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Sunday
Dec092012

Legal Pad: Child Support Not Always Simple Equation

By M. J. Goodwin, Founding Attorney

Goodwin & Pruette, Attorneys at Law, LLC 

“How much will my child support be?”  I hear this question almost daily at Goodwin & Pruette, Attorneys at Law, LLC, and have heard it for consistently for my 21 year career.  The payer wants to know how much money he or she will have to come up with, while the recipient wants to know how much money he or she can bank on getting.  Parents have both a legal and moral obligation to financially support their minor children.  With separated, often warring, parents Family Court is the place where child support is established and enforced.  South Carolina has uniform child support guidelines, which are used to compute the child support obligations in most cases.  For that reason, many litigants believe, incorrectly, that child support is simply a function of plugging the numbers into the computer.  However, there are many variables that go into the child support calculation.   And changes to those variables can mean changes in the dollars paid or received.  But you need an experienced Family Court attorney to know where the areas that are subject to “wiggle room” are.  

The incomes of the parties are the first area to be considered.  If you are self-employed, this can be a tricky area.  You may need a CPA or financial planning expert to help determine a fair income.  All self-employed persons have a cash flow that is much greater if viewed without consideration of business expenses.   The child support guidelines do not apply to persons with very high gross monthly incomes.  Those cases are decided in the discretion of the Family Court Judge on a case by case basis.  

If you are salaried, what about bonuses?  If you are an hourly worker, what about overtime? What if the other parent doesn’t work or has no income?  Income can be imputed in certain cases.  In fact, the issue of how to impute income and what needs to be a Court’s order regarding imputing income was  addressed by the South Carolina Court of Appeals in the Lewis v. Lewis opinion issued on November 14, 2012.  In that case, the issue of child support was remanded to the trial court because the order did not have sufficient findings of fact regarding the imputation of income.  

You will need an attorney to help you put forth a compelling case that the figure you want to use is the correct figure.  Having your income calculated correctly is important whether you are paying or receiving child support.  

The amount of time that each parent spends with the children is another important piece of the puzzle.  Worksheet A will yield a larger obligation on the part of the payer, based on a standard visitation schedule.  Worksheet C, the shared custody worksheet, provides for payment of a lower amount based on increased time spent with the parent paying child support.

Money spent on work related daycare and on the minor child’s health insurance expenses are also important considerations.  If a child is kept by a relative, but a daycare expense is claimed, whether or not the expense claimed is actually paid is important.  Health insurance costs for the child only are also included.  What if the custodial parent wants to use Medicaid and not the available health insurance?  A good attorney can bring that to the Court’s attention and likely get the use of the health insurance ordered, and the child support lowered, using the public policy argument of not having persons on Medicaid unnecessarily.  

Another important consideration is timing.  The Court can only order child support retroactive to the date of the filing of the child support action.  So you cannot wait until your child is five years old and expect a big check.  And if your child’s other parent is telling you that will happen, and you believe it, you may inadvertently pay more than you should by agreement.

Finally, when does it stop?  The general rule is upon the child turning eighteen years old or graduating high school, whichever is later.  There are exceptions to that, such as special needs children.  In some cases, college expenses can be awarded.  Again, being informed is crucial.  

All of these areas can be developed by experienced trial counsel.  Do not take your position for granted.  If you are receiving child support, you want to get as much as the law allows.  If you are paying child support, you want to be sure you are not overpaying.  The only way to do either is to consider all your options.  The very fact that you have a child support case in Family Court indicates that you and the other parent cannot agree on what is fair or how it should be paid.  The distrust that brews in most Family Court cases amplifies the need for legal counsel.  An attorney can help you be certain that the financial information you are provided is accurate.  

As with all legal matters, child support should not be handled without an attorney.  Even a difference of $25 per week will amount to $23,400 over eighteen years.  A difference of $100 per week will amount to  $93,600 over 18 years.   We are talking about significant money whether you are paying or receiving child support.

M. J. Goodwin and Todd Pruette handle Family Court cases of all kinds in the Upstate of South Carolina:  Anderson, Oconee, Pickens, Greenville, Abbeville.  Call 864-375-0909 to schedule a child support consultation. 

**Disclaimer:  M. J. Goodwin, is a partner in Goodwin & Pruette, Attorneys at Law, LLC, which is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909. 

Sunday
Nov252012

Legal Pad: Family Court Rules Changes Make Legal Knowledge, Writing Skills Key

By M. J. Goodwin

www.mjgoodwin.com

On November 21, 2012, the South Carolina Supreme Court made significant changes to the way Temporary Hearings in Family Court are scheduled and heard.  Prior to the changes, the wait time for a temporary hearing was uncertain, extending into months in some counties. Temporary hearings now must be scheduled within four weeks of the filing of the motion.  Prior to the changes, page limits on affidavits submitted were not the norm.   The page limit is now eight (8) pages.

The new rule states that:
“All routine Temporary Hearings shall be allotted fifteen minutes and each party shall be limited to eight pages of affidavits, excluding the Background Information Form SCCA 459 (11/12), proposed parenting plans, financial declarations, attorneys’ fees affidavits, and attachments or exhibits offered only as verification of information contained in the affidavits. Parties wishing to extend the fifteen minutes limit to thirty minutes must request additional time from the Clerk of Court and will not be held to the eight-page document limit set forth herein. Either Counsel of record may upon written request of the Chief Administrative Judge ask that a matter be deemed complex, and if such request is granted, the Judge shall set the temporary hearing for appropriate time to consider the issues.”

So what does this mean if you are considering filing an action in Family Court?  Or if you need an additional temporary hearing in a pending action due to a change of circumstances? The good news is that you should not wait longer than four weeks for your first hearing.  The bad news is that you are severely restricted as to the amount of information you may present the Court.  This may erode your Due Process rights.

In order to protect yourself, be sure that the attorney you choose is experienced in Family Court matters and knows what information is most important to the Court in making decisions.  Litigants no longer have an unlimited page allowance to state their cases.  To have a chance at being successful, you must have an attorney assist you with your affidavits who is knowledgeable and who is an excellent writer.  You cannot afford to waste words.  Handwritten affidavits done by the client or others have never been favored by Goodwin & Pruette, but they are now simply a disasterous waste of affidavit space.  Legal knowledge and writing skills have never been more important.

No guidance is provided by the rule as to what will constitute a “complex” matter, but one can safely assume that will be cases that involve large marital estates or potentially complex legal issues.  Cases of De Facto Parents and Third Party Custody cases come to mind as the type of case that may qualify.  If your case is complex, you have an even bigger need for experienced trial counsel.  You must first get your case designated a “complex” case in order to get the Court time you need and to avoid serious Due Process problems.

The sad reality for many cases is that Temporary Orders often have a way of morphing into Final Orders.  This is simply due to the tremendous amount of time it takes to get a contested case through Family Court in most places.  Temporary Hearings are now more restricted, statewide.  So know what you are doing.  Don’t let anyone tell you that this change doesn’t matter.  It matters and it matters a lot.   

For legal knowledge and effective legal writing skills, contact Goodwin & Pruette, Attorneys at Law, LLC.  We have over 25 years combined experience in Family Court.  Don’t take chances in Family Court.  Contact M. J. Goodwin or Todd Pruette and find out what our firm can do for you.

 M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909. 

Sunday
Nov062011

Legal Pad: Living Wills Need Careful Attention

By MJ Goodwin

Do you have a Living Will? Do you know what it says? If you have one, you probably think that you are saving your loved ones the burden of making a tough decision during tough times.  That was certainly my intention when I signed mine.  But have you considered that the Living Will could, in fact, be a danger to you and possibly cost you your life?  This was not an issue I had ever considered, because I trusted the medical profession to understand the documents.  I was very wrong to do that.  I learned this week that the medical profession is very ignorant where Living Wills are concerned.  

Some basic law is necessary to understand what a “Living Will” is designed to do.  South Carolina has the “Death with Dignity Act”, which can be found in Title 44, Chapter 77, of the South Carolina Code of Laws.   This law allows a person, even while they are young and healthy, to draw up a document that tells doctors, at some abstract time in the future, that the person does not want to be kept alive by artificial means.   It is meant to apply to situations like bad car wrecks that leave a person brain dead and on a feeding tube; or to a stroke that renders a person in what is termed a permanent vegetative state.  It means you don’t want a feeding tube to keep you alive.  This is clearly stated in the state mandated form.  A “DNR” or “Do Not Resusciate” Order is entirely different.  And this distinction is where the danger lies.  

As the name implies, the DNR  designation communicates to medical personnel (whoever that might be, a nurse on duty or a paramedic or a doctor) not to even attempt to restart the patient’s heart or breathing once they have stopped. There are valid reasons to have a DNR.  The DNR  is chosen by patients who are nearing death and have expressed that they do not wish to be kept alive by heroic means. You might see it with a terminal cancer patient, who might be revived, but only for a brief time and only to face a life of extreme pain.  I once had a 98 year old blind, incontinent client who had DNR orders plastered all over his house.  He was ready to go.  I respect that.

You would NOT generally see a DNR designation on an otherwise healthy person.  The problem is that people in the medical field do not seem to know the difference between living wills and DNRs!  A living will is not the equivalent of a DNR order.  Not by a long shot.

This point was driven home to me in a big way this week when my mother suffered a stroke.  My mother is a strong woman and a lifelong advocate for personal responsibility and making one’s own decisions.  She carefully and deliberately read over her living will and signed it in 1997.  She made it clear that if the contingencies listed in the living will occurred, that she would not want to have a feeding tube and be kept alive in a persistent vegetative state.  However, that being said, she never signed a DNR.  

You can imagine my surprise when I found my mother, who despite having had what was described by the neurologist as a minor brain bleed, was conscious and able to feed herself and who had limited speech, to have a DNR bracelet on her arm and a DNR sticker on the door of her ICU cubicle at the  hospital.  After a brief discussion with the ICU nurse, who did not seem to know the difference in a living will and a DNR, I convinced her that a living will is not the same thing as a DNR.  The bracelet was removed and the sticker was taken off the door.  Being a lawyer, I kept the DNR bracelet.  

As the horror of what would have happened if she had “coded” or needed resuscitation before I arrived sank in, I realized how dangerous that living will really is.  It in no way means that my mother didn’t want to be treated for her condition any more than mine means I don’t  want CPR if I have drowned.  The fact that the ICU personnel were ignorant to this fact is astonishing.  You would think that if any unit was going to know the difference in a living will and a DNR, it would be the ICU.  But they were ignorant.  Woefully ignorant.  And I wonder how many people have died because of this ignorance.

I asked a few more questions. My father, who is 81 years old and who is very distraught, didn’t know what the purple band with the letters DNR on it meant.  Nobody told him or my brother, who is a college professor, what the DNR meant or that they did not intend to try to revive my mother if she needed that.  The seriousness of the DNR was not explained to anyone.  Astonishing.  Only when the lawyer arrived was the situation revealed and handled appropriately.  What about the families that don’t have a daughter or son who is a lawyer?

One thing is crucial.  Hospital staff and families need to understand when the living will actually comes into play. There is a difference between when a living will is effective and when a living will is enacted or comes into play. A patient’s living will becomes effective when the patient has completed the living will correctly. That part is usually done at the lawyer’s office.  The living will is only enacted  or come into play when the certain specified triggers, that are clearly outlined in the document, have occurred.  In my mother’s case, none of the triggers had occurred, and yet she had been designated as DNR.

The most common trigger terms used in living wills are terminal condition and persistent vegetative state. Get down to the definitions.  A terminal condition is any health condition that does not respond to sound medical treatment and will result in the patient’s death, and a persistent vegetative state is a condition in which the patient is not aware of his/her surroundings and has lost the ability to think. Patients in a persistent vegetative state have lost their ability to speak or respond to commands and therefore cannot communicate their wishes for health-care treatment.  South Carolina requires that two physicians document that the patient has a terminal condition or is in a persistent vegetative state. It is important that doctors and families remember that stabilization is the first priority in an emergency situation, therefore providing enough time to assess the patient and diagnose the condition.  You certainly don’t just slap a DNR bracelet on a patient because she has executed a living will.  

As I write this column, my mother is being moved from the ICU to a regular room and her prognosis is very good.  She was able to say “I love you too, darling,” when I left her room. People in persistent vegetative states cannot do that. Wouldn’t it have been a tremendous tragedy if her time on earth had been cut short because the hospital staff was ignorant?  

So the take away message is that living wills are good things to consider and to have if you want one.  They can certainly spare your family an ordeal. But they are NOT the same thing as a DNR order.  And based on my experience, you better make darn sure that your family and your doctors know the difference.   If you don’t, your living will could cost you your life.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909. 

Monday
Feb072011

Legal Pad: Mediation: what is it? Why am I here?

Mediation:  what is it?  Why am I here?

By M. J. Goodwin

www.mjgoodwin.com

         Anderson County Family Court has a mandatory mediation requirement.  This was implemented in 2002.  Mediation is required before a party can even request a final contested hearing.  I completed my mediation training in 2002 and do a fair number of mediations each year. 

         Mediation is an informal process that allows opposing parties of litigation to meet with a neutral (the mediator) in an atmosphere that facilitates communication, with a view to resolving differences outside of court.  Mediation gives the parties a chance to make the decisions, with compromises that are implicit in settlements, rather than having a stranger (the Judge) make the decisions for them.  Studies have shown that resolutions reached by agreement are generally more satisfying for the litigants than Court determinations.  After all, who doesn’t want to have some control in the most personal parts of his or her life?  So what should one do to have a successful mediation?

         There are as many opinions on mediation as there are attorneys and litigants.  Like most things in life, you will get out of it what you put in it.  This point was driven home for me recently at a seminar.  A speaker who does a mostly mediation practice stated that an attorney would never dream of going to trial unprepared; with mandatory mediation, more cases are now mediated than tried.  So why do attorneys and litigants come to mediation unprepared? 

         That begs the question:  what preparation should be done in anticipation of mediation?  Again, the answers are as varied as the responder.  I like to see each party make a full financial discloser prior to mediation.  This includes a financial declaration on the court approved form, of course, but also goes further.  As a mediator and as a litigant’s attorney, I want to see the statements of the retirement accounts from both prior to the separation and at the time of the mediation.  If there is a lot of credit card debt, I want to see the bills.  Tax returns from the last five years of the marriage are useful.   Statements of net worth are useful.  Child support guidelines should be run in advance.   If alimony is a consideration, the alimony calculator should be consulted.

         For issues involving children, I want a Guardian ad Litem report if one has been done.  If not, then I want to speak to the Guardian ad Litem.  If there is not a Guardian ad Litem, I will assume it is not really a contested custody case.  If it is a contested custody case, I would like for both parties to make a reasonable proposal as to the amount of contact that he or she would like to have assuming that the OTHER SIDE wins custody.   To truly consider that question, the party must consider the possibility that he or she will not prevail on the issue of custody.   That sort of thinking leads to settlements.   Children generally suffer the most in custody cases.  It is by far better to settle the custody issues if at all possible.

         Litigants should really think about the issues and they resolutions that they are willing to consider prior to sitting down with the mediator.  If they do not do this, they are very likely wasting time and money.  It is helpful if the parties have exchanged settlement offers and even more helpful if they have several different acceptable scenarios in mind.  It is important to know what issues are most important to both parties.  I have mediated cases involving expensive vacation properties and cases involving essentially worthless (but sentimental) personal items.  I have mediated cases between bitter, warring parties.  Some have reached agreements; others have just wasted time and money.  The primary factor in whether or not a case settles at mediation is the amount of preparation that the attorneys and litigants put into the mediation process.



Sunday
Jan302011

Legal Pad: The Best Interest of the Child

By M. J. Goodwin

www.mjgoodwin.com

I spend about 85% of my professional life in the Family Court of South Carolina.  Most of that time is spent on cases involving child custody or child abuse and neglect.  The standard for determining which parent gets custody of a child is “what is in the best interest of the child?”  Our Supreme Court has repeatedly stated that “in a custody dispute, the paramount and controlling factor is the welfare and best interest of the child“.  What a slippery slope that can be.

But it is better than the standards that we used to have.  Way back, a long time ago, children were regarded as property and therefore, were usually awarded to the father.  Of course, divorce was less prevalent then.  But if it happened, the children went with the father.  Sometimes that was good, sometimes it wasn’t.  Later, as the “new” wisdom of the 1950s-70s came into vogue, the “Tender Years” doctrine was adopted, which stated that very young children were better off in the care of their mother.  Well, that is not always the case either.   So the law ultimately involved into where it is today, the best interest standard.

So how does one determine what is in the best interest of a child?  I would submit that you cannot know what is in the best interest of a child until the child has grown up.  In retrospect, you may be able to say that what was done with regard to child rearing resulted in a well-rounded, self-sufficient grown up.  But you might also say that some areas could be better.  Or that another approach would have produced a similar result.  But that is of little help to a family court litigant, family court attorneys and family court judges. 

Perhaps a better approach is to state what is not in the best interest of a child.  This is easier.  For example, most people would agree that being exposed to the following is not in the best interest of the child:

 

         *drunkenness on the part of either parent

         *drug use by either parent

         *domestic violence

         *child abuse (physical, sexual, emotional or verbal)

         *promiscuity on the part of either parent

         *truancy

         *tardiness

         *lack of necessary medical care

         *criminal activity

 

Those examples are pretty much universally agreed to be bad ideas for children.  But what about these things?

         *adultery by a parent.  Your gut reaction may be to say that is not in the child’s best interest.  But what about when the parents have been separated for years and the new paramour is an active, loving part of the child’s life?  Not so clear cut.

         *lessons and extracurricular activities.  Your gut reaction might be that these are good.  But what if they are too much?  Have you read about the “Tiger Mother” in the news lately?  What if the parent won’t take the child to the activities?  This could also cause problems, particularly if the child is very involved in the activities.

         *a working parent.  This the classic two edged sword.  If a parent works, he or she can support the child, but cannot be there for the child 24/7.  Do we want to teach children about work ethics?  What if the child goes to work with the parent?  Is that good or bad?  Does it depend on the job the parent does?  What about a parent who doesn’t work outside the home?  He or she is there 24/7, but has no financial resources. 

         *pets.  One parent allows them; one parent doesn’t.  Which is best?

         *an illiterate parent.  Well, he or she can’t read.  But surely the other parent was aware of that during the relationship?  Is it now enough to deny custody? 

         *exposure to “R” rated movies.  Sounds like a bad thing, right?  Well, maybe the child can handle it.

         *strippers, exotic dancers.  Sounds bad.  What if it produces good income and the child doesn’t know about it?

         *illegal immigrants

Other potential gray areas:

         *an obese parent. 

         *an anorexic parent.

         *a parent with any chronic health condition.

         *homosexuality

         *mental illness

         *very old criminal histories

         *an alcoholic or drug addict that is in recovery

As an attorney and a guardian ad litem, I am aware that litigants want certainty as to what will happen in family court disputes.  However, given that each case is as different as every child is different, uncertainty is the only thing that is certain.  Judges are individual people, too.  So while we do have law on the books that gives some guidance to judges in awarding custody, it remains very much a gamble in most cases.  For this reason, it is best to have a good attorney to represent you if you have contested custody case.  A good attorney will do you a huge favor and guard you against arguing about things that don’t matter and don’t impact what is in the best interest of the child. 

I am sure that most parents won’t want to hear my bottom line advice, but here it is:  fighting for custody is a big gamble and ultimately will likely involve weighing the lesser of two evils.  It is my experience that absent the obvious things listed above, really good parents seldom engage in full blown custody wars.  Most of the full blown custody wars that I see involve parties that have significant personal, emotional or psychological issues on the part of at least one parent. 

These cases can only be remedied by trial and the only real sanction a judge can impose on the unreasonable party is to make him or her pay the other party’s attorney fees and costs.

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909.