Family Law Attorney

Adoption and child custody matters are by far the most emotionally-driven area of law. Any seasoned attorney can speak volumes on the pain and emotions that take place in the family court over these two areas of practice. It is important to find an attorney who you believe understands this area of law and what you are experiencing emotionally. Sometimes clients need direction, how to get help and stay on track.

Adopting a child is undoubtedly the most heartwarming event that takes place in the Family Courts. However, it can be quite expensive and complicated. There are Guardian Ad Litems to be appointed on the child’s behalf, adoption specialist, attorneys, background checks, and other charges. This undoubtedly discourages parents from adopting children in their care.

Going through a divorce is one of the most frustrating experiences of your life, your spouse’s life, and your child’s life. It is important not to take the divorce process personal. An individual cannot help but to take it personal especially since one party may be forced to give up a great deal. However, it is even more important to recognize that the divorce process is totally new to the children of the marriage, and when the parents decide to no longer live as husband and wife; this has the potential of hurting the children emotionally. Both parents must realize that the divorce is not the fault of the children, and they should not be used to hurt or cause problems to the other parent.

Parents need to understand that the child’s best interest should always govern who should get custody. Paying or receiving child support should not ever be the number one concern in a child custody preceding. Always put the child’s need ahead of both parents. If parents were to follow this rule there would be a great reduction in the number of child custody cases being litigated. However, we understand that sometimes the court must decide because it too hard for one parent to let go or one parent is simply too unreasonable.

The Department of Social Services for the state of South Carolina has set guidelines for the Court to follow when determining which parent is to pay child support and how much that parent is to pay. The link below will take you to the child support calculator for the state of South Carolina. With tools such as this, child support should rarely be litigated as it is most of the time a waste of money. However, there are certainly times we need to deviate from the guidelines dictated by the Department of Social Services. A close examination of the facts and circumstances with an attorney will help determine if a deviation from the guidelines is warranted/needed.

Going through a divorce is one of the most frustrating experiences of your life, your spouse’s life, and your child’s life. It is important not to take the divorce process personal. However, it is even more important to recognize that the divorce process is totally new to the children of the marriage, and when the parents decide to no longer live as husband and wife; this has the potential of hurting the children emotionally. Both parents must realize that the divorce is not the fault of the children, and they should not be used to hurt or cause problems to the other parent.

I strongly recommend to my clients to consider marriage counseling before seeking a divorce. However, if you or a loved one are in danger please take the appropriate actions to protect yourself and your loved one.

• Adultery: Opportunity and Inclination to commit adultery equates a prima facie case for adultery.
• Desertion: After one party abandons the other party for a period of at least one year (rarely used as a ground for divorce).
• Physical cruelty: Events such as minor pushing on one occasion is not enough.
• Habitual drunkenness: (both alcoholism and drug abuse) (“in order to prove habitual drunkenness, there must be a showing that the abuse of alcohol caused the breakdown of the marriage and that such abuse existed at or near the time of filing for a divorce.” Fisher v. Fisher 276 S.C. 375, 278 S.E.2d 780 (1981)).
• Separation for a period of one year: (No Fault) Either party, Husband or Wife, can petition the court for a divorce after the couple has lived separate and apart for a period of one year or more. Generally, if not always, the courts want a witness to corroborate the one year of living apart from one another.

The answer is No. You can always petition the court to get an order to live separate and apart if you have proper grounds to do so. Then later seek the divorce.

• Permanent Periodic: Generally, permanent periodic alimony refers to monthly payments paid to one spouse from the other permanently.
• Lump Sum: Generally, lump sum alimony is a determined set amount that can be paid in one installment or over a period of time. But the amount is set and determined.
• Rehabilitative: Generally, rehabilitative alimony is to provide for additional training, education, or for support while one spouse obtains the needed training or education.
• Reimbursement: Generally, reimbursement alimony is to pay back or reimburse one spouse for their contributions to the other spouse.

Before a divorce is granted by a Family Court, the Family Court generally issues a temporary order that may or may not order one party to pay the other party a form of alimony called Temporary Spousal Support until a final hearing is held. This is to support the spouse that needs financial help.

Client always ask what is the process. This, undoubtedly, varies based on each family’s circumstance. However, when matters need to be addressed by a family court judge immediately a party can request an expedited/emergency hearing. Generally, the judge will grant the hearing within a week if, and only if, there is an emergency. If there is not an emergency, the court will grant a temporary hearing within a month or so, generally.

At the temporary hearing the parties’ attorneys will address the matters that need to be addressed on a temporary basis. There will be affidavits, financial declarations, and other documents submitted to the judge. The judge will issue an order based on the arguments and information submitted at this hearing. This order will most likely be called a temporary order. It is called a temporary order because it can be changed or modified at the final hearing.

After the court issues a temporary order, the parties will participate in discovery. Discovery is where the parties issue interrogatories, request for production, issue subpoenas, and take depositions of witnesses and parties.

Contested family law matters must be mediated prior to a final hearing. Mediation is where a licensed mediator, usually an attorney, will sit down with the parties to discuss the facts and circumstances, to see if the parties can reach an amicable agreement without having to go to trial. Mediation saves money, time, and stress. When you participate in mediation make sure you have an attorney and have an open mind.

If the mediation works, then the parties can request a brief hearing with the court to put the agreement on the record and turned into a court order. This hearing lasts about 20 minutes and the issues are made final and cannot be changed or modified except by agreement or by a showing of a substantial/material change of circumstances. Keep in mind not all issues can be modified.

Of course, each person’s case is different, and everyone should consult with an attorney prior to taking any legal action or reaching an agreement. The above is an outline of what a party might expect in a divorce proceeding.

When a person plans their estate, there are several factors that a person should to take into consideration. Of course, each person’s estate, desire, and ability to achieve certain goals vary person to person. However, there are a few basic aspects of a properly planned estate that virtually is universal in almost everyone’s life. These include, but are not limited to, a Last Will and Testament, a Power of Attorney, a Trust, a Living Will, and tax preparation.

The first item for a Testator (the person who is having their Last Will and Testament prepared) to make is who (devisee) is/are going to be given what items from the Estate. For example, who is given property at the time of death?

Another common matter that needs to be resolved initially is who is the most responsible/trust worthy person to be the Personal Representation (the person who works with the court, creditors, and others) to help probate the estate? Further, does the Testator desire to waive bond (bond is a form of insurance in case the Personal Representation fails to fulfill the fiduciary duty to those who are beneficiaries under the Will)? If a person fails to waive bond, then the Personal Representative may be forced to obtain bond by the court.

A trust could be created for a broad range of reasons. The Testator here would have to pick a Trustee (again someone responsible/trustworthy) to see to it that the Testator’s desires are carried out. A Trust could be created for a child, friend, spouse, family member, or anyone else. The Trust might limit the disbursement that the beneficiary could be given per year, per month, or even dictate why or when a Trustee may can give disbursements (i.e. for health, educational, or support). Trusts are most beneficial for a person who has an estate that is worth quite a bit of money. The Trust might not allow a child who is not responsible with money to obtain the funds all at once. A Trust might be created to prevent a beneficiary from spending all of the Testator’s hard-earned money on drugs or alcohol.

Another universally common area that I like client’s to be informed of is a Power of Attorney. A Power of Attorney gives a person the power/ability to act on behalf of the Testator/Author of the Power of Attorney. A Power of Attorney can be General, Specific, or Durable. A General Power of Attorney can give a person a broad range of Powers. For example, a Testator might have the Power of Attorney give a broad range of powers that may include the right to sell property, cash checks, pay bills, file taxes, or wide range of other areas. A specific Power of Attorney is usually for one or two purposes. For example, a person might give a person the power to sell a piece of property or purchase a piece of property. A Durable Power of Attorney is durable past mental incompetence. So, if a person becomes ill or insane the Durable Power of Attorney should remain effective.

A Living Will states the Testator’s decision that they have made concerning their health care in case they are no longer mentally competent to make the decisions on their own. For example, does the Testator desire life support or would they like to be an organ donor. Of course, there are more factors that a Living Will addresses.

The above is only a quick outline of factors a person needs to consider when starting their Estate Plan. Of course, each person’s life is different and unique, and your legal counsel and tax professional could help you further.