Procedure Update: New Requirements for Temporary Hearings

On November 21, 2012, the Chief Justice of the South Carolina Supreme Court issued an Administrative Order outlining new requirements for hearings on Motions for Temporary Relief. A copy of the Order can be found here.

These changes include a requirement that such hearings be scheduled within 4 weeks of a request. They also include limitations on the amount of time for each hearing, as well as the number of pages of evidence that can be submitted by each party.

Further, while each party has been required to file a completed Financial Declaration in accordance with SCRFC Rule 20 for some time, additional forms (Background Information Form and Proposed Parenting Plan, if custody/visitation is at issue) are also now required.

It is important that your attorney is familiar with these changes, as failure to comply with the Order may have adverse consequences for you in court.

Have you been served with notice of a temporary hearing? Don't try to go it alone!

Call (843) 488-2110 to schedule a consultation.

What is a "Rule to Show Cause"?

To put it simply, a Rule to Show Cause is an Order from a judge requiring that a person appear in court, at a specific date and time, and explain why he or she has violated the Court's prior Order.

A Rule to Show Cause usually results from the opposing party asking the Court to issue such an Order.  In South Carolina Family Courts, they are most commonly sought when one party has not paid child support or spousal support/alimony as previously ordered. They might also be filed when one party has not paid off a debt as required, or is late making some other payment. In cases involving children, it is also common for one parent to file a Rule to Show Cause against the other parent for withholding visitation.

Procedure for Issuance

SCRFC Rule 14 outlines the procedural requirements of Rules to Show Cause. A petition for a Rule to Show Cause must clearly identify the Court order that has allegedly been violated, as well as the specific acts performed/not performed by the other party that constitute violation of the Order. The party seeking a Rule to Show Cause must also identify the relief that he or she is seeking.

Once the Order and Rule to Show Cause has been signed by a judge and a hearing date has been set, it must be personally served on the opposing party at least 10 days prior to the hearing.

Then, the party who allegedly violated the Order may respond to the allegations by filing a written Return with the Court, and serve it at any time prior to the hearing.

SCRFC Rule 24 also allows that, when child support or alimony is paid through a county's Clerk of Court, then the Clerk of Court is permitted to issue a Rule to Show Cause when the account is past due.

Similarly, SCRFC Rule 27 provides specifics for the filing of a Rule to Show Cause by a self-represented person alleging violation of a visitation Order.

Legal Standard for Contempt

Mere violation of a court's Order is not, by itself, a reason to be held in contempt. Rather, the violation of the Order must be willful or, in other words, deliberate and intentional. 

Defenses

First, there may be procedural defenses to a Rule to Show Cause, if the requirements of SCRFC Rule 14 have not been met.

Then, it is common that the party responding to a Rule to Show Cause will claim that he or she is not able to comply with the prior Order.  For example, if an Order required her to refinance the parties former marital home, but she has not been able to find a bank willing to refinance.

There are any number of defenses to a Rule to Show Cause, and they often depend on the facts and circumstances of each case.

Hearing Procedure

The party seeking a finding of contempt has the burden of first showing that the Order was violated and identifying the specific violative conduct. Then, the responding party has an opportunity to provide evidence of his defenses or that his failure to comply with the Order was not willful.

Sanctions

A person found to be in contempt can be sanctioned to up to 300 hours of community service, a fine of up to $1,500, or imprisonment for up to 1 year, or any combination of these things, pursuant to S.C. Code Ann. Section 63-3-620.

The party seeking a contempt finding may also be entitled to compensation for having to bring the Rule to Show Cause, including attorney's fees and costs.

First Quarter: Prime Time for Divorce?

Most divorce professionals notice an increase in divorces at the beginning of the year. While we don't all agree on the reasons why this happens, here are a few theories.

Holiday Celebrations

Our culture has a tendency to romanticize the holiday season, and those who are struggling with whether to divorce may hope the celebration is a chance to rekindle their marriage. Then, they are disappointed when nothing improves.

The holidays are also a time for joy and spending time with loved ones, with a specific focus on family. Pursuing a divorce during the holiday season conflicts with sentimental feelings about the holidays. This is often a particular concern for couples with children because they want their children's holiday celebrations to be untainted by such tremendous changes. For this reason, many people decide they will "stick it out" until after the New Year.

New Years' Resolutions

The new year is often a time for self-reflection, which leads some people to decide that they need a fresh start, including ending their marriage.

Financial Stresses

The number one reason that people divorce is continued disagreement about finances. For many families, the money spent on gifts at the end of the year only exacerbates this problem and may be the last straw before a spouse files for divorce.

End-of-Year Bonuses

Many people receive end-of-year bonuses from their employer. Because the division of property in divorce is often affected by when a divorce case is filed, some people decide to wait until after their spouse has received an anticipated bonus before filing.

Tax Considerations

Tax filing status is based on marital status as of December 31st of each year. Wanting to file taxes with a "married" filing status can affect when someone files for divorce.

Additionally, many people anticipate large tax refunds each year. They quickly file their returns, and then wait to receive a substantial check. For some families, a tax refund is the single largest influx of money during a year, and some spouses decide to use this refund to retain a divorce lawyer.

Are you trying to decide whether now is the right time to file for divorce?

If so, call (843) 488-2110 to schedule a consultation.