SPLITTING-UP: Equitable Division of Marital Assets and Debts

Part of almost any divorce is dividing the Marital Estate. In South Carolina, the law requires “equitable division.” This includes identification, valuation, and fair division of the Marital Estate. What’s fair is largely in the discretion of the judge, which is one reason negotiating a settlement may be in your best interest.

In South Carolina, the Marital Estate is defined by Code Section 20-3-630. Generally speaking, the Marital Estate includes all assets and debts acquired during the marriage (bank accounts, cash, retirement plans, credit cards, lines of credit, houses, time-shares, vehicles, boats, IRS debt, stocks, frequent flyer benefits, furniture, art, antiques, collectibles, military benefits, etc.). There are some exceptions, however, such as inheritance and gifts, which even if acquired during the marriage are usually not marital property. This is not to say an inheritance or gift can never be marital property. If individual assets are commingled with marital property or the other spouse’s assets, they may be subject to equitable division. For instance, if inheritance funds are deposited into a joint account, they would then be subject to equitable division by the Family Court. Likewise, “transmutation” and “special equity” are legal doctrines whereby individual assets may become subject to equitable division if they have been treated by the spouses as marital property or if significant contributions are made by the non-owner spouse. For example, where an individual owns a home at the time they get married, if their spouse contributes to the mortgage payment, makes substantial improvements, pays the taxes, etc., the Family Court may deem the home marital property and divide its value between the two spouses. How property is titled has no bearing on how it will be divided by the Family Court. The value of marital assets can be determined through appraisals, market analysis, estimated resale value, military regulations, expert opinion, and various other means.

The Court will also determine each spouse’s responsibility for the debts acquired during the marriage. As with assets, it makes no difference who’s name the debts are held in. Typically in the eyes of the Family Court any asset acquired and any debt incurred during the marriage is the asset or debt of both spouses. In deciding how to divide the marital debt, one factor the Court will consider is for what purpose the debt was acquired. For example, credit card debt used to purchase items for the household will likely be divided fairly equally; whereas, if one charges a vacation with their paramour, it’s not likely their spouse would be required to contribute to that debt.

You must file an action for Divorce or Separate Support and Maintenance in order to stop the accumulation of marital assets and debts, and secure the marital estate. Courts can not turn back the hands of time and the Family Court will usually not un-do what’s been done during the marriage. If a spouse cashes in his or her 401(k) and gambles the money away in Vegas before the other spouse files an action in the Family Court, it is unlikely the Court would require him or her to reimburse the other spouse any portion of those funds unless it can be shown it was done in contemplation of the Family Court action. Another way to say it is what’s done is usually done. This is one reason it may be important to file very soon after your separation.

Each spouse is generally deemed to have a fairly equal interest in the Marital Estate; although, there is no rule requiring the Marital Estate to be divided 50/50. The Court will consider many factors in deciding what is a fair division. This will include the length of the marriage, marital misconduct (adultery, physical cruelty, drug abuse, alcoholism), both spouse’s income, alimony, custody, etc. These factors are spelled out in SC Code Section 20-3-620.

Even in a relatively short marriage it is important to consult with an attorney when going through a separation or divorce. You may be entitled to more than you realize. If you have very few assets, it is still important to know your rights regarding marital debt, and to understand your exposure to future debts that may be incurred by your spouse.

To schedule an appointment with Ms. Adkins, call (843) 486-2442 or email her at Dana@DanaAdkinsLaw.com.

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Snooping and Spying Spouses

It’s a horrible feeling when you “know” in your gut that your spouse is cheating, but if you’re not careful snooping may land you in a great deal of legal trouble. A 2012 Wall Street Journal article reports several instances of spouses who were convicted of stalking, harassment, invasion of privacy, and violations of the federal Wiretap Act for going too far. In addition to criminal charges, the even greater risk is civil penalties. There are several instances in which a spouse was ordered to pay upward of $20,000 in damages for illegally accessing their spouse’s electronic communications.

Even your spouse has a legal right to privacy. Federal wiretapping laws protect personal communications, as do many state laws, from unauthorized access. In this age of technology snooping has many forms from reading email messages, reading text messages, recording conversations, using hidden cameras, accessing Facebook accounts, utilizing “find my iPhone” features to track movement, to GPS tracking. In 2012, the American Academy of Matrimonial Lawyers reported, 92% of divorce attorneys have seen a rise in the use of information obtained from smartphones, particularly test messages, as evidence in divorce proceedings. As has been declared – “Divorce: There’s an App for that.” Assuming you dig something up, however, it may not necessarily be admissible in court.



Judges tend to frown upon parties who attempt do-it-yourself unearthing of evidence. There are many evidentiary issues that could prevent the evidence from being considered by the court, including authentication, hearsay, and fruit of the poisonous tree. Once a case is filed in the Family Court, however, your attorney will have the right to obtain your spouse’s phone records, emails, Facebook posts, etc. through a formal (and legal) process called “discovery.’ A licensed private investigator can also (legally) obtain the evidence needed to prove your case in court. 



Bottom line: If it feels like you are invading your spouse’s privacy, you are probably obtaining the information illegally. The risks likely outweigh the benefit. You will be better served by hiring an attorney to guide you through the legal process. Also, it’s important not to lose yourself in the course of a divorce –

You know who and what your [spouse] is, so the question is who you are and what has this marriage done to you. You know that being an electronic parole officer is not going to make your [spouse] faithful and reliable. You say [s]he has put your health at risk and your marriage is a sham. So the real question is not whether your snooping is justified, but when you are going to decide to get out.

(Emily Yoffe, Ethics of Spying on Your Spouse, Slate.com, October 23, 2012.)

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How do I choose the right attorney? And, how much will it cost?

Last week, Laura Moore, who is a dear friend and colleague, shared an article titled “What Do You Say When Prospects Ask How Much You Charge.” Although, the article was targeted at Trust and Estate attorneys, the message resonates with anyone uneasy about the expense of legal representation or how to choose the right attorney. Having adapted the message a little, I hope the remarks below will elucidate how my relationship with a client starts.

First, let me say, if you’re shopping around for the attorney offering the best deal, stop. This is the wrong approach and I’m glad I caught you in time. The question you want to ask first is “What do I really need from my attorney to ensure my rights, my family, and my finances are protected and cared for the way I want?” Far too many people decide which attorney to hire based on what it’s going to cost. Sometimes, that may be the right criteria. Most of the time it’s not.

The problem is you don’t know what you don’t know. When you get on the internet to find a cheap attorney or fill out canned documents from a book or DIY kit from the web, you don’t know what you are actually putting into place or setting in motion. It may be difficult, or impossible, and much more expensive to fix these errors later.

When you hire me, you aren’t paying for documents. You are hiring me for my guidance. When you hire me, you aren’t renting my time, but my brain and my heart. You are hiring an ally who will help you through the circumstances that come out of left field, the deals you weren’t bargaining for, and the out of the blue change of heart by you or the other side. It’s my job to anticipate the unanticipated and to calculate a wise and informed course of action.

When you call and ask how much I charge, I can’t give you an answer because I don’t even know what you need. Maybe the other side will negotiate, maybe they won’t. Maybe your situation is simple, maybe it’s not. Maybe there are issues or consequences you haven’t realized yet. If I quote you a fee over the phone and then you come into my office and you need so much more, you’ll be angry with me. So, I won’t answer your question over the phone. Because I don’t charge for documents. I charge for advice, guidance, counsel and support.

Our process begins with a Consultation. This gives us an opportunity to get to know each other and decide if we’re a good fit. It is also a time for me to identify the issues in your case, so I can then quote you an initial retainer to get us started on your case.

If you decide to hire me, you will be asked to complete a package of information so I can be fully informed of the facts of your case. This homework will also help keep your fees down early in the case. The more you tell me, and the more information and documents you provide, the less digging I have to do, which saves you money. I want you to receive the greatest benefit from my time. This is why your cooperation is necessary. Remember, you’re hiring me for my guidance. To provide the best and most effective legal representation, we have to work together as a team.

Whether I ever write any formal legal documents for you or not, I want every interaction of ours to be extremely valuable to you. To that end, you will likely be asked to provide additional documents and information throughout your case. No one knows the facts of your case better than you. I’ll refer to the homework you complete for much of the essential facts of your case. Then, we’ll invest our time together exploring your life, what’s best for your children, and how to secure your financial future.

You will feel cared about, informed, educated, and empowered to make the best decisions for the people and things that matter most in your life. We’ll determine the best course of action for you by working together. You will make decisions on how to proceed with my guidance. Then, I will help you take care of the things that are important to you and achieve your goals in your legal proceeding.

How do you choose a lawyer, if not based on price?

Get referrals from your friends and family.

Ask attorneys HOW they charge and what makes their office different than others.

Schedule a consultation to see if their practice style is in line with your legal goals.

See what attorneys stand out in your community. Is there a lawyer who is actively involved in your community? That lawyer cares and is putting their reputation on the line every day.

When you find the right lawyer, he or she will likely be a member of your team for the long term, not for just this one matter. Your lawyer should be approachable and not only want to be in a long-term relationship with you, but have systems and resources to support that relationship.

If you’re facing a legal issue, please call my office to schedule a consultation, so we can figure out how to best meet your needs.

Accidents Hurt: What Should You Do After You’ve Been in One?

In the moments after a car accident you will undoubtedly be shaken. The most important thing to do is to make sure you are ok. You may have suffered anything from broken bones or internal injuries, to sprains and strains, even concussions and other less obvious injuries. Injuries from automobile accidents can be caused directly by the impact or sometimes by aggravating a preexisting condition. It might even be days before you start noticing symptoms, which may include: headaches, stiffness, numbness, neck pain, lower back pain, shoulder pain, trouble sleeping, blurry vision, dizziness, and ringing in the ears, and more.

Our bodies are not unlike a car and can often be jolted out of alignment during an accident. Proper medical care, including chiropractic treatment or physical therapy may help prevent chronic stiffness and pain, scaring and long-term suffering. Older individuals in particular may have a difficult time moving as easily as they did prior to an accident. A chiropractor can increase your joint mobility to help get you back on your feet. Most importantly, a chiropractor can help prevent further damage to your body. If an injury goes untreated, future events, like falling down, may cause further injury. It’s important to receive necessary medical care not only to alleviate your pain and suffering now but to make sure your body heals properly to protect you in the future.

So, when does the law come into play? Personal Injury Law serves to right a wrong where harm is caused to one individual because another individual failed to use reasonable care. Automobile accidents are an unfortunate reality most of us face at one time or another. It’s important to know who you should turn to if it happens to you. Your health should always take priority. Be sure you get the medical attention you need to get and stay healthy after an accident. You should see your doctor as soon as you experience any symptoms. This is not only important to make sure you’re ok but is crucial to your legal claim for damages. If you delay in seeking medical care, the insurance company may be able to deny coverage if it’s shown the accident was not clearly the cause of your injury. It may be helpful to keep the pamphlet below from the South Carolina Bar in your glove box to help guide you in the event you are involved in an automobile accident.

The bottom line is this: Don’t hesitate to see a doctor immediately and make an appointment to be examined by a chiropractor to protect your health now and in the future. Even if it was a relatively minor accident, when it comes to your health and wellbeing nothing is trivial. It’s also important to seek the help and advise of a Personal Injury Attorney to make sure you are fairly compensated for your medical bills, lost wages, and pain and suffering.

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South Carolina Bar Auto Accidents and the Law

Protecting the Best Interests of an Incapacitated Adult – When, Where, What, Who, Why, and How

WHAT:  A Guardian is appointed to manage the personal and medical care of an incapacitated person (“ward”).  Whereas, a Conservator is appointed to manage the ward’s finances.  A Guardian is responsible for ensuring the ward has a clean, safe, comfortable, and appropriate home and for making sure the ward receives appropriate medical and health care.  Guardians should make annual reports to the Probate Court regarding the condition of the ward.  Conservators are responsible for managing and protecting the ward’s property and assets and will be required to periodically file a report with the court including receipts and inventory of the ward’s estate.   Conservators may also be required to pay a bond.  It is also possible for the court to limit the scope of an appointment; for example, for a limited duration or even limited power if the ward is able to make some, but not all, of their own decisions.  

WHY:  The threshold question is always whether or not the person alleged to need a Guardian and/ or Conservator actually lacks sufficient capacity to care for him- or herself and to manage his or her own affairs.  Incapacity may be a result of mental illness, physical illness, injury, age, or the abuse of alcohol or drugs.

WHEN:  The Court may appoint a Guardian and/ or  Conservator when it is determined the ward lacks sufficient understanding to make or communicate responsible decisions concerning his or her care or finances.  Signs a Guardianship may be warranted are if the person is not taking his or her medications as directed or is not living in a healthy environment.  A Conservatorship may be needed if the person is making irrational decisions regarding his or her money, such as giving away money, property or assets for no intended purpose, isn’t paying their bills, is failing to budget or manage finances, or is spending money a substantial amount of his or her wealth for no clear reason.   In some cases, it may not be necessary to appoint both a Guardian and a Conservator.  For example, a Conservator is not necessary if the ward has a Durable Power of Attorney and a Guardian isn’t needed if the ward has a Health Care Power of Attorney.  Also, the South Carolina Adult Health Care Consent Act permits healthcare providers to obtain consent from someone other than the patient when (and only when) the patient is “unable to consent” and most often in emergency situations.  Neither Guardianships nor Conservatorships are, necessarily, permanent.  A ward may regain capacity, in which case the appointment(s) should be lifted or an appointed person can be replaced if they are not fulfilling the responsibilities.  Both the Guardian and Conservator will be relieved of their responsibilities upon the ward’s death and the Personal Representative of the ward’s estate will assume management of the financial affairs.  

WHO:  Priority to serve as Guardian and/ or Conservator (as well as under the Adult Healthcare Consent Act) is established by statute (see SC Code Sections 62-5-311 and 62-5-410).  Most often a spouse, parent, adult child, or sibling will be appointed.  It is not necessary for the same person to be appointed as both Guardian and Conservator.  In fact, in some cases, it may be appropriate for a private third-party to serve in one or both of these capacities.  

WHERE:  In South Carolina, Guardianships and Conservatorships are managed by the Probate Court which is deemed with the responsibility of appointing a person(s) or agency to make decisions on behalf of an individual who is not able to make his or her own medical, personal and financial decisions.  Guardianship and Conservatorship cases must be filed in the county where the alleged incapacitated person currently resides (is physically present).  

HOW:  The court will commonly require a report from two (2) medical providers regarding the person’s capacity.   Pursuant to S.C. Code Section 62-5-309 (Guardianships) and S.C. Code Section 62-5-405 (Conservatorships) those persons who must be personally served with notice of the proceeding include the alleged incapacitated person, as well as his or her spouse, parents, and adult children.  The court will appoint an attorney to serve as Guardian ad Litem (GAL) for the alleged incapacitated person during the legal proceeding.  It is the GAL’s responsibility to investigate the need for the Guardianship and/ or Conservatorship and ability/ appropriateness of the proposed person to be appointed.  

“Auto Accidents and the Law” – A Pamphlet and Information Form Every Driver Should Keep in the Glovebox

As a public service, the South Carolina Bar published a handy pamphlet to assist drivers involved in automobile accidents. It includes a brief form drivers should complete at the scene of the accident (or as soon as possible after receiving medical treatment). We suggest every driver in South Carolina keep a copy of this pamphlet in the glovebox. A free copy is available at: http://www.scbar.org/public/files/docs/AutoAccident.pdf

It may also be important for you to meet with an attorney soon after your accident. A personal injury attorney can:

-Assess and explain your legal rights;
-Help you understand the strengths and weaknesses of your claim;
-Negotiate with the insurance claims adjuster;
-File a lawsuit (if necessary) and represent you in court;
-Give you peace of mind that no stone will go unturned.

Be Warned: Facebook, Text Messages, E-mail, etc. Are All Fair Game

In the legal world it’s called Electronic Discovery (E-Discovery), in the “real world” it’s called spying or even “cyber-stalking” but regardless of the label, your cyber-presence can be used against you in court.  There are numerous examples of Facebook, text messages, e-mail, etc. being used as evidence of adultery, poor parenting, to refute an alibi, to demonstrate capacity to work, to prove substance abuse, and countless other things.

It would seem common sense that you shouldn’t change your status to “single” or “in an open relationship” if you’re married (and in South Carolina, you’re married until you’re divorced – PERIOD!) but common sense seems to be lost in cyberspace.   It’s important to note each of the antidotal examples below involves everyday people involved in everyday litigation.  The use of e-discovery is now common-place in the courts  - The Wall Street Journal reported in May 2012, “[m]ore than a third of divorce filings last year contained the word Facebook. . . .”  Thus, be warned:  Facebook, text messages, e-mail, etc. are all fair game!

1.  Deleted is not deleted and there’s no such thing as an anonymous post on the internet, no matter hows smart you think you are – forensic examiners WILL be able to find it. Last year, I was involved in a family court case, where the parties both alleged the other had made death threats and abused the child. The judge ordered all parties to turn over their computers, cell phones, and tablets to the South Carolina Law Enforcement Division (SLED) to determine the nature and content of e-mails and text messages sent between the parties. The judge also assured the parties they would soon have a lot more to worry about than their family court case – if any of the allegations were true, appropriate charges would be brought AND if none of the allegations were true, appropriate charges would also be brought for providing false information.  In another case, while on the stand testifying about  his Facebook posts, a Defendant said “I’ve been meaning to delete that account” – the judge didn’t appear amused and it certainly wouldn’t have helped his case (mind you, I already had printed copies of his page).

2.  If you claim to be injured (physically, emotionally, or financially) your Facebook page better not show otherwise.  In February 2013, LexisNexis reported on  a sexual harassment case brought by the Equal Employment Opportunity Commission (EEOC) against the Original HoneyBaked Ham Company of Georgia, Inc., the Defendant sought information from the women’s Facebook pages as evidence of their lack of credibility and to demonstrate their actual emotional and financial state at the time they claimed to be distressed. The Judge held “The fact that [the information] exists in cyberspace on an electronic devise is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation” and ordered the women’s Facebook accounts be examined by a forensic expert (paid for by the parties). Examples of the evidence sought included a photo of one of the women wearing a t-shirt imprinted with an offensive term to describe women, comments as to the women’s financial expectations from the suit, comments about unrelated traumatic events effecting their emotional state at the same time, and sexually explicit communication with the other women. EEOC v. The Original HoneyBaked Ham Company of Georgia, No. 11-cv-02560-MSK-MEH (D. Colo. Nov. 7, 2012).

3.  The past is not the past.  You should not post anything on Facebook (or say anything in a text message, e-mail, etc) that you don’t want broadcast from the highest mountain top now or ever.  A few years ago, I observed a civil court trial where the Plaintiff alleged he was no longer able to pursue his career as a musician because he allegedly suffered from a deviated septum resulting from a car accident.  At trial, the Defendant presented the Plaintiff’s own Facebook updates as evidence.  His posts showed a long history of sinus infections, nosebleeds, and medical treatment for symptoms of a deviated septum.  It definitely threw a wrench in the Plaintiff’s “but for” causation argument.  The case settled at lunch that day.

4.  Please do check in, and tagging everyone who’s with you is also helpful.  Thanks, Opposing Counsel.  I recently won a Family Court Rule to Show Cause in large part because the Defendant claimed he couldn’t afford to pay his obligations, all the while “checking in” at every stop on his four-city-tour of Florida.  It also didn’t hurt that he tagged his new girlfriend with him.

5.  Debit cards are equivalent to a personal diary.  For heaven’s sake, have enough sense not to buy flowers or lingerie online if you’re not giving it to your wife.

6.  Zip your lips (and your keyboard).  As reported in the July/ August 2012 edition of the Young Lawyer, technology “has transformed communications between lawyers and their clients and poses unique problems for preserving attorney-client privilege, [and] the work product doctrine . . . .”  It’s easy to inadvertently waive these privileges by disclosing confidential information to third parties.  In one case, Lenz v. Universal Music Corp., No. 5:07-03783, 2010 U.S. Dist. LEXIS 125874 (N.D. Cal. Nov. 17, 2011), a Plaintiff was found to have waived his attorney-client privilege by sending e-mails to third parties and blogging about conversations with his attorney.  Clients (and prospective clients) frequently get upset and even angry when their best friend, momma, daddy, or even their GF/BF is not permitted to sit in on meetings with their attorney.  There’s many good reasons for this policy, not the least of which is protecting attorney-client privilege.  Also, attorney’s should never, ever, communicate with a client regarding a case on Facebook or chat.

7.  Nothing is Secret on the Web.  Regardless of your privacy settings, password protection, or other means of securing your personal cyber world, it is always possible a judge will order you to turn it over, or even provide the opposing side your username and password.  Another take home lesson is friends are friends forever. You can “unfriend” your spouse but your friends have friends who have friends . . . I’ve never encountered a case where despite many degrees of separation, we weren’t able to access the other sides Facebook page.

8.  Keep your kids out of it!   Do Not, I repeat, DO NOT, post pictures or videos of your children with your new partner, in front of a bar, or with you on a dating website while you’re going through a custody case.  Also, keep in mind that if you post pictures of your new partner at an event and also post (separate) pictures of your children at the same event, it’s likely going to be easy to prove your children have been exposed to your paramour.

9.  Just because you can doesn’t mean you should.  In October 2012, a colleague, Benjamin Stevens, blogged about spying during divorce.  Mr. Stevens cautioned potential problems include criminal charges for invasion of privacy or stalking, or even civil suites such as trespassing.  He pointed to an example of a mother who was found guilty of violating the Federal Wiretap Act for placing a listening devise in her daughter’s teddy bear to record the girl’s father.  The law is dynamic and as suggested by Mr. Stevens, “it’s best to avoid any such stealthy operations” until you’ve consulted with an attorney.  Another colleague, Greg Foreman, also blogged in October 2012 about a South Carolina Supreme Court Case, Jennings v. Jennings, Opinion No. 27177 in which a husband sued his wife and her private investigator for invasion of privacy, conspiracy, and violations of the federal Stored Wire and Electronic Communications and Transactional Records Access Act (SCA), 18 U.S.C. § 2701.  Although, the Court’s decision was complicated, the take home lesson was certainly, it’s a bad idea to hack your spouse’s e-mail account; instead you should consult an attorney and go through proper discovery to obtain any such evidence.