Litigation

Common Law Marriage

In order to prove the existence of a common law marriage, the parties must affirm their intent to be married in a jurisdiction that recognizes common law marriage and such evidence must be sufficiently presented at trial. Callen v. Callen, Opinion No. 26041, Supreme Court of South Carolina, Sept. 19, 2005.

Page and Sean never married in a legal ceremony, but cohabited in the states of New York, Florida and Massachusetts, as well as in Ireland, as though they were husband and wife. They had two children together. During the course of the relationship, Page relocated to South Carolina with the children of the parties. Page claimed that Sean also relocated, but Sean claimed that he had maintained his residence in Georgia the entire time Page resided in South Carolina, and that his separate South Carolina residence was only maintained so that he could visit his children. Thereafter, Page sought a divorce and ancillary relief, claiming the parties had a common law marriage under South Carolina law. The trial court agreed, and Sean appealed. The appellate court reversed and remanded, holding that the court below cited no acceptable legal precedent for its decision. It held that for a common law marriage to exist, the two parties must contract to be married while in a jurisdiction that recognizes common law marriage. Here, although the parties maintained relationships in several jurisdictions, none of those jurisdictions recognized common law marriage. Therefore, the appellate court concluded, the parties had to reaffirm their intent to be married while they were in South Carolina. The parties could not prove such intent based upon the evidence presented. The court considered that Sean maintained a separate residence in South Carolina, as well as one in Georgia. It remanded the matter for further evidence to be presented on the intent of the parties.

Property; Child Support

Money for the parties' house provided by means of separate checks to the husband and wife from the husband's parents may not later be claimed as the husband's separate property; the husband's 'economic in-kind' employment benefits of life insurance, medical insurance and a retirement plan may not be included as part of the husband's gross income for the purpose of determining child support. Hayes v. Hayes, S05F0738, Supreme Court of Georgia, Oct. 11, 2005.

The parties were divorced after a trial. During the trial, the husband argued that $40,000 provided by his parents to the parties was a gift solely to him and was his separate property. The gift was written as four separate checks of $10,000 each, two payable to the husband and two payable to the wife. The husband argued that two of the checks were made payable to the wife solely to avoid the federal gift tax. The husband also argued that child support based upon his gross income, should not include the 'economic in-kind' benefits provided by his employer of life insurance, medical insurance and a retirement plan. The trial court agreed that the $40,000 in gifts was the separate property of the husband and that the economic in-kind benefits provided by the husband's employer should not be included in the husband's gross income. The wife appealed, and the appellate court affirmed in part and reversed in part. It held that the $40,000 from the husband's parents could not be characterized as the husband's separate property because it is impermissible to engage in 'sham transactions' designed to avoid the payment of gift taxes. However, it was permissible for the trial court to decline the inclusion of the husband's economic in-kind benefits when calculating his child support obligation because the benefits in questions are not included in the husband's monthly gross income and do not provide the husband with benefits or services that the husband would otherwise have to provide, such as housing or automobile benefits.

Common Law Marriage

In order to prove the existence of a common law marriage, the parties must affirm their intent to be married in a jurisdiction that recognizes common law marriage and such evidence must be sufficiently presented at trial. Callen v. Callen, Opinion No. 26041, Supreme Court of South Carolina, Sept. 19, 2005.

Page and Sean never married in a legal ceremony, but cohabited in the states of New York, Florida and Massachusetts, as well as in Ireland, as though they were husband and wife. They had two children together. During the course of the relationship, Page relocated to South Carolina with the children of the parties. Page claimed that Sean also relocated, but Sean claimed that he had maintained his residence in Georgia the entire time Page resided in South Carolina, and that his separate South Carolina residence was only maintained so that he could visit his children. Thereafter, Page sought a divorce and ancillary relief, claiming the parties had a common law marriage under South Carolina law. The trial court agreed, and Sean appealed. The appellate court reversed and remanded, holding that the court below cited no acceptable legal precedent for its decision. It held that for a common law marriage to exist, the two parties must contract to be married while in a jurisdiction that recognizes common law marriage. Here, although the parties maintained relationships in several jurisdictions, none of those jurisdictions recognized common law marriage. Therefore, the appellate court concluded, the parties had to reaffirm their intent to be married while they were in South Carolina. The parties could not prove such intent based upon the evidence presented. The court considered that Sean maintained a separate residence in South Carolina, as well as one in Georgia. It remanded the matter for further evidence to be presented on the intent of the parties.

Property; Child Support

Money for the parties' house provided by means of separate checks to the husband and wife from the husband's parents may not later be claimed as the husband's separate property; the husband's 'economic in-kind' employment benefits of life insurance, medical insurance and a retirement plan may not be included as part of the husband's gross income for the purpose of determining child support. Hayes v. Hayes, S05F0738, Supreme Court of Georgia, Oct. 11, 2005.

The parties were divorced after a trial. During the trial, the husband argued that $40,000 provided by his parents to the parties was a gift solely to him and was his separate property. The gift was written as four separate checks of $10,000 each, two payable to the husband and two payable to the wife. The husband argued that two of the checks were made payable to the wife solely to avoid the federal gift tax. The husband also argued that child support based upon his gross income, should not include the 'economic in-kind' benefits provided by his employer of life insurance, medical insurance and a retirement plan. The trial court agreed that the $40,000 in gifts was the separate property of the husband and that the economic in-kind benefits provided by the husband's employer should not be included in the husband's gross income. The wife appealed, and the appellate court affirmed in part and reversed in part. It held that the $40,000 from the husband's parents could not be characterized as the husband's separate property because it is impermissible to engage in 'sham transactions' designed to avoid the payment of gift taxes. However, it was permissible for the trial court to decline the inclusion of the husband's economic in-kind benefits when calculating his child support obligation because the benefits in questions are not included in the husband's monthly gross income and do not provide the husband with benefits or services that the husband would otherwise have to provide, such as housing or automobile benefits.