South Carolina Family Court Rule 21 provides for motions for “temporary relief,” but most people don’t understand what that really means.
The goals of a divorce action are to legally end the marriage, divide any property, determine whether alimony should be awarded, and determine custody and visitation of children. But to get to that final result, there is a period of litigation when both parties are trying to prove how much property they’re entitled to, who should have custody, etc. This is the “temporary phase” of a Family Court action – it starts when the case is filed, and ends when a Final Order is issued. It is the time when all of the litigation is happening.
But the issues in Family Court impact people’s regular daily lives. For example: When will a parent get to have visitation with his or her children? How much child support must be paid? Who gets to live in the marital home? Who has to pay the mortgage for that home?
Because these issues are so immediate and important, people involved in divorce (and other Family Court cases) can’t wait until all the case is over for answers about how to behave. This is where the Motion for Temporary Relief comes in.
When a party files a Motion for Temporary Relief, he or she is asking the Court to make an immediate ruling on what should happen while the case is going on. Typical requests for relief include:
- determine who gets to live in the home during the case
- determine who has to pay for the home during the case
- restrain the parties from depleting marital assets or incurring marital debts during the case
- establish temporary spousal support obligation so that the receiving party can maintain his or her standard of living during the case
- determine who has custody of the children during the case
- establish a visitation schedule and child support
- restrain the parties from participating in “bad” behavior around the children (exposing them to boyfriends/girlfriends, drinking excessively, etc.)
The party requesting temporary relief will then schedule a hearing (often referred to as a “Temporary Hearing”) on that motion. South Carolina Family Courts try to schedule these hearings within a few weeks after the motion is filed because litigants need answers sooner rather than later. Because these hearings are scheduled so quickly, very little notice of the hearing is required for the other party. The other party may have only 5 business days’ notice before such a hearing, which can limit the time to prepare.
Temporary Hearings are usually 15-30 minutes long, which is not much time for both parties to present evidence to support their requests. Because the hearings are so short, South Carolina Family Court Rule 21(b) requires that any evidence be provided in the form of an affidavit. (An affidavit is a statement that is signed by the person making it, in the presence of a notary. The person making the statement is doing so under oath, just like if he or she appeared in Court and was placed under oath by the judge. If the person is dishonest, he or she is subject to the penalties for perjury.) Judges usually do not want testimony from witnesses at a Temporary Hearing – if there is witness who has important information to share with the Court, the judge expects an affidavit from that witness.
Additionally, South Carolina Family Court Rule 20 requires that each party submit a financial declaration at a hearing on a Motion for Temporary Relief. The financial declaration form can be found on the SC Judicial Department website.
During the hearing, each party is usually given a brief opportunity (usually less than 5 minutes) to tell the judge what he or she is asking for. Then the judge will review the written evidence provided by each party. Often the judge will issue his or her ruling at the end of the hearing, but sometimes judges want to take more time to review the evidence. When this happens, the judge will “take the matter under advisement” and send a letter to each party with his or her ruling, usually within a few days.
The judge’s ruling then becomes the Temporary Order. That Order controls what each person can do, or has to do, until the case is over and a Final Order is issued. Temporary Orders are not supposed to set a precedent for the rest of the case. They do, however, establish important rights and responsibilities for each party, and those can impact the evidence presented at a trial.
Motions for Temporary Relief and Temporary Hearings can be very important in South Carolina Family Court. That is why you should be properly advised by an attorney when preparing for them.
If you need help with immediate Family Court issues, or have been served with Notice of a Temporary Hearing, please call (843) 488-2110 to set up a consultation.