FREQUENTLY ASKED QUESTIONS
Let Our Experienced Attorneys Answer Your Questions
Are you considering divorce but don’t know where to begin? Do you know you need a will but aren’t sure of the best way to proceed? At Trimnal & Myers Attorneys, we want to help. Our attorneys are here to answer your questions about family law, probate law, and real estate law.
Q: Am I responsible for my spouse’s debts in a divorce?
A: Debt acquired during the marriage is generally divided in the same way the marital property is divided. Debt incurred during the marriage in furtherance of the marriage will be subject to division by the Court.
Q: If I’ve inherited property during the marriage, is my spouse entitled to a share of that property?
A: Property inherited during the marriage will generally be considered non-marital property. However, if this property is transferred into your spouse’s name or commingled with other marital property, it can be considered a marital property and be subject to division by the Court.
Q: How is child support determined in South Carolina?
A: Child support in South Carolina is generally set based on the Department of Social Services Child Support Guidelines. The Court has the discretion to deviate from the child support guidelines, but in most cases the child support guidelines are used to establish child support. The primary figures used in the child support guidelines are each party’s gross income, the cost of health insurance for the minor child, and the cost of daycare expenses for the minor child. Child support may be calculated at a different rate in joint custody arrangements where one parent has the child or children for more than 110 overnights per year.
Q: How does a Court determine which parent will receive primary custody of my minor children?
A: The paramount consideration in determining which parent will have custody of a minor child is the best interest of the minor child. The Court will examine a number of factors in determining the best interest of the minor child. The Court will give weight to the parent that has been the primary caretaker or caregiver of the minor children. Certainly, issues of physical abuse, alcohol/drug abuse, or child neglect will be given strong consideration in any custody analysis.
Q: What is marital property versus non-marital property?
A: Marital property is property accumulated during the marriage subject to a number of exceptions. Some of the major exceptions are property acquired by inheritance or gift. Non-marital property is property acquired by a spouse prior to the marriage or potentially property acquired by inheritance or gift. It’s important to note that property that would otherwise be non-marital property may be transformed or transmuted into marital property based on a number of factors. This is often a complex analysis that is specific to each individual case.
Q: How will the Court divide my property and assets in a divorce?
A: The Court will equitably apportion the marital assets of the parties if the parties are unable to reach an agreement regarding this issue. The marital assets of the parties are not automatically divided 50/50 by the Court. The Court will examine a number of factors in apportioning marital assets; however, in many cases the Court does ultimately divide the marital assets on a 50/50 basis after analyzing the appropriate factors.
Q: How long do I have to wait to obtain a divorce?
A: You must live separate and apart from your spouse for a period in excess of one year without cohabitation in order to obtain a no-fault divorce in South Carolina. The period of separation is measured from the date that you physically separate from your spouse (i.e., the date that you or your spouse begin living in separate residences). You may be able to obtain a divorce within 90 days from the date of filing for divorce if you are able to establish a fault-based ground for divorce. The fault-based grounds for divorce are adultery, physical abuse, and alcohol/drug abuse. Generally, the Court will require that all of the issues resulting from your marriage including property division, custody, alimony, and child support be resolved prior to granting a divorce. This can often delay the period of time in which it takes to get divorced.
Q: What is probate?
A. In South Carolina, probate is the legal process of administering a “final accounting” after a death. During probate, the validity of a will is verified. All claims and debts against an estate are settled and any remaining property is distributed according to the terms outlined under the valid will. If there is no will, the probate process may be used to determine how the estate should be distributed.
There are six steps in probate:
- Validation of the will
- Appointment of a personal representative
- Inventory of the estate
- Defense of claims against the estate
- Payment of estate taxes
- Distribution of assets
Q: How long does the probate process take in South Carolina?
A: There is no standard answer; depending on the situation, the probate process can take months or even years. The time that it takes for an estate to go through probate depends on both the complexity of the estate and the thoroughness by which an accounting was carried out before the death.
Q: What is probate court?
A: Like all states, South Carolina has a special probate court that handles only estate issues. All actions taken regarding a South Carolina estate are accountable to probate court and must be documented and reported at regular intervals.
Q: What papers do I need after the death of a family member?
A: South Carolina probate attorney Brian Trimnal suggests that family members obtain the following:
- Certified copies of the death certificate
- Copies of all insurance policies
- The Social Security number of the deceased
- The Social Security number of the spouse and any dependent children
- Birth certificates for any dependent children
- Marriage certificates
- Divorce papers when applicable
- Military discharge papers
- The original will
- A complete list of all property, including: real estate, savings accounts, stock, bonds, and personal property.
If a death is not unexpected, it is helpful to gather these documents in advance.
Q: What steps should I take to make sure that my loved ones’ assets are protected and distributed according to the wishes of the deceased?
A: Every person is unique, so it’s best to discuss your loved one’s estate with a financial advisor and South Carolina probate attorney. Some steps that you may need to take are:
- Update insurance policies. If the deceased was a beneficiary on your own insurance policy or the insurance policy of a spouse, the policy will need to be revised. Homeowners and auto insurance policies may also require revision.
- Update automobile titles. Check with the South Carolina DMV to determine if the title needs to be changed.
- Revise bank accounts. Any joint bank accounts will automatically pass to the surviving spouse. Bank accounts held only by the deceased will have to go through probate.
- Change on titles of stocks and bonds. The deceased’s stockbroker will best be able to advise you on how to change the title to stocks and bonds.
- Settle credit card debts. All credit cards held by the deceased should be cancelled and the balance should be paid off by the estate. Joint cards should be reissued in the name of the surviving card holder.
Q: My spouse died without a will. How will my spouse’s assets be distributed?
A: If a spouse dies without a will, the estate is dealt with according to the South Carolina law known as intestacy. Any assets held jointly with the right of survivorship will go to the surviving spouse. This may include real estate, bank accounts, and more. Insurance policies or retirement accounts will go to the beneficiary named on the policy. All other assets will be distributed according to the rules set by the South Carolina probate court with preference given to the surviving spouse and children.
Q: What if my loved one died without a will?
A: When a person dies without a will in South Carolina, they are said to die intestate. In the case of an intestate death, the probate court appoints a personal representative or administrator to oversee the estate. The estate will then be distributed according to South Carolina state law rather than according to the instructions in a will.
Q: Which states’ probate laws apply if the deceased owned land in several states?
A: Probate is almost always filed in a decedent’s home state. Any personal property is distributed according to the probate laws of the state in which the deceased permanently resided. However, if the decedent owned property in more than one state, each state’s probate laws will determine how that property is distributed. So, the will must go through probate in each state where property is owned, not just in the deceased’s home state. This is known as ancillary probate.
Q: Who is in charge of the probate process?
A: The probate process in South Carolina is generally overseen by a personal representative appointed by the probate court. This person is named by the probate court clerk in a formal document known as the “Letters Testamentary or Administration” and is responsible for managing the estate and making sure that probate rules and procedures are followed. In most cases, the personal representative is the same person named as executor in the will. However, if there is no will or the executor is unable or unwilling to administrate the estate, then the court may appoint another administrator. This is usually the closest living relative or other person who will inherit a portion of the deceased’s assets.
Q: Who can serve as a personal representative?
A: Any friend or relative may serve as a personal representative. The person does not have to have legal or financial expertise, but they must be trustworthy. A personal representative has the “fiduciary duty” to act with good faith and honesty on the estate’s behalf. He or she must be careful, organized, honest, impartial, and diligent and show both reasonable prudence and good judgment. It’s best if the personal representative lives nearby and is familiar with the decedent’s finances.
Q: I have just signed a contract to buy real estate in Lancaster. What do I do next?
A: Here are the steps you should take:
- Contact a Lancaster real estate attorney.
- Bring a signed copy of the contract to your real estate lawyer. The attorney will need the contract to order the title work. You must do this within a week of signing the contract.
- Apply for a mortgage loan. Bring your lender the contract, your most recent paycheck stub, two years of W-2 forms, three years of tax returns, and your current bank statements.
- Hire a home inspector to check the property when needed. Hire a termite inspector to check for infestation and damage. Hire a surveyor to mark your boundaries when needed. Your Lancaster real estate attorney can help you with these matters. This is important because you must report any defects on the property or title to the seller by the deadline on your contract.
- Apply for flood and hazard insurance policies. Your insurance company will need the date your home was built, the number of livable square feet, the type of construction, and the elevation above sea level.
- Be able to either wire the funds or provide a certified bank check to close the contract. Your Lancaster real estate attorney will tell you how much you need to pay. A personal check is not acceptable.
Q: What is title insurance?
A: A title gives the owner of a property the right to possess, occupy, enjoy, and sell the property without interference from others, subject to the restrictions applied by government authority or the previous owners. In South Carolina, most property is transferred by a deed which is recorded in the land records of the county in which the property is located.
When a property is sold, the abstractor or title examiner searches the land records for any title defects. Title defects refer to anything in the history of the ownership of the property that might impact the owner’s right of title. This is important because a title defect could cause a new owner to lose all or part of the land. Title insurance protects the owner if a title defect is found after the property is purchased. This insurance is purchased at the time of closing and remains in effect at least as long as you own the property.
Title issues usually occur because of improperly filed documents that are not found during a diligent search. However, as long as the diligent search was completed, the title examiner is not liable for the loss. Does this mean you have no recourse? A title insurance policy means that you don’t lose your investment. The policy ensures that the insurance company will defend you against any claim on your ownership interest in your property at no additional cost. It also protects you against financial loss from a title defect.
Q: Why do I need title insurance if my title has been examined?
A: When a property is sold in South Carolina, the abstractor must search the land records for any title defects. However, it’s impossible to know that every deed, mortgage, or judgment affecting the property has been properly filed, whether all signatures are valid, or whether the previous owners or their heirs still have a claim to the property. If a title defect is found and you don’t have title insurance, you could lose your property and your investment.
Q: I just received a tax bill for a property that I sold in Lancaster. What should I do about it?
A: If you receive a tax bill for a property that you have sold, you should forward the bill to the buyer or to the Lancaster real estate lawyer that assisted with the closing. Although tax records do not always show the latest changes in ownership, a buyer is responsible for all bills accrued after the closing date. A delay in getting the bill to the buyer could result in additional fees or penalties.
Q: What is a short sale?
A: A short sale often occurs when a property owner owes money on a property. A short sale is held when a lender agrees to settle that debt for less than the full amount owed based on the sale of the property. “Settling” means that the lender will write off the debt and will not file a delinquency judgment in the future. The owner receives a 1099 form indicating the amount of debt that is forgiven.
Q: Why do I need an Indian Land real estate attorney for my closing?
A: Closing on a real estate deal is considered a practice of law. Only an attorney can practice law in South Carolina, so any reputable mortgage lender will require that an attorney conduct the closing. But, this is not the only reason to hire a Fort Mill real estate lawyer.
A closing is only part of the service provided by a South Carolina real estate attorney. South Carolina real estate law is complex. You will need a Fort Mill real estate attorney to examine the title records for defects and prior liens, conveyances, and encumbrances in the deeds in the chain of title.
Q: I am married, but the house that I am selling is only in my name. Does my spouse have to come to the closing?
A: South Carolina abolished dower laws in the 1980s. While your spouse may have a potential property right to any property you own, their interest in your real property must be established through a court order or deed. Without a court order, the only signatory necessary is the owner of record on the deed.
Q: I have given my spouse a Power of Attorney. Can they sign for me at a closing if I cannot attend?
A: Possibly. In order to have your spouse sign for you at the closing, you will need to inform both your lender and the closing attorney that you plan to have your spouse sign. Do this as soon as possible. Your lender will have to approve your non-attendance and your Lancaster real estate attorney will need to check the Power of Attorney to determine if it is valid for real estate closings. If it is valid, the attorney will need to record the original Power of Attorney and prepare additional documents.
Q: Who does a Lancaster real estate lawyer represent?
A: The party that is represented by a Lancaster real estate attorney may vary from closing to closing. A Lancaster real estate lawyer can be hired to represent the buyer, the seller, or the lender, or the attorney may represent multiple parties. But, the attorney can only represent more than one of the interested parties if he can do so without compromising any of his obligations to any represented party. Some services, such as preparing a deed or recording cancelled liens, may not be considered representation.