Part of Real World Divorce: web edition | Kindle edition
Our questions about South Carolina law were answered by Melissa Brown, an attorney since 1991. She started her career with a prestigious judicial clerkship and eventually founded her own family law practice. She has been handling divorce cases for more than 20 years. Brown has been recognized as a "Super Lawyer" and is a fellow of the American Academy of Matrimonial Lawyers and of the International Academy of Matrimonial Lawyers. She has published journal articles and taught classes on family law for attorneys and judges. See http://scdivorcelaw.com/ for a full biography.
As in most other states, going to a full-blown Perry Mason-style trial in a divorce lawsuit is rare in South Carolina. Brown handles about three or four of these case per year and they are typically two-day procedures, though trials can take as long as ten days. Brown was able to give us a more precise answer regarding time from filing to trial than were attorneys in most other states: "The [South Carolina] Supreme Court has implemented a 365-day rule. If you do not request a final hearing [trial] before 365 days run, the entire case is dismissed and all temporary orders are vacated." Does that mean South Carolina courts are much more efficient than those in other states when it comes to managing discovery? "No," said Brown. "The 365-day limit is not sufficient for complex cases where much time is necessary for custody evaluations and business valuations. Some cases can't move that quickly, and the clock may stop for settlement discussions." Do cases actually get tossed out and the parties forced to start over? "Yes," said Brown. "I don't know whether it is constitutional or not and I strongly disagree with this rule."
What about obtaining exclusive use of the house and a schedule for the children before the final trial? "We have a temporary order process," said Brown. "There is usually a 15-minute hearing within four weeks of a case being filed. It is decided based on affidavits and attorney argument. There is a limit of 8 affidavit pages plus exhibits." Is that sufficient for all cases? "No. In those instances where issues are more complex you can request the court to deem the matter 'complex' and submit lengthier affidavits and make longer arguments," said Brown.
Will a judge typically order exclusive use of the house for one party, or let the litigants stew together for a year? Brown explained that the question didn't make sense in South Carolina. "Our law is very clear: the only time you can file a divorce or separate maintenance lawsuit when you're living with the other party is if it is a fault-based action such as adultery. Otherwise, if dad refuses to leave, the mom has to move out temporarily before she can file a no-fault divorce action."
Is there a presumption of joint custody at the temporary order stage? "No," said Brown. "The judge will read affidavits and pick a primary parent. The judge will then appoint a guardian ad litem (GAL) and ask the GAL to do a preliminary report to see if the facts presented were accurate. Our judges don't award 50/50 custody because it is difficult for the children and one parent will be trying to find another home." Which parent is that? "The parent who gets the kids is usually awarded the house," said Brown. "The other parent will get liberal visitation." What does "liberal" mean? "It could be access at any of the child's sports practices, a weekend from Thursday night to Monday morning, and maybe Thursday night during the off-week." Is "liberal visitation" automatic? "No," said Brown. "It is ordered when the parents get along and recognize each other's value to the children."
Aside from the parties' own affidavits, what kinds of affidavits might a judge be looking at during a temporary hearing? "There could be an affidavit from third parties such as teachers, neighbors, vocational experts, forensic financial experts," Brown said. "And, if it is an emergency hearing, for which only five days of notice must be given, you won't see the other side's affidavits until you walk into the courtroom.."
What kind of monetary relief can be obtained at the temporary hearing stage? "The judge has the authority to order temporary attorneys fees and costs," said Brown, "as well as discretion to order a percentage of the other parent's net income."
Judges, who are selected by the South Carolina State Legislature rather than elected by popular vote (see neighboring Georgia), are dedicated to family court but do not stay with a case from filing through trial.
With such powerful and relatively quick temporary orders, do South Carolina plaintiffs refrain from using the domestic violence system except where there is true physical abuse? "No," said Brown. "People do go to court for an Order of Protection from Domestic Abuse to get a leg up in a divorce case." Does it work? "Sometimes," said Brown. "But you can win the battle and then lose the war."
A parent who wins custody in South Carolina can collect child support until the child's 18th birthday, with the possibility of an extension to high school graduation but not beyond the 19th birthday. Brown says that consumers can use the state-published online calculator to come up with an estimate of likely child support payments, but attorneys and judges typically use a computer program called "Traxler's Child Support Calculator." The South Carolina guidelines are intended to apply to combined parental incomes from $750 per month (pre-tax) up to $30,000 per month ($360,000 per year). They suggest that for people who earn less than $750 per month, the child support obligation should be determined on a case-by-case basis but be "no less than $100 per month" (i.e., South Carolina does not have a "self-support reserve" concept as do some other states). When the parents earn over $360,000 per year, child support is also supposed to be determined on a "case-by-case basis" but Brown says that judges usually extrapolate from the guidelines using "a formula created by several forensic accountants based on what North Carolina does." What's the largest award that she has seen in an unmarried case? "It was over $50,000 per month," she said, "but was reduced after a motion for reconsideration. Child support is not supposed to be so large that the unmarried mom never has to work again."
Some direct expenses of the child, such as daycare and health insurance, are usually ordered on top of the guideline child support amount. Courts can also order a parent to pay for college: "Look at Risinger v. Risinger," said Brown. "A divorcing or divorced parent can sue for college support, though the child must be qualified to go to college and must exhaust all scholarships, loans, grants, and work-study programs." Is there any limit? "It depends on the parent's ability to pay and courts also look at the cost of the most expensive state-supported institution. A judge wouldn't require paying the costs of attending Harvard."
"More than 109 overnights" is the threshold at which a custodial parent may be at risk of reduction in child support due to a judge's use of a shared physical custody worksheet. The formula starts by multiplying the basic child support obligation by 1.5. In other words a child who spends 110 overnights with the father is considered to cost the two parents 50 percent more than if the child spent 109 overnights with the father. After that, the costs are apportioned according to income and the child support funds are distributed according the time spent with each parent. It appears that the drafters of the guidelines noticed the cliff at 110 overnights and patched the system with a "graduated support obligation" for when the child is with the noncustodial parent for between 110 and 127 overnights. When one parent has substantially all of the income and the child's schedule is 50/50, child support works out to 75 percent of what it would be in a sole custody situation. Note that this reduction is discretionary with the judge.
The overall level of child support in South Carolina is in line with national averages. Suing a parent earning $250,000 per year yields $18,816 per year in tax-free child support for a single child. That's higher than the $13,000-per-year cap in Nevada, but lower than the $40,000-per-year standard award in Massachusetts.
Once established, a stream of child support revenue in South Carolina is moderately secure. To ask the court for a new schedule, which might result in a change to child support cash flow, a parent needs to show a "significant change in circumstances." According to Brown, a child growing up from toddler to elementary school age might be considered a "significant change." The child's preference regarding custody begins to be considered starting at age 11. A court can order the parent paying child support also to purchase a life insurance policy for the benefit of the recipient, but Brown notes "sometimes judges will increase alimony and have the wife become the owner of the policy."
Brown said that a "walk-away" prenuptial agreement, in which parties kept separate property separate and waived alimony, would be valid in South Carolina, assuming adequate disclosure, representation, and no duress (pressure to sign) at the time of execution the document.
Compared to litigators in other states, Brown was more sanguine about the practical value of appeals. "I have seen custody reversals on appeal if a lawyer made a really good record," she noted. Does that mean it can work for more custody lawsuit losers? "Not necessarily," said Brown. "Lawyers who don't try many cases have trouble creating a good record for appeal."
The average hourly wage in South Carolina is $18.61 per hour. Census 2014 data show that the median income for a 22-36-year-old college-educated woman working full time is $34,000 per year ($25,025 after taxes). The corresponding man earns $50,000 ($35,256 after taxes). Attending the University of South Carolina in Columbia will cost $96,640 over fours years. According to the Tax Foundation, South Carolina collects 8.4 percent of state residents' income to run state and local government, lower than the national average of 9.9 percent.
The average annual cost of child care is $5,855 for an infant and $5,455 for a four-year-old. The total cost of child care from age 0 through 12 is about $34,365 in commercial settings or $26,247 in a family care setting.
The male college graduate will have an after-tax spending power of $413,884 after 14 years of working (14 years of income minus taxes and the cost of college). Adjusting for USDA-estimated costs of caring for a child, he would enjoy a larger personal spending power by collecting child support when that support is $2,666 per month or more. This is an above-guidelines number that would require suing a mother earning at least $360,000 per year. With two children from two different mothers he could have an after-tax spending power larger than from going to college and work if each mother paid $1,708 per month, which is possible when each mother earns $282,600 per year.
The female college graduate will have an after-tax spending power of $270,650 over the same time period. She would be better off collecting child support when that exceeds $2,003 per month. This can be obtained from a father earning $351,000 per year. If she is suing two fathers, however, she is financially better off compared to the college/work scenario when she can get $1,376 per month from each one. This should be possible within the guidelines if each father earns at least $201,000 per year.
Among South Carolinians surveyed by the U.S. Census Bureau in 2014, 100 percent of those collecting child support were women.
A 35-year-old female hand surgeon earning $325,000 per year marries a 33-year-old photographer. She sets up her husband with a photo studio and $100,000 of equipment, but he works just a few hours per week. They have a one-year-old child who is cared for by a nanny. The father is often home with the baby and nanny, but he spends most of his at-home time watching TV and surfing the Internet, leaving the child-rearing chores to the nanny. With the mom at work and/or taking care of the baby, the dad begins an affair with a young fashion model. After two years of marriage, the mom sues for divorce, custody, and child support.
What will the child's schedule look like? "If the child is nursing, there will be frequent short visits but not necessarily overnight with Dad." With a child who is a year old and a mother who works full-time, how much longer can the nursing continue? "It depends, but if the Dad can prove Mom is extending breastfeeding to win sole custody and keep the child from Dad," said Brown. "certainly would not tolerate such behavior by one of my clients."
Brown explained that a vocational expert would testify regarding the father's ability to work and income would be imputed to him based on that expert's testimony. If income were imputed at $35,000 per year, for example, they would have a combined child support income right at the top of the table ($360,000). His share would be about 10 percent of the $2,043 per month, so he would pay the mother about $200 per month or $2,400 per year. The mother will have approximately $416,772 more in after-tax spending power if she wins rather than loses custody.
Is South Carolina like some other states where attorneys have told us that custody cases tend to be resolved differently by judges in rural versus urban areas? "Yes," said Brown. "You're more likely to see an award of sole custody to the mother in rural areas."
A 22-year-old woman marries her 22-year-old college sweetheart. After 14 years of marriage, they have four children, ages 3, 7, 9, 13. Both parents are public school teachers earning approximately $65,000 per year. They have shared child care duties roughly equally over the years. Now they can't stand to be in the same room together. He accuses her of having an affair. She accuses him of being verbally and emotionally abusive to her, but not to the kids. After a stormy argument in the kitchen, he moves in with a friend and she files for divorce, requesting sole custody and child support. The father answers the Complaint by requesting sole custody, but no child support. Both parents agree that the marital assets can be split 50/50. Both parents prefer as little post-divorce contact with the other as possible.
What if both parents storm into court demanding to be designated primary, could a court impose 50/50 custody on them anyway? "Typically judges don't like a pure shared custody arrangement for two people who don't get along," responded Brown. "If it were just the 9- and 13-year-old the parents wouldn't have to communicate quite as much. With a 3- and 7-year-old there's packing the bags. It's too complicated." How would the judges manage the conflict between the parents? "First, the exchanges would be at school," said Brown. "Our judges would also punish the parents by sending them to parenting and anger management class."
When parents have been pretty equal partners in rearing children, how will the judge finally decide which one to favor with custody and the child support cash flow? "What I have found is that judges favor the parent who encourages the other parent to have time with the children," said Brown.
How about legal custody and decision-making? "Judges can split up decision-making by issue," said Brown, "such as education, health, religion, and extracurricular activities, and also impose a requirement to consult with the other parent who then has the right to insist on mediation and ultimately court. I've never seen joint legal custody when sole physical custody is awarded."
In a 50/50 custody arrangement, due to the equal incomes the parents would not pay each other. If one parent were to win primary custody, he or she would receive $12,570 each year from the loser, a total of nearly $200,000 over the next 15 years.
An 18-year-old woman marries a medical resident. She spends the first four years of the marriage as a college undergraduate, earning a bachelor's degree, and then becomes a stay-at-home mother to two children. She files for divorce after 10 years of marriage. The kids are 5 and 2 years old at the time the divorce commences. The plaintiff does not allege any misdeeds on the part of the father, only that they drifted apart in the time that she aged from 18 to 28. The mother has very obviously been the primary caregiver. The father has now completed his medical training and is earning $275,000 per year. The family has home equity of $300,000 and additional savings of $200,000.
Brown expected the mother to win the primary parent designation, child support, and alimony until the youngest child enters third grade, possibly with a reduction upon the youngest child entering first grade.
Can the mother get more than a 50 percent property division based on her lower earning potential? "No," said Brown, "because he earned all of the money she can't get more than 50/50. South Carolina is an equitable distribution state, not community property."
Brown said that alimony would be "significant" but there is no formula. Guideline child support for two children at $275,000 per year is $28,416 per year, tax-free.
A 25-year-old woman marries a 40-year-old never-married medical doctor earning $275,000 per year. She had been earning $50,000 per year working as a receptionist in a medical office. She has a child after a year of marriage, quitting her job during the 7th month of pregnancy due to fatigue. She files for divorce when the child is 8 months old (after 1.75 years of marriage), alleging that the father did not participate in the infant's care, e.g., he did not change diapers or get up in the middle of the night to soothe the baby. The mother will allege that the father was verbally demanding and abusive, though there won't be any witnesses to corroborate. The father had savings of $2 million that he accumulated prior to the marriage but there was no significant accumulation of assets during the less-than-two-year marriage. The mother seeks a division of assets as well as alimony.
"Being primary caretaker for eight months will likely be the determining factor in the custody lawsuit, based upon the status quo," said Brown. "She wins the [custody] lottery." Assuming that the dividends and interest on the $2 million in savings push the doctor to the top of the child support table, the mother here collects approximately $425,000 in child support over the next 17.3 years.
Can she get a division of the $2 million? "No," said Brown. "Even the appreciation on the $2 million is non-marital."
An 18-year-old woman goes to a music festival and meets a 38-year-old medical doctor earning $275,000 per year. Things get a little crazy and a few months later she calls him up to say "I am going to have a baby." The 18-year-old does not go to college, quits her $12/hour job during the pregnancy, and does not wish to return to work.
"I work on these cases more than I would like to," said Brown. What's an example? "A doctor got a nurse pregnant at the same time he got his wife pregnant. It was a little awkward since both of them were married." How was it resolved? "We terminated the doctor's parental rights. The nurse's husband adopted the child. The nurse got a new house."
What about in our hypothetical? "She is presumed to have custody and he would get visitation on the same schedule as if they had been married," Brown said. "She will get guideline child support [$362,232 over 18 years]." Will her child support be affect if she marries a high-income husband? "No," said Brown.
Can the mother go to a state agency rather than hiring an attorney? "Absolutely she can go to South Carolina Child Support Enforcement Division and pay $1."
South Carolina calls it "relocation" when a parent wants to move with a child. "It is easy for a custodial parent to move," said Brown, "and becomes harder when there is joint legal custody. Look at Latimer for the standard. The reality is that you can't cut the child in half and it is much harder to relocate when a 50/50 schedule is in place."
We looked at Latimer v. Farmer (2004). This superseded a 1982 decision that had established a presumption against relocation. Latimer establishes a four-part test:
Note that this puts South Carolina in company with a handful of states that consider the custodial parent's interests, not simply the child's interests. (Note also that the "quality of life" for the left-behind noncustodial parent is not a factor.)
While on the one hand South Carolina wants litigants to complete their divorce lawsuits in a year, the state makes divorce litigation vastly more complicated than in jurisdictions where income as reported on tax returns is used. South Carolina litigants can argue over whether a parent has "assets available to generate income for child support" and "the reasonable earning potential of any asset at its market value" and "an appropriate method of computing income [from such an asset]." The court is also supposed to impute income to non-income producing assets such as "vacation homes" and "idle land."
Welfare benefits, including cash, housing, medical care, and food stamps, are not considered "income." The parent who wins custody of children also wins freedom from having income imputed to him or her, at least when the children are young.
When a self-employed person is sued, a new realm of litigation is opened. Instead of using the income as calculated for taxation under IRS rules, the child support guidelines invite litigation over whether each expense is "ordinary and necessary" and how each capital expenses should be accounted for.
Children of the same parent have different cash values, depending on when each co-parent filed a lawsuit. The first child support order is deducted from "gross income" used to calculate the second child support order, and so on. Thus each successive child support order is smaller.
Children of a marriage have a lower cash value than extramarital children. When suing a married parent of three, for example, a child support plaintiff will get less money than if a single childless defendant had been sued. However, the reduction in gross income for the three children of the marriage is calculated by using the child support table and then reducing the amount by 25 percent. For example, at the top of the table, three children are entitled to $3,318 per month in support. This number is reduced to $2488 per month and then subtracting from the defendant's income. The single child who is the subject of the lawsuit then yields approximately $1,916 per month in child support, 2.3X as much per child as the three marital child.
South Carolina provides cash incentives to have children with multiple co-parents. At the top of the table, three children with one parent yield $716,688 over 18 years. Three children with three different co-parents have a cash value of $1.32 million.
"My first goal is for couples to reconcile if at all possible," Brown said. "I ask people if they've tried counseling. Marriage is tough and people need to work at it before giving up. It is my greatest joy when a client calls me and says 'we've decided to give it another go.'" What's her main motivation for trying to keep people together when at least one of them was angry enough to consult a divorce litigator? "Potential clients rarely understand how difficult divorce is upon the entire family and children are the innocent victims of it. Custody trials get parents dug in to the point that they will never cooperate. It becomes so unpleasant for the losers that I've had fathers who want to terminate their parental rights."
How does she square this concern for children with the fact that she isn't representing any children? "My ethical duty does go to my client," said Brown, "but on the other hand I'm not required to represent every potential client. Since I am not willing to use a child as a pawn to advance a parent's interest, I ask a potential client 'Does your interest come first or your child's?' If the answer is 'my interest" then I suggest that they retain a different attorney."
Brown expected South Carolina to adopt an alimony formula and also a statutory child support extrapolation formula that would eliminate the need to bring in experts to testify in each high-income case.
Brown was hoping that the 365-day rule and limitations on affidavits and temporary hearing duration would be relaxed or abolished as unconstitutional. "I would like our Supreme Court to stop worrying so much about moving cases, numbers, and statistics and remember that there are human beings in the courtroom. They don't see the harm to families from these procedures because families are bankrupt after a divorce trial and can't afford to appeal. Why should children and families have less right to consecutive trial days than a personal injury case?"