Do I need an Attorney to get a Divorce?
This is a question I hear frequently. My answer is usually a variation of the following: Is it a good idea to attempt surgery on yourself? Probably not, and it is likewise not a good idea to attempt to bring legal actions yourself. There is a popular saying, “A lawyer who represents himself has a fool for a client.”
However, access to the Courts is not restricted only to lawyers. Every day self represented, or pro se, litigants participate in courtroom proceedings with varying levels of success. However, the court system’s procedures are complex and require strict adherence to rules governing substantive and procedural law. Many pro se litigants find the system to be quite frustrating and often fail to achieve their goals in a timely manner due to these challenges.
The services of an attorney will not only assist the client in successfully navigating the court system’s procedural requirements but will also provide the client with expertise and insight into the substantive elements of a case that a non-lawyer is not typically able to anticipate. Pro se litigants rarely experience success when the opposing party retains counsel. Therefore, even when the case is a “simple” one, it is highly advantageous to hire an attorney. It may cost more but the chances of obtaining the desired result dramatically increase.
Can I get a divorce if my spouse refuses to “sign the papers”?
This is a question I get a lot. First, there are no “papers” your spouse needs to sign in order for you to get a divorce. Therefore, your spouse cannot keep you in your marriage against your will. Second, the answer to this question is yes. Even if your spouse wants nothing to do with the case, you can move forward.
How do I get custody of my children?
Obtaining custody of your children will depend on many factors. One of the first things you should consider is whether or not there is an existing Court Order that addresses custody and visitation. If there is you will need to show a substantial change of circumstances warranting a modification of custody in order to serve the best interests of the child. If there is not, then you will need to show that the child’s best interests will served by custody being awarded to you.
It is important to note that the best interests of the child standard is very broad and includes any relevant factor. Some of the most common facts involved in custody disputes are: domestic violence, drug use, sexual and/or physical abuse, child neglect, and the exposure to unmarried romantic partners on an overnight basis. If you believe custody of your child should be awarded to you over the objection of the other parent it is very important to consult an attorney.
What happens if Child Support is not paid?
When child support is not paid the usual consequence is a Rule to Show Cause (RTSC). A RTSC can be initiated by DSS, the Clerk of Court, or the custodial parent. The parent owing child support will be mailed or served notice of the RTSC and instructed to be present in Court on a certain day and time. If the parent fails to be present a bench warrant for that parent’s arrest is issued. If a parent does show up they will be asked to show the court the cause of their failure to pay. Losing this hearing can result in up to a year in jail, 300 hours of community service, or a fine of $1,500 dollars or any combination of all three.
How is the amount of Child Support determined?
The amount of child support is determined by a formula which takes into account many factors including, among others, the ability to pay, the needs of the child, family size, and previous orders of child support. A financial declaration is required by the Court to set child support to provide the necessary details. Once a declaration from the custodial and non-custodial parent is obtained the Court will plug the information from the declaration into a formula which determines the amount of child support due per month. The South Carolina Department of Social Services offers a calculator here.
In which County will my case be?
Jurisdiction for all domestic relations actions lies in the Family Court. In order for the court to have jurisdiction there must be personal jurisdiction or in some cases in rem jurisdiction. Whether or not this exists requires legal analysis for which you should consult with an attorney.
Presuming the court has jurisdiction over the parties the venue for your case will be determined based where the parties reside. Venue may be possible in multiple counties. In a divorce case venue is proper where 1) the county in which defendant resides, 2) the county in which the parties last last resided together as husband and wife, or 3) the county in which the plaintiff resides if the defendant resides outside of South Carolina.