CAN SOMEONE VISIT THEIR CHILD IF THEY HAVE BEEN CONVICTED OF DOMESTIC ABUSE OR DOMESTIC VIOLENCE?

Just because someone has been convicted of domestic abuse or domestic violence does not mean they cannot visit their child.  In fact, South Carolina law allows a family court judge to award visitation to someone who has been found guilty in general sessions, magistrates, municipal, or family court to have committed domestic violence.  However, the court must decide that adequate provisions can be made for the safety of the child and the victim of domestic violence before visitation can be awarded.

If the court orders visitation, it may also order  that the exchange of the child occur in a protected setting, that visitation be supervised, that the person found guilty complete  a domestic violence program, that the abstain from possession or consumption of alcohol or controlled substances during the visitation and for twenty-four hours preceding the visitation, that the person pay towards any supervised visitation fee, that overnight visitation be prohibited, and that a bond be posted for the return and safety of the child if that person has made a threat to retain the child unlawfully. The court will also order the person found guilty to pay for the actual cost of any medical or psychological treatment of a child who is physically or psychologically injured as a result of one or more acts of domestic violence by that person. S.C. Code of Laws SECTION 63-15-50. Of course every case has different facts which will affect how a judge will decide a case.  The best course to take is to schedule an appointment with an attorney to discuss all of your facts, so you will have a better understanding of what to expect in court.

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

WILL THE COURT AWARD A CHILD TO A MUSLIM IF ONE PARENT IS A CHRISTIAN?

This is a great question.  Another way of stating it is, “Will the court consider the religion of the parents when deciding custody?”  The court will consider religion when it makes its decision about which parent should have custody.  Our law does give the court some guidance on what to do when parents have different religious beliefs.  SECTION 63-15-20 of the South Carolina Code of Laws says, “In placing the child in the custody of an individual or a private agency or institution, the court shall, whenever practicable, select a person or an agency or institution governed by persons of the same religious faith as that of the parents of such child, or, in case of a difference in the religious faith of the parents, then of the religious faith of the child, or, if the religious faith of the child is not ascertainable, then of the faith of either of the parents.” Of course, every case has different facts which will affect how a judge will decide a case.  Religion, however, may not be the overwhelming issue to sway a judge’s decision.  Of course, every case has different facts which will affect how a judge will decide a case.  The best course to take is to schedule an appointment with an attorney to discuss all of your facts, so you will have a better understanding of what to expect in court.

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

The Judge Ordered Me To Pay My Spouses Bills?  Is this Tax Deductible?

Are Unallocated Support Payments Taxable Or Non-Taxable To The Spouse Making The Payments?

Sometimes in divorce cases a court will order a spouse to make unallocated support payments to the other spouse.  These payments are similar to alimony payments, but they are a little different because an unallocated payment is usually used for not only supporting the spouse, but they can also be for child support or for the payment of other bills.  Alimony is generally taxable to the spouse receiving the payment of alimony and tax deductible for the spouse paying the alimony.  Likewise, unallocated support is taxable to the supported spouse and deductible by the supporting spouse unless the court issues an order stating otherwise.  For a more in depth look at this issue read the case of Brown v. Brown, 375 S.C. 48, 650 S.E.2d 84 (2007). Every case is different so you need to talk with an attorney or a tax professional to discuss your specific situation.

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

WHAT YOU SHOULD DO IF YOU ARE IN A WRECK

Let’s say that you have taken all of the precautions above, but you are still in a wreck. What do you do?  Depending on the extent of your injuries and the nature of the accident, here is a list of things you should consider doing if you are in a wreck:

  1. First, check yourself for injury. Next, check your passengers for injury. Also make sure no one in the other vehicle is hurt. Call 911. If someone is injured, do not move them unless they are in danger, i.e. the car is on fire or in danger of being struck by a passing vehicle, the person is not breathing, etc.
  1. Understand where you are and make sure others can see you and your car.  Move your car if doing so would be safer.
  2. If you are injured, then you should seek medical care as soon as possible. You should do your best to follow your doctor’s advice. Your failure to seek medical care and follow your doctor’s advice could be very bad for your health and hurt your chances at being fairly reimbursed for your injuries and other losses.
  3. Do not admit fault at the scene. Statements made at the scene can be used as evidence against you. There will be time later to address who was at fault.  However, if the accident was your fault, you must tell the truth.
  4. Take photographs of the accident scene and the other vehicles, provided you are 100% positive you are not hurt.  Remember that the body reacts different ways after an accident.  You may be hurt and not realize it until several days afterwards.
  5. Call the police. Most insurance companies require a police report before settling any property or medical claims. In addition, the police will make a diagram of the accident and get everyone’s important information.
  6. Call your insurance company.  You don’t have to call them the day of your accident, but it’s best to do so as soon as possible.  Otherwise, they may refuse to pay.  An attorney can help you by talking to your insurance company. An attorney can also help you by making sure that you get the full benefits that you are entitled to according to the insurance policy.
  7. Never sign any papers that someone other than your attorney or the police give you unless you are 100% sure you understand what they say, their purpose, and their effect.
  8. Never give a statement (recorded or written) to the other driver’s insurance company.  If they are requesting one, see a lawyer as soon as possible.  These statements are very rarely used for your benefit even if the wreck was not your fault.
  9. Make sure you keep a folder with all of the information concerning the accident (such as the accident report, insurance documents, police reports, medical bills, prescriptions, mileage log for trips to and from your doctor).
  10. Don’t negotiate your claim with the insurance company until you speak to an attorney.  Whether you believe it or not, you can’t educate yourself enough by reading on the internet how to settle your own insurance claim.  Attorney’s spend years in law school and are required to take numerous hours of legal education classes each year in order to help others.  You simply cannot learn enough to properly settle your claim.  Negotiation is a skill that is learned over years and based upon many case experiences.  You may be good at arguing, but that is not the point.  You are trying to be reimbursed for your expenses.

I do have clients who have tried to negotiate their case before coming to see me only to find out they do not understand all of the legal jargon or the process.  Unfortunately, by the time I talk to these people they have usually caused irreparable damage to their case, and they have cost themselves hundreds or thousands of dollars.  Here is a simple test on whether you need an attorney.  Do you know what subrogation is, how it works, and why it’s important? Do you understand stacking? If you answered “No” to any of these questions, you need an attorney if you are ever in a car wreck.

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

What types of alimony are there?

In South Carolina, there are four types of alimony: permanent periodic, rehabilitative, lump sum, and reimbursement alimony.  All types of alimony contemplated by statute are modifiable and terminable. The family court may impose whatever “terms and conditions” on an alimony award “as the court may consider just, as appropriate under the circumstances.” S.C. Code Ann. § 20-3-170 (Supp. 2007).

The most commonly awarded of the four is permanent periodic alimony.  Generally, someone will pay permanent alimony until he/she dies, there is a substantial change of circumstances, or the supported spouse remarries or lives continuously with someone as though they are married. Permanent alimony is usually paid on a monthly basis.

Rehabilitative alimony is ordered to encourage a dependent spouse to become self-supporting after divorce.  It is also designed to help a former spouse to develop his own life free from obligations to the dependent spouse.  It is only awarded in special circumstances.

Lump-sum alimony is usually a set amount of money paid in one installment, or periodically over a period of time.  Lump-sum terminates only upon the death of the supported spouse.  It is not terminable or modifiable based upon remarriage or changed circumstances in the future.

Reimbursement alimony is usually a set amount of money which is paid in one installment or periodically.  It is not terminable or modifiable based upon changed circumstances in the future. Most attorneys are not aware of reimbursement alimony.  If asked about the types of alimony, usually only the best domestic attorneys will mention reimbursement alimony.

All types of alimony contemplated by statute are modifiable and terminable. S.C. Code Ann. § 20-3-130 (Supp. 2007) Furthermore, the family court may impose whatever “terms and conditions” on an alimony award “as the court may consider just, as appropriate under the circumstances.” S.C. Code Ann. § 20-3-170 (Supp. 2007).

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

WHAT IS A GUARDIAN AD LITEM?

The Judge Appointed A Guardian Ad Litem in My Custody Case.  What does that mean?

A Guardian ad Litem (GAL) is someone appointed by the court to represent a minor child in a custody case or other family court matter. A GAL is not necessary in most family court cases; however, most judges like a GAL to be appointed in order to assist the court in making a determination that would be in the best interest of the child.  In order to be qualified to be a GAL, the person must either be an attorney or have taken an approved Guardian ad Litem class. Usually each party is responsible for the cost of the Guardian ad Litem.

The job of the Guardian ad Litem is to speak with the child, interview witnesses, visit teachers, visit homes, and appear and testify at hearings. The GAL is allowed to come to the child’s school, to make surprise home visits, and to gather medical and school records. South Carolina law says the responsibility of the guardian ad litem is to:

(1) Represent the best interest of the child;

(2) Conduct an independent, balanced, and impartial investigation to determine the facts relevant to the situation of the child and the family;

(3) Advocate for the child’s best interest;

(4) Attend all court hearings related to custody and visitation issues, except when attendance is excused by the court or the absence is stipulated by both parties.

(5) Maintain a complete file, including notes; and

(6) Present to the court and all parties clear and comprehensive written reports including, but not limited to, a final written report regarding the child’s best interest. The final written report must not include a recommendation concerning which party should be awarded custody, nor may the guardian ad litem make a recommendation as to the issue of custody unless requested by the court.

It is important to be truthful to a Guardian ad Litem. If the GAL determines that the information they have received from someone is a lie, then all credibility may be lost with the GAL.  As a result the GAL is not likely to believe anything else that they are told by that person.

A fine line must be walked in keeping open communication with the GAL. The GAL is not a babysitter. Therefore, not every problem needs to be brought to the Guardian’s attention. If a major problem arises in your case, you need to contact your attorney so your attorney may then make a decision on how best to approach the GAL.

The GAL may also request parties and witnesses to submit to drug tests. This is not uncommon. If a Guardian ad Litem ever asks you or one of your witnesses to take a drug test, do so immediately, but contact your attorney as soon as the request is made, but before taking the test. Failure to take a drug test or failure to timely take a drug test can be viewed by the court as a positive drug test.

Guardian ad Litem’s play an important role in any family court case.  Therefore, it always a good idea to cooperate with the GAL and to be honest and responsive to their requests.

If you have any questions about Guardian ad Litem’s or you are involved in a custody case, give me a call to see if I can assist you.

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