Episode 18 – Family Law Primer

In Episode 18 of the Direct Examination podcast, hosts Dayne Phillips, Joseph Bias, and family law attorney Amber Fulmer kick off a multi-part series examining core areas of South Carolina practice with a comprehensive primer on family law and divorce.

Fulmer demystifies matrimonial litigation, covering initial consultation expectations, fee structures (engagement retainers vs. prohibited contingency fees), and the hidden complexities of pro se representation. The conversation explores statutory fault-based grounds for divorce (adultery, physical cruelty, habitual drunkenness) versus one-year continuous separation, rules governing private investigators and wiretapping laws, recent discovery procedural changes, and the complete abolition of the “tender years” doctrine in favor of modern 50/50 custody trends and the best interests of the child.

Key Topics Covered

  • Legal Disclaimer & Disclaimer Culture: Establishing informational boundaries regarding attorney-client relationships and legal advice.

  • Understanding Family Law Practice: Why domestic litigation is a distinct, specialized field handling equitable division, alimony, child support, and personal property disputes.

  • Pro Se Risks & Consultations: The value of initial consultations in uncovering hidden issues like paramour visitation clauses, business valuation, and tax exemptions.

  • Domestic Fee Structures: Billing via tenth-of-an-hour (.1) increments, non-refundable engagement fees, and the ethical/legal prohibition of contingency fees in domestic matters.

  • Criminal Cross-Over Issues: Navigating CDV allegations, the Electronic Communications Storage Act, Federal Wiretap Act violations, burner phones, and private investigator evidence.

  • Grounds for Divorce in South Carolina: Distinguishing 1-year continuous separation (no-fault) from fault-based grounds (adultery, physical cruelty, habitual drunkenness).

  • Modern Child Custody Standards: Abolishing the “tender years” doctrine, evaluating the best interests of the child, and trends toward 50/50 custody and drop-off minimization.

  • Cross-Examination Segment: Dayne Phillips addresses a listener’s fantasy football challenge.

Transcript

Amber Fulmer: Welcome, y’all, to the Direct Examination podcast. I’m Amber Fulmer.

Dayne Phillips: And I’m Dayne Phillips.

Joseph Bias: And I’m Joseph Bias.

Amber Fulmer: Disclaimer: Your use of this podcast does not create an attorney-client relationship between us, the hosts, our respective firms, or those firms’ attorneys. An attorney-client relationship is only formed by the execution of a written agreement. This podcast is for informational purposes only and should not be taken as legal advice on any particular set of facts or circumstances. You should contact an attorney for advice on specific legal problems. How’d I do?

Joseph Bias: That was beautiful! Welcome everybody. Today we have a special episode focusing on family law and divorce, starring our wonderful co-host, Amber Fulmer! Before we get started, rate and review us on iTunes, follow us on social media @SCLawPod, and send guest or topic suggestions to directexaminationpodcast@gmail.com.

Amber, let’s start with a basic primer on family law. Family law is kind of its own separate entity, right?

Amber Fulmer: It really is. Every time you mention practicing family law to an attorney who doesn’t, they recoil. It’s its own special entity because you are dealing with child custody, visitation, child support, and equitable division. How do you divide property, identify marital assets, place values on them, assign tax exemptions, handle health insurance, and award attorney’s fees? People will fight over sentimental items, pets, and absurd personal property.

Dayne Phillips: What advice would you give to someone thinking of navigating this process without an attorney?

Amber Fulmer: It is always beneficial to sit down for a consultation because an attorney addresses issues you might not think about—such as overnight paramour visitation, telephone contact guidelines, or business asset division. If you can work things out amicably, that’s ideal. But if you can’t agree, a judge will tell you how to divide your money, where you lay your head at night, and whether you must sell your property.

Joseph Bias: How do domestic attorneys bill for their services?

Amber Fulmer: Most domestic practitioners charge an hourly consultation fee and bill hourly. We do not take flat-fee or contingency cases; contingency fees in domestic cases are illegal and unethical. Clients pay an upfront non-refundable engagement fee, and we bill out of that retainer. I bill in tenth-of-an-hour (.1 or 6-minute) increments for any time spent on a file.

Dayne Phillips: How do criminal law issues overlap with family court cases?

Amber Fulmer: Criminal allegations often get thrown into divorces. You cannot leverage a criminal charge (like CDV) to gain an advantage in a civil divorce action. Also, clients often think they’ve struck gold catching a cheating spouse, but if they obtained information by violating the Electronic Communications Storage Act or Federal Wiretap Act, that presents severe legal issues.

Joseph Bias: What are the grounds for divorce in South Carolina?

Amber Fulmer: South Carolina recognizes no-fault and fault-based grounds:

  • No-Fault Divorce: Requires living separate and apart continuously for one full year without cohabitation, supported by a corroborating witness. If parties cohabitate during that year, the clock resets.

  • Fault-Based Grounds: Adultery, physical cruelty, and habitual drunkenness or drug intoxication. Adultery is proven through opportunity and inclination (e.g., private investigator surveillance showing entry into hotel rooms, intimate messages, or public romantic displays).

Dayne Phillips: Do mothers have an automatic preference when it comes to child custody?

Amber Fulmer: No. South Carolina long ago abolished the “tender years” doctrine. The standard is strictly the best interest of the child. Many courts across the state are trending toward 50/50 custody or expanded weekend visitation schedules. Transitioning visitation exchanges through school or daycare also minimizes direct parental conflict.

Amber Fulmer: Time for Cross-Examination! Listener Eric asked: Will Dayne be able to show his face in public if he loses in fantasy football?

Dayne Phillips: I have three fantasy football championship rings! Eric has zero. While I’m building a dynasty, he gets a free lunch!

Joseph Bias: Thanks for listening to our family law primer! Follow us @SCLawPod on Twitter, Facebook, and Instagram, Joseph @JosephPBias, Dayne @SCCrimLawyer, and Amber @actredjudicata. Email us at directexaminationpodcast@gmail.com. We’ll see y’all next week for our episode on criminal law!