Articles from September 2019

Less than fifty percent of Americans have a Last Will and Testament (Will), which is the document that tells your loved ones what you want to happen to your belongings after your death.  Wills are not just for people who have a lot of money and land to divide among their loved ones after their death.  Wills are for everyone.  Do you care who gets your property when you die?  Do you care who gets your money when you die? Do you care who is appointed as the guardian of your minor children when you die?  If the answer to any of these questions is yes, then you need a Will.

            A Will lets you name the people you would like to inherit your belongings after your death. If you have children under the age of eighteen, a Will lets you name who you would like to be appointed as their legal guardian.  Having a Will makes your wishes clear to your family member and will cause less confusion for them after your death.  The Will also names a specific person, called a personal representative, to be responsible for making sure that the wishes stated in your Will are followed and that your chosen heirs receive the correct property or items after your death.

            If you die without a Will, the Probate Court Judge will divide your personal belongings according to the South Carolina intestacy law. Under the current law, your closest living family members will have it divided among them.  This may not be the same way that you wish to divide up your belongings and may not be the same people you wish to inherit from you after your death.  With some exceptions, you cannot prevent your family members from inheriting from you unless you have a Will that states that you do not want that person to receive anything.

The only way to make sure that your wishes are followed after your death is to have a valid Will prepared by an attorney. It must be properly witnessed and notarized.  You will not have any input or control over how your belongings are divided after your death unless you have a valid Last Will and Testament.  If you are interested in having a Last Will and Testament, but cannot afford an attorney, then you should contact South Carolina Legal Services at  1 (888) 346-5592 or apply online to see if you are eligible for a free attorney to help you.

In our last issue, we discussed the purposes of a temporary hearing in Family Court.  Here, we will discuss which forms and documents will be used in the temporary hearing.

Except in unusual circumstances, the parties in a case do not testify in temporary hearings.  Testifying is when you verbally tell the Judge what you have observed and what you are asking of the Court.  Instead, in temporary hearings, the parties and witnesses express their positions, observations, and opinions by completing affidavits.  An affidavit is a written, signed and notarized statement. 

The parties in the case should prepare their own affidavits with the assistance of their attorneys.  They may also want to use affidavits from additional witnesses.  Your attorney may provide a form for you to give to witnesses so that the witnesses can prepare their own affidavits.  The most helpful witnesses are generally people who are assumed to be neutral.  For example, a child’s teacher or a pastor’s affidavit may be considered useful to the Judge’s decision if the witness writing the affidavit has observed events that are relevant to the issue. 

If the issue is which parent should get custody, some relevant facts may include which parent helped the child with schoolwork, which parent appeared at teacher conferences, which parent takes the child to religious services, or how each parent interacts with the child.  Witnesses who have not observed the parent with the child, may be able to provide other useful information.  For example, the parent’s boss may write an affidavit about the parent’s good work ethic.  While these facts may not be quite as relevant to the issue of custody, they still may help the Judge with his or her decision.

There may be some evidence that could be attached to an affidavit, such as photos, bills or medical records.  Your attorney can help determine which attachments are appropriate and would be helpful.

Financial declarations are also required at temporary hearings.  A financial declaration lists a party’s income, bills, debts, and the value of their property.  Financial declarations are also sworn, notarized statements.  It is important to be truthful in your financial declaration. Also, carefully review the other party’s financial declaration.  Point out any mistakes to your attorney.

If there are children involved in your Court case, you will also prepare a temporary proposed parenting plan.  This document shows the Court what you believe would be best for the children. It includes a schedule for the child seeing both parents.  You can also list necessary restrictions in a parenting plan. For example, you could ask that the child not be exposed to R-rated movies.  In most cases, Judges want children to spend significant time with both parents.  If you believe it is unsafe for your child to spend time with the other parent, you and your attorney will need to explain why it is unsafe.  Your attorney may have other forms and steps they advise you to complete for the best chance of success.

As you can see, preparation for a temporary hearing can take some time.  Whenever you let the Judge decide an issue, you are giving up control about how it will be decided.  Also, the Judge does not know about your life.  You do.  For that reason, it is always best to see if there is way to reach an agreement before you let the Judge decide.  The Judge will often ask if you have tried yet to reach an agreement with the other party.  If there are children involved, the Judge will want to know that you are trying to do what is best for the children.   A temporary hearing is one step of many Family Court cases.  What is decided at the temporary hearing may be changed in the future, but it is important to spend time preparing for your best chance of success.

This past summer, I worked as an intern with South Carolina Legal Services in the firm’s Migrant Unit. Before I came to South Carolina, I did not quite know what to expect in terms of the actual conditions for farmworkers here. I did not know what their thoughts would be about their employers or their situations. Once I started meeting workers, I heard their concerns about wages, living conditions, and transportation.

Many workers that we visited complained about being overworked and underpaid, some working up to 16 hours a day. They were not getting paid for all their hours worked. They were not getting any overtime wage rate. They were about to travel back to their home countries with little or no money because of the wage theft by their employers. This was really disturbing to me because I could tell in their eyes that they felt hopeless. I knew that they were not getting given what was promised in their contracts. These were really young men. I understood their pain. I knew it could have been me in their position.  

I also witnessed terrible living conditions. These workers were living in tents and having to pay rent. I could not believe it. The scary aspect of this was that they were told to cook in their tents using propane gas tanks. They did not even have a refrigerator.

While those situations were terrible, I am glad I took part in Student Action with Farmworkers. It allowed me to inform the workers about their rights and connect them to our attorney in order to discuss their issues and how we could provide aid for them. I genuinely feel as if my participation in the program truly helped the workers because I was able to reach out to hundreds of farmworkers throughout the summer.

2019 Student Action with Farmworkers (SAF) Intern
South Carolina Legal Services, Migrant Unit 

Imagine you have no birth certificate because you were delivered by a midwife and were born in your parent’s home over 50 years ago. Your birth was never recorded, and there is no record of your birth at Vital Records. Last month we learned about people with birth certificates that needed to be corrected. People with no birth certificate have a different and sometimes more challenging problem. You essentially need to prove to Vital Records that you exist. Only then will the agency create a delayed birth certificate for you.

Obtaining a delayed birth certificate is often a very challenging process. Without a birth certificate, you cannot get an identification card (i.d.) or drivers’ license. Without an i.d. or license, you cannot get a birth certificate.  So begins the frustrating process of trying to obtain a delayed birth certificate.

Many people first discover that they have no birth certificate when they apply for Social Security Retirement benefits. One SCLS client who successfully obtained a court order had traveled throughout the country and abroad as a trainer for race horses. He carried around a check from the Social Security Administration for thousands of dollars for nearly a year, because he did not have a birth certificate and could not open a bank account. The client was unable to obtain public housing that he otherwise qualified for until his SCLS lawyer obtained an order for a delayed birth certificate for him.

Vital Records has an administrative process for obtaining a delayed birth certificate. An applicant must provide the agency with 3 different documents verifying the birth facts claimed. Only original or certified documents can be submitted. One document must show the full name of the applicant’s mother prior to any marriages. A marriage license or a Social Security Card may supply this information. A second document must show the correct age or full date of birth and place of birth of the applicant. School records, birth certificates for an applicant’s children, voter registration cards, or marriage licenses for the applicant would provide this information. The third document must also  show and verify the full, correct date of birth, including month, day and year of birth of the applicant. Documents such as driver’s records, insurance policies, medical records or military records may be used.

More recently, the trend in home births has caused similar problems, especially when the birth is unattended by a certified midwife or doula. If there are no efforts by a parent to document the child’s birth, the delay in doing so can make it more difficult to do so later.

            With the Real ID requirements fast approaching in October 2020, this problem can become even more urgent for persons without a birth certificate, which is the most important document required to obtain a Real ID. Without it, one cannot enter a federal building such as the Social Security office or use air travel or travel interstate by train or bus.

                Anyone who has never seen their birth certificate, or who is aware that they do not have a birth record, should take immediate steps to apply to Vital Records to get a copy of their birth certificate. If no record is found, this should generate a “Not Found” letter that will be needed to file a court action for a delayed birth certificate.  

            South Carolina Legal Services may be able to help with this process. To apply for our services, call us at 1-888-346-5592 or apply online.

I have made mistakes in the past. A lot. Despite my mistakes, I have been able to find a path to success. Despite my mistakes, I was able to get help along the way. However, there are many in our society who are denied help because of their past mistakes. Some are denied access to employment because of a lapse in judgment from years ago. Some are denied access to the most basic means of overcoming the hardships in life because of a wrong that they did as a minor.

The expungement process can remove certain criminal records from a person’s background. It is an effective way to erase the past mistakes. Certain crimes that are not eligible for expungement, may be eligible for a pardon. The pardon does not erase the criminal record, rather, it acknowledges that a person has been forgiven for those blunders.

Without the criminal record as an impediment, housing, employment, and other necessities are more readily accessible. Without the past criminal records getting in the way, all are free to work for and achieve their dream… just like I did.

On September 17^th, SCLS hosted our annual Constitution Day Legal Forum. This year, the focus was on removing barriers to employment. Our legal team discussed options available to those wishing to get their life back on track. You can watch the video here.

If you would like to attend an expungement clinic, contact your local SCLS office for information about one coming up in your area.

SCLS regularly partners with other organizations to conduct expungement clinics. For example, last month, the Greenwood office of SCLS partnered with Meg’s House to present an expungement clinic. Meg’s House is a domestic violence shelter whose mission is to provide housing and supportive services that reduce the impact of domestic violence and chronic homelessness in the communities we serve. We would be happy to help your organization conduct a similar clinic. If your organization would like to partner with us to hold an expungement clinic, contact Tiffney Love at tiffneylove@sclegal.org.