Frequent Questions

Will I have to pay a consultation fee at my first meeting with an attorney?

Unless the consultation is for a personal injury case, we charge a consultation fee. In addition, although we do charge a consultation fee (at a reduced hourly rate), clients typically decide to retain us at the initial meeting.

Can I enter into a fee agreement for a family court matter with my attorney based on a percentage of what I receive?

Except in very limited circumstances (i.e. collection of child support or alimony arrearages), contingency fees are prohibited by the Rules of Professional Conduct. Fees in Family Court must either be a flat fee or based on an hourly rate. Retainers are typically required, and payment for services and fees are made from the retainer with intermittent requests from the attorney’s office to replenish the retainer. Fee agreements must be in writing and signed by both the client and the attorney.

Family Law

What is family law and why do I need an attorney?

Family and Domestic Law includes categories such as, divorce, child support, child custody, paternity, domestic abuse, spousal support, separation, and adoption. Each instance of family and domestic law can be a difficult and emotionally tiring issue. That is where the experience of a family and domestic law attorney comes in especially handy. Our firm will assist you in all matters necessary to handle your case as efficiently and quickly as possible.

Divorce is defined as the “legal dissolution of marriage”. Child support is the payment made from one parent to the other for support of their children after a divorce or separation. Child custody will determine which parent is granted care for the children after divorce or separation, including visitation rights, sole custody, and joint custody. All of the above items, which usually result from divorce or separation, can be easily handled with the right attorney who is experienced in family and domestic law.

Determining whether the children from a marriage or relationship belong to both parties after separation can be handled through a paternity action. Establishment of paternity rights can help with visitation and child support.

When a person determines they cannot or do not wish to have biological children, they may choose adoption. Adoption is “the legal and social process involving the transfer of rights over a child from a set of birth parents to a set of adoptive parents.” This process can be long and complicated. Our firm, experienced in family and domestic law, can ease the process.

Why can’t I get a quick divorce on the grounds of adultery if my spouse doesn’t object?

South Carolina law provides for a “cooling-off” period in the hopes that some couples may reconcile if they are unable to obtain an immediate divorce. This means that no hearing can be scheduled for 60 days from the date of filing, and no hearing order may be issued for 90 days.

If we have a written agreement signed by both parties, why can’t we just wait until we can pursue a divorce on the ground of a one year’s separation and have the agreement approved at the same time?

Although you can certainly do this, it is generally more beneficial for the agreement to be approved and included within an Order for enforcement purposes. Until approval, such agreement is just a contract with no “teeth”.

Will I have to pay a consultation fee at my first meeting with an attorney?

Can I enter into a fee agreement for a family court matter with my attorney based on a percentage of what I receive?

Can my spouse and I retain the same attorney to save money?

No. However, one party typically retains an attorney to prepare an agreement or to pursue an uncontested divorce. It may be prudent for the other party to at least consult with an attorney before choosing to proceed pro se (represent themselves). In addition, a couple may go to a mediator as discussed below.

How can my spouse and I reach an agreement together?

If parties need assistance in reaching an agreement or want to hold their litigation costs down, they may want to consider mediation, which is a confidential decision-making process in which a neutral third party (i.e. an attorney or other professional) assists the parties in reaching informed decisions after a complete discussion of all of the issues involved. V. Lee Moore is a family court mediator certified by the S.C. Board of Arbitration & Mediation Certification.

What is joint custody?

Joint custody has two parts: joint legal custody and joint physical custody. Joint legal custody refers to both parents sharing the major decisions affecting the child, which can include school, health care and religious training.

Joint physical custody refers to the time spent with each parent. The amount of time is flexible, and can range from a moderate period of time for one parent, such as every other weekend, to a child dividing the time equally between the two parents’ homes. In situations where the child is going to spend a substantial amount of time with both parents, it helps if the parents live close to one another. Although South Carolina law allows for joint custody, such an arrangement will not be realistic unless the parties can work together.

How will our child support be determined in a divorce or paternity case?

South Carolina uses a formula that uses an income shares model, which is based on the income of both parents. Usually, the parent without the child the majority of the time will pay support, but if both parents share time with the child equally, the parent with the greater income usually pays support. The support may be reduced based upon the amount of time the payor spends with the child. If a parent is intentionally not working or is working less, thereby reducing his or her earning capacity, the court will “impute income”. This means the court will set support based upon what the parent is capable of earning rather than actual earnings. Each case is unique as to what expenses may be included in calculating child support. For example, some support awards include health insurance, uncovered medical expenses and day care, while others may not.

What happens if a parent does not pay court-ordered child support or violates some other portion of a court order?

The court has the power to hold a party in contempt for a wilful violation of a court order. The contemnor must be allowed an opportunity to “purge” the contempt, meaning to comply with the order. If the contemnor does not purge the contempt and has the ability to do so, the court has the power to issue an Order for up to one year incarceration, $1,000 fine, 300 hours of community service, or a combination of the three for each violation.

Do grandparents have visitation rights to their grandchildren? Who may petition for visitation? Under what circumstances may a petition be filed?

Traditionally, the common law denied grandparents visitation with a child over a parent’s objections. But since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. The laws do not make granting of visitation rights automatic – they merely give grandparents the right to ask for a visitation order. Most commonly, a grandparent (or other permitted third party) may petition for visitation after the death of a parent or upon divorce of the parents.

Incorporation/Business

What is Business law and why do I need an attorney?

Business and corporate law involves business tort litigation, partner and shareholder disputes, and asset litigation. Business/corporate attorneys handle a variety of business transactions ranging from general contract law, entity formations and acquisitions to complex issues involving protection of ownership interests, succession planning and financing agreements.

Included in business and corporate law is the structuring of business entities - establishing corporations, limited liability companies, limited partnerships and other business arrangements. In addition, corporate law focuses on advising corporate governance, issuance of stock, and preparing shareholder and limited partnership agreements.

General Business Litigation and Arbitration includes a wide array of practice areas, including commercial disputes, contract, corporate, partner and shareholder disputes, insurance, employment litigation, governmental and real estate disputes, as well as general and business torts and contract disputes.

Unfortunately, litigation, or the threat of litigation, is a fact for many business owners. Even business owners who have protected personal assets by forming a corporation or LLC may be at risk of litigation. When you are threatened with litigation, the worst thing you can do is ignore the problem, especially if you have been served with court papers. Failure to respond quickly may cause you to lose valuable rights.

When you are threatened with litigation, you should contact an experienced business litigation and arbitration attorney. If another person has wronged you or breached your contract, do not be afraid to consult our firm.

What is a sole proprietorship? Sole Proprietorship is a business owned by one person.

What is a partnership?

A partnership is the legal relationship between two or more persons who carry on business together in order to make a profit.

What is a corporation? A corporation exists as its own legal being. The owners of a corporation are its shareholders.

How many people does it take to make a corporation?

A corporation can be formed with as few as just one (1) person.

Which type of entity should I form?

To decide whether to form a Corporation, Limited Liability Corporation (LLC), or other type of entity you should discuss this matter with both your attorney and your accountant. Your attorney can inform you of liability issues and your accountant will advise you of the tax ramifications.

What is a registered agent?

A registered agent is a person who resides in South Carolina that is authorized to accept service of process on your company’s behalf.

What is the difference between an LLC, a corporation, and a Subchapter S corporation?

The main similarities between an LLC and a corporation are: both are legal entities created by a state filing, both help protect your personal assets from your business liabilities, and both have few ownership restrictions.

A Partnership is a legal relationship between two or more persons who carry on business together in order to make a profit. A Corporation exists as its own legal being. The owners of a corporation are its shareholders. The main differences between LLCs and corporations are: corporations issue stock and are owned via stock, while LLCs do not issue stock. Like partnerships, LLCs are simply owned by the members and/or the managers of the company. Corporations are required to hold annual meetings and to keep written minutes. LLCs do not have this requirement, resulting in less official paperwork.

Corporations are taxable entities, and (except for Subchapter S Corporations) they must pay taxes on their profits at the corporate tax rate. LLCs, like sole proprietors, partnerships and S Corporations, are “pass-through” tax entities. This means that the profit or loss generated by the business is reflected on the personal income tax return of the owners, thus avoiding the double taxation of paying first corporate tax on profits and then personal income tax on distributions of profits.

Both types of entities provide protection to the individual owners from liability to creditors. The LLC, however, allows the owners to select the tax treatment of a partnership, so that there is no tax at the company level, with profits and losses flowing through to the individual owners.

A subchapter “S” Corporation, also called an S Corporation, is a corporation that once incorporated, elects a special tax status. The Subchapter S tax election enables the shareholder to pass through earnings and profits directly to their personal tax return.If the corporation has a profit, the shareholder, if working for the company, must pay themselves wages that meet the standards of “reasonable compensation.”

I’m a partner in business and one of my partners is threatening to dissolve the partnership and take over the business. What should I do?

You should seek immediate advice from an experienced attorney. Your lawyer will advise you on your rights and obligations as a partner as well as advise and assist you in keeping your business operating and resolving the dispute.

Immigration

I have married an American citizen, how long does it take for me to get my green card?

On average, two (2) years.

How long does it take for me to get my work permit?

Approximately ninety (90) days.

Can I travel outside of the United States while my application is pending?

After filing for the appropriate travel documents, provided they are approved, yes you may travel outside of the U.S.; however, failure to obtain the appropriate travel documents may result in your petition being denied.

Personal Injury

How do I know if I need an attorney?

If you or a family member experiences an injury, you can benefit from speaking to a lawyer at the Moore, Johnson & Saraniti Law Firm. Often the insurance company for the person who caused the injury will try to settle with you before you have an opportunity to retain an attorney. The reason for this is that the insurance company knows it can probably settle the case for less money if you do not have a lawyer. We will investigate your case and obtain the necessary witness statements, documents, photographs, and other materials to protect your rights.

How much will Moore, Johnson & Saraniti Law Firm charge for a personal injury consultation?

At the Moore, Johnson & Saraniti Law Firm:

There is no charge for your first visit and no attorney fee unless we obtain a recovery for you. Our fee is a percentage of your recovery.

Typically, we will advance all costs for investigators, experts, filing fees and other expenses associated with obtaining the maximum recovery possible.

If a recovery is not made, your only obligation will be to cover the advances, as well as any administrative costs and filing fees.

Will I meet with a lawyer?

Yes. At the initial consultation, a lawyer from the Moore, Johnson & Saraniti Law Firm will meet with you. Throughout the remainder of our representation of you, a lawyer and a legal assistant will be involved in the handling of your matter.

What if I am not able to come to your office?

In the event your injury prevents you from traveling to our office, a lawyer from the Moore, Johnson & Saraniti Law Firm will meet with you at your house, the hospital, or any meeting place you designate.

Will I have to go to court?

No. If the insurance company for the person who caused the injury is willing to volunteer a fair settlement, you do not have to bring a lawsuit in order to obtain a recovery. We are skilled at negotiating settlements without filing a lawsuit. In the event the insurance company is not willing to negotiate fairly, we will then proceed with filing a lawsuit if you so desire.

How much money is my case worth?

Your case is worth either what we tell the insurance company it’s worth or the amount of an award granted by a judge and jury. We examine all of the conditions surrounding your case in order to arrive at a figure that we believe the insurance company must pay for your injuries. These conditions include how the accident happened, what injuries you suffered, future medical problems, the amount of medical expenses and lost income, as well as future medical costs and future loss of income. We study every detail so that we can get you the money you deserve for your injuries.

How long do I have to bring an action?

You must file your case within the Statute of Limitations, a fixed period of time dictated by the law. In many injury cases you are required to bring your case within two or three years from the date of the event that caused the injury. For an explanation of these time limits, always consult with a lawyer experienced in these matters.

Should I get a second opinion if an attorney thinks I do not have a case?

Yes. Different lawyers will see a potential case differently. Some lawyers may not be familiar with the type of case you have. If a lawyer rejects your case, it is always a good idea to seek a second (if not a third) opinion.

I was injured, but may have been partly at fault. Can I still sue?

Yes. Under South Carolina’s comparative negligence rules, you may still have a case even though you were partly at fault in causing an accident. These cases are very fact-specific and you should consult with a lawyer.

An insurance adjuster wants to settle and says I do not need a lawyer. Should I still get one?

Remember whom the adjuster works for: an insurance company.

They have one goal:

to settle your case for the least amount of money possible. What may seem like a fair offer to you could fall far short of any amount of money settled through a lawyer. It is a good idea to consult with an attorney at the Moore, Johnson & Saraniti Law Firm before accepting any offer made to you by an insurance company

Will my insurance rates go up if I pursue a claim or obtain a recovery?

No. Based on the information insurance agents and insurance carriers provide us, simply because an injured person pursues a claim does mean that their insurance premium will be increased. It is when a person’s negligent or wrongful acts cause injury that their own insurance premiums are increased.

Real Estate

What are some key issues for me to consider when reviewing a contract to purchase property?

Few people realize that the contract for purchase is the most important step in purchasing a home — the details of this agreement determine what you buy and how you buy it. Before signing, read the agreement carefully and consider the following (the following is not a complete list of issues but is intended to give the reader a good start on things to consider):

Is the purchase contingent on matters such as the availability of financing on acceptable terms or the sale of the house which you presently own?
Exactlywhat land, buildings and furnishings are included in your offer? Are stove, refrigerator, window coverings and the like included?
What details regarding payments are stated?
When can you take possession?
Is the seller to furnish you with a good, marketable title?
Who pays for the examination of the title to the property in the event the offer is accepted? Who pays for the abstract of title or title insurance?
Have utilities been installed and paid for?
Should a surveyor be used to find out if the improvements are actually located on the property? Who pays for the cost of the survey?
What inspections should be required and which party will pay for them? Will there be a home warranty contract and which party will pay for it?
lf a mortgage is to be given, is there an intangible tax on the mortgage and if so, which party will paythat tax?
If a loan is to be obtained from an outside lender, who will pay the loan closing costs?
If termite damage is found, will the seller pay the cost of repairs?
Are there any restrictions on the use of the property?
If your offer is accepted, what steps should be taken with respect to insuring the improvements to protect you pending the final closing?
What persons (such husbands and wives) are required to sign and accept the offer?
Are boundary lines properly specified?
Who is responsible for the payment of taxes?
What are the remedies if the buyer or seller defaults?
Is there a broker and, if so, w ho pays the broker’s fee?
Whose responsibility is it to pay for governmental special assessments that arise prior to closing?

What is a title examination?

A title examination is a study of the records related to the ownership history of the property and sometimes of other matters related to ownership interests in the property. An abstract of title is a collection of public records relating to the ownership of a parcel of real estate. The attorney reviews the title abstract to determine who owns the lands, whether there are any defects in or claims against the ownership and whether any action is needed to make sure the purchaser obtains good record title to the property at closing.

What is title insurance and why do I need it?

A title insurance policy, simply put, insures the status of title in the name of the owner of the policy. Title insurance policies are issued by title insurance companies. The title company contracts with the insured person named in the policy to protect the title as insured against financial loss, as well as the cost of defending the title in court. The title company searches and examines documents related to the ownership of and items affecting the property. It provides a source of indemnification to the named insured if he or she is damaged by an error in the title search or examination and also from hidden defects that would not be discovered in a title search. For instance, a title defect resulting from a forgery would not be revealed in a search or examination of the public records but would be covered by the title insurance policy.

How should my name appear on the deed?

Make sure you carefully identify all parties taking title, and how title is to be held. The following are examples of common manners in which title is held:

Sole Owner. Under this approach, title is taken in the name of only one individual grantee and is freely transferable or subject to encumbrance by that grantee, subject to dower and/or homestead rights

Joint Ownership with Right of Survivorship. Title can be taken in multiple names under this approach. Any joint tenant can freely transfer his or her fractional interest in the property during his or her lifetime, and any such transfer will terminate the joint tenancy to the extent of the interest transferred. A joint tenant cannot transfer his or her interest by will since a joint/survivorship interest passes by law automatically to the surviving joint tenants on a joint tenant’s death. A joint tenant can only encumber his or her proportionate interest in the property. Also, note that equal ownership shares is presumed unless the deed states otherwise (for example, if there are two grantees, each grantee will own a one-half interest).

Tenants by the Entireties. Title can be taken as tenants by the entireties only by a validly married husband and wife. If a transfer of this type is attempted but the grantees are not validly married, or if they become divorced, the title reverts to tenants in common. Neither tenant can transfer his or her interest to a third party or encumber the property without both parties joining in the deed or mortgage. Upon death of one party, the property automatically becomes the sole property of the survivor. This is a common form of ownership among married couples, except in community property states. In community property states, the husband and wife presumptively acquire the property as community property. In most of those states the spouses can hold as tenants in common or as joint tenants with right of survivorship.

Tenants in Common. Estates held as tenants in common are freely transferable or subject to encumbrance (as to the transferring tenant’s own interest) by each tenant. There is no right of survivorship in the surviving tenants upon one tenant’s death. Also, note that equal percentage ownership is presumed unless the deed specifically states otherwise (for example, unless the deed states otherwise, if there are three grantees, each grantee will own a one-third interest). It is always best to state each co-owner’s percentage ownership interest in the deed to avoid any uncertainty or misunderstandings.

What is the difference between a General Warranty Deed, Special (Limited) Warranty Deed, and Quit Claim Deed?

Title will generally be transferred by a general warranty deed. A general warranty deed guarantees the grantor’s good title before and after the conveyance and contains covenants concerning the quality of title. The usual guarantees or warranties by the seller are: good title, freedom from encumbrance other than as specifically identified, and right of possession to the buyer as against all others. The warranty includes any claims arising prior to the grantor’s ownership.

A special warranty deed (sometimes referred to as a limited warranty deed) provides less extensive warranties than the grantee receives from a general warranty deed. Under a special warranty deed, the grantor warrants only against claims arising during the period in which the grantor held title, while under a general warranty deed the grantor warrants against all claims whenever arising, even if prior to the date the grantor himself or herself took title.

A quit-claim deed contains no warranties of any kind and conveys only the interest, if any, held by the grantor (for example, if the grantee actually had no interest to convey, the quitclaim deed would not vest any ownership in the grantee). The quit-claim deed does not convey after-acquired title and is not typically used for residential real estate transactions, except to correct errors.

How do I know what the land surrounding my property will be used for?

Typically the seller does not guarantee what the area surrounding the property that you are purchasing will be used for. You should contact the property appraiser or tax collector for the county in which the property is located and determine who owns the surrounding land prior to purchasing the property (the title company can also find this out, and if a survey is obtained the surveyor will identify the owners of any immediately adjacent parcels). While this may not provide information on recent conveyances or land that is under contract for sale, it is a good starting point. Also, ask the neighboring property owners if they know of plans to develop land surrounding your property. You may also wish to confirm the zoning of surrounding property so that you know what kinds of uses might be made in the future, although zoning can be changed.

Wills, Trusts, & Power of Attorney

What is estate planning?

Estate planning refers to the process of planning for the distribution of a person’s assets, after payment of debts and claims among his/her intended beneficiaries.

What is probate property and probate administration?

In the context of handling the property of someone who has died (called “the decedent”), all of the property is either probate property or non-probate property. Probate property is all property that passes under the terms of a Will (“testacy”) or, if there is no Will (“intestacy”), under the laws of descent & distribution.

Why do I need a will?

A will allows you to do many things for the benefit of your heirs or beneficiaries:

Choose who will administer your estate.

Choose a testamentary guardian for minor children or disabled persons.

Set up trusts to control the method or timing of distributions after death.

What is a Power of Attorney (POA)?

A Power of Attorney (POA) is the power to act on someone else’s behalf and to sign legal documents for another person. And this power is greatly misunderstood. Several nuances of the POA need to be understood in order to fit it into your estate plan properly.

It is, first of all, the power to do business for another person. It is not the power over anyone’s body. It is power over belongings. A POA is good only during the person’s life. If and when he dies, the POA is extinguished. So, do not think that a POA is a substitute for your will. When the person dies, the POA is invalidated; it has become extinct.

A POA has two dimensions; it has breadth, and it has depth. Let’s look at breadth first; if it is a “General” POA, it is as broad as the equator. It covers everything. And, if a general POA does not state a starting point, it becomes operable immediately. So, when you give someone your general power of attorney without stating a starting point, that person can go waste all your assets right now.

Enter the concept of “Springing.” A POA can spring from a certain event. For example, someone could give you his power of attorney and say that it comes into being or springs into being only when he embarks on an International Air Plane Flight. Or, more often, he could make it spring from this event: “If two board-certified physicians determine that I am incapable of taking care of my affairs and so state in writing, this POA springs into being.”

If you want the POA to be less than a general power of attorney, you might decide to limit it and to thus make it a “Limited Power of Attorney.” If you were moving to another city and had found a house you wanted to buy, you might give someone your limited power of attorney to buy the house and to sign all relevant papers while you are in the process of moving your family and household goods.

In addition to breadth, a POA has depth. If a power of attorney doesn’t explicitly state the contrary, it is extinguished when you become disabled. So, if you want the POA to “endure” your disability, you can make it a “durable” power of attorney. Most POA’s written in recent times are, indeed, Durable Powers of Attorney.

Do you need a POA if you have a Living Revocable Trust (LRT) and have named a Standby Trustee to take over in case of your disability?

Yes. You still need a POA because you may have ownership of items that are not in your LRT and, hence, not under the power of the Standby Trustee.

In addition to a POA, you need a Medical Power of Attorney (MPOA) that tells what medical procedures you would want done if you were not of a disposing mind. Consult with experienced legal counsel to see exactly which documents you need for your situation.