Fair or Equitable?

When I was a teenager, I would bemoan the fact that something or another wasn’t “fair.”  The teacher wasn’t fair.  My friends weren’t being fair, the rules for college admission weren’t fair. Whatever it was, it wasn’t “fair.”  My mother, after listening to my litany, responded (more than once), “Who told you life was fair?”

That, in a nutshell, summarized my mother’s matter-of-fact worldview.  Her calm and cool delivery of the line let me know that if I didn’t like a decision, grade, or other “unfairness,” I should be prepared to fight against it as best I could, or I should accept it and move on.  Either way, it was up to me.  I don’t remember her ever trying to convince me that something was fair.  She expected me to learn it for myself, although she would sometimes play Devil’s Advocate.  I don’t think the idea of equity ever came up, and if it did, I’m sure I believed they were the same thing.

In family court, there is an inherent difference between “fair” and “equitable.” Think of fairness as equality between the parties.  It’s what happens when I go buy ice cream for the family and everyone gets exactly one cup of ice cream.  Doesn’t matter how large or small the person, and it doesn’t matter who did their homework or their chores around the house.  I bought ice cream for the family, and all members get an equal, fair share.

Equity, on the other hand, takes into account what contributions members of the family have made before doling out anything to the various members.  Equity seeks justice among the parties. If I buy ice cream for the family, but someone was completely lazy all week and didn’t do any chores and other members had to do their work, why should the lazy person get the same as the ones who worked harder? Shouldn’t the harder workers get a little extra as a reward?  Or maybe instead, I’ll put some whipped cream on their ice cream, but none on the lazybones’ ice cream!

See, in equity, we can reward the harder worker, or the one who contributes more, with a little extra in recognition of the extra contribution.  But sometimes, to do so, we may have to take a little “ice cream” from the one who didn’t contribute as much.  If the family has a lot of extras (like whipped cream) it doesn’t hurt as much.  But in a family with fewer resources, the person who gets less because they contributed less will inevitably feel the pinch when the other party is award more in acknowledgement of their greater contributions.

South Carolina Family Courts are courts of equity.  Marital property will be equitably divided.  If you are seeking a divorce, be sure to find a family law attorney who is skilled in assisting clients in preparing valuations and other tools for use in equitable division of their assets.

Child Custody – Who will my child live with after divorce?

Possibly the most frightening aspect of a divorce is the issue of child custody.  When parents decide to separate and ultimately divorce, who gets custody of the children? Do judges automatically give custody to the mother? What if the mother is an unfit parent? What if the father works a shift schedule? What if neither parent can care for the children adequately after a separation – can grandparents step in?

Custody decisions can be settled between the parties, mediated with the help of a professional mediator or decided by the court at a final hearing.  Generally, when the parties reach a settlement, the court will not interfere with its terms, absent a clear violation of law, testimony that one of the parties was coerced or under duress at the time of making the agreement, or a finding that the settlement is not in the best interest of the children.  The parties will be questioned regarding the terms of the settlement, as will the Guardian ad litem, if one was appointed in the case.

The trend in South Carolina has been away from sole custody, in which one parent, usually the mother, gets custody of the children and the other parent, usually the father, gets visitation on a standard schedule.  The past few years have seen more awards of joint custody, with the parents sharing some combination of physical and legal custody of the child.  One parent is designation the primary custodian with whom the child shall reside, and the other parent has “liberal visitation.”  The non-custodial parent is sometimes denominated “the secondary custodian,” meaning, essentially, that should something happen to the primary custodian, the secondary custodian doesn’t have to go before the court to take custody of the children. The primary custodian generally had decision-making authority over the children’s health, education, religious, and extracurricular activities, although the parties can decide to share these responsibilities in any combination, dependent upon their ability to work together reasonably.  Emergency decisions are generally made by the parent having physical custody of the child at the time of the emergency, so as to get the child care as quickly as possible.

This type of custody plan may be distinguished from split custody, which is sometimes used in multi-child families.  In split custody, one parent takes custody of at least one child and the other has custody of the remaining children.  This is sometimes seen in cases where the mother is awarded custody of the infant children and the father is awarded custody of the teenagers or where the mother gains custody of the daughters with the father gaining custody of the sons.  Split custody is rarely the preferred custody, as the courts presume that children of a marriage should be raised together absent compelling evidence that split custody is in their best interests.

Sole custody is preferred in cases where the non-custodial parent is unfit or cannot be located, having deserted the family.  Sole custody is a relic of a time when fathers were the sole breadwinners in the family and all mothers stayed home and cared for the children full-time.  Sole custody was predicated upon the idea that children were not as bonded to their fathers as they were to their mothers.  Of course, in today’s families many mothers work full-time, some fathers are the stay-at-home caregivers, and the range of “normal” for families is completely different than fifty or even thirty years ago.  South Carolina courts recognize this in the changing preference toward joint custody.

    Among the considerations in custody awards are:

  • The best interests of the child
  • Which parent has been the primary caregiver
  • Whether either parent has engaged in immoral conduct that has a direct negative effect on the children
  • Evidence of domestic violence in the home, including evidence of which party is the aggressor
  • Evidence of unfitness, including drug abuse or habitual drunkenness, suicide attempts, inability to care for oneself, and other behavior tending to put children at risk
  • The education and parenting skills of the parents
  • The health and ages of the parents
  • Who is best able to foster a good relationship with the other parent
  • The support system, including extended family, that surround the parents
  • The opportunities for education, extracurricular opportunities and other benefits the child will have living with each parent
  • The child’s wishes
  • The parents’ wishes

Only a qualified and experienced attorney can adequately explain the law as it applies to a particular case.  If you are considering divorce and concerned about child custody, ask for a consultation with a family law attorney.

Trust your attorney – you paid her to take care of your case

You came to the consultation. We talked. We discussed the basics of your case.  I explained how I work and told you my retainer fee.  At some point you paid the retainer and we signed a retainer agreement.  I am your attorney for the case.

We explored possible means to accomplish your goals.  I explained the law to you.  I gave you my opinion as to the best way to proceed.  You decided to think about it, and left my office.  But then you decided to get the opinions of your friend whose been through the “same thing”, your mother, another friend who works in an attorney’s office, and so on.  Based on their input, you called me.  You said THEY were sure you are entitled to more than I had informed you of, that the law was clearly in your favor, and that no judge would ever find in favor of your spouse.  In fact, we need to go straight to a hearing because there is no need to settle because a judge will just think you are weak.

Virtually no attorney will resent a prospective client seeking the opinion of other attorneys prior to engaging an attorney on a matter.  The issue I raise here is of clients engaging an attorney to represent him in a case, then seeking “second” opinions from non-attorneys.  Non-attorneys are not authorized in South Carolina, by statutory law, to give legal advice.  In addition, once an attorney has been engaged on a case, many of the issues are of a sensitive and even confidential nature.  Clients should be aware that even the most well-meaning friend or family member may accidentally reveal confidential information or case strategy to the opposing party.

You have fallen victim to what is variously termed the “Greek Chorus”, “Cheerleader Squad”, or “Friends & Family Network.”  They are there not only to support you in your hour of need, but to make dang-sure you get everything that’s coming to you! And they will help you fight tooth-and-toenail until you do.  Even when you think about giving in, their job is to stir the pot until you boil over again.  Because they aren’t gratified until that low-life spouse of yours in in his or her proper, low, and degraded place.

But let me ask you this?  Do any of these friends and family look in the mirror in the morning with you? Do they raise your children, and do they have to explain to them why you and your soon-to-be ex are unhappy? Will they be the ones paying the mediator, the GAL, and the lawyers? Will they be the ones going into the courtroom to testify to the court about why there has been no settlement after repeated attempts?  Do your friends and family know when settlement attempts are required, which counties are mandatory mediation jurisdictions, and which forms must be filed in all cases as of 2013?  Are they experienced at developing parenting plans? Do they know the different standards for sole, joint and shared custody? Do they understand the various grounds for divorce, and what evidence will be required? Do they know when you need a competent witness to testify at a hearing (for that matter, do they know what makes a witness “competent”)?

We lawyers will explain the law and how it applies in YOUR unique case.  We any possible options and explain the ramifications of your decisions on your case, your finances and your lifestyle, to the best of our ability.  We try to prepare you for any changes that might effect your future, especially in child visitation and child support cases.  We know the answers to all the basic questions, and we have additional questions as well as answer .

So, if your BFF, your auntie, your step-mom and her friend that works in a doctor’s office who got divorced last year can all give you good advice, why  hire me?  Hire me because you want a professional yet caring attorney who will zealously defend your case and keep you informed regarding the law and its application to the facts of your case.  That is why hiring an attorney is better than listening to your BFF and the “Greek Chorus.”  And its why your attorney’s fees are money well spent.

 

 

Why the Baby Veronica case matters

On July 31, 2013, the Charleston County Family Court ordered the Matt and Melanie Capobianco will be Baby Veronica’s parents and with a court approved transition she will have both her adoptive parents and biological father in her life. http://www.counton2.com/story/22983997/baby-veronicas-adoption-is-final

if you haven’t followed this case, here is the Supreme Court of the United State’s web site with all of the details of the case, http://www.scotusblog.com/case-files/cases/adoptive-couple-v-baby-girl/

To boil it down for you, the child’s mother, who was not married to the baby’s  father, told the father she was pregnant.  He offered to pay for an abortion, then apparently abandoned the pregnant woman, who offered the baby to the adoptive couple.  They cared for the child from birth, and the adoption was set to be finalized when the father, through various means, interceded.  He asserted that his rights to the child as a Native American superseded those of the adoptive parents and that Federal law provided that the child must be removed from the home of the prospective adoptive parents and placed with the biological father whom she had never met.  The case went to the State Supreme Court which agreed with Brown, reluctantly.

However, the United States Supreme Court, which heard the case this summer, said that state law should have been followed.  The justices sent the case back to South Carolina. Once here, the state Supreme Court sent it back to local family court in Charleston, and last week Charleston Family Court finalized the adoption, allowing for a placement plan in which the adoptive parents and the biological father play a role.  The biological father and the Cherokee tribe have vowed to continue the fight for custody.

Why do you care about the fate of one four-year-old part Native American child? Because:

  • What if your son impregnates a young woman and walks away from his responsibility? Does he have the right to come back later and claim that child?
  • What if your daughter doesn’t tell the father of her child she is putting it up for adoption? What if she allows him to think she had an abortion instead? Does that action deny him of his rights to the child?
  • What steps must fathers take to find out about children they “might” have?
  • Should well-meaning people wishing to adopt a child but who later find out about “negative” circumstances be forced to give the child up?
  • At what age is it inappropriate to remove a child from a home with loving “parents”?
  • Is blood thicker than water – do the rights of birth parents trump those of loving and fit non-relative parent-substitutes who have raised a child from birth?
  • What are the Native American tribes rights to children with little Native blood? What percentage native blood is too tenuous a link to a tribe?
  • Should children have multiple parents – can a child have a legal link to a biological and an adoptive parent? Why or why not?

These and many other issues are raised in this case.  It may takes months or years before all of the repercussions of this case make their way into our lives in the form of new legislation.  No matter who you believe the ultimate winner and losers to be in the case of Baby Veronica, we cannot escape the fact that the case will resonate for years and perhaps decades to come.  Do you have a question about adoption? Contact a family law attorney like me. I would be delighted to assist you.

 

Who pays for my divorce?

Usually it starts like this.  A potential divorce client comes in for a consultation and states right off, “I don’t have any money.”

Uh-oh. I have to tell you, frankly, that is a bad start.  Because even if you and your spouse can agree on every single thing right down to splitting the silverware, divorce is going to be expensive.

First, there are the court costs and the service of process fees.  These costs are the same whether you have an attorney or are a self-represented litigant (often referred to as pro se.)  In addition, if you and your spouse cannot reach a fair and equitable settlement, you may be ordered to participate in mediation.  Many counties, including Aiken County, are mandatory mediation counties.  If the contested issues involve child custody and visitation, the judge will appoint a Guardian ad litem to the case.  You will pay for the mediator and the Guardian ad litem‘s time.

In addition to these fixed costs, you may need to hire a private investigator , a business evaluator, psychologists, child custody evaluators, and other experts.

If your spouse says the magic words, “I want a divorce” don’t be tempted to go it alone to save money.  Do yourself the favor of getting legal advice before you decide to be self-represented or to “share” attorneys with your spouse*.

 *In South Carolina, an attorney in a divorce case cannot ethically represent both parties.  “Sharing” an attorney is unethical; typically, an attorney will represent only one of the litigants.  The other may waive his right to an attorney by signing documents stating that he or she has been advised that he has the right to retain his own counsel and has freely and voluntarily given up that right.

Divorces are expensive. But an attorney who practices family law can advise you where to spend money wisely, how to save money by negotiating wisely, and help you understand all the pitfalls and possibilities of the family court.

 

 

 

Mental Cruelty – emotional distress and divorce

If South Carolina were like the movies, you’d hear this in courtrooms all over the state:

“My husband treats me terribly! He says horrible things about me and calls me names – says I am fat and ugly! It’s just unendurable! I can’t take it anymore!”

But in South Carolina, this fictional wife will have to move out (or get her fictional husband to do so) and wait for one year to pass in order to get her divorce. Because unless she has other grounds (adultery, physical abuse, habitual drunkenness), she can’t be divorced in South Carolina.

Clearly, mental cruelty is no laughing matter.  Emotional abuse, bullying, verbal abuse, these are but a few of the names we now use to describe the destructive forces of mental cruelty.  Why isn’t mental cruelty grounds for a divorce in this state? Well, it’s hard to say. Regardless of the reason, the statutory and case law is clear – South Carolina will not grant a divorce for mental cruelty.

When the cruelty issues arise in a case that included claims of habitual drunkenness or physical cruelty, the court sifts through the evidence, and generally, discounts the incidents that reflect mental cruelty (verbal statements, breaking personal property, etc.) as opposed to physical cruelty (punching, slapping, hitting with fists or other objects, shooting or shooting at.) If there is sufficient evidence remaining that meets the standard of physical cruelty (sufficient in nature of the injury, sufficient in number of incidents, sufficient in seriousness of the threat to the injured spouse), then the divorce will be granted on the ground of physical cruelty.  Although reasonable people know that mental anguish accompanies physical cruelty, mental cruelty does not bolster or increase the severity of the physical cruelty.  If the claims of physical cruelty are not enough, but there are instances of mental cruelty as well, a divorce cannot be granted in South Carolina, absent some other ground such as habitual drunkenness, abandonment or one year’s continuous separation.

If you or someone close to you is locked in an abusive marriage, it’s important to seek advice from an family law attorney who understands these issues. Please give me the opportunity to help.