THE MCMILLIAN LAW FIRM SERVING CHARLESTON, SC AND SUMMERVILLE, SC IN ALL MATTERS CONCERNING DIVORCE AND FAMILY LAW
One of the effects of divorce is that one, if not both parties, will experience a dramatic shift in their personal economics. Instead of having the security of a two income household that helps offset the payment of bills, food, and child care, their are now two separate households operating independently. However, the same set of obligations still exist. Now there are two house or rent payments instead of one. Who is picking the kids up from school? Who is keeping the original home? How are credit cards and other bills going to be divided. In South Carolina, in order to address these issues and establish an economic and social system within the family as soon as possible, Family Courts, upon request, will issue a Temporary Order. The aim of this article is to explain what issues are addressed in a Temporary Order and how long does it take to have one issued.
THE REQUEST FOR TEMPORARY AND IMMEDIATE RELIEF
The process for getting a Temporary Order is a case study in why someone needs an attorney in any type of Family Law litigation. When any type of marital litigation is initiated in Family Court, the Motion for Temporary Relief is also filed at the same time. Procedure wise, it is an additional document and an additional request made to the Court in addition to the Summons and Complaint that initiated the litigation.
The notice requirement for a hearing in Family Court on a Motion for Temporary Relief is 5 days!! This notice requirement can be shorter if an emergency situation exist. What does this specifically mean? It means that the party you are "suing" in Family Court is only entitled to 5 days notice of a hearing. In my experience, most Family Court hearings for Temporary Relief are heard within the first 30 days of the commencement of the litigation. However, the possibility does exist . . . and it has happened where this hearing on the request for Temporary Relief has occurred within 10 days of the filing of the pleadings. In most cases, the Clerk of Court's office will issue you a hearing date for your Temporary Relief request at the time that the litigation is commenced and the Motion for Temporary Relief is filed. At that point, you are required under the South Carolina Family Court Rules to provide a notice of this hearing to the other party no later than 5 days prior to the Hearing.
WHAT ISSUES ARE ADDRESSED BY A TEMPORARY ORDER
The "genius," for lack of a better term, of the Motion for Temporary Relief and the Temporary Order is that it does set the boundaries on both sides of the marital litigation for the remainder of the journey through the Family Court system. A Temporary Order will establish temporary child custody and child visitation schedules. A Temporary Order will establish who is going to pay what bills from the marriage. The Temporary Order will establish any alimony or spousal support to be paid. The Temporary Order will establish who gets to stay in possession of the marital home. The Temporary Order may establish a temporary restraining order so that the litigation can proceed peacefully between the parties. In short, the Temporary Order will address all issues that will be ruled upon by the judge at the Final Hearing. The Temporary Order established the rules until a Final Hearing can take place.
EVIDENCE TO BE PRESENTED AT A TEMPORARY HEARING
The other reason that someone desperately needs an attorney to help navigate this process is the specific evidence rules that apply at hearings for Temporary Relief. You do not get to "tell your story" at the Temporary Hearing. The evidence that will be considered by the Judge at the Temporary Hearing is usually confined to the pleadings (the facts that you used as the basis for your request filed with the Court in your Motion), affidavits (sworn statements in writing that reinforce facts and state your conclusions as to why your relief should be granted), and financial disclosures (Family Court requires both parties to provide a full financial disclosure under penalty of perjury).
Unlike other Motions that are to be heard in front of the Family Court, there is no requirement for the affidavits to be presented for review by the other party prior to the hearing. In addition, the Temporary Hearing, in most cases, will last anywhere from 15-30 minutes tops! This is not a full trial on the merits. The Family Court judge is going to read the pleadings, read the affidavits, review the financial disclosures, maybe ask the lawyers on each side a few questions and BAM . . . that's it and he / she will issue an Order. The Temporary Hearing is truly "trial by ambush" in the purest sense of the word. It is obvious that the very nature of the Temporary Hearing requires that all the ducks are in a row and that you a truly prepared for a whirlwind experience.
THE IMPORTANCE OF THE TEMPORARY HEARING
As a lawyer, it is my experience that two important things come out of a Motion for Temporary Hearing and a Temporary Order. First, it is, on a limited basis, a trial run on the merits of the larger case. Some of the issues that are going to be prevalent at the Final Hearing can creep into the Temporary Hearing and as a lawyer, I may be able to get a feel on where the judge is going to fall on my arguments down the road. Second, and most importantly, a lot of times (not always), the Temporary Order and the obligations set forth in it are what is adopted permanently into the Final Order. It is potentially a "head start" on where a client wants to end up at the end of the litigation.
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
The Temporary Hearing is a very nuanced event in Family Law that someone should not attempt to navigate with legal counsel by their side. The establishment of a Temporary Order can have tremendous ramifications on the final disposition of a Family Law matter. If you need immediate relief from the Family Court or have been served a Notice for a Temporary Hearing, please seek legal counsel immediately!!
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today.