Spartanburg Divorce Lawyer & Attorney : Stevens-MacPhail Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

The South Carolina Supreme Court recently addressed the issue of whether a bigamous marriage can become valid if the prior marriage was annulled.  In Lukich v. Lukich, the Court found that a second marriage was bigamous, despite the annulment of the wife's first marriage, because the annulment was not procured until after the second marriage ceremony.  The Court specifically found that "while an annulment order relates back in most senses, it does not have the ability to validate the bigamous second 'marriage.'"  

Here are the interesting (yet complicated) facts of the Lukich case:

• In 1973, Wife married Husband #1.  They never lived together, but never divorced.
• In 1985, Wife and Husband #2 participated in a marriage ceremony.
• In 2002, Wife filed an action seeking separate support and maintenance and other related relief from Husband #2.  During the course of discovery, Husband #2 learned Wife had never been divorced from Husband #1.
• In 2003, Husband #2 filed an action seeking to declare his marriage to Wife void because it was bigamous.
• After that action was filed, Wife filed a separate suit seeking an annulment of her marriage to Husband #1.  That case was expedited, and an Order granting her an annulment was filed on October 31, 2003.
• Wife then filed a motion to dismiss Husband #2’s bigamy action based on the October 31, 2003, Order granting her an annulment and declaring her first marriage void ab initio. 
• The Family Court held that Wife was barred from defending against Husband #2’s action to void the parties' marriage on the basis of the Order of Annulment.
• Wife appealed, and both the Court of Appeals and Supreme Court affirmed, finding that since there was no marriage when the ceremony between Wife and Husband #2 was performed in 1985, there was nothing to be "revived" by the annulment Order in 2003.

You can read the full text of Lukich v. Lukich by clicking HERE.

 

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Question:  My wife's attorney recently served me with papers seeking a contested divorce.  I now live in a different state from my wife.  My wife knows that I have already retained an attorney in the same state in which she lives, but her attorney served the papers on me anyway instead of sending them to my attorney.  Do they have to send these papers to my attorney since he has been hired to represent me, or is it my responsibility to deal with them?

Answer:  In South Carolina, when a Family Court action is filed, the pleadings are almost always served on the other party, because the attorney usually does not know whether or not that person has hired an attorney.  In many cases, people claim that they have an attorney, when in fact they do not or when they have only met for an initial consultation.  If the other party really is represented by an attorney, that person can authorize his/her attorney to accept service of the pleadings on his/her behalf.  In any event, all you need to do in this situation is simply forward the papers to your lawyer for him to review and handle for you.

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The South Carolina Supreme Court issued an important decision today regarding cases heard under the Protection from Domestic Abuse Act.  This statute set forth in S.C. Code § 20-4-10 et seq enables victims of domestic violence to seek an "Order for Protection" to prevent such future abuse.

In Moore v. Moore, after the husband's was arrested for criminal domestic violence (CDV), the wife filed an action pursuant to the above-referenced Act, and she requested an emergency hearing.  At that hearing, the wife was offered a continuance to obtain counsel, but the husband’s request for a continuance was denied.  At that hearing, the Family Court found that the husband had abused the wife and their son, and it issued an Order of Protection.

The Court found that the husband was provided procedural due process prior to the issuance of the Order of Protection, and it affirmed the decision of the Family Court. The Court then found that an Order of Protection issued pursuant to an emergency hearing (a) is temporary, (b) does not represent a final adjudication of the merits of the action, and (c) should not be used against a party in future litigation.

You can read the full text of Moore v. Moore by clicking HERE.

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The following information is from the The Oregon Divorce Blog:

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

Source:  "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog.

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The new passport requirements that complicated travel this past summer have also uncovered vast numbers of parents who owe back child support.  Through its Passport Denial Program, the State Department denies passports to noncustodial parents who owe more than $2,500 in back child support. Once the owing parent has satisfied their child support arrearage, they may reapply for a passport.

Considering that millions of additional travelers are now required to have passports to fly back from Mexico, Canada, the Caribbean, and South America, collections under the Passport Denial Program are on pace to almost double this year.  States have reported collecting at least $22.5 million through the program thus far in 2007.  Perhaps this is one program that the government has finally gotten right.

Source: "New Passport Rules Help Recover Back Child Support" by Dan Nunley, published at his Oklahoma Family Law Blog.

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Gerald Williams of the Minnesota Divorce and Family Law blog posted the following article, which addresses the issue of settlements versus trials in family law cases.  Most experienced family law attorneys know that reaching an reasonable, amicable resolution is generally the best outcome in most cases, and this article provides some insight into why.  Here is Mr. Williams' article:

Why do some divorce and child custody cases settle out of court, and some cases have to go to trial?  There are many factors that determine whether a family law case will settle outside of court, the most important which involve the willingness of the parties to compromise, and the willingness of the attorneys for the parties to facilitate that compromise.

Preparing for and proceeding with a family court trial is a long, expensive process.  If the parties are close to reaching an agreement, but are unable to arrive at the final stipulated terms, both parties are likely to spend more on the expense of going to trial than they would if they EACH accepted the other party's terms.

Conversely, if the parties are not close to reaching an agreement, there most likely is a principal issue that needs to be addressed by the family court.  Examples are whether there should be any spousal maintenance at all; whether an antenuptial agreement is void or not; or whether a third party is entitled to visitation with a minor child.

In the first example, the AMOUNT of spousal maintenance might be resolved by compromise, but only if both parties presume that there will be spousal maintenance.  Otherwise, the dispute about whether there should be spousal maintenance at all may need to be decided by the court.  In the second example, how to apply the terms of an antenuptial agreement can be negotiated and compromised.  But if there is a fundamental question about whether the antenuptial agreement is even valid or not, the family court may need to render a decision.  In the third example, discussions about a visitation schedule cannot take place if there is disagreement about who is entitled to have the court-ordered right to have the subject minor child in their care in the first place.

One key advantage to a settlement out of court is the fact that the parties have the final say in the terms of their divorce or child custody dispute, rather than the court.  In all likelihood, the parties will be assenting to a conclusion that is not as favorable as their best possible result in court.  But it may be worth avoiding the risk of going to court and not getting the best possible result.

Source:  "Settlement Versus Trial" by Gerald Williams, published at his Minnesota Divorce and Family Law blog.

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A psychological (or de facto) parent  can be defined as a person who has, on a day-to-day basis, undertaken a parental role through interaction, companionship, interplay, and mutuality, that fulfills a child’s physical and psychological needs and provides for a child’s emotional and financial support.

South Carolina has adopted a four-prong test for determining whether a person has become a psychological parent.  Specifically, in order to demonstrate the existence of a psychological parent-child relationship, one must show:

1. that the biological or adoptive parent(s) consented to, and fostered, the person's formation and establishment of a parent-like relationship with the child;
2. that the person and the child lived together in the same household;
3. that the person assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4. that the person has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In announcing this test, the Court of Appeals stated that [t]hese four factors ensure that a nonparent’s eligibility for psychological parent status will be strictly limited.  It also cautioned that psychological parents do not automatically have the right to demand custody in a dispute between the legal parent and psychological parent, as the limited right of the psychological parent cannot usually overcome the legal parent’s right to control the upbringing of his or her child.

The Court reasoned that once the bond between the psychological parent and child was established, it should not be unilaterally severed by the biological parent who fostered the relationship in the first place.  The standard to be applied is whether compelling circumstances exist to overcome the presumption that a fit, legal parent acts in the child’s best interest, and of course, visitation must actually be in the child’s best interest. The compelling circumstances standard encompasses a situation where, as here, a third party has attained psychological parent status.

You can read much more about the role and status of psychological parents in South Carolina in Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162 (Ct. App. 2006).  This opinion includes a thorough discussion of this theory, including analysis of the decisions from other states.

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A mother who lost custody of her three children in a divorce has argued to the Washington Supreme Court that she should have had an attorney appointed to represent her.  The woman, who only has a ninth-grade education, attempted to get pro bono representation, but she was declined because of the complexity of her case.  As a result, she ended up representing herself, while her husband had an attorney.

Her appeal focuses on the open courts provision of the Washington state constitution includes an open courts provision, which says that justice in all cases should be administered openly, and justice shouldn’t be delayed.  The argument being made by the mother's appellate attorney is that "access" in this instance means "meaningful access," which requires a lawyer.

You can read much more about this novel theory in the article referenced below.  You can also follow this case, King v. King, No. 57831-6-1, at the Washington Supreme Court's website.

Source:  "Mom Wants State to Pay in Custody Battle" by Stephanie Francis Ward, published in the ABA Journal eReport.

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Last week in Ray v. Ray, the S.C. Supreme Court found that the wife's actions rose to the level of extrinsic fraud when she engaged in a scheme to hide assets from the court, using an unknown third party not subject to discovery during the divorce proceeding.  The Court found that Chewning v. Ford Motor Company does not limit extrinsic fraud to conduct perpetrated by attorneys. An act of perjury or concealment of a document coupled with an intentional scheme to defraud the court justifies the setting aside of a judgment due to extrinsic fraud.

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A few months ago, I became trained as a collaborative lawyer.  This process involves  handling cases differently than the traditional litigation approach, and it can work well in certain family law cases.  The collaborative law process is well explained in the following article by Maury D. Beaulier:

Collaborative law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "troubleshoot and problem solve" rather than to fight and win.

As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.

Each party in the Collaborative law process signs a contractual agreement which include the following terms:

• Disclosure of Documents.  Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither spouse may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
• Respect.  Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
• Insulating Children.  As part of the process all participants agree to insulate the children from the proceeding and to act ins such a way as to minimize the impact of the divorce on them.
• Sharing Experts.  The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (eg. real estate appraisers, business appraisers, parenting consultants, vocational evaluators, or accountants)
• "Win-Win" Solutions.  The primary goal of the process is to work toward an amicable solution and to create a "win-win" situation for all.
• No Court.  Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.

One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. How often have you heard stories of divorcing parties spending thousands of dollars in legal fees to argue about pets or furniture that has limited monetary value.

Generally speaking, the parties in such cases are not arguing about dogs, cats, or furniture. Instead, they are reacting to psychological pains that they experiencing These emotional issues that are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.

A team of professionals is assembled to help the parties understand and resolve their disputes i many different contexts. The disputes maybe legal disputes or emotional and include: mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed.

A child specialist may play a very important role in the collaborative process. So often, children become the unintended victims in divorce proceedings. They internalize the conflict and often blame themselves for the break up of their family. The child specialist works with children of divorcing parents. It is their job to assist the children in understanding that the parental dispute is not their fault and to teach them how to cope and communicate with their parents. In this way, the children have a voice in the proceedings and become part of the team process.

Financial professionals may be used to help define values of assets. In the litigious court process often redundant appraisals are performed by one expert for each party. The end result is a duplication of services at greater cost and with increased distrust. this often results in an expensive war of experts at trial where each expert testifies regarding their different valuations. In the collaborative process, the parties choose a neutral appraiser that is not associated with either party. With a trust relationship established, the parties agree on some division of cost and agree to be bound by the appraised value.

Most Cases Settle. The Statistics state that more than 90% of all divorce cases are resolved without a trial. In the Court system that resolution often comes more than a year after the divorce was commenced and after many hurtful statements have been made part of the public record in the form of affidavits and motions. Doesn't it make more sense to seek that resolution before the bridges are burned and the missiles are launched in a courtroom? Certainly, collaborative law will not work in every case. After all, it takes two to tango and it takes two willing participants to effectively use the collaborative law process. However, in the cases where collaborative law has been used, even if reluctantly, there have been more rapid settlements at a fraction of the normal cost associated with divorce.

Source:  "Collaborative Law: Divorce without War" by Maury D. Beaulier, published at DivorceSource.  Thanks to Grant D. Griffiths of the Kansas Family & Divorce Lawyer blog for his post on this subject.

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As discussed in my last post, there are at least two hearings in most Family Court cases:  a temporary hearing and a final hearing.  The final hearing is sometimes referred to as a merits hearing.  At the final hearing, each side presents witnesses to testify as to the facts of the case.  Both parties are allowed the necessary amount of time to testify and to present their evidence about the case.  Final hearings can last anywhere from 15 minutes to several days, depending on what facts are at issue in that particular case.

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In most Family Court cases, there are at least two hearings:  a temporary hearing and a final hearing.  The temporary hearing is sometimes referred to as a motion hearing, because the Court addresses the issues specified in a Motion for Temporary Relief.  At the temporary hearing, the Court determines how the issues in each specific case will be addressed between that date and the final hearing.

Each attorney briefly states his client’s position, and each side presents Affidavits (written statements from the parties and witnesses) to support his client’s position.  There is usually no “live” testimony given by the parties at the temporary hearing.  The Judge will then make a decision after reading the pleadings and affidavits.

However, some Judges do not read the Affidavits, while others do not give the attorneys much opportunity to argue their client’s position at this hearing.  Some Judges make decisions at the hearing, and others take the matter under advisement and let the parties know their decision at a later date.  The specific procedure in temporary hearings tends to vary slightly from Judge to Judge, case to case, and even from day to day.

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Most contested Family Court cases consist of at least two hearings. The first hearing is called a temporary (or motion) hearing, and the second hearing is called a final (or merit) hearing.

Temporary Hearing:  At this hearing, the Court determines how the issues in that specific case will be addressed between that date and the final hearing.  Each attorney briefly states his client’s position, and each side presents Affidavits (written statements from the parties and witnesses) to support his/her respective position. There is usually no “live” testimony given by the parties at the temporary hearing.

The Judge usually makes a decision after reading the pleadings and affidavits.  However, the specific decision-making process varies from judge to judge, case to case, and even day to day.  For instance, some judges don't read the Affidavits, while others don't give the attorneys much opportunity to argue their client’s position.  Some judges make decisions at the hearing in everyone's presence, but others take the matter under advisement and let the parties know their decision later.

Final Hearing:  At the final hearing, each side has an opportunity to present his/her witnesses, who testify as to the facts of the case.  Each party is allowed the necessary amount of time to testify and to present his/her evidence about the case.  Final hearings can last anywhere from 15 minutes to several days, depending on what facts are at issue in that particular case.

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Clients often ask whether their child can (or will have to) testify in Family Court.  The answer is generally no in almost all cases.  Most experts agree that it is never good for a child to testify in Court, and it may lead to serious psychological damage later in addition to permanently injuring the relationship between the child and one or both parties.

In rare cases, children can sometimes be witnesses in Family Court cases.  In such cases, the child must be of sufficient age or awareness that his/her testimony will be believed.  In some cases, the Judge may agree to talk with a child in Chambers, but most Judges don't -- except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.

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In South Carolina, all Family Court cases are decided by a Judge, not a jury.  Typically, the only people present in the courtroom are the lawyers, the parties themselves, the Judge, the court reporter, the bailiff (Sheriff's Deputy), and sometimes the witnesses. 

However, witnesses can be (and frequently are) required to remain outside the Courtroom until after they have testified.  In contested cases, attorneys generally do not want the witnesses' testimony to be influenced, biased, or tainted by hearing the testimony of other witnesses.

Source:  Stevens - MacPhail, P.A. website

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The U.S. Department of Labor published an article which answers the following common questions about drafting Qualified Domestic Relations Orders (QDROs):

• What is the best way to divide a participant's pension benefits in a QDRO?
• How much can be given to an alternate payee through a QDRO?
• Why are the reasons for dividing the pension benefits important?
• In deciding how to divide the participant's pension benefits, why is understanding the type of pension plan important?
• What are survivor benefits, and why should a QDRO take them into account?
• How may the participant's retirement benefit be divided if the pension plan is a defined contribution plan?
• How may the participant's retirement benefit be divided if the pension plan is a defined benefit plan?
• May the QDRO specify the form in which the alternate payee's benefits will be paid?
• When can the alternate payee get the benefits assigned under a QDRO?
• What is earliest retirement age, and why is it important?

Source:  "Drafting Qualified Domestic Relations Orders" published at the U.S. Department of Labor website.  Thanks to Grant D. Griffiths for his article on this subject published at his Kansas Family & DIvorce Lawyer blog.

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Attorneys should be sure that their clients understand the basics of what "burden of proof" must be proved in their divorce cases.  The more a client knows, the more helpful he/she can be in obtaining the necessary evidence to help the attorney prove the case and obtain the divorce.

Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.

It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.

In rare cases, the Judge may not require corroborating evidence if he is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.

Source:  Stevens - MacPhail, P.A. website

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Qualified Domestic Relations Orders (QDROs) are documents used to allocate retirement accounts when parties get divorced.  For people that don't regularly deal with QDROs, they can be quite confusing.  Fortunately, the U.S. Department of Labor published an article which answers many of the most common questions in great detail, including:

• What is a Qualified Domestic Relations Order?
• What is a Domestic Relations Order?
• Must a Domestic Relations Order be issued by a state court?
• Who can be an Alternate Payee?
• What information must a domestic relations order contain to qualify as a QDRO under ERISA?
• Are there other requirements that a domestic relations order must meet to be a QDRO?
• May a QDRO be part of the divorce decree or property settlement?
• Must a domestic relations order be issued as part of a divorce proceeding to be a QDRO?
• May a QDRO provide for payment to the guardian of an alternate payee?
• Can a QDRO cover more than one plan?
• Must all QDROs have the same provisions?
• Who determines whether an order is a QDRO?
• Who is the administrator of the plan?
• Will the Department of Labor issue advisory opinions on whether a domestic relations order is a QDRO?
  

Source:  "Qualified Domestic Relations Orders" published at the U.S. Department of Labor website.  Thanks to Grant D. Griffiths for his article on this subject published at his Kansas Family & DIvorce Lawyer blog.

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Once the Court hears a matter, the presiding Judge instructs one of the attorneys to prepare the proposed Order, which sets forth the Court's ruling in that particular case.  Sometimes this request is made immediately at the conclusion of the hearing, and other times it is made later after the Court has had adequate time to consider the issues and make its decision.

I recently had someone contact me to ask how long the attorney has to prepare a proposed Order and submit it to the Court.  The answer is that there no "one" answer and it can vary from Judge to Judge, but as with most things in Family Court, it must be done within a "reasonable" time.

Some Judges have very strict guidelines as to how soon they require proposed Orders to be submitted.  It is rare to have a Judge demand an Order be submitted in less than ten (10) days, because it has to be drafted, reviewed by the opposing counsel, and then forwarded to the Court, each of which requires a little time to accomplish. 

Other Judges are much more relaxed on how soon they receive proposed Orders.  I have seen instances where Orders were not submitted for several months after the hearing was concluded.  Sometimes that happens because the Judge took an unusually long time to make a decision.  In other cases, there could be a disagreement between the attorneys over certain language that one wants to include in the proposed Order.  Unfortunately, in some cases, the attorney responsible for preparing the Order simply delays doing so, due to his/her work load, other obligations, and/or simple procrastination.

Personally, I strive to have the proposed Order forwarded to the opposing counsel as soon as possible, because I like to draft the Order while the Judge's ruling and the facts of the case are still fresh in my mind.  Typically, this process occurs within a week to ten days from the time I receive the Judge's instructions.  Of course, there have been times that this process has taken longer, but I make a concerted effort to have Orders drafted, circulated, filed, and distributed as soon as practical in my cases.

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Question:  What is the Biggest Mistake Fathers Make in Paternity Cases?

Answer:   Delaying. Many fathers wait too long to legally establish paternity in the family court. While many fathers do not understand the importance of having the family court declare them the legal father of their child and delay on that basis, other fathers simply wait until the relationship with their child's mother goes south or a process server serves them (the father) with papers for child support, child custody and/or visitation. This results in substantial problems that could have been avoided by dealing with the issue under the applicable family laws right away.

Some of the problems delay in establishing paternity can cause include decreased chance of primary physical or joint custody, child support arrearages, an appearance of disinterest and the impression that the Arizona courts are not fair to fathers. Let me explain:

Child Custody and Visitation: The courts like consistency in a child's life. Thus, if a father does not does not have a court order declaring him to be the legal father, it is very likely that the mother has been allowed to prevail on disputed issues regarding those entities that require proof of a parent's legal rights to make decisions. Such entities include schools, daycares, medical facilities, the Office of Vital Records and the like. Thus, it is likely that when it comes to making its decision about legal custody, the family courts usually go with the perceived status quo.

Similarly, if a father does not have anything done officially in the courts to solidify his rights, the mother has complete control over visitation and it is very possible that the father will be having access to his child less than he would prefer. So, as with custody, the family court may opt for the status quo, meaning that the father will receive the [possibly minimal] visitation he received up to the time the family court became involved. Thus, establishing legal rights early can help prevent a negative status quo. Of course, many fathers have their children residing with them or while also living with the child's mother and that is a very relevant factor the court considers when determining child custody and visitation, regardless of when the family court officially declares paternity and visitation rights.

Child Support Arrearages (Arrears): At the time the family court establishes legal paternity (via an "Order of Paternity"), the family court almost always also establishes child support. Like it or not, the family court also routinely orders that child support be made retroactive to a certain date. How far back the family court can go in retroactively apply child support varies based on a case's particular facts but the normal rule of law is three years. Thus, if a father either paid nothing or underpaid pursuant to the Child Support Guidelines, the father will have to pay both his current support and the arrears. In addition, the court can order that the father pay costs associated with the child's birth and the mother's expenses related thereto. Therefore, it is best to legally establish paternity quickly to avoid having large child support arrearages and other amounts owed.

The Appearance of Disinterest: It is possible that when a father waits too long to officially request his legal rights to his child, a family court judge could see it as a sign of disinterest. This varies from situation to situation but in the case where a father does not live with his child, it looks better when the father shows enough interest to study up on his legal rights and initiate court proceedings to officialize custody and visitation (parental access), decision-making rights and child support. In particular, judges may see in negative terms a father's request for visitation and other legal rights done only after a mother brings an action in the family court to establish paternity and child support.

Unfairness to Fathers: There may a number of factors that make some believe that the family courts are not fair to fathers when it comes to child custody, child support and parenting time. Obviously, that is a big debate. However, my personal experience shows me that the perception is worse for those fathers who delay establishing paternity. As discussed above, delay can mean that mothers have an advantage over fathers.

Source:  "What is the Biggest Mistake Fathers Make in Paternity Cases?" by Trent Wilcox, published at his Arizona Divorce & Family Law blog.

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As I posted yesterday, judges want parties to act reasonably in their Family Court cases.  However, judges also want attorneys to do the same.  As discussed in my post today at the South Carolina Personal Injury Law blog, some judges have made it clear that they will not tolerate uncivil or unreasonable conduct from attorneys appearing before them.

For instance, U.S. District Judge Sam Sparks of Austin, Texas issued an Order in 2004 in which he said that he felt like he is supervising kindergarten, because the lawyers involved in a civil suit in his court were acting like they never learned how to get along with others.  Judge Sparks' Order expressed his "disgust" at the lawyers' conduct, and said "The Court simply wants to scream to these lawyers, 'Get a life' or 'Do you have any other cases?' or 'When is the last time you registered for anger management classes?'"

Fortunately, while there are exceptions, the vast marjority of attorneys in South Carolina are civil to one another and do abide by the rules, both in word and in sprit.  I detest working with attorneys who do not, and I make every effort to avoid having them involved in my cases whenever possible. 

Those cases in which the parties and attorneys work in good faith toward a fair and equitable resolution are the ones that tend to (a) settle amicably, (b) get resolved sooner rather than later, (c) tend to be less expensive, and (d) give the parties the best chance to have a working relationship with each other after the case is concluded.

You can read more about the outrageous conduct of the attorneys in the Texas case as well as Judge Sparks' full opinion by reading my post, "Judge Condemns Attorneys for Outrageous Behavior" at my South Carolina Personal Injury Law blog.

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One question that is frequently asked is whether someone can put his/her spouse out of the home without his/her consent.  When spouses cannot get along and at least one party realizes that they are headed toward separation or divorce, this issue must be addressed sooner or later.

The answer is that until and unless the Family Court issues an Order stating otherwise, both spouses have equal rights to the residence.  As such, each can try to put or keep the other out, typically by changing the locks and alarm codes.  However, the displaced spouse can take any necessary steps to regain entry to the home, including "breaking in" if necessary.  One cannot be criminally charged in South Carolina for breaking into his/her own home. 

Once the Family Court addresses this issue, an Order will be issued which clearly sets forth the parties' rights, responsibilities, and obligations with regard to the home.  Such an Order will generally set forth which party has the exclusive temporary use and possession of the home, as well as how the expenses related to the home will be paid as the case progresses.

Please note that I am not recommending that anyone put his/her spouse out of the house or that anyone forcibly break back into his/her home.  Those issues are very fact specific and trial strategy  with an experienced family law attorney should play an important role in making such a decision.

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From the South Carolina Personal Injury Law Blog:

Can an insurance company interject itself into a Family Court action filed to determine whether or not someone has a valid common law marriage?  The South Carolina Supreme Court answered this question by clearly stating "no" in an opinion filed yesterday, In Re Cooper.

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Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.

It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds.  For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen.  In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient.  In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.

In rare cases, the Judge may not require as much corroborating evidence if he/she is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.

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Divorce and separation cases can be either "contested" or "uncontested."  As you might expect, contested cases tend to take longer, be more stressful on the parties, and end up being more expensive.  Most cases in Family Court (as in other courts) settle, but some settle much sooner than others.  It is very important to have a qualified attorney advise you of your options based on the specific facts of your case as soon as possible so that you can make informed, intelligent decisions as to how best to proceed.

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The South Carolina Retirement Systems has posted an updated Qualified Domestic Relations Order (QDRO)  Model Order and Guidelines on its website. The Model Order and Guidelines address all information that is required by statute and provides guidance on various methods of calculating the division of state retirement benefits from the defined benefit plans (not 401(k) or 457 plans). Although it is not required that a QDRO be prepared identically to the Model Order and Guidelines, conformance will make the approval process quicker and easier and will provide accuracy for future implementation of the QDRO.

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The South Carolina Supreme Court issued an Order on January 10, 2007, which sets forth procedures for the use of videoconferencing in certain situations in our Family Courts.  Specifically, this process may be used, with the party's written and oral consent, for the purpose of hearing bench warrants, Department of Social Services cases limited to emergency protective custody, intervention hearings, status review hearings, and permanency planning hearings.  You can read the full text of this Order by clicking HERE.

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The SC Court of Appeals has affirmed a trial court's decision to hold a party in contempt of court for (a) making an obscene finger gesture to his attorney after the hearing concluded and (b) using profanity directed at the judge.  While most people would certainly not act as outrageously as the man in this case, it serves as a good reminder that parties should always be on their best behavior in Court.

In this case, the party apparently "flipped off” the attorney and then told the judge “f**k you, you bastard.”  Even after being held in contempt and sentenced to serve a year in jail for his contemptous actions, the party was still not finished.  On his way out of the courtroom, he apparently fought with the deputies, only to be brought back in to be chastised by the judge.   For his antics, the judge sentenced him to two, six-month sentences for contempt, to be served consecutively consecutively to each other, for a total of one year in jail.

The Court of Appeals held that all courts have the inherent power to punish for contempt to preserve order and maintain decorum in judicial proceedings.  Contemptuous conduct in the presence of the court is direct contempt, and South Carolina courts have taken an expansive view of the “presence” and “court” requirements to encompass all elements of the judicial system, not just the mere physical presence of the judge or courtroom.  No warning of possible contempt is necessary.

In his appeal, the party argued that his sentence should be vacated because he was entitled to a jury trial.  The United States Supreme Court has held that petty crimes can generally be tried without a jury trial, but serious crimes require a jury trial if the accused requests one.  The distinction between a "petty" and "serious" crime is generally determined by the maximum punishment assigned by the legislature.  Crimes with punishments of six months or less are presumably “petty,” while crimes with punishments greater than six months are presumably “serious.”

In this case, the Court of Appeals noted that the two consecutive six-month sentences are the equivalent of a one-year sentence, which would normally entitle a defendant to a jury trial if he or she requested one.  However, the party in this case never requested a jury trial, and he never objected to the imposition of the contempt sentences without a jury trial.  For those reasons, the appellate court found that this issue was not preserved for appellate review, and it affirmed the trial court's sentences for contempt.

You can read the full opinion in Rhoad v. State by clicking HERE.

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The South Carolina Supreme Court recently issued a decision which addressed problems that can arise for both parties and their attorneys when dealing with multi-state child support issues.  Specifically, it addresses what can happen when two different states issue child support orders and the second one does not specifically nullify the first one.

In this case, the parties were divorce in California in 1986, and an order was issued there requiring the father to pay child support to the mother.  The father later moved to South Carolina, and the mother filed a support petition here pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA), S.C. Code Sections 20-7-960 to -1170.

Prior to the hearing, the parties reached an agreement, and an Order approving their agreement was issued in 1990.  The SC Order referred to the prior California order but did not explicitly nullify it.  In 2003, the father was found in contempt of court here in SC for his failure to pay support pursuant to the 1986 California Order.  The father argued that the 1990 SC order modified the 1986 California order.

The problem the father encountered was that URESA contains an "anti-nullification clause" (found at S.C. Code Section 20-7-1110 states that a “support order made by a court of this State pursuant to this subarticle does not nullify and is not nullified by … a support order made by a court of any other state … unless otherwise specifically provided by the court.” 

Citing that statute, the Court of Appeals held that the 1986 California order remained independently enforceable in South Carolina because the 1990 South Carolina order did not indicate it was intended to nullify the California order.  The Supreme Court affirmed the Court of Appeals' decision on that same basis.

You can read the full text of SCDSS v. Martin by clicking HERE.

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It sounds almost too good to be true -- the "do-it-yourself" divorce.  Why would you want to have to deal with lawyers or spend thousands of dollars on attorney's fees if you don't have to?  In South Carolina, as in most (if not all) other states, parties are allowed to represent themselves in Family Court for any case, including divorces.

When I am asked this question, I typically respond with this analogy.  When you are sick, you can go to the pharmacy and try to get some over-the-counter medicine to treat yourself or you can go to a doctor.  Sometimes, you only have something minor, like a cold, and treating yourself might work alright.  However, other times, the symptoms that you think are nothing could be a sign of something more serious.  Even worse, failing to seek medical treatment promptly might result in more serious consequences later.

Attorneys charge fees for their expertise in their areas of practice.  They know which cases are serious and which are simpler.  They can advise you of what course of action is right for your specific fact situation.  One of the things that I enjoy about Family Court cases is that almost every single case is different due to the people and facts involved.  You simply cannot get that from a "kit".

I have seen far too many cases where people tried to handle their case without an attorney, only to cause greater problems for themselves.  For instance, what if certain assets (such as retirement accounts) are not addressed in the Divorce Decree?  What if the order doesn't require the other person to refinance the mortgage on the former marital residence?  These problems can have long lasting effects, which may not be able to be corrected at a later date when they are discovered.

If you want to read more about what can happen in "do-it-yourself" divorces, you should read the article, "Do-It-Yourself Divorce Doesn't Always Sever Ties" by Jessica Garrison, published earlier this week in the Los Angeles Times, or the United Press International article, "Calif. Couples Stumped by Divorce Process" published yesterday.  That article explains that sometimes those cases result in people actually not being divorced, only to later learn that they are committing bigamy.  In South Carolina, bigamy is still a crime, specifically it is a felony. 

The bottom line is that you shouldn't put yourself in that situation.  If you want to get a divorce, you should always consult a qualified attorney.  You can almost always find an attorney that fits within your budget, and any attorney is generally better than no attorney.  However, you typically get what you pay for, and you will probably get better service and better results from a quality family law attorney.

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Before he discontinued his excellent New Jersey Family Law Blog, Pieter Droppert published the following article discussing where is the habitual residence of a child under the Hague Convention?:

Thanks to Charles Abut’s New Jersey Family Law blog for drawing attention to the informative and well written opinion of Judge Posner in the 7th Circuit Court of Appeals case of Kijowska v. Haines where the question presented is what is the definition of “habitual residence” for the purposes of the Hague Convention? This case is relevant to New Jersey, since many parents are immigrants or nationals of other countries.

The Hague Convention on the Civil Aspects of International Child Abduction gives a parent of a child who has been wrongfully abducted or detained, the right to petition the court in the country where the child has been taken to have the child returned. This convention only applies to countries who are party to it e.g. United States, but not to countries who are not e.g. China.

The Hague Convention requires that custody of a child be determined under the law of the child’s place of habitual residence. In this case, a Polish woman had an affair with a U.S. Citizen. After overstaying her student visa, she returned with the baby to Poland. Six months later she came back on a visit to see the father from who she was estranged. However, at the fathers request she was refused entry to the U.S. due to his allegation that she was not intending to return to Poland, and the father was given custody of the parties’ infant daughter, based on an ex-parte custody order obtained from an Illinois state court.

The mother then brought suit in federal district court under the Hague Convention for her daughter to be returned to Poland. The father argued that the baby’s habitual residence had become the United States and that the mother had illegally abducted her in the first place. However, the district court and the 7th Circuit disagreed finding that just because the daughter was born in the United States did not make it her habitual residence, nor did the prolonged stay with her father mean the daughter had acquired a new habitual residence. Instead, the court held that since the mother was an illegal alien, she had no choice after the child was born but to leave the United States and take the child back to Poland. It was noted that the father made no effort to obtain custody at that time either in the US or Poland. Therefore, Poland became the child’s habitual residence and under Polish law, an unwed mother has custody of her child

Since the Hague convention requires custody to be determined under the law of the child’s place of habitual residence, the ex-parte Illinois custody order in favor of the father was “irrelevant”. The court affirmed the district judge’s order that the parties’ twenty one month old daughter be returned to her mother in Poland.

Source:  "Where Is The Habitual Residence of a Child Under The Hague Convention?" by Pieter Droppert, posted at the New Jersey Family Law Blog.

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The Chief Administrative Judge for the Seventh Judicial Circuit issued an Administrative Order last Friday, December 8, 2006, to address the scheduling and dismissal of cases in Spartanburg County.  This new Order implements the Administrative Order issued by the South Carolina Supreme Court on May 9, 2006.

Under the provisions of this Order, a written request for a final hearing must be submitted to the Clerk of Court by a party or his/her attorney within 365 days of the date the action was filed.  If a hearing request is not made within that time, the case may be dismissed without prejudice, with all existing orders in that case being considered null and void and no longer subject to enforcement by the Court.  Even the enforcement and collection of child support and alimony payments would be so affected, and any arrearages owed for either may be dismissed.

You may download a *.pdf copy of this new Administrative Order by clicking HERE.

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The Family Law Section Council is seeking input from South Carolina family law practitioners about potential changes to the SC Family Court Rules.  The Coucil has prepared a survey, and its responses will be compiled and submitted to the Family Court Rules Committee charged with overseeing amendments to the Rules. You can download a copy of the survey by clicking HERE .

If you are interested, please complete and return the survey no later than December 8, 2006, to the SC Bar Family Law Section, Attn. Tara Smith, Post Office Box 608, Columbia, SC 29202 or email it to tsmith@scbar.org.  Should you have any questions, please feel free to contact Tara Smith at (803) 799-6653, ext. 146.

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I concur with the following excellent answer given by Trent Wilcox of the Arizona Divorce & Family Law blog to this commonly asked question:

In most cases, neither side in a family law matter gets exactly and entirely what they want from a judge pursuant to a contested hearing or trial. Although all-out victories occur, there is a certain risk in going to court that a judge will not give either side what they want. But if you lose on an issue very important to you, what can you do?

First, evaluate whether or not the judge really ruled wrongly. If the judge did nothing wrong and just believed the other side's case had more merit, there may not be any recourse. Child custody decisions are often made this way because the cases often boil down to "He said, she said," situations. The judge has to make a decision and does, even though one (or both) sides may not like it. However, if you believe the judge abused his discretion, made a mistake in interpreting the law or some other error, you may be able to do something to change the outcome.

Second, be cognizant that there are various deadlines involved in trying to change/correct a judge's ruling. The deadlines vary depending on the type of corrective action one contemplates. Appeals, for example, require that a Notice of Appeal be filed within thirty (30) days of the final order from which an appeal is sought.

Third, evaluate the different legal routes available. For example, there are special action appeals, regular appeals, motions for reconsideration, motions for new trial, motions for relief from judgment and motions to set aside. Perhaps in another post, I will deal with each of these in more detail but for now, parties should be aware that there are alternative methods of trying to undo a court's ruling, different methods work best for certain situations and stages of the proceedings, and there are always various timeframes/deadlines to consider. If you are going to take action, consult an attorney immediately to make sure you act in time!

Source:  "What If I Don't Like a Ruling on My Case?" by Trent Wilcox of the Arizona Divorce & Family Law blog.

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If you are interested in the growing trend of divorce mediation as opposed to traditional litigation, you should read "Mediate or Litigate: Which is Best for Your Divorce Client".  This article was written by Maria Imbalazano of Stark and Stark in Princeton, NJ for the August 2006 New Jersey Law Journal Family Law Supplement.  You can download this article by clicking HERE.

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In a decision earlier this week, the S.C. Supreme Court declined to enforce a 1997 agreement resulting from mediation between Husband and Wife because the agreement was neither entered into the trial court’s record nor acknowledged in open court.

The Court further held that the Family Court correctly converted Wife’s share in a note to Husband from his real estate company into a money judgment because Husband never assigned the note to Wife and Husband should not be permitted to gain from his failure to assign by now claiming that Wife has not properly sought collection on the note.

The Court reversed the trial court’s decision to award Husband an equitable set-off, holding that Husband is not a party deserving of equitable treatment because of his own misdeeds in dealing with Wife and with the court.

You can read the full text of Buckley v. Shealy by clicking HERE.

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The National Law Journal reports that a recent survey by Ian Best of the 3L Epiphany blog found there were 32 blog citations in 27 court decisions in the last two years. The article's author stated that legal blogs have "come into their own in recent years among lawyers who use them to share with peers the latest developments in legal specialties."

The most noted citation found by Mr. Best was that of Justice John Paul Stevens in his dissent in an important sentencing decision, U.S. v. Booker, 543 U.S. 220 (2005), which cited Ohio State law Professor Douglas Berman's Sentencing Law and Policy blog.

The most recent citation appears to have been on July 31, 2006, where a 9th U.S. Circuit Court of Appeals dissent by Judge Diarmuid O'Scannlain in Harper v. Poway Unified School Dist., 445 F.3d 1166, cited commentary on law Professor Eugene Volokh's blog, The Volokh Conspiracy, on viewpoint discrimination and the First Amendment.

There are many "scholarly" blogs out there, and I believe that these citations indicate that the Court is beginning to realize the excellent work being done on these blogs, especially those by law professors. I anticipate this trend continuing, with citations to blogs becoming much more frequent in the future.

Source: "Judges Cite More Blogs in Rulings" by Pamela A. MacLean, published at The National Law Journal (subscription required).

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Whether it is called a "questioning" (as in Canada) or a "deposition" (as here in South Carolina), the process can be quite intimidating.  Most people are not used to being placed under oath and asked very personal, difficult questions about themselves and their family unit.  If you do not know what to expect and/or are not prepared, it can be a disaster -- both for you and for your case.

Fortunately, help is available.  Your attorney should spend time with you prior to the deposition to explain the process, tell you what to expect, and answer your questions.  You can also use these eight excellent tips from the Ottawa Divorce Blog to help you survive and even succeed at your deposition:

1. Give Precise Answers. If you’re asked how much you earned last year, give a dollar figure. Don’t explain why it was higher or lower than usual, or that it included a bonus. If someone is holding a pen and you’re asked &ldquo