Our attorneys handle both contested and uncontested divorces in Charleston, South Carolina. With some divorces the husband and wife are looking to go their separate ways without the expense and heartache of fighting with each other in family court. These couples usually wonder whether they need to hire a lawyer or each hire their own lawyers to get divorced. They know they need to bring their case to family court, but they do not know the process from there.
When is a Divorce Uncontested in South Carolina?
There are many issues for couples to consider if one or both want a divorce. If there are children, they need to address custody, visitation, support, and other details regarding the children. Marital property needs to be divided. Marital debts need to be apportioned. They need to decide whether one party will pay alimony to the other or whether they will both waive alimony. These are just some of the issues depending on the particular situation. If the parties are in full agreement on all of the issues, the divorce is oftentimes called “uncontested.”
What About Do-It-Yourself Separation Agreements in South Carolina?
There are plenty of free, and paid, online separation agreements. To be fair, some of these forms a not bad at all. However, when it comes to a divorce, one size doesn’t fit all. Your needs, your spouse’s needs, and your children’s needs are unique. In the end, you will be better served to speak with a lawyer about your situation before trying to cram the future of your family into a template separation agreement. Here’s just one of many examples why template divorce agreements don’t always work. In South Carolina, there are inheritance rights for a spouse when their husband or wife dies without a will. Just because you have a separation agreement doesn’t mean that these inheritance rights go away if the other spouse should die before the divorce is finalized. In the template forms I’ve seen, none of them address this issue. Again, this is just one of many examples of the short-comings of separation template forms.
Do You Need to Hire a Lawyer for an Uncontested Divorce in South Carolina?
It’s possible to obtain a divorce without a lawyer. However, we’ve had clients come to us in the past because they attempted the process and found themselves unsuccessful in court. There are several procedural requirements that must be met. The paperwork must be correct. For example, both parties must have financial declarations on file. Also, even if you think the agreement you’ve come up with is a good one, the family court still has to decide whether its fair and equitable to both parties and in the best interests of any children involved. If you choose to attempt this process on your own, we strongly encourage you to at least schedule a consultation so that you know your rights and have a better understanding of the process in family court. The consultation could actually save you time and money in the long run.
Additionally, oftentimes when we review an agreement that spouses have written, we spot details that neither spouse thought of. When this happens, we can likely help with a solution. Here are some examples:
1) Marital Home – In some cases, both the husband and wife are on the deed, note, and mortgage of the marital home. Although they decided that the one of them will keep the home and be responsible for the mortgage payments, they forgot that they are both remain obligated to the bank, so the other spouse can’t get a loan to buy a new home. The solution may require that the spouse keeping the home refinance the loan within a reasonable period of time, otherwise the house would need to be sold.
2) Parenting Schedule – As another example, the couple may have come up with a great parenting schedule that works for a pre-schooler, but they haven’t given thought to what schedule works best for everyone when the child enters school. In this instance, the family court may send you back to the drawing board to figure out a new parenting schedule. We can help you figure out a schedule that works both now and in the future.
3) Tax Consequences – In other cases, there are tax consequences to how property is transferred, support is paid, and other taxation issues that neither spouse considers when coming up with their agreement. When we advise our clients, we make them aware of how their agreement may impact them with the IRS in the future.
There are just three of many examples of where an uncontested divorce should remain uncontested, but the separation agreement needs a little fine tuning.
Can One Attorney Represent Both Parties in an Uncontested Divorce?
One attorney can’t represent both the husband and the wife. In 1981, the South Carolina Bar’s Ethics Advisory Committee issued an opinion stating: “The position of the [husband and wife] in a divorce action are inherently adversary. We conclude that an attorney could and should not represent both.” However, we’ll give advice to the spouse that hires us and we’ll prepare an agreement according to that spouse’s wishes. We will send the agreement to the other spouse and ask if that spouse proposes that anything be changed. We will not provide any advice or substantive representations to the other spouse, except that we will encourage that spouse to have the agreement reviewed by his or her own lawyer. Otherwise, we deal with the pro se (doesn’t have a lawyer) spouse fairly and professionally. After all, we want (and encourage) your divorce to remain uncontested.