Family Law Myths

Common Family Law Legal Myths

We have all heard of urban myths, and while they might be funny, scary or just entertaining, they are usually accepted for what they are — myths. But you may not be aware that there are many legal urban myths.

These are legal conclusions that the general public believes to be "the law," when in fact they are not only false, but reliance on them causes people to make mistakes which can potentially cause great legal harm. Family law (or domestic law) seems to have more than its share of these legal myths, and belief in these legal myths causes more than their share of problems in the way we conduct our lives.

Below you will find some of the most common family law legal myths collected by the attorneys in our office in more than thirty-five years of practice. In that time, that Kinard & Kinard Law Firm has been providing legal help for families in the Charleston area as they deal with divorce, fight for custody of their children, attempt to determine a proper amount of child support and spousal support (also known as alimony), and what is the proper way to begin the divorce process.

• If you live with someone for seven years you have a common law marriage 
• I can get a quickie divorce in Las Vegas or Mexico and it will be valid in South Carolina 
• My child support should be the same as my neighbor's if we have the same number of children 
• Women do not pay child support 
• I am out of work, so I should not have to pay child support 
• If I pay child support for two children and one child becomes emancipated, I can simply divide my support payment in half and reduce the amount of child support I pay by half
• I can no longer receive child support when my child reaches the age of 18 years 
• I can receive child support while my child is in college 
• If the non-custodial parent does not pay child support, I can deny visitation to that parent 
• I can “sign away” my rights to my child and no longer have to pay child support 
• My child can choose who he or she lives with once he or she is 13 years old 
• If my child is in my possession, I can initiate a custody action in South Carolina no matter where the other parent resides
• It will save me money to represent myself in family court 

MYTH: IF YOU LIVE WITH SOMEONE FOR SEVEN YEARS YOU HAVE A COMMON LAW MARRIAGE

There is no magic number of years which creates a common law marriage. A common law marriage is created when a man and woman declare to one another that from a certain moment on, they are husband and wife. There must be a "present sense" intent to be husband and wife, not a promise that some day we will be "married for real." Just as when one marries and has a marriage license issued by the county probate court, a ceremony of some sort must take place, even if it is just the two of you, alone, saying the words to one another. To prove a common law marriage you should be able to point to a specific event when you and your partner said "I do."

You may have heard that any one of the following means you are common law married: filing joint tax returns, taking your partner's last name, living together in the same home, having children together, insuring your partner as a spouse on your health insurance or life insurance, or introducing your partner as your spouse to the general public. In fact, these events do not create a common law marriage, but are merely evidence that attorneys offer in a trial when one partner disputes the existence of the common law marriage.

What generally occurs is this: when the two partners separate, one party alleges the common law marriage and the other party denies it. To prove that the marriage exists, a hearing is held before a family court judge. The party claiming the common law marriage must testify as to when and under what circumstances the two partners agreed to be married. Then, as proof that such an agreement was made, the party claiming the common law marriage will present joint tax returns, envelopes which are addressed to the woman using the man's last name, etc.

All, when viewed together, may convince a family court judge that the parties did intend to be husband and wife. Then, the family court can equitably divide the property you acquired during the marriage, award alimony (if appropriate), and grant a divorce.

Obviously, because of the lack of certainty, it is best to get that marriage license. If the family court finds that there is no marriage, no alimony (spousal support) can be awarded nor can the family court make a division of property you acquired during the time you lived with your partner.

If you have had children, the family court can still award custody and child support even if the family court finds there was no marriage. However, that child would be considered illegitimate.

There is proposed legislation which would do away with common law marriages in South Carolina. This is another reason not to rely on a common law marriage if you want to ensure that your marriage will be recognized as valid. Because the law in South Carolina could change any minute on this issue, you can call the Kinard & Kinard Law Firm to determine if you have entered into a common law marriage.

MYTH: I CAN GET A QUICKIE DIVORCE IN LAS VEGAS OR MEXICO AND IT WILL BE VALID IN SOUTH CAROLINA

It may be possible to go to another state or country to get a divorce. However, you probably can't get the divorce very quickly. Most states require that you live there for a period of time, usually at least six months, before you can get a divorce there, unless your spouse lives there, too. Even if there is no residency requirement and you get a divorce, usually, only the state where you last lived as husband and wife can take jurisdiction over division of marital property, child support, child custody, and alimony. The divorce does you little good if none of the issues of the marriage can be resolved.

Jurisdiction is a tricky issue, but here at the Kinard & Kinard Law Firm, we can help you determine if South Carolina has jurisdiction to decide custody of your children, to grant you a divorce, or to require you to pay child support or alimony. Give us a call and we will determine if we can help you, even if it means telling you that you need an attorney in another state instead of a South Carolina attorney.

MYTH: MY CHILD SUPPORT SHOULD BE THE SAME AS MY NEIGHBOR’S IF WE HAVE THE SAME NUMBER OF CHILDREN

In South Carolina, child support is determined by the Department of Social Services (DSS) Guidelines. This does not mean that DSS has anything to do with your child; this is just what the guidelines are called. You cannot compare your child support with another parent's unless you live identical lives.

The guidelines basically take into consideration six pieces of information:

1) The gross income of the father
2) The gross income of the mother
3) Cost of work-related child care for the children being supported
4) Cost of the health insurance for the children being supported
5) Number of children being supported
6) Whether either parent has children other than the ones being supported.

There are other variables which may affect the amount of support, but these six factors are generally what are considered. Because the Kinard & Kinard Law Firm uses the same program the family court judges use in determining child support, you may call us and we will help you determine if you are receiving the proper amount of child support.

MYTH: WOMEN DO NOT PAY CHILD SUPPORT

There is no distinction between men and women when determining who should pay child support and how much should be paid. Unless a mother can prove she is disabled, if the father gets custody he will in most cases be awarded child support. There are limited circumstances where child support will not be awarded, but it has nothing to do with gender. If you feel that you should not pay child support, you are encouraged to call the Kinard & Kinard Law Firm at (843) 856-6440 and we will offer you advise over the phone.

MYTH: I AM OUT OF WORK SO I SHOULD NOT HAVE TO PAY CHILD SUPPORT

If you are truly disabled and a doctor will testify as to your disability, a family court judge can determine that you should not pay child support for the duration of your disability. Generally, however, you must be determined to be permanently disabled, as determined by the Social Security Administration, to be relieved of your obligation to pay child support. In that case, Social Security benefits are often available for your child and payable to the custodial parent.

If you are not disabled, the family court could find that your are voluntarily unemployed and "impute" income to you. This means that the family court would determine what you are capable of earning and use that amount in the child support guidelines calculation.

If you are only working part-time or if you choose to work a job which pays less than you are capable of earning, the family court can determine that you are voluntarily underemployed and then impute full-time employment to you. A parent will sometimes say "before I will work hard and pay money to the custodial parent, I will take an easier job or work part-time."

If the family court finds that your decision to reduce your income is fueled by a desire to thwart the child support award, the judge has the power to determine what you are capable of earning and then determine child support based on that figure. Before you change jobs, we encourage you to call the Kinard & Kinard Law Firm at (843) 856-6440 to discuss the implications of your decision before you find yourself paying child support based on income you no longer earn.

MYTH: IF I PAY CHILD SUPPORT FOR TWO CHILDREN AND ONE CHILD BECOMES EMANCIPATED, I CAN SIMPLY DIVIDE MY SUPPORT PAYMENT IN HALF AND REDUCE THE AMOUNT OF CHILD SUPPORT I PAY BY HALF

Because child support is determined by Department of Social Services (DSS) guidelines which take into consideration the six factors as set out above, one cannot simply divide their child support by the number of children they are supporting and apportion that percentage to a particular child. It is simple to determine how much your child support should be and if you call Kinard & Kinard Law Firm at (843) 856-6440 we will, without charge, gladly determine how much your child support should be by using the same computer program used by the family court judges.

MYTH: I CAN NO LONGER RECEIVE CHILD SUPPORT WHEN MY CHILD REACHES THE AGE OF 18 YEARS

In South Carolina, if your child is still in high school, you can receive child support until the child is 19 years old. If your child suffers from a disability, it may be possible to receive child support long after the child reaches the age of 18 years. You may call the Kinard & Kinard Law Firm at (843) 856-6440 and we will discuss with you, over the telephone, when child support should terminate.

MYTH: I CAN RECEIVE CHILD SUPPORT WHILE MY CHILD IS IN COLLEGE

In South Carolina, once a child is emancipated (graduated from high school and over the age of 18 years, without a disability), a custodial parent usually can no longer receive child support. However, a child of divorced parents can receive contributions toward their college related expenses under certain circumstances. If your child is ready for college, call the Kinard & Kinard Law Firm at (843) 856-6440 and we will discuss whether you can be made to contribute toward your child's college expenses.

MYTH: IF THE NON-CUSTODIAL PARENT DOES NOT PAY CHILD SUPPORT, I CAN DENY VISITATION TO THAT PARENT

Of all the legal urban myths, this one seems to cause the most trouble. What occurs is that pursuant to a family court order, one parent has custody and the other parent has visitation and is required to pay child support. The non-custodial parent fails to pay child support but still wants to visit.

A failure to pay child support does not automatically terminate a parent's right to visit. Two wrongs do not make a right. If the non-custodial parent fails to pay child support, he or she is in contempt of court.

But, if you fail to comply with the court order by denying visitation, you are in contempt of court, also. The family court judge has the power to put both of you in jail, even if you did not stop visitation until after you stopped receiving child support.

The proper course of action when you do not receive child support is to call the Kinard & Kinard Law Firm at (843) 856-6440, or an attorney of your choice, and file a Rule to Show Cause against the non-paying parent. You will have a much better result if you have complied with your court order when you enter the family court. The family court likes parents who comply with their orders.

MYTH: I CAN “SIGN AWAY” MY RIGHTS TO MY CHILD AND NO LONGER HAVE TO PAY CHILD SUPPORT

There is a way to terminate your rights to your child. This is very extreme action and the family court will only do this under very specific and extreme circumstances. The relationship between parent and child is so important that our state policy is to protect that relationship when possible.

Think of it this way: If all you had to do is sign a piece of paper and you would no longer have an obligation to pay support, then there would be far fewer people sitting in jail for failure to pay child support. Obviously, there must be more to it that this - and there is.

In South Carolina, if you fail to visit your child for six consecutive months, or you fail to pay child support for six consecutive months, then a family court judge can terminate your rights to your child. This does not mean that the family court will do this, but they can. As an example, a family court will terminate rights if there is another parent ready to step into your shoes — as in an adoption.

As with most of family law, this is a very complicated issue and you should make no assumptions about the law as it pertains to termination of rights. If you believe that you are in danger of have your rights to your child terminated, it is imperative that you contact an attorney. Termination of parental rights is forever.

At the Kinard & Kinard Law Firm, we have handled termination cases and can help you understand if you are in danger of having your rights to your child terminated.

MYTH: MY CHILD CAN CHOOSE WHO HE OR SHE LIVES WITH ONCE HE OR SHE IS 13 YEARS OLD

There is no age at which a child has the absolute say over which parent he or she lives with. However, as a child ages, if he or she feels strongly about living with one parent over the other, you can file for custody and a guardian ad litem (GAL) will be appointed for your child and your child can tell the GAL how he or she feels, and why. The GAL will have the opportunity to tell the family court judge of your child's preference.

When custody is initially determined, a custody decree is issued. The issue of custody can be revisited if there is a substantial change of circumstances which affect the child's best interests. This custody decree can be modified if the non-custodial parent can show the court that because of these changes in circumstances the child's interests would be best served by a change in custody. A strong desire to live with the other parent is a change of circumstance that will be considered by a family court judge.

The Kinard & Kinard Law Firm has handled many custody cases and the attorneys in the firm are intricately familiar with the facts family court judges take into consideration when determining which parent should have custody.

If your child is voicing a desire to change the existing custody arrangement or if you are just separating and you feel your child will voice a preference to live with one parent over the other, please contact us before taking any action. Legal guidance before taking action is one of the most important factors in a positive outcome in family court cases.

MYTH: IF MY CHILD IS IN MY POSSESSION, I CAN INITIATE A CUSTODY ACTION IN SOUTH CAROLINA NO MATTER WHERE THE OTHER PARENT RESIDES

Where a custody action is litigated is determined by where the child resides. As with the issue of where to get your divorce, where to file for custody is a jurisdictional issue. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is the state statute which determines which state has the power to hear and decide custody and visitation issues. The UCCJEA was enacted uniformly with other states to resolve problems which arise when two states attempt to take jurisdiction over a child.

The UCCJEA comes into play when the parents reside in different states. Generally, where ever the child has resided for six months prior to the commencement of the custody action is the "home state" for purposes of determining that child's custody or visitation issues. As in most family law areas, there are exceptions, and it is important to get legal advice from an attorney who is familiar with this statute before taking action.

The attorneys with the Kinard & Kinard Law Firm have handled many UCCJEA cases. If you have questions about where to bring an action to get an initial custody or visitation decree, or if you want to modify an existing decree issued in South Carolina or another state, contact one of the attorneys at the Kinard & Kinard Law Firm. We are sure we can help you decide where to file your action.

MYTH: IT WILL SAVE ME MONEY TO REPRESENT MYSELF IN FAMILY COURT

Of all legal urban myths, this is the most dangerous. If you have read even a portion of these myths you should realize that it takes a great deal of information, experience, education, and knowledge of the law to handle a family court case. There are attorneys who choose to "dabble" in family law and, even with their legal training in other areas of the law these attorneys find that they are incapable of maneuvering through the vast number of rules, cases, statutes and facts one needs to have at their disposal to successfully litigate a family law case. There is not only the substantive law, which tells us how an issue should be resolved, but there is also the procedural law, which tells us how to go about correctly getting the case before the judge. You may understand the substantive law, for example knowing how to figure child support, but if you fail to follow the proper procedure, your case will be thrown out of court and you will have to start over again.

In the many years we have been helping the people in Charleston, Berkeley, Dorchester, Colleton, and Horry counties, we have encountered practically every kind of case. We learn something new every day and every day we help guide others through the complexities of the domestic case.

You may feel that paying an attorney is something you cannot afford, but you need to think of this: A family court judge is one of the only judges in the United States that can take everything you now own, and a large percentage of everything you earn in the future, without a jury trial. You will feel the impact of a family court case every month as you write or receive that support check and as you see, or don't see, your child.

If your car is broken, unless you are a mechanic you would never consider attempting to fix it. If you need heart surgery, you would never consider doing the operation yourself. If you need legal help, you need a good lawyer who fully understands not only what you are going through, but how to help you get through it successfully. The attorneys at Kinard & Kinard Law Firm can do this.

At the Kinard & Kinard Law Firm, we spend a great deal of time attempting to undo what a client has done by trying to represent him- or herself. This always costs more than if the client had come to us in the first place. Without fail, clients remark that had they only known, they would never have attempted to represent themselves.

If you would like to contact our office to set up time to meet with us, call (843) 856-6440 or fill our out online contact form to contact us by e-mail.

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Kinard & Kinard of Mt. Pleasant, South Carolina, is an East Cooper law office primarily serving the Charleston-Berkeley-Dorchester Tri-County area. We also serve the areas of Daniel Island, Isle of Palms, Sullivan’s Island, Hanahan, and North Charleston, downtown Charleston, and West Ashley, Moncks Corner, and Summerville.