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TRANSCRIPT
The Separation and Divorce Process in
South Carolina
Presented by: V. B. (Tripp) Atkins III,
Attorney at Law
2B Cleveland Court | Greenville, South Carolina 29607
864-735-8699 www.UpstateFamilyLawBlog.com
Disclaimer: The information presented in this publication is general legal
information and is not legal advice for your specific situation. Before relying on any information in this publication, please speak with an attorney licensed to practice in your jurisdiction to obtain specific legal advice for your situation.
Table of Contents
Introduction.................................................................................................................1
Uncontested Divorce vs. Contested Divorce.................................................................1 The Uncontested Divorce ................................................................................................. 1 The Contested Divorce ..................................................................................................... 2 Should You File for Separate Support and Maintenance of Divorce? ............................3 What is separate support and maintenance? ................................................................... 3 Divorce.............................................................................................................................. 4
Fault vs. No Fault .......................................................................................................... 4 Grounds for Divorce in South Carolina ......................................................................... 5 Adultery......................................................................................................................... 5 Habitual Drunkenness................................................................................................... 5 Physical Abuse ............................................................................................................. 6 Desertion....................................................................................................................... 6 Continuous Separation for more than one year ............................................................ 7
Children’s Issues – The “Best Interest of the Child” ......................................................8 Custody of Children .......................................................................................................... 8 Visitation ........................................................................................................................... 9
Guardian ad Litem ...................................................................................................... 10 Support ........................................................................................................................... 11
Child care.................................................................................................................... 12 Health insurance ......................................................................................................... 12 Uncovered medical expenses..................................................................................... 12 Tax dependency ......................................................................................................... 12
Property and Debt Issues ...........................................................................................13 Equitable division vs. community property...................................................................... 13 Alimony .....................................................................................................................16
Attorney Fees ............................................................................................................18 How attorney’s charge fees in divorce cases.................................................................. 18 Other party ordered to pay your fees? ............................................................................ 19 The Process................................................................................................................20
About Attorney Tripp Atkins ......................................................................................24
Helpful Resources ......................................................................................................25
Notes/Questions:.......................................................................................................26
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Introduction
Well, you’re reading this because you are at least considering a
separation from your spouse and you have questions about the process and the
law in South Carolina. You may have already separated and you’re just looking
for your next step. This should be a great resource to help you get started to
decide if a separation or divorce is right for you and what you will face as you
enter this process.
No matter the reason, a separation or divorce is not fun and the process
can be painful. But keep in mind that this is a process. There are steps and
stages. My goal is to lay out the process and stages for you so you know what to
expect at the very beginning rather than learning about what’s next as it happens
to you. There is a note section at the end of the packet. I encourage you to write
down your questions as read. This document will not answer all of your
questions, nor is it meant to. The intention is to give you a big picture view of
your case so you know the right questions to ask your lawyer as you go through
your separation and divorce.
In South Carolina there is a public policy in favor or keeping marriages
together and trying to make them work. Prior to a couple divorcing the family
court must make inquiry to see if there is anything that can be done to save the
marriage. Before you move forward with your divorce, I encourage you to make
sure that you have done everything possible to save your marriage.
Uncontested Divorce vs. Contested Divorce
The Uncontested Divorce
I receive several calls each from prospective clients about their divorce
and other family court matters, but one of the most frequent calls relates to the
“uncontested divorce.” Uncontested divorces sound great. No fighting. Quick
process. Easy peasy.
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Many people want to go through the divorce process in an uncontested
way, but sadly that is not always possible. Many of the calls I field each week
from prospective clients ask about an uncontested divorce, but they quickly
acknowledge that their spouse is not in agreement with at least one issue
(usually having to do with the amount of money being requested).
Simply put, an uncontested divorce means that the parties have a
complete agreement related to every issue. This resource will walk you through
the issues common in separation and divorce matters. As you progress through,
you can gauge whether you feel you may have a chance at obtaining an
uncontested divorce. What I have found is that many couples have a very broad,
general agreement, but they have not gotten down to specifics of the issues and
that is where the agreements tend to break down.
Typically, an uncontested divorce can be resolve rather quickly –
somewhere between 45 and 90 days (assuming the parties already meet all of
the requirements for the divorce grounds being asserted).
The Contested Divorce
The contested divorce is what gets all of the press. Gossip websites don’t
dwell on the celebrity divorces that are quick and easy. They want to glamorize
the knock-down-drag-out fights. Believe me, no contested divorce is glamorous
or fun. Unfortunately, the majority of divorces fall into the “contested divorce
spectrum”.
Contested Divorce Spectrum
Not Very Contested
A little contested
Somewhat Contested
Very Contested
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Every issue in the case may be hotly contested, or the parties may
disagree on something rather minor like how the 1980’s VHS collection will be
divided. The process takes longer, is more involved, and is more expensive, but
sometimes it is the only option available.
Should You File for Separate Support and Maintenance of
Divorce?
What is separate support and maintenance?
South Carolina’s version of a “legal separation” is called Separate Support
and Maintenance. First off, just because we call it separate support and
maintenance, it doesn’t mean that the filing spouse is actually asking for support
or maintenance. One of the hallmarks of separate support and maintenance is
that it reinforces that the marriage is still viable and active. It is not a legal
separation and does not grant the parties the ability to live as if they were
unmarried.
Separate support and maintenance has many useful functions. Some
spouses feel like they need a separation and that they need to do something
legally to ensure that support is paid or custody is set up for safety reasons, but
they are not ready to give up on the marriage. They want to continue to work on
saving the marriage. Another reason is for financial protection. As we will
discuss in the property/debt section below, the marital estate is fixed as of the
date of filing for separation or divorce. This filing date may protect you if you
believe your spouse may go off on a spending spree following your separation.
This is a great way to get some of the protections from the law but not throw the
marriage away.
Others opt for the separate support and maintenance option for healthcare
reasons. Group health insurance through an employer is typically available for
spouses and family members for a much lower rate because of the premiums
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that the company pays. If a spouse has medical issues then it may make sense
to remain married by filing for separate support and maintenance.
Spouses who are married for ten years also are entitled to Social Security
benefits from their spouse – regardless of whether they are married to each other
when they reach retirement age. If you have been married nearly ten years, but
can’t stay together any longer, then this is an option to save those benefits but
still move forward with the rest of the relief.
Finally, this may be your only “key to the courthouse doors”. Meaning,
you currently do not qualify for any of the five grounds for divorce, but you still
have issues that need to be resolved immediately such as child custody, child
support, restraining orders, supervised visitation, or spousal support.
Recent South Carolina case law makes it very clear that before anyone
can file for separate support and maintenance they must be physically separated
and living apart from their spouse. This means they are living in separate
residences. Husband living on one floor and the wife in the basement doesn’t cut
it for separation – no matter how long you have been living like that. Case law
even makes it clear that one spouse living in a camper in the backyard isn’t a
separation. This is usually one of the more difficult issues to navigate due to the
expense of having two households.
Divorce
In the event you know that there is nothing else that can be done to save
your marriage and you are ready to proceed with a divorce, your case must fall
into one of the five grounds for divorce the South Carolina Code sets out before
you can be divorced. There are four fault-based grounds for divorce and one no-
fault ground for divorce.
Fault vs. No Fault You may choose your divorce grounds for a couple of reasons. Time: you
may not want to wait the complete period of separation before you qualify for the
no-fault divorce before you are divorced. If you can prove the elements of one of
the fault-based grounds you could be divorced as soon as 90 days from the date
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of filing your divorce. When you file based on a fault-based ground, it can have
further reaching impact than just the divorce. It will certainly play into the other
issues the Family Court Judge may be considering such as alimony, custody,
visitation, property/debt division, and attorney fees.
Grounds for Divorce in South Carolina
Let’s take a look at the five grounds for divorce.
Adultery
To obtain a divorce on adultery grounds you will need more evidence than
telephone records and e-mails. But, you don’t need an explicit sex tape, a
pregnancy, or an eyewitness to prove your case for adultery.
In Prevatte v. Prevatte (297 SC 345), the Court stated, “Because adultery,
by its very nature, is an activity which takes place in private, it may be proved by
circumstantial evidence.”
Sufficient proof of adultery must establish that your spouse had motive
and opportunity to have an affair.
Proof of motive shows there is a romantic relationship your spouse is
involved in. Proof of a date with another person, holding hands while walking
through the park, telephone records showing numerous calls and text messages
to one another. That’s motive.
Opportunity is where your spouse and his/her new “friend” are together,
privately, in a place where they have a chance to consummate the affair.
In order to obtain a divorce, you must prove both elements. To simply
have opportunity or motive without the other does not establish the grounds for
divorce.
Habitual Drunkenness
Another option for divorce in South Carolina is by filing on the ground of
habitual drunkenness. SC Code §20-3-10 states that this ground will also
include habitual drunkenness caused by the use of any narcotic drug.
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First, let’s talk about the traditional view of habitual drunkenness. This
boils down to the fixed habit of getting drunk often, that it was going on at the
time the parties separated, and that this drunkenness causes the breakdown of
the marriage.
Often, people want to use the habitual drunkenness ground to obtain a
divorce when their spouse is using drugs. As pointed out before a divorce can
be granted for the use of any narcotic drug. So, if your spouse is a habitual user
of a non-narcotic drug (e.g. marijuana) then you will not be able to use this
ground for divorce.
Physical Abuse
Physical cruelty is defined as actual personal violence or such a course of
physical treatment that endangers life, limb or health and renders cohabitation
unsafe. Typically a single assault is not sufficient to establish this ground unless
the assault is life threatening and there must be intent to do serious bodily harm
in the future.
Desertion
Desertion requires a showing that (1) the parties have ceased living
together for a period of one year, (2) the person who left has the intent not to
resume living together, (3) there is no consent for the separation, and (4)
absence of justification for the separation.
The part of desertion that is usually difficult to establish is the fourth factor
– the absence of justification. Usually, a person leaving the home has at least
one reason (probably multiple reasons) for leaving the marriage.
Many people want to know about desertion before they separate from their
spouse. The fear is that if they are found to have “deserted” their home they will
lose some rights. Typically, there is consent to separate from the parties, but if
one party still does not consent to the separation there usually is justification for
the separation.
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Continuous Separation for more than one year
In order to prove a no fault divorce in South Carolina you must show
several things: (1) the separation must be voluntary; (2) you must be living
separately and apart; (3) must be for more than one year. Let’s take these in
order.
1. Voluntary Separation
In order to qualify for the divorce on no fault grounds, you must be
voluntarily separated. Now, sometimes in marriages one person really wants a
divorce and the other person really wants to save the marriage, but the first
person moves out any way. While this is not “voluntary” on the part of the
spouse who wants to save the marriage, it is voluntary separation because the
parties have the choice to live together or not. This is easier to see when
described from another viewpoint. An involuntary separation would be one
where one spouse was carried off to jail during the marriage and while the parties
are separated, the “free” spouse decides she should get a divorce and move on.
If the separation only occurred because of the arrest and incarceration then that
is not voluntary.
2. You Must Live Separate and Apart
When couples begin to feel the strain and they are leaning towards a
separation they may, at first, in an attempt to save money have one of the parties
move into the bedroom down the hall or into the basement so they are not
sleeping together. But, under South Carolina statutory and common law this is
not living separate and apart. In order to obtain the no fault divorce in South
Carolina you must live in separate residences. The South Carolina Supreme
Court has also held that living in a camper on the same property is not living
separate and apart because the husband was still using the house for cooking,
showering, etc., even though he was doing that stuff after the wife had gone to
work.
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3. Separated for More than One Year
Before you can even file for divorce in the family court on the no fault
ground you must have been voluntarily living separate and apart for more than one year. That means just what it says – more than 365 days must elapse
from the time you separate before you file for divorce.
I wrote a blog post about how “legal” the separation has to be but to
summarize, you do not have to have a court ordered “legal separation” before the
clock starts to run on your 12 months. The time starts ticking the day one of you
moves out. But, if you move back in together to attempt reconciliation (or even
just for one night of passion) your time could start back over. The law is not clear
on that point.
It is also interesting to point out that this divorce ground can be awarded
immediately upon the filing of responsive pleadings (an Answer by the
defendant). That means there is no waiting or time limit involved like in the fault-
based grounds where you must wait at least 90 days from the time you file your
action to have a final hearing.
Children’s Issues – The “Best Interest of the Child”
Custody of Children
When considering children’s issues, I try to encourage my people to focus
less on the terms we use to describe custody arrangements (e.g. sole custody,
joint custody, shared custody) and focus more on two things (1) responsibility
and decision-making and (2) time with the children. By clearly defining these
two factors we can better describe the how parenting will occur in the future once
the divorce is final.
Let’s look at responsibility and decision-making. Parents have all of the
responsibility for their children. Naturally, parents make decisions for the children
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as they relate to the child’s health, education, welfare, and religious upbringing.
When parents separate they need to figure out how to divide up those
responsibilities. Now let’s apply this to some typical custody arrangements.
Sole custody means that one parent has complete authority to make all of
the decisions for the children. They have no obligation to obtain an agreement
from the other parent – much less ask for their input. Traditionally in contested
custody cases, South Carolina Family Courts have awarded sole custody to one
parent and visitation rights to the other, but this isn’t true now as much as it was
before.
Joint Custody is defined in SC Code §63-15-210(1) as “both parents have
equal rights and responsibilities for major decisions concerning the child,
including the child's education, medical and dental care, extracurricular activities,
and religious training; however, a judge may designate one parent to have sole
authority to make specific, identified decisions while both parents retain equal
rights and responsibilities for all other decisions.” This means that a judge can
find that it is in the best interest of the minor children for both parents to be
involved in the decision-making, but so there is no logjam because of indecision
in the future one parent will generally be awarded the power to make a final
decision and overrule the other parent’s vote. It certainly is possible to have “true
joint custody” where every decision is equal, but it is not likely that a judge will
order that type of custody unless there is an agreement between the parties.
Children have a say-so in which parent they are going to live with;
however, there is no age where a child gets to choose which parent he or she will
live with. The Court will always take into account their choice. The Court also
considers their age and maturity level, but must decide the issue of custody
based on their finding of what is in the “best interest of the child.”
Visitation
Now that we have established custody (or the responsibility and decision-
making) we can shift our attention to the “time” with the children. Time with the
children can be set up very broadly or very narrow and specific. The broadest
type of placement schedule is to essentially say that the parents are going to
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work with one another to reach an agreement for placement at all times. In this
scenario there would be no specific visitation or placement schedule and it is up
to the parents to work out a schedule. How does this work? It depends on the
parents. Many parents have been able to put aside whatever differences they
have that led to the breakdown of the marriage and continue to work together to
co-parent their children. If it is possible for you to work together with your former
spouse then this may work for you. But, it does have some downsides. What
happens in the future if the parties reach some issue that causes some drama
that cannot easily be looked away from? If the parties are unable to work
together going forward then parent with the primary physical placement can
essentially set visitation going forward and the “visiting parent” would be stuck
with the option of filing to modify his or her time with the child. One easy fix is to
establish a back-up visitation schedule should the parties ever be unable to
reach an agreement.
On the other end of the spectrum, the parties can be very specific about
their visitation schedule. Setting exact pick-up/drop-off locations and times.
Detailing school vacations, holidays and birthdays. If a judge is awarding
visitation in a case, he or she will most likely use a standard visitation schedule
that sets out all of these details and exact days and times for the visiting parent’s
time with the children. Included in most standard visitation orders are parental
guidelines and restraining orders. These can be included in other custody
agreements without the specific visitation provisions.
Guardian ad Litem
In cases where child custody or visitation are contested, the court will appoint a
Guardian ad Litem (GAL) to represent the interests of the child. The GAL may
also be a lawyer, but is operating as an extension of the Family Court and serves
to investigate the circumstances surrounding the custody case. They will meet
with the parents, inspect the homes, meet with the children, and investigate
further by meeting with other witnesses, discussing the children with their
teachers, reviewing medical and educational records, and so on. The GAL is not
permitted to make a recommendation as to custody, but they can make
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recommendations for other issues such as visitation, counseling or therapy, drug
testing, and psychological evaluations. Typically, the Court orders the parties to
be equally responsible for the GAL fees. GAL hourly rates range from about
$75.00 to $150.00 based on the experience of the GAL and whether the GAL is a
lawyer or not.
Support
The calculation of child support is pretty straightforward, in theory. South
Carolina has adopted a child support guideline. That means there is a
calculation used for determining a child support amount. I say that it is easy in
theory because child support is a function of your gross monthly income, your
spouse’s gross monthly income, health insurance premiums paid for the children,
and work-related child care expenses. In cases where both spouses are
employees and receive a paycheck, it is pretty easy to determine child support.
But, in cases where a spouse is self-employed or perhaps under-employed, the
issue of child support can be more contested.
If you would like to download the South Carolina Child Support Guidelines,
you can visit this link: http://www.state.sc.us/dss/csed/forms/2006guidelines.pdf
There is also an online calculator that you can visit to get an idea of what
child support will be in your case. Visit this link:
http://www.state.sc.us/dss/csed/calculator.htm
I created a video that walks you through using the child support calculator.
Visit this link at my blog:
http://www.upstatefamilylawblog.com/how-to-calculate-child-support-in-south-
carolina/
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Child care
Parents are permitted to add work-related childcare expenses to the child
support obligation. This is meant to encourage parents to work and generate
income for their family. This is in addition to the basic child support obligation.
Health insurance
The Court will be interested in making sure children are provided with
comprehensive health insurance coverage. Typically, the parent who can
provide the best coverage for the children will be required to do so; however,
both parents can provide the coverage. Only the specific premium amount paid
for the children’s insurance will be allowed to be included in the child support
calculation. For example, if your insurance is provided by your employer your
human resource department can provide you a document that shows that your
health insurance expense and potential expenses so if you only had to pay for
your own health insurance you would find the “employee only” price. Then, to
determine what you will be able to claim for child support purposes you must also
know the “employee plus children” premium amount. The difference between the
“employee plus children” premium and the “employee only” premium will be what
you can claim for child support purposes.
Uncovered medical expenses
The South Carolina Child Support Guidelines provide for payment of
uncovered medical expenses such that the custodial parent is responsible for the
first $250.00 per year per child. After that deductible has been met, the parents
are responsible for any medical expense not paid by insurance on a pro rata
basis according to their income.
Tax dependency
The Court has the authority to divide tax dependencies between the
parents’ however, many times the Court will default to IRS rules about claiming
children as dependents for taxes. Of course, parents can also reach an
agreement amongst themselves as to how they will divide the tax dependency for
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the children. However, the child support calculations assume that the custodial
parent will be claiming the children for tax purposes because it assumes they will
receive those credits when calculating the child support amount.
Property and Debt Issues
Equitable division vs. community property
South Carolina is known as an Equitable Division state. That boils down
to meaning the Family Court can divide the marital assets and debts in any way
that it deems fair or equitable. The first step the Family Court must take is to
determine which assets are marital and which assets are non-marital. In general,
marital assets are all of those assets and debts that were obtained or accrued
from the date of the marriage until the date of filing of the divorce. Non-marital
assets are those obtained by the parties prior to marriage or following the filing
for separation or divorce. Other assets that are considered non-marital are those
obtained by a spouse as a gift from a third party or inherited during the marriage.
The Family Court has no jurisdiction to divide non-marital assets. Once the court
has determined which assets are marital and non-marital it can begin dividing the
marital assets between the spouses. Typically, this division will be done equally;
however, the court will consider 15 factors in determining how to apportion the
assets and debts and the way the court considers these factors may result in a
different percentage of the division.
Those factors are found in SC Code §20-3-620(B):
(1) the duration of the marriage together with the ages of the parties at the time
of the marriage and at the time of the divorce or separate maintenance or other
marital action between the parties;
(2) marital misconduct or fault of either or both parties, whether or not used as a
basis for a divorce as such, if the misconduct affects or has affected the
economic circumstances of the parties, or contributed to the breakup of the
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marriage; provided, that no evidence of personal conduct which would otherwise
be relevant and material for purposes of this subsection shall be considered with
regard to this subsection if such conduct shall have taken place subsequent to
the happening of the earliest of: (a) entry of a pendente lite order in a divorce or
separate maintenance action; (b) formal signing of a written property or marital
settlement agreement; or (c) entry of a permanent order of separate
maintenance and support or of a permanent order approving a property or marital
settlement agreement between the parties;
(3) the value of the marital property, whether the property be within or without the
State. The contribution of each spouse to the acquisition, preservation,
depreciation, or appreciation in value of the marital property, including the
contribution of the spouse as homemaker; provided, that the court shall consider
the quality of the contribution as well as its factual existence;
(4) the income of each spouse, the earning potential of each spouse, and the
opportunity for future acquisition of capital assets;
(5) the health, both physical and emotional, of each spouse;
(6) the need of each spouse or either spouse for additional training or education
in order to achieve that spouse’s income potential;
(7) the nonmarital property of each spouse;
(8) the existence or nonexistence of vested retirement benefits for each or either
spouse;
(9) whether separate maintenance or alimony has been awarded;
(10) the desirability of awarding the family home as part of equitable distribution
or the right to live therein for reasonable periods to the spouse having custody of
any children;
(11) the tax consequences to each or either party as a result of any particular
form of equitable apportionment;
(12) the existence and extent of any support obligations, from a prior marriage or
for any other reason or reasons, of either party;
(13) liens and any other encumbrances upon the marital property, which
themselves must be equitably divided, or upon the separate property of either of
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the parties, and any other existing debts incurred by the parties or either of them
during the course of the marriage;
(14) child custody arrangements and obligations at the time of the entry of the
order; and
(15) such other relevant factors as the trial court shall expressly enumerate in its
order.
In many marriages, there are two primary assets to be divided: the marital
home and the retirement accounts. People hate to hear that the retirement
accounts that they have been working for can be divided, but they are considered
marital property and are included in the pile of assets to be divided just like the
cars, houses, jewelry, family photographs and mementos and everything else in
the home.
A typical retirement account is a 401(k) that is provided by one spouse’s
employer. This 401(k) is a qualified account. That means that if money is
removed from the account prior to the owner reaching the age of 59 ½ years
there can be serious tax penalties as well as income taxes for the money
withdrawn. So, when dividing these accounts in a divorce a special order called
a Qualified Domestic Relations Order (QDRO – pronounced “Quadro”) must be
drafted that divides the funds in a “tax qualified” way so that there are no
accidental tax consequences. The party receiving the funds may choose to take
a cash withdrawal of those funds. Typically, a withdrawal of cash from the funds
incident to a divorce removes the penalty; however, income taxes are still owed
on those funds.
When dividing marital homes, we look to the marital equity in the home.
The simplest way to determine this is to determine the current fair market value
of the home and subtract the current mortgage balance. This equity amount is
the portion that must be divided. If one spouse will be keeping the home he or
she will need to pay the other spouse for their share of the equity. If the home is
going to be sold, then the net proceeds can be divided at the closing; however,
the parties will either need to reach an agreement or have the Family Court
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determine who will be responsible for the costs of the home (mortgage
payments, property taxes, utilities, maintenance, etc.) until the home sells.
Alimony
Alimony is an issue that is very important to clients, but one that is very
difficult to estimate or determine. Our state law gives family court judges a lot of
discretion in determining alimony. There is no alimony calculator like there is a
child support calculator so there are some rules of thumb that are used to
estimate alimony, but that and our experience with the family court judges is all
we have to go on.
The first step in this process is to determine if alimony should be awarded.
In order to do that, the Court must weigh 13 factors. Those factors are found in
SC Code §20-3-130(C):
(1) the duration of the marriage together with the ages of the parties at the time
of the marriage and at the time of the divorce or separate maintenance action
between the parties;
(2) the physical and emotional condition of each spouse;
(3) the educational background of each spouse, together with need of each
spouse for additional training or education in order to achieve that spouse's
income potential;
(4) the employment history and earning potential of each spouse;
(5) the standard of living established during the marriage;
(6) the current and reasonably anticipated earnings of both spouses;
(7) the current and reasonably anticipated expenses and needs of both spouses;
(8) the marital and nonmarital properties of the parties, including those
apportioned to him or her in the divorce or separate maintenance action;
(9) custody of the children, particularly where conditions or circumstances render
it appropriate that the custodian not be required to seek employment outside the
home, or where the employment must be of a limited nature;
(10) marital misconduct or fault of either or both parties, whether or not used as a
basis for a divorce or separate maintenance decree if the misconduct affects or
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has affected the economic circumstances of the parties, or contributed to the
breakup of the marriage, except that no evidence of personal conduct which may
otherwise be relevant and material for the purpose of this subsection may be
considered with regard to this subsection if the conduct took place subsequent to
the happening of the earliest of (a) the formal signing of a written property or
marital settlement agreement or (b) entry of a permanent order of separate
maintenance and support or of a permanent order approving a property or marital
settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of
support awarded;
(12) the existence and extent of any support obligation from a prior marriage or
for any other reason of either party; and
(13) such other factors the court considers relevant.
Out of those factors, I would like to point out a couple of things. First, #10.
Marital misconduct (adultery, physical abuse, habitual drunkenness) is serious
factors considered by the Court and adultery is a complete bar to alimony. That
means that even if adultery is not used as the basis for the divorce it will prevent
that spouse from receiving any alimony from the other spouse. Please keep in
mind how low the bar is for proving adultery that we discussed earlier.
The other factor I want to point out is #13 – “other factors the court
considers relevant.” This means that the judge really has complete discretion to
consider all facts that he hears during the case in the award of alimony. So if he
likes you (or dislikes you) based on the character and other evidence presented it
could affect the alimony award.
Once the Court has carefully weighed all 13 factors it must determine if
alimony is going to be awarded. If it is, then the Court must determine how much
alimony should be awarded.
There are a couple of rules of thumb I will share with you. The first
method to consider is the “income equalization method.” This is where the judge
simply averages the parties’ incomes and the spouse who makes more pays the
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difference to the other spouse so they have the same gross monthly income.
This is an extremely high level of alimony and is typically only awarded in cases
where the parties have reached retirement age and are both on a fixed income
(e.g. receiving Social Security benefits and perhaps a small pension).
The second rule of thumb is to take the differences in the gross incomes
of the parties and multiply it times a factor. The starting factor is 0.23. The factor
can change based on the weighing of the statutory alimony factors. For
example, if Husband makes $100,000.00 per year and Wife makes $30,000.00
per year. This method would estimate alimony to be ($100,000 – 30,000) * 0.23
= $70,000 * 0.23 = 16,100 per year or $1,341.67 per month.
Alimony paid is generally tax deductible to the paying spouse and should
be included as taxable income to the supported spouse.
Attorney Fees
I want to use this section to discuss two sides to attorney fees. First, ways
that you will be charged attorney fees when you retain the services of a divorce
lawyer, and then how you can attempt to have your spouse be responsible for
paying your attorney fees.
How attorney’s charge fees in divorce cases
Typically divorce attorneys use two methods to charge their fees: the
evergreen retainer and flat or value billing. An evergreen retainer is where you
pay some amount up front. That payment is held in the attorney’s trust account
and he or she bills against it for all of the work performed on your case. The
worked is billed at the attorney’s hourly rate that is probably somewhere between
$150 and $250 an hour (or more depending on that lawyer’s experience). You
can see how those retainers can be spent rather quickly. The “evergreen” part of
the name means that once your trust account balance falls to a certain level you
will have to replenish it to the original retainer amount. Lawyers will determine
the initial retainer amount based on their past experience handling cases that are
similar in complexity to yours.
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A flat fee (or value based fee) is where the lawyer charges you a fixed fee
for the service he or she is providing. This may be based on an amount of time
for the representation, for certain parts of the representation, or for the entire
representation. For example, the lawyer may charge you a fixed amount of 3
months of representation and every three months you have to pay the fee again.
Or, he may charge you one large amount that is paid up front. The beauty of flat
fees is that you know at the every beginning what your case will cost. There is
no guessing or wondering based on the amount of hours it may take to handle
your case.
It is unethical for a lawyer to undertake representation in a separation or
divorce case for a contingency fee.
Other party ordered to pay your fees?
Family Courts can order your spouse to be responsible for your attorney
fees if you asked for them in your Complaint or Counterclaim. In addition to
asking for them, the Court must also consider your ability to pay your own fees,
whether the Court feels like you obtained beneficial results (in other words, did
you win?), the effect of having to pay the attorney fees on each party’s standard
of living, and the respective financial conditions of the parties. If the Court
considers these four factors and determines that attorney fees should be
awarded, then the Court must determine the amount.
In determining the amount of attorney fees to award the Court
considers six factors: (1) the complexity of the case, (2) the time devoted to the
case by your lawyer, (3) the professional standing of your lawyer, (4) the
contingency of compensation, (5) the beneficial results obtained, and (6) the
customary legal fees for similar services.
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The Process The easiest way to describe the process of a contested or uncontested
divorce is by using a flow chart. For each type of divorce you can see that path
and the steps involved. Of course an uncontested divorce involves the parties
reaching an agreement early on in the process and is much faster and less
expensive that a contested divorce. Sometimes there is just no way around a
more contentious divorce.
The flow chart for contested divorce and uncontested divorces follow on
the next few pages:
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Initial Consult
Retainer of Lawyer
Are there issues needing immediate attention?
ex: child custody support, restrainig orders, alimony, etc..
Yes
Initiate action by Diling Summons & Complaint and Motion for Temporary
Relief
Temporary Hearing Contested?
Yes
Prepare for Temporary Hearing
Temporary Hearing
Negotiate with opposing party
Settle
No
Temporary Hearing see next page for continuing
steps
Yes
Prepare Consent Agreement/Order
No
Prepare Consent Agreement/ Order
No
Initiate action by Diling Summons & Complaint and Serving Defendant
Defendant has 30 days to answer
****** continue on next page and following steps
The Contested Divorce
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******* Commence Discvovery
Process
Make Offer of Settlement
Settled Privately?
No
Schedule Mediation
Settled in Mediation?
No
Schedule Trial
Prepare for Trial (Continue
Negotiations)
Final Trial
Prepare Order Final Decree Issued
Yes
Prepare Order
Final Decree Issued
Yes
Schedule Final Hearing
Prepare Order
Final Decree Issued
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Initial Consult
Retainer of Lawyer
Lawyer Prepares Marital Settlement Agreement (MSA) based on meeting with client.
Both parties execute the MSA
Initial divorce by Diling Summons&Complaint with MSA
Defendant is served with Summons&Complaint with MSA by picking up from Atkins Law Firm
Defendant signs Answer, AfDidavit for Regular Mail and Acceptance of Service
Defendant documents are Diled
A hearing is scheduled
Client and lawyer meet brieDly to prepare for hearing
Client and defendant prepare Dinancial declaration
Attend Dinal hearing
All parties served with Final Order
The Uncontested Divorce
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About Attorney Tripp Atkins
Tripp Atkins is an attorney and Certified Family Court Mediator in
Greenville, South Carolina practicing primarily in the area of divorce and family
law. He is a graduate of Clemson University with a Bachelor of Science in
Mechanical Engineering and worked for one of the world’s largest design and
construction engineering firms. Mr. Atkins is also a graduate of Campbell
University’s Norman Adrian Wiggins School of Law and is licensed to practice in
all courts in the State of South Carolina and the United States Tax Court.
Tripp is an avid sports fan and loves to cheer on his Clemson Tigers. He is
married to his high-school sweetheart, Stephanie, and they have two children.
Tripp is active at Cross Roads Baptist Church and has served as a deacon and
Chairman of the Finance Committee there.
Tripp practices law as a member of the Atkins Law Firm, P.A. which is
located conveniently near downtown Greenville, South Carolina. Tripp strives to
serve his clients differently than the stereotypical lawyer. He understands that
while he deals with many of these issues every day in his work, this is possibly
the first time you have ever had to deal with them. Tripp works with his clients in
a way to keep them up-to-date and informed about the progress of their case and
lets them know what is ahead. Tripp also follows a strict communications policy
so he makes sure all telephone calls and e-mails are returned on a timely
manner.
Professional Associations: South Carolina Bar Admitted since November 2006 Greenville County Bar Association Member since November 2006 United States Tax Court Admitted since 2008 Certified Family Court Mediator, SC Board of Arbitrator and Mediator Certification Since July 2010
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Community Service: Cross Roads Baptist Church, Greer, South Carolina Serves on Media/Tech Team; Long Term Planning Committee; Past Deacon; Past Finance Committee Chair; Im Jai House Foundation, Greenville, South Carolina Board of Directors, Chairman; Upstate Mediation Center, Greenville, South Carolina Board of Directors, Member; Volunteer Family Court Mediator. Volunteer Coach Upward Basketball, First Baptist Church, Mauldin, South Carolina
Helpful Resources
We constantly update a list of books and other resources we recommend
for people facing a separation or divorce as well as for those looking for more
resources to save their marriage. To make sure you always see the update-to-
date list head over to www.upstatefamilylawblog.com/recommends/ .
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Notes/Questions: