South Carolina Divorce Legal Questions

In most cases, yes — if you haven’t signed an agreement or the attorney hasn’t performed any work on your case, you can usually request a full refund of the retainer. A retainer is meant to cover future legal services, so if the lawyer hasn’t started billing time or expenses, they generally must return any unearned portion. Even without a signed contract, it’s best to put your cancellation in writing (email is fine) and politely ask for confirmation that the retainer will be refunded. If the lawyer already opened a file or did preliminary work, they may deduct a small administrative fee, but they should provide an itemized explanation if any money is withheld. If you have trouble getting your refund, you can contact the South Carolina Bar’s Fee Dispute Program, which helps clients resolve issues like this at no cost. It’s understandable to want an attorney closer to you—just make sure you get everything in writing with the next lawyer so expectations about retainers, billing, and refunds are clear from the start.... Read Answer

Hello. It sounds like the QDRO says if she dies, the payment to her ceases and is not revert back to being paid to you instead.  It depends on your pension whether they allow anything other than that.  Some pensions allow a choice and it should state it reverts back to you if she dies - but some do not have that option.  Ask your pension plan if they offer that option - for the payments to revert back to you if she dies before you.  If so, you can have an Amended QDRO drafted and ask the court to enter it and then you can send it to the plan (a certified copy) so you get the payments if she dies.  There is no change to her payments and there is no harm in that change so I would think the court would approve it.... Read Answer

Retirement divisions usually require entry and submission to the plan a specialized court order telling the plan how to divide the benefit. It depends on the plan what type of order you need. I can take a look at it to let you know. I can draft the order but because I am licensed in IL, you would need to enter it in court and send it to the plan or retain a SC attorney to do so. Cynthia Petersen - info@petersenlawandqdros.com... Read Answer

File your action immediately, begin resolving all of the financial issues related to the marriage, resolve all issues of custody or visitation, and then you will be positioned as quickly as possible for the court in South Carolina to grant the divorce.  Waiting simply allows problems to grow larger, assets to be lost or wasted, debts to be incurred that you could be liable to pay, and evidence will be lost. Fortune favors the bold.  ... Read Answer

File a contempt action, sometimes called a Rule to Show Cause.  Unless very valid and compelling arguments are presented that the failure to pay is not intentional he will likely be held in contempt of court.  The court could reimburse you for your attorney fees, place him in jail, and require him to perform public service.  Normally, paying nothing is clear contempt.  If an individual can not pay the full amount but attempts to perform courts will be somewhat temporarily lenient if reasons are valid and not the result of the payor's poor conduct.... Read Answer

If you are unable to locate your husband for service of the summons and complaint, you will need to seek an order of publication from the administrative judge in the county your case is filed. You will have to present a proposed order, and provide evidence that you made a diligent attempt to serve him the pleadings.  This is not the type of procedural matter that is easily handled without an attorney.  It is possible that you could retain the services of an attorney for the limited purpose of assisting with this task which would be much more cost-effective then hiring an attorney for the entire process. Some attorneys may provide you the information necessary for the cost of a consultation fee. For example, my office would charge $250 and provide you the necessary documents and direction during that meeting.  This would not include any court appearances or further document drafting.... Read Answer

If your divorce case is pending in South Carolina, The court has jurisdiction to equitably divide all marital assets of the parties, regardless of their current location and regardless of the jurisdiction in which they were accumulated.  The fact these assets were accumulated prior to the marriage would most likely result in them being considered NON -MARITAL, and therefore outside of the reach of your spouse.  ... Read Answer

You have 30 days from the date of service to file your response to the Summons and Complaint. You should file a response even if you believe there are not many issues to negotiate so that you preserve your rights, and this gives you the opportunity to file any counterclaims that may apply in your case. Mediation is required for any family court proceeding before going to a final hearing, so you will have a mediation on your case unless you can negotiate an agreement to divide up the marital estate prior to mediation.... Read Answer

Typically not without a subpoena or through discovery process in a divorce proceeding, as those companies usually do not give out information voluntarily to non-accountholders. If you have other concrete evidence that gives you reason to suspect a mistress, you may be able to file for an at-fault divorce based on adultery.... Read Answer

Marriages continue until a Divorce Decree is entered, or the marriage is annulled.  A person may seek a divorce in South Carolina from a non-resident.  The residency requirement is for the Plaintiff.   § 20-3-30, of the S.C. Code of Laws provides: In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action. The terms 'residents' or 'resided' as used in this section as it applies to a plaintiff or defendant stationed in this State on active duty military service means a continuous presence in this State for the period required regardless of intent to permanently remain in South Carolina.    Christopher P. Biering bieringlaw.com... Read Answer

A detailed review of the QDRO, the divorce decree, the pension plan, and any elections made by employee prior to entry of the QDRO would be required to provide any definitive information on this topic.  Pension plans are contracts between the employee and employer.  Consider the following... The QDRO cannot require more from the employer than is provided for in the contract between employee and employer.  In addition  The QDRO re-directs, re-distributes, or apportions payment to the non-employee spouse while placing the non-employee spouse in the shoes of the employee from a tax standpoint. The QDRO may not have been "implemented" correctly by plan. The employee may have made elections for survivor benefits prior to the entry of the QDRO that could not be amended. Errors in drafting, implementation, or distribution could exist. Again, a detailed review of the QDRO, divorce decree, the pension plan, and any elections made by employee prior to entry of the QDRO would be required to provide any definitive information on this topic.   Christopher P. Biering bieringlaw.com... Read Answer

     Family Court cases in South Carolina are typically initiated with the filing of a Summons, Complaint, and Notice of Motion and Motion for Temporary Relief.  These filings present one certain deadline, and possibly a court date.  The certain deadline relates to the Summons.  A summons instructs the recepient to answer the allegations of the complaint within 30 days of service.  See generally, Family Court Rule regarding answering complaint & Civil Court Rule that applies, in part, to Family Court Actions.      The possible court date that may be included with the initial filing is a Temporary Hearing notice.  See generally, Family Court Rule regarding Temporary Hearings, Family Court Rule regarding Financial Declarations, and South Carolina Supreme Court Order with additional rules for Temporary Hearings.      The assistance of a skilled family court attorney should be sought.  If a party is unable to obtain an attorney before the Temporary Hearing, the Judge may consider continuing the hearing for a short period to allow a party to retain counsel.  A continuance should not be expected. Christopher P. Biering BieringLawFirm.com... Read Answer

In S.C. this requires one year of living separate and apart.  Otherwise you need fault grounds of physical cruelty, habitual drunkeness or drugs, adultry, or abandonment.  This answer neither constuitutes legal advice nor creates an attorney/client relationship. Dr. Michael G. Sribnick, Esq. attorney in S.C. Michael G. Sribnick, M.D., J.D., LLC... Read Answer

Family court will only "divide" property determined to be marital.  If you owned the vehicles prior to the marriage and did not take any steps to transmute the property into a marital asset, the care will not be subject to apportionment by the court.  The bank accounts would be addressed in a different manner.  Assets accumulated during the marriage are most likely to be consider as marital.  ... Read Answer

South Carolina is an "equitable distribution" state.  Generally, parties' marital assets are going to be divided equally.  Date of acquisition, and source of funds for purchase are two of the numerous factors considered when determining if an asset is "marital."  The issue of being named on title of an asset has a significantly minimized role in determing if an asset is "marital."   When parties are contemplating separation or divorce, the best practice would be to avoid transfering assets, or making major financial decisions or changes without legal advice based on a full review of the situation.... Read Answer

After a person has resided in South Carolina for one year, South Carolina has jurisdiction to grant a divorce.  Because of the "split" of the children, jurisdiction for purposes of custody would be addressed in a potentially a different manner.  The last 6 months residence of a child can be a controlling issue for custody proceedings.  Many situations provide opportunity for filing in multiple states.  When a litigant could file in multiple states the case should be reviewed for possible benefits in either state.  For example, some states have more favorable laws for alimony, defense of alimony, custody, or division of assets.  ... Read Answer

§ 20-3-130, SC Code provides 12 factors, and an open door for a Judge to consider other matters while determing if and the amount of alimony should be awarded. These factors are: (1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties; (2) the physical and emotional condition of each spouse; (3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse's income potential; (4) the employment history and earning potential of each spouse; (5) the standard of living established during the marriage; (6) the current and reasonably anticipated earnings of both spouses; (7) the current and reasonably anticipated expenses and needs of both spouses; (8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action; (9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature; (10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties; (11) the tax consequences to each party as a result of the particular form of support awarded; (12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party. Navigating the evidentiary hurdles to present necessary evidence for aclaim for temporary or permanent alimony would be difficult without an attorney.  Also, you must be prepared to thwart defenses raised against your claim.... Read Answer

Family Court judges may order a party to leave a home if they are engaged in drunkenness,  physical cruelty,  or adultery.    Your  fact pattern potentially includes the first two basis for an order requiring removal.    Litigation between parties in the same home can have the potential for significant problems with safety.  You should always be concerned primarily with your safety in fact patterns described.  When safety issues exist parties should consider seeking immediate assistance, legal counsel, law enforcement, Victim's advocates office, etc.   Please commit to leaving and seeking safe refuge if things appear to be violent.   ... Read Answer