What Happens When Someone Files Bankruptcy During a Divorce?

Sometimes during a divorce or custody case, a party may file for divorce.  When this happens it is always wise to get a bankruptcy attorney involved as bankruptcy is a specialized area of the law.  More likely than not you will probably need the assistance of a bankruptcy attorney to help get the case resolved.  Generally, bankruptcy will stop a divorce case from being completed.  However, in some instances the case can continue provided one of the parties asks the bankruptcy court to lift the automatic stay that is put in place whenever bankruptcy is filed.  Nevertheless, bankruptcy will not stop someone’s child support or alimony obligation.  If you are involved in a divorce or custody case, and the other side files for bankruptcy, contact me as soon as possible, so I can advise you on the next steps to take in order to bring a resolution to your case.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

How long does it take to get a divorce in South Carolina?

In South Carolina you can get a divorce based upon a “fault ground” or a “no fault ground”.  The fault grounds in South Carolina are adultery, physical cruelty, desertion/abandonment, and habitual drunkenness (alcohol or drugs).  For a “no fault” divorce, you must prove that you and your spouse have been separated for more than one year.  The same time period applies to abandonment.  For the other fault grounds, you can get a divorce 90 days after the Summons and Complaint are filed with the court.  However, it is important to remember that although you may be eligible to obtain a divorce in 90 days does not mean that the divorce is automatic. You must still appear in court and prove your case.  Also, because of court scheduling and other complexities of your case, you may not be able to get a divorce after the one year or 90 days have passed. To get a better idea of how long your case will take, call me and schedule an appointment.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

KNOW SOMEONE GOING THROUGH A DIVORCE?

KNOW SOMEONE GOING THROUGH A DIVORCE?

Follow these 3 rules.

I handle a lot of divorces in my practice. I have no doubt that each of us knows someone who is going through a divorce, is divorced, wants a divorce, or needs a divorce. Ok, I’m just kidding on the last two, but the reality of the world today is that each of us has been touched by divorce in some way. What I will share with you is how you can help someone who may be going through a divorce.

1) Act like a friend, not an acquaintance. A true friend will tell someone what they need to hear. An acquaintance will tell someone what they want to hear. If your friend is acting irrational and letting emotion rule over reason in their divorce, be a friend and tell them. Yes, the truth hurts, but so do shots. Sometimes a little pain is worth the long term benefit.

2) Remind them that children come first. Divorce is devastating to children. Children do not need to know anything about the divorce or why their parents are getting divorced. Parents should focus on strengthening their children and on promoting a healthy relationship with the other parent, rather than using their child as a counselor, sounding board, or pawn. If a marriage cannot be saved, at least spare the children.

3) Tell them to hire an attorney. I know this may sound self-promoting, but I’ve met with numerous people this year that tried to save money by not hiring a lawyer and represented themselves in court. I estimate that by not hiring an attorney they cost themselves about $25,000 in lost benefits or future costs. I am a big “do it yourselfer” too, but sometimes a professional needs to be involved. Just because you can find a form on the Internet or read a blog on divorce, does not make you proficient in the law. There is an old saying, “He who represents himself has a fool for a client.” It is called “practicing law” for a reason: it takes time, effort, and experience to become a skilled attorney. When you hire an attorney, you are hiring someone to protect your best interest.

This list could be much longer, but if you do know someone preparing to go through a divorce, be a friend and forward this information to them. They will either delete it or thank you.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

STRATEGIES AND TIPS FOR DIVORCE AND CUSTODY CASES

How to Make Your Family Court Case Stronger

I have been handling divorce and custody cases in in South Carolina for over 20 years.  Here is the advice I give my clients on how to make their case stronger.

  1. Always tell the truth.
  2. Keep your attorney and Guardian ad Litem informed of your current information, such as telephone number, email address, mailing address, and residence address.
  3. Do not move too often from one house to another. Prior to any move, contact your attorney to get his advice.
  4. Keep your attorney informed of any major life-changing event such as a job change, a move, an arrest, a death of a witness, a Department of Social Services investigation, a late payment of child support, or a violation of the court order.
  5. Do not make any posts on Facebook or any other social media website unless your attorney gives you permission to do so. It is best to close down your Facebook account during your case. I often use Facebook material when representing our clients. Anything put on Facebook can usually be used in court.
  6. Your telephone conversations and other conversations may be audio or video taped under certain circumstances, so be careful of the way you speak to someone and what you say to them.
  7. Email and text can also be reproduced. Be very careful of what you say in them. Do not let the heat of the moment influence what you write or text.
  8. A private investigator may be following you. Technology allows someone to watch you without being seen. If you are doing something that looks inappropriate to a stranger, it will look bad to the court, so be careful of what you do.
  9. Do not go on any dates or be alone with anyone of the opposite sex during your family court case. Remember you are married until you are divorced even though you may be separated from your spouse. Most judges hate adultery and if you are caught in a situation that may be considered adultery, the court may punish you in some way.
  10. Be involved in your child’s school and extracurricular activities. Attend Teacher/Parent conferences and go to lunch with your child. Unless the court order says otherwise, make sure you are going to all of your child’s extracurricular activities even if it is not your time to have your child.
  11. Make sure your child is not tardy or misses any school unless it is excused. Any missed days or classes can be used against you in the court. Judges often look at school records, grades, and absences/tardies in custody cases.
  12. Make a budget. If you are getting ready to separate from your spouse or to complete a divorce, you need a budget that includes what you believe your future income and expenses will be. Bills double and incomes are cut in half once the divorce is final. You need to be financially capable of supporting yourself, so plan accordingly.
  13. Be patient. A family court case is a marathon and not a sprint.
  14. Keep a diary or calendar of important events. If your spouse is habitually late paying child support/alimony, is always bringing the children home late, is always getting the children to school late, keep a diary.  A diary accomplishes several things.  It will help refresh your memory, and it will help your attorney better prepare your case.
  15. Don’t drop your spouse from your health insurance until the court or your attorney tells you it’s ok.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

HOW TO MAKE YOUR MARRIAGE STRONGER

SAVE YOUR MARRIAGE BEFORE YOU HAVE TO HIRE ME

There are thousands of books on how to have a happy marriage.  However, I’m going to save you $19.95 and several hours. Below are 5 ways to strengthen your marriage and keep you out of divorce court.  I have some authority in this area and can speak with great confidence about these. I am in front of a family court judge about every day.  I am divorced, and I have performed several marriages for others.  I’d bet very few self-help authors have all of these credentials, so keep reading and you can learn from mine and other’s mistakes.

  • Communication. Most divorces don’t end because of an affair or abuse.  Most people that come to me about a divorce tell me they want a divorce because they have “grown apart”.  Translation= they don’t communicate.  They have each become selfish and failed to make the small effort to communicate with each other.  If you don’t know what to talk about, hold hands and walk around the block.  Sometimes you can communicate without words.
  • Time. Couples start off wanting to spend every second together while they are dating.  Then they get married, and they don’t spend quality time with each other.  They stop going on dates.  They become roommates rather than partners.  Go on a weekly date with your spouse.  It doesn’t have to be expensive.  Guys, if you email me I’ll give you one great idea for a date that I guarantee will work to your advantage.
  • Children. Some couples place their children in a higher position in their marriage than their spouse.  Your children need your time, but if you are giving your children more quality time and attention than your spouse, make some changes quickly before you “grow apart”.
  • Church. Professor Scott Stanley from the University of Denver, working with a team of leading sociologists, found in the Oklahoma Marriage Study that couples with a vibrant religious faith had higher levels of the qualities couples need to avoid divorce.  The study found that “whether young or old, male or female, low-income or not, those who said that they were more religious reported higher average levels of commitment to their partners, higher levels of marital satisfaction, less thinking and talking about divorce and lower levels of negative interaction. These patterns held true when controlling for such important variables as income, education, and age at first marriage.”
  • Marriage counseling. Your marriage is just like your body.  You need a checkup every so often to make sure you are well.  You don’t have to have problems to go see a marriage counselor.  They can be a wealth of knowledge and can provide ideas to keep your marriage strong.  Plus, it will give you or a chance to talk about things that may be bothering you about the marriage in a controlled environment that otherwise you would not talk about.

If you are married, nothing is more important than your marriage relationship.  Fix it before it breaks.

Rhett Burney
Attorney at Law
rdburney@turnerandburney.com
(864) 228-1616
www.turnerandburney.com
www.rhettburney.com

Dividing Goodwill of a Business in South Carolina

Can the Family Court in South Carolina divide the Goodwill of a Business?

In the case of  Moore v. Moore, 414 S.C. 490, 779 S.E.2d 533 (2015), the South Carolina Supreme Court addressed the issue of  dividing the goodwill of a business.  Previously, the courts in South Carolina have ruled that personal goodwill is not a marital asset and is not subject to being divided in marital litigation.  The rationale was that in a professional situation such as a doctor, lawyer, etc. that but for the professional there would be no business.  Thus, only the value of the business would be divided.

In Moore v. Moore, the court distinguished “enterprise goodwill” from “personal goodwill” and determined that “enterprise goodwill” is divisible in family court. The court described enterprise goodwill as follows:

Enterprise goodwill is that which exists independently of one’s personal efforts and will outlast one’s involvement with the business.” In re Marriage of Alexander, 857 N.E.2d 766, 769 (Ill. App. Ct. 2006). “Enterprise goodwill ‘is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers and suppliers.’” Yoon v. Yoon, 711 N.E.2d 1265, 1268 (Ind. 1999) (quoting Allen Parkman, The Treatment of Professional Goodwill in Divorce Proceedings, 18 Fam. L.Q. 213, 215 (1984)). “[E]nterprise goodwill attaches to a business entity and is associated separately from the reputation of the owners. . . . The asset has a determinable value because the enterprise goodwill of an ongoing business will transfer upon sale of the business to a willing buyer.” Wilson v. Wilson, 706 S.E.2d 354, 361 (W. Va. 2010). Many courts have found “[e]nterprise goodwill is an asset of the business and accordingly is property that is divisible in a dissolution to the extent that it inheres in the business, independent of any single individual’s personal efforts and will outlast any person’s involvement in the business.” Yoon, 711 N.E.2d at 1268– 69 (citations omitted).

Fortunately, the court gave very clear guidance to the Family Courts on how to distinguish between the two forms of goodwill by including a chart providing examples of each.  However, a rather simple way of distinguishing enterprise goodwill from enterprise goodwill is to consider two law firms.  The first law firm is a sole practioner.  The other law firm is a multi-location law firm with multiple lawyers.  If a lawyer comes or goes from the larger law firm the law firm will still continue to operate.  As for the first law firm, if the lawyer retires or dies, the law firm does as well.

-Rhett D. Burney
Attorney at Law

Does Religion Play a Party in a Custody Case in South Carolina?

Will the Court take my religious faith into consideration when awarding custody?

South Carolina law (S.C. Code §63-15-20) does require the court when placing the child in the custody of an individual or a private agency, whenever practicable, to select a person of the same religious faith of the child. In the case where there is a difference in the religious faith of the parents then the court must look at the religious faith of the child. If the religious faith of the child is not ascertainable, then the faith of either parent shall be considered.

Rhett D. Burney

Attorney at Law

How to Increase Your Social Security Benefit When You Are Divorced

Can I Claim My Ex-Spouses Social Security Record?

If you are divorced, but your marriage lasted 10 years or longer, you can receive benefits on your ex-spouse’s record (even if they have remarried) if:

1) You are unmarried;

2) You are age 62 or older;

3) Your ex-spouse is entitled to Social Security retirement or disability benefits; and

4) The benefit you are entitled to receive based on your own work is less than the benefit you would receive based on your ex-spouse’s work.

Note: Your benefit as a divorced spouse is equal to one-half of your ex-spouse’s full retirement amount (or disability benefit) if you start receiving benefits at your full retirement age. The benefits do not include any delayed retirement credits your ex-spouse may receive.

If you remarry, you generally cannot collect benefits on your former spouse’s record unless your later marriage ends (whether by death, divorce or annulment).

If your ex-spouse has not applied for retirement benefits, but can qualify for them, you can receive benefits on their record if you have been divorced for at least two years.

If you are eligible for retirement benefits on your own record and divorced spouse’s benefits, we will pay the retirement benefit first. If the benefit on your ex-spouse’s record is higher, you will get an additional amount on your ex-spouse’s record so that the combination of benefits equals that higher amount.

Note: If you were born before January 2, 1954 and have already reached full retirement age, you can choose to receive only the divorced spouse’s benefit and delay receiving your retirement benefit until a later date. If your birthday is January 2, 1954 or later, the option to take only one benefit at full retirement age no longer exists.  If you file for one benefit, you will be effectively filing for all retirement or spousal benefits

If you continue to work while receiving benefits, the retirement benefit earnings limit still applies. If you are eligible for benefits this year and are still working, you can use our earnings test calculator to see how those earnings would affect your benefit payments.

If you will also receive a pension based on work not covered by Social Security, such as government work, your Social Security benefit on your ex-spouse’s record may be affected.

Note: The amount of benefits you get has no effect on the amount of benefits your ex-spouse or their current spouse may receive.

Courtesy of the Social Security Administration.  Click Here for More Info. Or go to https://www.ssa.gov/planners/retire/divspouse.html

Rhett D. Burney
Attorney at Law

Can I sue my spouse’s boyfriend or girlfriend?

How To Get Even With The Person Your Spouse Is Having an Affair With

Unfortunately, spouses sometimes cheat on each other. When this happens, the cheated upon spouse comes to see me. Not only do they want to know if they can get a divorce on the ground of adultery, but they also want to know if they can sue the person with whom their spouse cheated. In other words, can they get money from the person who broke up their marriage? This type of lawsuit is called an alienation of affection suit, but in South Carolina such suits are not allowed.

However, what most people (including lawyers and judges) are not aware of is a state law that allows the family court to put some pressure on the boyfriend or girlfriend (a “paramour”). Under S.C. Code Sec. 63-3-530(19), a family court judge can make a paramour part of the marital litigation and can issue an order preventing that person from continuing to see the cheating spouse until the case is over. Although, such an order may not be as satisfying as getting money from the paramour, it at least keeps the cheating spouse and the paramour apart for awhile. If they do not stay apart, then the court hold them in contempt and put them in jail, fine them, and/or make them serve community service.

Rhett Burney
Attorney at Law