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Tag Archives: South Carolina Law

When can a child testify in South Carolina Family Court? When can a child’s input be included in South Carolina Family Court?

In rare occasion, children can sometimes be witnesses a in Family Court cases.  As a general rule, the child must be of sufficient age or awareness that his/her testimony will be believed.  In some cases, the Judge may agree to talk with a child in Chambers, but most Judges don’t — except in rare, extreme circumstances. Usually, the child’s position in a case is represented through a Guardian ad Litem, who is appointed to protect the child’s interests.

In South Carolina there are many factors to whether the child can speak in court. A child who is only 8 is not likely going to be called to testify, or if they are going testify, it will be  in camera with the Judge taking the testimony. If the child is a little older the child might be asked to testify in court, however, unlikely. Once a child is 14 or 15 the court is more likely to allow the child to testify, however, that is not always going to happen and an attorney will need to argue the case regarding facts and circumstances surrounding the case. Judges are not looking to have children in the courtroom unless they absolutely have to.

According to S.C. Code Ann. § 63-15-30 the court should consider the child’s preference, but it does not say that should be via testimony:

“In determining the best interests of the child, the court must consider the child’s reasonable preference for custody. The court shall place weight upon the preference based upon the child’s age, experience, maturity, judgment, and ability to express a preference.”

There is extensive case law on this issue in South Carolina, including, Patel v. Patel, 359 S.C. 515, 599 S.E.2d 114, 120-121 (2004) and Brown v. Brown, 362 S.C. 85, 606 S.E.2d 785, 790 (Ct.App. 2004). An attorney would be able to explain the case law and information pertaining to this case. 

IF YOU HAVE QUESTIONS OR ISSUES PERTAINING TO THIS TOPIC PLEASE CONTACT AN ATTORNEY. WE CAN BE CONTACTED AT NATALIE@THEPOWERSLEGALFIRM.COM OR AT 843.261.7025

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Types of Custody and Vistation : Know your options prior to making an agreement

As a divorce begins it is smart to begin considering the types of legal custody which may apply to your situation. There are many different terms you may hear. Below I will explain a few different types of custody to help you understand what you might want to consider. All types are not available in all situations and a unique type of custody and visitation arrangement might work for your situation.

Remember that you can get an agreement regarding custody which gives an arrangement that the judge might not have otherwise been permitted to order under the law. Therefore, it is important to see if you can reach an agreement with the other parent regarding custody and visitation if at all possible.

Legal Custody:  In plain terms, legal custody refers to which parent has the primary parenting duties and responsibilities for the child(ren) involved.  In South Carolina, the judges generally prefer one parent, usually the primary parent, be the person with primary decision making authority for Major Decisions. Examples of major decisions include: education/where the kids go to school, the type of education (public school, Montessori, catholic etc), religion, and major and non-emergency medical decisions.

Some options to consider for custody are:

Sole Legal Custody:  This means that one parent has custody of the child, solely, and the other parent does not have visitation or custodial periods. Sole custody would mean one parent would have all the decision making authority for all aspects of the child’s life. This does not necessarily mean the other parent’s rights have been terminated.

Joint legal custody: Joint custody contemplates some arrangement where both parents share the responsibility of custody for the child. One parent is generally designated as the primary custodian and the other would be secondary. Often the guidelines for join legal custody are controlled by a court order. The standard, in South Carolina, and many states is that you are to co-parent and make an attempt to discuss the major decisions regarding the child, if a decision cannot be reached often time an order will designate one parent as the final decision maker.

Shared legal custody: Shared legal custody contemplates the parties splitting the time between each parent equally. This means the parents will often split the day to day decision making for the child and have major decisions to be made as co-parents with one person being designated as a final decision maker after good faith discussions have occurred. If you and the other parent do not get a long this is NOT a good option for you and your children. NOTE: IF YOU FEEL YOUR SITUATION LENDS ITSELF TO A SHARED CUSTODY SITUATION CONTACT AN ATTORNEY TO DISCUSS THE SITUATION IN DEPTH AS JUDGES IN SOUTH CAROLINA ARE NOT PERMITTED UNDER THE SOUTH CAROLINA CODE OF LAWS TO ORDER SHARED CUSTODY EXCEPT WHERE THERE IS A SHOWING OF CERTAIN ELEMENTS WHICH CAN CONSTITUTE EXCEPTIONAL CIRCUMSTANCES.

Physical Custody is something separate form legal custody in some circumstances. Physical custody is in regards to who has actual physical custody at what time. While some people refer to “sole Physical Custody” or “joint physical custody” this is a misleading idea. Courts do not order a separate physical custody order after ordering legal custody.  A situation could occur where someone has Joint Custody of the child and the mother has physical custody on the week days and dad has physical custody on the weekends. This is no different than saying dad has visitation on the weekends.  South Carolina does not generally use the terms physical custody for children, they most often refer to primary parent / custodial and secondary parent / custodian.

Some states, not South Carolina, that I am aware of, are allow something called Nestting Custody. The idea is the children stay in one central location and the parents rotate in and out of the children’s residence on a certain schedule. For example, dad may reside at the children’s home Monday evening through Thursday, and mom may reside there from Thursday evening through Monday morning. If you recall the famous couple from the TLC Show Jon & Kate Plus 8, they operated on a schedule like this when they first separated and there were 8 children. They had just built a mansion and the children stayed in the mansion. I have not had occasion to recommend this to any client. This is often short term or one parent is going in an out of the other parents primary residence. I do not see this a prudent for any situation where there is a contested custody or divorce ongoing. IF YOU THINK THIS APPLIES TO YOU PLEASE CONTACT AN ATTORNEY TO DISCUSS THIS MORE IN DEPTH.

Visitation is a form of custody. Visitation allows a parent who does not have custody full time to see the child on a regular basis or at least some sort of schedule so that they can form a regular parent-child relationship with their child. There are many types of visitation. You should not agree to any type of visitation, specifically supervised visitation, without first consulting a lawyer about what you should be entitled at a minimum. South Carolina does not have a statutory minimum visitation; however most judges will at least allow a parent who is local to have every other weekend, Wednesday evening, some holiday time, and two weeks in the summer as a standard visitation schedule. There are generally two types of visitation which are ordered. NOTE: VISITATION AND CHILD SUPPORT ARE TWO SEPARATE ISSUES- IF THE COURT THINKS YOU ARE SEEKING EXTRA VISITATION ONLY TO GET YOUR CHILD SUPPORT REDUCED YOU WILL NOT FAIR WELL WITH THE COURT.

Supervised visitation: Means that another responsible adult must be present for the duration of the visitation. The non-custodial parent may be able to select an individual to serve as the supervisor, however in some cases, the other parent will be allowed to choose the supervisor Often times, unless the supervisor is agreeing to supervise for free, there will be a fee involved for the supervision. It is often hard to find a supervisor for visitation; two local companies are listed on the resources section of my webpage, via this link.

Unsupervised Visitation: The most common type of visitation is unsupervised visitation, especially in private cases. Parents are permitted to visit with their children just as any other parent does. There may some restrictions placed on visitation such as no out of state visitation or no visitation at the a certain location, however this does not rise to the level of supervised visitation.

A third type of visitation which is become standard in almost every court order I see is virtual or phone visitation.

Virtual visitation: Virtual visitation, must be ordered by the court, and takes place over the internet or cellular signal. Methods of communication may include video chatting, instant messaging, and email. This may use Skype® , FaceTime®, or other real time video chat software to allow the children and the non-custodial parent time with the children.  This is often used for young children and parents who are far away.

Phone visitation: Phone visitation is very similar to Virtual Visitation, in that it occurs over a phone. Phone visitation may be ordered nightly for young children or on a regular basis for children who are attempting to adjust to a new situation. Phone visitation contemplates one parent calling the other and then the child and the non-custodial parent talking for a short time. This is not always the best form of visitation but allows communication. Phone visitation should not be done via speakerphone (or listened in on) unless indicated by the court, so that the child can develop a health parent-child relationship with the other parent.

 

If you have more questions about your rights or feel a school or another parent is unreasonably denying you the right to access your child’s information, contact an attorney. The Powers Legal Firm can be contacted via email at natalie@thepowerslegalfirm.com, via phone at 843.261.7025 or via our webpage at www.thepowerslegalfirm.com

Flat fee and Affordable Rates
Summerville’s Family Law and Custody Law Firm
 

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“Excuse me whose parent are you?” How To Get Copies of Your Child’s School Records?

You show up to your child’s school hoping to get the information your ex is unreasonably withholding from you. You just need the information to help your child with homework, or to plan for the next parent-teacher conference. The secretary asks you over and over “whose parent are you?” “are you sure they go to school here?” or they say ” I don’t see you listed here for any child in our school…”

Has this happened to you? You attempt to get information about your child from their school and the school treats you like a complete stranger.

As the school year starts we see many parents having to re-enroll or enroll children in school which requires filling out new paperwork for the schools their children attend.

Often one parent will attempt to use access to the child at school or access to the child’s school information as a pawn in the game of child custody. All parents should be allowed access to information pertaining to their child in school. All parents should be allowed access to information pertaining to school meetings, events and other items. If an order of protection or a restraining order states a parents is not allowed to come near the child or the other parent this may be a different situation and you should speak to your attorney, or an attorney, prior to interfering with school.

BEST PRACTICE: School should be a neutral zone for the child to be able to learn, grow, make friends, play and be free from the stress any custody issues may have on the children. This means for BOTH parents, they should not be trying to have lunch with the child, they should not be trying to meet the child for breakfast and they should not be there to see the child get on the bus if they are not the custodial parent. Neither parent should use school time as parenting time.

However, this DOES NOT MEAN THAT A NON-CUSTODIAL PARENT IS NOT ALLOWED OT HAVE ACCESS TO INFORMATION PERTAINING TO THEIR CHILD.

A FEW GUIDELINES FOR WHAT TO DO AND WHAT NOT TO DO REGARDING SCHOOL INFORMATION DEPENDING ON YOUR SITUATION:

If you are the custodial parent, the one who has custody in a court order, here are a few pieces of advice to help you avoid contempt charges.

  1. ALWAYS, ALWAYS, ALWAYS, list the other parent on all documents for doctors, schools, dentists, teams, and organizations your child is coming in contact with. If  the other parent is not listed you may face trouble with the Family Court. Judge’s often frown upon “leaving off” a parent or “forgetting” to list them. Even if you don’t have all the information you should list at least what information you have.  Simply stating you forgot, didn’t know their information, or didn’t think you had to list them is not going to be a good answer in family court. If there is a restriction on the other parent, such as they are not to pick up the child, then list it on the form but you must list them you cannot just leave people out.
  2. NEVER EVER EVER, list a step- parent or grandparent in the place where the other parent should be listed. There is often a place on the forms to list a third person or additional person who can be contacted. That is where you need to list your spouse and/or grandparents who you might want to include on these forms. You should never substitute your spouse or a step-parent for the biological parent of the child as this is highly frowned upon by the courts.
  3. BEST PRACTICE TIP: The best practice you can have is to provide the school, health provider or organization with  a copy of the Order which is signed by a judge and indicate where it shows what rights each person has. This will help to avoid any issues which may present themselves.  This is not required but helps you to avoid future problems.

If you are NOT the custodial parent, the one who does not have primary custody in a court order, here are a few pieces of advice to help you avoid issues with schools, health care providers and organizations and avoid frustration on your party.

  1. BEST PRACTICE: it is the best practice for you to proactively go to the school, healthcare provider, or organization and provide them with a copy of the court order, introduce yourself and provide them with your current and accurate information. Although this is not always possible, it can show that you are an involved parent, you care and help avoid any issues when the other parent attempts to circumvent your ability to be involved in your child’s live.
  2. NEVER, EVER, EVER: Expect the other parent to provide your information to anyone. Generally speaking, if you have not gotten along or had issues in the past, they are likely to provide no information at all about you, or even worse provide wrong or misleading information that will eventually cause you more hassle to fix. If  ex could work with you on this, you probably wouldn’t be looking at this post.
  3. TRY NOT TO: Discuss issues regarding the school records in front of the children or with your ex at all if possible. If you and your ex cannot get along regarding the school records it is best not to speak to them about it. If conversation is necessary you should utilize email to keep a record of what is said.
  4. ALWAYS, ALWAYS, ALWAYS, request the school send an additional copy of everything pertaining to the child to you. You have rights detailed below and may not be able to get a copy of EVERYTHING but you can ask the school to send you an extra copy or an extra folder. The school may charge for this or may only send the bare minimum but at least this is a start and you are not out in the cold any more.
  5. GOOD IDEAS:
  • Contact your child’s teacher directly to discuss when report cards and other important information will be distributed so that you know to request copies. (You may also be able to find this information on a school web site.)
  • If your child’s school provides online access for parents, ask for an appropriate access code so that you can stay informed on a regular basis without having to bother the school officials on a regular basis.
  • Double check your child’s teacher has your email address and phone number, and update it when there are changes.
  • Make sure that your child’s teacher knows that you would like to be notified directly of any changes in your child’s academic performance or behavior, and invited to any school meetings or events involving your student.

A sample letter requesting inspection of a child’s record can be found on my website via this link.

SO WHAT EXACTLY ARE YOUR RIGHTS AS THE NON-CUSTODIAL PARENT?

The Family Educational Rights and Privacy Act (FERPA)gives parents the right to access their child’s records, report cards, standardized test scores, and other pertinent material.  This does not mean you have access to everything that happens at school. For example, there is no access for non-custodial parents to the school lunch menu, field trip notices, and school photos. A school does not have to allow you take your child’s file with you anywhere to copy it, or “check out”  and leave with your child’s record. Also, the schools will generally not automatically mail everything to the parents, or will charge for mailing items. The school may charge for copies they need to make of things they send you, however, not always.  You have rights to your student’s records and should assert those rights. The school has plenty to worry about, and your access to records is not one of the things they are going to concern themselves with unless you let them know it is important to you.

On top of what rights you have as a natural parent, FERPA has carved out certain rights for Non-custodial parents in The Rights of Noncustodial Parents in the Family Educational Rights and Privacy Act of 1974.  Many schools, especially locally, will work to make sure non-custodial parents have access to information, above and beyond what is provided for in FERPA, if they make their desire to be included known to the school officials.

Note: FERPA does not give rights to a parent whose rights have been terminated by a court order.  Once your rights are terminated, you can no longer access the child’s records.

If you have more questions about your rights or feel a school or another parent is unreasonably denying you the right to access your child’s information, contact an attorney. The Powers Legal Firm can be contacted via email at natalie@thepowerslegalfirm.com, via phone at 843.261.7025 or via our webpage at www.thepowerslegalfirm.com

Flat fee and Affordable Rates

Summerville’s Family Law and Custody Law Firm

 

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Fact v. Fiction Uncontested and “No-Fault” Divorce in South Carolina

In South Carolina there are many grounds for divorce. When a person files for divorce, they must have grounds to terminate the marriage. In other states there are such things like “irreconcilable differences”. South Carolina does not permit divorce just because you and your spouse no longer get along. However, South Carolina Laws do allow you to divorce if you and your spouse have lived separate and apart without cohabitation for a period of one year. There are many misconceptions relating to the idea of an uncontested divorce which should be cleared up before you decide whether you have an uncontested divorce.  All situations are unique and the term “uncontested divorce” is a term of art which is used to described a situation where the parties are not fighting on anything and have come to terms on everything. Some states allow a dissolution which is similar to a divorce however is done by agreement and depending on the state may not require a court appearance or hearing. South Carolina does not allow for a dissolution and requires at least one litigant to appear in court.

For a truly uncontested divorce the parties must agree on everything between them, except for a few things explained below which they cannot agree to. Both spouses must agree on all issues of property, issues pertaining to the children, and any other marital issues that will need to be resolved to end the marriage completely. If even one issue is not settled between the parties you do not have an uncontested divorce. If you have a more complicated divorce you should call an attorney to discuss your options.

BELOW I WILL GO THROUGH SOME FACTS AND FICTIONS RELATING TO UNCONTESTED DIVORCE.

FICTION: You never need an attorney for an uncontested divorce. Although an uncontested divorce can be achieved without an attorney, beware of the many programs out there that advertise they will help you fill out the forms without going to court with you. A paralegal is not allow to give you legal advice. Further, you may need the help of an attorney to make sure you are not giving up legal rights that you or your children are entitled to and have been granted to you by our legislature and constitution. YOU MAY NOT BE ABLE TO GET YOU OR YOUR CHILDREN’S RIGHTS BACK IN THE FUTURE. You should always consult with an attorney before proceeding with a divorce action.

The South Carolina Supreme Court has authorized the use of a Self-Represented Litigant which you can utilize if you feel you do not want to you an attorney. You can find those documents here.

FACT: You and your spouse can agree to something the judge may not have ordered, even if it is an uncontested divorce. Although your divorce is uncontested it does not mean the court is going to treat your divorce like “every other” case and force you to enter into the same old agreement that your sister-in-law had. You can craft a unique agreement with your spouse before entering court and this allows you to be able to ensure the best outcome for your case.

FICTION:  You can get divorced in South Carolina for only $149 total out of pocket expense.  There is no way you can spend less that $150 to be divorced. Any program that advertises differently is likely not doing something, not completing your divorce fully, or is not a licensed attorney. The filing fees, which are fees paid to the court to file your case, as of 2013 cost $150 to file a case in the family court. Therefore if you think you are going to get a divorce for just $149 please start to consider the real cost of the divorce. There are many attorneys who do offer discounted fees and there is even the South Carolina Divorce Boot Camp which will begin in September 2013 and run monthly to help people cost effectively approach uncontested divorce. The South Carolina Bar Referral Service, Charleston Pro Bono Legal Services or South Carolina Legal Services can provide information on programs which might be able to legitimately help you in your time of need.

FACT:  Your spouse may not have to appear at a final hearing for you to get a divorce. This is true. If you have proper service on your spouse and you have done everything properly, only the Plaintiff needs to show up to the final hearing. If the Defendant is a woman, and wishes to change her name, she must show up to answer a few questions to the Judge at the hearing. However, if the Defendant is male, or a female not wishing to change her name, they do not have to appear at the final hearing. NOTE: proper service needs to be done for this to be true. Information on service of process can be found here.

FICTION: If the divorce is uncontested I don’t need a witness.  The South Carolina Code of Laws requires that the Plaintiff, the person filing for divorce, show the fact that they have alleged to the court to a certain level. Usually in an uncontested divorce the grounds, reason, for divorce are the parties have been living separate and apart without cohabitation for more than 1 year. For you to be able to prove this fact in South Carolina the Plaintiff must bring a witness who can testify to these facts in court at the final hearing. Discussion of witnesses at the final hearing will be discussed in future blog posts.

FACT: A spouse can change their name in an uncontested divorce, even if the other party does not wish for them to. This is understandably confusing. The court requires in uncontested divorce ALL issues be settled. However, the option to resume a maiden or former name is the option of the wife involved to request and may be granted by the court. A name change is one of the two things that the parties cannot agree to (the other being divorce).

FICTION: The parties can/must agree to divorce. The parties in a divorce CANNOT agree to a divorce. The South Carolina Law requires that the judge make certain findings in a divorce which the parties cannot agree about. A few of them are the following:

  1. The parties have not worked to mislead the court or the judge to obtain a divorce.
  2. The person asking for the divorce has presented the proper evidence.
  3. There is nothing the court or anyone could do to reconcile the parties or save the marriage.

FACT: The South Carolina Supreme Court has said all family law cases need to be resolved within one year. True, the South Carolina Supreme Court has said this. However, often times the judges are permitted to use their discretion to allow a case to last longer than that for several reasons. Do not count on what is known as the 365 Day Rule as a hard and fast deadline for your case. You never know how the other party might act or what might happen.

FICTION: Uncontested divorce is the fasted way to divorce in South Carolina, and I can get divorced as quickly as the same day as I file.  If someone has told you that an uncontested divorce is fast, will happen the same day, the same week or same month as you start to think about divorce, THINK AGAIN. Divorce is a lengthy process no matter how you go about it. Although an uncontested divorce could potentially be less time consuming, if your spouse decides to fight you, it could potentially take longer than expected. Also, UNDER NO CIRCUMSTANCES WILL YOU GET AN UNCONTESTED DIVORCE ON THE GROUNDS OF ONE YEAR SEPARATE AND APART UNLESS IT HAS BEEN 1 FULL YEAR 365 DAYS SINCE YOU AND YOUR SPOUSE LAST STAYED IN THE SAME HOUSE OR ON THE SAME PROPERTY (even if it was just one quick hook up, or just one night).

You should always be prepared for a divorce to take longer than expected. Do not plan your wedding for the day after your divorce hearing.  IN SOUTH CAROLINA MOST TRULY UNCONTESTED DIVORCES AVERAGE 3-6 MONTHS BEFORE THEY ARE FULLY RESOLVED. (BUT, again do not rely on this- always plan for more time).

FACT: I can be divorced the same day as I go to court. You can most certainly have a divorce decree ready and signed the day you go to court. You are not divorced until a judge signs your divorce decree and it is stamped and entered in by the Clerk of Courts. This means if you are going to represent yourself you have to have your order ready the day you go for your final hearing. There are additional paperwork that you need in addition to just the Decree of Divorce which you will also need for the clerk of Court, such as the Form 4 cover sheet and the Report of Divorce or Annulment of Marriage. An attorney representing you will have these forms or will prepare these forms when submitting the Order to the Judge.

FICTION: An uncontested divorce is less emotional and easier than a “regular” or contested divorce.  Unfortunately, a divorce is not easy and even for people who have been separated for many years the divorce process can be emotionally taxing and difficulty. A “regular” divorce may be hard for people who are fighting day in and day out, however, an uncontested divorce is its own beast and you should consider getting the help you need from professionals who are trained to deal with divorce prior to entering into this phase of your life.

FACT: If you start working on an uncontested divorce you can always switch to a “regular” or contested divorce if that seems more appropriate. While an uncontested divorce is a good path to take, often times someone will run into a snag in the process or find out information that causes them to change their outlook and want to have the Judge make a decision on something, even if it is just one thing. If this occurs I would recommend you call an attorney immediately so that you do not give up any of your rights.

FICTION: You and your spouse must agree on everything PRIOR to meeting with an attorney. An attorney can often answer your questions at a consultation or other meeting with you that will help you to determine if you have an uncontested case. Also, a consultation with a lawyer can give you information that will help you to discuss with your spouse how thing should be settled. For an uncontested divorce you only need to have everything settled that you would normally be asking a judge to decide, such as property and issues pertaining to the children.

FACT: Both parties can participate in negotiations and both parties will have to sign the agreement. Both parties should participate in the discussion between the spouses of how the case will be settled. This is important to ensure everyone agrees to the agreement because both parties will have to sign the agreement. However, the South Carolina Bar Ethics rules prohibit an attorney from representing both parties.  That means one attorney can only represent and provide legal advice to one of the spouses.  However, that does not necessarily mean the other party must retain the services of an attorney. While, it is usually recommended the other spouse at least consult with an attorney, it does not mean they must have an attorney.

FACT: An uncontested divorce can be completed with an attorney for a flat-fee.  Many attorneys, including The Power Legal Firm, offer flat fee options for uncontested divorce litigants to take the element of surprise and confusion out of the financial aspect of an uncontested divorce. The cost if often determined on a case-by-case basis based on the complexity of your case and how it can be resolved. However, the Powers Legal Firm offer an Uncontested Divorce Boot Camp which can provide you with the services you need for your contested divorce if you qualify.

IF YOU HAVE QUESTIONS ABOUT AN UNCONTESTED DIVORCE, THE SOUTH CAROLINA DIVORCE BOOT CAMP OR OTHER FAMILY LAW ISSUES CONTACT US AT 843.261.7025 TO SET UP A CONSULTATION.

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Wage withholding for child support SC Code 63-17-1420

Wage withholding for child support SC Code 63-17-1420

Have you recently found out that the parent of your child is withholding your wages for a child support order? Have you been on the arrearages roller coaster for years and want to have the child support owed to you paid through wage withholding but need more information? You have come to the right place.

Can my child support order be enforced through wage withholding? The answer is probably yes, but depends on the date your child support order was issued and the language of your order. Contact an attorney for specific questions. Generally, South Carolina laws that pertain to wage withholding depend on when the Order for child support was issued. The two years that matter are 1990 and 1994. Since most children born or subject to a child support order PRIOR to those years would no longer be under a child support order- it is almost safe to say ALL South Carolina child support Orders are subject to wage withholding. However to be clear the law specifically states the following:

  1. All child support orders done DSS / Child Support Agency issued or modified after October 31, 1990 are subject to immediate wage withholding. AND
  2. Child support orders, not made through the Child Support Enforcement Agency that were issued or modified after January 3, 1994 are subject to immediate wage withholding.

My child support order is paid through the court is that the same as wage withholding? NO. Immediate wage withholding is not automatic wage withholding. Depending on the language of your order, wage withholding may not be allowed at all. Also, your order may indicate that the payments be paid through the court. Often Family Court Judges like to see a few missed payments before they will require wage withholding. Support is often paid through the court or directly to a receiving party and after payments are missed the receiving party can take steps, discussed below, to enact wage withholding.

What if I have an out of state Child Support Order, can that be enforced through South Carolina Wage Withholing? Yes, the Uniform Interstate Family Support Act requires all employers honor income withholding orders from all other states. Payments should be sent to the registry or court indicated on the notice sent by that state. An attorney can help you understand this complicated situation.

How can I avoid wage withholding? Depending on the circumstances, almost any person receiving support can have wage withholding put into place if they do the paperwork correctly. South Carolina has allowed two circumstances where the paying party can protect themselves from surprise wage withholding.

  1. If one of the parties demonstrates and the court finds that there is good cause not to require immediate income withholding; or
  2. A written agreement is reached between both parties which provides for an alternative arrangement.

Does the support have to be in arrears before it can be put into wage withholding? This depends on who is enforcing the order.

1. If the order is an order which is enforced by the Department of Social Services- DSS- or The Child Support Enforcement Agency- or was ordered by one of those entities, then the order DOES NOT NEED TO BE IN ARREARS to be subject to wage withholding. A receiving party can go at any time and request the support be withheld from the paying party’s wages.

2. If the order is a private order or one NOT through DSS/ Child Support Enforcement, AND the order is not paid through the court, then: The person who owes the support must be found delinquent in an amount equal to three months of support or more, usually through a Rule to Show Cause. AND The Clerk must order the wages enrolled for wage withholding immediately.

NOTE: Even if the person paying is completely caught up at the time of the hearing on any arrearages, wage withholding may still be ordered depending on when the payments were made.

 What does wage withholding mean for employers? South Carolina Code requires employers to comply with wage withholding requests which come through the Clerk of Courts from any of the 46 counties or from the Child Support Enforcement Agency from this or any other state. The employer must determine the conversion of the order to comply with the particular employer’s pay schedule for the employee subject to withholding as well and other requirements. If you are an employer, or work for an employer, and receive and request for wage withholding, contact an attorney as soon as possible to discuss how to handle this situation to avoid any liability on your part for failure to comply.

What part of my income can be withheld through child support? Are my bonuses subject to withholding?

Income for this purpose including regular pay, any form of payment to an individual regardless of source including, but not limited to, wages, salary, commission, bonuses, compensation as an independent contractor, workers’ compensation, disability, annuity and retirement benefits, payments made pursuant to a retirement program, interest, and any other payments made by a person or an agency or department of the federal, state, or local government.

INCOME EXCLUDES:Public assistance payments and amounts required by law to be withheld, including, but not limited to, federal, state, and local taxes, social security and other retirement deductions, and disability contributions; NOTE: other than creditor claims are secondary to your child support being withheld- your child support will take primary importance and be paid out first.

What if the wage withholding causes me to lose most of my income? What is there is more than one child support wage withholding order for me? What if my child support is greater than my paycheck?

You should still be able to earn enough money to live with the amount that is determined to be appropriate allowing you to still retain 50% of your net disposable income after they deduct all withholdings.  South Carolina Laws as well as the Federal Laws require withholdings for child support to be first in line, and take priority over ALL other income withholdings. Employers must withhold the entire amount of child support indicated by the notice given to them UNLESS  the amount on the notice would be greater than 50 percent of the employee’s net disposable income. This can be very complicated but the notice should explain how to calculate all withholding and how the net disposable income is determine.

If there are multiple orders, an employer must make sure that all orders are complied with. Current ongoing support orders shall be complied with BEFORE arrearages are dealt with through withholding.

How is an order of withholding be terminated or suspended?
1. The Clerk of courts may terminate or suspend the order if they cannot locate the person who is to be paid. Once that person is able to be located or provides a new address the withholding would restart after the person paying is given notice.
2. The person paying may petition the court to terminate the withholding but they have to have one of the following reasons and a judge must grant the termination of the withholding:

– There is no longer a current order for support AND all arrearages are paid OR
– The person paying meets the requirements for some alternate arrangement AND withholding has not been terminated previously and then later restarted.

NOTE: IT IS YOUR JOB TO TELL THE COURT/ YOUR JOB THAT YOUR CHILD IS 18 OR YOU HAVE FINISHED PAYING YOUR ARREARAGE OR THEY WILL CONTINUE THE WITHHOLDING AND YOU WILL NOT GET A REFUND.

Forms  for DSS actions ONLY can be found at https://dss.sc.gov/content/library/forms/files/27126.pdf

FOR MORE INFORMATION CONTACT THE POWERS LEGAL FIRM, LLC FOR A CONSULTATION 843.261.7025

 
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Posted by on August 21, 2013 in Uncategorized

 

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South Carolina Pet Trust, Putting your Pet in Your Will

Are you concerned about your dog, cat, parrot, turtles, or other pet when you leave this earth?

South Carolina law provides for the welfare of your pets or animals even after you have left this earth. Although you may not be here to take care of your pets you can appoint someone, or ask the court to appoint someone, to care for your pets. You can provide for this in your will. If you do not make a will, probate court will decide what happens to your assets. Generally the probate court will not make a pet trust for your pets or care for your pets in any way if you die without a will. Your friends or family would have to willingly take up caring for your pet, possibly adopt them. If no one is here to care for your pet they may end up in the custody of an animal shelter.

However, no matter how young or old, you can always make a will that will provide for your pets. South Carolina law provides that you can put language in your will to provide for your pets, through what is commonly known as a pet trust. This would require your will allowing for your personal representative to set aside a portion of your estate in the form of a trust t care for your pet. A trust is money or land held for the benefit of another person. In this case you would be putting aside money for the benefit of your pet. This money would be controlled by someone who would be the administrator of the trust and would be given to whoever was caring for the animal for the animals benefit.

If you are concerned that someone might mistreat your pets after you have passed away, the South Carolina law provides that ANY person who is concerned for welfare of the animal can petition the Probate Court to appoint or remove someone to care for your pet.

The S.C. Annotated Code states that the pets do not have to be alive at the time the trust is created. The law even provides for your pets little ones if they are pregnant. A pet trust, depending on the language in your will, will stay in effect until the last pet dies that was either in gestation or alive at the time you passed.

For more information on how to set up a pet trust so that your pets are cared for in the event something were to happen to you please contact and attorney who has knowledge of this area of law. We have several attorneys at our firm who would love to help discuss your options with you.

 

Visit our webpage at http://www.thepowerslegalfirm.com for more information on how to contact us. 

 

 
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Posted by on August 17, 2013 in Uncategorized

 

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