Pocket Legal Counselor

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1 SOUTH CAROLINA BAR The Pocket Legal Counselor INFORMATION YOU NEED FOR LIFE S LEGAL ISSUES

2 Contents Alternative ways to resolve disputes...3 Auto accidents...6 Bankruptcy...11 Buying a home...14 Children and the law...18 Choosing the right lawyer...22 Consumer debt...26 Divorce...31 Elder law...36 Getting arrested...40 Judicial system...44 Lawyer Referral Service...48 Tenants rights...49 Trust kits...56 Wills...59 Workers compensation...63 The Pocket Legal Counselor 1

3 Alternative ways to resolve disputes Mediation and arbitration in South Carolina WHAT IS ALTERNATIVE DISPUTE RESOLUTION (ADR)? You don t have to go to court to solve a problem with an insurance company, a business, your employer or your neighbor. Even if you are getting divorced, you may be able to use arbitration or mediation to settle all or some of your case. ADR is a term used to describe arbitration, mediation and other ways of discussing and resolving disputes outside the courts. ADR has become popular because: it can reduce costs, time and stress for all parties; it can help people resolve their own differences without a judge or jury doing it for them; it can preserve business and personal relationships hurt by lawsuits; and it can keep confidential some information otherwise made public in the courtroom. Alternative ways to resolve disputes WHAT IS MEDIATION? In mediation, conflicting parties meet informally with a trained, impartial mediator without going to court. The mediator helps the opposing parties reach a voluntary settlement that works for both sides. The mediator does not make decisions and does not require a party to take a position, so the parties maintain control of the outcome. If an agreement cannot be reached, the parties may proceed to court. However, most information obtained during the confidential mediation may not be used in court. In mediation, all decisions are made by the parties themselves. Most issues can be mediated personal injury, The Pocket Legal Counselor 3

4 employment, family, probate, business and neighborhood disputes. The mediation process varies in length depending on the type of problem and the willingness of the parties to reach a resolution. WHAT IS ARBITRATION? In arbitration, a qualified neutral person (the arbitrator ) makes a decision for the parties. The arbitrator s decision can be binding (final) or nonbinding (not final). Both civil and family issues can be arbitrated. HOW DO ATTORNEYS WORK WITH ARBITRATORS AND MEDIATORS? Arbitrators and mediators are neutral and will not give legal advice. In simple cases, you may be able to use arbitration or mediation without an attorney. More often you will need an attorney who will help you prepare your case and will participate in the arbitration or mediation. Attorneys take sides; mediators and arbitrators do not. In civil cases, attorneys generally are present with clients in mediation for one or two meetings. In family mediation, parties usually meet with the mediator with or without attorneys in several conferences or meetings. ADR is rarely used in criminal cases. HOW IS ADR USED IN SOUTH CAROLINA? Most arbitration and mediation in South Carolina is voluntary. Clients and attorneys select a neutral arbitrator or mediator for each case. Some business and insurance contracts provide for arbitration or mediation of disputes. Pilot programs in several counties require most civil cases to be arbitrated or mediated before a trial will be scheduled. All issues with few exceptions must be mediated in these counties. It is anticipated that other counties will be added to the pilot programs. Rules established by the Supreme Court set out guidelines for how arbitration in circuit court will work and how mediation in circuit 4

5 and family courts will work. WHAT IS THE COST OF ADR? Fees for arbitration and mediation services are usually divided between the parties and, like other professional fees, are usually charged on an hourly basis and set by agreement with the parties. Some pilot program fees are set by court rules. Some arbitrators and mediators offer services for a reduced fee to low income people. Do not be embarrassed to ask up front what the fees and cost might be. HOW DO I SELECT AN ARBITRATOR OR MEDIATOR? Many arbitrators have received training through the South Carolina Bar or the American Arbitration Association. Also, many mediators have completed an approved 40-hour training course in civil or family mediation from these or other organizations. Just as you would do when choosing a lawyer or any other professional service provider, you should ask about training and experience. Your lawyer may be able to recommend an arbitrator or a mediator. Refer to the Yellow Pages or contact the following organization for lists of arbitrators and mediators and other useful information. Alternative ways to resolve disputes South Carolina Commission on Alternative Dispute Resolution South Carolina Board of Arbitrator and Mediator Certification South Carolina Bar P.O. Box 608 Columbia, SC Phone: (803) Fax: (803) The Pocket Legal Counselor 5

6 6 Auto accidents BE PREPARED Because accidents happen to even the best of drivers, everyone should be prepared to do the right things immediately afterward. Many legal troubles arising from accidents can be avoided if the persons involved know what they should do. CALL A LAW ENFORCEMENT OFFICER Notify the local police department of the accident if it occurs in the city. If the accident occurs outside city limits, notify the county sheriff s office or the South Carolina Highway Patrol. Even in minor accidents where there are no serious injuries or property damage, notify the authorities immediately. An officer s official report may assist you later if a claim for liability is filed. WHAT TO DO AT THE SCENE In South Carolina, drivers involved in an auto accident where a person is injured or property is damaged must stop their vehicles at the scene of the accident or as close as possible without obstructing traffic. If someone is seriously injured, Many legal troubles arising from accidents can be avoided if the persons involved know what they should do. call an ambulance. It is best not to move an injured person. Good intentions on your part may result in further injury to the victim. Take all possible precautions to prevent further accidents and ensure the safety of those involved. Station someone to warn any approaching vehicles and, if at night, use flares and reflectors. Use a flashlight if no flares or reflectors are available. OBTAIN NAMES OF WITNESSES Get the names and addresses of all witnesses. After writing down the names and addresses of any witnesses, try to get statements of what happened. If possible, have witnesses write down this information at the scene. The investigating officer will also obtain

7 this information. Always have a pencil and pad in your car. TAKE NOTES ON THE ACCIDENT Make your own written notes on all significant circumstances concerning the accident. Complete the accident information form on pages 9 and 10 in this booklet. REMAIN AT THE SCENE Unless injuries make it necessary for you to leave the scene of the accident, remain there until you have completed all of the following procedures: Auto accidents call law enforcement; assist, but do not move, the injured; move your vehicle to the side if obstructing traffic; identify the other driver; get names, addresses and statements of witnesses; make notes; and make a diagram of the accident. COMMENTING ON THE ACCIDENT South Carolina law requires the driver of any vehicle involved in an accident to give his or her name and address, provide the registration number of the vehicle he or she is driving and to show his or her driver s license. Every law enforcement officer who investigates an auto accident must file a written report. You are obligated by law to assist any officer in this investigation by answering the officer s questions and discussing the circumstances. However, be aware that any statement can be held against you. You should not admit or sign anything even if you think you are in the wrong. You may learn later that you were not at fault or that the other driver was equally at fault. The Pocket Legal Counselor 7

8 FILE REPORTS South Carolina requires drivers or owners of cars involved in accidents to report the accident within 15 days to the South Carolina Department of Transportation. The investigating officer will give you a form (FR-10) to fill out to prove that you have the proper liability insurance. NOTIFY YOUR INSURANCE COMPANY Report the accident to your insurance company. Failure to make a prompt and correct report may affect your rights. If you were injured, notify the company issuing the applicable insurance (accident insurance, hospitalization, etc.) After the accident you have a duty to cooperate with your insurance company; however, you have no duty to give statements or sign any forms given to you by any of the other drivers insurance companies. Remember, any statement you make may be used as an admission of fault. Be cautious in dealing with persons offering to adjust your case or trying to hurry you into a settlement. Once a release is signed, it is very difficult to reopen a case. If the other party or the opposing insurance company offers a settlement or asks you to sign a release, you may wish to consult a lawyer. You can lose valuable rights in signing a release. PAY NOTHING Do not make or promise to make immediate payment of any kind to the other party. Any such payment would be at your own risk. Neither the other driver nor the other driver s insurance company can force you to make any payment without legal proceedings. The other driver cannot hold your car without legal action. Keep records of all expenses associated with the accident, including doctor bills, time lost from work and any other expenses. Save copies of all bills and receipts. 8

9 ACCIDENT INFORMATION FORM The other driver and his or her car: Name Street address City State Zip Vehicle registration/year/license number Make/model of car Year Does driver appear to have been drinking? Any statement made by other driver as to cause of accident: Passengers in other car: Name Address Name Address All possible witnesses to any fact: Name Phone Address Name Phone Address Conditions noted immediately after the accident: Position of your car after accident Position of other car after accident Location of any tire marks, blood, broken glass, dirt, etc. on road or side of road Location of point of impact in relation to center of road or some physical object Did your car skid? If so, how many feet? Did other car skid? If so, how many feet? Road conditions Traffic conditions Weather conditions Traffic controls (traffic lights, stop signs, etc.) Place of impact on other car Name/address of wrecker that removed other car Other conditions that affected accident Auto accidents The Pocket Legal Counselor 9

10 The following should be filled out at the scene or shortly after leaving the scene. Date of accident Time Location of accident Type of road (grade, curve, etc.) Speed of your car just before accident Speed of other car just before accident Direction of your car Direction of other car Were you turning? Was other driver turning? Did the other driver signal properly (with arm, horn, lights, etc.)? If at night, were the other vehicle s lights on? How far away from you was the other car when you first saw it? Other pertinent facts Use the space below to draw a diagram, if necessary. 10

11 Bankruptcy There are two kinds of bankruptcy that are commonly used for individuals Chapter 7 and Chapter 13. Bankruptcy laws are federal laws, but because some state laws apply, the effects of bankruptcy can differ from state to state. A married couple may file bankruptcy jointly, or one spouse may file alone. Bankruptcy CHAPTER 7 A Chapter 7 bankruptcy is a liquidation bankruptcy, also called a straight bankruptcy. When a Chapter 7 is filed, the bankruptcy court appoints a trustee from a panel of individuals who regularly serve as trustees. The trustee s job is to determine whether the bankrupt debtor has anything that can be sold to pay creditors. If there is something that can be sold with money left over after paying off any liens, the trustee has the power to sell that property after notifying the debtor and all creditors and obtaining the approval of the bankruptcy court. In many Chapter 7 cases, however, no property is sold, either because the liens and mortgages on the property are equal to or greater than the value of the property or the property is of a kind that is exempt from seizure from creditors. Exempt property includes $51,450 in a home, $5,150 in a vehicle, $4,125 in household goods, $1,025 in jewelry, $5,000 in cash/liquid assets, and $1,550 in tools of trade. Some items, like retirement plans, may be entirely exempt regardless of their value. After a short time in bankruptcy, most debtors are granted a discharge of most of their debts. A discharge is a court order that prohibits creditors from taking any action to collect their debts. Creditors are barred from calling, writing or suing the The Pocket Legal Counselor 11

12 debtor. However, there are some debts that are not affected by the bankruptcy and survive the bankruptcy discharge, including some tax debts; student loan debts; any debt incurred in the course of a divorce or separation; debts for alimony and child support; and criminal restitution. Certain debts arising from fraud and other bad behavior may also survive the bankruptcy. Once the bankruptcy is over, the debtor may choose to pay some or all of his or her debt, but because of the bankruptcy, the creditor cannot force the debtor to pay. Chapter 7 does not discharge liens and mortgages except in very limited circumstances. Frequently, debtors are able to keep the items that have been pledged as collateral by arranging to continue to pay for them or to pay the value lump sum. A Chapter 7 bankruptcy can be reported on the debtor s credit report for up to 10 years. CHAPTER 13 A Chapter 13 bankruptcy is a reorganization bankruptcy for individual consumers or sole proprietors. In order to qualify for Chapter 13, a debtor must have regular income from a job, retirement or other sources. A Chapter 13 trustee is appointed by the bankruptcy court to work with the debtor and creditors to develop a plan for the payment of creditors. Monthly payments are made to the trustee, who in turn distributes the payments to the creditors according to the plan approved by the bankruptcy court. A Chapter 13 allows a debtor to catch up missed payments, including mortgage payments, but does not change the amount of a payment on a home mortgage except in very limited circumstances. In most cases, the payment to the Chapter 13 trustee is made in addition to home mortgage payments. Payments to the Chapter 13 trustee cover missed mortgage payments and remaining debts, including car payments, credit card bills and taxes. The amount of a Chapter 13 payment is determined from a num- 12

13 ber of factors including what the debtor can afford after payment of regular living expenses. The Chapter 13 payments must be enough to pay all taxes in full, bring mortgages current, pay past due alimony and child support, some taxes and pay at least the value of the collateral the debtor wishes to keep the amount paid to unsecured creditors is directly related to the debtor s ability ability to pay and the amount of the equity in his assets. Chapter 13 plans frequently pay 10 percent or less to unsecured creditors. The debtor must pay what he can afford for at least three years and must pay creditors at least as much as they would receive in a Chapter 7 liquidation. In South Carolina, debtors in Chapter 13 usually pay for almost five years.if a debtor s family exceeds the state median income, the Chapter 13 plan must last 60 months. If the debtor pays as much as he can afford for that period of time, any unpaid portion of the debts are discharged, except certain debts such as student loans. A Chapter 13 case is completely voluntary, and the debtor can dismiss the case at any time. If payments are not made to the trustee, however, the trustee will ask the bankruptcy court to dismiss or convert the case to Chapter 7. If mortgage payments are not made to mortgage creditors outside the plan, those creditors can ask the bankruptcy court to allow them to foreclose or they can ask the bankruptcy court to dismiss the debtor s case. A Chapter 13 bankruptcy can be reported on the debtor s credit report for up to 10 years. Bankruptcy The Pocket Legal Counselor 13

14 Buying a home Buying a home involves complex considerations. Once you have decided on the area in which you wish to live, you can save time and frustration by working with an experienced real estate broker. You should consult your lawyer before you sign the contract, and give him or her a chance to review the proposed document. THE CONTRACT After you have found a home you want to buy, the real estate agent or owner will ask you to make an offer. This is done by signing a contract. When both you and the seller sign this document, you create long-term binding relationships. Any verbal agreements concerning the sale of real estate are not legally enforceable. You should consult your lawyer before you sign the contract, and give him or her a chance to review the proposed document. The contract will cover many matters, but it must at least include the price, the amount of earnest money, a description of the property and other conditions and terms of the sale. It also should specify the costs for which you will be responsible at closing. A review of the contract by your lawyer can help you avoid overlooking any important considerations. Depending on the terms of the contract, the earnest money you pay at the time the contract is signed may or may not be refundable if the transaction is not completed. Your failure to comply with the contract also may expose you to a claim for damages or other legal action. Your lawyer can make sure the contract accurately represents the intent of the parties and protects your interests. Special terms or conditions should be set forth separately. For example, the contract should also specify every item of personal prop- 14

15 erty that is being sold with the house. Only those items specified in the contract bind the parties. The seller must provide to you as a buyer a property condition disclosure statement that must be completed prior to signing a contract of sale. If you are interested in having an independent inspection of the property, this should be stated as well as how you and the seller will be affected by any negative findings in the inspection. Some real estate companies offer home warranty policies that will cover buyers for losses occurring to appliances and home system soon after closing. These policies may be paid for by either the seller (to sweeten the deal) or the buyer. Check to see if such a policy is available to you at closing. Buying a home AGENCY Many buyers do not realize that the real estate agent listing the home is the legal agent for the seller and is responsible to the seller and not to the buyer. For this reason, the buyer may be unrepresented unless he or she has retained another real estate broker or his or her own lawyer. However, the buyer and seller may consent in writing for the listing agent to represent them both. CASUALTY AND FLOOD INSURANCE You will need to carry insurance to protect you from risks of loss and potential liability. Approximately 30 days before closing, you should consult an insurance agent. The insurance must be purchased before the date of closing and must be acceptable to your mortgage lender. FINANCING In addition to the down payment, which includes the earnest money you pay when you sign the contract and the amount you pay at closing, another important consideration is your monthly The Pocket Legal Counselor 15

16 mortgage payment. That payment will include principal and interest on the amount you borrowed. Mortgage payments frequently include onetwelfth of the anticipated property taxes and insurance premiums for the coming year. Mortgage insurance, which protects the lender from your failure to pay, may also be included in the monthly payment. Discuss all these factors with the lender when you apply for the loan. The lender should give you an estimate of the costs that will be charged to you. SURVEY A complete and precise description of the property you are purchasing is important. Disputes often arise at the closing and even after the sale because of inaccurate or inadequate property descriptions in the contract. It is important that a survey be made and a plat prepared by a licensed surveyor to locate the boundary lines of the property, the location of improvements that are constructed on the property and any easements or restrictions. TERMITE LETTER Generally, the seller is required to provide proof that the property has been inspected for termites. It is recommended that you request this letter before closing so that any problems can be addressed. TITLE INSURANCE Lenders require mortgagee title insurance coverage. This one-time premium is paid at the closing and insures the validity of the lender s lien on your property. For an additional cost, you may obtain an owner s title insurance policy. The lawyer s examination of the title obviously can only cover matters that appear on the public records. Title insurance, however, protects you against many matters that may not appear of record or that may not be apparent from a record examination. The possibilities may 16

17 include rights someone has acquired by usage and even forged documents in the chain of ownership. Before the closing, you should discuss title insurance with your attorney. CLOSING Your bank is required to inform you of your right to select your own attorney and not only one from its list. Once you have made your selection, your lawyer and staff will tie together the many processes and requirements that go into the closing, including: Buying a home making the required examination of the public records to determine the quality of the seller s title (usually a period of 60 years is required); gathering all the information necessary to prepare the documents that itemize the terms of the sales transaction, including taxes, insurance, closing costs, mortgage amounts and additional agreements between the parties; preparing all the legal documents; explaining and supervising the signing of all papers; recording the necessary documents with the proper authorities; and certifying the completed transaction to the lender and the title insurance company. At the closing, your lawyer will explain the purpose, importance and effect of each document that you are required to sign. TAX CONSIDERATIONS Every sales transaction involves tax considerations for both buyers and sellers. Proper structuring of the transaction may result in substantial savings and should help you avoid future problems. Before the purchase, you should discuss tax considerations with your lawyer or accountant. The Pocket Legal Counselor 17

18 Children and the law No relationship is more important than the one between a parent and a child. Many laws affect this relationship, including laws about: the duties of parents to their children; how fatherhood is proven; child abuse and neglect; how parents can lose their rights to their children; how children can become free of their parents control (emancipation); and when children can make contracts. PARENTAL DUTIES Parents must see that their children have enough food, clothing, shelter, medical care and education. They must protect their children from harm. BEING PART OF A FAMILY Children may become part of a family by: being born to a married or unmarried couple; a court ruling naming the child s father; and adoption through the family court. CHILDREN S BENEFITS When the law recognizes a child s parents, the child may get many benefits, including Social Security death, disability or retirement benefits; estate or property claims; veterans benefits; workers compensation; insurance; pensions; 18

19 claims for wrongful death; and knowledge of family health problems. The family court can order parents to pay child support until a child is 18 or even longer if the child has disabilities or is in college. PARENTS AND THE GOVERNMENT Parents may choose their family s religion, education and lifestyle. They have the right to raise their children with little governmental interference. However, parents must not: abuse their children physically or sexually; punish their children in such a way that they suffer harm (spanking must not cause physical harm); or neglect their children. Parents must provide the necessities of life. The government cannot remove children from the home just because the family is poor. Children and the law Most people who work with children are required by law to tell the Department of Social Services (DSS) if they think a child is being harmed. DSS then investigates the charge. If DSS can keep the child safe at home with the family, it must try to do so. DSS should only take a child from the home when that child is in significant or eminent danger. Parents may be liable for damages up to $5,000 if their children harm others or damage property. IF THE GOVERNMENT GETS INVOLVED Listed below are events that may happen if DSS or law enforcement believes that a child is being harmed or is at great risk of being harmed. The child may be taken into emergency or protective custody. The family court could hold a probable cause hearing in 72 hours. The Pocket Legal Counselor 19

20 The family court must appoint a lawyer for parents who cannot afford one. The family court will appoint a guardian ad litem for the child to help the court determine what is best for the child. DSS must create a placement plan to get the family back together if possible. DSS should arrange for frequent visits between child and parent. If the child is in foster care, the Foster Care Review Board should review the case regularly. If parents do not follow family court orders, they may lose all rights to their children. Parents who are mentally ill, mentally retarded or who need other help should get special assistance from DSS. In all situations involving the placement of a child, the court s primary concern is the best interest of the child. CHILDREN S RIGHTS AND DUTIES Children usually become adults at age 18. However, there are some exceptions. Schools must provide special education to children who need it until age 21. Parents may seek guardianship in probate court for children over age 18 who cannot care for themselves. Some situations may allow children to become legal adults earlier than age 18. Children may remove themselves from the custody of their parents by obtaining employment, joining the armed forces or otherwise becoming self-sufficient. The family court must grant the emancipation order. Marriage also emancipates children. Girls may marry at 14 and boys at 16 with the consent of a parent or guardian. A pregnant girl who is under the legal age, with parent or guardian consent, 20

21 may marry the father of her child without the consent of the father s parent or guardian. Children under age 18 have the right to: Contract for higher education with or without parental consent. However, they cannot contract for unnecessary items such as stereo equipment. CHILDREN S HEALTH CARE Health care personnel may provide a child with life-saving measures that do not require an operation without parental consent. Children and the law Health care personnel may provide services to children, including operations, when essential to save the children s lives. Children over age 16 can consent to health services that do not involve an operation. Children over age 16 may seek treatment for mental illness or drug and alcohol dependency without parental consent. Children under 18 must have the consent of a parent, guardian or person acting as a parent to get an abortion unless they are emancipated. If no one will consent, the minor may apply to family court for permission. Consent is not necessary in an emergency or if the pregnancy is the result of incest. The Pocket Legal Counselor 21

22 Choosing the right lawyer The South Carolina Bar knows it can be hard to find the right kind of lawyer for you and your legal matters. This section can help you with your search. It is important to shop around to find the right lawyer. Ask friends, relatives and co-workers for the names of lawyers they have used. You can also call the South Carolina Bar Lawyer Referral Service, which can give you the name of a lawyer who is willing to consult and advise you at a discounted rate of $50 for the first 30 minute consultation. If additional legal service is needed, Most people who hire lawyers find that they are effective, honest and hardworking. By following some of these tips and by communicating clearly, you should have a good experience with your lawyer. the fee is something you and your lawyer will need to agree on. You may call the Lawyer Referral Service at (statewide) or (803) in Richland and Lexington counties, or access the service online at For criminal cases, each county in South Carolina has a public defender office that provides free legal services to indigent defendants. In determining whether you are eligible for free services from the public defender s office, you must file an application with either the clerk of court or the public defender for your county. Such factors as your income, size of family and special financial needs will determine if you qualify for public defender services. Your local public defender or clerk of court will determine if you qualify for these services. People who cannot afford to pay for a lawyer in noncriminal matters should contact the Legal Aid Telephone Intake Service (LATIS) at (statewide) or (803) in the Columbia area. LATIS can refer you to an appropriate source for additional assistance or answers to questions. 22

23 FIRST MEETINGS Once you have chosen a lawyer, there are several things you should think about before your first meeting. Think about your case or legal matter so that you are prepared to answer the lawyer s questions. Make note of the spelling of names, dates and other information that the lawyer may need. Write down some basic questions for the lawyer. For example, What is your experience in this area of law? Gather any written materials relating to your legal situation, such as traffic tickets, deeds, wills and letters from the opposing side. Expect to discuss the entire legal matter honestly, not just those parts that make you look good. Without the whole picture, your lawyer cannot properly represent you. Choosing the right lawyer Don t be afraid to ask the lawyer: What result should I expect in this legal matter? Is there a good chance I can get what I want, or should I just consider letting this matter go? How long is it going to take to resolve this matter? Can we set up a payment schedule? Will I be billed for time we spend talking on the telephone? Does that rate include your staff and expenses? What is billable time? If there is something that you are wondering about, ask. FEE AGREEMENTS It is important for you and your lawyer to agree on what you will pay for the services the lawyer will perform. This way, both of you will know what to expect as you work together on your case. The basic factor in most fees lawyers charge is the amount of time spent on a particular problem. A lawyer s professional services differ from those of a doctor or a dentist much of the work is done when the client is not present. The Pocket Legal Counselor 23

24 When you hire a lawyer, you are also hiring the entire law office to work for you. The fee you pay will depend on the time it takes to prepare your legal matter and who works on it. The fee can also include the difficulty of the matter; the documents or pleadings that must be drafted; the number of letters, phone calls and interviews; the research; and the number and length of court appearances. A lawyer may agree to represent you on a contingency fee basis. This means that the lawyer s fee is due only if a settlement or recovery is achieved. The fee is based on a percentage of the amount recovered, with the exception of certain expenses. You should discuss the costs of legal services at your first meeting with the lawyer and reach an agreement. Do not hesitate to discuss fees at any time. If you have questions regarding a bill, talk to your lawyer. Ask for a written statement of the fees and costs involved as well as any other costs relating to the legal matter. When the matter is resolved, your lawyer should provide you with a written settlement statement that shows the total amount you paid and what it covered. This may include the lawyer s fee, other costs, any outstanding bills from physicians or hospitals and any liens. LEGAL FEES The time for payment of legal fees depends on the type of legal service performed. Your lawyer may require you to pay a retainer and an advance on expenses before beginning work on the case. Many lawyers bill on a monthly basis. Some lawyers may allow you to charge your legal fee or costs on a credit card. If you don t know if you will be able to pay on time, talk to your lawyer. WORKING TOGETHER Working closely with another person can sometimes be difficult. Add to that the tension of being involved in a legal matter, and you have the potential for any number of crossed signals and misunderstandings. To have a good working relationship with your lawyer, remember to: keep your lawyer informed of your current address and phone number and any new information that may be pertinent to your legal matter; ask questions when there is something you don t understand; 24

25 maintain a realistic view of the progress and outcome of your legal matter; call your lawyer only as needed (when you have new information about your case), remembering that your lawyer may not be able to return your call immediately; and pay your bill. Your lawyer is committed to treating you with respect and courtesy and to: charge a reasonable fee and explain in advance what that fee covers and when you will be billed; return your telephone calls promptly; and keep you informed and provide you with copies of important papers. Choosing the right lawyer Most people who hire lawyers find that they are effective, honest and hardworking. By following some of these tips and by communicating clearly, you should have a good experience with your lawyer. When do I need a lawyer? Have I tried to resolve this matter by speaking directly with the other side and failed? Am I being threatened with legal action? Do I need someone to champion my cause or speak for me? Have I been served with papers (summons, warrant or subpoena)? Does my opponent have a lawyer? Is the outcome worth the cost of hiring a lawyer? Am I involved in a legal matter of importance to me (buying or selling a home, signing a contract, starting a business, writing a will, etc.)? If you answered yes to any of these questions, you should consult a lawyer. The Pocket Legal Counselor 25

26 Consumer debt Do you owe someone money? Having trouble paying off your debt? This section can help you understand your rights as a consumer debtor. WHAT HAPPENS IF YOU GET BEHIND ON PAYMENTS TO A CREDITOR? Maybe nothing. If you are more than 10 days late in making a payment, the creditor may send you a letter called the Notice of Right to Cure giving you 20 days to catch up. If you don't, the creditor can repossess anything used as collateral or sue you for the balance due. If you have missed payments because of illness or disability, ask the creditor if you purchased disability insurance (referred to as accident and health insurance). If so, you must file a claim form provided by the creditor, who then submits the form to the insurance company for payment. The creditor is only required to give you one Notice of Right to Cure. If you received this notice in the past but caught up your payments and later get behind again, your creditor can immediately sue for the balance owed or repossess the collateral without giving you any further notice. If you refinance the debt with the same creditor, you should receive a new notice if you miss payments. CAN A CREDITOR REPOSSESS WITHOUT SENDING A NOTICE OF RIGHT TO CURE? You are not entitled to a Notice of Right to Cure if you have broken your contract in another way besides missing payments. For example, if the creditor can prove that the collateral is in danger or that you are moving it out of state without the creditor s permission, the creditor may repossess without sending any notice. If you have a revolving 26

27 credit or credit card debt, the creditor must send a notice once every 12 months. WHAT IF THE CREDITOR TRIES TO REPOSSESS? The creditor can: ask you for the goods (but you do not have to turn them over); take your car from your driveway or from the street if you do not object or protest; or sue you to get the goods or the car. Consumer debt The creditor cannot: enter your home without permission or a court order, even if the contract says he or she can, or take your car out of a closed garage. IS FURNITURE COLLATERAL FOR A DEBT? Only if the debt is for buying the furniture. If you refinance or get a loan, the creditor cannot use your furniture or appliances as collateral. CAN YOU BE PUT IN JAIL FOR MISSING PAYMENTS? As a general rule, no. But you might go to jail for writing bad checks or disobeying court orders to pay money (including child support). You can also go to jail for selling or giving away the collateral on the debt, but not for pledging it to more than one finance company. HOW FAR CAN A CREDITOR GO TO COLLECT? A creditor can do any of the following: send you letters (but not postcards); telephone you, but not at unusual times and not collect, unless you agree to accept the call; talk to your family, employer, friends or neighbors to locate you but not to discuss your debt; The Pocket Legal Counselor 27

28 28 talk about your debt with anyone who has a valid business need, such as a credit bureau; call your employer to confirm your employment but a creditor cannot call you at work if your employer does not allow such calls; or sue you or threaten to sue, in most cases. A creditor cannot: threaten to sue you if the creditor has no intention or right to sue or garnish or threaten to garnish your wages. In some cases, however, your wages can be garnished to collect child support or for debts owed to a local, state or federal government. Also, it is illegal for creditors to: tell you anything that is not true; harass or threaten you, curse or use dirty language; use fake legal papers or pretend to be a lawyer or a government official; demand sexual favors; ignore your request to stop contacting you, if the person calling represents a collection agency; contact you directly if you have a lawyer to represent you about the debt; or deposit a post-dated check early if the creditor agreed to hold it (writing post-dated checks is not advisable; you must notify the bank if you do). SHOULD YOU REFINANCE? There is no easy answer. When you refinance, a new finance charge is added to what you already owe, sometimes increasing your monthly payment. If you re already having trouble making payments, this won t help. First, talk to your creditor. Many creditors will work with you if your problem is temporary. Before refinancing, ask the creditor to reduce your monthly payments.

29 IF YOU RETURN GOODS YOU BOUGHT ON CREDIT AND THE CREDITOR HAS A LIEN ON THE GOODS, OR IF YOU LET THE CREDITOR REPOSSESS, WILL THAT CANCEL YOUR DEBT? Maybe. If returned goods are sold at an amount greater than the amount owed, the debt may be cancelled. If the sale brings less than the balance of the debt, you will owe the difference. You should contact a lawyer or the S.C. Department of Consumer Affairs to determine if any other circumstances surrounding the sale will affect your debt. Consumer debt IF YOU COSIGN SOMEONE ELSE S DEBT, WHAT HAPPENS IF THEY DON T PAY? You probably will have to pay debts for which you cosign, unless the creditor did not give you a special cosigner s notice required by law. If you have cosigned a debt for your spouse, the law is more complicated. A lawyer can explain your liability for your spouse s debts. The Pocket Legal Counselor 29

30 DEFINITIONS A consumer is a person who uses credit for personal, family or household purposes not for business purposes. A creditor is a person or company to whom you owe money. A debtor is a person who owes money. Collateral is whatever the creditor has a lien or mortgage on, usually your car or your house. Furniture, appliances, one radio or one television set are not collateral, unless the debt is for buying any of these things. Repossess means to take back property that has a lien on it, with or without a court order. The balance is the amount left to pay off on your loan contract. Refinance means to renew the loan contract before you have paid it out. A collection agency is a company that collects debts for other people or companies. IF YOU NEED HELP: If you wish to file a complaint with the South Carolina Department of Consumer Affairs, visit consumer or call or (803) in the Columbia area. If you have a very low income, you may be able to get help from your local legal aid office. Contact the Legal Aid Telephone Intake Service (LATIS) at (statewide) or (803) in the Columbia area. This information was supplied by the South Carolina Appleseed Legal Justice Center. 30

31 Divorce GROUNDS FOR DIVORCE In South Carolina there are five grounds for divorce: separation of the spouses for at least one year (the no-fault divorce ), adultery, physical cruelty, habitual drunkenness (alcohol or narcotic drugs) and desertion. The proof needed to allow the court to grant a divorce on one of these five reasons depends on your circumstances. The lawyer will ask you about your situation and advise you about your case. Testimony from a third party will probably be required. State law requires that a family court judge make a specific finding that reconciliation is not possible before the judge can grant a divorce. Divorce FAMILY COURTS In South Carolina, family courts handle all marital litigation. The family courts decide whether to grant a divorce, issues of custody and support (child support and alimony) and equitable division of marital property. Family courts can grant a request to allow a person to resume use of a maiden or previous name. Family courts also handle separation actions, which may include custody, visitation, support and division of property. SEPARATION When you and your spouse have separated but do not have grounds for divorce, you can file for separate maintenance and support, which will resolve all of the issues arising out of the breakup of your marriage, except for the issue of divorce itself. The court will determine child custody, visitation, child support, property division, debt allocation, alimony, etc. Separation officially begins on the day that the spouses no longer live together. The Pocket Legal Counselor 31

32 AGREEMENTS By working together or with the assistance of trained mediators, spouses are often able to decide issues without court intervention. When such agreements are reached, the parties have settled their case. When a couple has settled their issues, their lawyers will present the agreement to the court and request that the judge approve the agreement. If the court finds the agreement fair, reasonable and voluntary, then the agreement will become an official court order when signed by the judge. EQUITABLE DIVISION If the spouses cannot agree on how to divide their marital property, the family court will make the decision for them. Marital property usually includes all assets or debts acquired during the marriage, with certain exceptions such as inherited property or gifts from outside the marriage. Your lawyer will advise you on what is considered marital property. It is helpful for each spouse to provide the lawyer with a list of all assets, when and how these assets were acquired, the approximate value of each asset and any debts either spouse may have. Copies of recent tax returns and insurance policies and estimated monthly living expenses are helpful information to take when first meeting with the lawyer. Which spouse has legal title to an item of marital property does not determine to which spouse the family court will award that property. The court will consider the financial contributions and conditions of the parties, 15 factors to include, but not limited to, their ages, health, education, fault and the length of the marriage. CUSTODY AND VISITATION When parents cannot agree on who should have custody of their minor children, then the court must decide. Custody litigation is an expensive procedure and often very emotional. Both parents should look honestly at their new living conditions, available time and other resources and consider carefully which parent can provide a better home life for their children. Because neither parent automatically has a legal 32

33 right to custody, the court will consider the best interests of the children. The court may order joint or shared custody, but will seldom do so unless the parties agree to the joint or shared custody. Children who have reached an appropriate level of maturity may express their preference to the judge at the judge s discretion. The judge is required to consider the child s preference. The weight given to the child s wishes depends upon the maturity and basis of the child s opinion. However, a child s preference is not controlling. Minor children may be appointed guardians ad litem to represent them in court. Guardians ad litem conduct independent investigations, although the decision rests with the judge. Noncustodial parents can be awarded periods of specified visitation with their children. If circumstances surrounding custody and the child s best interests change substantially, the family court can then order a change of custody or visitation. Divorce SUPPORT Alimony and separate support and maintenance are forms of spousal support. Either spouse may be entitled to monetary support from the other spouse. Alimony can be paid in a lump sum or in installments. Where appropriate, the family court can award short term alimony to help a spouse upgrade or acquire job skills that could make him or her self supportive. Both parents have legal responsibility to provide economically for their children. A noncustodial parent usually will be required to pay a specified amount of child support to the custodial parent. In determining the appropriate amount, the court must use the Child Support Guidelines that provide a calculation of support based on the gross income of the parents. The court can order that child support payments be made through the clerk of The Pocket Legal Counselor 33

34 court along with a collection fee. Many employers offer an automatic payroll deduction for child support payments. PROCEDURE The process begins formally by the service of a summons and complaint (legal papers setting out what the plaintiff, or party starting the suit, wants). The defendant (party on whom the summons and complaint are served) has 30 days after being served to file a formal written response (answer) and to request any other relief (counterclaim). The court may order the parties to attend mediation to resolve the issues, especially custody and visitation. The court may also order that parties attend a parenting course that deals with families going through a divorce. If the parties can settle their case, the court holds an abbreviated hearing. If the parties cannot settle, then each side can present evidence at a trial to show why the court should grant the relief wanted. After trial the judge decides what relief should be given. A temporary hearing will be held if there are any issues that must be decided before the final hearing. At a temporary hearing, evidence usually is presented by affidavit without witnesses taking the stand. YOUR LAWYER S ROLE IN YOUR DIVORCE PROCESS A lawyer s job is to represent your best interests in legal proceedings and in court. When you are properly advised of your legal rights and obligations, you can better understand what a divorce settlement should involve. Also, your lawyer can advise you on how the court would likely proceed if an agreement is not reached. By providing both practical and legal advice, your lawyer can help guide you through the divorce process. One lawyer cannot represent both you and your spouse. While many lawyers have a specific fee for a simple, uncontested divorce, the fee for most divorces depends on the amount of time a lawyer and staff must spend working on the case. This will depend on whether the case is contested and whether there are issues of cus- 34

35 tody, support and property division. In certain cases, the court can order one spouse to pay all or part of the other spouse s legal fees and related expenses. Your lawyer should discuss the charges involved in a case and any payment options. Divorce The Pocket Legal Counselor 35

36 Planning for the lderly and people with disabilities Senior citizens and those with disabilities must deal with many legal issues. In recent years, there has been a growing awareness of the need to address these issues, and there is now an area of practice known as elder law. Elder law is specifically designed to address the particular concerns of older citizens and those with disabilites. By looking at the whole picture, a plan can be developed to carry out your wishes to the greatest extent possible. WHAT ARE SOME OF THE CONCERNS YOU, THE CLIENT, MAY HAVE AND HOW CAN THEY BE ADDRESSED? Long-term care planning You may need help in assessing long-term care needs and getting recommendations to ensure your wishes are carried out. Spousal impoverishment issues One of the greatest concerns is what will happen to your spouse should long-term care be required. Federal and state laws provide some protection of assets for the benefit of the community spouse. Planning ahead will allow you to maximize the amount that can be protected. Medicaid qualification If it is likely that you will need Medicaid benefits to cover the cost of long-term care or to provide for basic health care, it is important to know the qualification criteria and to plan accordingly. There are strategies that can be used to reduce countable resources, protect assets and speed up eligibility for Medicaid. 36