Legal Updates - 3/7 - Mcgrath Law Firm

Talking to Your Kids about Your Divorce Decision

November 30, 2016 By admin

How do you tell your children that you are getting divorced? Children naturally want their parents and their family to stay together. This is one of the most painful conversations you will have. Usually your school-age kids have some idea that your marriage is unhappy, but the thought of your ending it will be a shock. In Parents magazine, Jeanette Moninger offers some tips for making it a little bit easier:

Present a united front, using the word “we” as much as you can, and avoid anger or bitterness by keeping your children’s wellbeing in mind. Include the whole family, and follow up with each child separately to try to answer their questions. Moninger suggests you be sure to make certain important points:

“You know that Mom and Dad have been having problems. We’ve tried to fix this, but things aren’t working out.”
“We will always be your mom and dad. But we aren’t going to be husband and wife any more. Your dad [or mom] and I are getting a divorce.”
“We both love you very much. Nothing will ever change that love or the fact that we will always be here for you.”
” You are great kids. This is our fault, not yours.”

Change and loss are the big issues and greatest fears for your children. You should be prepared for all kinds of reactions. It’s normal for children to think first of their own immediate concerns: “Am I still going to have my birthday party?” Be prepared for tears, yelling, and slamming doors. Be ready with reassuring hugs.

“Even the most amicable of separations creates an earth-shattering change for any child,” wrote Ziba Kashef on babycenter.com, “School-age kids know that divorce means their parents’ marriage has ended. They may have friends whose parents are divorced and may be familiar with the concept of a mom and a dad living apart. …They’ll be anxious about things like where they’ll live and go to school, and they’ll likely have a lot of detailed questions for you, so be prepared with some answers.”

School-age children can be amazingly resilient and able to adapt. What they need most from their divorcing parents is reassurance. Be sure they can maintain their accustomed routines. Be available to answer their questions honestly. Give them plenty of love and affection during this difficult time.

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

How to Manage the Aftermath of Your Divorce

November 28, 2016 By admin

The whole, difficult and painful divorce process is finally over. The papers are signed, and you are legally a divorced individual. Now what?

The consequences of divorce seem challenging, even overwhelming at first. Most newly divorced people will have to cope with an intense emotional aftermath, It’s normal to feel grief, anger, depression, fear for the future, or feelings of failure: “I was a good spouse. It didn’t have to end this way.” Your outer environment changes, too. Your former spouse isn’t there anymore. You may have moved to a new house or apartment. Your friendships change, and some fall away.

During a time of such major upheaval, you may feel a need to reclaim and reestablish your own identity. It’s a good idea to find some support: talk to friends, join a divorce support group, see a therapist. Read books about “recovery” from divorce. Above all, try to remind yourself that things will get better. In an encouraging article on the “upsides” of the aftermath of divorce, family relationship expert Nancy Fagan wrote, “There is a light at the end of the tunnel — if you just know where to look.” She noted that

Women are remarkably resilient. They are less likely to experience high levels of emotional stress, because they have social support systems that help them make the adjustment. Women initiate divorces nearly twice as often as men, and may feel more confident of the decision to divorce. Women are more likely to have some form of custody of their children, which reduces anxiety despite the potential burden of taking care of the children on almost full-time basis.

Men have a tougher time with separation at first; they are more likely to be blindsided when their spouses tell them they want to divorce. Men rebound quickly, however. They are eager to jump into matrimony again, and are likely to remarry sooner than women. Men do better when they have joint custody of their kids; they become better parents, and, perhaps paradoxically, become more involved in their children’s lives.

With time comes a “new normal.” Divorced, you develop new confidence and a new identity in the world. You may engage with a new career, develop new interests, new friendships and relationships. It takes time, but eventually, the aftermath of your divorce will bring new joy to your life.

Mental Health Issues and Divorce in South Carolina

November 23, 2016 By admin

In an age of no-fault divorce, you don’t need reasons (grounds) to choose to divorce. You’re not required to prove that the person you’re divorcing did something that caused the end of your marriage. A no-fault divorce is based simply on “irreconcilable differences.” Many states, including South Carolina, however, still allow fault-based divorces, where one or both spouses need to prove that the other is to blame for the failure of the marriage. Grounds for divorce can include adultery, extreme physical or mental cruelty, desertion, and substance abuse.

Mental health problems in either spouse or in both can place huge pressures on a marriage. When a mentally ill or “insane” spouse is involved in a divorce, South Carolina law (Section 62-5-301, et seq.) allows a court to appoint a guardian to represent the person’s interests. However, the person’s mental condition cannot be used as a way to delay or prevent the divorce process.

In many states, insanity and severe mental illness are accepted as grounds for divorce. In South Carolina, severe mental illness (such as schizophrenia) is not considered grounds for divorce. While a spouse’s mental instability can support grounds of irreconcilable differences or any fault divorce grounds, you can’t request a divorce based solely on your spouse’s insanity.

Mental health problems do, however, figure in a South Carolina court’s consideration of child custody and visitation. The court must decide according to what it has decided are a child’s best interests. If a court concludes that a parent’s mental illness is so severe that it would endanger the child to be alone with the parent, it can order supervised visitation, that is, contact only in the presence of a third party. When a parent’s mental illness is very severe and ongoing, a court can determine that the parent is unfit, and can terminate parental rights, but only if it’s proven necessary beyond a reasonable doubt.

Mental illness can also affect alimony (spousal support) and the division of property in South Carolina. The needs of the mentally ill spouse who is unable to be employed may be a reason to award permanent alimony to that spouse.

According to attorney Lisa Sandford, “Dealing with the complicated issues surrounding a divorce or child custody case is difficult for any litigant. But those who suffer from mental illness – in any form and to any degree – face the added challenge of overcoming the stigma attached to their illness so they can get a fair day in court.”

Abandonment and Divorce Law in South Carolina

November 21, 2016 By admin

The words “abandonment” and “desertion” have negative connotations. In the context of marriage and divorce, they can sound like dramatic words that belong in a Victorian novel. In fact, desertion, abandonment, or “refusal to cohabit” were once used as a fault constituting grounds for divorce.

Like every other state, South Carolina allows people to end their marriages through “no-fault” divorce. In SC, desertion (abandonment) is defined as not living together for a period of one year, without consent of the other spouse, and without justification. It is one of the five grounds for a no-fault divorce (S.C. Code § 20-3-10.), along with adultery, physical cruelty, habitual drunkenness (alcohol or narcotic drugs) and desertion.

Some spouses may want to leave a marriage that is breaking down, but may be concerned, thinking that moving out of the shared home constitutes abandonment or desertion that will serve them badly in the following divorce. Since one year’s separation is the no-fault ground, and the length of time living apart is now the same for a desertion, desertion is rarely if ever used as grounds for divorce.

In some cases, such as adultery, some spouses may seek a fault divorce as “a moral vindication because they can say, ‘He or she left, he or she does not pay, and I didn’t do anything wrong to make it happen.’”

Those who choose to divorce on a fault ground usually seek an unequal division of marital property, where the “innocent” party may be entitled to a larger share. According to legalzoom.com, South Carolina law allows state courts to look at each spouse’s marital misconduct or fault when determining the issues of alimony and property division. “Accordingly, an abandoned spouse may likely receive a more advantageous court order for alimony or for the division of property than the spouse who abandoned the household. An abandoned spouse might also be able to use marital fault as a reason for the court to order the payment of legal fees by the other party.

Marriage Annulment Laws in South Carolina

November 16, 2016 By admin

Many people are familiar with the concept of a religious annulment, granted by a church or clergy, which undoes a marriage as if the marriage had never existed. A religious annulment, however, does not affect the legal status of a marriage. The court process of an annulment ends a marriage legally, like a divorce.

The difference between a divorce and a legal annulment is that, while a divorce process divides the divorcing couple’s assets and deals with family consequences of the divorce, an annulment wipes the slate clean in the eyes of the law. No division of assets takes place. Not unlike a religious annulment, it dissolves a marriage as if the spouses had never been married, while a conventional divorce will remain as part of the spouses’ legal records.

In South Carolina, the grounds for getting your marriage annulled are limited under the law (South Carolina Code Ann. § 20-7-420(6)). The state will grant a legal annulment if you can prove:

One or both spouses are minors (younger than 18 in South Carolina). Under certain circumstances, those under 18 may marry with the consent of a parent or guardian.
One spouse coerced the other to get married.
The marriage was the result of fraud, lies, or concealment of something essential to the marriage.
One spouse has a living husband or wife at the time of marriage.
The spouses are more closely related than first cousins.
One spouse is mentally disabled to the point of incapacity to consent to the marriage.
The spouses never lived together.

If you wish to pursue an annulment of your marriage in South Carolina you must file a “Complaint for Annulment” in the circuit family court for the county where your spouse lives. You must have lived in SC for at least a year. You will be called the plaintiff, and your spouse the defendant. Your court’s website may have a sample complaint for annulment that you can use. The complaint form asks you to provide basic information about yourself, your spouse, your children, your marriage, and your reason for seeking an annulment. After you file your complaint with the court, it must be “served” to your spouse, meaning that an adult other than yourself must hand-deliver it to your spouse. It’s possible to serve your spouse even if you can’t find them or they live out of state; ask your court how.

Your circuit family court will hold a hearing where you’ll have to prove the legal grounds for your annulment. You will need to gather evidence to prove the validity of the complaint. This is where you will be wise to seek advice from an experienced family law attorney. A hearing will be scheduled. If the judge believes you’ve proven your case, the judge will grant your annulment.

In South Carolina, when a marriage is annulled, the judge can still decide issues like custody, visitation, child support, alimony, and property division. Any children of your annulled marriage remain legitimate as long at least one parent entered into the marriage in “good faith” (not realizing the marriage could be invalid).

The seasoned family law and divorce lawyers at the McGrath Law Firm, founded by attorney Peter McGrath, will walk you through every step of the challenging divorce process to address your concerns and achieve your goals as efficiently as possible. From spousal support, child support, fault, and equitable division of property and debt to valuations, pre-nuptial agreements, annulments, and restraining orders, the experienced attorneys at McGrath Law Firm have a successful track record in all aspects of divorce law. Call us to schedule your consultation at (800) 283-1380.

Delaying a Divorce Procedure Can Be Costly

November 14, 2016 By admin

While you may have your own reasons for postponing the divorce process, “Delaying is costly, causes financial frustration and ruins mediations. …Time is money,” according to a Huffington Post article entitled “Delaying a Divorce Procedure Is Like Creating a Time Bomb.”

The longer you put off your divorce, the more hours the attorney, mediators and other professionals who are helping you will spend on continual meetings and phone calls, and the higher the bills. The continuing financial frustration can amplify the negative emotions around divorce procedures, and can damage the fairness of even the most caring spouses.

There are people who delay their divorces indefinitely—for a lifetime. Warren Buffett remained amicably married to his wife after they separated in 1977 until her death in 2004, although he lived with another woman for decades, reported the New York Times. “We understand the expeditious voyage from separation to divorce, the desire for a clear-cut ending that makes way for a clear-cut beginning,” wrote Pamela Paul. “But couples that stubbornly remain separated, sometimes for years? That leaves us dumbfounded.” She refers to them as “the un-divorced.”

Not surprisingly, the chief motive for separating but remaining married is financial. It can be very challenging for couples that have already agreed they are done with their marriage to navigate the financial complexities of joint taxes, rights to pensions, Social Security and health insurance. These issues can foster feelings of inertia that make it even harder to get on with a divorce.

Paul cited the case of a mother of two who had stayed separated for nearly two years. She and her husband were in new relationships, but when she thought about health insurance and the desire to avoid legal fees, she said, I feel like we could just drift on like this for years.”

One benefit of delaying divorce for some people is that staying married provides an excuse for not remarrying. Conversely, meeting a person you want to spend the rest of your life with can accelerate your decision to divorce.

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