Tuesday, December 3, 2013

Alimony in South Carolina Divorce

Alimony is a substitute, money usually, for the support which is normally incident to marriage. There are several purposes and kinds of alimony, though they are most commonly to enable the parties to continue to enjoy the standard of marriage that they enjoyed during the marriage and in the form of periodic and permanent payments from one spouse to the other.

The money may be justified relating to a spouse's loss in standard of living, loss of earnings due to child care or care of third parties, and investment in other spouse's earning capacity. Alimony may also be ordered to punish marital misconduct.

I routinely request separate support and maintenance and alimony on behalf of clients in divorce matters. Certain rights may be waived if legal requirements are not met, and alimony may be waived or a claim thereto barred.

There are many general types of alimony, including: (1) lump sum alimony (you guessed it, in a lump sum payment); (2) rehabilitative (in order to train or educate the spouse to increase earning ability and the like); and (3) reimbursement alimony (for some contribution by a spouse). The most common type of alimony ordered by Judges may be permanent, periodic alimony.

Termination of alimony payments may expire upon the terms of the court order, being that a single lump sum payment be made, payments be made for a certain period of time and/or in a certain amount, or that something occur in lieu of alimony. Naturally, they expire upon the death of a party. Remarriage will also terminate alimony payments. And so will other changes in the circumstances.

Some of the factors that a Court may consider in determining the type and amount of alimony include: (1) the duration of the marriage; (2) the standard of living during the marriage; (3) if there is any marital misconduct or fault in the marriage (*see a previous blog post on the Grounds for Divorce in South Carolina); (4) employment history, education, earnings, and property of the parties; (5) custody arrangement; (6) tax consequences; and (7) other relevant factors.

It appears that adultery is sometimes an absolute bar to separate support and maintenance or alimony, so parties suspecting their spouse of adultery sometimes pursue proof of adultery. Adultery generally requires that the party seeking to prove the adultery show opportunity and inclination. Hiring a private investigator is often a good idea, and your family law divorce attorney will likely be able to refer you to one or more private investigators with whom you can consult and retain to do an investigation.

All of the information on this blog is very general information that cannot be relied upon as legal advice in your very factual specific situation. If you have questions regarding alimony, proving adultery, divorce, and related matters, please feel free to contact my office to schedule a free consultation with either Zach Naert or Joe DuBois, both of whom practice family and domestic law in Beaufort and Jasper Counties, South Carolina.

Friday, November 22, 2013

Timeshare Scams

Some of the most common misrepresentations made to buyers and purchasers of timeshares mirror the Prohibited Practices in the South Carolina Timeshare Act.

SC Code Section 27-32-110(3): "misrepresent the amount of time or period of time the accommodations and facilities are available to a purchaser." It is important to ensure that the terms in the purchase documentation accurately reflects your understanding of how often you will be able to use your timeshare, which is usually understood in weeks or points, as well as when your timeshare is available for use, be it in a certain season of the year and annually or only once every other or every three years. It may be that you are informed of Developer Weeks that are available, and it is important that you confirm those terms in your purchase documentation.

SC Code Section 27-32-110(4): "misrepresent or deceptively represent the location of the offered accommodations and facilities." If the timeshare developer from which you are purchasing your timeshare sells timeshares for multiple timeshare resorts, you may be mislead to believe that you are purchasing at one resort and receive an interest in another resort. It is essential to confirm your understanding by carefully reading the purchase documents and to not rely upon the oral representations of your timeshare salesperson.

SC Code Section 27-32-110(5): "misrepresent the size, nature, extent, qualities, or characteristics of the offered accommodations and facilities." You may be informed that you will have access to a three-bedroom timeshare unit, but your paperwork will only reflect a two-bedroom unit. Those terms should be included in your purchase contract and should be reviewed and understood by you before signing any contract.

SC Code Section 27-32-110(6): "misrepresent the nature or extent of services incident to the accommodations and facilities." As detailed in another blog, you must be provided with a fully completed copy of your contract at the time of purchase. Ensure that your contract includes all of the benefits and perks described by your timeshare salesperson. Those benefits may be described as free golf for life, so many years, or so many rounds; the timeshare salesperson's promise to rent out your timeshare and send you a check; that you may profit from your timeshare and that your timeshare is an investment; use of beach houses and jets; and all sorts of attractive things.

SC Code Section 27-32-110(7): "make misleading or deceptive representations with respect to the contents of the contract or the purchaser's rights, privileges, or benefits under it." The theme here is to read your contract thoroughly, do not allow time pressures and other pressures to cause you to sign the contracts presented to you with reading and understanding them thoroughly. And it is absolutely essential to require that everything be in writing and included in your contract and that there be no side agreements or understandings otherwise.

SC Code Section 27-32-110(8): "fail to honor and comply with all provisions of the contract with the purchaser." Unfortunately, this provision is often of little assistance to victims of timeshare fraud, as the most common scenario involves oral misrepresentations that do not conform with the actual terms of the timeshare contained in the purchase documents. The actual terms contained within the purchase documents themselves are often complied with, though they are not the terms that the buyer or purchaser understood when making the purchase.

SC Code Section 27-32-110(9): "misrepresent the conditions under which a purchaser may exchange his rights to an accommodation in one location for rights to an accommodation in another location." If it is represented to you that you may exchange your timeshare or use your points in any way other than what is documented and understood thoroughly by you, beware. Claims for having special trading power for purchasing a certain timeshare or owning a timeshare in a certain area may be misleading and inaccurate. The timeshare points systems can often be very complicated with numerous conditions and requirements.

SC Code Section 27-32-110(10): "include in a contract a provision purporting to waive a right or benefit provided for purchasers pursuant to this chapter, or seek or solicit such a waiver during the effective period of these rules." Although a timeshare company cannot prevent you from standing up for your rights under the South Carolina Timeshare Act, it can compel you to submit your claim to arbitration as opposed to having a public hearing in the Public Court to be heard by a jury of your peers. Some would say that an arbitration clause contained in an adhesion contract in such an industry highly regulated in making representations about its timeshares to the public is unconscionable in and of itself, and that, whether such a provision should ever be included in a timeshare contract under any circumstance should be reviewed in a transparent way and public forum to ensure the regulation of the timeshare industry.

SC Code Section 27-32-110(11): "do any other act of fraud, misrepresentation, or failure to make a disclosure of a material fact." Ensure that you have the opportunity to review the contracts in detail and understand them before signing. If a timeshare salesperson is using tactics such as some binding, a staple or clip, or other methods to obscure terms of the contract, beware. A general search on Google, RipoffReport.com, and RedWeek.com reveals countless tales of fraud and misrepresentation by timeshare salespeople to buyers and purchasers.

Thursday, November 21, 2013

Grounds for Divorce in South Carolina

Divorce in South Carolina requires a legal process and Order signed by a Judge and filed with the Clerk of Court. However, no formal process is required to become married. People may be married by common law if they hold themselves out to others to be married and meet certain other requirements.

Before any individual may seek a divorce in South Carolina, they must have been a resident of South Carolina for at least one year, or both parties must have been residents of South Carolina for at least three months. Jurisdiction is determined by statute. Venue is normally in the County in which the Defendant resides, though it may be in the County in which the Plaintiff resides.

South Carolina does not recognize some well-known grounds for divorce in other states or as you may hear in the media, such as psychological cruelty and irreconcilable differences. The sole non-fault ground recognized in South Carolina, living separately and apart for one year, does not allow parties to immediately obtain a divorce upon an agreement or disagreement of the parties.

However, South Carolina does recognize four fault grounds such that the parties are not required to live separately and apart for one year before obtaining a divorce. The four fault grounds are abandonment for one year, habitual drunkenness or drug abuse, physical cruelty, and adultery. It is the burden of the party seeking to obtain a divorce based upon one of these four fault grounds to prove the grounds for divorce.

Most commonly, divorces are obtained upon living separately and apart continuously for one year. In the meantime, parties often obtain a Temporary Order either out of necessity, to protect their rights, or any of many other reasons. Otherwise, the most commonly pursued appears to be adultery. Obtaining a divorce upon the grounds of adultery requires that certain elements be met, namely opportunity and inclination to commit the same. This is a subjective standard, and ultimately a Judge will decide if adultery has been proven.

If you do not have grounds for divorce, other relief may be available to you through the Family Court. The Beaufort County Courthouse is located at 102 Ribaut Road, Beaufort, South Carolina 29926, and the Jasper County Courthouse is located at 265 Russell Street, Ridgeland, South Carolina 29936.

Tuesday, November 5, 2013

Litigation with Property Owners Associations

As a general practice litigation attorney on Hilton Head Island, over the years I have represented litigants on seemingly every side of disputes dealing with Property Owners Associations (POAs), also known as Homeowners Associations (HOAs). These POAs are perhaps best understood as a mandatory, community-wide organization that is governed by a Master Deed, and is run by a small group of community leaders, a Board of Directors, that includes a President, Vice-President, Treasurer, and Secretary.

The POAs, through their Boards of Directors, are responsible for the ownership and maintenance of all common areas of their communities, including parks and paths, as well as community infrastructure, including drainage-systems, signage, and offices, as well as the community's security needs, which may be handled by a private contractor. The cost for such community maintenance is estimated, budgeted, and then evenly divided among all community members, who pay regular annual dues to provide for such needs, as well as special assessments to provide for any additional community needs. The Board of Directors typically exercises its authority for necessary decision making during regularly scheduled meetings, which are open to all members and of which a written record is typically made.

Typical litigation relating to POAs concerns the collection of association dues, foreclosure of association liens, enforcement of association rules and regulations, elections of directors, levying of special assessments, amendments to Master Deeds, creations of easements, and resolving property-line disputes. In dealing with the POAs, members typically may request POA maintenance services, POA information, enforcement of rules and regulations, and accounting of POA finances. In dealing with members POAs typically require the payment of dues, exterior home and yard maintenance, prior approval of exterior construction, and public conduct and behavior in accordance with community standards.

Of course, these are general principles concerning POAs and common issues relating to them. Because every situation is unique, please give me a call for advice as to your particular case.

-Joseph DuBois

Saturday, September 28, 2013

How to Get Out of a Timeshare in South Carolina

Type in "how to get out . . ." in Google, and Google attempts to automatically complete my search with, in order: (1) a lease; (2) debt; (3) jury duty; (4) depression; and ... (5) a timeshare! (Edit 10/3/13: When I originally posted this blog on 9/28/13, those were the automatic complete results from Google in my search engine; today, it shows "how to get out of a lease" immediately followed by "timeshare" and then by "speeding ticket" and "a funk".) Why do so many people want to know how to get out of a timeshare? It is often because the benefits, terms, and conditions of the timeshare are misrepresented by the timeshare salesman to the buyer.

A common scenario for a timeshare buyer is as follows:

After reviewing the contract in detail and attempting to use the timeshare, the now-timeshare owner realizes that he or she was lied to about the features of the timeshare by the timeshare salesman. Maybe the maintenance fees are outrageous. Or it can only be used once every three (3) years instead of each and every year. The buyer cannot use the week he or she desires. The timeshare company will not purchase the weeks back from the buyer. Or the timeshare cannot actually generate the buyer a guaranteed profit. And all variety of promises and guarantees made verbally by the timeshare salesman, and sometimes in handwritten notes, that are not contained in the purchase contract documents.

The owner calls the timeshare salesman's cell phone, but no calls are answered and messages are not returned. The owner contacts customer service about the promises made by the timeshare salesman and the reality of the contract and features of the timeshare. The owner wants a refund, but the five (5) day rescission period, discussed in an earlier blog post, has passed, and the timeshare company declines to offer a refund. The timeshare company may point out to the buyer that there is an Arbitration Provision in the contract, and that the buyer cannot even pursue his or her legal remedy in Court and must submit the buyer's claim to a single arbitrator.

Alternatively, the timeshare salesman or another timeshare agent tells the owner that he or she can purchase an upgrade and receive the features and terms that the owner believes he or she already purchased. Maybe for another $7,000.00 the timeshare will really be able to be used each and every year instead of only once every three (3) years. Or maybe the buyer must buy two (2) bi-annual timeshares in order to be able to use a timeshare each and every year. At this point, some owners purchase upgrades, while others have smartened up very quickly and immediately seek assistance from a third party, either a resale company, usually online, or an attorney.

A resale company usually requires that the owner have paid in full for the timeshare and own it free and clear, whereas many who realize they have been defrauded shortly after their purchase have paid a down payment only, maybe some monthly payments, and have a loan to pay the balance. However, if you own the timeshare in full, you may be able to pay a timeshare resale company a fee to take your timeshare off your hands. That fee may be a couple or few years of maintenance fees and the costs and expenses of any transfer fees. Transfer fees to the timeshare resort itself may exceed $1,500.00. Make sure to read your contracts very carefully, as not reviewing a contract and relying upon a timeshare salesman's verbal representations are not options any longer, as that is probably what put the buyer in this predicament in the original timeshare purchase.

Before approaching an attorney, a buyer may make complaints with the South Carolina Attorney General, Mayor of Hilton Head's Office, South Carolina Real Estate Commission Board of Labor, Licensing, and Regulation, Better Business Bureau, Consumer Affairs Department, local police, and others. That is, of course, after being rebuffed by the timeshare company itself and the property management company for the timeshare company. Making complaints on Ripoffreport.com, Redweek.com, and other such websites that contain information identifying you, such as your name, last name, first initial and last name, purchase date and amount, etcetera, may result in you receiving a letter from the timeshare company's attorney to immediately cease and desist and to remove your post and/or report that the dispute has been resolved or face legal action for defamation and other violations of the law.

If you are going to seek legal representation and make these accusations of fraud against the timeshare company, you should expect and anticipate that the timeshare company will make counterclaims against you in a lawsuit to include similar allegations of fraud, breach of contract, etcetera, as the timeshare company lashes about in an attempt to further oppress the people it defrauded. But at this point you have exhausted all of your options and you have nowhere else to turn. You want to stand up for your rights, and you need legal advice and possibly legal representation. But what are your rights? Call us for a free consultation. We offer consultation by phone, Skype, and FaceTime for out-of-state owners of timeshares located in South Carolina.

Tuesday, August 20, 2013

Workers' Compensation Claims in South Carolina

South Carolina Code Section 42-1-10 contains the South Carolina Workers' Compensation law. This law provides a system of providing medical and financial benefits to employees in South Carolina who are injured on the job.

A typical workers' compensation claim begins with an employee being injured while on the job. The injured employee typically will report the injury to his or her supervisor, who makes a written report of the injury. If the employee’s injury requires examination or medical treatment, the supervisor then directs the employee to an appropriate medical facility, which may be a local hospital’s emergency department, a general practitioner, or a specialist physician. Pursuant to the South Carolina Workers' Compensation Law, the employer is responsible for the cost of any such treatment.

Following such examination and treatment, an injured employee may be given written work restrictions by the treating physician. For example, the injured employee may be directed to not lift more than ten (10) pounds or to not stand for more than thirty (30) minutes. Upon receipt of such written work restrictions, the employer has the option to provide the employee with a temporary employment position that meets such work restrictions or to hold the employee out of work until his or her condition improves and he or she may resume regular job duties. If the employer elects to hold the injured employee out of work until his or her condition improves, upon the employee being out of work for fourteen (14) days the employer is required to pay the employee temporary compensation.

In addition to medical treatment and temporary compensation, an additional element of compensation an injured worker may be entitled to is permanent disability compensation. Permanent disability compensation applies when, despite receiving all available medical and rehabilitative treatment, an employee still has a permanent injury or disabling condition. Based upon the treating physician’s assessment of the employee’s injury and his or her resulting physical limitations, as well as upon the employee’s age, education, work experience, and other life circumstances, an award of permanent disability compensation is either reached by agreement between the employee and the employer or is decided by a workers' compensation Commissioner.

The foregoing describes a typical workers' compensation claim. However, every claim is different, and every employee injured on the job in South Carolina is encouraged to consult with a licensed attorney. Please feel free to contact me, Joseph DuBois, at (843) 686-5500 for a free, no-obligation consultation to discuss your rights.

Friday, August 9, 2013

Timeshare Complaints in South Carolina

Pursuant to Section 27-32-130, Enforcement and implementation of chapter; regulations, of the South Carolina Timeshare Act:

"The Real Estate Commission is responsible for the enforcement and implementation of this chapter and the Department of Labor, Licensing and Regulation, at the request of the Real Estate Commission, shall prosecute a violation under this chapter. The [Real Estate C]ommission shall promulgate regulations for the implementation of this chapter, subject to the State Administrative Procedures Act."

However, the South Carolina Real Estate Commission's website states that it is "not empowered to assist with the following types of complaints:

* Contract matters such as questions about listing agreements, management agreements, sales contracts and leases for which you need to contact an attorney;

* Earnest money or security deposit disputes that must be heard by a magistrate;

* Disputes over payment for services either by or to a licensee;

* Disputes with your landlord about property condition, past due rent, eviction notices and the like;

* Complaints that do not involve a licensed real estate licensee;

* Complaints about managers of homeowners associations; or

* Complaints relating to licensee ethical behavior or poor business manners."

Here is the link to the South Carolina Real Estate Commission's website containing the above-listed explanations of complaints with which the South Carolina Real Estate Commission is not empowered to assist, as well as the Commission's instructions and other guidance regarding the complaint process.

Have you made complaints to the South Carolina Real Estate Commission and received a letter of determination stating that no evidence of fraud or violations of the South Carolina Timeshare Act have been found in the investigation? Have you made further complaints to entities like the Office of the Mayor of Hilton Head Island, the South Carolina Attorney General's Office, the Human Affairs Commission, and the Better Business Bureau, and failed to obtain a meaningful communication and favorable result?

Section 27-32-130 of the Act further states that "[t]he provisions of this section do not limit the right of a purchaser or lessee to bring a private action to enforce the provisions of this chapter." The South Carolina Timeshare Act specifically authorizes individuals to bring private causes of action and lawsuits against those timeshare entities subject to the Act.

If you have questions about bringing a lawsuit against a timeshare company and protecting your rights, please feel free to contact my office to speak with Zach or Joe. We are happy to offer free consultations, and we have the ability to speak with you through technology like Skype and Facetime.

Thursday, August 8, 2013

Cancel Your Timeshare Contract in South Carolina

South Carolina Code Section 27-32-40, Furnishing copy of contract to purchaser; terms thereof, states as follows:

"(A) It is a violation of this chapter for the seller of a vacation time sharing plan to fail to utilize and furnish the purchaser a fully completed copy of a contract pertaining to the sale at the time of its execution. The contract must include the:

(1) actual date the contract is executed by all parties;

(2) name and address of the seller;

(3) total financial obligation of the purchaser, including the initial purchase price and additional charges to which the purchaser may be subject;

(4) specific term of the contract; and

(5)(a) following statement in immediate proximity to the space reserved in the contract for the signature of the purchaser and in bold type:

"YOU MAY CANCEL THIS CONTRACT WITHOUT PENALTY OR OBLIGATION WITHIN FIVE DAYS AFTER THE DATE YOU SIGN THIS CONTRACT, NOT INCLUDING SUNDAY IF THAT IS THE FIFTH DAY, OR THE DATE YOU RECEIVE THE DISCLOSURE STATEMENT PURSUANT TO Section 27-32-100, WHICHEVER OCCURS LATER. IF YOU DECIDE TO CANCEL, YOU MUST NOTIFY THE SELLER IN WRITING OF YOUR INTENT TO CANCEL BY SENDING NOTICE BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY ANOTHER VERIFIABLE MEANS, TO (NAME OF SELLER) AT (SELLER'S ADDRESS).""

An example of an incomplete copy of a contract may be a copy of a contract that does not include the signature of a Notary Public for any signature required to be notarized. It may be a further violation if a Notary Public was not present for your signature, particularly if the signature was notarized thereafter.

Moreover, pursuant to South Carolina Code Section 27-32-50, Request to cancel contract: "It is a violation of this chapter for the seller of vacation time sharing plans, or his assignees, to fail or refuse to honor a purchaser's request to cancel a contract as provided by Section 27-32-40 if the request is made...."

Does your contract contain the above-described statement? Are you within the rescission period? Have you attempted to exercise this provision, but still own your timeshare? Did you ultimately make a second purchase after attempting to rescind your contract with the seller of the timeshare? If you have questions about your timeshare purchase, please feel free to contact my office for a free consultation.

Wednesday, July 24, 2013

Timeshare 101: Prohibited Practices by Sellers of Timeshares in South Carolina

Pursuant to the South Carolina Code Section 27-32-110, Prohibited Practices, it may be a violation of the South Carolina Timeshare Act for a timeshare salesperson to do any of the following:

(1) use a promotional device including, but not limited to, sweepstakes, lodging certificates, gift awards, premiums, or discounts, without disclosing fully that the promotional device is used for the purpose of soliciting the sale of vacation time sharing plans;,

(2) use a promotional device as described in item (1) to obtain the names and addresses of prospective purchasers without fully and prominently disclosing that names and addresses are acquired for the purpose of soliciting the sale of the vacation time sharing plans;

(3) misrepresent the amount of time or period of time the accommodations and facilities are available to a purchaser;

(4) misrepresent or deceptively represent the location of the offered accommodations and facilities;

(5) misrepresent the size, nature, extent, qualities, or characteristics of the offered accommodations and facilities;

(6) misrepresent the nature or extent of services incident to the accommodations and facilities;

(7) make misleading or deceptive representations with respect to the contents of the contract or the purchaser's rights, privileges, or benefits under it;

(8) fail to honor and comply with all provisions of the contract with the purchaser;

(9) misrepresent the conditions under which a purchaser may exchange his rights to an accommodation in one location for rights to an accommodation in another location;

(10) include in a contract a provision purporting to waive a right or benefit provided for purchasers pursuant to this chapter, or seek or solicit such a waiver during the effective period of these rules; and

(11) do any other act of fraud, misrepresentation, or failure to make a disclosure of a material fact.

For example, it could be a violation for a salesperson to tell you that you are purchasing an annual timeshare but sell you a timeshare that can only be used once every three years, or a "tri-ennial" timeshare. Other common examples could include the timeshare sales person informing you that: (1) the timeshare company will sell or purchase another timeshare that you own; (2) your maintenance fees are less than they cost in actuality; your maintenance fees are waived for a certain period of time when they are immediately due; and your maintenance fees are due to be paid less frequently than they are due to be paid in actuality; (3) you are purchasing a three-bedroom unit when you are actually purchasing a two-bedroom unit; (4) that the timeshare company guarantees to purchase from you your timeshare weeks and/or developer weeks; and (5) your timeshare purchase is a money-making investment from which you will profit.

If you believe that you may be a victim of timeshare fraud in South Carolina, or that a timeshare salesperson in South Carolina has "scammed" you, please feel free to contact my office to make an appointment to speak with either me, Zach Naert, or Joe DuBois.