As a Charleston family lawyer, I often get asked many of the same questions by my clients, especially early on in my representation. Here are some of those questions, with the answers, that may help you start to sort through your family law matter in its early stages:
1. “When can I date?”
Perhaps not surprisingly, this is the most commonly asked question, week after week, year after year. Simply put, having a physical relationship with someone other than your spouse, while you are still married, is adultery, with few exceptions. Proof of adultery in this state can impact your case in a variety of ways: if the adultery has contributed to the breakup of the marriage, those facts could support a claim for an enhanced share of the marital property (such as more than 50%), as well as having the guilty party being required to pay some or all of the attorney’s fees and expenses of the other spouse. It is, in fact, a wise question to ask. There are many dimensions to this discussion, and I have touched on only the biggest concerns. There are others. You should ask.
2) “Is an admission of adultery enough for me to get a divorce from my spouse in the Family Court?
The concept of actually proving that something took place, like adultery, is an aspect of the legal system that many have not considered before they visit an attorney. This is also an important issue. There are statutes in this state which dictate the facts which must be proven, to the satisfaction of the judge hearing the case, and they include the following: #1, inclination to commit adultery, and #2, opportunity to commit adultery. Unless both of these elements are proven, there will be no divorce granted on the grounds of adultery. An admission from the other spouse is insufficient to obtain a divorce, as the opportunity for misleading the court is high. Accordingly, in an adultery-based divorce, as in every kind of divorce in this state, proof is required.
Of course there are many aspects of adultery which I am not discussing here, and the impact of adultery is as individual as your case. Please remember, above all, that proof of adultery – among other things – will bar the guilty party from receiving alimony, as long as the adultery takes place prior to the divorce. For some people, that would be a massive hit; for others, a matter of indifference. Please discuss all the aspects of adultery with your Charleston family lawyer.
3) “Why is my case taking so long?”
Ah, here we have the most difficult question of all. It is just as tough to answer “How long will my case take?” Let me try: in all cases, scheduling of any hearings is a Court responsibility. Your Charleston family lawyer cannot dictate to the court when he or she wants or needs a hearing (although in a true emergency, the court will do its best to accommodate everyone with scheduling a hearing quickly).
In the absence of a true emergency, requests for hearings are processed by clerks who have access to the schedules of those judges who are assigned to any particular county. Those judges have many other demands on their time, other than divorces; for instance, Family Court judges handle every DSS abuse and neglect case, every DSS child support case – including interstate actions, and every juvenile charged with a crime (some exceptions apply). These kinds of cases are scheduled first, before any private cases. In fact, some of the busier counties (Charleston is in this group) must set aside 5 or more days of “judge time” each week to handle these cases. Since Charleston usually has 3 or 4 judges assigned weekly, you can see where the mandatory cases consume enough time for one judge all week. Accordingly, space for other hearings is assigned where it is available after the DSS and juvenile criminals are on the calendar.
Different times of the year are busier in the court system than others. Summers are usually crowded with child custody cases, with the priority being to finish those cases before the start of the school year. January and February are very busy months for the court, as so many people stay together “for the holidays” and give up the effort immediately thereafter. Oddly enough, Valentine’s Day is a very busy day as so many litigants try to get in the last jab.
Remember that the South Carolina Supreme Court mandates that all Family Court cases be concluded within one year of filing. Sorry to say, this is simply not possible with the volume of cases. If you need court time in your case, they will do their very best to provide it to you; however, the 1-year mandate is currently deemed satisfied if a request for court time is submitted before the 1-year deadline.
4) “Is it considered abandonment if I move out of the house?”
The short answer is “NO”. The long answer is that “sticks and stones may break my bones but words will never hurt me” does NOT apply in Family Court.
There is an old cause of action for divorce by abandonment, but it is never used anymore. The reason: currently, we have a one-year physical separation divorce available, but that was not always available. The prior statute required a 3-year separation for this sort of divorce. As the abandonment statute requires living apart for only 1 year (PLUS proof that the abandonment was unreasonable, etc.) it is no longer used. Why would anyone try for a divorce based on abandonment, with the added proof requirement, when a 1-year separation divorce is available?
That being said, you will often hear the word “abandonment” in the Family Court in the context of failing to provide child support, failing to pay bills, walking away from obligations, etc. Don’t be frightened by the use of the word. It is just a word, and its use does not bar you from any claim in your home or time with your children, etc.
Please discuss this issue, as others, in depth with your Charleston family lawyer.