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 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.