Grounds For An At Fault Divorce in South Carolina

As I discussed in an earlier blog post, the no fault ground for divorce in South Carolina is a one year separation.  In this post I’ll go over the four at fault grounds which will allow you to get divorced without the one year of separation.

The four at fault grounds for divorce in South Carolina are adultery, physical cruelty, habitual intoxication or narcotics use and desertion. 

Adultery- In order to obtain a divorce based on adultery, one doesn’t need to prove the spouse actually cheated.  The legal standard for adultery is that the spouse had the inclination and opportunity.  This means that there doesn’t need to be actual proof of sexual intercourse.  This means that if a spouse spends the night in a hotel with a paramour, they have the opportunity and inclination to cheat.  There doesn’t need to be actual video or picture evidence of the act.  The courts have also found that adultery doesn’t always mean sexual intercourse, it could be found with proof of mere “sexual intimacy.”  Often hiring a private investigator is useful in proving adultery. 

Physical cruelty- If there is actual physical injury it must be more than an isolated instance of abuse.  However, if there is no actual physical injury, a divorce based on physical cruelty can be granted if one spouse’s conduct created a substantial risk of death or serious bodily harm.  For example, firing a gun at a spouse but missing would be enough to rise to the level of physical cruelty needed for this at fault divorce. 

Habitual intoxication- To obtain a divorce on this ground one spouse needs to prove more than occasional drinking or drug use.  Rather, one must prove that this drinking or drug use has caused a breakdown in the marriage.  Proof can be medical records for rehab, criminal records with convictions related to alcohol or drug use, financial records proving frequent alcohol purchase or work and employment records that show problems with the spouse’s employer due to drugs or alcohol.

Desertion- Although this is formally a ground for separation, because the time frame for a divorce based on desertion is one year, the same time as a no fault divorce, the use as a ground for divorce in South Carolina is rarely if never used anymore. 

Although these four at fault grounds can be used to obtain a divorce, there is a common defense to all four- condonation.  Condonation is the conditional forgiveness of the behavior which would lay the ground work for an at fault divorce.  This means the innocent spouse is aware of the behavior but still decides to remain in the marriage with the at fault spouse.  If the adultery happened years prior and the innocent spouse didn’t know about it then it could still be grounds for an at fault divorce years later.  On the other hand, if the spouse knows of the adultery and remains with the cheating spouse and forgives him or her, then the fault ground for adultery no longer remains a ground for a divorce. 

A spouse can file for divorce on any of the at fault grounds without being separated from the other spouse.  However, at a temporary hearing the burden of proof will be on the innocent spouse to prove with solid evidence that fault ground in order to give the Judge the power to remove the spouse from the marital home.  In any at fault divorce action, the court cannot have the hearing on the divorce until 60 days after the filing for divorce and cannot grant a divorce until 90 days after the divorce action was filed. 

If one of the spouses needs help determining any issues stemming from a separation such as child custody, child support, alimony, division of assets or property, visitation but do not have a ground for a divorce, that spouse may file an action for “separate support and maintenance.”

If you, a friend or a loved one is seeking a divorce or defending a divorce and would like legal advice, contact Thrower & Schwartz.  Ryan and Bill will be glad to meet and discuss the situation.    

 

 

Adultery in South Carolina

When people are suspicious of their significant other cheating, or catch them cheating, they usually wonder how they will be able to prove the infidelity in family court.  Clearly, sexual intercourse is adultery but what about other forms of infidelity?  South Carolina courts have stated that South Carolina hasn’t determined exactly what other acts may constitute adultery.  For example, the South Carolina Supreme Court found that homosexual activity can constitute adultery, which gives the impression that oral sex is enough for a divorce based on the grounds on adultery.  However, because the actual sexual act is rarely proved it most likely won’t make a difference in most cases.

Proving Adultery in South Carolina

Because sexual conduct mostly, and should, occur behind closed doors, it is nearly impossible to find direct proof of the cheater in the act.  However, in South Carolina one only needs to show circumstantial evidence, that the spouse had an inclination to commit adultery and that he or she had the opportunity to do so.  These requirements are referred to by family lawyers as the “inclination and opportunity.”

What is inclination?

When does spending time with a member of the opposite sex constitute more than friends?  People are allowed to have friends of the opposite sex which means that just because they are behind closed doors together doesn’t mean there is infidelity.  Because of this reason the courts require proof that the spouse had the “inclination” or the character or to cheat.  Proving inclination can be done several ways: love letters, texting, emails, or other written material may give rise to evidence of infidelity.  Joining online dating sites or dating applications on one’s phone may also be used as evidence.  Other examples would be a private investigator having photographs of the cheating party holding hands with a paramour or kissing and occasionally there is evidence of over night stays which would prove the individuals are more than friends.

What is Opportunity?

To prove “opportunity,” you must prove that the cheating spouse and his lover were behind closed doors long enough for there to be time to commit a sexual act.  There are no black and white rules for exactly what needs to be proven.  The most concrete evidence of an opportunity to commit adultery comes through a private investigator who obtains footage or pictures of the cheaters being in the same home or a hotel room.   Other forms of evidence can come from neighbors or friends; however their testimony could be biased and won’t give us the documentation and hard proof we can obtain from a private investigator.  Other forms of evidence of opportunity are text messages, Facebook posts or pictures, credit card statements. 

Is there A Defense to Adultery?

Yes, it is called condonation and can be a defense against a divorce.  Condonation is when one party, who has been cheated on, takes actions that imply that he condoned the adulterous behavior and that the parties are reconciling.  If the infidelity was discovered, you could forfeit any claim of adultery if you reconcile with the cheating spouse.  Condonation can occur by having sexual relations with the spouse, letters or emails forgiving the infidelity, or moving back in together.  Again, there are no clear, black and white rules on condonation either and it will but up to the Judge to determine the facts and decide whether adultery was forgiven.

Advice If You Think Your Spouse Is Cheating

The Attorneys at Thrower & Schwartz strongly recommend consulting with them.  Every case has different facts and circumstances, and we need to learn specific facts of your situation to advise you how to proceed.  We may recommend hiring a private investigator, having a home computer looked at by a computer expert for evidence of infidelity or tracking down witnesses.  Depending on the facts of your specific case there could be numerous ways to discover what you are looking for and to gather evidence of it for court.  Please at least consult with an attorney before you go searching alone. 

If you have a family law issue please do not hesitate to contact the lawyers at Thrower & Schwartz.   

  

What To Do If The Police Stop Me To Talk

What to Do If the Police Stop Me to Talk To Me?

Recently I had a client who was stopped coming out of his vehicle at night by a police officer.  The officer just stopped to talk to the client and “fish” for more information because, as the officer put it “he was in a bad area at a suspicious time” and “I suspected he was up to no good.”  The client, although lawfully stopped, should have followed a few simple rules.  He was ultimately arrested, arguably illegally, and has been charged with some serious crimes.  In order to better protect yourself, you should follow some simple advice.

1.         Stay calm.  Don’t run, don’t argue, resist, or obstruct a police officer.  You get more bees with honey!  Even if you are innocent or the police are violating your rights or profiling you, make sure you don’t give them a reason to arrest you.  Keep your hands where they can see them and speak slowly and calmly. 

2.         The first question out of your mouth should be “am I free to leave.”  If the officer says yes, calmly and silently walk away.  If you are placed under arrest, you have a right to know why.  If you are under arrest, keep your mouth shut!  The Fifth Amendment gives you the right to remain silent; we suggest you invoke that right.  Remember, a fish only gets caught when he opens his mouth!

3.  You have the right to remain silent.  You cannot be punished for refusing to answer questions.  If you wish to remain silent, tell the officer out loud that “you will not answer any questions with an attorney present.”

4.         You don’t have to consent to a search of yourself or your belongings, but police may “pat you down” over your clothing if they suspect a weapon.  You should not physically resist, but you have the right to refuse consent for any further search.  If you do consent it could affect you later in court. 

What If You Are Stopped In Your Car?

1.         Stop the car in a safe place as quickly as possible.  Turn off the car, turn off the inside lights, open the window half way and place your hands on the steering wheel.  Upon request, show police your driver’s license, registration and proof of insurance.

2.         Remember! Be polite!  Asking the officer “why the ***** are you stopping me” can guarantee you more hassle than necessary.  Come court time, the officer will remember your attitude and be less willing to work with you.  They also may be more suspicious of you and attempt to search your car.

3.         If you have a gun in your car, keep your hands on the steering wheel.  As long as it is in the glove box, consol, trunk or locked in a lockable container then you should be fine.  Simply notify the officer that you have a firearm in the car while your hands are on the steering wheel.  The police officer will tell you what to do from that point on.  Giving them a heads up on the firearm makes them feel at ease and keeps you in their good graces.   

4.         If you are questioned about your immigration status- you have the right to remain silent and do not have to discuss your immigration or citizenship status with police, immigration agents or any other officials.  You do not have to answer questions about where you were born, whether you are a U.S. citizen, or how you entered the country.  These rules do not apply to international boarders, airports, and are for individuals on certain nonimmigrant visas, including tourists and business travelers.  If you are not a U.S. Citizen and an immigration agent requests your papers, you must show them if you have them with you.  If you are over eighteen years old, carry your papers with you at all times.  If you do not have immigration papers, remain silent!

If the Police or Immigration Come to Your Home

1.         You do not have to let them in unless they have certain types of warrants.  Ask the police officer to slip the warrant under the door or to hold it up to a window so that you can inspect it.  A search warrant allows police to enter the address listed on the warrant, but they can only search the areas and for the items specifically listed on the warrant.   An arrest warrant allows police to enter the home of the person listed on the warrant if they believe the person to be inside.  A warrant of removal or deportation (ICE WARRANT) does not allow officers to enter a home without consent. 

2.         Even if officers have a warrant, remember, you have the right to remain silent.  If you choose to speak to the officers, step outside and close the door. 

What If I Have A Roommate And He Consents to A Search?

According to well- established Supreme Court rulings, the police may enter and search a home if one of its occupants consents.  The Court has ruled that a person with “common authority over the premises” justifies police entry if other occupants aren’t present to consent or object to the search.  However, the outcome is different if another occupant is home and objects to the search.  If two roommates are present and one gives consent and the other does not, then the police usually cannot search the residence.  Physically being present is key, simply telling the police over the phone is not enough.  You must be present at the residence to object. 

Here are some examples:

1.         Bill and Ryan share a house and are roommates.  The police, responding to a neighbor’s noise complaint, knock on the door.  Only Bill is home.  When he answers the door, the officers ask to come and “check out the place.”  Bill says “yes.”  Because Ryan was not home to object, the officers have consent to search the house. 

2.         The police knock at the door and Bill answers.  This time, however, Ryan is home.  He hears Bill agree to let the officers in.  Ryan runs to the door and tells the officers they are “not allowed in the house.”  The officers are not allowed to come into the house.

3.         After speaking with Bill and Ryan and learning that they cannot search their home, the officers leave.  Three hours later, they come back and knock again.  Ryan has left the house to go to work, so only Bill is home.  Bill consents to the officers coming in and taking a look.  Even though Ryan was present recently and objected to the police search, the officers now have consent to look around.  

 

 

 

 

 

 

Legal Words You Are Likely To Hear

This post is just simply listing out words that non-lawyers may hear or not have heard before.  

Acquittal- a verdict of "not guilty" in a criminal trial.

Advocate- one who speaks for and helps someone else.  A victim advocate or a victim assistant is someone trained and dedicated to serve those who are victims of crime, family members of victims of crime, and witnesses to crime.  An advocate may be a paid professional of a government or a private agency or a volunteer.

Appeal- The transfer of a case from a lower court to a higher court for a near hearing on a case. 

Arraignment- The time when a suspect appears before a judge and is charged with a crime.  It usually happens shortly after the suspect has been arrested and served a warrant or after a preliminary hearing. 

Bail or Bond- Money or property that a defendant puts up as a guarantee that he will appear in court.  Not all defendants are required to put up bail.  Some are given personal recognizance (PR) bonds. 

Clemency- Mercy or leniency.  Often refers to a judge's giving a lighter sentence to a defendant because of particular circumstances. 

Competent to stand trial- A decision by the court that a defendant is able to stand trial (usually determined by a doctor to find out his mental condition).

Disposition- Final result of the case. 

Defendant- A person arraigned and charged with a crime. 

Defense attorney- The Lawyer who speaks for the defendant and represents his interest in court. 

Discovery- The right of the defendant to know what evidence the State has against him. 

Family Court- A county court that handles cases involving families and juveniles. 

General Sessions (Circuit) Court- The higher level of county court, where serious crimes are tried. 

Grand Jury- A jury of eighteen people who listen to the evidence and decide whether or not a case should go on to General Sessions Court.  Their meetings are conducted in secret.  The Grand Jury may give a "true bill" (indictment) or a "no bill."

No Bill- A conclusion by a Grand Jury that a case should not be tried. 

True Bill- A conclusion by a Grand Jury that a case should be heard. 

Habeas Corpus- One of a variety of writs that may be issued to bring a person before a court or judge.  Its purpose is to release someone from unlawful restraint or imprisonment. 

Hung Jury- The situation where a jury cannot all agree on a verdict.  When this happens, the case may be tried all over again. 

Incident Report- A police report about something that happened.  Additional reports about the same happening are called Supplemental Reports. 

Indictment- See Grand Jury, True Bill. 

Jury- A grouped of twelve people who must listen to and watch the trial and decide whether or not the defendant is guilty. 

Jury Pool- A group of randomly chosen citizens from which jurors are selected. 

Juvenile- Usually an offender under the age of 17. 

Judge- The person in charge of the courtroom and the trial. 

Magistrate- The judge in the first level of county court. 

Nol Pros- The voluntary withdrawal of criminal charges by the prosecuting attorney. 

Objection- An attorney's telling the court that he believes someone has broke a rule of the court. 

Pardon- An act by a judge, court, governor, or other authoirty that releases the person pardoned from punishment for the crime he committed.  Often pardon provides for expungement (wiping clean) of the offender's criminal record on that particular crime. 

Parole- The conditional early release of a prisoner.  If a prisoner obeys the conditions of his release, he won't have to serve the remainder of his sentence in prison.  If he does not, he may be sent back to prison. 

Petition- A formal, written request for a court or judge to do something, for example, a petition for an appeal. 

Plea- The Defendant's answer to the charge against him.  If he pleads "guilty," a trial is not necessary.  He may plead guilty to a less serious charge than the one for which he was indicted.  If he pleads "not guilty", the case will probably be tried in court. 

Preliminary Hearing- A hearing before a judge to determine if a case has probable cause and should be sent to General Sessions Court.  The defense attorney uses this hearing to find out what evidence the State has against the defendant. 

Pre-Trial Conference- A meeting among you, other witnesses, and the solicitor prior to trial.  You will be able to discuss the case and ask questions.  

Probable Cause- Evidence that would lead a reasonable person to believe that a crime was committed by the person accused. 

Probation- Releasing a convicted offender instead of sending him to prison.  An offender on probation must agree to follow certain guidelines and limits.  If he "violates probation," that is, fails to keep the agreement, he may be sent to prison. 

Reasonable Doubt- Doubt based on a good reason.  If a jury has reasonable doubt that the defendant committed the crime, the jury must find him not guilty. 

Recess- "Time Out' in a trial.  It could be brief or last overnight or over a weekend. 

Revocation- The withdrawing of a bond or probation when the defendant fails to obey the requirements of bond or probation.  For example, a defendant released on bond or probation may be required to stay within the state.  If he leaves the state, his bond or probation may be revoked, and he may be locked up in jail or prison.  

Sentence- The punishment or legal consequences given to a convicted defendant. 

Solicitor- An attorney who prosecutes crimes.  In other states they are usually called District Attorneys. 

Subpoena- A court order for someone to appear in court. 

Testimony- the facts as stated by a witness in court. 

Trial- The presentation of the facts of a case in court before a judge (bench trial) or a judge and jury, ending with a decision about the defendant's guilt. 

Verdict- The decision by a judge or jury.

Victim Impact Statement- A victim's form, letter, or oral statement that tells the judge the ways in which the crime has affected him or her, for example, money lost, emotional difficulties, physical problems, jobs problems, etc. 

Voir Dire-The jury selection process.  Both the defense attorney and the solicitor may "strike" (reject) a limited number of people in the jury pool. 

Witness- In court, a witness is a person who testifies in court.  A witness to a crime is a person who sees, hears, or notices something that has to do with the crime. 

Writ- A written order issued by a court commanding someone to do or stop doing a particular act. 

 

 

Difference Between DUI and DUAC In South Carolina

South Carolina's DUI statute provides:

"It is unlawful for a person to drive a motor vehicle within this State while:

(1) under the influence of alcohol to the extent that the person's faculties to drive are materially and appreciably impaired;

(2) under the influence of any other drug or a combination of other drugs or substances which cause impairment to the extent that person's faculties to drive are materially and appreciably impaired; or

(3) under the combined influence of alcohol and any other drug or drugs or substances which cause impairment to the extent that the person's faculties to drive are materially and appreciably impaired."

Under South Carolina law, the legal blood alcohol (BAC) limits are:

(1) Less than .05- It is conclusively presumed that the person was not under the influence of alcohol

(2) Greater than .05 but less than .08- No inference whether the person was under the influence of alcohol, but that fact may be considered with other evidence in determining the guilt or innocence of the person

(3) Greater than .08- It may be inferred that the person was under the influence of alcohol.

Proving The Driver Was Impaired

Most of the time, solicitors prove a driver was impaired and guilty of DUI by showing, among other things: (1)  The driver was showing signs of intoxication such as slurred speech, strong odor of alcohol on the breath, red, blood-shot eyes, staggering, or swaying; (2) The driver failed a field sobriety test- Reciting ABC's, standing on one leg, walking toe-to-toe; or (3) the driver could not maintain control of the vehicle (weaving, crossing lines, driving off the shoulder).  Additionally, solicitors may provide evidence that the driver had a blood alcohol concentration (BAC) level above the legal limit using either a data master breath test or in more serious cases, a blood test.

Driving With Unlawful Alcohol Concentration- (DUAC)

Similar to DUI, South Carolina has a statue that makes it illegal to drive a motor vehicle in this state "while [a person’s] alcohol concentration is .08 percent or more."  Unlike a DUI, being "impaired" is not an element of DUAC which means that although you may be perfectly capable of driving at a BAC of .08 or more, you are guilty of DUAC if your blood level is .08 or more.  

The Solicitor has the choice of convicting a driver for a DUI (proof of impairment which may include proof of BAC) or a DUAC (proof of BAC .08 or greater and the driver is guilty.)  A driver can only be prosecuted for a DUAC if the breath (or blood) test is performed within two hours of the time of arrest and probable cause (a reasonable belief that a person has committed a crime) existed to justify the traffic stop.  A driver in South Carolina cannot be prosecuted for a DUAC if the driver was stopped at a traffic road block or driver's license check point.  Furthermore, a driver cannot be prosecuted for both a DUI and a DUAC arising from the same traffic stop.  

 

DUI vs. DUAC

The main difference between DUI and DUAC is that to be convicted for a DUAC, the prosecution must prove a driver was operating a vehicle with a BAC of .08 or higher.  However, to convict a driver of DUI, the prosecution must prove that the driver's faculties to operate a vehicle were materially and appreciably impaired by alcohol, drugs, or a combination of the two.  The penalties for a DUI and DUAC are nearly identical.  Examples:

– Neither charge can be expunged from your record

– The fines and jail time are identical

–  Both offenses require the offender to complete ADSAP (Alcohol and Drug Safety Action Program)

–  Both offenses require a driver to have the expensive SR-22 insurance for three yeas

–  Both charges can enhance a subsequent arrest for either DUAC or DUI to a second offense, causing it to be prosecuted in General Sessions Court.  

 

The Fifth Amendment- A Right That Contradicts What My Mother Always Told Me

I can't count how many times my mother knelt to get eye level with the much younger me and said  "If you lie your punishment will be much worse than if you tell the truth."  We as children hopefully had parents who instilled in us the value to always tell the truth and that the "truth shall set you free."  For most parents, this is one of the most important lessons we teach our children and rightly so.  However, when does keeping your mouth shut cross the line to not telling the truth?  Is being silent the same as lying?  The Constitution says "no", however it seems our moral values say otherwise.  This quick blog post will discuss one of my favorite topics: The Fifth Amendment and how our values growing up can be used against us in a court of law.  This Amendment also happens to be my favorite comedian's, Dave Chappelle, favorite Amendment;  I Plead the "FIF"

The Fifth Amendment states, in a nutshell among other things, that you have the right to remain silent.  This means you do not have to answer any questions or give any statements and any defense attorney worth his salt will always recommend that a client never talk to police or give a statement, verbal or written, without the attorney present.  However, this is in theory and far from reality.  Many people charged with crimes come to their lawyers with one of two problems- they have talked to the authorities and lied about what happened or what they know or don't know; or they talked to the police before calling Thrower & Schwartz, and gave a complete statement admitting involvement or guilt.  In the majority of cases, neither is good.  It is always tough to think a client would have faired much better if he wouldn't have listened to the values instilled in him at a young age- to always tell the truth.  We want to know what happened, we want to know the truth about what happened, and most parents drill this into their children from a very young age.  

However, at what age does somebody need to be told that you shouldn't lie to your parents about the homework you did not complete or that you did not eat your broccoli and hid it in the napkin but you need to keep silent about something illegal you may have been involved in?  We tell adults constantly to never, ever talk to the police.  I've even written a blog post about what to do if the police try to talk to you here.  It's a dead horse that's been beaten to death on the internet, on YouTube, and every time I meet with a client who has given a statement before talking with us.  The reasons you shouldn't talk to the police when they ask you to come in for an interview or stop you on the street are numerous.  More times than not the police are NOT trying to clear your name as a suspect.  More times than not, if the police are contacting you it's because they already have information about you or your possible involvement.  Please understand, YOU ARE NOT GOING TO TALK YOUR WAY OUT OF IT!  The police are looking for more evidence to charge you and looking for you to trip up in your statement to drive the nail in your own coffin, so to speak.  Or, they don't have quite enough evidence to charge you and they are looking for something they can use as probable cause; in which case you are signing your own arrest warrant.  

Police detectives are good at what they do.  They interview and deal with people everyday.  They are masters of interrogation.  Some detectives have devoted their entire working career into breaking people down and getting statements. Police interrogation was even romanticized in one of my favorite TV shows of all time: The Wire.  One scene in particular shows Detective Bunk interviewing a young suspect who is clearly uneducated and very young.  His techniques can be watched here .  Now, don't get me wrong, I'm not suggesting that detectives use these exact techniques but it does highlight the process and how Bunk had nothing concrete on the young suspect yet uses his experience to get a statement.

You must remember, detectives are trained to extract statements and information, you are not trained to avoid giving statements.  Talking to a detective about a crime you may or may not be guilty of is like stepping into the ring with Mike Tyson and expecting to knock him out- good luck.  

So, back on track.  What I really wanted to talk about was the values my mother and father instilled in myself and why some suspects or defendants become helpless because of those values.  We grow up to trust the police, that they are there to help and that we should always tell the truth to one another, police included.  When telling our children to always tell the truth no matter what, we are implying that they should always speak when spoken to and to always tell the truth.  What we don't do is add a caveat into that value of "except when the police contact you."  

Obviously, there are times when our children may get hurt by speaking and telling the truth.  In an extreme example, imagine a child, Ryan, has just killed a man while defending himself.  The police are interrogating young Ryan, having themselves convinced Ryan actually committed murder.  Once Ryan starts speaking with detectives, answering their questions, unaware what the legal requirements of self-defense are, he most likely will talk himself right into an arrest and unfortunately a conviction for murder.  Even worse, he may understand the situation he is in and make up white lies about what happened to make it more favorable for him, changing key facts or evidence proved a lie by science or witnesses which contradict his own statement to police.  

Although there are times when telling the truth is the best thing to do, maybe its time to start teaching our children not to not tell the truth, but to just not say anything at all?