How Bankruptcy Could Affect your South Carolina Divorce

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Bankruptcy can have huge implications for your Divorce in South Carolina both procedurally and practically.  For starters, bankruptcy proceedings place an automatic stay on certain areas of Family Court litigation involving marital assets, debts, and the equitable distribution thereof.  However, an automatic stay created by a bankruptcy proceeding may be resolved so long as you have a consent order from the bankruptcy court which effectively lifts the stay in order to resolve the marital issues.  Such consent orders normally require additional relief from the stay in order to enforce an obligation created in Family Court against the property of the estate.

It is important to note that there are certain actions within Family Court which are not stayed by bankruptcy proceedings.  11 U.S.C. 362(b)(2) delineates those actions which are exempt from the automatic stay created by bankruptcy as follows: 1) actions for the establishment of paternity 2) actions for the establishment or modification of an order for domestic support obligations 3) actions concerning child custody or visitation 4) actions for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate 5) actions regarding domestic violence 6) actions involving the collection of a domestic support obligation from property that is not property of the estate.

As you may have noticed, several of the exemptions mentioned above involve “domestic support obligations.”  As domestic support obligations (hereinafter “DSO”) are not dischargeable in bankruptcy proceedings, it is exceedingly important to understand what they are.  11 U.S.C. 101(14) defines DSOs as 1) a debt which has accrued or will accrue in the past, present or future, which 2) is owed to a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian or responsible relative 3) for the purpose of alimony, maintenance, or “support” of such persons and 4) which has been established pursuant to a separation agreement, divorce decree or property settlement agreement. South Carolina case law has defined “support,” for the purposes of the above, to mean any order which requires support for necessary shelter, food, clothing, care, medical attention, educational expenses and other proper and reasonable expenses.  All domestic obligations are non-dischargeable in Chapter 7 and Chapter 11 bankruptcy proceedings, but in order to survive Chapter 13 bankruptcy the obligation MUST be a DSO.

Knowing that certain obligations created in divorce proceeding may be dischargeable in bankruptcy, one must consider the implications of the language used while crafting Agreements in order to avoid (or ensure) bankruptcy discharge.  A good Agreement will include labels for certain obligation-creating provisions such as “alimony,” “property division,” “support,” “equitable division,” etc.  The Agreement should also include descriptive words with regard to labels placed on the obligations such as “required,” “needs,” “modifiable/non-modifiable,” “inability to pay,” “standard of living,” “waiver,” etc.  Finally, one may simply track the statutory language relevant to DSOs in order to ensure an obligation is or is not discharged, or even go so far as to spell out in detail the reasoning behind the provision behind the obligation (i.e.  Wife shall pay “X” obligation to Wife because Husband is unemployed through no fault of his own and cannot afford to repay “Y”  housing loan without the financial assistance from Wife who has always been the primary wage earner.”

In the event, you find yourself going through a divorce in South Carolina, please be aware of how bankruptcy proceedings may affect your case both during and after the litigation is over.  Further, if your attorney has not already done so, make sure he or she discusses how the language in your Agreement protects you with regard to bankruptcy discharge moving forward.

 

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Social Security Benefits after your South Carolina Divorce:

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When you become divorced in South Carolina, it is important to understand how your change in marital status can affect various rights you or your spouse may have. One potential right that may be implicated is your right to claim Social Security benefits, and it is important to understand your options so that you may make informed decisions moving forward.

For example, if your marriage lasted longer than ten (10) years, you may receive benefits on your ex-spouses’ record if you remain unmarried (unless your new spouse died), are age 62 or older, your ex-spouse is entitled to Social Security retirement or disability benefits AND the benefit you are entitled to receive based on your own work is less than you would received based on your ex-spouses’ work. Additionally, so long as you’ve been divorced for two (2) years, you can receive benefits on your ex-spouses’ record even if they have not applied for benefits so long as they are eligible. If you meet these requirements you may choose to claim the “divorced spousal benefit” which would be equal to one-half of your ex-spouses’ full retirement or disability benefit so long as you wait until your full retirement age.

It is worth noting that you also have certain options when choosing whether or not to exercise your ability to elect the ‘divorced spousal benefit.” For example, if you are eligible for your own retirement benefits, Social Security will pay that amount first, but if the benefit on your ex-spouses’ record is higher, you will get a combination of the benefits that equals the higher amount. Also, if both you and your ex-spouse are eligible for benefits and have reached full retirement age, it may behoove you to elect to receive only your ex-spouses’ benefits now while deferring your own benefits to a later date.

No matter what decisions you make for yourself, and no matter the issue, it is crucial to understand your options so that the decision you do make is a smart one. If you find yourself going through a divorce in South Carolina, be mindful of the options available to you with regard to Social Security benefits.

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New Law Makes it Easier for Grandparents to get Visitation in South Carolina

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GRANDPARENT-VISITATION

The South Carolina statute regarding grandparent visitation was amended via bill <H4348>on June 9, 2014. The amended statute makes it a bit easier for grandparents to get visitation in South Carolina, as grandparents are no longer required to show that they have a relationship with their grandchild akin to a parent-child relationship prior to receiving court-ordered visitation. S.C. Code §63-3-530 (A)(33) (the grandparent statute) now provides that the Family Court has jurisdiction to order visitation for the grandparent of a minor child:
…where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
1)     the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
2)    awarding grandparent visitation would not interfere with the parent-child relationship; and
a)    the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
b)    the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.

For some additional insight as to the new statute’s implications for grandparent visitation in South Carolina, please visit my friend and colleague’s website to view his blog post, <”South Carolina finally does grandparent visitation rights right”>.
This statute only applies to “grandparents,” which is defined within the statute itself as a “natural or adoptive parent of a natural or adoptive parent of a minor child.” However, there are still ways for a non-grandparent third-party to get custody of a child if certain elements are proven and burdens met. For example, as described in Moore v. Moore, 200 S.C. 75, 386 S.E.2d 456 (1989), custody may be awarded to non-parents when the parents are deemed unfit or when the parents relinquish their rights.  In determining a contest between a parent and a non-parent, the family court will consider the following four (4) factors:
1)      Whether the parent is fit and able to care for the child and provide a good home;
2)      The amount of contact (as evidence by visitation, financial support or both) which the parent had while the child was in the care of a third-party;
3)      The circumstances under which temporary relinquishment occurred; and
4)      The degree of attachment between the child and the temporary custodian
Nonetheless, it is important to understand that a rebuttable presumption favors the parent over a third-party.
South Carolina also recognizes the doctrines of “Psychological Parents” and “De Facto Custodians.”
A psychological parent is defined in Middleton v. Johnson 369 S.C. 585, 633 S.E.2d 162 (Ct.App.2006) as someone who, on a continuing day-to-day basis, through interaction, companionship, interplay and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.  For a third-party to show they are a psychological parent they must meet the following four (4) requirements:
1)      The biological or adoptive parent(s) consented to and fostered the formation and establishment of a parent-like relationship with the child;
2)      The petitioner and the child lived together in the same household;
3)      The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
4)      The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

De Facto Custodian:
S.C. Code Ann. § 63-15-60, also allows for grandparents or other third-parties to qualify as “de facto custodians” when contesting custody of a biological parent.  In order for a third-party to show that they are a de facto custodian, they must show by clear and convincing evidence to have been the primary caregiver for and financial supporter of a child who:
1)    has resided with the person for a period of six months or more if the child is under three years of age; or
2)    has resided with the person for a period of one year or more if the child is three years of age or older.

If you are a grandparent or a third-party with questions about your rights to visitation or custody in the State of South Carolina, I would be more than happy to speak with you about your options.

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Adultery as a Complete Bar to Alimony in South Carolina

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In South Carolina, we have four “fault” grounds  and one “no-fault” ground for divorce as defined by S.C. Code Ann. §20-3-10 (1976) as follows:

1)     Adultery;

2)     Desertion for a period of one year;

3)     Physical Cruelty;

4)     Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness causes by the use of any narcotic drug; or

5)     On the application of either party if and when the husband and wife have lived separate and apart without cohabitation for a period of one year.

An individual may choose to proceed with a fault ground divorce for a number of reasons.  One consideration is the time it takes them get the divorce.  In the case of adultery, physical cruelty and habitual drunkenness, S.C. Code Ann. § 20-3-80 (1976) allows an individual to bring their divorce action as soon as the fault ground arises.  Furthermore, one may be granted a divorce within three months after filing such an action.  Practically speaking, however, the divorce does not always get granted that quickly as all other issues arising out of the marriage other than the divorce itself (i.e. custody, visitation, property division, support, etc.) may not be agreed upon or have been properly litigated within a three month time frame.

Other reasons that family court litigants choose to file for a fault ground divorce include, but are not limited to, simply creating a record that their spouse’s actions led to the breakdown of the marriage, to increase the likelihood of being awarded attorney’s fees on a temporary and/or final basis, or in a general attempt to appear favorable throughout the litigation process.

However, one of the main reasons an individual and their attorney may choose to go forward with a fault ground in their divorce action, arises in situations where the spouse alleging fault could be on the hook for alimony.  Alimony is an award of monetary support from one spouse to another as a substitute for the support which is normally incident to the marital relationship. See. Lide v. Lide, 277 S.C. 155, 283 S.E.2d 832 (1981).  The primary goal in awarding alimony is to put spouse receiving alimony in a position to enjoy a similar standard of living he or she enjoyed during the marriage.

S.C. Code Ann. §20-3-130(C) (1976) lays out the factors a family court judge will consider in making an award of alimony as follows:

In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

(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 non-marital 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;  and

(13) such other factors the court considers relevant.

As you can see by the factors delineated above, marital misconduct or fault is but one of the factors which will be considered.  However, S.C. Code Ann. §20-3-130(A) (1976) specifically states in pertinent part that “No alimony may be awarded a spouse who commits adultery before the earliest of these two events:  (1) the formal signing of a written property or marital settlement agreement or (2) 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.” Whereas other fault grounds could still be considered as to whether or not a spouse who may otherwise be entitled to alimony or spousal support will in fact get the same; adultery is a complete bar to such support according to our statutes.

Although there is sound rationale for awarding alimony and/or spousal support to the payee spouse in many cases, you may be shocked (read ‘not shocked at all’) to learn that you will be hard pressed to find a payor spouse who is happy to pay it.  I can recall a few ultra-amicable cases where the payor spouse voluntarily paid spousal support or alimony because they “wanted to do the right thing” or “wanted to give their ex a chance to get back on their feet.”  However, you are much more likely to find an individual who shares the same sentiment as American Journalist/Humorist, Arthur “Bugs” Baer, who famously quipped that ”Alimony is like buying oats for a dead horse.”  Now, that may seem a bit harsh; but tell that to an individual who is looking at the prospect of paying several thousand dollars per month (or any amount for that matter) in permanent period alimony to a spouse they know has engaged in adultery.  THAT is a reason to proceed on the fault ground of adultery.

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Spouses and Their Attorneys are Watching Social Media, and Social Media is Watching You

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By: J. Wyatt Wimberly, Esquire

As social media use has become more and more prevalent over the past decade, it has therefore become a normal part of everyday communication, social interaction and life in general.  Social media is also increasingly cited, or otherwise implicated, in divorce proceedings.  I have had countless clients come to me with evidence from Facebook or Twitter implicating their spouse for various infringements.  In the context of divorce, social media evidence is most often used to corroborate the inclination to commit adultery by way of photographic evidence or inappropriate comments made to someone other than a spouse.  However, I have also used Facebook and Twitter to illustrate disparaging remarks made about the other spouse or use of alcohol or drugs.  It is important to be aware of what one chooses to put out there on the web, because people like me ARE looking and we WILL find it.

There have been a number of studies over the past several years that show how big of a role social media, especially Facebook, can play in divorce.  In 2011, the American Academy of Matrimonial Lawyers stated that 33% of all divorce filings contain some mention of Facebook.  More recently a multi-university study published last year in the Journal of Cyberpsychology, Behavior and Social Networking, found a correlation between the frequency of Facebook use of people in romantic relationships and the frequency of conflict with their romantic partners.  Indications are that the more one uses Facebook, the more likely negative relationship outcomes such as emotional and/or physical cheating, jealousy over past partners, break-up and divorce, result.

Perhaps most fascinating is the idea that certain algorithms can be used to construct diagrams showing the dispersions of two individual’s mutual friends on Facebook which can, in turn, be used to “predict” the likelihood that a couple may be close to breaking up.  A study conducted by Jon Kleinberg and Lars Backstrom (found here) ,  used a large sample size of Facebook users to determine whether or not the diagrams of mutual-friend dispersions of a Facebook user could indicate if they were currently in a relationship.  The study showed that couples involved in a romantic relationship usually had a friend network that resulted in a “high-dispersion” diagram of mutual friends; meaning they were not well-connected to one another.  However, when this predictor was wrong (i.e. the Facebook user WAS in a relationship but DID NOT have a “high-dispersion” network diagram), the chances that the couple would end their relationship in the next two (2) months increased by 50%.  The idea that such an algorithm could predict, to any extent, trouble in a relationship should be very telling as to how relationship troubles play out over social media.

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Valentine’s Day

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By: J. Wyatt Wimberly, Esquire

As a married man, I often quip that “every day is a lesson in what not to do,” when asked about what it’s like to practice divorce law. This is true to some extent, but I have also gained a great deal of insight about what TO do. One of the most basic human inclinations is the desire to feel importance. As Valentine’s Day is upon us, this is a reminder to remind your loved ones of their importance; not just today, but every day. This sentiment resounds across all social relationships, but with emphasis on familial relationships, remember to reassure your child(ren), Husband, Wife, Mother/Father of your child(ren) of their importance with regard the role they play in your life and in the lives of others you care about. At the end of the day, I would much rather see you and your loved ones thrive in healthy co-existence than to ever have to walk through my door.

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