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xavierjd
xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience:  20 yrs exp. in divorce, custody, visitation & support .
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In the middle of my divorce proceedings from my alcoholic husband,

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In the middle of my divorce proceedings from my alcoholic husband, he developed brain damage from the drugs and alcohol. He is going on full disability. In a 5 hour hearing I lost my POA and conservatorship was given to his brother. My husband is 60 years old and I am 55. we have 3 young children ages 9, 12 and 14. I would like to drop divorce proceedings . We have been separated for 11 months . Throughout the separation my husband wanted to reconcile, he called me and i drove kids to visit him it was amicable . His lawyer filed an answer but no counter claim was filed. Can I drop divorce proceedings ? In the state of south carolina can his brother as the guardian / conservator proceed with the divorce? even tho I don't want it. How do I regain my POA? What do you suggest? Is there anyone you know who might take an interest in my case> I feel sorry for my husband. His family has severed all ties . My husband is not permitted to call the kids. I am not permitted to contact my husband at the assisted living facility where he lives. I want to get my life back. His family does not have my interest or those of the children at all. I found a letter he wrote to my husband 6 months ago where he stated that he thought i was a bad person and that he really had no relationship with the kids, How do I convince a judge that I would have my husband's best interest at heart? I have had access to all the funds since our separation and did not dissapate monies. the reasons for the divorce no longer exist. In fact he has been diagnosed with impairment of executive functioning which would explain his erratic unpredictable and dangerous behavior.so I don't hate him. His brother has plenty of money and is doing this I think to get even for me. They feel I manipulate my husband and back and forth we go. Is there a way to apportion out what my husband needs to live on fairly? My husband's brother want to proceed with a settlement agreement and give me less than half of my husbands money. This is wrong the children and I have 80% of the financial needs. My younges t son has a severe heart defect and has had 4 open heart surgeries . my middle son has a connective tissue disorder and sees a rheumatologist for joint pain Where do I turn for help?
Submitted: 1 year ago.
Category: Family Law
Expert:  xavierjd replied 1 year ago.
Thank you for using JustAnswer.com It will be my pleasure to assist you today.

My goodness, you sure have A LOT on your plate!

Has there been ANY paperwork filed EXCEPT your Complaint for Divorce and his Answer?

Are you sure that there wasn't language in his Answer that included language for a Counter-Complaint?

Have you received anything from the Court that indicated that the Divorce would be dismissed if something further didn't happen by a certain date?

Thanks
Customer: replied 1 year ago.
1) only paperwork filed in family court was a temporary consent order
On may 15, 2012. No counter claim his lawyer never filed one!
2) on April 1, 2013 his lawyer filed motion to decrease amt of my support money and my lawyer filed a motion to increase There was also a motion to make the brother the guardian in the family court
Judge ruled to keep support the same. And relieved the conservator of all other payments issued in temporary consent order She also said that brother only has to email me. Not talk to me. Also she said if I had any other needs to work it out w/ conservator
There isn't anything from courts stating anything. Never got that far in divorce proceedings because my husband ended up in rehab for 6 weeks in June and July. We were working on discovery and going back snd forth
He kept dragging his feet turning in documents related to his business
Then on December 6 he becsme confused at a board meeting and called me crying. He went to doctor the next day and was crying and crying saying the neurologist told him he had organic brain disease
He wanted me to come right then but I couldn't drive because I was 5 days post op from retinal surgery (eye) so I suggested he call his sister or brother. Go figure
Customer: replied 1 year ago.
D
Did you receive my response?
Expert:  xavierjd replied 1 year ago.
Hi Stephanie,

I am SO sorry that you have had to live with such stress.

You MUST speak to your attorney regarding a dismissal of the divorce. In many cases, if a Counter-Complaint was NOT filed, the case may be dismissed without prejudice. If, however, your husband wants to file for divorce, he can do so through his guardian/conservator.

Because your case has been ongoing, s/he may have forgotten that your husband did NOT file a Counter-Complaint for divorce.

So long as the Answer and other pleadings that have been filed by your husband's attorney does not foreclose you from dismissing the case, then you should be able to do so.

Just remember, even in you get the case dismissed, your husband can turn around and file for divorce. Again, speak to your attorney about all of the issues surrounding you dismissing the divorce. Only after you speak with your attorney should your decision be finalized. And, the attorney must prepare the paperwork for dismissal.

I hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

Customer: replied 1 year ago.

Thank you so much! I know this is complicated . One more question : since my husband has been found to be incapacitated , how can he file for divorce if I drop the case ? This case is in South Carolina . can his brother as the guardian file for divorce?
Expert:  xavierjd replied 1 year ago.
Hi Stephanie,

An "incompetent" or incapacitated person CANNOT file for divorce. Neither can a guardian/conservator file for a divorce on behalf of an incompetent person.

Below is a link to a summary of cases decided in the South Carolina Supreme Court, and other courts regarding incompetent persons being able to file for divorce.

http://www.divorcesource.com/research/dl/incompetent/97mar52.shtmlI hope you find this information useful.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

Customer: replied 1 year ago.

This is very helpful so--- if I drop the case what happens then
Does it just become a contested conservatorship? Do you do probate work? How likely is it that his brother will be named as permanent conservator? Right now be I'd temporary What if he drops his probate case Do people do co- conservator ships? What are my options ?
Expert:  xavierjd replied 1 year ago.
Hi Stephanie,

Sorry for the delay. I was finishing assisting another customer.

First, I MUST advise you to speak to your attorney regarding the issues that you have raised.

1. If there has been no Counter-Complaint, and so long as the Answer and other pleadings that have been filed by your husband's attorney does not foreclose you from dismissing the case, then you should be able to do so.

2. If your husband has been deemed "incompetent" by the Probate Court because of physical and/or mental incapacity, then anything having to do with a guardianship and/or a conservatorship will take place in the Probate Court.

3. If your husband has already been appointed a guardian and/or conservator, and you want to be his guardian/conservator, then you would have to contest the guardianship and/or conservatorship that has already been Ordered by the Probate Court.

4. If his brother no longer wants to be his guardian and/or conservator, then you can file a Petition that you would like to be your husband's guardian/conservator.

5. There are such things as co-guardianships and/or conservatorships. If you chose to become a co-guardian and/or conservator with your brother-in-law, and the court approved it, then BOTH of you would have to agree on every decision made based upon the guardianship and/or conservatorship.

6. If your husband no longer needs a guardianship and/or conservatorship, he or someone on his behalf, can Petition the Court to dismiss the guardianship and/or conservatorship.

Below is a link to the Greenville County Probate Court. It explains the general process for obtaining and ending Guardianships and/or Conservatorships. This is general information. You can also look up your County's Probate Court to find if there is anything different that must be done.

http://www.greenvillecounty.org/probate/protected_persons.asp


After you speak to your divorce attorney, based on your posts, it is highly recommended that you speak to a Probate attorney. JustAnswer experts are PROHIBITED from recommending specific attorneys or representing people who ask questions on JustAnswer. Your divorce attorney may be able to give you a referral to a probate attorney. Also, below is a link to the South Carolina Bar Association. You will be referred to an attorney in your area who specializes in Probate law.

http://scbar.org/PublicServices/FindaLawyer.aspx

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions.

Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

Customer: replied 1 year ago.

I am so appreciative - I can tell you have put a lot of thought and time into your replies
I had to get a probate attorney -- she represented me in the 5 hour hearing where I contested the brother's petition for conservatorship. Unfortunately she has limited experience -- I had to testify for 90 minutes
I had NO prior warning or preparation -- in fact she turned to me as I was heading to the stand and said she didn't know I had to testify. That she thought it was going to be arguments between lawyers -- I was anihilated on the stand and practically burst into tears -- whereas the brother looked slick polished and very well rehearsed

My gut is that if I drop the divorce litigation
Then there will be a contested conservatorship
Again - I am willing to do a co- conservatorship
But in the court I was in ---the judge just went by what the guardian fir my husband and the guardian for my children recommended.
How can I possibly convince them? This is grossly unfair
I don't think brother can ever have the children's or my best interest at heart when he hates me so much
He won't speak to me. He wants to reduce my support
Won't pay fir extras fir children very cold and black and white
My husbands expenses are fixed and only 6K / month
He is bringing in 24 K month on disability
The marital home is a short sale. And he is declaring personal bankruptcy
I am living in a rental w/ 3 kids while the brother wants to give me 5K month
Snd save 14 K month fir my husband when my husband has 2 million dollars in his 401K
My question is: 1) how do I get rid of the guardian for the kids? The court appointed her and she is TERRIBle. She has never asked me anything about the kids. She won't talk to me yet she was over across the room talking to my hysband's siblings lighting and buddy buddy
My girlfriend I'd the attorney fir DSS inbour county and she noticed hiw friendky the guardian fir the kids was s/ Ken's family
The guardian for my husband I like he listened snd conversed comfortably w/ both dudes.
2) where do I find a more aggressive experienced attorney?

3) hiw foes one Dorset the process of mediation?
4) if divorce litigation goes away dies that make the family jydge's orders null snd void?
5) hiw finish obtain support from the probate side

My divorce lawyer is so busy that he doesn't have time for me it's like trying to get an audience w/ the pope -/ I feel like I gave him 75 K and gotten nowhere because it's not a straight up divorce anymore. . He plays catch up snd I think this case is one fir the law books and warrants a lot of research and thought. It is unique
I gave even called Harvard law school looking fir someone to take sn interest I am also calling and emailing prifessors at USC law school that teach probate
Anyway I would like to hear more from you
But I have to put my kids to bed
I will touch base later
Thanks again
You are great
Expert:  xavierjd replied 1 year ago.
Hi Stephanie,

It sounds like you had a hearing in the Probate Court to contest your brother-in-law's guardianship. It doesn't sound like it went well for you.

1. You are unable to "get rid" of the court appointed guardian for the children. However, if the attorney is not acting "in the best interests" of the children, your attorney may be able to file a Motion to Remove the Court Appointed Guardian for the Children. The GAL does NOT have to speak to you. S/he is acting on behalf of your children--just like your attorney is, hopefully, working on your behalf. The children's attorney may interview anyone involved with the children, including teachers, physicians, counselors, and anyone else involved with the children. The attorney CAN speak with you as to how the children are doing in the home, but does NOT have to do so.

2. Experts on JustAnswer are prohibited from making referrals to any specific attorney. However, below is a link to the South Carolina Bar Association Attorney Referral page. You can contact the Association and indicate the type of attorney that you need, as well as that you prefer an attorney who is experienced in the type of law that you need.

http://scbar.org/PublicServices/FindaLawyer.aspx


3. Mediation is a negotiation tool that is used in a divorce. The parties and their attorneys agree to try to settle some or all of the contested issues with the help of a neutral third party. Mediation is not binding on the parties. However, if some or all of the issues are settled with the help of the neutral mediator, then the agreement can be made part of your divorce decree. Many times, a judge may order the parties to attend mediation. If some or none of the contested issues are settled in mediation, they can still be settled as a result of a trial.

Mediation is also available for probate issues that can't be resolved by the parties involved. Below is a link to an explanation of the probate mediation process and the Court Rule that allows for mediation.

http://courtadr.org/library/view.php?ID=5945


4. If the divorce case is dismissed, then all of the Orders of the judge concerning the are null and void.

5. If the divorce is dismissed, and your husband is still in need of a guardian and/or conservator, then you may have to contest the guardianship on the ground that the divorce is now dismissed and you believe that you are qualified to be your husband's guardian and/or conservator. If the judge continues your brother in law as guardian and/or conservator, then you will have to present him with your income versus your expenses. If he will not approve the monthly amount of money that you have requested, then you will have to file an action in the probate court. You will have to show the judge that the amount of money you have requested is fair and equitable and necessary to pay your expenses.

I hope that you find this information useful.

I believe that I have answered your original questions and, I have answered your follow up questions. However, I believe that we are now beyond the scope of the original questions and follow up.

As I have stated, my goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back.


Thank you for your business!

Xavierjd

Many customers have asked how they can specifically direct a question to me in the future. If you specifically want me to assist you in your legal matter, just put "xavierjd” in the subject line and I will gladly pick up the question as soon as I am on-line.

***Answers given are for informational purposes only and are not meant to replace the advice or assistance of an attorney licensed to practice law in your state. If you need any more information, please do not hesitate to ask. Thank you!

xavierjd, Lawyer
Category: Family Law
Satisfied Customers: 3400
Experience: 20 yrs exp. in divorce, custody, visitation & support .
xavierjd and 8 other Family Law Specialists are ready to help you

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