Frequently Asked Questions About Our Family Law Legal Services in Greenville, South Carolina

1. Is this your agreement

2. Do you believe it treats both of you fairly

 (Keep in mind you may not like all of the agreement, but overall, do you believe, under the circumstances as they exist today or at filing, that it is fair)

3. Do you believe there was full financial disclosure?

 (E.g., have you both filled out financial declarations? If not, do you believe you are sufficiently aware of the other’s income, assets, and debts to be able to say that you think the agreement to be fair?)

If your case also involves a divorce on a one-year continuous separation, the following questions will be asked:

Usually, the Court will ask you, before starting the hearing, whether there is any possibility of reconciliation.

When did you separate?

Have you remained separated continuously since that time, without reconciliation or cohabitation?

Are you asking the Court to grant you a divorce based upon a one-year continuous separation?

If your maiden or former married name is being resumed, you can expect the Court or your attorney to ask you questions similar to the following:

• Do you desire to continue using your maiden or former married name?
• Are you doing so to avoid creditors?
• Have you filed for bankruptcy in your current name?
• Are you doing so to avoid criminal prosecution?
• Are you aware of any warrants out in your current name?
• Have you had your driver’s license suspended in your current name?
• Are you listed with the state for abusing or neglecting children?
• Are you under an order to pay support (alimony/child support) in your current name?
• Are you on any terrorist watchlist?

PREPARING AFFIDAVITS

In obtaining “affidavits” the Declarant (person giving the statement) should provide the information indicated below.  All affidavits should be double-spaced, typed, signed, and notarized, and should be based on the individual’s first-hand observations and not hearsay. 

If preferred, you may also write or have witnesses write affidavits and forward them to me prior to your hearing for review, comments.  They will be emailed back and will then need to be printed, signed and notarized.  

For your convenience, and that of your witnesses, we have notaries in our office.

1. Their name, relationship if any to the parties, length of time they have known the parties. (I.e., I, Declarant, have been a good friend of Mary for approximately 10 years since we met at work.  I have known John since they got married and attended their wedding”.   OR “I, Declarant, have been John’s stepmother since marrying his father 3 years ago”. 

2. They should also indicate the amount of contact they have with the parties and if a custody dispute, the amount of time they have observed the parties with the children (i.e.,: As their neighbor, I am at John and Mary’s house approximately 3-4 times a week or talk to them outside approximately 3 or 4 days a week for 20-30 minutes at a time”.  OR: “ Although I live in Tennessee, we vacation together with our families every July for a week and spend the Christmas holidays together”.  OR: “I see John at work every day and his family at the holiday party and company picnic twice a year”. 

Please note: the less the person has contact with the parties, the less impact their statements usually have, especially in the custody arena unless they have observed some serious behavior. 

3. The party should indicate what they have observed, as opposed to being “conclusory”.  In other words, saying John or Mary is a good parent is not what we are looking for.  We want the Declarant to provide their observations to the Court so that the Judge reaches the conclusion that John or Mary is a good parent.

Examples:

Conclusory:

“John is active with his children.”  

Better:

“John coaches his son’s soccer team every fall, and has gone camping with and actively supervised his son’s boyscout troop.  I see him in their yard approximately 2 days a week when the weather is nice playing catch.”

Conclusory:

“Mary is concerned about her children’s education”.

Better:

“Mary began reading to her son prior to his starting kindergarten, teaching him letters, numbers, colors and shapes.   I have personally observed her ensuring he does his homework on many occasions when I have stopped by during the week.  I have personally observed her son go to Mary, not John, when he has a question about his homework”

Conclusory:

“John teaches his children responsibility”

Better:

“I have observed John teach his children responsibility by asking them if they have finished their homework and requiring them to do so before they begin playing their video games.  He has also gently reminded them about feeding their dog and changing the hamster’s cage”. 

4. In custody cases:  Other important matters that should be brought out and developed by persons with knowledge: which parent is more involved on a day to day basis with getting the child up, getting the child ready for school, transporting child to activities and school and doctor appointments, attending PTA meetings; enrolling, attending and cultivating the child’s activities (sports, musical, religious, social clubs); choosing, setting and taking the child to doctor appointment s for regular check ups and for sickness or illness; if the child has any specific medical problem, which parent has the most knowledge of the matter and knowledge of how to care for the problem (i.e., breathing machines, feeding tubes, insulin shots); does either parent have any special gifts or knowledge that makes them the better parent?  Does either parent have any specific defects or problems that make them the lesser choice (i.e., criminal record, drug use, alcohol abuse, mental illness, suicide attempts, anger problems directed to the child or parent in the presence of the child), lack of patience with the child, cursing around or at the child, or belittling the child (you’re stupid, you don’t know anything, you’re fat, etc.”  

Also, since separating or in anticipation thereof, has either party acted in such a manner which is not in the child’s best interests, i.e., pulling the child out of school early, putting the child in the middle of verbal or physical altercations, cutting of utilities or other financial support for the child, exposing the child to immoral activity.

5. Regarding fault based matters in divorces: the 3 fault grounds are adultery, physical abuse and habitual drug use or drunkeness

If the person does not have first-hand observations of any of the above, then most likely they know what they know from hearsay.  Hearsay is not allowed in affidavits.  However, if the at-fault party has admitted to any of the fault grounds, that is an “admission against interest,” which is admissible.  These can be used also in the custody-dispute cases, i.e., if a parent has admitted that they feel they are not patient with the children, that they are not a good parent, or the like. 

Adultery: Obviously, most witnesses are not going to have personally observed the at-fault party having sexual relations.  The 2 elements of proving adultery are:

1. Likelihood or propensity of the party to commit adultery: them being seen out in public, openly affectionate (hugging, kissing, holding hands).  Other indicia: copies of emails, love letters, receipts for flowers or jewelry or intimate products not used in the marriage, cell phone bills reflecting high amounts of contact and at unusual hours (late at night when not at work)

2. Opportunity: spending the night, by themselves, or at least several hours alone in private

Habitual drunkenness:  How much, how often, DUIs, missing work, medical or other issues relating to alcohol use. 

Physical Abuse: must be enough to put the person in reasonable fear of life or limb.

6. Address financial concerns and property issues, such as use and possession of home, vehicle(s). 

If the biological parents agree to change a child’s name, it is considered uncontested, and the name change will typically be granted. However, the Court still requires the appointment of a Guardian ad Litem to represent the child’s interests, which results in additional costs.

What is this “marital history” that my attorney is requesting?  It is essentially a comprehensive background of your marriage,  as well as both of the spouses’ (or parties’, if not married)  backgrounds.  

Why is my attorney seeking this information?   This is the easiest, least time-consuming way of informing your attorney of important facts in your case.  Your case is very fact-driven.  Questions of custody, alimony and equitable division, as well as other financial matters, revolve around details of your marriage and background. 

What is it used for? At a temporary hearing, which is usually a short 15 minute hearing (perhaps longer, depending on the issues before the Court and/or other factors, such as the COVID-era if your hearing is being done by video), the Court bases its decisions upon Affidavits (see my other blog ‘How to Write an Affidavit’).  

 What is an Affidavit? An Affidavit is a statement made by a person (witness) who has first-hand knowledge of the facts to which they are attesting.  It is done in written form.  The Court prefers that these be double-spaced, typed, 12 font, with an inch margin on each side.  They must be signed and notarized (exception currently existing during COVID, the attorney can give you the proper certification language and we will need a copy of each person’s driver’s license who is preparing any statement). At your first hearing, usually referred to as a temporary hearing, we are usually limited to either 8 pages of Affidavits, the attorney often needs substantially more information in order to provide effective representation, not only now, but for the duration of the litigation.  To that end, the attorney does not want the client to limit the “Marital History” document to any page length, but to provide as much information as they can so that the attorney can have full knowledge of what is or may be relevant to the issues before the Court.

There is always the potential that in providing a list of what should be included in such a statement, it may not be complete or exhaustive of each case’s important matters or details.   Accordingly, if there are other facts that you believe may have some impact on the issues, please share those details as well.  

Look over your “pleadings” (a Complaint is filed by a Plaintiff, an Answer and Counterclaim is filed in response by the Defendant).

What kinds of issues are in your case? You should also look over any “Motions” (may say “for Temporary Relief” or “for Pendente Lite Relief”).  These “motions” specifically set forth what the Court is being asked to rule on at the hearing.   Your “marital history” should definitely address these issues.

Does your case involve a fault-based divorce, such as adultery, physical abuse, habitual drunkenness or drug use?   If so, provide details, including what proof, if any, you may have.  If there are witnesses, indicate who these person(s) are and if they are willing to assist with proving the issue at hand.  Provide any additional documentation/photos, affidavits from third parties, or whatever form of evidence you may have to prove your grounds.

Does your case involve alimony? If so, you should be aware of the factors that the Court uses to address alimony and address each of them as fully as you can.   Are there issues pertaining to division of property and debt?  There are also specific factors the Court uses to equitably divide assets and liabilities, some of which are the same or similar to the alimony issues.   Contact the office for a list of these factors. 

Does your case involve custody? If so, you should provide as much detail about the care of the child/ren since their births.  Why should you be awarded custody as opposed to the other parent? Is there anything in particular about the other parent that makes them “unfit” to have custody? If so, provide details and indicate what proof, if any, you have to back up your statements if there is any proof.   You can also ask us to provide you with the list of factors the Courts look at in a custody case. 

If you have any questions, please do not hesitate to contact us when preparing the marital history.  Please forward a copy via email to Linda@HayesLawyers.com and to Shelley@HayesLawyers.com so that we may review it prior to your appointment that we make to prepare for Court.

The other important document that you will need to prepare for a hearing is a Financial Declaration.  If you do not already have one, you can obtain one on our website and/or by contacting the office, at 864-233-3100.