ANATOMY OF A FAMILY COURT CASE
The purpose of this summary is to inform our clients of the main stages, or anatomy of the typical Family Court case. This summary is not intended to be all inclusive or to deal with every situation that may arise in matrimonial disputes, but rather is intended to give a general overview of the significant events that typically occur or may be encountered in a Family Court case. Your attorney will discuss with you how the particulars of this summary apply to your case.
I. INITIAL INFORMATION GATHERING AND DECISION MAKING:
Within two weeks of our first meeting, we attempt to gather as much information as possible and to make the major decisions on how the case will be handled. This stage of our involvement is most important and the cooperation of the client is indispensable. Lawyers are sometimes referred to as "brick masons"-- we build the walls, but the client supplies the bricks.
At our initial meeting you will be asked to fill out three basic information forms which enable us to check our records to make sure that we do not have a conflict of interest and to allow us to obtain the basic information (names, addresses, etc.) that will be used later on in the case to prepare letters, pleadings, agreements and the like. It is most important that the client be accurate with names, spellings, dates, and the like. Serving a pleading with the wrong date of marriage or a child's birthday incorrectly stated only invites criticism. A diligent effort should be made to avoid that type of error.
At the initial meeting you will be asked to provide more detailed information and complete more forms, such as the Personal Information Worksheet, Financial Declaration, and Client Novel, which will be filled out by you, hopefully, within the first two weeks of our initial meeting. It is most critical that these documents be completed accurately as they will be relied upon by your attorney and the Court.
We will also provide you with a list of documents that you will be required to gather. That list will be discussed with you at your initial meeting. In addition to meeting with the lawyer who will be representing you, paralegals will also work on your case. The paralegals will work with you throughout the case assisting in the gathering of information, helping to answer questions that you might have, and assisting your attorney in the preparation of your case.
It is our goal within the first two weeks to have sufficient information and documentation in order to make major decisions as to how the case should be handled. This means, for instance, whether or not settlement overtures will be made, whether suit will be filed, what relief will be sought and overall what we hope to accomplish in our representation. These goals may change as we move forward in the case and become more educated in the facts and law that apply to your case.
II. FILING OR DEFENDING SUIT IN THE FAMILY COURT:
If circumstances are such that it is necessary to file suit, family law related matters are heard and determined in the Family Courts of the State of South Carolina. There is a Family Court in each of the counties of our State. Those counties are grouped together in Judicial Circuits. There are fifty or more different Family Court Judges' and, funds permitting, they are rotated between those circuits.
In some States, family law cases are heard by Judges who also hear other civil and criminal cases. In our State we have the benefit of Family Court Judges who do nothing but Family Court work. From our viewpoint, that is a plus as our judiciary hears Family Court cases by choice rather than as an imposition.
The case itself must be initiated by a Summons and Complaint. The Summons is the document that gives your spouse notice that he or she will have thirty days in which to serve responsive pleadings, such as an Answer and Counterclaim. The Complaint sets forth the factual and legal basis for your claims, which we sometimes have our clients verify under oath. Extensions of these deadlines are frequently granted.
The Summons and Complaint, once approved by you, are then filed in the Clerk of Courts Office in the County where the action will be litigated. A $175.00 filing fee is required by the Court. Upon filing, a Docket Number is assigned to your case and must be written on all pleadings and motions filed in the Court thereafter. Many Motions require a $25.00 filing fee.
Your spouse must then be served with the Summons and Complaint, personally. Service is typically done by a private process server or the sheriff or by your spouse accepting service personally or through his or her attorney. Once your spouse is served, he or she will have thirty days in which to responsively plead, which generally consists of an Answer and Counterclaim. The Answer and Counterclaim sets forth the facts and law upon which your spouse will rely in defending against our law suit.
You will then have thirty days in which to reply to the Answer and Counterclaim. Your Reply will set forth your factual and legal arguments as they apply to the Answer and Counterclaim.
In addition to the Summons, Complaint, Answer and Counterclaim and Reply, other Motions may be filed from time to time. Some examples are as follows:
- Motion To Dismiss: A Motion to Dismiss is generally addressed to a Complaint, Answer, Counterclaim, or Reply. It challenges the legal sufficiency of those pleadings. In other words, even if the facts set forth in the particular pleadings are true, a Motion to Dismiss generally contends that the relief requested cannot be granted for one legal reason or another.
- Motion to Make More Definite and Certain: When allegations are made against you, such as physical cruelty or adultery, we sometimes file a Motion to Make More Definite and Certain in order to determine specifically what acts of misconduct are complained of in the pleading. For instance, sometimes we ask for the name of the alleged paramour and the date, time and place of each act of adultery. With regard to physical cruelty, we sometimes ask for specifics as to the date, time and place of the alleged incident, and the injuries sustained. The ultimate purpose of a Motion to Make More Definite and Certain is to enable us to prepare defenses to specific acts of misconduct and also to limit our opposition to specific acts of misconduct at the time of trial.
- Motion for Discovery: In the Family Court, discovery (Depositions, Interrogatories, Production Requests, etc.) is not allowed as a matter of right. A Motion or an Agreement allowing discovery must be made to have the right to engage in discovery. Discovery will be more fully explained below.
- Motion for Appointment of Guardian ad Litem: In actions involving seriously contested custody or visitation matters, the Family Court generally requires that a Guardian ad Litem be appointed to represent the interest of the children. Children are minors and thus cannot make legal decisions themselves. A Guardian ad Litem is a person independent of you and your spouse who is appointed by the Court to represent the children. Typically, the Guardian appointed is an attorney. During the case, the Guardian ad Litem makes decisions for the children, may testify on behalf of the children, and may ask questions of you, your spouse and the witnesses, in and outside the courtroom. The Guardian may also make recommendations on issues such as custody, visitation and child support, but only if requested by the Court. The Guardian ad Litem's role is very important and can be determinative of the outcome of your custody or visitation case. You should treat the Guardian ad Litem like a "second Judge".
III. ENGAGEMENT OF EXPERTS:
In many instances, it is practically impossible to settle or litigate a family law case without the assistance of experts. If your case warrants the engagement of an expert, we will generally advise you to do so.
When financial issues are at stake, we generally advise that you hire a Certified Public Accountant with expertise in the family law setting. Accountants are generally used in the family law area to value businesses and professional practices, to ascertain and determine incomes and cash flows, to trace property and investments, to give tax advice, and to otherwise assist with the financial aspects of the case.
Where there is a dispute as to property values, we generally advise that real estate appraisers and personal property appraisers be hired to appraise the real estate and personal property that will be at issue in the case. Again, we prefer to hire appraisers who have experience in the Family Court and whose opinion is respected by the Family Court Judges. The case law governing family law matters, requires that competent evidence be presented to the Court -- and in the absence of adequate proof from you, the Family Court Judge is at liberty to accept the values put forth by your adversary (which most likely will not be to your benefit).
When serious issues of child custody or visitation are in contest, we generally recommend that an experienced clinical psychologist be hired to evaluate the family and to assist in making the child custody and visitation decisions. We also recommend using clinical psychologist to work through custody and visitation problems, which may defuse the contested nature of those issues.
Where infidelity is suspected, we generally recommend that a licensed and respected private investigator be engaged to document adultery. We recommend against self-help -- we do not want our clients conducting surveillance themselves as surveillance is dangerous, the proof you secure may or may not be admissible or useful in Court, and if you bungle the surveillance, it will make it more difficult for a private investigator to come behind you and secure the necessary proof. Proof of adultery can be critical as in most instances competent evidence of adultery bars alimony.
Any fees or costs involved in using experts are strictly between you and the expert. The firm does not involve itself in setting or collecting fees for the experts.
IV. PENDENTE LITE HEARING:
A pendente lite hearing is generally scheduled early in the case to stabilize the family. After a brief summary hearing, which is done on Affidavits only, a Family Court Judge will decide who will live in the marital home, who will have use and possession of household goods, cars and the like, as well as issues involving custody, visitation, child support, alimony, health insurance, discovery, attorney fees and other issues.
A pendente lite hearing is generally not necessary or recommended if the existing status quo is consistent with that which you request.
Pendente lite hearings are somewhat risky as the Court must rely upon the sworn Financial Declaration and Affidavits presented at the hearing. Those Affidavits and Financial Declarations are exchanged at the hearing and you will have little if any opportunity to rebut or challenge what your spouse presents at that hearing. The Court will then make its decision after hearing brief (if any) arguments from the attorneys.
If at all possible, it is generally best to attempt to resolve the pendente lite issues without a hearing.
V. FORMAL DISCOVERY:
As noted above, formal discovery is not allowed in the Family Court as a matter of right. However, when a Motion for Discovery is made, most Judges will grant the Motion.
The purpose of discovery is to find out the key points and elements of your spouse's case. The other purpose is to "lock them in", so whatever their position is it remains constant and we have the ability to prepare defenses. What is said and done in discovery should be taken very seriously as discovery responses are admissible in evidence at hearings in your case.
Discovery is generally necessary whether the case is to be settled or litigated. In order to properly settle the case, we must have a general awareness of the facts involved in your case, particularly the financial facts. If the case is to be litigated, discovery is necessary in order to properly prepare and present the case at a final hearing. Family Court cases are not necessarily won by who is right; but, rather, are often times won by who does the better preparation.
Formal discovery under the South Carolina Rules of Civil Procedure generally consists of the following:
- Depositions on Oral Examination: Depositions on oral examination are typically taken at one of the attorneys offices in the presence of a Court Reporter and while the deponent is under oath. You and your spouse have the right to be present (we prefer you to be present). The attorneys will ask questions at the deposition and the witness will give answers under oath. Depositions may be taken of you, your spouse and any of the witnesses involved in the case. Depositions are typically rather expensive as both parties are represented by attorneys, and the Court Reporter will take down and thereafter transcribe all of what is said. Court Reporters generally charge by the page, plus an appearance fee. It is not unusual for a deposition transcript to run several hundred pages, at a cost of between $200.00 and $1,000.00.
- Interrogatories: The South Carolina Rules of Civil Procedure allow for written Interrogatories or questions to be asked. Interrogatories generally ask questions calculated to determine who the key witnesses will be, who will be the experts, what the witnesses and experts will say, what documents will be used in the trial, and other specific questions directed to the key issues involved in your case. A maximum of fifty questions may be asked, including sub-parts. Those questions must be answered under oath within thirty days from the date the Interrogatories are served.
- Production Requests: Production Requests enable us to require the production of documents and other tangible things that are pertinent to your case. This would typically involve tax returns, appraisals, detective reports and photographs, financial statements, bank records, medical records, and the like. Production Requests must be responded to within thirty days from the date the Production Requests are served.
- Requests to Admit: The South Carolina Rules of Civil Procedure also allow for us to present statements of fact and law to your opponent and request that they either admit or deny those statements. If admitted, that eliminates the need for further proof on that issue (except divorce grounds which must be independently corroborated in order to avoid collusive divorces). Requests to Admit must be responded to within thirty days from the date the Requests to Admit are served.
VI. LENGTH OF CASE:
Typically, Family Court cases take twelve to eighteen months to complete in the Family Court, with exceptions.
The length of the case depends on many factors, many of which are not within our control or your control. It will depend in large part upon the issues that you and your spouse chose to contest. The more issues, and the greater complexity, the longer the case will take to complete.
We encourage you to attempt to reach agreement on as many issues as possible. The process of fully litigating each issue can be very lengthy and expensive and should be reserved for only those issues to which there should be a true disagreement.
VII. SETTLEMENT EFFORTS:
As attorneys in the matrimonial field, our first efforts are always directed to determine if a possibility of reconciliation exists. Only when you are satisfied that no such possibility exists do we attempt to move forward. Only clients who are certain that their marital relationship should be terminated, should proceed in a divorce action. Divorce cases are devastating to the family, emotionally draining, and expensive. A divorce should be obtained only as a matter of last resort.
When you are certain that no possibility of reconciliation exists, then and only then do we move forward. The disputes that you have with your spouse will either be concluded by a written agreement or by the Court making the decisions for you and your spouse regarding child custody, child visitation, child support, alimony, property and debt division, tax matters, attorney fees and the like.
Under South Carolina law, marital differences, with the exception of the actual divorce, can be resolved by written settlement agreements. In order for an agreement to be truly valid, it must be signed by both parties, each of whom should be represented by separate counsel, entered into after full financial disclosure, freely and voluntarily without duress, coercion and overreaching, and approved by written Order of the Court after due hearing.
It is possible to resolve all issues except for the grounds for divorce. In that situation, a written Marital Settlement Agreement is signed by you and your spouse, and then Court-approved. The divorce may be obtained in a subsequent proceeding.
Under South Carolina law, there is no such thing as a legal separation. You are either married -- or not married. There is no in between. You should not date until you are actually divorced.
In order to have a settlement, there must be an open exchange of financial information so that both parties are sufficiently aware of all income, debts, and assets involved in the case. It is usually very helpful to have a certified public accountant assist in that financial disclosure, and with the analysis of the information provided and of the offers and counter-offers that are typically made.
There are non-litigation means available to resolve matrimonial disputes. Trials can be very expensive, time-consuming, and extremely stressful to the parties involved. Mediation and Arbitration are two common alternatives to litigation in resolving these types of disputes. As your case unfolds, your attorney will evaluate the appropriateness of proposing an alternative means for addressing these issues.
Settlement is preferred over litigated results as a settlement is generally less expensive to achieve from a fee and cost standpoint, and also provides certainty. As one Judge typically says, you and your spouse can resolve your differences with surgical precision -- but a Judge will use a meat axe.
VIII. MOTIONS AND CONTEMPT HEARINGS:
Once the case is instituted in the Family Court, there will typically be Motions and contempt hearings.
The Motions hearings have been discussed above. They involve Motions for discovery, the appointment of a Guardian ad Litem, Motions to Strike and the like.
Motions or Rules to Show Cause for Contempt are also typical. Contempt matters generally involve enforcement of prior Court-approved Agreements or Orders. For instance, if your spouse does not pay the support ordered, the Court has the power to not only order the payment of support, but can also find your spouse in contempt, sentence him or her to a period of confinement in a local jail of up to twelve months, impose a fine, or both.
Family Court agreements and Orders should be treated reverently. The penalties involved in failure to comply can be substantial.
IX. SUBSTANTIVE LAW:
In South Carolina , the practice of Family Law is governed by a large body of case law (decided by our appellate courts), statutes (created by our Legislature), and Court Rules (promulgated by our Supreme Court).
The law governing domestic relations is an ever-changing body of law. We attempt to keep ourselves apprised of these changes as they are made. We subscribed to many periodicals and services to enable us to do so.
Each case is unique (legally, factually, or both), with its own nuances and peculiarities. Rarely are individual cases alike and subject to comparison.
Throughout your case, we will discuss with you the law as it specifically impacts upon your case.
X. STATUS, PRETRIAL & FINAL HEARINGS:
As the case is progressing towards a final hearing, the Court will schedule a status or pretrial hearing. The purpose of a status or pretrial hearing is to make sure that the case is ready for trial and that all reasonable efforts have been exhausted to settle the issues that are otherwise to be determined by the Court. A status conference is more informal than a pretrial hearing. Typically, at a pretrial hearing, an up-to-date Financial Declaration and pretrial brief are required. Also, at a pretrial hearing, your presence is also required in the event that the Court or attorneys need your input, particularly on the issue of settlement. Status and pretrial hearings are usually conducted in the Judge's chambers with only the attorneys, Judge and Guardian ad Litem present (you will typically remain in the Family Court waiting area).
After all discovery has been completed, and all efforts to settle the case have been exhausted, a final hearing will be set. The length of that final hearing will depend upon the issues.
Some final hearings last only two to three hours. Others last five or more days. Typically a fully contested divorce case will take one to five days of trial time to complete on the merits. When the issue of custody is also contested, that generally will enlarge the necessary time by one or more days, or weeks.
After the Court has heard all of the evidence, the Court will sometimes request briefs or proposed Orders.
Under the Rules of Court, the Court is supposed to make its decision within thirty days of the final hearing. Sometimes Judges announce their decision in the courtroom. Other times they take the matter under advisement and later advise the lawyers, either in writing or by joint telephone call, of the Court's decision. If the Court takes the matter under consideration, it is typical that the Court will take anywhere from a week to four weeks to make its decision.
Once the decision has been rendered, one or both of the lawyers will be requested to draft an Order for the Judges' signature. That Order will set forth the Court's findings and rulings on the issues.
XI. POST-TRIAL MOTIONS:
After the Court has rendered its written decision, we will have ten days from the receipt of that Order to determine whether or not we wish to challenge any part or all of the Order by post-trial Motion.
If we determine that it is best to challenge the Order, then it will be necessary for us to do a Motion to Reconsider. In such a Motion, we are pointing out specific errors to the Court or omissions, and requesting that the Order be amended accordingly. The Court can dispose of that Motion by hearing, or without hearing just on briefs.
Within thirty days of the Court issuing its last Order in the matter, you have the right to appeal to our appellate Courts. That appeal is initially made to the South Carolina Court of Appeals.
Appeals are very expensive and generally take somewhere between twelve and eighteen months to complete. The appeal process involves securing transcripts of all of the proceedings in the Family Court, copies of the exhibits and the like, and then having all of the pertinent portions of the lower Court records bound into volumes and represented to the appellate Court. That becomes the Record on Appeal.
Once the Record on Appeal is completed, the spouse who appeals must present a written Appellant's Brief. The opposing spouse then has the opportunity to present what is called a Respondent's Brief, to which the appealing spouse has the right to enter a Reply Brief. These Briefs set forth your legal position on the facts and law as they apply to your case.
In addition to appealing final decisions, there are also procedures to go before the appellate Court to challenge the implementation of Orders, such as by a Supersedeas or Petition for Stay. Those are called extraordinary writs.
After the Record on Appeal and Briefs has been completed, the appellate Court will then typically set the case for oral argument. In the Court of Appeals oral argument takes place before a three Judge panel. In the Supreme Court, oral arguments are made before the full Court (five Justices). In some instances, the appellate Court can dispense with oral argument and decide the case upon the record on appeal and briefs.
The appellate Court then issues its opinion, which it may do by published or unpublished opinion. Typically, that opinion will affirm, reverse or reverse in part and affirm in part.
The first step of the appellate process begins with the Court of Appeals. Then there is a limited right of appeal from the Court of Appeals to the South Carolina Supreme Court on certiorari.
If the case is affirmed on appeal, then the Family Court Order will become the final Order in this case and will then be implemented.
If the Family Court Order is reversed or modified, the appellate Court can direct specifically how the Family Court Order is to be modified, or it may remand the case to the Family Court for further proceedings consistent with the appellate Court's opinion. Appeals are generally considered expensive as you must order and pay for transcripts of the lower Court proceedings, which must then be assembled and duplicated in order to become the Record on Appeal. The Briefs are labor intensive and take many lawyer hours to complete. Appeals should be taken only when you are truly aggrieved by the lower Court's decision and the economics of the situation justifying the cost.
XIII. CLEAN UP AND IMPLEMENTATION:
When your case has been settled by agreement, or litigated to a conclusion by the Court, we then make an attempt to bring closure to the case by writing letters detailing who is to do what and making sure that appropriate deeds have been completed and recorded, Qualified Domestic Relations Orders are appropriately transmitted dividing retirement plans and the like, and important papers are returned to the client.
Under South Carolina law, a will is voided upon divorce. While this law firm does not generally do wills or trusts, we will be happy to refer you to an attorney who specializes in that area of the law.
After the case is completed, there may come a time when your spouse does not do what has been agreed or ordered. If that is the case, we generally will request compliance on your behalf, if you ask us to do so. We will then bring an appropriate enforcement action in the Family Court, as discussed above.
In certain instances, the Family Court can modify prior agreements and Court Orders. Generally speaking, matters relating to the divorce and property division are not subject to modification. However, certain forms of support, particularly permanent periodic alimony and child support are subject to modification based upon a substantial change of conditions. Also, all matters relative to children (i.e., child custody, child visitation, child support and the like) are modifiable based upon changed circumstances which have materially affected the children.
It is our general advice to do what you want to do the first time around -- it is much easier to get the job done in the first instance, rather than to come back later and to change a prior Order.
XVI. FEES AND COSTS:
After we have some general idea of what you would like us to do on your behalf, we will discuss the issues of fees and costs. A written fee agreement will be signed by you and the attorney who will be primarily responsible for your case. That fee agreement will generally provide for a retainer, against which we will bill at our prevailing hourly rates, plus costs, as detailed in the fee agreement.