When people feel as if they’ve been wronged, either by a spouse, business partner, party to a contract, or any other individual whose dealings can impact their daily life, it can be easy to form the mentality of wanting to take that person for “all they’re worth.” A common phrase we hear regarding this mentality is, “I want my day in court!” While trial is sometimes unavoidable, it is most often not the most favorable way to settle a dispute. Whether in a divorce or a civil lawsuit, there are many reasons why settling may lead to a more favorable outcome than having a “day in court.”

                1. Expense. What many can underestimate when going through the process of a trial is the cost. Between various filing fees and the volume of billable hours attorneys must spend preparing for trial, it is easy for one’s bill to grow, and fast. While mediation and arbitration can also be costly, the expenses associated with trial are among the highest a client will see on their bill.

                2. Uncertainty. Whether a trial in family court, a civil lawsuit, or a trial for any other legal action, the parties lose the ability to reach a solution between themselves and place the authority to decide in the hands of someone else. While having a neutral party (either a judge or a jury) to decide the outcome of a case has its benefits, it also comes with a level of uncertainty. Judges and juries often have guidelines to follow when making decisions, but they still can use their discretion when deciding on a judgment. Thus, it is not uncommon for parties to find themselves surprised (and even disappointed) with the ruling.

                3. Hard Feelings. Moreso in family law than most other practices, going to trial can leave a bad taste in one, if not both parties’ mouths. A decision made during trial is made by someone who is completely removed from the issue, and often leads to one party walking away feeling like the “loser.” This often leads to hard feelings and makes it more difficult when trying to co-parent and work with each other in the future.

                4. Time Frame. Going to trial can be a LONG process. Most are lucky if they are placed on the docket within a few months. Court dates are often scheduled many months in advance and waiting that long for a final decision is not reasonable for many people. Whether seeking compensation for an injury or waiting for a final decision on child custody, having a long wait for a final decision can be frustrating at best. Many choose to settle simply because it allows them to “move on” with their lives much faster than going to trial would.

                This is NOT to say that trial is always to be avoided. There are certain instances in which going to trial is the best way to receive compensation for one’s loss, and others where reaching a settlement agreement just isn’t feasible or in the best interest of everyone affected by the lawsuit. However, going into a case with an open mind toward settlement and giving an honest, good faith effort to settle can save headache (and heartache) in the future.

Danielle Stubbs is a paralegal intern with The Miller Law Firm, P.A. with special interests in family law, personal injury, and civil litigation. To schedule an appointment to speak with an attorney, please call the office at (864) 527-0413.

            During the pandemic, many small businesses took advantage of the EIDL Program (COVID-19 Economic Injury Disaster Loan). Implemented by the Small Business Administration, this program was designed to support the recovery of small businesses from the economic impacts of COVID-19.These loans were attractive to many, as they were designed to be low-interest, fixed rate loans for business owners to cover the expense of business operation (payroll, rent, utilities, etc.). 

            Now that we are officially out of the pandemic, it is important to be aware of the updates to the EIDL Program and the deadlines attached to it. First, as of January 1, 2022, the Small Business Administration (SBA) stopped accepting new applications for the loan. For those who requested a loan prior to that date, the deadline to process loan increase requests or requests for reconsideration was May 6, 2022. Furthermore, as of May 16, 2022, the online EIDL portal has been closed (those who need copies of their loan documents should call 833-853-5638).  

            Another important update to be aware of is a new payment deferment that took effect in March of this year. In this update, the SBA extended the deferment period to 30 months. Thus, those who received EIDL funds do not have to begin repayments until 30 months after the date of the loan, at which point they will be responsible for making regular payments on the loan and will have the remainder of the loan’s 30-year life to fully pay it off. 

            While the 30-year life of the loan may seem like a favor to small business owners, it can cause a headache if they decide to sell the business before their EIDL loan is paid off. Because most EIDL loans did not have personal guarantees, many business owners are under the impression that they can sell the business and be released from liability. However, this is not the case. Because the EIDL loan is secured by the assets of the business, selling a business that is still under the EIDL loan will require the seller to gain permission from the SBA. Once notifying the SBA of the desire to sell one’s business, a business owner will likely be told one of three things: (1) the loan must be paid off before the business can be sold, (2) the business can be sold, but the proceeds of the sale must go towards paying off the loan, and (3) the business can be sold, and the ownership of the loan will be transferred to the buyer.

            An important thing to note regarding the third option is the fact that if the SBA allows the business to be sold and the loan to be transferred, the buyer must also comply with the loan requirements. Thus, if the proposed buyer does not meet SBA loan requirements, the sale may not be approved. If the sale is approved, the SBA may require a personal guarantee from the proposed buyer as an added security protection in the event the business fails in the hands of the new owner.

            To avoid the potential requirement of a personal guarantee or the refusal of the SBA to allow the transaction to take place, business sellers may want to create a purchase option that can only be executed once the buyer can bring enough money to the table to pay off the EIDL loan. Other sellers may decide to pay off the loan themselves and reflect the amount in the asking price of the business.

            Regardless of how a business owner wants to undertake the selling of their business, their best course of action will involve obtaining legal advice from an experienced attorney. The Miller Law Firm, P.A. stands ready to advise those seeking to sell or buy a business. Feel free to give us a call at (864)527-0413.

By Danielle Stubbs and Melissa Miller

We’ve all seen movies where someone hears the three dreaded words – “You’ve been served.”  Although often not as dramatic as Hollywood would make it seem, being served with legal documents can cause a world of stress and confusion – especially when it’s unexpected. However, there are some things that you can do to save yourself trouble down the road:

1. Breathe (and read!) – Take a moment to read the documents that you have been served with and see what they are. There are a multitude of documents that are required to be “served” upon you that do not necessarily mean that you are in legal trouble. Some examples include Notices of Hearing, Subpoenas, requests for information, and others (see Rule 5, SCRCP for full list).
2. Think – Do I need an attorney? In some cases, being served means someone is taking legal action against you. In such cases, you will likely need an attorney, and pronto. In the case of service of other types of legal documents, an attorney may not be necessary. However, if you are ever served and are unsure or uncomfortable with the documents you were given, it is always best to talk to an attorney. Even if the paperwork with which you have been provided does not involve a lawsuit, an attorney will be able to explain what you were given and what is being required of you.
3. Calendar – Some documents require a response within a certain amount of time. Examples of these include Summons and Complaints, Interrogatories, and Requests for Production. Most of the time, these responses are due within thirty (30) days of service. However, an attorney may in some cases be able to get the deadline extended, thereby allowing you more time in which to respond.  Until then, this deadline is important to be aware of because failure to respond within the appropriate timeframe without an extension can put you at a legal disadvantage. Other documents, such as Notices of Hearing, will contain the date and time of an important event. These are also important to have calendared, as they may require your presence.  In some cases, an extension or continuance of that date may be possible, but this is something best discussed with your attorney.
4. Call – Best practice is to always speak to an attorney if there is even the slightest bit of confusion or concern regarding what you were served with. The biggest mistake someone can make after being served is to not consult an attorney at all. If the document requires a response, it is always recommended to have an attorney to, at the very least, review or, in some cases, to help you draft an appropriate response/figure out what further information is required, including whether it would be cost effective to hire an attorney to represent you in the matter.  Remember:  What you say can and will be picked apart not only by the other party but their attorney.  It is an attorney’s job to figure out the appropriate legal response. If the document requires you to give testimony, whether oral or written (such as in a written affidavit) an attorney can also help you prepare and know what to expect.

Remember:  South Carolina allows for multiple different methods of service of process depending on the type of case and the type of pleadings/documents involved.  Thus, depending on the type of case, another question an attorney can help to answer is whether you were properly served with the documents in the first place. 

Being served doesn’t always foreshadow legal doom.  If you have recently been served and need legal advice on what your next steps are, call our office at (864) 527-0413 to schedule a consultation with one of our attorneys.

Danielle Stubbs is a paralegal intern at The Miller Law Firm, P.A with a special interest in Family Law and Personal Injury.  To schedule a consultation with an attorney at The Miller Law Firm, P.A., please call Danielle or Terry at 864-527-0413.

Alternative Dispute Resolution, also known by the acronym “ADR,” is one of the most common ways that parties resolve issues in the South Carolina legal system. In some cases, parties are required to go through ADR before being able to go to trial (See Rule 3 of the South Carolina ADR Court Rules for full rule and exceptions). In other instances, judges may use their discretion to order parties to go through ADR, as is often seen in Probate and Magistrates Courts.  

Although mandatory in some cases, many people involved in lawsuits may choose to undergo ADR instead of a trial, as it can save both time and money and offer a level of confidentiality that is not afforded by traditional trials.  

South Carolina recognizes three types of ADR: 

• Negotiation – Think of negotiation as a discussion. In this form of ADR, parties attempt to resolve the issues themselves. Attorneys may or may not be involved, depending on the wishes of the parties. However, being represented by an attorney during these negotiations is recommended. 

• Mediation – Mediation is, essentially, assisted negotiation. During mediation, parties still try to resolve the issue themselves, but a trained mediator is present to go between the parties to facilitate the conversation and encourage cooperation. The mediator makes no judgments or decisions regarding the outcome of the case. Their job is to help the parties come to a compromise themselves, NOT decide for them.  

• Arbitration – Arbitration is the form of ADR that most closely resembles what goes on in a courtroom. During arbitration, both parties present their arguments to a trained and qualified arbitrator, who will render a decision regarding the dispute. Often, this decision is binding, meaning the parties must follow it. If one of the parties does not comply with the decision, the other party may seek a court order to enforce the agreement.   

Alternative Dispute Resolution, or “ADR,” is one of the many ways legal disputes can be resolved in South Carolina. The best avenue of dispute resolution varies on a case-to-case basis, so it’s important to speak with your attorney to weigh your options before deciding. Whether going through negotiation, mediation, arbitration, or a trial, the attorneys at The Miller Law Firm, P.A. are ready and capable to see you through it.  

Danielle Stubbs is a part-time paralegal intern at The Miller Law Firm, P.A. with special interests in Personal Injury and Family Law. To learn more about the rules and procedures of alternative dispute resolution or to speak with an attorney, please contact the office at (864)527-0413.

As I ponder the start of another school year and all of the excitement and uncertainty it brings, I am reminded that some things are always certain for a mom:  Death, Taxes and…well…laundry.  While some mothers may attack a pile of freshly laundered clothes swimming in fresh fabric softener with giddy optimism, I approach the dryer with the same sense of dread and fear I would approach an unwanted household intruder (and, yes, by that I mean spiders). 

My dream would be to have a laundry service where I simply gather up dirty items for some angel to wash much like a dry-cleaning service, but for regular laundry.  Yes, I know at least one country that has such services — the summer after my first year of law school, I studied law in Sydney, Australia and was amazed to find that laundry for a non-working student was as easy as depositing your clothes at a laundromat, where they washed and fold them for a minimum fee.  But moving to Australia would be quite expensive.  So, until then, I must learn to accept never-ending piles of laundry with the same acceptance that many of family law clients accept a bad spouse or co-parent.  The truth is laundry (like love) never ends and we must learn to accept it.

Like most things that I dread, I try to focus on the lessons to be learned from such a mundane and never-ending task as laundry, and I think laundry provides a number of lessons for anyone going through a divorce or custody battle.  First of all, if you have children, understand that like laundry, your relationship with your ex-spouse may at times seems like a never-ending barrage of dirt.  However, just like with any fresh pile of laundry, there will always be that displaced singular sock looking for its match.  Yes, that sock is your child and he/she/they comes together with the dirt, whether you like the dirt or not.  Like any usual pile of laundry, a family, whether together or parts strewn across different rooms or houses, is a family just the same and you must learn to assemble the pieces in whatever order they appear.   That sock needs its match and it’s your job to find it. 

In any divorce that ends well, as with any pile of laundry, you have to learn to fluff (i.e. make the best of it), fold and move on.  As with those never-ending piles of laundry, learn to accept that this pile of s*&! Is not going to end and that the best thing you can do is to develop a system that maintains your sanity and keeps everyone else’s crazy in check.   

This may sound counterintuitive coming from a divorce attorney, but in order to have a successful divorce (and, yes, you must learn to have a successful divorce, particularly where children are involved), you must focus on the successes of your marriage.  When you see that dirty shirt, remember that it wasn’t always faded and try to recall its better days and all the good that followed therefrom…particularly your children (lest they become displaced).  Love, like laundry…like family, whether they are together or apart…never ends….and the labor of love continues whether or not the marriage endures….

Are you looking to buy a business?  Has the Seller told you the company has no liabilities?  Then when you ask about the SBA loans, does the Seller tell you the PPP loan was forgiven?  If the answer is yes, then ask one more question.   Did the Seller take out an Economic Income Disaster Relief Loan? 

            These loans varied based on the size of the business, but in general they were around a maximum of $150,000.00 for small businesses that relied on the program during the COVID outbreak.  Most EIDL loans had no personal guarantees.  As a result, some Sellers erroneously believe they can sell their businesses and walk away from liability on the EIDL.  Others want to pay it off over the 30 year term.  As of April, 2022, payments on all EIDL loans are still under deferment, and many businesses have simply not made payments under the loans, and so the balance has been accruing interest at a rate of 3.75%.

            Savvy buyers should be aware the EIDL requires SBA approval on any and all transfers of assets.  While some Sellers may suggest the SBA will never catch wise to the transaction for so long as payments are being made, Buyers should be aware if the SBA does find out, then the assets which were purchased could in theory be seized and sold by the SBA, which retained a security interest on all assets of the borrowing entities.

            Bottom line: make sure you either payoff the EIDL loan at closing, or get SBA permission to sell the assets.  The Miller Law Firm, P.A. can assist you in helping sell or purchase entities.   Please feel free to call us at (864) 527-0413 and we are ready to help. 

In South Carolina the following may require conservatorships: minors who received settlement funds, insurance funds, or other inheritances; developmentally disabled persons; and adult persons who did not set up an estate plan, and due to age, injury or circumstances have lost mental capacity to make financial decisions concerning their care.

            Since some states use the term “guardian” to refer to both a guardianship and conservatorship, it is important to note the differences between guardianships and conservatorships in South Carolina.   Guardians care for the person, making personal decisions concerning the protected person’s care.  Conservators care for the business and financial decisions of the protected person.  If a person has no assets outside of a social security check in general a conservatorship is not required.  In many cases both a guardianship and a conservatorship will be required.

            S.C. Code § 62-5-410 lists the priority of the parties the Court can appoint to serve as conservator.  Typically, the spouse, or an adult child will be the party to petition to become the conservator, but if no one can handle the role, then the Court may appoint a professional.  Unless the person seeking appointment is a professional already approved by the Court, the person seeking appointment will need to provide a criminal background report (“SLED check” in South Carolina), and a credit report. 

            A petition for a conservatorship must be filed in the South Carolina county where the alleged incapacitated person resides.  In most cases, after a petition for conservatorship is filed the Court appoints a Court examiner along with a guardian ad litem and an attorney for the protected person.  Since a conservator acts as a fiduciary for the protected person and is under the jurisdiction of the Court, the Court wants to ensure a proper appointment.

            Being a conservator can be a thankless job, and the process of getting appointed can be very time consuming and expensive.  All who seek to be appointed as a conservator should retain legal counsel.  In order to avoid having a conservatorship action filed against you one day, it is advised that you ensure you have an estate plan. 

            The Miller Law Firm, P.A. can assist you in all of your legal needs and help guide you through the process.  Please feel free to give us a call at (864) 527-0413.

One of the most uncomfortable tasks I have as a family law attorney is breaking it to a client that they will be paying alimony. Usually, men expect to have to pay it, even in cases where they make less than their wives.  In those cases, they are often pleasantly surprised to learn that they may be receiving rather than paying it. However, in cases where the wife makes more than the husband – well that’s usually a different story…

Singer, American Idol icon and talk show host Kelly Clarkson recently settled a case with her husband, Brandon Blackstock, in which she is paying $115,000 per month to him in alimony. That’s a whopping sum, and I would have loved to have been a fly on the wall when her attorney broke the news to her (talk about difficult representation).  Of course, that’s an extreme example, and in most cases, we are not dealing with “star struck” numbers in terms of support.  However, every woman should know if they are working and making more than their Husband that, at least in South Carolina, they could be subject to paying alimony/spousal support to their Husband.

It is easy for us to scoff at the “free ride” Kelly Clarkson’s Husband (or any Husband) may be getting once the parties to a marriage are divorced; however, that is not the primary question the Court must consider, at least in South Carolina, in terms of awarding alimony.  While the resources and the education of the party receiving alimony may be considered in determining the amount of alimony awarded, the primary issue in such cases is often what standard of living did the receiving party enjoy during the marriage.  Thus, let the lesson of the Clarkson case for all women be to hitch your wagon to the biggest star – that is, know your risk of paying alimony by discussing with your attorney and understanding your position going in.  Alimony laws in South Carolina are not likely to change anytime soon.

Melissa Miller is a licensed attorney in South Carolina for The Miller Law Firm, P.A. who focuses her practice on family, personal injury, and workers’ compensation law.  To make an appointment with Melissa or to assess your alimony exposure, contact The Miller Law Firm, P.A. at 864-527-0413. 

By Brian R. Miller, Esq.

            Lots of people dream of starting their own business, but few know where to start.  The Miller Law Firm, P.A. has advised small businesses and even single-person entities for years.  Here are the basics.

            1.         Incorporate.  You should incorporate.   In addition to potential tax savings benefits, incorporation can provide you a liability shield to protect your personal assets.  No one wants to risk their life savings on their business, but if you do not have a liability shield, and something goes wrong leading to a lawsuit, your personal assets are at risk.   You should seek an attorney and/or accountant before determining the proper entity to form.

2.         Know Who You Need to Know. 

You don’t need to be friends with the Governor, or the CEO of Amazon to start a small business, but it helps to have certain key relationships in place.  Before starting a business, I would advise everyone to speak to an attorney, not just to help incorporate, but to determine what type of contracts, customer agreements, terms and conditions, or other documentation you may want to have in place prior to launching your business.  Every company that sells products should have terms and conditions of sale.  As an attorney, I cannot tell you the number of times a small business has come to me with an issue that has already gone to litigation which could have been resolved much more efficiently by setting up the proper contracts.  Do not be pennywise and pound foolish.  Sometimes, investing upfront to have the right documentation can save you time and heartache down the road.  And don’t fall for the trap of thinking that you can just print a template offline. Every business is different and your business documents will need to be set up accordingly if they are going to be effective and stand the test of time. I would be happy to review your business or corporation’s legal needs to determine what is needed to protect your company in a cost-effective manner.

You should also begin developing a relationship with an accountant, an insurance agent, and a banker.  Every year, you will need someone to help with taxes.  You will need to pay for liability insurance to protect your business and potentially to provide an enhanced shield to your personal assets.  At some point, a small business will need to borrow money and is good to already have a relationship formed.

How do you form these relationships?  Schedule consultations and meet with professionals.  Your best friend does not need to be a banker, attorney, or accountant, but you need to know who to call in the event of an emergency.  At The Miller Law Firm, P.A. if we cannot answer a legal question for a client, we help clients find the right resources.

3.         Technology.  Do you have a technology solutions manager?  How are you safeguarding data?  When you are starting a small business, you need to know what technology you will need to manage it; what programs, types of computers, POS systems, etc.  If technology tends to scare you, consider taking a technology course before launching.

4.         Know What You Don’t Know.  Perhaps the most important thing to know is what you don’t know.  Don’t assume you can do everything or can learn everything.  Where are you weak?  Marketing, accounting, office management?  Knowing what you don’t know can be the easiest way to help learn how to develop the right plan for your business to get on the pathway of success.

Brian Miller is a Senior Managing Partner with The Miller Law Firm, P.A. and serves as an outside corporate counsel to businesses through the Upstate.  He stands ready to help those daring to venture into the Brave New World of Business – big and small.   Please feel free to call him at (864) 527-0413 to set up a consultation, or visit us on the web at www.themillerlawfirmpa.com. 

Three great reasons to watch Ted Lasso right now, plus a preview of our next segment — The Yellow Book Challenge, which will be a review of two inspiring books — “Find Your Yellow Tux”” (by Jesse Cole) and “The High Five Habit” (by Mel Robbins)