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SPOUSAL SUPPORT

Spousal support is often a very emotional subject for both parties. The party paying support cannot usually understand why any support should be paid to someone who should be out earning money (or more money) and the party receiving the support never believes it is enough money for all the pain and suffering that was endured during the marriage.

"Temporary" or "Permanent" spousal support - In South Carolina, at the start of a domestic case, any spousal support paid is called "temporary" support. "Permanent" spousal support is paid (or not paid) when the case is concluded and is based on a complex set of specific statutory factors found in the South Carolina Code of Laws.

The standard of living established during the marriage is critical - the beginning reference point against which the factors are applied based on the standard of living established during the marriage.

Standard of living established during the marriage is a "reference point" - The standard of living established during the marriage does not set an absolute ceiling on the support amount, but only establishes a reference point against which the specific statutory factors will be weighed and applied.

Specific Factors - Some of the specific factors when the award of permanent support is under consideration are:

• Standard of living established during the marriage - The extent to which the parties' respective earning capacities are sufficient to maintain the standard of living established during the marriage, taking into account all of these factors.
• Contributions to earning potential of payor party - The extent to which the supported spouse contributed to the other spouse's attainment of an education, training, career position or license.
• Ability to pay - The supporting spouse's ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living.
• Needs - The needs of each party based on the standard of living established during the marriage.
• Assets and Debts - The parties' respective assets and obligations, including separate property of each.
• Length of the marriage - The length of the parties' marriage influences the "need" for support and the amount and duration. The longer a spouse has been out of the job market on the account of marriage, the stronger the case for granting support: on the other hand, a relatively short marriage may justify a lower level of support for a shorter duration.
• Employment ability of supported spouse - The ability of the supported spouse to engage in gainful employment without interfering with the interests of dependent children in his or her custody.
• Age and health - Age and health considerations are also particularly relevant to the question of duration of support.
• Tax consequences - The immediate and specific tax consequences of spousal support to each party (e.g., who pays the taxes, who gets the deduction, what effect on net income).
• Relative hardships - The relative hardships the payment or non-payment of support would have to each party, ie. ability to pay.
• Court has wide discretion to consider other factors - Any other factors the court determines are just and equitable. This is a "catch-all", which allows courts to exercise their discretion.

CHILD SUPPORT

Child support is calculated from the parents' gross income using guidelines. Both biological parents or the adopting parents, if the child is adopted, have a duty to support a minor child until the child is 18 years old, and sometimes until the child is 19 years old or graduates from high school.

Duty to support a child - The "duty to support" usually means that one of the parents is paying money to the other parent for the support of the child.

Modifications are appropriate upon a "substantial change of circumstances" - The amount of support is modifiable by either parent until the duty no longer exists, and such modifications require a "substantial change of circumstances." Common change of circumstances include a change in income of either or both parties and changes in the "time sharing" arrangements that the parties have with the child, as well as the needs of the child.

CHILD CUSTODY

The custody/visitation arrangements concerning a minor child are subject to modification until the child reaches 18 years of age, upon a showing of a "substantial change of circumstances" so affecting the child that modification is essential to the child's welfare.

"Best interests of the child" standard - An important goal in custody cases is to establish custody and visitation arrangements that are in the "best interests of the child."

"Move-away" cases where there is a "true shared custody" arrangement - "Changed circumstances" are not required in "move-away" cases in a true "shared custody" situation. When parents share actual physical custody under an existing order and one seeks to relocate with a child, the "changed circumstances" rule does not apply. Obviously, a move-away will render the existing custody arrangement unworkable. Consequently, if the non-moving parent contests the move and requests a custody modification, the trial court must determine de novo what primary custody arrangement will be in the "child's best interests."

"Move-away" cases where there is one primary custodial parent - However, a parent who has virtual sole physical custody of a child has the presumptive right to change the child's residence and courts will not prevent relocation absent a showing the move would "prejudice the rights or welfare" of the child.

PRENUPTIAL AGREEMENTS

A prenuptial agreement is also called a "premarital" or "antenuptial" agreement. It is a contract executed before the marriage between two prospective spouses in contemplation of their marriage. It fixes and establishes their marital property rights and financial responsibilities upon consummation of the marriage. In South Carolina, "post" nuptial agreements are also recognized.

Protect assets already owned - A prenuptial agreement can protect assets acquired before marriage (separate property assets) in the event the marriage fails.

Avoid or alter applicability of South Carolina equitable distribution property law - Often the parties' intent in executing a premarital agreement is to avoid or alter applicability of South Carolina property law to assets already owned by each party before the marriage and to property and income to be acquired or earned during the marriage.

Most provisions valid - As long as the property provisions are not "promotive of dissolution" they are valid and enforceable.

Protect earnings during the marriage - Prenuptial agreements may validly provide that the earnings and accumulations of each party during the marriage will remain that party's separate property, free of any claims, equitable distribution or otherwise of the other party.

FEES

There are two types of family law fees: a flat fee and an hourly fee. A flat fee is typically charged for a one time, simple case. For example, a simple name change will be charged a flat rate of Two Hundred Fifty Dollars ($250.00). If there are no contested issues in a divorce or separate maintenance action, I will typically attempt to charge a flat rate fee which is reasonable, allowing me to earn a small amount of money while allowing the client to take care of business without going bankrupt.

It is the contested case in which a retainer is charged and an hourly rate is billed against the retainer. For instance, in a contested custody case in Charleston County, South Carolina, the retainer can be as small as Two Thousand Five Hundred Dollars ($2,500.00) or as large as Ten Thousand Dollars ($10,000.00), depending upon the particular facts and circumstances of the case. I charge One Hundred Seventy Five Dollars ($175.00) per hour that will be billed against the retainer. On the fifteenth (15th) of each month my office produces a bill that will be mailed to you. If there are monies remaining in the retainer, the bill will be liquidated from those funds and the remaining balance of the retainer, if any, will be shown on the bill. However, if the retainer is exhausted I expect the balance due to be paid within ten (10) days of receipt of the bill.

Remember: it is my job to produce the results that you desire and it is your job to provide the resources with which to allow me to perform my job.


RETAINER AGREEMENTS In each case, I will provide a comprehensive Retainer Agreement outlining my representation of you and the steps I will take in your case, as well as outlining, for you the client, ways in which you can help work on your case. There will be a copy of the Retainer Agreement executed by you for my files and one executed by me for your files.

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