Privacy, confidentiality and social media

When I was in high school, one girl had a cell phone. It was in her car, and the rest of us thought her parents were nuts.  Typically, we called our parents from pay phones and only if we had been in an accident or our cars had broken down.  No one carried cameras around, so didn’t take pictures of what we were doing at parties and we didn’t call to say we would be late for curfew.  Our parents found out what we had been up to the old-fashioned way, either by confession, from other parents, or from the rumor mill.  We found out about our parents problems the same way – they told us they were divorcing outright and we heard rumors about other kids’ parents.

Don’t mistake me, I am not defending the past and I am far from a technophobe.  But the past’s lack of easy access to cell phones allowed, perhaps even caused, much to be private that is shared today.

Today’s parents and their children have the gift of close contact.  But in return for that gift, we have exchanged privacy and the ability to keep secrets within a small group.  This can have devastating consequences to a family law case.

Just a quick look at any so-called “entertainment” website shows just how quickly a couple’s private concerns become public knowledge when unfortunate photographs or posts appear on social media.  Although most of us aren’t famous (or worse, infamous!), we still don’t want our families and friends to dig through our private trauma the way the public digs through the tribulations of the Kardashians, the Michael Douglases, or Russell Brand and Katy Perry.

Consider the impact of the following on your custody or divorce case:

  • Pictures of your underage teenager at a party with a bottle of what appears to be beer in her hand.
  • Pictures of your two-year old son on the back of your motorcycle without a helmet, while you were on the road.
  • Comments by your best friend, showing up on your social media site, discussing the “good time we had, you were so drunk!!!!” and dated on a visitation weekend.
  • Your new status post, “Looking for a hot man, for hot loving!” posted while you are still married.

Do these seem outrageous?  Let me assure you, these and much worse have been seen on social media by attorneys like me, who are asked to defend child custody, child visitation, divorce and alimony cases.

I suggest that anyone considering a divorce or custody action carefully  review their social media profiles and disclose that content to their attorneys.  Evidence from social media is discoverable and may be admissible at trial. If you have already posted things that might not paint you in the most flattering light, the best thing for you to do is, stop posting and seek the advice of an experienced family law attorney who can assess your situation and help you determine your best path forward.

 

 

 

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.

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.

Why do we need a Guardian ad litem?

Ok, let me first put a disclaimer here – I am a trained SC Attorney Guardian ad litem.  But I was an attorney before I was trained as a GAL, although I do know several attorneys who served as lay guardians prior to becoming members of the Bar.  In SC, courts routinely appoint both lay and attorney Guardians ad litem to Family Court cases, and, in my experience, we are lucky to have many fine GALs of both types.

Is a GAL necessary in your case? Generally, the courts in South Carolina may order the appointment of a GAL when there are disputes between the parties as to custody of and visitation with the minor children, and those issues cannot be settled amicably between the parties. In those cases, the court must make the final determination of custody and visitation based on the standard of “the best interests of the child.”  It is the guardian’s role to find and present facts to the court that assist the court in that determination.

If Mom and Dad can’t decide who Baby should live with, or Mom thinks Little Boy shouldn’t spend every summer with Dad but Dad wants two months straight with him, then the court will order that the parents pay for and cooperate with a GAL investigation to determine any facts the court needs in order to make a final decision regarding custody and visitation.  Guardian investigations are to be thorough and complete. The GAL will generally meet Mom and Dad separately and will meet the children.  He will likely visit the schools, the daycare centers, and the parents’ homes.  The GAL may interview any family members or friends that live nearby who may have facts related to the issues of custody and visitation.  He will also interview the children’s teachers, caregivers, and doctors in order to establish that the children are educationally, emotionally and physically well-adjusted and age-appropriate in their progress, and that they are healthy.  The GAL is empowered to review medical and school records.  He will discuss any issues he discovers with Mom and Dad and their respective attorneys.

On the other hand, the GAL doesn’t have unlimited power. He should not be involved in disputes regarding financial issues such as the amount of child support, alimony, property division or division of payment for medical care.  The guardian must not let income sway him in his review of the facts or in making recommendations to the court when the court asks.

Parties should take the opportunity to listen to the guardian’s concerns; they can rest assured that the court takes very seriously the findings of the GAL. If you are involved in, or may become involved in, a case in which custody and visitation will be an issue, discuss the role of the Guardian ad litem with your attorney.

 

Recreation drug use as a ground for divorce

Once in while, I’m asked whether it’s possible to get a divorce based on the occasional use of drugs.  South Carolina law seems very clear on this subject. S.C. Code Ann. Section 20-3-10 SECTION 20-3-10.

Grounds for divorce.
No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit: . . .
(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; . . .

 Oh, except for the little problem of “habitual drunkenness.” Does that mean drinking every day or only on the weekends? How much – a six-pack after work or just one drink every day?  And how does “drunkenness” related to getting high on drugs?

The courts have construed habitual drunkenness to be “the fixed habit of frequently getting drunk; but it does not necessarily imply continual drunkenness.” Rooney v. Rooney, 242 S.C. 503 (1963). In other words, if your spouse drinks to the point of drunkenness often but is not constantly drunk, you can get a divorce on this ground if you have witnesses or other supporting evidence. Testimony from your friends and neighbors, fellow employees or family members about seeing your spouse frequently drunk would support your contention, as would expensive bar tabs or liquor store bills, for example.  Alcoholism as reported in medical records is a ground for divorce. Yates v. Yates, 2003 UP 00635 (Ct. App. 2003).  In addition, the habit of drunkenness must exist at or near the time of filing for the divorce. Simonds v. Simonds, 229 S.C. 376 (1956), Lee v. Lee, 282 S.C. 76 (1984).  You can’t divorce a recovering alcoholic who hasn’t had a drink in years for habitual drunkenness, but you can divorce a drunk whose last binge was three weeks prior to filing based upon that habitual drunkenness.

But what about DRUGS?  Turns out, it does not matter what you get “drunk” on.  Just change the word “drunk” to read “intoxicated” or “high” and you get the same result for drug use.  If you can establish, by a preponderance of the evidence, that your spouse is habitually “high” on a drug, that is sufficient for the court to grant a divorce on this ground.  Examples of evidence are successive failed drug tests, testimony of witnesses, and medical records showing treatment for drug addiction.

I do want to add a caveat to all this – courts don’t like it when one drug user points the finger of blame at another!  If both parties have been using drugs (or getting drunk) together, it creates another set of issues for the court to determine.  More about that another time.

Recreational drug use, that is the very occasional use of drugs such as marijuana, will not meet the standard for habitual drug use (neither will occasional drinking.)  Of course, as you might guess, the dispute between the parties will be centered around the difference between occasional and habitual use.  Some courts have found that any use that has lead to the degradation of the marital relationship is habitual use, at least as far at that particular marriage is concerned.  If you are concerned about drug use or alcoholism and its effects on your marriage or children, consult an experienced attorney for advice.

So you think you want a divorce?

First, stop and take a deep breath. Then take another. Because you will need it to get through the next parts.

Divorce in South Carolina isn’t really difficult, but it can be slow and tedious even in the best of circumstances. Let’s say you and your spouse have agreed, amicably, that you want to part ways. You don’t own any property together, your marriage was short, and you don’t have any children together. Perfect! Easy enough, right? Right! Except, in South Carolina, you must file a Complaint and Summons, and at a minimum, there must be a one-year continuous separation in which you and your spouse do not share living quarters. By that, the court doesn’t mean separate bedrooms, it means separate houses.

I can hear lots of people screaming, at this point, “Unfair!” or, “Too expensive!” or, “Who will know?”

Let me address these. The law, and therefore the courts of South Carolina, are such that marriage is favored. Thus, if you live together when you are married, the emphasis is placed on sustaining the marriage. South Carolina considers marriage to be an economic partnership, but where there is a marriage, the courts generally take great pains to keep it together where there is evidence that is may be upheld, and living together is given great weight as such evidence. If you really want a divorce, the courts reason, you would no longer live together, despite any economic hardship or unfairness regarding loss of mere property.

As to who will know, the court will. Judges are experienced, they see a lot and they become pretty good at ferreting out the truth. Plus, the parties seeking a divorce must bring a witness who will give sworn testimony regarding his or her knowledge of parties’ living arrangements, or “cohabitating” to the court. If the judge suspects the parties of collusion, the divorce won’t be granted and the parties can be held in contempt. A contempt of court charge may carry a penalty from a fine to jail time.

Now, do you think you want a divorce?  If so, and you and your spouse are in agreement, you have several options that can make your divorce go more smoothly. Not more quickly, but more smoothly.

  • Determine who will file for the divorce.
  • Discuss who will move out of the marital home, and how that will be financed.
  • Seek legal advice before deciding to file yourself.  Even if you ultimately decide to be pro se, you should explore the option of having legal representation.
  • Explore options such as mediation. Most counties are moving toward mandatory mediation for divorce cases, and being prepared to mediate can save time and money.
  • Settle as many issues between you as possible.
  • Be flexible. “Winning” may look different in a few months or years than it does in the moment.