Greenville Family Law Questions and Answers
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Our Greenville family law firm knows that you may have many questions and concerns regarding your family-related legal matter. Legal issues like divorce and child support are personal and involve delicate relationships and emotions that can be exhausting. Hayes Law Firm Upstate Attorneys, LLC is here to answer all your questions and more so we can relieve you of your fears.
The legal system is complicated and stressful, but we can interpret the jargon for you and simplify processes so you can understand what steps we’re taking to meet your goals and improve your family’s future. We offer answers to our frequently asked questions – if you have more, don’t hesitate to schedule a consultation with our family attorneys, who can meet with you after hours and on weekends for your convenience.
If you have any questions, please do not hesitate to
contact us when preparing the marital history so that we may review it prior to your
appointment that we make to prepare for Court.
The other important document that you will need to prepare for a hearing is a Financial Declaration. If you do not already have one, you can obtain one on our website and/or by contacting the office.
- How Does a Court Split Property in a Divorce?
Each state has its own laws when it comes to splitting up assets and property in a divorce. South Carolina isn’t a community property state, which means that spouses have a right to all marital property. Marital property is the property acquired by the couple during marriage and owned at the time of the divorce. The court looks at various factors to determine the distribution of marital property, including the length of the marriage, the ages of the parties at the time of the marriage, the value of the property, the income and potential earnings of each spouse, whether a spouse was awarded alimony, and more.
- What is the Difference Between Separation & Divorce?
Couples who legally separate are no longer living together but are still legally married, whereas in a divorce, couples have terminated their marriage. There are many reasons why couples prefer a separation over a divorce, including maintaining benefits like staying on their spouse’s health insurance plan, retirement benefits, tax benefits, and more. Divorces may be a preferable option if the spouses intend to marry again.
- How Does the Court Determine Child Custody?
If both parties cannot come to an agreement involving child custody, the court will take numerous factors into consideration of the child’s best interests. Courts typically prefer joint custody so both parents can have access to their children. Despite what many people believe, courts do not favor the mother – both parents are given equal consideration when assessing factors like which school the children go to, how much each parent makes, who received the family home in the divorce, and which parent the children prefer to live with.
- What If I Want to Resume My Maiden Name?
If your maiden or former married name is being resumed, you can expect the Court or your attorney to ask you questions similar to the following: Do you desire to resume the use of your maiden or former married name? Are you doing so to avoid creditors? Have you filed bankruptcy in your current name? Are you doing so to avoid criminal prosecution? Are you aware of any warrants out in your current name? Have you had your driver’s license suspended in your current name? Are you listed with the state for abusing or neglecting children? Are you under an order to pay support (alimony/child support) in your current name? Are you on any terrorist watchlist?
- Can I Change my Child’s Name?
If the biological parents are in agreement to change the name of a child, it is considered uncontested, and the name change will typically be granted. However, the Court still requires the appointment of a Guardian ad Litem to represent the child’s interests, which results in additional cost.
If the parents are not in agreement to change a child’s name, for example, an unwed mother gives the child her surname and father is seeking to have the name changed to his surname, then the matter is contested.
When seeking to change a child's surname, South Carolina law requires consideration of the following nine factors to determine if changing a child's name is in the child's best interest:
- the length of time the child has used the present surname;
- the effect of the proposed change on the preservation and development of the child's relationship with each parent;
- the identification of the child as part of a family unit;
- the wishes of each parent;
- the reason the petitioning parent states for the proposed change;
- the motive of the petitioning parent and the possibility the child's use of a different name will cause insecurity or a lack of identity;
- the difficulty, harassment, or embarrassment the child may experience if the child bears a surname different from that of the custodial parent;
- if the child is of age and maturity to express a meaningful preference, the child's preference; and
- the degree of community respect associated with the present and proposed surnames.
The primary case in South Carolina on this issue is Mazzone v. Miles, 341 S.C. 203, 532 S.E.2d 890 (Ct.App. 2000). As indicated above, in cases in which a child’s name is being changed, the Court requires the appointment of a Guardian ad Litem, which is a neutral third party, usually an attorney, to represent the child’s interests.
This person will typically conduct an independent investigation and report back to the Court on the issues at hand. The Court will allocate the fee of the Guardian between the parties if contested
It is essentially a comprehensive background of your marriage, as well as both of the spouses’ (or parties’, if not married) backgrounds.
- Why is my attorney seeking this information?
This is the easiest, least time-consuming way of informing your attorney of important facts in your case. Your case is very fact driven. Questions of custody, alimony and equitable division, as well as other financial matters, revolve around details of your marriage and background.
- What is it used for?
At a temporary hearing, which is usually a short 15-minute hearing (perhaps longer, depending on the issues before the Court and/or other factors, such as the COVID-era if your hearing is being done by video), the Court bases its decisions upon Affidavits (see my other blog ‘How to Write an Affidavit’).
- What kinds of issues are in your case?
You should also look over any “Motions” (may say “for Temporary Relief” or “for Pendente Lite Relief”). These “motions” specifically set forth what the Court is being asked to rule on at the hearing. Your “marital history” should definitely address these issues.
- Does your case involve a fault-based divorce, such as adultery, physical abuse, habitual drunkenness, or drug use?
If so, provide details, including what proof, if any, you may have. If there are witnesses, indicate who these person(s) are and if they are willing to assist with proving the issue at hand. Provide any additional documentation/photos, affidavits from third parties, or whatever form of evidence you may have to prove your grounds.
- Does your case involve alimony?
If so, you should be aware of the factors that the Court uses to address alimony and address each of them as fully as you can.
- Are there issues pertaining to division of property and debt?
There are also specific factors the Court uses to equitably divide assets and liabilities, some of which are the same or similar to the alimony issues. Contact the office for a list of these factors.
- Does your case involve custody?
If so, you should provide as much detail about the care of the children since their births.
- Why should you be awarded custody as opposed to the other parent? Is there anything in particular about the other parent that makes them “unfit” to have custody?
If so, provide details and indicate what proof, if any, you have to back up your statements if there is any proof. You can also ask us to provide you with the list of factors the Courts look at in a custody case. If you have any questions, please do not hesitate to contact us when preparing the marital history