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Who Needs a Prenuptial Agreement?

Mon, 10 Jun 2024 19:49:07 GMT

Couples who bring significant assets or debts to the marriage or where one or both is earning a substantial income should consider having a prenuptial agreement. Also, where one or both parties expect to inherit significant assets or receive gifts from third parties, a prenuptial should be part of the pre-wedding process.

Additionally, couples who marry later in life or who are entering a second or third marriage may bring assets, debts, incomes and children to the new relationship. Protecting their hard earned nonmarital assets and future income is necessary so the individual and their children and grandchildren’s inheritance are protected through a prenuptial agreement.

Prenuptial agreements require transparency. Both parties must provide the other with full financial disclosure, and there must be enough time before the wedding to allow the parties to discuss and negotiate the issues. Discussions often even include how the household bills will be paid, what happens to the home when one spouse dies, and the like.

A prenuptial agreement also typically addresses whether alimony will be waived or how the payment of alimony is defined in the event of a separation or divorce. A prenuptial agreement can also address situations where one party brings significant debts to the marriage that the other spouse helps pay off during the marriage so the spouse who helps pay off the other’s debts is credited for their contributions upon a divorce or death.

What issues are resolved by a Pre-Nuptial Agreement that would help determine whether I might need such an agreement or not?

A prenuptial agreement may define which assets remain non-marital despite potential claims of equitable interest by a spouse; whether the parties will waive the receipt of alimony even if at the time of the divorce one party most likely would pay alimony to the other; how assets will be divided upon a parties’ death; whether fault will affect the division of assets and debts; whether parties will be responsible for their own legal fees and costs upon a divorce, and many other issues. The two big issues that prenuptial agreements in South Carolina cannot determine are the custody of children and the amount of child support.

Can parties use the same attorney to draft and advise both parties regarding their prenuptial agreement?

No . It is unethical for the same attorney to represent both parties regarding a prenuptial agreement. However, as a practical matter, one party’s attorney usually drafts the document, and the other party hires separate legal counsel to review and negotiate any necessary changes. Both attorneys also typically assist the parties in preparing the required disclosure of finances. It is vital that both parties receive independent legal advice in drafting and executing their prenuptial agreement as it alters the normal operation of law and valuable rights are usually waived. It also helps ensure that the agreement will later be found enforceable by the courts.

Under what circumstances will a court not enforce a prenuptial agreement?

A court may refuse to enforce a prenuptial agreement when the parties have (1) used the same attorney to advise them during the drafting and execution of the agreement; (2) if the parties did not freely, fairly, reasonably or in good faith enter into the prenuptial agreement; (3) if the parties did not give each other full and fair financial disclosure before they entered their agreement; (4) if the agreement was obtained through fraud, duress, mistake or through misrepresentation, overreaching or nondisclosure of material facts; (5) if the was agreement unconscionable meaning that it was so unfair no reasonable person should have agreed to the terms; or (6) if have the facts and circumstances changed so dramatically since the execution of the agreement that it is unfair and unreasonable to enforce it.

Some of these factors depend greatly upon the specific circumstances of each case. In 2003, our state Supreme Court upheld the lower court’s denial of alimony to a spouse with diabetes and sponge kidneys who entered into a prenuptial agreement “freely and knowledgeably, with adequate disclosure, and without undue influence or overreaching.” The court was likely persuaded by the fact that wife suffered from those health conditions at the time of the marriage, she had legal counsel when she signed the document, she was advised not to sign the document and her husband provided her with full financial disclosure. In fact, as that case, Hardee v. Hardee , notes, “'[t]he current trend and majority rule allows parties to prospectively contract to limit or eliminate spousal support.'..." Hardee also provides a synopsis of courts’ attitudes toward prenuptial agreements, stating, “In the past two decades ... the courts have reconsidered... public policy in light of societal changes, and today, premarital agreements, so long as they do not promote divorce or otherwise offend public policy, are generally favored as conducive to the welfare of the parties and the marriage relationship as they tend to prevent strife, secure peace, and adjust, settle, and generally dispose of rights in property.”

Is it ok to sign a PreNuptial Agreement the day before the wedding?

While there is no specific law about how far ahead of a wedding a prenuptial agreement must be signed in order to be “valid,” it is safe to say that two weeks before a wedding is cutting it quite close. The closer to the wedding date, the stronger the argument that one party may later claim they were forced to sign under duress.

Entering into a prenuptial agreement is requires competent, experienced legal counsel. Both parties also need time to work through the process thoughtfully and honestly. Do not hire an attorney who pulls forms from a friend or downloads the form from the internet as each case is different, and each couple has their own unique needs.

When advised by wise, experienced counsel, especially when significant resources are involved, discuss your circumstances and consider hiring the attorney who is competent to draft a document that protects your needs and is fair to your fiancé.

Melissa Fuller Brown, Esquire, is the President of the South Carolina Chapter of the American Academy of Matrimonial Lawyers, a Board Certified SC Family Law Trial Attorney (Certified by the NBTA), Board Certified SC Family Law Mediator & Advanced Mediator (Certified by AAML), AV Rated by Martindale-Hubbell and chosen as a SC Family Law Super Lawyer. She now works primarily as a family law consultant and mediator in Mount Pleasant, SC.

In June 2022, The Board of Directors of the American Bar Foundation (ABF) invited Melissa Fuller Brown to become a Fellow in their organization.

Tue, 12 Jul 2022 22:00:56 GMT

In June 2022, The Board of Directors of the American Bar Foundation (ABF) invited Melissa Fuller Brown to become a Fellow in their organization. Fellows of the ABF comprise a global honorary society of lawyers, judges, law faculty, and legal scholars. Membership is by invitation only based upon recommendations of their peers in reliance upon legal careers that demonstrated outstanding dedication to the highest principles of the legal profession and to the welfare of our society. Membership is limited to only one percent (1%) of licensed U.S. lawyers and a limited number of international lawyers.

As of October 15, 2021, Melissa Fuller Brown’s law practice is transitioning to a mediation only practice. From this date forward, she will accept family law mediation matters.

Fri, 08 Oct 2021 16:04:32 GMT

As of October 15, 2021, Melissa Fuller Brown’s law practice is transitioning to a mediation only practice. From this date forward, she will accept family law mediation matters. Please email her at melissa@melissa-brown.com to schedule a mediation.

December 4, 2020, Melissa F. Brown was voted in as President-Elect of the South Carolina Chapter of the American Academy of Matrimonial Lawyers (SCAAML), and she was re-elected to the SCAAML’s Exec...

Tue, 02 Feb 2021 19:50:00 GMT

December 4, 2020, Melissa F. Brown was voted in as President-Elect of the South Carolina Chapter of the American Academy of Matrimonial Lawyers (SCAAML), and she was re-elected to the SCAAML’s Executive Board.

SC Divorce Attorney | Family Lawyer Charleston SC | Charleston Divorce Lawyer

Introducing Chain Emails & Text Messages Into Evidence

Fri, 15 Dec 2017 02:37:00 GMT

This article was recently published in The Family Law Review, a publication of the Family Law Section of the State Bar of Georgia – Fall 2017.

Read the full article

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Melissa F. Brown was elected as an Officer of the AAML’s South Carolina Chapter (Secretary) and she was elected to the Chapter’s Executive Committee. Dec 2016

Wed, 01 Nov 2017 16:52:00 GMT

Melissa F. Brown was elected as an Officer of the AAML’s South Carolina Chapter (Secretary) and she was elected to the Chapter’s Executive Committee. Dec 2016

SC Divorce Attorney | Family Lawyer Charleston SC | Charleston Divorce Lawyer

Melissa Fuller Brown certified as a member of The Lawyers of Distinction

Thu, 17 Aug 2017 12:02:00 GMT

August 17, 2017

The Lawyers of Distinction is pleased to announce that Melissa Fuller Brown of Melissa F. Brown, LLC, has been certified as a member. The Lawyers of Distinction is recognized as the fastest growing community of distinguished lawyers in the United States. Membership is limited to the top 10% of attorneys in the United States. Members are accepted based upon objective evaluation of an attorney’s qualifications, license, reputation, experience, and disciplinary history. Please see our website www.lawyersofdistinction.com for further details concerning membership qualification.

Ms. Brown represents clients involved in family law matters including divorce, custody, visitation, asset & debt division, alimony, child support and Pre- and Post-Nuptial Agreements. She is certified as a South Carolina Family Law Specialist (National Board of Trial Advocacy); she is a Fellow in the American Academy of Matrimonial Lawyers and International Academy of Family Lawyers; and she is rated as an AV® Preeminent Family Lawyer by Martindale-Hubbell and she has been designated as one of SC’s Top Family Lawyers by Super Lawyers since 2014.

Her disciplined, deliberate and dedicated approach to complex domestic litigation has helped her clients maximize their results and protect their families’ futures.

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Melissa Brown receives 2017 Martindale Hubbell Rating of AV

Mon, 17 Oct 2016 01:26:00 GMT

Melissa F. Brown, LLC, is pleased to announce that for the sixth year in a row Melissa Fuller Brown, Esquire, has received the coveted 2017 Martindale Hubbell rating of AV, the highest rating amongst her lawyer peers.

The post Melissa Brown receives 2017 Martindale Hubbell Rating of AV appeared first on SC Divorce Attorney | Family Lawyer Charleston SC | Charleston Divorce Lawyer .

Paralegal Certification

Thu, 30 Jun 2016 22:23:00 GMT

Jackie F. Wood, our paralegal extraordinaire, is one of the first persons eligible to be designated as a South Carolina Certified Paralegal. She deserves the honor and we are so very proud of her!

Paralegal Certification
The South Carolina Board of Paralegal Certification has certified the following 25 individuals: Brandy R. Ableman, Greenville; Jaylon L. Addison, Greenville; Tiffany P. Davenport, Williamston; Amanda K. Durham, Charleston; S. Bronwyn Ellington, Greenville; Amanda A. Folk, Columbia; Jay-Jay Flanagan-Grannemann, Columbia; Ashleigh H. Gentry, Greenville; Karen S. Hall, Greer; Crystal M. Hayes, Anderson; Jessica M. Hillyard, Laurens; Robin L. Krecek, Rock Hill; Katherine E. Mangan, Central; Dorothy L. Huskey, Greenville; Danielle R. Kalu, Taylor; Jennifer C. Little, Taylor; Rebecca J. Maxson, Charleston; Ashley M. Mills, Greenville; Kaye Keefe Mullinax, Columbia; Richard A. Provencher, Lugoff; Elizabeth B. Scharf, Simpsonville; Montana N. Stambaugh, Greenville; Sadie R. Sweetman, Pickens; Melodie L. Watson, Simpsonville; and Jacqueline F. Wood, Charleston.

They are the first persons eligible to be designated as a South Carolina Certified Paralegal.

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Shan White has allowed me to share her new article for those going through the divorce process titled “5 Ways to Free Yourself from Being Frozen in Fear.”

Tue, 31 May 2016 17:12:00 GMT

Shan White

– See more at: http://www.divorcemag.com/blog/free-yourself-from-being-frozen-in-fear

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Melissa F. Brown selected to the 2016 South Carolina Super Lawyers List

Mon, 23 Nov 2015 21:37:00 GMT

Melissa F. Brown has been selected to the 2016 South Carolina Super Lawyers list, an honor reserved for those lawyers who exhibit excellence in practice. Only 5% of attorneys in South Carolina receive this distinction. Selection to the Super Lawyers list provides third-party validation of her practice, grows her attorney referral network and influences consumer hiring decisions.

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ATTORNEY MELISSA FULLER BROWN BECOMES A BOARD CERTIFIED FAMILY LAW TRIAL ADVOCATE BY THE NATIONAL BOARD OF TRIAL ADVOCACY

Tue, 17 Nov 2015 23:29:00 GMT

CHARLESTON, SC -The National Board of Trial Advocacy (NBTA) is pleased to announce that Melissa Fuller Brown of the law firm, Melissa F. Brown, LLC has successfully achieved Board Certification as a family trial advocate. The NBTA was formed out of a strong conviction that both the law profession and its clients would benefit from an organization designed specifically to create an objective set of standards illustrating an attorney’s experience and expertise in the practice of trial law.

Melissa Fuller Brown, joins a growing number of trial attorneys that have illustrated their commitment to bettering the legal profession by successfully completing a rigorous application process and providing the consumer of legal services with an objective measure by which to choose qualified and experienced legal counsel.

The elaborate screening of credentials that all NBTA board certified attorneys must successfully complete includes: demonstration of substantial trial experience, submission of judicial and peer references to attest to their competency, attendance of continuing legal education courses, submission of legal writing documents, proof of good standing and passing of an examination.

Board Certification is the highest, most stringent, and most reliable honor an attorney can achieve. Board certifications are the only distinctions awarded by non-profit organizations. The NBTA as well as all board certifying organizations are committed to safeguarding the public’s ability to choose a good
attorney.

Melissa Fuller Brown earned her undergraduate degree in History, American Studies Program from the University of Virginia. She is a graduate of University of South Carolina School of Law. Ms. Brown is licensed to practice in South Carolina, and her main office is in Charleston. She has been involved in numerous contested family court actions and trials. She is a Fellow of the American and International Academies of Matrimonial Lawyers She is a South Carolina Super Lawyer in Family Law and a member of the National Advocates Top 100 Family Law Attorneys. She served on the Faculty of the National Family Law Trial Institute and is a Past Chair of the South Carolina Family Law Council. She has published numerous articles on family law in national and state journals such as the American Journal of Family Law, University of South Carolina Law Review, the State Bar of Georgia Family Law Review, the South Carolina Lawyer and the ABA E-Newsletter.

Approximately three percent of American lawyers are board certified, and Ms. Brown is a member of a very select group who has taken the time to prove competence in their specialty area and earn board certification.

For more information on Attorney Melissa F. Brown, please visit: www.scdivorcelaw.com and www.nbtalawyers.org

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A Family Lawyer’s Ethical Obligation to Implement Guiding Principles about ESI into Their Every Day Practices

Thu, 05 Nov 2015 17:37:00 GMT

Melissa Fuller Brown, November 2015.

ESI (Electronically Stored Information) is information created, manipulated, communicated, stored, and best utilized in digital form, and it requires the use of computer hardware and software. ESI is found on any device having electrical, digital, magnetic, wireless, optical or electromagnetic capabilities including on PDA’s, cell phones, smart phones, digital cameras, GPS devices, portable hard drives, external hard drives, internal hard drives, thumb/flash drives, servers, tablets, I-pads, I-pods, workstations, desktops, and laptops.

In 2006, formalized changes were made to the Federal Rules of Civil Procedure about the use of electronic discovery. Now, at least 49 states have e-discovery and ESI rules. These rules may differ from state to state or, where they might even be identical, the states might still interpret the lawyer’s compliance differently “due to varying jurisdictions’ different social mores, population bases and historical approaches to their own ethics rules and opinions.” [1]

States such as New Hampshire, [2] California, [3] and North Carolina [4] have issued ethics opinions to help specifically advise their attorneys about their ethical obligation to not only understand technology but also to advise potential and current clients about how to preserve ESI evidence. North Carolina even provides various fact scenarios to guide its attorneys depending upon the nuances of a particular situation.

The bottom line is that family law attorneys do have an ethical obligation to stay abreast of technology, social media and the responsibility to preserve evidence related to each. Given the rapid changes in these arenas, it is best for family law attorneys to implement principles, not necessarily “best practices,” [5] to remain aware of their state’s ethics opinions and to advise potential clients from the very first meeting about their duty to preserve ESI evidence so the potential client does not unintentionally destroy evidence and perhaps create their own ethics delimma by having failed to educate the client about this duty.

[1] Social Media Ethics Guidelines of NY State Bar Association’s Commercial & Litigation Section, updated June 9, 2015. http://www.nysba.org/socialmediaguidelines/

[2] “[C]ounsel has a general duty to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation.” N.H. Bar Ass’n Ethics Advisory Comm., Op. 2012-13/05 (2012).

[3] Lawyers who lack competence in e-discovery could violate CA’s ethics rules and the attorney’s duty of confidentiality. http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202015-193%20[11-0004]%20(06-30-15)%20-%20FINAL.pdf

[4] “Rule 1.1 requires lawyer to provide competent representation to clients. Comment [8] to the rule specifically state that a lawyer”…. [should keep abreast of relevant technology.] ’Relevant technology’ includes social media.”http://www.ncbar.com/ethics/ethics.asp?page=1&keywords=Spoliation

[5] Social Media Ethics Guidelines of NY State Bar Association’s Commercial & Litigation Section, updated June 9, 2015. http://www.nysba.org/socialmediaguidelines/

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South Carolina Family Law Super Lawyer

Tue, 27 Oct 2015 17:46:00 GMT

Melissa Brown has once again been chosen as a South Carolina Family Law Super Lawyer.

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IRS Benefit for SC Victims of Recent Flooding

Thu, 08 Oct 2015 23:22:00 GMT

If you are one of many victims suffering from the recent flooding in SC
and previously requested an extension to file your 2014 tax returns, the
IRS issued an extension well beyond October 15, 2015. Yesterday, the IRS
announced that South Carolina flood victims, including individuals and
businesses that previously received a tax-filing extension to October 15,
were granted additional time to file their taxes and obtain other tax
relief up until Feb 16, 2016. (At this time, affected victims in the
following counties Berkeley, Calhoun, Charleston, Clarendon, Darlington,
Dorchester, Florence, Georgetown, Horry, Kershaw, Lee, Lexington,
Orangeburg, Richland, Sumter and Williamsburg qualify for this benefit, but
FEMA may extend this extension to other counties as they assess damage.)
Find out more information here:

http://www.irs.gov/uac/Newsroom/IRS-Provides-Tax-Relief-to-South-Carolina-Flood-Victims-Oct.-15-Tax-Deadline-Extended-to-Feb.-16

This is great news for the many who suffered great losses and are putting
their lives back together. At least you do not have to worry about filing
your 2014 taxes by October 15th!

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Great HOT TIP for divorcing parties.

Wed, 23 Sep 2015 21:37:00 GMT

A QDRO is a Court Order that details how monies from a qualified retirement plan are transferred from one spouse to another. Once the Court and Plan Administrator approve the QDRO, the Plan Administrator will send the Alternate Payee (AP) a form asking the AP where he or she wants their money deposited or what form they want to receive it.

The AP can fill out the form or take it to a Financial Planner or broker. The form has several options: (1) Put the funds into the AP’s existing IRA; (2) The AP can set up a new IRA in which to deposit the funds; (3) AP can set up their own 401K to deposit the funds; OR (4) An interesting option is to request the funds in cash because the IRS has a special rule that allows the AP to receive the cash without having to pay the normal 10% penalty. Instead, the AP only pays income taxes at their taxable rate. This is a little known benefit, and it is one divorcing parties should consider if they need cash now. However, if the AP does not need cash, the AP should put the money in another retirement plan, and let it grow.

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Melissa Fuller Brown, Esq., Guest Speaking at the Oklahoma Family Law Section Trial Advocacy School on Tuesday, July 14, 2015

info@thecamel.co (The Camel ) — Mon, 13 Jul 2015 22:40:00 GMT

Melissa Fuller Brown, Esq., is the invited guest speaker at the Oklahoma Family Law Section Trial Advocacy School on Tuesday, July 14, 2015. Her presentation is titled “ Social Media & ESI: How to Obtain, Preserve & Introduce in Family Court Cases. ” Another aspect of the program is the students’ ability to go well beyond the topic & Ms. Brown looks forward to the exciting questions of future, great, esteemed family court trial lawyers.

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Exciting News for Melissa F. Brown, LLC

info@thecamel.co (The Camel ) — Thu, 23 Apr 2015 19:20:00 GMT

Melissa Fuller Brown was recently invited to serve as one of fourteen members of the Executive Committee of The National Advocates. The Committee leads this professional organization composed of the Top 100 attorneys from each state. Other Executive Members include Gloria Allred and George Geragos. Prominent Family Lawyers on the Executive Committee include Robert Stephen Cohen, Bernard E. Clair, Mark J. Kaplan, Jim Mueller, Bernard Post, Raymond Rafool and Paul Eric Rudder. The organization is dedicated to providing the highest quality legal advocacy, and its members are invited to join based upon their superior qualifications of leadership, reputation, influence and performance in a particular area of law.

This week Melissa was again designated as a South Carolina Super Lawyer (Family Law); Martindale Hubbell gave her an AV rating, the highest score for both legal ability and ethical standards. In addition, Martindale Hubbell chose her as part of its group of top female lawyers in the country.

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Melissa F. Brown chosen as one of the 100 Top Family and Matrimonial Lawyers in the country

Mon, 10 Nov 2014 21:13:00 GMT

Melissa F. Brown was selected as one of the 100 Top Family and Matrimonial Lawyers in the country for 2014. Read more about the membership here: http://www.thenationaladvocates.org/

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Jonathan W. Lounsberry Program Co-Chair for 2014 ABA Section of International Law’s International Families: Money, Children and Long Term Planning Conference

Wed, 02 Jul 2014 14:55:00 GMT

Along with Stephen Cullen and Kelly Powers of Miles & Stockbridge P.C. (Baltimore & Washington, D.C.), Jonathan W. Lounsberry of Melissa F. Brown, LLC (Charleston, South Carolina) was program Co-Chair for the “The Promise of the 1980 Hague Convention in Asia” Panel at the 2014 ABA Section of International Law’s International Families: Money, Children and Long Term Planning Conference (June 19 – 21, 2014, Seattle, Washington).

The panel consisted of Honey Kessler Amado ( The Law Offices of Honey Kessler Amado , Beverly Hills, CA, USA), Anne-Marie Hutchinson OBE (Order of the British Empire) ( Dawson Cornwell , London, UK), and Hirotaka Honda ( Honda Law Office at Shibuya , Tokyo, Tokyo, Japan). It was moderated by Colin P. A. Jones (Professor, Doshisha Law School , Kyoto, Japan). The panel addressed the status of Asia in implementing the 1980 Hague Convention, its promise to help combat international child abductions, and practical issues that have arisen since more countries in Asia have become signatories to the treaty.

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The South Carolina Supreme Court’s Changes to Civil Procedure Rules Directly Impact Family Court Litigants

info@thecamel.co (The Camel ) — Wed, 16 Apr 2014 19:33:00 GMT

Today’s (April 16, 2014) Shearouse Advance Sheets No. 15, the South Carolina Supreme Court amended portions of the South Carolina Rules of Civil Procedure that directly impact family court cases. The Court ordered that Rules 11 and 77, SCRCP , are amended and 41.2, SCRCP is added as follows:

Amendment to Rule 11(a), SCRCP : “…The written or electronic signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper…” (emphasis added).

Amendment to Rule 77(d), SCRCP : “…For parties proceeding in the SCE-File electronic filing system, the clerk shall serve notice of the entry by electronically transmitting a Notice of Electronic Filing to all parties. Such mailing or electronic transmission shall not be necessary to parties who have already received notice. Such mailing or electronic transmission is sufficient notice for all purposes for which notice of the entry of an order or judgment is required by these rules…”

The notes to this Amendment, state: “This amendment requires the clerk to serve notice of entry of an order or judgment through the SCE-File electronic filing system for all parties who are proceeding in the electronic filing system. Any party or the attorney for a party who is a traditional filer and not proceeding in the electronic filing system must be served by first class mail as provided in paragraph (d).”

This Rule does not exclude the electronic filing of Family Court cases. This means that family court litigants should expect that their case information will be online and their privacy is limited but specifically addressed in the Court’s new Rule 41.2, SCRCP , because it only addresses some of the concerns parties will have about their private information not being protection in the public sphere.

For example, the new Rule (discussed further below) does not hide the listing of parties’ assets, debts and their estimates of their values. While the Rule protects certain information such as requiring the redaction of account numbers and pin codes, the existence of asset and debts will still be listed online unless the parties’ attorneys take steps to protect this information from the Internet. Children’s names, dates of birth and parties’ social security numbers are redacted or hidden, but again, the fact that parties have minor children becomes public knowledge as the pleadings will identify the fact that certain parties are addressing custody, visitation and child support.

Parties’ jobs and places of employment are also not specifically protected by the new rule. The new rule, though, does state that

“[p]arties preparing or filing documents are prohibited from filing documents which contain personal identifying information delineated in S.C. Code Ann. § 30-2-330(A). Parties should exercise caution and refrain from including any unnecessary personal identifying information in court filings so as to limit the necessity of redacting documents. Furthermore, parties should exercise caution in including other sensitive personal data in filings, such as medical records, employment history, individual financial information, proprietary or trade secret information, information regarding an individual’s cooperation with the government, information regarding the victim of any criminal activity, or national security information.”

Thus, Rule 41.2(b), SCRCP , does allow attorneys to redacted certain information and in fact, the rule goes on to state that attorneys may not only redact but they can put personal data identifiers in a confidential file that the Clerk is not to make available to the public. This portion of the rule states,

“(b) Reference Lists. Where personal data identifiers are relevant to an issue in the case, a filing that contains redacted information may be filed together with a confidential reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed as a confidential document, which is not available to the public, and may be amended as of right. The confidential reference list shall not be made available on the Case Management System Public Index and may only be viewed by the parties and the court and staff. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information. No order of the court is required to file a reference list.

While the new rule is sensitive to the fact that electronic filing can reveal private information in an online format, our Supreme Court has taken measures to attempt to provide protection. This protection, however, is very limited. Thus, parties’ attorneys must take the extra precautions of protecting their clients’ proprietary data so others do not steal and misuse this material for their own gain. The important lesson for litigants and lawyers alike it to carefully craft all documents that are electronically filed so clients, clients’ children and the entire family are not harmed by this new system, but instead, benefit from the cost savings and ease of use the system provides.

Several years ago, this issue came up with Justice Toal first raised concerns about the Sunshine laws. To protect family law litigants, the Supreme Court drafted Rule 41.1 so family court litigants could seal their files where their right to privacy outweighed the public’s right to review certain court documents. At the time, I chaired SC Family Court section, and as part of this discussion and major overhaul of Common Pleas litigation where settlement agreements sometimes kept the public unaware of harmful defects in product designs, I wrote a law review article to distinguish those situations from family court litigation. See Family Court Files: A Treasure Trove for Identity Thieves .

Thus, today’s most significant change to our Rules of Civil Procedure is the addition of Rule 41.2 . The rule only addresses future filings and does not address how to protect previously filed cases or whether those cases will be scanned in and put online. This is an issue that has yet to be addressed, and one that family court lawyers need to stay abreast of.

However, it is fairly clear from today’s announcement that electronic filing in family court cases is about to be launched in South Carolina. I applaud this move forward with technology, but I also caution every SC family court attorney to carefully consider what information you put into your pleadings, motions, financial declarations, agreements, affidavits and orders and make sure you redact any information that would harm your client if it was released and made public to the world online.

The post The South Carolina Supreme Court’s Changes to Civil Procedure Rules Directly Impact Family Court Litigants appeared first on SC Divorce Attorney | Family Lawyer Charleston SC | Charleston Divorce Lawyer .

Be Careful When Using Technology To Gather Evidence

Mon, 10 Mar 2014 14:46:00 GMT

The world of technology changes at break neck speed. Even Apple fans hardly have time to familiarize themselves with a new toy before another is introduced. The new technology is available even before contracts run on the previous models.

Most people today are not as concerned about keeping up with the Jones’s as they are with keeping up with the Steve Jobs’s. The problem in the legal field is that while lawyers struggle to keep up with latest and greatest technological advances, the laws addressing the use, misuse and abuse of such technology are also ever-evolving. However, the laws are not evolving at nearly the pace of technology growth. The result is that obtaining evidence through the use of technology can become dangerous both to clients and attorneys.

No one can be completely sure how old laws will apply to new technology particularly technology that few could fathom or contemplate when the laws were enacted. Lawyers and judges struggle to apply general principals of law to situations never imagined. While there are some hard and fast rules, much of this area of law remains murky and uncertain. Clients may believe their “smoking gun” e-mail will win their case, but, if a court later decides that the client obtained the e-mail illegally, the court will exclude that evidence entirely. Even worse, the client and the attorney offering the illegally obtained evidence might face civil and criminal liability for even attempting to admit such material.

In a much-publicized Ohio case, an ex-wife, Catherine Zang is currently suing her ex-husband, Joseph Zang, and his attorney, Mary Jill Donovan, for wiretapping and invasion of privacy. Catherine Zang claims her ex-husband installed monitoring devices in their home and spied on her with a hidden video camera and microphone. She alleges that he installed these secret cameras to gain leverage during their divorce proceedings. Under the federal wiretapping laws, a person may not intercept wire, oral, or electronic communications, and, under many state’s laws,unless one of the parties in the conversation is aware of the recording, the recording is illegal. This means that in so called “one party” states like South Carolina, a husband is allowed to tape his wife’s conversation only if he is also a party to the conversation. Joseph Zang under Ohio law was probably not allowed to record his wife’s conversations that were not with him, as he allegedly did. He and his lawyer are facing civil penalties up to $10,000 per taping, plus punitive damages and attorney fees. They could also be charged criminally and be fined up $250,000 and serve up to five years in jail.

The reality is that using technology to gather evidencefor potential use in during litigation is likely dangerous for both clients and their attorneys. Most technologically savvy attorneys implement electronic evidence policies that require their clients to disclose how they obtained electronic evidence before ever discussing the substance of the evidence. Such policies are designed to protect both the client and the attorney from exposure to criminal and civil liabilities.

Family law attorneys increasingly field questions such as, “I bought that computer she’s using, why don’t I have the right to read her e-mails?” or “I paid for that iPhone, why can’t I use the tracking feature to find out where she’s going after work?” “It’s our car, is it ok to put a GPS tracker on it?”

Today’s family law attorney must stay abreast of how to answer these and many other questions because spying on one’s spouse has become an unfortunate, yet common occurrence in our society especially given the readily accessible spy technology.

If you suspect your spouse, business partner or employee of wrongdoing of any sort, before you conduct your own electronic surveillance, consult with an experienced, technologically savvy attorney. Too often clients and employers make the mistake of thinking that because they are married to someone or employ someone who uses their equipment that person no longer has privacy rights. Ask for advice before you snoop to best protect yourself and to ensure that any evidence you gather can be used later in court if necessary. (Article inspired by Technology Policy written by Mark Chinn, Esquire, Jackson, MS)

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Some Wisdom for Parents in Custody Disputes From an Experienced Family Court Judge

Mon, 03 Mar 2014 14:46:00 GMT

Judge Paul Garfinkel of the 9th Judicial Circuit Family Court, Charleston County, SC, allowed me to share the following comments he made to the litigants in a recent custody trial. His message is an important and insightful one, which I imagine many parents involved in custody disputes will find helpful.

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Pending South Carolina Joint Custody Bill Needs Work, Says SC Chapter of American Academy of Matrimonial Lawyers (AAML)

Mon, 24 Feb 2014 14:52:00 GMT

The South Carolina Chapter of the American Academy of Matrimonial Lawyers has issued a position statement regarding the pending joint custody bill, H. 4614 , currently before the State Senate. This legislation would create significant changes in the way custody cases are decided in South Carolina, and in some respects would limit the Family Court’s ability to craft custody arrangements that fit the needs of South Carolina families.

Robert Rosen, Esq., President of the SC AAML Chapter states, “The Joint Custody Bill Needs Work.” Read the Chapter’s position statement written by Mr. Rosen and approved by the Chapter here in PDF format.

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