Ever wonder how Judges calculate your child support in South Carolina? South Carolina uses "child support guidelines" to calculate child support. These guidelines are based on the gross income of the parties, and provides credits for such things as:
1. work related child care expenses
2. previous court ordered child support payments,and
3. health insurance premiums for children
If you would like to estimate your child support, click here to check out the DSS child support calculator.
Sunday, July 26, 2009
Sunday, July 19, 2009
What to expect in Court?
When going to Court regarding divorce, your attorney should try to prepare you as much as possible as to what to expect. Besides the basics of dressing appropriately, providing copies of your evidence to the court as well as opposing attorney and your spouse, some of the general things you can expect in a Courtroom (for a final hearing) include:
1. Finality. Judges will make final decisions regarding your divorce, alimony, property division. Once that decsion is made, any choice you had is gone. Consider what is truly important to you and what you may be willing to compromise before getting to that point. Some counties require mandatory mediation and pretrial conferences, so by the time you get to a trial, you should only be dealing with issues that you can't resolve on your own.
2. Evidence. If you are alleging that your spouse makes more than they are saying, be prepared to provide documentation. You have to prove your case. Make a journal if you have to from the time you start considering divorce and obtain copies of financial documents. Keep your attorney informed of anything that might help prove what you are saying and support what you are asking for.
3. Witnesses. If you have a witness to prove a point (whether it be personal or expert), make sure your attorney has spoken with them first and bring them to court. Judges expect parties to make self serving statements to get what they want. Many times, third parties can help because they may be more objective and may prove your case.
4. Testimony. In a trial, you will likely testimy. Prepare your testimony with your attorney to stay on point with the legal issues. Most times you won't be allowed to cover every aspect of your life with your spouse. Try to stick to the issues.
POINTS TO REMEMBER:
1. Judges don't (or at least shouldn't) know you or your spouse so they can't take your word for it. They can't know who to believe and you can't expect to prove you case by insisting that you are telling the truth.
2. Your attorney can't guarantee a result and sometimes, no matter how much you prepare, you still may not get what you want or feel that you are entitled to.
3. South Carolina family court hearings are determined by a Judge, not a jury. Judges are ordinary eople and you never know what testimony or evidence will be the most convincing or what the final decision will be.
4. If you have questions about your legal situation, a consultation can cost you a lot less than not doing anything until your spouse serves you with papers. Sometimes by that point, you spend the entire divorce playing catch up to your spouse who has been preparing their case before they hired an attorney.
5. Try to manage your expections. Be honest about what you want when talking to your attorney.
1. Finality. Judges will make final decisions regarding your divorce, alimony, property division. Once that decsion is made, any choice you had is gone. Consider what is truly important to you and what you may be willing to compromise before getting to that point. Some counties require mandatory mediation and pretrial conferences, so by the time you get to a trial, you should only be dealing with issues that you can't resolve on your own.
2. Evidence. If you are alleging that your spouse makes more than they are saying, be prepared to provide documentation. You have to prove your case. Make a journal if you have to from the time you start considering divorce and obtain copies of financial documents. Keep your attorney informed of anything that might help prove what you are saying and support what you are asking for.
3. Witnesses. If you have a witness to prove a point (whether it be personal or expert), make sure your attorney has spoken with them first and bring them to court. Judges expect parties to make self serving statements to get what they want. Many times, third parties can help because they may be more objective and may prove your case.
4. Testimony. In a trial, you will likely testimy. Prepare your testimony with your attorney to stay on point with the legal issues. Most times you won't be allowed to cover every aspect of your life with your spouse. Try to stick to the issues.
POINTS TO REMEMBER:
1. Judges don't (or at least shouldn't) know you or your spouse so they can't take your word for it. They can't know who to believe and you can't expect to prove you case by insisting that you are telling the truth.
2. Your attorney can't guarantee a result and sometimes, no matter how much you prepare, you still may not get what you want or feel that you are entitled to.
3. South Carolina family court hearings are determined by a Judge, not a jury. Judges are ordinary eople and you never know what testimony or evidence will be the most convincing or what the final decision will be.
4. If you have questions about your legal situation, a consultation can cost you a lot less than not doing anything until your spouse serves you with papers. Sometimes by that point, you spend the entire divorce playing catch up to your spouse who has been preparing their case before they hired an attorney.
5. Try to manage your expections. Be honest about what you want when talking to your attorney.
Do you need to hire an attorney?
This is an excellent question. For many individuals who have been separated for more than a year and are contemplating an uncontested divorce where there are no children, no property, no debts, no alimony issues there are forms that you can use represent yourself. You are not required to hire an attorney. If you consider this route, make sure to look for forms with specific instructions that you feel comfortable following. Additionally, legal services offers free classes to help individuals represent themselves in a divorce.
If there are contested issues, consult with an attorney. You don't have to hire the attorney if you are not satisfied with a consultation. Start early, ask questions, and keep a journal of what is going on in your life.
If there are contested issues, consult with an attorney. You don't have to hire the attorney if you are not satisfied with a consultation. Start early, ask questions, and keep a journal of what is going on in your life.
How Can you help your Attorney help you with your Divorce?
One of the most important things that I like for clients to do is to write down what they would like to accomplish in this divorce and their disagreements with their spouse. It helps to focus the client on what is important to them because sometimes the attorney might have have a completely different focus on what you want. It also helps to determine your expections with the court system.
As much as letting a client know their legal options, I like to help clients transition through this painful process to hopefully get their life back to a normal place or better. Being able to give a client some peace of mind helps determine if the attorney and client are a good fit.
Going through a divorce can be like jumping out of a plane. Your attorney is similar to a parachute to help with the landing. If both you your attorney know what you want and expect, it will help to determine your legal rights and whether all of your complaints can be addressed through court.
As much as letting a client know their legal options, I like to help clients transition through this painful process to hopefully get their life back to a normal place or better. Being able to give a client some peace of mind helps determine if the attorney and client are a good fit.
Going through a divorce can be like jumping out of a plane. Your attorney is similar to a parachute to help with the landing. If both you your attorney know what you want and expect, it will help to determine your legal rights and whether all of your complaints can be addressed through court.
Tuesday, May 26, 2009
How damaging is a custody dispute to your child?
Consider the following article:
“Children of the Family Court”
“Children are born loving their parents... After a time they begin to judge them…
Never do they forgive them.”
I wish I could remember who penned these poignant words. I did not. However, during my years as a South Carolina family court judge I would frequently quote them to hundreds of fathers and mothers who appeared before me.
I want to share some insight with you that you will find neither comforting nor validating. To be candid, I hope you find it unsettling.
After over thirty-five years of practicing family law (as an attorney, a judge and now as a family court mediator) I have witnessed firsthand the anger, bitterness, hurt and sadness experienced by wives and husbands, and fathers and mothers going through the anguish of a divorce and custody fight involving their children. From my unique vantage point as a judge I was able to view some of society’s more disturbing human traits.
Let me share this with you. If you are scheduled to appear in a family courtroom, this is what happens (the sequence of events is not necessarily essential):
• Your case may be scheduled for one day of trial. Actually, that means, at best, you will be inside the courtroom for six hours only (family courts typically run from 9:30 AM – 12:30 PM, and then from 2:00 PM to 5:00 PM).
• Your attorneys will call your witnesses to testify, and you will testify, and each side with be subject to questions from your spouse’s attorney. The ultimate objective of your spouse’s attorney is to paint you, as a spouse and a parent, in the worst light possible. The experience can be excruciating and humiliating, with strangers being made privy to your family’s most private moments.
• A guardian ad litem who is court-ordered to represent your children’s interest will most often testify; however, depending on the age of your children, they, too, may be called as a witness to testify.
• At the conclusion of your case, and perhaps several months after the trial has ended, the family court judge will enter his or her decision. And your lives and the lives of your children will then become governed by the order or decree of your family court judge, which most certainly will impact your family for many years to come.
After parents and their attorneys had entered and been seated inside my courtroom, I would make these remarks to them:
“For whatever reason you’re here in my courtroom today, please know that I’m truly sorry you’re sitting here; and I have to believe that you’d rather be anywhere on the face of this earth than sitting here listening to me. But you must understand that I didn’t invite you here…you brought your case to us, and by sheer serendipity (the luck of the draw), your case was placed on my trial docket to be heard by me today.
I also know that custody of your children remains an issue that you haven’t been able to resolve. So today, you must realize that I’m the parent of your children, because you’re asking me to make those parenting plan decisions for you. It’s not my choice…it’s yours. But I promise you this – I will pay close and careful attention to your testimony, and I will make the best possible decision I can make for your children based on what you tell me today from this witness stand. Then I will forget your names and go on to another case tomorrow.
If that sounds harsh, I apologize. I’m trying to be truthful with you both. But I also need to remind you, as I have to remind myself every day, that in the lives of our children, when this day comes to an end, this day will be gone from our collective lives forever. So if your children spent yesterday, or even this morning, upset and concerned over their parents’ divorce, and if your children went to sleep last night fearful of what their own lives would be like after tomorrow, then we have all robbed your children of these days…forever. Shame on us.
I’m saying this to you right now because before I begin your trial I want to recess your case and let you step outside my courtroom with your attorneys, and I want you to take a step back from this brink, and re-think whether you want to be your children’s parents today or would you prefer that they become, for lack of a better description…children of the family court.”
Often, and fortunately, these comments would serve as the catalyst to the parents’ settlement, which included their agreement as to how they chose to co-parent their children in their post-divorce world.
If it sounds comforting to you that these parents ultimately realized the risks involved with a stranger making their own child’s parenting decisions, not so fast. That’s only part of this difficult equation – that part dealing with the parent-versus-parent relationship. What about the even thornier and ultimately more complex relationship of children-versus-parents?
While a child’s parents were locked in the throes of their own personal turmoil, what questions were these parents asking regarding how their child or children were coping with their own pain and anguish? Please carefully re-read the words at the very beginning of my comments, and you’ll find your answer.
Children, perhaps those even in their pre-teen years, whose parents are going through this marital anguish, become the unknowing (and perhaps even more disturbing, the knowing) victims of their parents’ dysfunction. A parent will often seek their child’s allegiance in a variety of cunning ways, depending on the age of the child, in order to gain some advantage in the “custody wars”. Children then quickly realize they have no input, no voice, no control in the decisions which will affect them, and they are forced into a no-win position: “choose” one parent over the other and the child feels instant repercussions from this decision, which, most prominently, amounts to the child’s overwhelming sense of guilt in conveying a not so subtle message that he or she loves one parent more than the other. The effects are devastating, long-lasting, and many times, permanent.
I could go on, but this seems to me to be a good stopping point for now. However, I need to leave you with one last thought to ponder.
The author, Pat Conroy, wrote these haunting lines in his novel, “The Prince of Tides” –
“If your parents disapprove of you, and are cunning with their disapproval, there will never come a new dawn when you can become convinced of your own value. There is no fixing a damaged childhood.”
“Children of the Family Court”
“Children are born loving their parents... After a time they begin to judge them…
Never do they forgive them.”
I wish I could remember who penned these poignant words. I did not. However, during my years as a South Carolina family court judge I would frequently quote them to hundreds of fathers and mothers who appeared before me.
I want to share some insight with you that you will find neither comforting nor validating. To be candid, I hope you find it unsettling.
After over thirty-five years of practicing family law (as an attorney, a judge and now as a family court mediator) I have witnessed firsthand the anger, bitterness, hurt and sadness experienced by wives and husbands, and fathers and mothers going through the anguish of a divorce and custody fight involving their children. From my unique vantage point as a judge I was able to view some of society’s more disturbing human traits.
Let me share this with you. If you are scheduled to appear in a family courtroom, this is what happens (the sequence of events is not necessarily essential):
• Your case may be scheduled for one day of trial. Actually, that means, at best, you will be inside the courtroom for six hours only (family courts typically run from 9:30 AM – 12:30 PM, and then from 2:00 PM to 5:00 PM).
• Your attorneys will call your witnesses to testify, and you will testify, and each side with be subject to questions from your spouse’s attorney. The ultimate objective of your spouse’s attorney is to paint you, as a spouse and a parent, in the worst light possible. The experience can be excruciating and humiliating, with strangers being made privy to your family’s most private moments.
• A guardian ad litem who is court-ordered to represent your children’s interest will most often testify; however, depending on the age of your children, they, too, may be called as a witness to testify.
• At the conclusion of your case, and perhaps several months after the trial has ended, the family court judge will enter his or her decision. And your lives and the lives of your children will then become governed by the order or decree of your family court judge, which most certainly will impact your family for many years to come.
After parents and their attorneys had entered and been seated inside my courtroom, I would make these remarks to them:
“For whatever reason you’re here in my courtroom today, please know that I’m truly sorry you’re sitting here; and I have to believe that you’d rather be anywhere on the face of this earth than sitting here listening to me. But you must understand that I didn’t invite you here…you brought your case to us, and by sheer serendipity (the luck of the draw), your case was placed on my trial docket to be heard by me today.
I also know that custody of your children remains an issue that you haven’t been able to resolve. So today, you must realize that I’m the parent of your children, because you’re asking me to make those parenting plan decisions for you. It’s not my choice…it’s yours. But I promise you this – I will pay close and careful attention to your testimony, and I will make the best possible decision I can make for your children based on what you tell me today from this witness stand. Then I will forget your names and go on to another case tomorrow.
If that sounds harsh, I apologize. I’m trying to be truthful with you both. But I also need to remind you, as I have to remind myself every day, that in the lives of our children, when this day comes to an end, this day will be gone from our collective lives forever. So if your children spent yesterday, or even this morning, upset and concerned over their parents’ divorce, and if your children went to sleep last night fearful of what their own lives would be like after tomorrow, then we have all robbed your children of these days…forever. Shame on us.
I’m saying this to you right now because before I begin your trial I want to recess your case and let you step outside my courtroom with your attorneys, and I want you to take a step back from this brink, and re-think whether you want to be your children’s parents today or would you prefer that they become, for lack of a better description…children of the family court.”
Often, and fortunately, these comments would serve as the catalyst to the parents’ settlement, which included their agreement as to how they chose to co-parent their children in their post-divorce world.
If it sounds comforting to you that these parents ultimately realized the risks involved with a stranger making their own child’s parenting decisions, not so fast. That’s only part of this difficult equation – that part dealing with the parent-versus-parent relationship. What about the even thornier and ultimately more complex relationship of children-versus-parents?
While a child’s parents were locked in the throes of their own personal turmoil, what questions were these parents asking regarding how their child or children were coping with their own pain and anguish? Please carefully re-read the words at the very beginning of my comments, and you’ll find your answer.
Children, perhaps those even in their pre-teen years, whose parents are going through this marital anguish, become the unknowing (and perhaps even more disturbing, the knowing) victims of their parents’ dysfunction. A parent will often seek their child’s allegiance in a variety of cunning ways, depending on the age of the child, in order to gain some advantage in the “custody wars”. Children then quickly realize they have no input, no voice, no control in the decisions which will affect them, and they are forced into a no-win position: “choose” one parent over the other and the child feels instant repercussions from this decision, which, most prominently, amounts to the child’s overwhelming sense of guilt in conveying a not so subtle message that he or she loves one parent more than the other. The effects are devastating, long-lasting, and many times, permanent.
I could go on, but this seems to me to be a good stopping point for now. However, I need to leave you with one last thought to ponder.
The author, Pat Conroy, wrote these haunting lines in his novel, “The Prince of Tides” –
“If your parents disapprove of you, and are cunning with their disapproval, there will never come a new dawn when you can become convinced of your own value. There is no fixing a damaged childhood.”
Monday, May 18, 2009
Grounds for Divorce in South Carolina
There are 5 grounds for divorce in South Carolina. Those are
1) Adultery
2) One Year Separation
3) Abandonment
4) Physical Cruelty
5) Habitutal Drunkeness
1) Adultery
2) One Year Separation
3) Abandonment
4) Physical Cruelty
5) Habitutal Drunkeness
Friday, May 8, 2009
Protection from Foreclosure in South Carolina-Do you qualify?
The Supreme Court of South Carolina has suspended foreclosures on mortgages which may be eligible for modifications. See entire order below.
Ex Parte Federal National Mortgage Association, Petitioner.
In Re Federal National Mortgage Association (“Fannie Mae”) Loans Subject to Foreclosure Sale.
ORDER
Petitioner asks this Court to issue an ex parte temporary injunction1 or restraining order “enjoining all judicial officials in South Carolina conducting foreclosure sales on May 4, 2009 (or the next judicial sales dated) from dismissing all eligible one- to four-unit owner occupied properties securing Fannie Mae portfolio mortgage loans and MBS pool mortgage loans guaranteed by Fannie Mae for which there is a foreclosure judgment.” It asserts that this injunction is necessary to avoid undue costs if these foreclosure actions are dismissed rather than stayed or postponed based on the fact that the underlying loans may be subject to modification under the Homeowner Affordability and Stability Plan, the Home Affordable Modification Program (HMP), and the United States Treasury Supplemental Directive 09-01. It also states that, “absent injunction, mortgagors eligible for relief under the HMP program could be denied their right to participate because their property was sold at the foreclosure sale. This qualifies as irreparable injury for which the court should provide redress in the form of a temporary injunction.”
While I am very troubled by the ex parte nature of this petition2, I grant a temporary restraining order (TRO) preventing the foreclosure sale of any property arising out of a loan owned or guaranteed by petitioner or Freddie Mac or held by a servicer who has signed an agreement to participate in the HMP3. If a sale has already taken place today prior to issuance of this order, this TRO shall stay the master-in-equity, circuit court judge or special referee from taking any further action to complete the sale including the issuance of a deed to the purchaser.
By May 15, 2009, the plaintiff in every mortgage foreclosure action stayed by this order shall serve on all other parties to the action (including petitioner and/or Freddie Mac as appropriate) an affidavit setting forth its belief whether the loan is subject to modification under the HMP. If the affidavit indicates that the loan is subject to modification under the HMP, the foreclosure shall be stayed pending a determination if the loan will be modified. If the loan is modified, the foreclosure action shall be dismissed. If the loan is not modified, the foreclosure may proceed.
If the affidavit indicates that the loan is not subject to modification under the HMP, the TRO will be lifted unless petitioner, Freddie Mac or another party serves and files a counter affidavit asserting that the loan is subject to modification under the HMP by May 22, 2009. If a counter affidavit is timely filed, the TRO will remain in effect until the master-in-equity or circuit court judge determines if the HMP is applicable to the loan. The lower court shall insure that these determinations are made in an expeditious manner.
If the loan is determined not to be subject to modification under the HMP, the TRO shall be lifted and the foreclosure may continue. If the lower court determines that the loan is subject to modification and the loan is modified, the foreclosure action shall be dismissed. If the lower court determines that the loan is subject to modification but the loan is not subsequently modified, the TRO shall be lifted and the foreclosure may continue.
IT IS SO ORDERED.
s/Jean Hoefer Toal
JEAN H. TOAL
CHIEF JUSTICE
Columbia, South Carolina
May 4, 2009
4:50 p.m.
Ex Parte Federal National Mortgage Association, Petitioner.
In Re Federal National Mortgage Association (“Fannie Mae”) Loans Subject to Foreclosure Sale.
ORDER
Petitioner asks this Court to issue an ex parte temporary injunction1 or restraining order “enjoining all judicial officials in South Carolina conducting foreclosure sales on May 4, 2009 (or the next judicial sales dated) from dismissing all eligible one- to four-unit owner occupied properties securing Fannie Mae portfolio mortgage loans and MBS pool mortgage loans guaranteed by Fannie Mae for which there is a foreclosure judgment.” It asserts that this injunction is necessary to avoid undue costs if these foreclosure actions are dismissed rather than stayed or postponed based on the fact that the underlying loans may be subject to modification under the Homeowner Affordability and Stability Plan, the Home Affordable Modification Program (HMP), and the United States Treasury Supplemental Directive 09-01. It also states that, “absent injunction, mortgagors eligible for relief under the HMP program could be denied their right to participate because their property was sold at the foreclosure sale. This qualifies as irreparable injury for which the court should provide redress in the form of a temporary injunction.”
While I am very troubled by the ex parte nature of this petition2, I grant a temporary restraining order (TRO) preventing the foreclosure sale of any property arising out of a loan owned or guaranteed by petitioner or Freddie Mac or held by a servicer who has signed an agreement to participate in the HMP3. If a sale has already taken place today prior to issuance of this order, this TRO shall stay the master-in-equity, circuit court judge or special referee from taking any further action to complete the sale including the issuance of a deed to the purchaser.
By May 15, 2009, the plaintiff in every mortgage foreclosure action stayed by this order shall serve on all other parties to the action (including petitioner and/or Freddie Mac as appropriate) an affidavit setting forth its belief whether the loan is subject to modification under the HMP. If the affidavit indicates that the loan is subject to modification under the HMP, the foreclosure shall be stayed pending a determination if the loan will be modified. If the loan is modified, the foreclosure action shall be dismissed. If the loan is not modified, the foreclosure may proceed.
If the affidavit indicates that the loan is not subject to modification under the HMP, the TRO will be lifted unless petitioner, Freddie Mac or another party serves and files a counter affidavit asserting that the loan is subject to modification under the HMP by May 22, 2009. If a counter affidavit is timely filed, the TRO will remain in effect until the master-in-equity or circuit court judge determines if the HMP is applicable to the loan. The lower court shall insure that these determinations are made in an expeditious manner.
If the loan is determined not to be subject to modification under the HMP, the TRO shall be lifted and the foreclosure may continue. If the lower court determines that the loan is subject to modification and the loan is modified, the foreclosure action shall be dismissed. If the lower court determines that the loan is subject to modification but the loan is not subsequently modified, the TRO shall be lifted and the foreclosure may continue.
IT IS SO ORDERED.
s/Jean Hoefer Toal
JEAN H. TOAL
CHIEF JUSTICE
Columbia, South Carolina
May 4, 2009
4:50 p.m.
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