Top 5 Legal Questions Asked This Month

1) Should I sign a lease as a guarantor for my child?

-No, unless you don’t care about having to pay for the lease yourself when your child doesn’t.

2) Somebody wrote me a bad check what should I do?

-If someone wrote you a bad check they have committed a crime.  Most solicitor’s offices have a bad check office.  Report it to them immediately.  You can also sue them and receive three times the amount of the check.  In both cases, it is important to act as soon as you receive the bad check.  There is a small window of time to prosecute or collect the bad check.

3) What are the 3 most important documents I should have?

-Deed with joint right of survivorship, will, and Power of attorney.  Usually in that order.

4) Should I form an LLC or an S-Corp.?

-People ask me this question because they are wanting to protect their assets in case they get sued.  However, this question is not that simple to answer without having more information.  I advise people that we need to get their accountant involved because not only do we want to protect their assets in case they get sued, but we also want to protect their assets from being taken in the form of taxes.  Once we get their accountant’s input, then we usually get them started as an LLC or Corporation.

5) I was in a car wreck and medical provider will not take my health insurance.

-Your doctor or hospital does not want to be involved in your legal troubles.  You must insist that they file the claim on your health insurance even if the accident was caused by someone else.  Otherwise, you may be turned over to collections as you deal with the at-fault driver’s insurance company.

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

What are The Chances of Being Sued If You Are in a Car Wreck?

I speak with business owners and private clients every day, and I often give them an analysis of the likelihood they will be sued and how to protect themselves.  After my analysis, I usually conclude that they will most likely never be sued.

Nevertheless, the greatest exposure someone has to being sued is because of a divorce or an automobile accident.  Hopefully, you have enough auto insurance to cover you in case you cause an accident.  (As I’ve mention in a previous post, get as much insurance as you can).  Even if you caused a wreck, unless you acted completely reckless, like driving drunk, your insurance company will probably pay the claim without you knowing about it.

The media has driven fear into the public that a lawsuit is around every corner and that frivolous lawsuits are rampant.  This type of reporting has one purpose in mind: to sale ads.  Are frivolous lawsuits filed?  Yes.  Are most of them thrown out of court? Yes.  In South Carolina we have a law called the Frivolous Civil Proceedings Act to protect citizens from frivolous lawsuits, so please stop worrying about being sued.  I can’t begin to tell you how many Homeowner’s Associations, business, and individuals that I have represented who because of a fear of being sued have done away with “get togethers”, fairs, and other events.  I even had one family not want to have their son’s sports team over for a gathering because they were afraid someone would fall in their home and sue them.  The laws in South Carolina concerning injuries on someone’s property are very pro-property or business owner.  Unless you know of a hazardous condition on your property and do not fix it, you are pretty safe from being sued.  Next week I’ll share with you the factors I use in analyzing someone’s lawsuit potential.

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

WHEN DOES ALIMONY STOP?

Will I have to pay alimony forever?

Some people are ordered to pay alimony or spousal support.  They often ask, “When will my alimony stop?”  If either the person paying or receiving alimony dies, alimony stops.  If the person receiving alimony remarries, alimony will stop under most circumstances.  Alimony can also stop if the person who pays can show a substantial change of circumstances has occurred, such as becoming disabled, unemployed, or retires.  Also, if the supported spouse resides with another person in a romantic relationship for a period of ninety or more consecutive days, alimony may stop. The court may determine that a continued cohabitation exists if there is evidence that the supported spouse resides with another person in a romantic relationship for periods of less than ninety days and the two periodically separate in order to circumvent the ninety-day requirement. S.C. Code § 20-3-150.  Everyone’s situation is different.  If you are receiving or paying alimony and want to know if your alimony will stop, give me a call.  864-228-1616 or 864-984-6565

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

Help!  My Parents are getting older and I don’t feel so good myself.

Let’s face it, getting old is tough. Most of us are not there yet, but our parents are.  Have you taken the time to make sure your parent’s affairs are in order in case they have health problems or die?  Do they have a will and a power-of-attorney?  Have they titled their home and other assets appropriately so they are not tied up in court and subject to creditor’s claims?

I understand it is not a topic most of us want to address, especially with our parents.  However, it is something all of us need to look into.  One reason the conversation needs to be had is that if your parents have not planned appropriately, you may be the one to have to pay to fix the problem. Second, if they have not taken the steps needed to protect themselves, their surviving spouse may have to unnecessarily spend money that they need to live.  Third, careful planning now may save relationships between other members of the family.  The worst fights I have seen in my legal career have been between family members over money.  Most of the fights could have been avoided with simple planning.

May I suggest one way to start the conversation with your parents?  Why not say, “Dad, my attorney was telling me a story about a family that would get together every holiday to celebrate; however, when one of the parents died without a will, the family fought so much over the parent’s property that they never spoke again.  Can you assure me that you have done everything necessary to insure we don’t have any fights like this in our family?”  I know talking about this legal stuff can be uncomfortable, but trust me, fighting those you love is even worse.  If you need any other ideas on how to approach an aging parent over these type issues, please let me know.  I have a list of them I’ll be glad to share.

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

Restraining Orders in Family Court:  Can I still buy or own a gun?

If you are involved in a family court case in South Carolina, a judge may issue a restraining order in order to keep the peace between the parties involved.  It is very important that the restraining order be worded effectively.  Otherwise, it could be interpreted so as to prevent you buying or owning a gun.  Here is a suggestion on how a restraining order should be worded so as to lessen the likelihood of you being stopped from owning or buying a gun in South Carolina:

The parties are to abide by behavior restrictions, prohibiting behavior such as harassment, threatening, interfering with, bothering, molesting, disturbing, and/or intimidating. Further, both party shall be subject to a “no adverse contact order” (NACO) which shall restrain the parties from engaging, directly or indirectly, in any adverse conduct towards one another. This NACO shall permit the parties to contact, associate, communicate with one another only so long as both parties mutually consent to such contact, association, or communication. The parties acknowledge the purpose of this NACO is both to encourage and require civil contact communication between them, and this NACO) is not intended to trigger, implement, or affect any provision of the federal 18 U.S. Code, Chapter 44, nor is the NACO intended to rise to the level of, or be considered, an order of protection as defined in the South Carolina Protection from domestic abuse statutes. Provided however, the parties agree that willful violation of this NACO so subject the offending party to any action for contempt of court.

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

Guess What?  You’re Dying!

Here is the only 100% guarantee I will make as an attorney. I guarantee that one day your life on this earth will end.  If this fact catches you by surprise, please call me.  We have a lot to discuss.  If you accept this fact, you need to take several steps in preparation for your last day.

#1        Get a will, put it in a safe place, and tell someone where to find it.  Having a will is useless if no one can find it.

#2       Make a list of you bank accounts, retirement accounts, and life insurance policies.  Put the list in a safe place and tell someone where to find it.

#3       Make a list of your passwords for your online accounts.  Put the list in a safe place and tell someone where to find it.  Do you see a pattern here?

#4       If you are married and your spouse is not on the deed to your home, put your spouse on the deed.  Speak to an attorney on how to transfer your house to your spouse so the home isn’t caught up in the probate process.  This one task could be the difference in your spouse having a home to live in or not.

#5        Write a letter or do a video from you to your loved ones.  Most of us don’t know how or when we are going to die.  The words you say to your family may be what helps them cope with your death.  When you love someone, you can never say it too much.

#6       Plan your funeral. Do you want to be buried or cremated?  Do you want flowers? Do you want an open casket or a closed casket?  Do you want the mood to be somber or festive?  If you don’t make a directive now, I will almost guarantee you won’t have much input the day of your funeral.

#7        Get a Power of Attorney.  Your last day is coming, but hopefully there are a few days left in between now and then.  A power of attorney can be very valuable until the will takes effect at your death.

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

Can I Take My Child and Move?

Relocating with A Child

One of the hardest types of cases a Family Court judge or a Family Court lawyer must deal with are those cases where one parent wants to move with the child/ren a long distance away from the other parent.   South Carolina courts recognize the need to “balance the custodial parent’s right to relocate with the minor children against the non-custodial parent’s right to continue his or her relationship with the [children] as established before the custodial parent’s relocation.”

However, once a parent moves with the child a great distance from the other parent, they have lessened the other parent’s involvement and influence on the child’s life.  For this reason, the South Carolina courts look at relocation cases with great scrutiny.  Family Court judges take very seriously issuing an order that may hinder a parent’s involvement in a child’s life because of a long-distance move. In the case of Latimer v. Farmer, 360 S.C. 375, 602 S.E.2nd 32 (2004), the court set out a checklist that South Carolina Family Court judges should use when considering whether or not to allow a parent to move a great distance from the other parent with the child. Here are the criteria that a Family Court judge should consider according the Latimer case.

  1. The parents’ reasons/motives for/or against the move (not a whim, not to thwart visitation, not mandatory, military transfer, etc.) and, the motive for the move.
  2. The quality of the relationship between the parent and child.
  3. The impact of the move on the quality of the visiting parent’s and child’s relationship.
  4. Feasibility of preserving the relationship of the visiting parent and child if the move is allowed.
  5. The economic, emotional, and educational impact of the move.
  6. The general advantages and disadvantages of moving or staying, e.g. family ties, moral upbringing, in general the relevant change of conditions arising out of the move.

However, the family court, even after taking these factors in consideration, will always look at what is in the best interest of the child.

If you are thinking about leaving the State of South Carolina with your child or the child’s other parent has taken the child from the state, please call me (864-228-1616) to discuss your rights as a parent.  Every case is different.  There is not a simple cookie cutter answer to every legal situation.

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

Will the Court listen to a child’s preferences when deciding custody?

In South Carolina there is no magic age when a child can decide where they want to live.  The court looks at every case differently.   When making a decision on who will have custody, the court must determine what is in the best interests of the child.  However, the law requires the court to consider the child’s reasonable preference for one parent over another. The court shall place weight upon the child’s preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference. Section 63-15-30 of the South Carolina Code (2010).

The controlling consideration in setting child custody and visitation is the child’s welfare and best interest. High v. High, 389 S.C. 226, 244, 697 S.E.2d 690,699 (2010); Smith v. Smith, 386 S.C. 251, 272, 687 S.E.2d 720, 731 (Ct. App. 2009). In determining the best interest of the child, the family court considers who has been the primary caretaker; the conduct, character, attributes, and fitness of the parents as they impact the child; the opinion of the guardian ad litem and the age, health, and sex of the children. Patel v. Patel, 347 S.C. 281, 285, 555 S.E.2d 386, 388 (2001); Reed v. Pieper, 393 S.C. 424, 430, 713S.E.2d 309, 312 (Ct. App. 2011). The court must also “consider the child’s reasonable preference for custody, ” giving weight to “the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.” S.C. Code Ann. § 63-15-30 (2010).

Nevertheless, section 63-15-30 of the South Carolina Code (2010) requires the family court to consider “the child’s reasonable preference for custody … based upon the child’s age, experience, maturity, judgment, and ability to express a preference.” ” The significance to be attached to the wishes of [a child] in a custody dispute depends upon the age of the child[ ] and the attendant circumstances.” Brown v. Brown, , 362 sc 85 (Ct.App.2004).

If you question whether your child is old enough to decide which parent the child wants to live with, please call me.  Every case is different and every lawyer needs lots of information before answering this question.  Google is great, but it cannot answer every legal questions definitively.  That’s what an attorney is for.

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

Do women get custody most of the time in South Carolina?

No. In the past there was a set of laws called the Tender Years Doctrine in which there was a preference for awarding the mother custody of a child when the child was of the age of tender years. The “Tender years” were seen as to apply to very small children. This set of laws was abolished in South Carolina (see SC Code §63-15-10). Today, however, we are seeing that the courts do not give preference over either parent. Therefore, if you are a male and are wanting custody of your child in a Family Court case, please call me. Also, if you are not married and are a father of a child then you will need to bring an action in Family Court in order to attempt to get custody. Otherwise, the mother will be presumed to have custody of the child because the two you are not married.

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