Unless one filed a specific request for advance suit costs, at most motions for temporary relief the family court will only award fees (if it awards fees) that cover work done through the motion for temporary relief. However in contested family court cases (and if one needs a contested motion for temporary relief the case is likely to be contested) preparing for the temporary hearing often represents only a small portion of the ultimate fee. There’s discovery, trial preparation and the trial itself. If one is only awarded fees up to the temporary hearing, one’s client may not have the ability to fund the remainder of the case. In situations in which the parties have significant income disparities, the high-income party may be able to extract unjustified concessions through the mere threat of continued litigation.
There’s a few methods one can use to obtain funds for the lower-income party to litigate or defend a family court case. The most obvious method is a motion for advanced suit costs. South Carolina code specifically allows for the award of “suit money pendente lite” in divorce actions. S.C. Code § 20-3-120. The code section would appear to make such awards mandatory in certain circumstances, “If such claim shall appear well-founded the court shall allow a reasonable sum therefor.” (emphasis added). S.C. Code § 20-3-140 applies the provisions of § 20-3-120 to separate maintenance actions:
In all actions for separate support and maintenance, legal separation, or other marital litigation between the parties, allowances of alimony and suit money and allowances of alimony and suit money pendente lite shall be made according to the principles controlling such allowance and actions for divorce a vinculo matrimonii.
S.C. Code § 63-3-530(38) authorizes the award of suit money in all other family court matters, specifically granting the family court authority:
to hear and determine an action where either party in his or her complaint, answer, counterclaim, or motion for pendente lite relief prays for the allowance of suit money pendente lite and permanently. In this action the court shall allow a reasonable sum for the claim if it appears well-founded. Suit money, including attorney’s fees, may be assessed for or against a party to an action brought in or subject to the jurisdiction of the family court.
It is unclear whether an award of “suit money” is in the nature of a request for temporary relief. I am of the opinion that it is not and, therefore, the rules of civil procedure require ten days notice and require the supporting affidavits to be filed with the motion. These affidavits not only need to document the amount of fees and costs incurred to date but also need to provide a reasonable and detailed estimate of the fees and costs that will be incurred to prepare for trial and trial. If experts will be utilized, affidavits from these experts on their anticipated fees are needed. Filing a request for a set amount of advanced suit costs without providing a detailed explanation as to the amount of future suit costs that are anticipated typically leads to a rejected request.
In marital dissolution litigation, when one’s client is unlikely to be awarded advanced suit costs but still needs funds to prepare for trial one can seek an advance against equitable distribution to help pay ongoing litigation expenses. Sometimes this situation arises when the primary wage earner has insufficient monthly income (especially after paying court-ordered support) to fund the ongoing litigation. Often the temporary order will freeze the use of marital assets to fund the litigation. However, when the parties have substantial liquid marital assets, the family court has [in my limited experience] almost always allowed the primary wage earner access to at least 10% of the liquid marital assets to fund the litigation.
In situations where the primary homemaker is unlikely to be awarded advanced suit costs [because (s)he has already been awarded substantial temporary attorney’s fees or is statutorily barred from alimony due to adultery], such spouses can also seek an advance against equitable distribution to fund ongoing litigation. Whenever supported spouses file motions for advance suit costs, they should, in the alternative, seek an advance against equitable distribution. While an advance against equitable distribution is not as desirable as an award of advance suit costs, this dual request increases the likelihood of such spouses obtaining funds to continue the litigation.
When a party to domestic litigation lacks the cash flow to fund a meritorious claim or to defend a weak claim, they can fund the attorney by borrowing funds from friends and family. Often their attorney may allow them to get substantially behind on fees in the hope of obtaining an award fees from the court at trial–which is basically allowing a client to obtain an unsecured loan from the attorney and is about as wise as offering unsecured loans to relative strangers. Rather than making the client a beggar or lawyer a banker, motions for advanced suit costs or for an advance against equitable distribution are allowable, and more intelligent, methods of funding the litigation.
