Category Archives: Trial Strategies

Qualified Medical Child Support Orders

If you frequently (or routinely or never) use qualified medical child support orders (QMCSO) in your family court cases, their intent is to protect your clients in addressing health insurance issues and continued coverages for children of divorcing parents.  I have only occasionally seen that issue raised or addressed in mediations around the State.
Medical child support orders are statutorily recognized in South Carolina Code Ann. Section 63-17-2120.
There was also an interesting unpublished opinion filed on December 20, 2011, by the South Carolina Court of Appeals in the case of Williams v. Williams in which this was one of the trial issues.  Briefly, the mother had requested during trial that the family court judge require the father (and the father’s employer) to agree to the issuance of a QMCSO.  The father’s attorney (and, with qualifications, the father) conceded to the court that the father did not oppose this request; however, the judge failed to order it, and the Court of Appeals reversed and remanded, indicating that the on-the-record “stipulation” bound the father to comply with the mother’s request.
You may want to take another look at the QMCSO to see if it may be of benefit to your clients.  It applies to group health insurance plans subject to ERISA laws.  I found a pretty good website at which provided a substantial amount of information on QMCSOs.


Revisiting Crossland v. Crossland

On July 2, 2014, a unanimous South Carolina Supreme Court in Crossland v. Crossland reversed a 2012 decision of the South Carolina Court of Appeals on all issues (alimony, equitable division, and attorney’s fees), fully reinstated the family court judge’s order, and in the process gave South Carolina’s family court bench and bar one of the most impactful opinions rendered by our appellate courts in years.

The Crossland opinion offered a broadened view and an in depth discussion affecting an array of significant family law areas including:

  • how an appellate court determines whether a judge has “abused his or her discretion” in rendering a decision;
  • the application of the “alimony factors”;
  • a footnoted discussion regarding future modification of an alimony award;
  • the family court judge’s broad discretion to award alimony and determine the amount of the award without being held to any mathematical formula or “bright-line rules”;
  • a detailed discussion regarding “imputation of income” and “earning capacity”;
  • the appropriate test or standard for the family court judge to employ regarding when and how to measure or determine the financial impact of a party’s eligibility to receive “government benefits”, such as Social Security retirement benefits;
  • the application of the “equitable apportionment factors”;
  • the implication of the appellate courts’ favoring a 50-50 division of the marital estate in long-term marriages; and
  • the application of the factors governing an award of attorney’s fees and litigation costs.

I want to take three excerpts from this opinion which I believe might be of interest, significance and importance to the family law bar (I’m omitting any statutory or case law cited within these excerpts):

“An award of alimony rests within the sound discretion of the family court and will not be disturbed absent an abuse of discretion. …  The inartful use of an abuse of discretion deferential standard of review merely represents the appellate courts’ effort to incorporate the two sound principles underlying the proper review of an equity case.  Those two principles are the superior position of the trial judge to determine credibility and the imposition of a burden on an appellant to satisfy the appellate court that the preponderance of the evidence is against the finding of the trial court.” (Emphasis added)

“Wife seems to ask this Court to create a rule that income should never be imputed on the basis of eligibility for government benefits; however, a bright-line rule is not only unnecessary in light of existing case law, but also inadvisable. … We leave it largely to the family court judge’s discretion, however, to determine what is an appropriate alimony award in light of the circumstances of each individual case.  Formulaic principles and bright-line rules will only hinder the ability of family court judges to reach an equitable result in this individualized, fact-sensitive area of law. …“. (Emphasis added)

“This Court has held while there is certainly no recognized presumption in favor of a fifty-fifty division, we approve equal division as an appropriate starting point for a family court judge attempting to divide an estate of a long-term marriage. … The purpose of the general fifty-fifty division is to protect the non-working spouse who undertook the household duties, and to prevent an award ‘solely based on the parties’ direct financial contributions’ “. (Emphasis added)

I would strongly encourage that you make a number of copies of the Crossland case and place a copy in every case file which involves any of the issues addressed in this opinion, because I’m reasonably certain that your family court judge will have a copy of this case on his or her bench, and will be referring to it frequently in the decision-making process.


Developing A Trial or Mediation Strategy By “Deconstruction”

The longer I was able to practice family law in South Carolina, whether as a sole practitioner or as a fulltime mediator, the more convinced I became that it was absolutely essential to “deconstruct” the case I was preparing for trial or mediation.  Stated differently, I found it was critical that I try my case (or mediate it) from “the end back to the beginning”…I found that my chances of a successful outcome were dramatically increased if I tried – or mediated – a case from Z to A.

As a family law attorney, isn’t it a monumental waste of your time to develop a trial strategy without first having a bedrock understanding of, and a laser-like focus on, the outcome you want to achieve?  Do you typically “construct” your case from the ground up by calling your witnesses, introducing your evidence, and conducting your cross-examination as if you’re putting together the pieces of a jigsaw puzzle during your trial, hoping that the pieces all fit together perfectly by the trial’s end and in such a way that you’ve made a compelling case for your trial judge?

The very best family law attorneys who came before me had already prepared their “outcomes” before they ever called their first witness; and it was fascinating to watch these attorneys carefully deconstruct their case, witness-by-witness, exhibit-by-exhibit.  As a basic example of this strategy, and if the client was seeking an award of alimony, this attorney in his or her pretrial preparation would have already prepared the following:

  • the client’s testimony to address the “thirteen alimony factors”, factor-by-factor, in detail;
  • the client’s carefully prepared and accurate financial declaration demonstrating the need for an award of a specific amount of alimony necessary to make up the monthly “shortfall” (the attorney would make sure that any discretionary items in the financial declaration were not only reasonable, but purposely undervalued, making them more easily defensible under cross-examination);
  • a CPA’s review of various alimony amounts to ascertain the “after-tax” values in the event the judge might make the alimony award taxable to the client;
  • the cross-examination of the potential payor spouse, with a careful consideration of calling that spouse as an adverse witness in the event your client is the plaintiff.

Let me emphasize that your “job” as your client’s advocate is to make it easier for your trial judge (1) to understand your case thoroughly, and understand it sooner rather than later, and (2) to very comfortably decide the trial issues in your favor.

In the near future, I’m going to discuss how you (and your mediator) can also use this same “deconstruction strategy” in all of your mediations to significantly increase your opportunities for a successful (and final) resolution of your client’s case.