As of the writing of this article, March 18, 2020, 7,038 cases of the novel coronavirus, also known as COVID-19, have been reported in the United States, with more and more cases being confirmed daily. The novelty of this outbreak, and the subsequent response to it, has led to confusion and uncertainty regarding the daily lives of each and every person in this State and in this country as a whole. Schools, restaurants, bars, offices, and even courts across the State are either closing or are limitedly open as a daily reminder to the current situation as governments in South Carolina, and the United States as a whole, analyze how best to stem the spread of infection. For those residents with current matters in the Family Court, the closures and restrictions can be particularly worrisome and confusing.

It is important to note, at the outset, that everyone, both young and old, should practice proper hygiene and, as a rule of thumb, should look at the guidelines set out on the Center for Disease Control’s website regarding protecting oneself and one’s family from the coronavirus. Be sure to wash your hands using plenty of soap and hot water, disinfect surfaces, and practice social distancing as a way to limit your possible exposure to the virus and those who may be infected. According to the South Carolina Department of Health and Environmental Control, there are 33 confirmed cases in South Carolina, including one death. All of this is said, not to scare you, but to inform you of the seriousness of this novel situation with the hope that you and your loved ones might be safe and, aside from its effects on your daily routines, untouched by this outbreak.

Yesterday, the Supreme Court of South Carolina issued an Order stating that “Family Courts shall only hear emergency matters including, but not limited to, DSS Emergency Protective Custody, Juvenile Detentions, Bench Warrants, and Emergency Petitions for Orders of Protection from Domestic Abuse.” So, then, what should be done if you don’t fall into one of those categories? That is what I hope to guide you through with this article. To be sure, nothing in this article has come from the Family Court directly, and each individual’s situation is unique, but the following can hopefully provide some guidance in this uncertain time.

The first thing one needs to do when considering their Family Court case is to ask oneself whether there is a Temporary Order in place. If so, the Temporary Order must be followed, as best as possible, so that you do not put yourself in a position where you are open to a motion for contempt for not following the Order. This, however, brings up what is likely to be the biggest question: what should I do about custody and visitation if there is a quarantine? It is likely that, if you’re reading this, you currently have one or more children at home due to school or daycare being closed. While the simple answer is to follow what the Temporary Order says, given the situation, the safety and health of your children should be of the utmost concern. Keep the phrase “best interest of the child/children” in the front of your mind in all things relating to your child/children.

The “best interest of the child/children” is the standard by which all custody, visitation, and support issues are determined in the Family Court, so it should be your starting point as well. It would be wise to, if possible, come to a temporary agreement or understanding between yourself and your child/children’s other parent regarding how to handle custody and visitation during this time. Be understanding and forgiving in these times; remember, this is for your children’s health and well-being. It is understandable that each person’s situation is different. Some of you have a good relationship with your child/children’s other parent, while others of you do not.  In many cases, it will be necessary for you to file a legal action in order to protect the best interest of your child/children.  Remember that these are times in which only the most serious and emergent cases are likely to be heard and such action may indeed be warranted in your case.  However, also remember that there are many other steps your attorney can take, short of filing an emergency action, that can help to protect you and your child/children.   Be safe and try to be understanding of your co-parent in these difficult times.  Remember, “the best interest of the child” should not just be the standard used by the Family Court; it should be your standard as well. To that end, the best interest of your child/children is what is best for their personal health and safety in this time.

David Schlosser is an attorney with The Miller Law Firm, P.A. and a former assistant solicitor with the Sixth Circuit Solicitor’s Office in Lancaster, Chester, and Fairfield Counties. 

Melissa Miller is an attorney with The Miller Law Firm, P.A. concentrating in the areas of Family Law and Personal Injury.To reach David or Melissa, call The Miller Law Firm, P.A. at 864-527-0413 or email them at david@themillerlawfirmpa.flywheelsites.com or melissa@themillerlawfirmpa.flywheelsites.com.

This is what we know, for now.

            The CDC released information regarding loans and subsidies for small business who have been heavily affected by COVID-19. The loans are low-interest (3.75% for small businesses and 2.75% for non-profits), and can be used to pay fixed debts and other bills that cannot be paid, directly due to the pandemic.

As of now, the states who are covered under this federal plan for SBA disaster loans are listed at the link included here: https://www.sba.gov/disaster-assistance/coronavirus-covid-19

South Carolina, as of the release of this list, is not included and there is nothing released about disaster relief from the State of South Carolina for small businesses.

For now, the recommendation for small businesses is to keep sick employees home, practice cleanliness around the office or place of business, avoid working face-to-face with potentially sick clients, and wash your hands often. The link to these cleanliness recommendations, and more are in this link here: https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-disinfection.html

As an attorney who practices family law, I would be remiss not to take this opportunity to review Marriage Story, especially in light of all the accolades it is getting and rightfully deserves.  So, without further ado, here are my TOP THREE TAKEAWAYS FROM Marriage Story from a Family Law perspective:

•  Your Mediator is a Mediator, Not a Counselor:

In one of the first scenes, we see Husband and Wife participating in a mediation session with a mediator who tries to get each party to see the best in each other.  Perhaps Wife’s reaction is a little extreme (walking off when she perceives the mediator as taking her Husband’s side), however, I believe her actions here are justified and a good lesson:  Choose your mediator carefully.  The reality is that a good attorney can point you in the direction of a good mediator and the characters herein do not have that assistance in the beginning.  This mediator has clearly been handpicked by the husband, and as the husband in this matter does not want the marriage to end, he has sought a mediator who is trying to put the marriage back together. 

Don’t get me wrong.  The overarching message here is touching and well-intended – and, yes, even in divorce or when beginning the process of divorce, it can be a useful exercise (especially where the children are involved) to try to see the best in your soon-to-be ex-spouse/co-parent, but this scene reminds me of my own advice to potential clients:  It takes two people to make a marriage work and only one person to decide they no longer want to be in it.  Wife clearly no longer wants to be in the marriage, and as a consequence, any mediator who tries to put back the broken pieces where the pieces of the puzzle are already missing will ultimately be met with resistance, and ultimately failure.  This is not to say that you don’t want the process to be amicable, but as you are the client and are paying for the mediator’s time, it is important for your attorney to find the right person for the job. 

• If They Start at Crazy and You Start at Reasonable, Prepare to End Up Half Crazy

One of my favorite scenes in the movie is the scene where Husband goes to see his first lawyer, who rightfully advises him to file in New York.  The reality is if Husband had filed in New York, he would have set up a damn good jurisdictional argument for custody of this child.  As the parties had lived in New York for the majority of the marriage prior to separation, it seems clear New York has jurisdiction if Father remains in New York with the child.  Of course, Husband doesn’t do that because he wants to be amicable.  Instead, he allows Wife to take the minor child to L.A. and to apparently stay there long enough with the child for Mom to make the case that California has jurisdiction.  The lesson for Father in this case is clear:  The time to grow a heart is not when you are entering a divorce.  The process is brutal and you have to be brutally prepared to go forward with the best arguments you have and for you attorney to pursue them voraciously and also to know when it is time to back off.  The reality is that starting from a position of strength (in this case, standing your ground, filing in New York and stating all of your causes of relief in the beginning) can often make it easier – and yes, sometimes more amicable – in the end.  Imagine for a minute if Husband had taken the child back to New York and filed in New York from the beginning.  It appears clear from the timeline of facts that Wife would have not lived the requisite amount of time in Los Angeles with the child at that point to make a valid argument that California had jurisdiction.  This means that the case would likely have stayed in New York and Wife would had had to fight the case in New York.  Without either party having the resources to fight a long-distance battle on two fronts, each may have been more willing to concede some ground and to negotiate a reasonable position.  Husband may have ended up keeping his life and sanity intact, rather than flying back and forth to L.A., buying a house there, spending money that could have gone to the minor child’s college fund and nearly driving himself crazy…

Which is why the advice of Husband’s second attorney (whom he ultimately hires after firing his second attorney, though by then it is too late to assert New York jurisdiction) is sage:  If the other side starts from a position of crazy (i.e. asserting that a state in which he/she has never lived with the minor child has jurisdiction, regardless of the reason), and you start from a position of reasonableness (i.e. letting the other party take the minor child to see family in the middle of a separation), you are asking for trouble and could wind up losing custody, not to mention half crazy.  Husband should have filed in New York to begin with.  Husband doesn’t do that here and it’s a decision Husband deeply regrets.  It is also ultimately why he must concede in the end.  His case was over before it even began because of his decisions early on…

• Keep Your Eye on the “Prize”

Unlike some reviewers of this movie (Grace Randolph come to mind), I am not of the opinion that this couple could ever make it work and I do not see a future for them…even with counseling.  Perhaps I’ve been in this business too long, but I tend to know a failed marriage when I see one and this one was doomed from the beginning (that’s a matter for another article, or private comments, all of which are welcome).  Having said that, where do the parties go from here and what do you do if your marriage falls apart and you have children together? 

First of all, and many clients don’t want to hear this, you must now treat your former spouse as a business partner, as you are now in the business of co-parenting together.  You will not be able to change him/her at this point.  He/she will not magically become the parent you wanted him/her to be in the marriage, and the things that drove you crazy about him/her as a parent during your marriage will likely continue to irk you until the day those children are married and beyond.  From here on out, you would do well to not just say but to live by the following words when it comes to any decision involving the children: “It’s not about me.  It’s not about him/her.  It’s about the kids.”  If you can answer that question honestly with yourself without asserting your own feelings about the other party into the equation, you will have gone a long way toward “adulting” and to potentially saving yourself a lot of money and heartache in the process.

There are many things to admire about Marriage Story’s take on a modern-day divorce, not the least of which is its message that you can love things about your spouse as a parent without still loving him/her as a spouse.  In Marriage Story, even after all of the fighting, all the claims that Husband is a narcissist (which he may well have been), Wife in the end looks at her attorney and questions why Husband doesn’t have the minor child an equal amount of time as she does while he is staying and working in L.A.  Attorneys like Laura Dern’s character often love to gloat and her character wastes no opportunity to gloat in front of her client in this case.  In answer to this question, she explains to Wife, matter-of-factly, that she has been able to secure her client the majority of time with the minor child because she wanted her client to “win.” 

Of course, children are not a “win” to be had.  Their lives – and livelihood – are a prize to be treasured and protected.  In the end, where children are involved and there is marital/custodial litigation, remember:  It won’t be about you.  It won’t be about your ex-spouse.  It will be about your children.  You steer the ship and must be clear in your heart and mind – as well as in your communication with your counsel – about what direction you want to go from the beginning, knowing what is important in the end.

To File or Note to File– Is it Really a Question?

(Analyzing HBO’s “Divorce,” Season 1, Episodes 2-9)

 

In my last article related to HBO’s series “Divorce,” I tackled one of the most common issues that comes up in the context of marriage – fault in the break-down of the marriage. We now turn to an analysis of how the actors in “Divorce” (as well as Wife and Husband in a marriage) often convey to children that they are getting a divorce and the common pitfalls involved therein. As well, I will analyze the common questions (and things to consider) in determining whether – and how – to file/serve divorce papers.

First off, let’s just start by saying that there is perhaps nothing worse than having to tell your kids that you are getting a “Divorce.” If you watched Season 1 of HBO’s “Divorce,” you know that it takes three episodes and a stern rebuke from a mediator before Robert and Francis have the gumption to tell their children, who are still fairly young at this stage. What we see in “Divorce” is frighteningly accurate portrayal of how telling children typically goes down and it’s not pretty, but the end result provides a valuable lesson.

Let’s start with timelines. In the case of Robert and Francis, they agonize over the decision to the point that telling the children becomes an event in and of itself. When they are finally seated at the dinner table and have come to a meeting of the minds on how the children are going to be told, the audience is collectively holding its breath to see who is going to be the “bigger person” in terms of conveying this information. In this case, Mom (Francis) tries to sugarcoat the subject by offering to the children that Mom and Dad are “trying to figure out how to be a better family. That is when Dad (Robert) intervenes, finally delivering the maturity that we have thus far not seen on the show:

“Your mother and I are getting a divorce” Robert tells the children matter-of-factly. “It’s awful. If there was any way that we could’ve figured out how to stay together then we would, but we just can’t. But the important thing is that neither of us is going to leave you.”

I think it is important to note Robert’s exact words here, as he could not have put it much better.

The very fact that parties are going through a divorce usually means that there is a failure to communicate between Husband and Wife. Difficulties in communicating are only magnified when it comes down telling your children that you are getting a divorce, but this can often be avoided. In this case, Francis and Robert DuFresne have determined that it is best to tell the children together. While this is not always possible with parties going through a divorce, particularly if there are issues of domestic violence or mental health, it can be very helpful. As one sees in “Divorce,” the task is often easier said than done and having a partner to back you up can come in handy where words fail. If the children already have counselors or a counselor involved, such professionals can often aid in this difficult process; however, it is ultimately up to the parents to communicate this information absent any intervening issues which would prevent either from doing so. In “Divorce”, the children’s reaction to being told is priceless:

“Can we go upstairs now?” says the son, who is older than their daughter. The children’s reaction is the lesson here: Yes, it is awkward. No, it is not pretty. However, agonizing over the process is often more difficult than the process itself. As we study the children’s reaction at this point, we are reminded of the words of the mediator in this series. “Tell the children.” Your attorney will tell you no differently. You find a way to do it in the most effective and straight-forward manner available. Your children – and your legal bill – will thank you for it.

As well as they handle telling the children (albeit late), the way that Robert and Francis handle the filing and service process leaves much to be desired and is also a cautionary lesson. I think it is important to note that at the point Francis does decide to file, she has already been through at least one attorney and chosen to go with another one. In cases where we are dealing lots of assets, waiting to file can be fatal. In South Carolina, martial property is typically determined as property which accumulates from the date of marriage to the date of filing (in some cases, your attorney may be able to argue the date of separation). Thus, if you have a large retirement account, for example, and the market continues to go up, but you wait to file, the passive gains you continue to accumulate in this account prior to separation and filing will be considered as part of the marital estate.

As far as filing, in seeking an attorney who appears to be more of a “bull dog,” Francis may have underestimated how this decision would affect the very process of filing and serving the divorce paperwork on Robert. As we see in Episode 9 of “Divorce”, Francis has Robert served at one of the children’s basketball games while Robert is coaching this game. It is very clear that Francis was not aware that her attorney was going to serve Robert at this time and in this manner, though she no doubt knew that her attorney was going to file. The lesson in this is to always communicate with your attorney on how you want the other party to be served with the divorce pleadings. To be clear, serving the papers by process server directly on the other party is typically the only surefire way to ensure service is effectuated; however, the parties can exercise some measure of control over where and when the papers are served. In some instances — such as where the parties already have an agreement, for example – having the other party “accept” service of pleadings by signing what in South Carolina is called an “Acceptance of Service” may be acceptable and avoid the painful process of serving by process server. However, this must be determined on a case-by-case basis and your attorney will be able to guide you as to which and under what circumstances this could be done to potentially save on costs. Bottom line: communicate and ensure that you are involved in the process of service. Again, your children – and your legal bill – will thank you for it later.

So, what happens when the parties further ratchet up drama in the context of a divorce where custody issues are involved? Find out in my next article, which focuses on the Season 1 Finale of “Divorce.”

Melissa Miller is an attorney in South Carolina focusing on family and workers’ compensation/personal injury law with The Miller Law Firm, P.A. She can be reached at melissa@themillerlawfirmpa.com.