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

Posted on January 1, 2012 by leelawfirm

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,

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).

Food for Thought When Purchasing South Carolina Car Insurance Coverage – Underinsured and Underinsured Motorist Coverage

Posted on January 1, 2012 by leelawfirm

I recently spoke with a high school friend that I had not seen in what seemed to be several months. This person indicated that she had been in a serious vehicular accident in South Carolina, and had just returned to work recently. When I asked if she was getting back to full health and recovery, her response was something to the effect of, “Yes, but I am extremely thankful that I paid for extra underinsured motorist coverage. The air transport ride was about $30,000 alone.”

In South Carolina, as of this writing (January 2012), a South Carolina driver must carry what is commonly referred to as 25/50/25 liability coverage. Though a slight oversimplification, if one is hit by a driver with 25/50/25 liability coverage, if the other party is negligent and at-fault, this person would have up to $25,000.00 worth of insurance coverage to contribute to your medical bills and other non-property damage, up to a maximum of $50,000.00 for everyone in the vehicle, and up to $25,000.00 to pay for property damage. Using “guesses” based on the above facts, suppose my friend had incurred $30,000.00 for the air transport in damages and $55,000.00 in medical bills, without counting missed work (lost wages) for two months, pain and suffering, and other such potentially recoverable damages. My friend would already be beyond the at-fault driver’s coverage by $60,000.00, that she would still be responsible to her medical providers for. My friend could continue to “go after” the at-fault driver for his or her personal assets, but many people in this economy have little that can be obtained in a lawsuit after any legal exemptions are taken. Fortunately, there are two (2) types of vehicle insurance that one can purchase in South Carolina to protect oneself from drivers only maintaining minimum coverage.

In South Carolina, insurers offer what is called underinsured motorist coverage. When you are buying your policy, the insurer will make a meaningful offer to see if you wish to purchase this coverage for your own benefit. Suppose you carry 100/300/100 liability limits on your vehicle, such that you would have coverage should you be at fault for up to $100,000.00 in damages to one person in the hit vehicle, totaling up to $300,000.00 for all occupants, and up to $100,000.00 in property damages. You could purchase underinsured coverage generally up to your liability amounts/limits. If you had $100,000.00 in underinsured motorist coverage for one person and were the only one in the vehicle hit by the driver with South Carolina minimum coverage liability only, you would then potentially be able to turn to your own carrier seeking coverage for your damages greater than the at-fault driver’s coverage.

Before running out and buying more underinsured motorist coverage, it is also beneficial to briefly examine and remember uninsured motorist coverage, which must also be offered to South Carolina drivers. Many drivers believe that since one is generally required to have liability insurance in South Carolina, that they are safe and at least will have some coverage. Uninsured motorist coverage usually applies in South Carolina when the other person has no coverage, so that they are maintaining less than that required by law, or when that driver is from a state other than South Carolina that allows lower minimum liability limits, such that the at-fault driver has insurance, but it is coverage like 15/20/15 or some other figure that is less than that required in South Carolina. This is also the coverage that generally applies when you are hit or run off the road by a phantom driver that causes damage and then speeds off, never to be seen again. In these circumstances, the at-fault driver may be unknown, have little to no assets, or otherwise be unable to satisfy a personal judgment beyond his or her insurance coverage. Purchasing this coverage may be a small price to pay to ensure that you and your family are more financially protected “in case” of disaster. South Carolina’s economy is supported in large part by tourism, and out-of-state driver’s are often not as familiar with local roads as someone who lives in the community – if that driver has minimum liability coverage in his or her state that is less than South Carolina’s 25/50/25, your uninsured motorist coverage is key.

There is also a concept in South Carolina insurance law called “stacking” that is far beyond this posting. Stacking may also be available to increase your available coverage should you be injured in a vehicular accident in South Carolina.

Spending the extra money now to insure yourself may end up saving you a lot more in the long run, and may greatly increase the amount that you are able to recover should you become involved in an accident. Please choose your coverage wisely.

There can be many additional benefits to purchasing underinsured motorist and uninsured motorist coverage, such as potential coverage while you are riding your bike or walking down the street and are hit by a vehicle, that are not touched upon in this article that may apply to your situation. This article is not meant to be construed as legal advice, nor is it meant to cover every situation by any means. You should consult with an attorney to discuss the facts and circumstances of your particular case.

If you would like to speak with an attorney from our firm concerning your South Carolina vehicle accident, we would be honored to speak with you. We offer a free initial consultation for those injured by an at-fault driver while traveling on South Carolina’s roads, and can be reached at (843) 474-0614 or toll-free at (800) 996-0683.

S.C. Code Ann. Section 22-3-546 in the Fourteenth Judicial Circuit – First Offense Criminal Domestic Violence

Posted on December 30, 2011 by leelawfirm

When I began practicing criminal law in the 14^th Judicial Circuit, it seemed to be a “given” that any Criminal Domestic Violence First Offense matters that I took on would be prosecuted in Magistrate or Municipal Court, and usually by an arresting officer and/or a hardworking and dedicated Victim’s Advocate officer (as opposed to a law school trained and licensed government attorney). First offense criminal domestic violence matters were and still are taken seriously by law enforcement and Solicitors (in South Carolina we have Circuit Solicitors and Assistant Solicitors, which are essentially different names for the District Attorney and Assistant District Attorney positions those from other states may be more familiar with); however, a first offense is a misdemeanor, as opposed to a felony offense. One day I came across a bond form setting forth that an individual was supposed to appear for an Initial Appearance in General Sessions Court (as opposed to a trial date (by default “bench trial”) in Magistrate or Municipal Court) for a Criminal Domestic Violence First Offense misdemeanor offense. About ten (10) minutes later I had become familiar with S.C. Code Ann. Section 22-3-546, titled “Establishment of program for prosecution of first offense misdemeanor criminal domestic violence offenses.”

S.C. Code Ann. Section 22-3-546 sets forth (as of this posting – December 2011), “A circuit solicitor, in a circuit with five or more counties, may establish a program under his discretion and control to prosecute first offense misdemeanor criminal domestic violence offenses, as defined in Section 16-25-20, in general sessions court. Whether to establish a program, and which cases may be prosecuted in general sessions court, are within the sole discretion of the solicitor. A solicitor shall report the results of the program to the Prosecution Coordination Commission.”

When I mention judicial circuits to non-lawyers, I often get blank stares. South Carolina’s counties are divided into groups called circuits for purposes of many legal proceedings. The Fourteenth Judicial Circuit is composed of five (5) counties: Beaufort County, Jasper County, Colleton County, Allendale County, and Hampton County. To my knowledge, the Fourteenth Circuit is the only circuit in South Carolina with five (5) counties, so this law seems to have a mostly local effect.

How does this work in practice? In my experience thus far with prosecutions conducted pursuant to this statute, an individual charged with a violation of S.C. Code Ann. Section 16-25-20 (the first offense CDV or criminal domestic violence subpart) is given an Initial Appearance date instead of a bench trial date. A person charged with this offense will have his or her offense brought before a Grand Jury for indictment, just as if this individual were charged with rape, drug distribution, or other such offenses yielding far greater potential incarceration (jail or prison) times.

A person prosecuted pursuant to this program will be physically seated next to individuals potentially charged with extremely serious offenses. Also, should a trial occur, there is definitely going to be a solicitor on the other “side” (at the other “table”). Though I truly have a lot of respect for the Victim Advocate Officers in our circuit that prosecute these matters, as they have gained a lot of experience in their roles and can be fierce opponents, an Assistant Solicitor is normally equipped with this experience plus a legal background and generally superior knowledge of the rules of evidence and case law.

Though funding for solicitors in the Fourteenth Judicial Circuit to handle the increased caseload due to implementation of Section 22-3-546 is always an issue, it is almost certainly going to be beneficial, if not necessary, for one charged with Criminal Domestic Violence – First Offense in Beaufort County, Jasper County, Colleton County, Hampton County, or Allendale County to have legal counsel.

If you would like to speak with an attorney from our firm concerning your South Carolina Criminal Domestic Violence – First Offense charge, please call us at (843) 474-0614 or (800) 996-0683.

South Carolina Family Court Statutory Contempt Powers

Posted on December 20, 2011 by leelawfirm

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.

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

Posted on December 12, 2011 by leelawfirm

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.