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.
