Category Archives: Professional Responsibilities

(My Former) Pet Peeves Regarding Proposed Family Court Orders – Misguided, Misunderstood And Misconduct

Note: A number of years ago I had written an article which I was fortunate to have published in the SC Lawyer magazine centering on the significance of family court orders.  Of interest (at least to me) is that even now I have continued to “cross paths” with family court orders which might be problematic to the attorneys and their clients; and so I thought that some of you family court attorneys out there might have and take the time to read what I had described as a “cautionary tale”, hoping that you might find something helpful to you.  Good luck out there.  [Disclaimer: this article is longer than a more “typical” blog.]

” Twas brillig, and the slithy toves did gyre and gimble in the wabe; all mimsy were the borogroves, and the mome raths outgrabe.  Beware the Jabberwock, my son! The jaws that bite, the claws that catch! Beware the Jubjub bird, and shun the brumious Bandersnatch!”*

[*“Jabberwocky” (in part) from Through the Looking-Glass and What Alice Found There” (1872 by Lewis Carroll): “When Alice has finished reading the poem she gives her impressions:  ‘It seems very pretty’, she said when she had finished it, ‘but it’s rather hard to understand! (You see she didn’t like to confess, even to herself, that she couldn’t make it out at all.) ‘Somehow it seems to fill my head with ideas – only I don’t exactly know what they are!’ ]            

 Did you read this, and did you understand what it says…and what it means? And are you certain the opposing attorney and his or her client understood it?  Perfect.  You’ve just sent your family court judge your proposed order for the judge to sign.

When you sent the “proposed order” to the judge, what exactly did you want the order to accomplish, and what result did you seek?  Did you want to sound smart?  Did you want the order to sound or be purposely vague? Were you guessing at what the judge had ordered and instructed? Did you try to cleverly add several “findings” or “conclusions” or (please say no) slip in some additional relief for your client that the judge never ordered?

Answer this question for me: in order of priorities from the list below, what do you believe is most important to your family court judge after the conclusion of your case?

  • Making certain the proposed order accurately states the judge’s ruling?
  • Making certain the proposed order is grammatically correct, with the judge’s name spelled correctly?
  • Making certain the proposed order is sent to the judge as soon after the hearing or trial as possible?
  • Making certain that if you cited statutes or appellate court opinions in the proposed order, they were a correct statement of the law applicable to the judge’s ruling?
  • Making certain the proposed order, as to form, complied with the South Carolina Rules of Family Court or the South Carolina Rules of Civil Procedure?
  • All of the above?
  • Any of the above?

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Federal Preemption And The Acronyms For Federal Retirement Plans (a/k/a The “Mysterious Alphabet” Of The Family Court)

If you have the time (or if you are able to take the time) to read through the materials below, then you’ll quickly find that you’ve entered the very murky waters of an area of the practice of family law that often sends chills up and down the spines of family court attorneys – federal preemption and federally-connected retirement or survivor plans [think “QDROs” or “COAPs”].  I’ve simply tried to give you a “taste” of some case law which might cause you to dig a little deeper into the preparation of your clients’ marital settlement agreements or your own trial preparation if your clients’ futures (and certainly your clients’ marital assets) are affected or impacted by these areas.  Good luck out there.

I.  FEDERAL PREEMPTION:

Fisher v. Fisher, 319 S.C. 500, 462 S.E.2d 303 (Ct.App.1995): “Federal preemption did not preclude application of state equitable distribution laws where Congress had not explicitly excluded (military) early separation incentive pay from state apportionment laws.”

  • Social Security benefits

 Simmons v. Simmons, 370 S.C. 109, 634 S.E.2d 1 (Ct.App.2005)“Although we are sympathetic to Wife’s claim, Social Security benefits simply cannot be divided in an equitable distribution award.  Because Congress preempted the Social Security arena, state courts do not have subject-matter jurisdiction to mandate distribution of such benefits whether by agreement or otherwise.”

  • Military Survivor Benefit Plan annuity

 Silva v. Silva, 333 S.C. 387, 509 S.E.2d 483 (Ct.App.1998):  “Major Silva (husband) and Brigitte (first wife) married in 1972 and divorced in 1985.  In a settlement agreement merged into the divorce decree, husband agreed to designate Brigitte as the beneficiary of his military Survivor Benefit Plan.  The decree provided further that the husband would complete all necessary paperwork and provide documentation that he had done so.  Although sometime during their marriage husband had named Brigitte as his spouse beneficiary, he failed to comply with the court’s order and execute the necessary forms to ensure that Brigitte, as a former spouse, would receive the benefits.

 In 1987 husband married Wendy (second wife).  In December 1992 husband died.  Because husband failed to complete the paper work that would allow Brigitte as his former spouse to collect the SBP annuity, Wendy, as husband’s widow, began receiving the annuity pursuant to the default provisions of the SBP.

 In 1994 Brigitte filed suit in circuit court seeking to (1) impose a constructive trust over the SBP payments being received by Wendy, (2) order an accounting of all SBP proceeds, and (3) disgorge all payments already received by Wendy.  At trial, Brigitte’s attorney conceded that husband assumed that Brigitte would receive the benefits because Brigitte was still named as the spouse beneficiary.  The attorney also stated Brigitte was not alleging husband was guilty of fraud, deceit, or malice by his inaction.  The trial court refused the requested relief.

 “The SBP (military Survivor Benefit Plan) was created by Congress in 1972.  The system was designed to provide an annuity payable to a retired service member’s surviving spouse or child upon the service member’s death. … A 1982 amendment expanded SBP coverage, allowing a service member the right to designate a former spouse as the beneficiary. … The following year Congress clarified the 1982 amendment and provided a retired participant the right to name a former spouse as the beneficiary if at the time of retirement the service member had designated the spouse as the beneficiary and the couple subsequently divorced.  To do so, however, the service member was required to notify the appropriate government official in writing within one year     following the date of the decree of divorce, dissolution or annulment.

 …A former spouse is allowed only one year from the date of the court order or filing to do so (write the appropriate government official upon the failure or refusal of the service member to have sent this written request).  Congress has further provided that the SBP annuity ‘is not assignable or subject to execution, levy, attachment, garnishment or other legal process.’

We find the reasoning of the Georgia court persuasive and conclude that the provisions of the SBP make clear Congress’s intention to occupy the field under these particular circumstances.”

  • Employment Retirement Income Security Act (ERISA)

 Walsh v. Woods, 371 S.C. 319, 638 S.E.2d 85 (Ct.App.2006)“Any and all State laws insofar as they relate to employee benefits plans are preempted by ERISA.  This Court has recognized that the preemptive effect of ERISA is a broad one.

 …While ERISA related claims involve subject-matter jurisdiction, 29 U.S.C.§1132(3)(1) vests both state and federal courts with concurrent subject-matter jurisdiction of certain civil actions brought by the participants or beneficiaries against an employee benefit plan.  Nevertheless, under preemption principles, federal ERISA law must control our decision on the issue of Wife II’s claim to the SSB (surviving spouse benefits).

(Factual note:  In the present case, at the time husband retired in 1989, the SSB vested in Wife I because the two were still married.  Although husband had a ninety-day  window prior to his retirement in which he could have, with Wife I’s written consent, removed her as a beneficiary of the SSB, this was not accomplished.  After husband retired, even if Wife I had agreed to waive her SSB, she could not do so under ERISA.  Wife I’s purported waiver in the divorce agreement was ineffective to waive the SSB because ERISA does not allow a beneficiary to waive SSB after a plan participant retires.  …  ERISA provides SSB may not be paid to a spouse who marries a participant after the participant’s retirement.”]

 …It does seem untoward that husband should not be able to have a component of his qualified joint and survivor annuity awarded to Wife II, rather than a woman from whom he has was divorced and did not have a relationship with for years before his death.  However, in keeping with our reading of federal law, there is no other resolution possible.

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Your Client’s Financial Declaration – The Most Important (And Often The Most Poorly Prepared) Document In Family Court Litigation

If you’ve practiced family law in South Carolina for any length of time and attended mandatory CLEs where one of the presenters was a South Carolina Court of Appeals judge, how many times have you heard that judge state (1) if the issue is related to equitable apportionment of the marital estate, then the family court judge’s order is required to have addressed in some form all of the “15 equitable apportionment factors” – or – (2) if the issue is related to alimony, then the family court judge’s order is required to have addressed in some form all of the “13 statutory alimony factors”?

And if you are the “prevailing attorney” and have been requested by your trial judge to prepare the proposed order, how would you explain to your client why the trial judge’s appealed order was “remanded” by an appellate court for (your?) failure to have expressly addressed these various, point-by-point “factors” in the order?

While remanding a case back to the family court can be costly to your client (if you’re continuing to charge a fee for this “scenario” which you may have created) and certainly time-consuming, a failure to have prepared and presented to your trial judge a client’s financial declaration which is accurate, truthful to the best knowledge of the client, thorough and thoroughly prepared (with annotations and footnotes, if necessary, or having an attached, detailed “marital assets addendum”) is a fatal error by the attorney, which can (and most often will) have a substantial effect on the financial issues decided by your trial judge.

And yet the financial declaration remains one of the most poorly prepared documents covering the entire spectrum of family court litigation.

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SEVERAL “SUGGESTIONS” TO THE YOUNG ATTORNEY FOR A LONG (AND HOPEFULLY SUCCESSFUL) LEGAL CAREER

Several months ago I had the pleasure and privilege of being asked to make a presentation to the Anderson County Young Lawyers Division, and I discussed with them the following “suggestions” and points which I had found useful over the years.  [I realize that the audience for this particular blog is the attorney practicing for less than 10 years, and that the more “seasoned” attorneys will “hit delete” very quickly…and I’m OK with that.]

1. Always, always, ALWAYS “deconstruct” your case by starting at the end of it and working back to the beginning.

2. At least once a week, go the South Carolina Judicial Department’s website – www.sccourts.org – and click on the “Video Portal” menu, and then go the “Supreme Court Archived Video” page and watch at least one case being argued before the Supreme Court (it will send chills up and down your spine, but you’ll learn more about the practice of law than any book or website or CLE can ever teach you).

3. Whether or not you think you’re smarter than an opposing attorney never matters…because it’s much more important that you develop a reputation among your peers as ALWAYS being prepared to “outwork” them on a case.

4. Your lifelong reputation among your peers is made within the first 10 years of your professional life.

5. It is (infinitely) more important for you to develop a reputation among your peers as being professionally considerate and ethical than for being a professional bully.

6. Always assume that the judge knows more about your case than you do … and, at the same time, always assume the judge knows nothing about your case.

7. If you practice family law, then memorize SCRFC, Rule 9(b) … and live by it.

8. Finally – always know that whenever judges meet anywhere – either at conferences or at lunch or in the hallways behind their courtrooms – they’re asking/talking/gossiping about YOU… and know that YOUR reputation and ability matter to them (more than you’ll ever know).

9. ALWAYS give your clients “the bad news – 100% of the time”. Since you can’t guarantee a “result” or “outcome” for your client, then it’s professionally dangerous on your part to “paint a rosy picture” about anything involved with your client’s case.

10. NEVER represent a family member or a friend in ANY contested case, in any court of law. And to insure that you remain professionally objective (so that you can do your job), never become your “client’s friend” during the litigation.

11. DRESS LIKE AN ATTORNEY. (For the men) never meet with your clients in your office – or at a mediation – wearing a golf shirt or casual clothes; (for the women) wear professional attire when meeting with your clients. I assure you that the “visual” of how you present yourself to your client is as important (to them) as the advice you’re giving them.

12. FINALLY – always remember that “this is the business we have chosen” , so NEVER take anything said to you by an opposing attorney personally…”it’s not personal Sonny, it’s strictly business” .

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The (Unintended) Consequences Of Mandatory Mediation In The Family Courts – Part 2 [The Attorneys’ Side – There Is A Difference Between ‘Wanting To’ And ‘Needing To’]

Let me say this up front: I candidly admit that I’m the embodiment of the “professional oxymoron” (most of my colleagues would prefer to just ignore the “oxy” part).  On the one hand I am, and have been for many years, very cynical regarding all things family court (i.e., you cannot be given a 15-minute block of time within which to decide the fate and immediate futures of spouses, parents, and children,  based on a maximum 8-page affidavit that is most always “borderline perjury”) … while on the other hand I remain the eternal optimist (the Pollyanna) who wants to believe that all party-litigants, when given the choice between doing the right thing by making meaningful compromises in order to achieve total control over their joint or collective futures [“Plan A”] versus these same parties placing these decisions (which will affect their lives and the lives of their children) into the hands of perfect strangers [“Plan B”], would choose “Plan A” 100% of the time.

And the eternal optimist in me would be wrong at least 50% of the time.

Having now been swimming in the mediators’ pool for approaching 7 years, I’m convinced there are unintended consequences resulting from the mandatory part of mediation in family court litigation in South Carolina.

I’ll try to explain if you’re interested in reading on.

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Was Ray v. Ray A Herald For “Open Discovery” In The Family Courts?

How many family law attorneys reading this blog believe that it’s now a form of legal malpractice not to request an “open discovery” order (i.e., permission to use the discovery rules set forth in the South Carolina Rules of Civil Procedure) at the earliest possible time and in virtually every family court case?  And in what percentage of those cases where you engaged in “open discovery” did you find it to be significantly cost-effective to your client (in other words, by the sole and specific use of pretrial discovery, you were able to achieve a final, financial result for your client which exceeded that client’s costs in attorney’s fees and litigation expenses directly related to the additional time spent in engaging in such pretrial discovery)?

Although there are most always “unintended consequences” flowing from virtually every legislative act and court rule affecting family court processes, “open discovery” in our family courts has clearly resulted in increased litigation costs, more motions to compel, delayed mediations, delayed final hearings, motions to continue for lack of the production of documents, more depositions….on and on.

As you are most probably aware, the long-standing “discovery rule” in our family courts is brief and to the point.  Rule 25, South Carolina Rules of Family Court states:

“Recognizing the unique nature of the court’s jurisdiction and the need for a speedy determination thereof, the prompt voluntary exchange of information and documents by parties prior to trial is encouraged. However, formal depositions or discovery shall be conducted only by stipulation of the parties or by court order upon application therefor in writing. Such an order may prescribe the manner, time, conditions and restrictions pertaining to the deposition or discovery.”]

In the practice of present-day family law in South Carolina I’m not aware of a single family court judge or family law attorney who use and rely solely upon Rule 25 to limit or constrict  the framework within which to navigate a domestic relations case.  I am very much aware, however, that a decade ago there were significant efforts by several family court judges to overhaul and expand Rule 25, all of which were “shot down in flames” by both the bench and bar.

And then along came the case of Ray v. Ray, 647 S.E.2d 237, 374 S.C. 79 (S.C., 2007).

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A “Guest Blog Post” From Family Law Attorney Nancy Jo Thomason – “The Ease (And Sense Of Security) In Filing A Family Court Transcript Of Judgment”

My good friend, and mentor, Barry Knobel, recently wrote a blog about protecting your family court client’s potential assets in a divorce case by filing a lis pendens at the commencement of the action, and that blog concluded with a reference to filing a transcript of judgment as “additional protection”.  The blog could not have been more timely.

Recently, I had my first opportunity in my 21-year family law career where I found it necessary to file a family court-authorized transcript of judgment, and I asked Barry if he would be willing to let me share with you the very simple steps necessary to perfect such a lien.  Since I don’t have my own blog (and rarely have anything new or useful to offer), Barry said he would welcome my being his “guest blogger” so that I could share my experience with you.

There are two sections found in Title 20 (domestic relations) of the South Carolina Code of Laws which govern the filing and enrolling of a transcript of judgment with the clerk of court’s office – South Carolina Code Ann. §20-3-670 and §20-3-680. The first section gives you the authority to record the transcript of judgment; the second actually gives you the form to use and file. Very easy!

In my case, my client (the wife) is to receive certain payments when some land which was solely in the former husband’s name is sold. Since a title search might “miss” the order entered by the family court, it was essential to file, record, and index a transcript of judgment which would better protect her financial interest in this property.

The husband’s attorney and I agreed to include a “transcript of judgment” provision in the parties’ divorce decree, and I then sent the judge both the decree and the transcript of judgment. Continue reading

For The South Carolina Family Law Attorney – “Scenarios” To Read At Your Own Peril: Scenario No. 2

Last week I posted the first “scenario” in a blog series which I’ve entitled “Scenarios” To (Insure) You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril; and rather than my restating the “history” behind these “scenarios”, I would simply request that you read that last post … and I’ll press on.

Scenario No. 2

You represent the husband in a contentious divorce action resulting from an even more contentious, long-term marriage.  The litigation has been pending for some time now, and finally after engaging in several previous settlement conferences and a protracted mediation, progress has finally been made in the parties reaching a complete agreement.

Your client is an engineer who has been employed for a number of years by a well-known and hugely successful engineering firm, and he’s convinced that he’ll become a partner in this firm sometime in the future.  The husband has been the sole source of income for the family throughout this lengthy marriage.  The wife has been a homemaker.  The children are all now adults and living away from home. The wife’s attorney and you have been diligently working on drafting a detailed marital settlement agreement covering a variety of marital issues, including the division of extensive financial holdings acquired by the husband over the years of their marriage.

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“Scenarios” To (Almost) Insure You Will Need To Insure That Your Professional Liability Policy Is Current (Read At Your Own Peril) – Scenario No. 1

On October 30, 2008, I made an ethics presentation to our Anderson, South Carolina Inn of Court during which I presented 18 different “scenarios” of varying fact patterns regarding real-world issues encountered in family court litigation.  What remains fascinating to me, however, is that in the 6+ years following that presentation, I still continue to see (and to encounter in my mediations) those identical problems and pitfalls.  So I thought it might be interesting to share these “scenarios” with a wider range of family law attorneys to see whether and how you address them in your family law practices.  At the very least, I hope that some of you will find this informative (and maybe, at times, even helpful).  Here’s the first one:

Scenario No. 1:

The husband and wife are both represented by attorneys in their divorce action. You represent the wife. The parties have reached an agreement which is approved by the family court judge at their final, uncontested hearing. The judge signs the divorce decree which provides for a merger of the agreement into the decree.

The agreement provides, in part, that the parties will sell “by owner” a 20-acre tract of land and divide the net sales proceeds equally. This tract is titled solely in the husband’s name.  Aside from this “marital asset”, which is the most valuable one to the parties, the other marital assets were several bank accounts and the furnishings, all of which have already been divided between the parties prior to their final divorce hearing.

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Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

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