The idea of filing an action in the Family Court system in South Carolina,
whether it be for
divorce,
asset division,
support, or
child custody and
visitation matters, may appear to many people to be a quick and easy task. Nowadays,
more and more forms are being made available to the public in an effort
to allow litigants to represent themselves without the advice or counsel
of a competent lawyer. While at first sight this may appear to save the
self-represented litigant time and money, the fact is that a party’s
legal rights can be permanently and detrimentally altered without the
appropriate guidance or representation when engaged in the Family Court system.
First, there are occasions when the parties are able to resolve all contested
matters between them culminating in a settlement agreement that can quickly
and easily be approved by the Family Court. However, this is assuming
that all terms are fair and equitable to the parties based upon the circumstances,
are in the best interest of the child or children involved (if applicable),
and each party understands the terms into which he or she is entering
on a final basis, among other factors. Make no mistake, the Family Court
will not merely “rubber stamp” an agreement simply because
it is presented to a Judge for approval. The Judge will ask each party
a series of questions, along with the ones mentioned above, as well as
review each party’s financial declaration that must be sworn to
and presented by each party at the time of the hearing. Failure to file
this document may preclude approval of the parties’ agreement. Assuming
there is an agreement, and perhaps a ground for divorce existing at that
time, the case can be completed in one hearing and potentially within
15 to 20 minutes or so.
However, if your case is a contested one, meaning there is no meeting of
the minds of the parties as to how to resolve all issues presented, the
case must be presented to the Family Court Judge for a determination of
these issues. The process involved for a contested case can be very lengthy,
costly and an emotional roller coaster as the case progresses forward.
Based upon certain circumstances, there may be no choice but to require
the courts to resolve your matter.
The first hearing is a temporary hearing and besides the final trial in
your case, this is the most important hearing for which to be prepared.
At the temporary hearing, the Judge will review the parties’ affidavits,
including supporting affidavits of his or her position, financial declarations,
and any exhibits in support of each party’s case in making a ruling
on a temporary basis. This ruling will dictate how the parties will live
pending a final order in the case. No testimony is taken at this hearing,
which is why the substance of each party’s submissions is imperative here.
Once the Judge issues his or her ruling, the parties then undergo the discovery
process, or evidence gathering phase, in support of each party’s
case. This may be through written documentation, depositions, and the like.
Before a case ever goes to trial, the parties are required to undergo mediation
with an agreed upon or court appointed mediator. A mediator is an independent
third party who attempts to resolve the differences between the parties.
It is typically necessary to have your evidence prepared for mediation
to not only assist the mediator in resolving the case, but so that each
party is enlightened as to all financial, property, or child issues that
may substantively affect the case prior to entering into any agreement,
if that is a possibility.
If, after this process, the case still has not resolved itself, trial is
the final phase at which time each party, and his or her witnesses, testify
as to the contested and relevant matters in the case before a trial judge.
The trial Judge could, in fact, be one who at some point in time has heard
a matter in the case before. The Judge may be a resident Judge of the
particular county in which the case is pending or a Judge from another
county across the State. The bottom line is that trying a case can put
any litigant into the world of unknown as it is almost impossible to predict
what a Judge will do on any given day.
In short, while entering into an Agreement can be the simplest and most
cost effective way to handle a contested matter, sometimes it is just
not feasible to do. Regardless, it is important to seek and obtain advice
from competent and experienced counsel in the field of
family law. Failure to do so could serve to jeopardize certain rights that have life
long effects to the point of no return.