How Does the Family Court Litigation Process Work?

Generally there are two ways to go about achieving one’s goals in family court: negotiation (reach an agreement) or litigation (go to trial and have a family court judge make the decision).

Uncontested divorces are one of the few times when litigation is required even if the matter is not contested. In most cases–where agreement is likely and there are no pressing time issues–negotiation is the best option. An attorney can assist clients in advising them of their legal rights and options, helping negotiate and draft an agreement and making sure that the agreement is properly executed and likely to be approved by the court (i.e., made into a court order). A family law agreement that is not made into a court order lacks the enforcement mechanisms that make family court orders so powerful. An outline of issues that a typical marital dissolution agreement might address can be downloaded here: Separation agreement issues.

Once an agreement is properly executed, one may file the agreement with the family court to ask that it be made an official court order. There will be a hearing before a family court judge to determine whether the agreement should be approved. The judge will examine whether the agreement is fair, is made freely and voluntarily and made upon full financial disclosure. South Carolina has a form called a financial declaration that, when properly filled out is sufficient to show that full financial disclosure was provided. If neither party objects to the agreement at the time of the hearing to approve it, and if the court finds that the agreement is fair, was made freely and voluntarily and made upon full financial disclosure, the court will approve the agreement. Even in cases in which one party to the agreement objects at the time of the hearing to it being made a court order, the court may still make the agreement an order if the court finds that the agreement is fair, was made freely and voluntarily and made upon full financial disclosure. If the agreement is approved by the judge, it will become an official court order, subject to the court’s enforcement and contempt powers. See How do I enforce a court order?

Where agreement is not possible or there are pressing time issues, contested litigation is generally required. These cases begin with the filing of a summons and complaint explaining what it is that the party is requesting. That summons and complaint must then be formally served on the opposing party to start the litigation process. This filing is often accompanied by a motion for temporary relief, which is simply asking the court to issue an order on certain issues (generally child custody, support and visitation, payment of marital debt or possession of marital assets and temporary attorney’s fees) prior to trial. As cases can take from six months to two years (or more) to get to trial, the relief the court orders at the temporary hearing can fix the rights of the parties for a substantial period of time.

At the temporary hearing, the court will rely upon sworn witness statements (affidavits) rather than live testimony. An explanation of how to draft affidavits can be found here: How Does One Draft an Affidavit? Each party or their attorney will be give 5-15 minutes to argue their position and explain to the court the temporary relief being sought. The court then issues a temporary order fixing the parties’s respective rights and obligations pending trial. The court’s temporary order carries no weight and cannot be used as evidence at trial. Rimer v. Rimer, 361 S.C. 521, 527 n.6, 605 S.E.2d 572, 575 n.6 (Ct. App. 2004) (“Temporary hearings are not de facto final hearings, and we adhere to the principle that temporary orders must be without prejudice to the rights of the parties at the final hearing.”).

Because temporary orders can generally only be changed upon a showing of substantially changed circumstances or until trial, a temporary hearing is often the best opportunity a party may have to obtain the relief he or she is seeking (or stop the opposing party from obtaining requested relief). Substantial effort is often required to adequately prepare for temporary hearings.

After the temporary hearing (or if there is no temporary hearing, once the complaint is filed and served), both parties will try to learn more about the other’s case. Often this can be accomplished through what is called formal “discovery.” Discovery includes the right to question witnesses or the other party under oath (depositions), request records from the other party (requests for production), request records from non-parties (subpoenas), request the other party to admit certain facts (request for admissions) and request written responses answered under oath to written questions (interrogatories). For more information on discovery, see: What is Discovery? If custody or visitation is contested, the court may appoint a guardian ad litem to represent the parties’ child or children. That guardian investigates the contested custody and visitation issues and represents the child or children’s best interests in all court proceedings. For more information on guardians ad litem, see: The Brave New World of Guardians Ad Litem.

In most cases, even initially contested cases, the parties eventually reach an agreement without the necessity of a trial. At that point, the procedure for ending the case is substantially similar to the procedure of obtaining approval of an agreement (as described above). In cases in which no agreement can be reached (or only partial agreement can be reached) ultimately, the case next goes to mediation. Beginning in 2016, South Carolina began requiring mediation for all contested family court cases statewide. If the parties cannot agree on a mediator, they can ask the court to appoint one.

If the case does not settle in mediation, either party may request trial dates. Trial dates need to be requested within 365 days of the case being filed or the case is subject to dismissal. At trial, each party has the right at trial to call witnesses and seek the introduction of admissible documents or other records. Each party has the right to cross-examine the other’s witnesses. After trial is completed, the court will issue an order fixing the parties’ respective rights and obligations. If a divorce is sought, it can be obtained as part of the relief sought at trial or, when there is not yet grounds for divorce, a subsequent divorce action may be filed.

Some issues–such as property division, grounds for divorce, and entitlement to alimony or suit costs–can only be litigated once. Other issues–such as child custody, support, visitation or alimony modification–can be modified if a substantial change of circumstances occur but these issues are not easily modified. The representation of competent counsel can minimize the risk that these important rights are not lost.

An excellent flow chart prepared by my colleague, Melissa F. Brown, describing this process can be accessed here:

For more information on property division:

The Auction Method of Equitable Distribution

For more information on alimony:

Your Alimony Aptitude: What type of alimony do you need and how will the court see it?

Lump Sum Alimony

Contingency Fees and Interest in Collecting Back Child Support and Alimony

Using Financial Records in Support Cases

Representing the Innocent Primary Wage-Earner in Custody and Divorce

For more information on child custody:

Getting the Child Heard

An Iconoclastic View of the Guardian ad litem’s Role