. 2006).
According to S.C. Code Ann. § 63-15-60, a grandparent may also qualify as a de facto custodian in some circumstances. A de facto custodian means, unless the context requires otherwise, a person who has been shown by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:
1. has resided with the person for a period of six months or more if the child is under three years of age; or
2. has resided with the person for a period of one year or more if the child is three years of age or older.
In gathering information to assist in making a decision, a judge may use investigative agencies, psychologists and others. The Judge may also appoint a lawyer to represent the interest of a child or children.
In South Carolina each parent has equal rights concerning the minor child(ren) regardless of who has custody of the minor child(ren) unless these rights are prohibited by the court. This means each parent has equal rights to all educational records, medical records, and the right to participate in their child’s school activities. If you are the biological parent or legal parent of a child and no Order exist or the Order does not restrain your rights then you have equal rights as stated in the statute below. It is important to read an Order of the Court very carefully. As always, the best interest of the child is the paramount concern of the Court. The full language of the statue can be found below.
S.C. Code§ 63-5-30 Rights and duties of parents regarding minor children:
The mother and father are the joint natural guardians of their minor children and are equally charged with the welfare and education of their minor children and the care and management of the estates of their minor children; and the mother and father have equal power, rights, and duties, and neither parent has any right paramount to the right of the other concerning the custody of the minor or the control of the services or the earnings of the minor or any other matter affecting the minor. Each parent, whether the custodial or noncustodial parent of the child, has equal access and the same right to obtain all educational records and medical records of their minor children and the right to participate in their children’s school activities unless prohibited by order of the court. Neither parent shall forcibly take a child from the guardianship of the parent legally entitled to custody of the child.
Attorney Alex Kornfeld is a Family Law Attorney in Greenville, South Carolina. He serves clients in the area of Child Custody Law, Divorce, Child Support, and Parental Rights. If you are facing a Family Law issue, contact him today.
If you would like to legally change your name in the state of South Carolina and it is not due to marriage or pursuant to a divorce you must provide:
(1) Your fingerprints and a criminal background check must be conducted by the State Law Enforcement Division or SLED. Your fingerprints should be taken by your local law enforcement agency. The background check costs $25.
(2) A statement from the Department of Social Services (DSS) that states whether you are on the department’s Central Registry of Child Abuse and Neglect.
(3) A sworn statement written and signed by you stating whether you are under a court order to pay child support or alimony.
(4) A statement from the South Carolina Law Enforcement Division stating whether you are on the sex offender registry.
After you and your attorney provide the following information to the Court, a hearing will be set and a Judge will make an informed decision and determine whether to grant your name change.
Within 10 days of your name change, you must change your name on your South Carolina DMV records. When you change your name with the department, all of the vehicle and driver records that relate to you will be updated.
To change your name you must visit a DMV office, complete Form 4057, and present proper documentation such as your court order. You cannot change your name by mail or online. Information about changing your name on your driver’s license can be found at SCDMVonline.com.
If you are seeking representation in a name change please call Alex at 864-335-9990. Right now, Alex Kornfeld is willing to represent you in a name change for $1,200 in Greenville, Spartanburg, Pickens, Anderson, or Anderson. This fee includes the filing fee, the SLED fee, and the DSS fee. Alex will travel to other counties but the fee will be slightly higher.
If a visitation agreement is not or cannot be made between the parties, a Court will order what it deems appropriate. Remember, in almost all instances custody circumstances are modifiable.
One of the most hotly contested issues in family law is custody. The Court will look at a number of factors in considering what is in the best interest of the child.
Some of those factors are:
- Child’s preference
- The character, fitness, attitude and inclinations of each parent
- Written agreements between the parties
Child Support/Change of Custody: In most cases, before a Court will modify a previous Custody Court Order, you must show that there has been a substantial and material change of circumstances since the current Order became effective.
Petition for an Order of Protection: If your need protection for a household member because you have been abused, it may be in your best interest to file a petition for an Order of Protection.
Complete Custody, Property, and Support Agreements: An overwhelming number of divorce cases settle before going to trial. If you and your spouse have come to an agreement on all or most of the issues, it may be beneficial to draft a proposed agreement that illustrates your intentions and present this to the Court. Many times, if the Court finds that the agreement is fair and equitable to both parties and the children, the Court will approve the agreement and make it part of the Court Order. It is always advisable for both parties to consult their own attorney before deciding whether an agreement is in fact fair. The advantages to coming to an equitable agreement are many, but include peace of mind, time, and money.
Q: What should I expect when pursuing a divorce?
A: In all cases, pleadings must be filed with the family court and the Defendant must be served. Depending on the complexity of the case and need of the client, several events may happen such as temporary hearings, investigation, discovery, the gathering of information, subpoenas, mediation, and final hearings.
Q: How will the marital assets and debts be divided?
A: It depends. The Court has wide discretion and usually considers several factors when dividing marital assets and debts.
Q: How long will it take for the divorce to be final?
A: Divorces can be finalized within a matter of months or they may take years to finalize. The longest divorce trial may have taken a total of 86 days and cost over $13 million dollars. See http://www.totaldivorce.com/news/articles/unusual/longest-divorce-case.aspx for an interesting read.
Q: Will I be ordered to pay or will I receive alimony?
A: Alimony is ordered to put the supported spouse in a position similar to that in which they enjoyed during the marriage. Courts will consider, among other things, the duration of the marriage, the educational background of each spouse, employment history or earning potential, expenses, property of the parties, or marital misconduct.
Q: Do I need to go through the Courts to get a separation or can I just get a divorce?
A: It depends. In most cases you will have to be separate and apart for over a year before you can file for a divorce. Filing for a separation may be advantageous or necessary, especially if you have minor children
Q: How does the Court decide custody?
A: There are three common types of custody in custody law; they are sole, joint, and split. The Court’s paramount concern is the best interest of the child. To determine this, the Court considers several factors such as who has been the primary caretaker. The Court may appoint a guardian ad litem to represent the interests of the child(ren).
Q: Things have changed since the Court made its finding concerning custody. Can the order be changed?
A: Due to the very nature of child custody, child custody orders are always modifiable.
Q: What is the remedy if child support is not paid?
A: If one who is ordered to pay child support fails to pay without cause, it may be in the child’s best interest if the parent is brought before the Court.
Q: What if things have changed in such a way that I can no longer pay the Court Ordered Child Support?
A: It may be in your best interest to file a motion with the Court for a modification of your child support payments.
Order of Protection:
Q: I’m afraid of someone, what should I do?
A: You may need an Order of Protection. An Order of Protection will give legal protection to the petitioner or minor household members from the abuse of another household member where the aggressor has received notice of the proceedings and has had an opportunity to be heard.
Q: I have questions about whether I’m actually the father of the child, what should I do?
A: A finding of paternity can be made by a Judge. A Judge may order the parties to submit to a DNA test to make a finding.
Q: I think I’m the father of the child, but the mother of the child won’t let me see the child, what should I do?
A: If you believe you are the father of a child, you will have grounds to bring a suit in an effort to adjudicate paternity regardless of whether the mother is married.
Q: I’m not getting a divorce, but I would like to change my name or my child’s name. How does the process work?
A: See my blog! How to Change Your Name In South Carolina
Marital Dissolution Agreement:
Q: My spouse and I want to get a separation or divorce, and we have agreed on custody, asset/debt division, property, and everything else. How do I move forward?
A: Having a lawyer draft a complete and detailed marital dissolution can protect you as well as guard you from legal fees, stress and provide overall peace of mind.