South Carolina – The Putative Spouse/Putative Marriage Doctrine

The South Carolina Supreme Court recently had an opportunity to determine whether South Carolina recognizes the “putative spouse” or “putative marriage” doctrine.  The answer – a firm and unanimous “no.”

In Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (Opinion No. 27308 – Filed August 28, 2013), a former NFL player (“Husband”) married Hill (“Wife 1”) in Maryland.  Though the parties separated, they never divorced.  Nevertheless, Husband purported to marry Sullivan (“Wife 2”) in South Carolina.  The record in this case indicates that Wife 2 and Husband obtained a marriage license, and Wife 2 was unaware of Husband’s marriage to Wife 1.

When Husband died, Wife 2 began receiving his pension from the NFL, as Husband even listed Wife 2 as his spouse on the applicable forms.  About four years later, Wife 1 came back into the picture and started taking action to obtain the pension Wife 2 was receiving.

Wife 2’s claim/defense was that she should receive the same rights conferred upon a legal spouse under the putative spouse doctrine because she lived with Husband with the good faith belief they were married (note: Wife 1 was still alive this entire time).

The putative spouse doctrine is codified in section 209 of the Uniform Marriage and Divorce Act as follows:

“Any person who has cohabitated with another to whom he is not legally marriage in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights.  A putative spouse acquires the rights conferred upon a legal spouse, including the right to maintenance following termination of his status, whether or not the marriage is prohibited or declared invalid.  If there is a legal spouse or other putative spouses, rights acquired by a putative spouse do not supersede the rights of the legal spouse or those acquired by other putative spouses, but the court shall apportion property, maintenance, and support rights among the claimants as appropriate in the circumstances and in the interests of justice.”

Prior to this case, South Carolina had not adopted the putative spouse doctrine.

The South Carolina Supreme Court declined to adopt the putative spouse doctrine, holding that it is contrary to South Carolina’s statutory law and marital jurisprudence.  The Court cited past precedent for support, including one holding setting forth, “Even if Wife was acting under a good faith belief, South Carolina will not recognize her bigamous second marriage because to do so would violate public policy.”  Additional authority cited by the South Carolina Supreme Court included language that, “A mere marriage ceremony between a man and a woman, where one of them has a living wife or husband, is not a marriage at all.  Such a marriage is void, and not merely voidable.”

Despite any perceived unfairness, South Carolina now has a clear ruling on this issue.  Regardless of this ruling, this author feels most South Carolina couples deciding to marry will not conduct much more thorough due diligence via such methods as “interrogating” a soon-to-be “spouse” and demanding to see prior divorce decrees, if any, and/or hiring a professional of some type for this purpose; however, it could prove financially disastrous to fail to take such steps in South Carolina if one feels that he or she will be dependent on a future entitlement or benefit that derives from being considered a lawful spouse in South Carolina.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Our practice areas are limited to Criminal Law (including, but not limited to, South Carolina felony charges, South Carolina misdemeanor offenses, and state level ICE Holds), and Family Law (including, but not limited to custody, contested divorce, uncontested divorce, alimony, equitable distribution, child support, visitation, separation agreements, and Guardian ad Litem appointments).  The firm handles other matters (non-Family and/or Criminal Law) only on a case-by-case basis.

This article was written by Dustin Lee, a South Carolina licensed attorney.  The information contained in this article is not and is not to be construed as legal advice.

Pre-Marriage Engagement Ring Ownership Following Broken Engagement in South Carolina

This post is not meant or to be interpreted as legal advice.  Please consult with a licensed attorney as to your particular situation.  The findings of the South Carolina Court of Appeals in this case may have been overruled or distinguished, or be overruled or distinguished at any time.

On May 9, 2012, the South Carolina Court of Appeals had an opportunity to address ownership of an engagement ring in a romantic relationship that ended prior to marriage in the case of Campbell v. Robinson, Opinion Number 4969.  In other words, an engagement ring was presented, the other side said “yes,” but the engagement was broken off prior to marriage.

To begin, this was an action originally filed in a civil Circuit Court in South Carolina, and not in a South Carolina Family Court.  Marital property is a term of art in South Carolina law.  South Carolina Code Ann. Section 20-3-620 defines marital property; however, South Carolina Code Ann. Section 20-3-620(B) specifically sets forth that the Family Court, “does not have jurisdiction or authority to apportion nonmarital property.”  When dealing with an engagement ring prior to marriage between the gifting individuals (there was also no allegation of common law marriage in this matter found in the appellate opinion to cloudy the waters), one is almost certainly dealing with non-marital property.

What is an engagement ring?  According to the South Carolina Court of Appeals, an engagement ring by its very nature is a symbol of the donor’s (ring giver’s) continuing devotion to the donee (ring receiver).  Once an engagement is canceled, the ring no longer holds that significance. Thus, if a party presents evidence a ring was given in contemplation of marriage, the ring is an engagement ring.  As an engagement ring, the gift is impliedly conditioned upon the marriage taking place. Until the condition underlying the gift is fulfilled (i.e. – the parties get married), the attempted gift is unenforceable and must be returned to the donor upon the donor’s request.  This is not the “end of the analysis” though.

The person challenging the assertions that the ring is an engagement ring and therefore impliedly conditioned upon marriage has the burden of presenting evidence to overcome those assertions.  This burden may be satisfied by presenting evidence showing that the ring was not given in contemplation of marriage – it was not an engagement ring – or was not conditioned upon the marriage.  If the parties do not dispute that the ring was originally an engagement ring conditioned upon the marriage (example: both parties agree that the ring was at least originally an engagement ring), the burden may also be satisfied by presenting evidence establishing the ring subsequently became the challengor’s property (example: one may argue that after the breaking of the engagement, the ring receiver offered and tried to return the ring to the ring giver, but the ring giver wrote a letter setting forth that he or she desired the ring receiver to keep the ring for X or Y reason, such that the condition was removed and the gift became absolute).  As such, though the rulings set forth by the South Carolina Court of Appeals may appear clear to one or both sides upon first reading in a dispute, the particular facts of the situation matter.

The Court of Appeals was clear as to one matter though: the consideration of fault (as to who was at fault for the break in the engagement) has no place in determining ownership of an engagement ring.  Generally, gift law will dictate who has the legal right to the ring.  Tying in a bit of a South Carolina Family Court analysis, the South Carolina Court of Appeals further held that South Carolina’s use of fault in dividing property within the family court’s jurisdiction does not mandate the use of the fault approach for determining ownership of engagement rings when the marriage fails to occur.

On a final note, the South Carolina Court of Appeals held that though the heart balm actions for alienation of affection and criminal conversation have been abolished in South Carolina, promise to marry actions have not been expressly abolished.  The language of this portion of the opinion seems to invite the South Carolina Supreme Court and/or South Carolina legislature to take action, as the Court of Appeals indicates that its hands are essentially tied.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

What are the Grounds for Divorce in South Carolina? A brief examination of S.C. Code Ann. Section 20-3-10.

Family law has traditionally been governed almost entirely by individual state law (as opposed to federal law).  For purposes of this entry, this means that one state may “allow” a certain ground for divorce, but another, such as South Carolina, may not allow one to file for divorce utilizing that ground, and vice a versa.

South Carolina law sets forth via statute (a law that the South Carolina legislature has created that can actually be found “on the books”) that there are five (5) distinct grounds for seeking divorce in South Carolina.

South Carolina Code Ann. Section 20-3-10 is entitled “Grounds for Divorce” and is written as follows (as of January 7, 2012):

“No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit:

  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 caused 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.  A plea of res judicata or of recrimination with respect to any provision of this section shall not be a bar to either party obtaining a divorce on this ground.”

Numbers one (1) through four (4), respectively, are generally considered fault-based grounds for divorce in South Carolina, while number five (5) is generally considered a no-fault ground for divorce in South Carolina.  While the statute setting forth grounds for divorce may seems simple enough upon first glance, there is a plethora (quite a bit) of “Judge made” case-law discussing what each ground means and what is needed to actually prove each and every one of these grounds, including the burden of proof the person alleging the ground has to overcome.  Speaking with a licensed South Carolina lawyer who practices in family law and divorce is often the best way to match specific facts of a situation with possible grounds for divorce.

If you would like to speak with an attorney from our firm concerning your divorce matter or other family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683. We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

S.C. Code Ann. Section 20-3-30 – A Discussion on How Long One Must Live in South Carolina Before Filing for Divorce

The South Carolina Family Court is a court of limited jurisdiction.  In simple terms, this means that the Family Court can only hear certain types of cases. One of the most common questions an attorney practicing in the area of divorce in South Carolina is asked is, “How long do I have to live in South Carolina before I can file for divorce?”

South Carolina has a statute (this posting has the correct statute as of January 1, 2012) “directly on point” located at S.C. Code Ann. Section 20-3-30 that tells the Courts, attorneys, and parties how long one must live in South Carolina to file for a divorce.

Section 20-3-30 is entitled “Residence Requirement” and sets forth:

“In order to institute an action for divorce from the bonds of matrimony the plaintiff must have resided in this State at least one year prior to the commencement of the action or, if the plaintiff is a nonresident, the defendant must have so resided in this State for this period; provided, that when both parties are residents of the State when the action is commenced, the plaintiff must have resided in this State only three months prior to commencement of the action. The terms ‘residents’ or ‘resided’ as used in this section as it applies to a plaintiff or defendant stationed in this State on active duty military service means a continuous presence in this State for the period required regardless of intent to permanently remain in South Carolina.”

The Plaintiff is generally the one who files the lawsuit seeking relief (the Court’s help), with the Defendant being the one served with the lawsuit.  As an example, if you were to hire this firm to file an action for divorce against your spouse in South Carolina, if no action had already been filed for divorce from this spouse we would draft paperwork setting forth that you are the Plaintiff.  The Defendant listed in the paperwork would be your spouse.

Though the statute may seem a bit long and complicated, at heart it sets forth that:

Before a party may file an action for divorce in South Carolina,

1) At least one of the parties (you or your spouse) must have been a resident of South Carolina for at least one (1) year,

or

2) Both spouses must have resided in South Carolina for at least three (3) months.

The final sentence of S.C. Code Ann. Section 20-3-30 refers to active duty military service members, and directs how the time periods apply to these persons.

It is vitally important to remember that just because the Family Court has jurisdiction over divorce, it may not have jurisdiction over your child custody case and/or other issues (such as certain property).  This is confusing for those who do not practice frequently in this area of law, let alone general members of the public.  Before filing any case, it is important to ensure that the Court will in fact be able to “adjudicate” (hear) all of the issues that you wish for the Family Court to decide. Also, venue, another legal concept, may come into play.  In its simplest terms, venue asks/determines, where should the Court hearing or hearings actually take place, literally (as in Beaufort County Family Court located on Ribaut Road in Beaufort, South Carolina; at the Jasper County Family Court located in Ridgeland, South Carolina on Russell Street; or at some other courthouse)?  Venue is often the subject of complex motions and argument, and therefore is well beyond the scope of this posting.

If you would like to speak with an attorney from our firm concerning your family law matter, please call us at (843) 474-0614 or toll free at (800) 996-0683.  We would be honored to speak with you.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

South Carolina Family Court Statutory Contempt Powers

Many people contact a South Carolina family law attorney when the adult opposing party is allegedly not complying with an Order that a Family Court Judge has signed, wondering what can be done to get the other party to obey the Order.  Examples include, but are not limited to, not paying child support, denying visitation, not paying alimony, exposing the minor child or children to persons prohibited by the Order, and other such situations.  Though it is not proper to give broad-stroke legal advice, as each individual situation is different and extremely fact specific, the Family Court Judge has statutory authority (this means that the South Carolina legislature has created a law, as opposed to Judge made caselaw) to punish an adult found to be in willful contempt of a valid Family Court Order.  An adult found in willful contempt of court may be punished by a fine, by a public works sentence (read: community service of some type), or by imprisonment in a local detention facility (probably your county jail), or by any combination of them, in the discretion of the court, but not to exceed imprisonment in a local detention center for one year, a fine of fifteen hundred dollars, or public works sentence of more than three hundred hours, or any combination of them.

This can be difficult to read and fully comprehend in a long sentence, so I will sort it out for convenience.  Possible penalties by statute for an adult willfully violating, neglecting, or refusing to obey a lawful order of the Family Court, at the discretion of the presiding Family Court Judge:

1) A fine of up to one-thousand five-hundred and 0/100 dollars ($1,500.00);

and/or

2) Up to three hundred (300) hours of community service;

and/or

3) Up to one (1) year in jail.

The “and/or” above is there for a reason – a Family Court Judge can potentially sentence an adult in willful contempt to all three of these!  In short, this statute gives the Family Court’s Orders pretty sharp teeth.

The United States Supreme Court has recently, as of this writing, issued a ruling as to findings a Judge must make prior to finding an alleged contemnor (the person who is brought before the court and accused of violating the Court’s valid order) in willful contempt (the Supreme Court case arose from facts involving the issue of non-payment of child support), so it is important to consult with a licensed South Carolina Family law attorney to discuss your particular situation prior to “jumping to any conclusions.”  There are also numerous procedural steps that need to be “checked and followed” prior to ever getting before a Judge to ensure the best chance of success in these matters.

If you would like to speak with an attorney from our firm concerning your South Carolina family law matter, please call us at (843) 474-0614 or (800) 996-0683.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).

Why hire an attorney to help me in my family law case?

A lot of people, particularly in these tough economic times, certainly wonder why hiring an experienced family law attorney in a family law case matters.  Though the reasons are arguably countless, I have gathered a few of my top thoughts for your consideration:

1) The other party’s attorney is not your attorney.  An attorney in a family law matter represents one side, not both.  How can an attorney truly advise each party as to what steps he or she should take if the attorney’s loyalties are divided?  You need someone to look after your interests.

2) A huge portion of this firm’s clients did not have an attorney in an initial matter, especially dealing with children, and are left with either the proverbial “short end” of the stick utilizing an agreement drafted by the opposing side’s attorney without the benefit of “friendly review” (see number 1 above) or with an agreement that is obviously from a website or store bought package.  These versions rarely address the contingencies and matters that seem unexpected to someone who does not “do this for a living.”  While it is nearly impossible to draft for all contingencies and life changing events, an experienced family law attorney should have enough experience to provide you with guidance as to terms and provisions to include that protect your interests based on your concerns now and in the future.  It is often better to pay a bit more now than to wait until something goes wrong with a store or internet bought agreement and have to pay a lot then to fix it.

3) It is our belief that a good family law attorney should not only be willing and able to fight for your cause, but he or she should also be willing and able to provide you with solid advice and counsel as to how to approach the issues and events that occur, discuss possible settlement, to prepare you for any court appearances, and to be a sounding board for your ideas and concerns with your best interests in mind.  Good counsel can be invaluable.  Also, family law cases are unique creatures – your friend in a different state that went through a divorce and custody battle may seem qualified to give you advice, but family law cases are often extremely fact specific and domestic laws vary by state, such that listening to someone unqualified to give advice is often a recipe for disaster and disappointment.

4) An experienced family law attorney will be able to focus on your case while you focus on your job and life.  Though it is nearly impossible to block out a family law matter completely, having an attorney to assist allows a client to concentrate on work, family, relationships, health, and other such matters while the attorney does what he or she is trained to do.

If you would like to speak with an attorney from our firm concerning your family law matter, please call us at (843) 474-0614 or (800) 996-0683.

Lee Law Firm, LLC is a South Carolina based law firm that advocates for and counsels clients throughout South Carolina and its Low Country, primarily in Beaufort and Jasper counties (including Hilton Head Island, Bluffton, Daufuskie Island, Ridgeland, Callawassie Island, Okatie, Hardeeville, and Beaufort).