Proposed Law Seeks Reduction of No Fault Divorce Waiting Period


Did you know that until 1949 South Carolina did not recognize a person’s right to obtain a divorce?   In 1949 divorce was legalized but only on fault based grounds of adultery, desertion, physical cruelty, and habitual drunkenness.  No fault divorces were first allowed in 1969.   However, a person had to demonstrate to a court that the parties lived separate and apart for three years!   Finally, in 1979 this time period was reduced to one year.

Recently Rep. Walt McLeod introduced a bill in the South Carolina State Congress that would reduce this waiting period to 150 days.  Rep. McLeod cites other nearby states such as Florid, Georgia and Tennessee that have instituted divorce grounds with shorter waiting periods or none at all.

“Tennessee has a rule called ‘irreconcilable differences.’ Georgia has ‘irretrievably broken.’ Florida has a 90-day timeframe for no-fault divorce. So when we’re talking about a no-fault divorce, where there’s no dispute, then it’s time to just take some action.”

McLeod went on to point out that Georgia has no waiting period.

Opponents of the bill say that divorce should not be made easier to obtain.  Rev. Eddie Coakley, pastor at Trinity Baptist Church in Cayce, stated, ”To me, that sends a message that, as a society, we’re not taking marriage as seriously. It should be harder to escape our responsibilities, not easier.”

However, the one year waiting period is included in the Constitution of the State of South Carolina.  Therefore reducing the waiting period would require an amendment to the constitution.  This requires a two-thirds approval of the State House and Senate followed by approval of South Carolina voters.

How would you vote?

To see the story for yourself check out the following links:

1)  http://www.wspa.com/story/22003445/bill-would-shorten-waiting-time-for-divorces-in-south-carolina

2) http://www.wbtw.com/story/22007813/bill-would-shorten-wait-time-for-a-divorce-in-south-carolina

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New Rules for Temporary Hearings, November 21, 2012

Last Wednesday, while most of us were rushing around making last minute arrangements for our Thanksgiving meals, visiting relatives, and preferred football viewing, the South Carolina Supreme Court was hard at work promulgating new rules and regulations for Temporary Hearings in the Family Court.  

These new rules were published via Administrative Order on November 21, 2012.  Temporary Hearings in the Family Court are governed by the South Carolina Rules of Family Court, Rule 21.  The text of the rule remains the same but nuts and bolts have changed. Before reading on, review the text of the Order here:  Administrative Order- Temporary Hearings.

The effects of the Order are a mixed bag.  First the good news:

Get into Court Faster

Your court date will be within four weeks of filing.  Attorneys in other parts of our state complain of waiting periods lasting several months!

Get out of Court Faster

Your hearing will not last longer than thirty minutes.  Temporary Hearings, perhaps intrinsically, are brief.  What’s new is that these hearings are now short in duration by order of the Supreme Court.  A Temporary Hearing will now be scheduled for 15 minutes unless a party makes a written request to the Chief Administrative Judge that the matter be deemed “complex” and that the hearing therefore be scheduled for 30 minutes to allow more time for oral argument.

Now for the news that may not be so great:

Limited Affidavits

The above referenced Family Court Rule 21 provides that evidence permitted at a Temporary Hearing is confined to 1) the pleadings, 2) affidavits, and 3) financial declarations of the parties.  There is an exception for taking testimony upon good cause shown but I am curious to see how likely it is that testimony can be successfully given inside of half an hour.

Given such a narrow scope of evidence, coupled with the importance of a temporary hearing, many attorneys devote a lot of time and effort assembling packets of Affidavits through which their case is presented to a judge.  Now affidavits, excluding the Temporary Hearing- Background Information Form  (also new), Parenting Plan (when custody is an issue), Financial Declaration, affidavits for attorney’s fees, and other attachments offered as verification of information contained in affidavits, must be contained within 8 pages.  However, if a Temporary Hearing is deemed to be “complex” as referenced above, the 8 page maximum is inapplicable.

The reason I classify this as a change that is not for the better is for two reasons.  One practical and one substantive.

First, as a practical matter, taking statements from more than one or two people will be extremely difficult within eight pages.  I foresee attorneys reverting to their law school word processing tricks to fit everything in; be on the lookout for shrinking margins and tiny font.

Second, a family court litigant’s opportunity to be heard may be severely limited.  Due Process provides that a litigant must enjoy an opportunity to be heard.  But in many cases, such as custody/visitation actions or contested child support modification actions, eight pages will be insufficient to fully apprise the Court of one’s position.  If you do not have a reasonable opportunity to state your case, your rights are being tread upon.  The key here will be the Court’s analysis of what types of cases are deserving of the “complex” tag.   The Court seems to define a “complex” hearing as one that it is not “routine”.

Self Negation

When these new rules are combined in a hypothetical, incongruities quickly reveal themselves.   For example, many Motions for Temporary Relief are filed along with the Summons and Complaint and often take place only a few days after the opposing attorney is hired.  Charleston Family Law Attorney, Greg Forman’s article poses the question, what happens when the moving party files for temporary relief as a “routine” motion and the responding party arrives armed with affidavits in excess of 8 pages arguing the matter is “complex”?   The Due Process argument would be to continue the case to allow the moving party to get more affidavits so they may be fully heard.  But if the case is continued then the four-week rule is no longer in effect.

There are several other aspects of this Administrative Order do not affect the client but, nonetheless are important to the lawyer.  If you are involved in a domestic relations dispute take a few minutes to read over the Order and decide for yourself what it means to your case.

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Orders of Protection

Unfortunately, many domestic relations cases overlap into the realm of criminal law.  While Orders of Protection are not themselves criminal actions, they are often thought of that way because they are usually based on alleged criminal behavior, involve police, and the violation of such an Order can land a person in jail.

However, Domestic Orders of Protection from Abuse serve an important purpose to many victims and potential victims out there.  So what exactly is a domestic order of protection from abuse and how can one be obtained?

First, the proper name is “Order of Protection”.  You get an Order of Protection by filing a Petition for an Order of Protection.  There are a few different “elements” of an Order of Protection that must be considered to be successful in filing a Petition.  Among these elements are jurisdiction, a proper defendant, and contents of a petition.

JURISDICTION – Where do I file?

South Carolina Code of Laws, Section 20-4-30 states the petition should be filed in one of four places:  1) where the abuse occurred, 2) where the petitioner resides, 3) where the Defendant resides, and 4) where the parties last shared a residence together.  However, it is best to file in the county where the Defendant resides to avoid issues pertaining to proper venue.

PROPER DEFENDANT —  Who can I file against?

An Order of Protection may only restrain certain classes of people.  Those people are 1) a spouse, 2) a former spouse, 3) a person with whom the Petitioner shares a common child, 4) a male or female with which Petitioner lives with or lived with previously.

CONTENTS OF A PETITION —  Do I have grounds for an Order?

South Carolina Code of Laws, Section 20-4-40(b) states that in order to obtain grounds for an Order of Protection:

 A petition for relief must allege the existence of abuse to a household member. It must state the specific time, place, details of the abuse, and other facts and circumstances upon which relief is sought and must be verified.

Included within the definition of abuse are bodily injury, physical harm, assault, and the threat of physical harm.

The State of South Carolina, by law, may not charge a filing fee and the clerk’s office of your county courthouse should have simplified forms available to complete your petition.

HEARINGS ON PETITIONS —  What’s Next?  

There are two options for a hearing.  One is an emergency hearing, granted for “good cause shown” within 24 hours of service of the petition, and the other is a non-emergency hearing which must take place within 15 days of the filing of the petition.  To show good cause 

A prima facie showing of immediate and present danger of bodily injury, which may be verified by supporting affidavits, constitutes good cause for purposes of this section.

Whether or not the hearing is an emergency the Petitioner will have the burden to show by a preponderance of the evidence that abuse occurred.

ORDERS OF PROTECTION —   What kind of Protection?

If the Court awards an Order of Protection it will specify what kinds of protection it intends.  The options available to the Court are protections:

(1)  temporarily enjoining the respondent from abusing, threatening to abuse, or molesting the petitioner or the person or persons on whose behalf the petition was filed;

(2)  temporarily enjoining the respondent from communicating or attempting to communicate with the petitioner in any way which would violate the provisions of this chapter and temporarily enjoining the respondent from entering or attempting to enter the petitioner’s place of residence, employment, education, or other location as the court may order.

In addition to these restraints against the respondent a Court may also award other relief to the Petitioner, including but not limited to, temporary child support, custody, and visitation Orders.

DURATION —  How Long am I Protected?

Orders of Protection remain in effect, at minimum, six months.  At most, a full year.  When an Order is set to expire the Petitioner may apply to the Court for an extension.  If this occurs the Respondent is entitled to a hearing on the extension within 30 days of the date upon which the order will expire.  Another way to terminate an Order of Protection is for the parties to reconcile.  If this happens the Petitioner must appear at the offices of the issuing court, show proper identification, and sign a written request to dismiss based on the reconciliation.

Terms in an Order of Protection pertaining to custody, visitation, child support, and other issues may require a subsequent court order for termination.

 

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You Got Served Part II

 

How do you know if you have been served properly?

Quite often in my practice I encounter parties who missed a court date or just learned of an impending court date for which they have little or no time to prepare.  This presents the litigant with a problem.  Should they go to court unprepared and risk an unfavorable outcome or should they stay home and protest later?

This is where the rules governing service of process come into play.  So let’s take a look at these rules.  The South Carolina Rules of Civil Procedure, Rule 4 sets forth requirements for proper service of legal documents.  A good place to start is a consideration of the person who “served” you.  Rule 4c states,

Service of summons may be made by the sheriff, his deputy, or by any other person not less than eighteen (18) years of age, not an attorney in or a party to the action.

A common application of this rule is a situation where one spouse serves another with divorce papers.  This is not good service because in a divorce case each spouse is a party and the rule plainly states a party may not serve the other party.

Once you have determined you were served by an appropriate person a good follow up question to ask is, “How was I served?”

Rule 4(d)(1) states,

Upon an individual other than a minor under the age of 14 years or an incompetent person, by delivering a copy of the summons and complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy to an agent authorized by appointment or by law to receive service of process.

Proceeding through this rule one phrase at a time is useful.  First, the rule defines an “individual” capable of being served as any competent person over the age of 14.  So, if for some reason, your twelve year old brings you a summons and complaint, most likely you were improperly served.

Next, the rule states the summons and complaint may be delivered to the Defendant personally or it may be left at the defendant’s residence.  This means the service must be handed directly to the defendant or alternatively, it can be left at the defendant’s residence. This is not as simple as it may seem.  Often times a person going through a divorce, for example, will leave the marital residence and stay with a friend or relative.  A person may even change residences on several occasions in a short period of time while seeking more permanent lodging.  If this occurs then the person’s dwelling house or place of usual abode becomes difficult to ascertain.

If the defendant’s address is reasonably certain the summons and complaint may be left with a person who is likely to alert the defendant of the service.  A grey area exists here.  How do you know if you are serving a person of “suitable age and discretion?”  Well, a good rule of thumb here is what is called the “reasonable prudent person” standard.  Would a reasonable person leave important papers with a small child?  Probably not.  And neither should your process server.  But what if, instead of a small child, a sixteen year old answers the door?  If that is the case proper service may depend on whether the Court is satisfied the teenager is mature and trustworthy enough to be deemed of suitable age and discretion.

The next detail is crucial.  The person who receives the summons and complaint must “reside therein”.  This means the person receiving service must live in the dwelling house or usual place of abode.  An overnight guest or out of town visitor will not suffice.  Due to the temporary nature of a visitor, a visitor is not a person to be depended upon to convey important information such as legal documents.

Finally, getting back to our original question, if you are served with a summons and complaint it is NEVER a good idea to ignore it as invalid.  If you feel you were not properly served or you need more time to prepare your case or hire an attorney you should take steps to communicate this to the Court.  Conferring with an attorney is always a good idea.

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You Got Served

Much confusion and uncertainty arises upon being served legal documents.  Unfortunately, a common reaction to receiving a Summons and Complaint is akin to the stages of grief.

First, one who receives the documents experiences some denial that they can be sued.  This person goes around telling their friends that the person suing them has no case and they will prevail outright.  Second, and often indistinguishable in time to the first, is anger.  The idea of being sued is daunting and can trigger instinctual reactions of fear and retribution.  This can have drastic consequences if left unchecked.  The third stage is bargaining   After a cooling off period the defendant may begin to regain composure and decide they can bargain their way out of the lawsuit.  They tend to follow this reasoning, “I can talk to the Plaintiff and we will work it out without getting the law involved.”  This is a terrible idea because it often results in inadvertent admissions to material facts of the case. After bargaining fails, a general malaise or depression may set in when the Defendant finally realizes the magnitude of his or her situation and what is at stake.  Then, the Defendant finally begins to accept their lot.  This is the point, usually only a day or two before a court appearance or deadline to file an answer, that a defendant begins seeking an attorney to represent them.

While these reactions are understandable, dwelling upon them can have adverse effects on a person’s chances of achieving a satisfactory result.  According to the South Carolina Rules of Civil Procedure, Rule 12(a) a person has 30 days to answer after they are served.  ***If you fail to Answer the consequences may be that all of the allegations against you are accepted by the Court as true.***

Don’t let this happen to you.  As soon as you receive service of a Summons and Complaint contact an attorney.  The longer you wait the more your case may be in jeopardy.

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Introducing Eric S. Durand, Esq., L.L.C. Online

Greetings and Welcome to the Law Offices of Eric S. Durand!

Eric Durand founded this law firm in order to assist his fellow low country residents with their legal needs.  Originally from Jacksonville, Florida, Eric relocated to Summerville in 1987 after his father was deployed to the Charleston Navy Base.  After graduating from Winthrop University with a B.A. in Political Science Eric attended the Florida Coastal School of Law where he earned a Certificate in International Law, a place in the Phi Delta Phi International Legal Honor’s Society, and graduated with the Pro Bono Achievement Award.

After law school Eric worked as a Public Defender for Kershaw County in Camden, South Carolina handling all manner of criminal cases including, drug possession, burglary, theft crimes, assault and battery, arson, and sexual abuse.

In the Summer of 2011 Eric moved back to his beloved hometown to hang his shingle and begin the practice of law among the friends, family, and fellow citizens with whom he grew up.  He is now practicing law in North Charleston sharing an office with two other Florida Coastal Alums, John and Abigail Duffy.  Looking forward, Eric seeks to expand his practice to offer more services to the public at large and his clients individually.  In his spare time Eric participates in the Charleston Department of Recreation soccer leagues, participates in community service projects, such as the Habitat For Humanity Wills Clinics, enjoys cooking, reading, and playing guitar.

Education
Winthrop University, B.A.
Florida Coastal School of Law, J.D.

Professional Associations
American Bar Association
South Carolina Bar Association
Charleston County Bar Association

Community Associations
Young Lawyer’s Division Wills Committee
Young Lawyer’s Division Courthouse Keys Committee
Florida Coastal Alumni Chapter Vice President

 

 

 

 

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Facebook and Divorce

The advent of social media has simultaneously improved and sullied our lives.  One day we find an old high school friend not seen since graduation and the next day we discover our spouse “poking” an old college girlfriend.

Divorce Online, a British legal services company, recently conducted a study in which it found one third of all divorce complaints filed during 2011 contained the word “Facebook”.  (See article here.)  The reasons the social media giant appears so frequently are no mystery.  Cited as the most common reasons for Facebook appearances in sampled divorce complaints are 1) inappropriate postings between a spouse and a member of the opposite sex, 2) post-separation insults posted by jilted lovers, and 3) reporting of one spouse’s activity by a friend of the other spouse.  These problems have become so commonplace the aggrieved now have a special website, http://facebookcheating.com, where they can go and vent to others in similar situations.

Not only does Facebook play a role in causing marital discord, it frequently plays a significant role in subsequent litigation.  First, the opposing party will almost certainly be snooping around on your page to see what you are up to.  Second, A person anticipating a divorce or custody case should exercise extreme caution in posting on any social media site.  When a client asks me about their case and their Facebook page my answer is always the same:  DO NOT POST ANYTHING ABOUT YOUR CASE.  EVER.  Do not change your relationship status, do not complain about your soon-to-be Ex.  Do not share details about your child support obligation or visitation schedule.  Finally, You should also be careful about existing entries on your page.  If you are the type of person who has a Facebook page but does not post frequently most of the content on your page, as well as your pictures, are supplied by your “friends”.

Here is one example of how that can go terribly wrong for a person.  Hypothetical Harry typically only takes pictures when he is out at parties.  Usually if Harry is a party he will have a few drinks.  Since Harry is photographed mostly at parties, almost every picture of Harry is a picture depicting Harry partying and drinking.  This makes Harry look like an alcoholic and will decrease the likelihood of Harry getting custody of his child.

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New Rules for Rules… to Show Cause

The South Carolina Supreme Court recently issued its revamped procedures for enforcing domestic relations orders.  The South Carolina Rules of Family Court, Rule 14 governs what are known as Rules to Show Cause which are proceedings brought by DSS, the Clerk of Court, or a Party to a case alleging another party to the case willfully failed to abide by the Court’s order and should be held in contempt.  If one is held in contempt punishments may range from a $1,500 fine, 300 hours of community service, or up to a year in jail.

If you find yourself on the wrong end of one of these proceedings you will need to demonstrate to the Court that you were unable to abide by the Court’s order.  This usually means showing you are, or were, unable to pay child support, alimony, your child’s medical bills or any other obligation imposed upon you by a court order.  To do this you should arrive at the Courthouse punctually and armed with a completed, notarized financial declaration supported by pay stubs as well as any other information you have that may be relevant to your inability to abide by the Court’s order.

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