Resources

Divorce for South Carolina Business Owners

When a couple decides to get a divorce, it means a lot more than signing a piece of paper. Divorce can come with several issues that may take months or years to resolve. Not only can divorce impact your children, home, finances, and other personal assets, it can also impact your business. When divorce threatens your business, the thought of losing it becomes all too real. The stress and frustration can come to a boiling point.

In this article, we’ll discuss how a business can be affected by divorce. If you are in this situation and need a legal advocate on your side, our experienced divorce attorneys at Fender Law Firm can help you. Give us a call at 843-379-4888, or fill out our online form, and we’ll reach back out to you.

Marital Property and Non-Marital Property

When you get divorced, the mediator or a court will categorize your assets into two categories: marital property and non-marital property. South Carolina adheres to the equitable division of marital assets. It’s intended that both parties walk away from the marriage with a fair, though not always equal, portion. To make this equitable distribution, the court must:

Identify the marital and non-marital property that will be divided between both parties
Determine the fair market value of each asset
Allocate the property according to the contributions of each party, their separate assets and income, and marital asset special equities
Ensure an equitable division of the marital property

Marital property includes assets acquired during the marriage, obtained with marital finances by one spouse or both spouses during the marriage, excluding gifts or inheritances received by one spouse. Another exclusion is in the case that an asset was protected from division via a prenuptial or postnuptial agreement.

Non-marital assets include property obtained by one spouse prior to the marriage, gifts received by either party during the marriage, or any inheritances obtained during the marriage. Generally, non-marital assets will not be subject to equitable distribution during divorce. However, sometimes non-marital property may be categorized as marital property in certain situations. For instance, if, after receiving an inheritance, something was done that indicated the desire of the recipient party to share the inherited property with their spouse, the property would then be considered marital. As another example, if land was inherited by one spouse, then that spouse added the other’s name to a deed, the land would be considered a marital asset.

Upon marital asset distribution, the judge will consider several factors, including the length of the marriage, the contributions of each party to acquire the assets, the value of the marital property, marital misconduct by either of the parties, any previous formal signing of marriage settlement agreements, custody arrangements of children, the income and earning potential of the parties, and more. South Carolina Code § 20-3-620.

When Is a Business Considered a Marital Asset?

Typically, during divorce, businesses are subject to division by the courts as with any real or personal property outlined above, unless one party can prove that the business is not a marital asset. Generally, for a business to be considered a non-marital asset, it must fall into one of the following categories:

The business was initiated prior to the marriage
One party received the business as a gift or inheritance
The business was acquired with non-marital funds
The business was protected by a prenuptial or postnuptial agreement

Some exclusions to the above protections may apply, depending on the facts of your case. Consider the doctrine of “transmutation” of non-marital assets, as is the case of a business owner initiating the company prior to the marriage, then bringing their spouse into the business in a significant way during the marriage. An example might be in the event a wife began her company before she was married, then hired her spouse as a secretary of that company after the marriage. The spouse quit his job to work the needed hours at his wife’s company, where he made significantly more than the average salary of the same position elsewhere. In this case, the previously considered non-marital property may be considered marital property by the court.

How Are Businesses Divided in Divorce?

As with all marital assets, the court may consider a few details in determining business distribution, if necessary, including the length of a marriage, the number of years a business is in operation, and financial contributions that were made by each spouse while married (as well as sweat equity).

To divide a company, the value must first be calculated. There are a few different ways to determine the value of a company during divorce, and they typically fall into three categories, including the “asset approach,” the “market approach,” and the “income approach.” This may require consultation with financial experts, appraisers, and other professionals. If the parties are unable to agree on the value of the business, a judge will decide what the business is worth.

Once the division of the business is equitably decided, there are some scenarios to consider when splitting a private company between you and your spouse. You can review these options with your divorce attorney to decide what will work best for you. Some options may include a buy-out, selling the business to a third party, or remaining co-owners with your divorced spouse.

Hiring a Divorce Lawyer to Protect Your Business

The best next step is to consult a divorce attorney as soon as possible. A lawyer will help you determine which items should and should not be included in the marital estate, better understand what portion you might receive, and protect your interests as much as possible. Being proactive versus reactive in divorce is essential. If you are in the middle of a divorce or contemplating divorce and want to know your rights, contact a family law attorney at Fender Law Firm as soon as possible. Located in South Carolina, we will work with you to ensure you receive what you are entitled to. Contact Fender Law Firm for a free consultation.

Rights of Unmarried Fathers

Paternity

There was an interesting, and somewhat concerning, article in the news paper this past weekend about the number of unwed mothers giving birth in the various parts of South Carolina. According to several statistics, upwards of 50% of births in South Carolina are to unmarried parents.

South Carolina Adoption Tips

Adoption

The decision to adopt is an important one that will change the lives of all involved forever. It is not a quick or simple process, however, and can take quite a bit of time and patience to complete. While some of the wait simply cannot be avoided, there are a few things to keep in mind that might make the adopt request and resulting proceedings move as smoothly as possibl

Summertime Strategies for Co-Parents (that can help all year round)

Custody

Sharing parenting time can be a challenge even during the more structured school year. Some parents work well together to adapt to scheduling conflict and adjust, while others rely on a strict schedule to keep things running smoothly.

Some Things to Avoid When Divorcing Later in Life

Divorce

In the United States, divorce rates are declining at a rapid rate – except with people over 50 years of age. Sadly, about one in four couples over 50 are deciding to make the break and get a divorce.

Why do you think this phenomenon is occurring? In truth, it appears that because people are living longer and have more opportunities open to them, they are more likely to grow apart. Once the children are grown and gone, many marriages unfortunately begin to slowly dissolve. Additionally, given that more women are in the workplace and are financially independent, they no longer have the financial motivation to remain married, which was not the case decades ago.

Divorcing over the age of 50 does not come without some major pitfalls. As you would expect, divorce will impact your retirement, will result in legal fees, and will require you to support yourself, which can quickly drain any savings that you may have had.

Divorce Over 50

That said, you can protect your financial future by avoiding the following mistakes if you are over 50 and plan on getting a divorce:

Assuming that It Will Be Easy to Deal with What Was Once the Family Home: Keeping up your family home by yourself can be a daunting financial task. Before you decide to keep the house, especially if the children are out of the house, figure out if you can pay the mortgage, taxes, and any emergency repairs yourself. If that is not possible, then you can find appropriate, less costly alternatives. For example, one of our clients decided to sell the family home and move to an affordable adult community at Sun City Hilton Head in South Carolina. He has never been happier. In other words, know the costs of keeping the house and explore your options.
Being Unrealistic About Your Expenses: When you have to pay all of your household expenses on your own, you may come to the conclusion that you will have to make some life changes to afford your monthly living expenses. So, do not make the mistake of underestimating, or failing to sit down and make any estimate, of your likely monthly expenses. Planning ahead will save you lots of stress in the long run.
Not Having an Awareness of Your Asset Picture: In many marriages, one spouse normally has a good understanding of the family finances. They know how much money is in the family’s investments and savings accounts. The other spouse may not be as educated on the family finances. If you are that spouse, then you will want to inventory all of your joint and separate assets before making any attempt to split them between yourself and your spouse. You should also make note of any life insurance policies and retirement accounts.
Being Unaware of Your Debt Load: In an equitable division state, like South Carolina, you could both be liable for any jointly held credit cards, loans, or other debts incurred during the marriage. That means that when you are contemplating a divorce, you should get a credit report for yourself and your spouse, so you understand how much debt you have individually and as a couple.
Transferring Funds from Your Spouse’s Retirement Account into an IRA: If you fund your IRA with a part of your spouse’s retirement account and make withdrawals before the age of 59.5, you will pay the standard 10% early withdrawal penalty. Protect your assets during your divorce over 50 by using a “qualified domestic relations order,” which will let you make a one-time withdrawal from your ex-spouse’s 401k, without paying the penalty.
Trying to Secretly Stash Money or Other Assets from Your Spouse: If you and your spouse have a lot of money, you may be tempted to hide some of your assets so it appears that you have less money, and thus less to pay in alimony or other support. Avoid that temptation. It is not only bad pool, but it is also illegal and will only result in more legal fees and court appearances when the assets are ultimately found. Some of the consequences you could face include giving your ex additional money, being found in contempt of court, and you could face perjury or fraud charges, which expose you to serious financial liability or worse.
Forgetting to Consider the How Your Taxes Will be Impacted: Almost every decision that is made during your divorce is going to earn you a tax bill. You will need to carefully explore your tax obligations when it comes to alimony, paying the mortgage, and the household expenses. You may find that it is more beneficial to have a brokerage account or retirement plan. Be sure to consult with a tax accountant before you make any financial decisions during your divorce.
Neglecting Your Insurance for Healthcare: If your spouse’s health insurance provides you with coverage, and your Medicare coverage has not started yet, you could be in for an expensive shock when you have to purchase your own healthcare insurance. So, keep healthcare insurance matters on top of mind before the divorce. You may conclude that a legal separation is the better option so that you can remain on your ex-spouse’s health insurance policy.
Continuing Support to Your Adult Children: Of course, we all want to help support our children even into adulthood. However, be careful not to make help for your adult children the priority over your own wellbeing with regard to retirement income.
Failing to Consider Costs of Divorce Advisors: We sometimes make the mistake of thinking that our divorce advisors are our friends, and we forget that their time can be costly. Remember, the amount of money you pay your divorce advisors will come out of your settlement. So, it is vital that you keep an accounting on how much they are spending on your behalf.

In conclusion, divorce over 50 can be financially and emotionally devastating. Yet, you can soften the blow a bit if you plan carefully, and you can save yourself from financial hardship in the future.

If you need assistance, or legal advice regarding your divorce over 50, please contact Sun City Divorce Attorney, Addison Fender at the Fender Law Firm. We handle all types of family law cases, including divorce, custody, visitation, child support, paternity determination, and cases involving the Department of Social Services.

Our experienced attorneys are here to provide you with knowledge, and to guide you through this difficult time in your life. Call 843.379.4888 or contact us online today.

South Carolina Child Support Calculator

Child Support

Collecting and calculating child support payments can seem complicated, but there are many resources available to assist parent, both custodial and non-custodial.

Can I Move to Another State with My Child After My Divorce?

Custody / Divorce

Marlene was granted primary custody of her young daughter, Julie. Julie’s dad, Tom, had regular visitation rights. Getting through the divorce and child custody issues was trying and emotional. Yet, once the divorce was final, Marlene was confronted with an even more difficult challenge – finding a job in their hometown of Beaufort that provided enough income but still left time for Julie. By chance, Marlene found the perfect opportunity. It was a great job with flexible hours that was close to her parents. The problem: the opportunity was in Charlotte, North Carolina, about 230 miles away from Beaufort.

Marlene’s challenge is a common one. Even after child custody matters are settled following a divorce, things change over time. You may find a new and better job opportunity, or you may need to move closer to family because a close relative becomes ill. It is at those times that you must confront the issue of trying to move when a child custody order is in place. Indeed, under South Carolina law, it could be difficult to move your child after a divorce.

Accordingly, in this article, we are going to discuss the hurdles you may face when trying to move with a child after a divorce. If, after reviewing this article, you have more questions about divorce and child custody issues, we invite you to contact The Fender Law Firm. We are experienced divorce attorneys in Beaufort, South Carolina, and we can help make the challenges of divorce a little easier. Schedule a consultation online or call us at 843.379.4888 today.

South Carolina Treats In-State and Out-of-State Moves Very Differently

The first thing to know about South Carolina law with regard to moving with a child is that the court’s authority varies depending upon the type of move you are contemplating. If you are looking to make a minor move within South Carolina, then the court’s ability to put a stop to such a move is very limited. By contrast, if you seek to move with your child out of South Carolina, then the court has more authority to deny the relocation if it is challenged by the non-custodial parent.

Moving Within South Carolina

It is always possible that a non-custodial parent will object in court if you propose to relocate at all. Even if the move is not a substantial one, the non-custodial parent may not want to upset the status quo.

That said, if your move is within the State of South Carolina, then the law makes it very difficult for a non-custodial parent to stand in the way of relocation. Specifically, South Carolina law provides as follows:

[T]he court may not issue an order which prohibits a custodial parent from moving his residence to a location within the State unless the court finds a compelling reason or unless the parties have agreed to such a prohibition.

S.C. Code Ann. § 63-3-530(30)

Simply stated, a court will not stop your in-state relocation unless there is “a compelling reason,” or unless you already made an agreement not to move.

Thus, if you are the parent with primary custody and you wish to move within South Carolina, then it is highly likely that you will be able to make that move. A family court judge may adjust the non-custodial parent’s visitation or responsibility for visitation transportation because of the move. Yet, absent some prior agreement not to relocate, family court judges in South Carolina almost always grant in-state relocations.

Moving Out of State

When it comes to moving to another state with a child, the legal picture is quite different. In fact, prior to 2004 under South Carolina law, there was a presumption against relocation outside the state. In other words, the default was that you could not move your child out of state unless there were compelling reasons to support the move. Since 2004, however, the law has relaxed a bit. In place of the presumption against relocation, the law calls for a four-part test to determine whether out-of-state relocation is appropriate.

Under the four-part test, a court must analyze:

The potential advantages of the proposed move, economic or otherwise;
The likelihood the move would improve substantially the quality of life for the custodial parent and the children, and is not merely the result of the custodial parent’s whim;
The custodial parent’s motive in seeking the move, and the non-custodial parent’s motive for trying to prevent it; and
The availability of realistic substitute visitation arrangements that will adequately foster an ongoing relationship between the child and the non-custodial parent.

Latimer v. Farmer, 360 S.C. 375, 384 (2004).

Applying the Four-Part Test, and the “Best Interests of the Child Standard”

Let’s look at an example to provide some context on how the four-part test would work. Looking at the plight of Marlene, who we mentioned at the top of this article, it would appear a very close call as to whether Marlene’s move would get approved by a court. Recall that she is moving 230 miles away, to Charlotte, North Carolina, to get a better paying job that provides flexible hours and is close to her relatives.

Based on the four-part test above, the first three factors argue in favor of the move, yet the last factor argues against. Specifically, there are economic advantages to the move (factor 1); Marlene is not moving on a whim, but rather being close to relatives and having flexible hours would likely improve the quality of life for both Marlene and Julie, (factor 2); and Marlene’s motives do not appear malicious (factor 3).

Yet, Marlene would be taking Julie 230 miles away from Tom. That is almost a four-hour drive. Thus, there may be very few realistic substitute visitation arrangements that would allow for Tom to have an ongoing relationship with Julie (factor 4). As you can see, the decision on an out-of-state move is highly fact sensitive.

Overall, the touchstone standard that a court must follow is the “best interests of the child” standard. That means that when a court reviews Marlene’s application to move with Julie, the court will review the facts under the four-part test above and, most importantly, it will make a decision with the child’s best interests in mind.

Conclusion

Child custody cases involve some of the most important and emotional issues that we see in family court. At the Fender Law Firm, we recognize what is at stake in child custody disputes and we approach every case with a child-centered approach. Our firm handles all types of family law cases with child-related issues, including custody, visitation, child support, paternity determination, and cases involving the Department of Social Services.

We understand the complexity of child custody cases and know how to help all those involved. Let us help you with your child custody matter. Call 843.379.4888 or contact us online today.

Image:

https://pixabay.com/photos/family-mom-and-daughter-baby-girl-1848957/

Fathers Rights in South Carolina

Child Support / Custody / Fathers Rights

One of the most important things to do is establish that you are the child’s father as soon as possible. This grants you certain legal rights such as custody and visitation.

What to Do If My Child Refuses Visitation?

Custody

Custody and visitation matters can be difficult to navigate. The waters become even murkier when a child refuses to visit the other parent..

What should you do if your child doesn’t want to visit you or the other parent? Can a child be forced to visit a parent? We’ll answer those questions and more below.

Holiday-Related Custody Issues

Custody

After you agree to a custody arrangement, the next step is ensuring that the arrangement is properly enforced. This can be more challenging during certain times of the year when schedules are not as routine as during the school year. One time when custody issues might arise is during the winter holidays.