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.