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No Fault Divorce In South Carolina

March 11, 2015March 17, 2015 admin

I frequently get asked "what are the grounds for divorce in South Carolina" and "do I really have to wait a year to get divorced?" The answer, as always, is it depends. In South Carolina there are two types of divorces- fault and no fault. No fault divorces can be granted upon the separation of one year and I'll discuss that process in this post. At fault divorces do not have a year long separation requirement and I will discuss the at fault grounds in another post.

The only way one can obtain a no fault divorce in South Carolina is by "living separate and apart without cohabitation for a period of one year." A divorce on this ground can be granted immediately once responsive pleadings are filed, or thirty days after the defendant is served if the defendant does not respond. For a divorce under separation of one year both parties must be aware of the fact that they are separated before a divorce can be granted. This is important for our military personnel because separations caused by military service cannot be used as a basis for divorce unless the parties separated before the forced separation for reasons other than military service.

The term "separate and apart" for the purpose of a no fault divorce means that the spouses are not living together under one roof. The South Carolina Supreme Court has found that even when the husband and wife testified that they lived in separate rooms and did not have sex for the year long period, that the spouses did not live separate and apart in the eyes of the law and therefore did not meet the requirement to obtain a divorce. This means that the husband and the wife must live in separate houses, apartments, etc. during the year long separation.

The Courts, however, have been unclear whether spouses who have sexual relations during the one year separation or attempt to reconcile should be forced to restart the one year clock after the event before they are divorced. No South Carolina courts have directly addressed this concern, however, family court judges will examine the intentions of the husband and wife and the facts surrounding the sexual intercourse. As a practical matter I would advise all my clients that some family court judges will rule that an isolated act of sexual relations requires the one year period of separation to restart and I advise my clients against this.

To obtain a no fault divorce in South Carolina, one does not have to file anything with the courts to start the one year clock. One can file as soon as the year is over and the court may schedule the hearing on the no-fault immediately upon filing as long as the other spouse is served with the action and has either answered or allowed the thirty day time frame for an answer to elapse.

If you or a loved one has any questions regarding your rights during a divorce please do not hesitate to contact Thrower & Schwartz.

Grounds For An At Fault Divorce in South Carolina

March 11, 2015March 17, 2015 admin

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

March 11, 2015March 12, 2015 admin

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.

Gun Laws In South Carolina

March 11, 2015March 12, 2015 admin

Gun laws in South Carolina can be confusing. I get frequent questions from friends and family about them so I’m going to explain them as best as I can in this blog. Violations of gun laws, even innocent ones, can bring hefty fines, confiscation of the gun, jail time and a blemish on you record. Because each state has different gun laws, when you travel between states, it is hard to know what is legal and what is not. It should be noted that no other states recognize the South Carolina Concealed Weapons Permit (CWP) so when traveling to other states you need to be aware of the local rules. The purpose of this post is to assist South Carolina Residents or people who are passing through our beautiful state in better understanding the laws so that they don’t fall on the wrong side of the law unintentionally. Ignorance is not a defense! It should be noted that there are many exceptions for law enforcement officers, constables, gun dealers, off duty and reserve police officers and various others.

Who Is Prohibited From Possesing A Firearm In South Carolina?

People who felons, a violent crime, criminal domestic violence, or under a domestic order of protection, also known as a restraining order, by Family Court, are all forbidden from possessing a firearm or ammunition at any time.
Drug addicts or users, illegal aliens, a veteran who has a dishonorable discharge, an alien under a non-immigrant visa, or a fugitive from justice may not possess a firearm or ammunition at any time.
Even if you have not been convicted of a felony but are awaiting trial for felony charges you may not possess a firearm.
If you have a domestic order of protection and it expires, you may be able to get your gun rights back. If you are convicted of criminal domestic violence but it has been expunged, you may be able to get your gun rights back.

I Don’t Have A CWP, Where Can I Carry My Handgun In My Car?

This is a question that we get asked frequently so I will try to lay out the rules in a clear manner. You may carry a handgun in your vehicle if it is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and being transported in the luggage compartment of the vehicle. The exception to this is that you cannot bring the gun to a school or college.

The term internal fastener creates some ambiguity and it is somewhat unclear what the South Carolina legislature meant when they used that term. To be safe, we suggest that if you are using a container to transport a handgun that it is something lockable with either a snap or latch. This means a shoebox or a backpack won’t qualify.

“Luggage compartment” also causes some ambiguity, but the law provides a definition. It means that the trunk if the car has a trunk. If the car doesn’t have a trunk, like a station wagon or a sports car with a hatch, it means “the area of the motor vehicle in which the manufacturer designed that luggage be carried or to the area of the motor vehicle in which luggage is customarily carried.” In a station wagon, van, or SUV the term “luggage compartment” would be the area behind, but not under, the rearmost seat. In a truck, the luggage compartment would be the area behind the rearmost seat but not under the front seat.

Motorcycle riders must secure the handgun in a closed saddlebag or another similar closed accessory container.

Under NO CIRCUMSTANCES are you allowed to carry the gun under your seat, in your pocket, on the floor, or anywhere not specifically mentioned above.

I Have a CWP, Where Can I Carry In My Car?

All the above mentioned places in the previous answer as well as “on your person.” This term is vague. To be safe, we recommend that that you carry it holstered and concealed on your person. While we would argue that under the driver’s seat or between the seat and console would suffice if you had a CWP, this falls into a gray area of the law which may be construed by the police as a violation of the law.

Where Can A Concealed Weapons Holder Walk Around With A Gun In South Carolina?

It is actually easier to explain where the CWP holder cannot carry a handgun in South Carolina. Everywhere else is okay, as long as it is CONCEALED. Unlike some states, South Carolina is not an “open carry” state. The gun must be concealed and the holder must have a CWP. The CWP holder can carry the gun everywhere except the following places:

Police stations, Sheriff’s departments, jails or prisons or other law enforcement facilities.
Restaurants that serve alcohol by the glass UNLESS you are not drinking
Courthouses and courtrooms
Polling places on election days
School or college athletic events not related to firearms
Offices or meeting places of government entities
Daycares and preschools
Places where firearms are prohibited by federal laws
Churches or religious sanctuaries unless permission is given by the head of the facility
Hospitals, medical clinics, doctor’s offices or other places where medical services are rendered unless given permission by the head of the facility
Homes, apartments, or other dwellings unless you have the express permission of the person living at the residence
Business or other establishments that post “No Concealed Weapons Allowed” signs or that otherwise express that they do not want concealed weapons on their premises
If you do bring a gun to a school or a college of any kind, don’t carry the gun on you. It must be in the closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle
Homes, apartments, or other dwellings unless you have the express permission of the person living at the residence
Any person may carry a concealed weapon from their automobile to a hotel room that he has rented

What about my business?

If you are a business owner or the person who is in control of the business, you may carry a handgun at your business. If you are an employee, you may ONLY do so if you have a concealed weapons permit AND you have permission of the owner.

How to keep concealed weapons out of my business?

To keep out concealed weapons you must post a sign that is clearly visible from the outside of the building. It must be at least eight inches wide and at least twelve inches tall. It must state “NO CONCEALED WEAPONS ALLOWED” in black, one-inch tall all capital letters at the bottom of the sign and centered between the lateral edges of the sign. It also must have a black silhouette of a handgun inside a circle seven inches in diameter with a diagonal line that runs from the lower left to the upper right at a forty-five degree angle. It must be placed between forty and sixty inches from the bottom of the building’s entrance door. If the place does not have the doors, then check with a lawyer to make sure the size and other requirements are met.

Hunting in South Carolina

Hunters and fisherman who are hunting or fishing or going to or from their places of hunting or fishing, while in a vehicle or on foot, are allowed to carry a handgun.

Selling a handgun in South Carolina

You cannot sell, offer to sell, deliver, lease, barter, rent, exchange, or transport for sale into this State any handgun to people convicted of violent crimes, fugitives from justice, habitual drunkards, drug addicts, or people who have been adjudicated incompetent, a person who is a member of a subversive organization, people under the age of eighteen (with certain exceptions including members of the Armed Forces or R.O.T.C.), people who have been adjudicated unfit to possess or carry a firearm by order of a circuit judge or county court judge, and illegal aliens. It is also illegal for those mentioned above to carry or possess a hand gun.

Finally, if the serial number has been removed or obliterated, you can’t buy, sell, own, or carry the handgun, and you should probably contact an attorney to decide on how to dispose of it.

If you are selling a handgun, it is recommended to hire an attorney to draft a bill of sale so that the transfer is documented. This protects you as the seller if the gun is used in a crime down the road. This allows you to show that the gun legally left your possession and went to someone else.

Other Weapon Crimes in South Carolina

There are numerous weapons laws in South Carolina, and if you have any specific questions, you should always consult with an attorney. Some of the more common offenses dealing with weapons are: You can’t own or possess an automatic weapon, sawed off shot gun, short barreled rifle with out a Class III weapons permit from the ATF. You can’t bring to school any weapons which include knives with more than a two inch blade, a black jack, a metal pipe or pole, firearms, or any other type of weapon, device, or object which may be used to inflict bodily injury or death. The exception is that a concealed weapons permit holder may carry the weapons inside an attended or locked vehicle and is secured in a closed glove compartment, closed console, closed trunk, or in a closed container secured by an integral fastener and transported in the luggage compartment of the vehicle.

Also, you cannot point a firearm at another person, fire into a building or any structure that could be occupied by people, or at a car, boat, or aircraft.

Do Other States Recognize South Carolina CWP’s and Vice Versa?

Reciprocity means there is an agreement between states to recognize each other’s laws. South Carolina has reciprocity with certain states regarding concealed weapons permits. This means that if you hold a CWP in South Carolina, various other states will recognize it, but you still must comply with the state’s laws while you are in that state. The South Carolina Law Enforcement Division has a list of states that have reciprocity with South Carolina. The states include: Alaska, Arizona, Arkansas, Florida, Idaho (Enhanced only), Kansas, Kentucky, Louisiana, Michigan, Missouri, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Texas, Tennessee, Virginia, West Virginia, and Wyoming.

General Thoughts On Handgun Laws in South Carolina

Many South Carolinians own guns and use them for recreation, hunting, self defense and many other fun and lawful purposes. If you are a gun owner or you are thinking about buying your first gun, you should familiarize yourself with the laws in South Carolina so that you don’t get caught unknowingly violation a law. Concealed weapons permit classes required to obtain a CWP in South Carolina give a brief overview of the laws in our state and we encourage everybody to take the class and obtain his CWP. Practice common sense when dealing with any firearms and as always, if you have any questions don’t hesitate to contact Thrower & Schwartz.

This article is written as a brief overview of gun laws in South Carolina. It doesn’t address every law nor does it address any specific legal situation or crime. If you have specific questions regarding guns, carrying a gun, CWP, selling a gun or you have been charged with a gun crime, call the attorneys at Thrower & Schwartz to discuss your rights and options.

What To Do If The Police Stop Me To Talk

March 11, 2015 admin

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.

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Lawyer Ryan Schwartz | Lawyer Criminal Defense

Lawyer Ryan Schwartz | Featured Attorney Criminal Defense