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.
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.
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.