Student loan debt acquired during a marriage

While South Carolina has not specifically ruled on the question of whether student loans incurred by a spouse during the marriage are marital or non-marital, our general provisions regarding the allocation of debt during equitable distribution can and should apply. As restated by our Court of Appeals in Barrow v. Barrow, 394 S.C. 603, 716 S.E. 2d 302 (2011):
“Marital property” is defined as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation….” S.C. Code Ann. § 20–3–630 (Supp.2010). “For purposes of equitable distribution, ‘marital debt’ is debt incurred for the joint benefit of the parties regardless of whether the parties are legally jointly liable for the debt or whether one party is legally individually liable.” Hardy v. Hardy, 311 S.C. 433, 436–37, 429 S.E.2d 811, 813 (Ct.App.1993). Marital debt, like marital property, must be specifically identified and apportioned in equitable distribution. Smith v. Smith, 327 S.C. 448, 457, 486 S.E.2d 516, 520 (Ct.App.1997). In equitably dividing the marital estate, the family court must consider “liens and any other encumbrances upon the marital property, which themselves must be equitably divided, or upon the separate property of either of the parties, and any other existing debts incurred by the parties or either of them during the course of the marriage.” § 20–3–620(B)(13).

Id. at 610, 716 S.E.2d at 306 (emphasis added).
There is a rebuttable presumption that a debt of either spouse incurred prior to marital litigation is a marital debt and must be factored in the totality of equitable apportionment. Wynn v. Wynn, 360 S.C. 117, 600 S.E.2d 71 (Ct. App. 2004).

How Other States Treat Student Loan Debt
Courts in many states have ruled on the question of how to treat student loan debt in marital litigation, and their conclusions vary significantly.
Some states reason that because the resulting degree is almost always viewed as either an intangible asset belonging to only one party1 or non-marital property held by the degree-obtaining spouse, that the loan to obtain that degree should also be considered non-marital debt. See Van Bussum v. Van Bussum, 728 S.W.2d 538, 539 (Ky. Ct. App. 1987) (debt attendant to the acquisition of a non-marital asset such as a degree must be borne by the party who will reap the benefit from it). But see Roberts v. Roberts, 670 N.E.2d 72 (Ind. Ct. App . 1996) (even though husband’s degree was not marital property, student loan was still a marital obligation).
The majority viewpoint, however, takes a nuanced approach where the courts focus on the extent to which the enhanced degree benefitted both parties. See Tasker v. Tasker, 395 N.W.2d 100, 105 (Minn. Ct. App. 1986) (approving allocation of the entire debt to the student spouse where neither had yet realized any benefit from his enhanced earning capacity); Simmons v. Simmons, 244 Conn. 158, 708 A.2d 949 (1998) (proper to award all loans to husband where divorce occurred three years into husband’s residency); Roberts v. Roberts, 670 N.E.2d 72 (Ind. Ct. App. 1996) (proper to award husband all of his student loans where parties separated two months before husband’s graduation from law school); In re Reininghaus, 817 P.2d 1159 (Mont. 1991) (wife properly was awarded student loans where she was apparently still in school at the time of divorce). See also Schneider v. Schneider, 761 S.W.2d 760 (Mo. Ct. App. 1988), (where wife acquired a chiropractic degree during the marriage, and then practiced jointly with chiropractor-husband for several years and the court held that the wife’s student loans were a marital debt, reasoning that the husband had benefitted from the wife’s enhanced earnings.); Bourdon v. Bourdon, 119 N.H. 518, 403 A.2d 433 (1979) (where wife incurred loans to pay for college and to maintain the marital home during her time in school and, after she graduated, she used her degree to earn income for the family while the husband attended law school. The court approved a decision charging the husband with one-third of the loan balance.)
Most states look at how the loan proceeds were actually spent – that is, whether the proceeds were spent on living expenses or only for the tuition and fees associated with obtaining the degree. Those courts generally reason that to the extent that the student loans were used to pay family living expenses, they fall under the standard rule that debt incurred to pay living expenses during the marriage are always marital obligations. See In re Marriage of Speirs, 956 P.2d 622 (Colo. Ct. App. 1997); McConathy v. McConathy, 632 So. 2d 1200 (La. Ct. App. 1994); Hicks v. Hicks, 969 S.W.2d 840 (Mo. Ct . App. 1998); Forristall v. Forristall, 831 P.2d 1017 (Okla. Ct. App. 1992).
In general, the nationwide trend appears to characterize student loans as marital debt subject to equitable apportionment/division only where the other spouse benefitted substantially from the loan by use of the loan proceeds for family expenses.

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What to do when your child is arrested

First, know that the best thing you can do for your child is to get him or her a good attorney. The Public Defenders’ Offices in South Carolina are a good place to start, if you cannot afford an attorney for your child. If you do not qualify financially for an appointed attorney, you will likely be directed by the Court to hire an attorney for your child, if you have not done so by the time of the child’s first court appearance.

It is also important to know that the police do not have to get your permission to interrogate your child! And, anything your child says to the police can and will be used against him or her. It is very important that you talk to an attorney as soon as possible in the process so that your child has someone who can explain his constitutional rights to him.

Children do not have all of the same constitutional rights as adults – for example, they are not entitled to a trial by jury. Yet, adjudications in family court can have life-long implications for children. It can affect your access to public housing, it can affect whether the child can continue to attend school, and may affect entitlement to certain college funding.

It is important when your child is faced with a criminal charge that you hire an experienced and knowledgeable attorney who can help your child navigate the waters of family court.

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Enforcing Visitation When the Children Refuse: What’s a Parent to Do?

The recent case of Noojin v. Noojin, decided by the South Carolina Court of Appeals in July 2016 provides guidelines for custodial parents whose child is protesting visitation with the non-custodial parent.

The mother in Noojin was found to be in contempt of court for failing to facilitate visitation with the children’s father and acquiescing to the children’s refusal to participate in visitation. In Noojin, the father had made repeated requests for visitation with the children, to which the mother had responded that she would “never support forcing time with you against their will.” Mother did not assist father in scheduling visitations for the parties’ 12 year old son and acted in various ways to thwart father’s requests for visits and dinners with the children. Mother also communicated to the children the “idea that they did not have to visit with Father if they did not want to.” Mother had also failed to give consequences for the children’s behavior toward father, and that this further estranged the children from Father.

The Court of Appeals found mother’s actions constituted a willful violation of the Court’s Order and found her in contempt of court.

The Court further found cases from other jurisdictions to be instructive with regard to the notion that “in the absence of psychological or physical harm,” refusing to force an unwilling child to engage in visitation against the child’s wishes could be a basis for a finding of contempt and that the custodial parent “must do more than merely encourage the minor children to visit” the non-custodial parent. The Court instructed that each case must be considered on an individual basis and explicitly stated that “we … do not suggest that in every situation in which a custodial parent fails to force a child to visit a noncustodial parent, such custodial parent should be held in contempt.”

Nonetheless, the Noojin case is an important development and consideration for custodial parents whose children are refusing to visit the other parent.

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Rights of Biological Parents vs. Third Parties (like grandparents)

Generally, there is a presumption in favor of a biological parent having custody of his or her child. The South Carolina Supreme Court has long recognized a biological parent’s superior rights over those of third parties with regard to custody, in the absence of a showing that the biological parent is unfit. Kay v. Rowland, 285 S.C. 516, 331 S.E.2d 781 (1985), citing McDowell v. Richardson, 279 S.C. 268 (1983).

For grandparents seeking custody of grandchildren, the question then, is whether the biological parent is unfit to have or retain custody of the children.

Evidence that the parents were drug users and drug dealers, see Baker v. Wolfe, 333 S.C. 605 (Ct. App. 1998), was sufficient to show the biological parent to be unfit to have custody.

South Carolina also has a “de facto custodians” statute, which gives standing to third parties seeking visitation or custody of children when the third parties have been the primary caregivers of children for specified periods of time, if the natural parents are unfit or other compelling circumstances exist. The statute can be found at section 63-15-60 of the South Carolina Code.

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Factors considered in awarding alimony

There are 13 statutory factors the court must consider in awarding alimony. South Carolina Code § 20-3-130 provides:

(A) In proceedings for divorce from the bonds of matrimony, and in actions for separate maintenance and support, the court may grant alimony or separate maintenance and support in such amounts and for such term as the court considers appropriate as from the circumstances of the parties and the nature of case may be just, pendente lite, and permanently. No alimony may be awarded a spouse who commits adultery before the earliest of these two events: (1) the formal signing of a written property or marital settlement agreement or (2) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties.

(C) In making an award of alimony or separate maintenance and support, the court must consider and give weight in such proportion as it finds appropriate to all of the following factors:

(1) the duration of the marriage together with the ages of the parties at the time of the marriage and at the time of the divorce or separate maintenance action between the parties;

(2) the physical and emotional condition of each spouse;

(3) the educational background of each spouse, together with need of each spouse for additional training or education in order to achieve that spouse’s income potential;

(4) the employment history and earning potential of each spouse;

(5) the standard of living established during the marriage;

(6) the current and reasonably anticipated earnings of both spouses;

(7) the current and reasonably anticipated expenses and needs of both spouses;

(8) the marital and nonmarital properties of the parties, including those apportioned to him or her in the divorce or separate maintenance action;

(9) custody of the children, particularly where conditions or circumstances render it appropriate that the custodian not be required to seek employment outside the home, or where the employment must be of a limited nature;

(10) marital misconduct or fault of either or both parties, whether or not used as a basis for a divorce or separate maintenance decree if the misconduct affects or has affected the economic circumstances of the parties, or contributed to the breakup of the marriage, except that no evidence of personal conduct which may otherwise be relevant and material for the purpose of this subsection may be considered with regard to this subsection if the conduct took place subsequent to the happening of the earliest of (a) the formal signing of a written property or marital settlement agreement or (b) entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties;
(11) the tax consequences to each party as a result of the particular form of support awarded;

(12) the existence and extent of any support obligation from a prior marriage or for any other reason of either party; and(

13) such other factors the court considers relevant.

S.C. Code Ann. § 20-3-130.

Each of these factors must be considered by the Court, and the Court must recite its findings with respect to each of these factors in making an award of alimony, pursuant to Rule 26(c) of the South Carolina Rules of Family Court.

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Lump Sum Alimony is Non-Modifiable

It is important if you are considering a settlement agreement that includes a provision for lump sum alimony that you are aware of the non-modifiable nature of lump sum alimony. In fact, the family court will not have the jurisdiction to modify even the payment structure of lump sum alimony, even if there is a significant reduction in the paying party’s income and resources.

Lump sum alimony is defined in South Carolina Code Ann. § 20-3-130(B)(2), which provides:
(B)(2) Lump-sum alimony [is] a finite total sum to be paid in one installment, or periodically over a period of time, terminating only upon the death of the supported spouse, but not terminable or modifiable based upon remarriage or changed circumstances in the future. The purpose of this form of support may include, but not be limited to, circumstances where the court finds alimony appropriate but determines that such an award be of a finite and nonmodifiable nature. (emphasis added).

Lump sum alimony is non-modifiable, and the family court cannot modify the provision, even where the alimony is payable in installments. Blakey v. Blakely, 249 S.C. 623, 155 S.E.2d 857 (1967). Accord S.C. Code Ann. § 20-3-130(G) which provides that the parties may agree in writing, if properly approved by the Court, that the payment of alimony as set forth within the Agreement is non-modifiable and not subject to subsequent modification by the Court.

“While the family court normally has the authority to modify alimony, once an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.” Maxwell v. Maxwell, 375 S.C. 182, 187, 650 S.E.2d 680, 683 (citing Degenhart v. Burriss, 360 S.C. 497, 500-1, 602 S.E.2d 96, 98 (Ct.App.2004)). See also Payne v. Payne, 2007 S.C. App. Unpub. LEXIS 27 (S.C. Ct. App. Sept. 20, 2007) (unpublished opinion).
The family court has the authority to modify alimony agreements “unless the agreement unambiguously denies the court jurisdiction” to do so. Moseley v. Mosier, 279 S.C. 348, 353, 306 S.E.2d 624, 627 (1983) (emphasis added). “In Moseley, our Supreme Court adopted a rule allowing parties to specifically agree that the court may never modify the terms of their agreement. This decision acknowledged that the parties could contract out of the family court’s continuing jurisdictional supervision of their relationship.” Payne citing Moseley, 279 S.C. at 353, 306 S.E.2d at 627. “[O]nce an alimony agreement that specifically disallows modification is approved by the court and merged into a judicial order, it is binding on the parties and the court and is not subject to modification.” Degenhart v. Burriss, 360 S.C. 497, 500-01, 602 S.E.2d 96, 98 (Ct. App. 2004). The parties may specifically “agree that the amount of alimony may not ever be modified by the court.” Croom v. Croom, 305 S.C. 158, 161, 406 S.E.2d 381, 383 (Ct. App. 1991).

Moreover, our Supreme Court has held, “When a contract is unambiguous, clear and explicit, it must be construed according to the terms the parties have used. The judicial function of a court of law is to enforce a contract as made by the parties, and not to rewrite or distort, under the guise of judicial construction, contracts, the terms of which are plain and unambiguous.” Hardee v. Hardee, 355 S.C. 382, 585 S.E.2d 501 (2003)(citations omitted)(emphasis added). As the Court stated in Ellis v. Taylor, 316 S. C. 245, 449, S. E. 2d 487 (1994), “courts must enforce an unambiguous contract according to the terms regardless of its wisdom or folly, apparent unreasonableness, or the parties’ failure to guard their rights carefully. It is not the job of the court to protect litigants from entering into unwise agreements.” (emphasis added). See also, Smith–Cooper v. Cooper, 344 S.C. 289, 295, 543 S.E.2d 271, 274 (Ct.App.2001) (holding that where an agreement is clear on its face and unambiguous, “the court’s only function is to interpret its lawful meaning and the intent of the parties as found within the agreement.”)

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Relocation after Divorce

Often, in our increasingly mobile society, people want to relocate after a divorce. The issue becomes more complicated where children are involved.

South Carolina Code § 63-3-530(3) provides that a family court may not issue an order that prohibits a custodial parent from moving his residence to a location within the State unless the court finds a compelling reason to do so or unless the parties have agreed to such a prohibition. However, this does not mean that a custodial parent who wishes to move within the State will always win. In fact, the South Carolina Supreme Court in Davis v. Davis, 356 S.C. 132, 588 S.E.2d 102 (2003) used the mother’s intention to relocate from Aiken to Beaufort to be a determining factor in awarding the father custody of the parties’ children.

If the parties have already been divorced, the Court will first look to the Court’s prior Order to determine whether the custodial parent is prohibited from moving outside the State without permission of the other parent or in the absence of a court order allowing the move. If there is a restriction against relocation by the custodial parent in the prior court order, the moving parent must establish not only that there has been a significant change of circumstances but also that relocation is in the children’s best interests.

Further, relocation, standing alone, is not considered a substantial change in circumstances affecting the welfare of the child which justifies a change in custody. See Latimer v. Farmer, 360 S.C. 375, 605 S.E.2d 32 (2004). “Relocation is one factor in considering a change of circumstances, but is not alone a sufficient change in circumstances. One location may not necessarily affect the best interests of the child as would another.” Id.

The Court must consider a number of factors in determining whether a child’s best interests are served by allowing a relocation. These include: (a) the parties’ reasons for seeking or opposing the move; (b) the quality of the child’s relationship with each of the parties; (c) the extent to which visitation rights have historically been allowed and exercised; (d) the impact of the move on the quality of the child’s future contact with the non-custodial parent; (e) the degree to which the move would enhance the child’s and relocating parent’s economic, emotional, and educational circumstances; (f) “the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements”; (g) whether the relocating parent is likely to abide by court orders regarding alternate visitation arrangements; (h) the cost of transportation; and (i) whether the move is in the child’s best interests. Id.

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Termination of Parental Rights

There are many grounds for termination of parental rights in South Carolina. In private termination of parental rights actions, I most commonly have been confronted with a parent’s failure to support or visit his or her child. In South Carolina, a parent’s parental rights can be terminated if a parent willfully fails to support their child for a period of six months or more and/or if a parent willfully fails to visit their child for a period of six months or more, and it is in the child’s best interests to terminate parental rights.

Parties may also seek a termination of parental rights based upon a parent having a diagnosable condition that is unlikely to change within a reasonable amount of time, including, but not limited to, addiction to alcohol or illegal drugs, prescription medication abuse, mental deficiency, mental illness, or extreme physical incapacity, and the condition makes the parent unlikely to provide minimally acceptable care of the child. S.C. Code Annotated § 23-7-2570.

Where a parent is unable to visit because the other parent is preventing him from doing so, willful failure to visit will not be found. Likewise, where a parent is unable to provide support, and is not simply voluntarily unemployed or under-employed, willful failure to support will not be found.

And, even where a party meets the statutory requirements for a termination of parental rights, it must still be in the child’s best interests for the Court to do so.

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Marital property vs. Non-marital property

Marital property is property that was (1) acquired during the marriage; and (2) owned as of the date of filing or the beginning of marital litigation. S.C. Code Ann. § 20-3-630.

Non-marital property is property that is (1) acquired by either party by inheritance or gift from a party other than the spouse; (2) is acquired by either party before the marriage and after the happening of the entry of a temporary order in a divorce or separate maintenance action, the formal signing of a written property or marital settlement agreement, or entry of a permanent order of separate maintenance and support or of a permanent order approving a property or marital settlement agreement between the parties; (3) excluded by written contract of the parties, i.e., in a pre-nuptial agreement or antenuptial agreement; (4) any increase in value in non-marital property, except to the extent that the increase resulted directly or indirectly from the efforts of the other spouse during the marriage. S.C. Code Ann. § 20-3-630.

Gifts between spouses are marital property which is subject to division by the Court.

The Family Court does not have jurisdiction or authority to apportion non-marital property.

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Different Types of Spousal Support in South Carolina

In general, spousal support, most commonly known as alimony, is meant to be a substitute for the support a spouse received as part of the marital relationship.  Ordinarily, the purpose of alimony is to place the supported spouse in as comparable a position of support as he or she enjoyed during the marriage.
Alimony can be awarded on a permanent basis or as temporary, rehabilitative support. It can also be awarded as a lump sum. When the parties are able to reach an agreement to settle the issue of spousal support between themselves, any of the types of alimony can be settled upon.

Where a claim for alimony is well supported, current South Carolina law favors the award

port a spouse received as part of the marital relationship.of permanent, periodic alimony, which usually means monthly payment of some specified amount on a permanent basis, or until remarriage, cohabitation with a romantic partner for a specific period of time, or death of the supported spouse. Permanent periodic alimony is usually modifiable upon a showing of a substantial change of circumstances.

Lump sum alimony is usually non-modifiable. It can be paid all at once, or on a payment schedule. In general, our Courts will award lump sum alimony only where special circumstances require it.

Rehabilitative alimony is also properly awarded only upon a showing of a special circumstance sufficient to justify a departure from permanent periodic support. This type of alimony is meant to allow the supported spouse to become self-supporting after a divorce.

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