Definition: Temporary Divorce Hearing
I meet with people who have recently been served with divorce papers. Many times, included in this paperwork is a Motion and Notice of Temporary Hearing. This causes many questions because the Motion seems to ask for the same relief that is requested in the Complaint. So what is a temporary hearing?A temporary hearing is an opportunity at the beginning of a divorce or child custody matter where you can ask the court to grant you some specific relief before the final hearing. That means when you file for divorce you don't have to wait the entire nine months or a year to get to the final hearing when you need to get alimony or child support started or a custody order so you can enroll your child in school.In most counties, your temporary hearing will be held about 3-4 weeks from the time your request the hearing and generally lasts 15-30 minutes. At this hearing you will generally not testify, but your case will be presented through your lawyer's arguments and through affidavits submitted by you to the Court. After that brief time, the Court will make a decision that will remain in effect throughout your case.
When you've been Served with Divorce Papers
Yesterday we discussed the process of serving your spouse with divorce papers. Today we are going to discuss what to do when you have been served with divorce papers. Being served with divorce papers really just means that the divorce papers have been properly delivered to you in a manner defined by South Carolina law. You can check out yeseterday's post about service of process to learn more about the proper ways to serve someone with divorce papers in South Carolina.So, now that you have been delivered your divorce papers, you don’t know what to do. Well, the first thing you should do is make a note of when you were served the papers. The date and time will be very important in your divorce case because of strict time lines that apply to both you and your spouse and if you wait too long to respond to the papers you could forfeit all or some of your rights you have as they relate to this case.Next, you should read all of the paperwork that you received and make a note of all of the questions you have and what you agree and disagree with in the paperwork. Many times in a divorce case the plaintiff’s attorney will request a hearing at the very beginning of the case called a temporary hearing where they will request some specific relief such as child custody, child support an alimony. The rules only require you to get five days notice of this hearing so you may need to act quickly to schedule a consultation with a divorce lawyer in order to have them represent you at the temporary hearing.After you have read through the paperwork, you should set up a consultation with an experienced divorce lawyer to find out about the divorce process and more specific information about your case. At this meeting you will also find out how much that lawyer charges to handle a case like yours. If you hire an attorney then they will begin the process of formally responding to the Summons and Complaint by filing an Answer on your behalf. If you decide not to hire an attorney then you should begin preparing your Answer and filing it no later than 30 days from the date you were served.
Serving Divorce Papers on your Spouse
When you file for divorce (or child custody, etc.) in South Carolina you must serve a Summons and Complaint on your spouse before the Family Court will have personal jurisdiction over them and be able to grant you a divorce. So, how can your spouse be served? There are several ways all of which are governed by the South Carolina Rules of Civil Procedure and South Carolina Family Court Rules.
Acceptance of Service
First, in many no-fault or uncontested divorce matters, the defendant spouse will come to your lawyer's office and pick up the papers voluntarily and sign a document called an Acceptance of Service which is an affidavit to the Court stating that your spouse has freely and willfully accepted the divorce papers.
Service by Certified Mail
The second option is for your spouse to be served by Certified Mail. If you are serving your spouse by Certified Mail it must be sent Return Receipt Requested and Restricted Delivery. The return receipt will allow you to prove to the Court that your spouse received the documents and the restricted delivery means that only your spouse can sign for the papers and not their roommate or someone else at the home.
Personal Service
The third option is to serve your spouse personally. That means a process server will take the divorce papers and hand them to your spouse. This is done at their home, work, or other place and is proven by the process server filing an Affidavit of Personal Service stating the date, time and location of the personal service. Sometimes this is the only way to serve someone because they are intentionally trying to avoid being served papers and they will not accept the certified mail. When serving your spouse in this manner neither you, any other person who is a party to this action or your lawyer can act as the process server.
Service by Publication
Finally, if you are unable to locate your spouse and you have made a good faith effort to find them, you can petition the Court for permission to serve your spouse by publication. This means you will run a Summons and Notice of the hearing in a newspaper of general circulation in the place where your spouse was last known to reside. This notice will run one time per week for three weeks.Now that your spouse has been served the case has officially begun...
You Shouldn't Be Your Own Divorce Lawyer
Facing a divorce is difficult. It is probably one of the hardest things you will go through in your life. There are lots of emotions and questions. Then you are learning to live on your own again and budgeting based on a single income rather than two. I also understand that a divorce can be a very expensive proposition. You are faced with dividing up marital assets that you may have accumulated over decades of marriage, not to mention the attorney fees and court costs. This cost often leads people to attempt to represent themselves in the family court. Often times, people represent themselves even when their spouse has hired an attorney to represent their interests. In cases where there are no issues and no property to divide this might be okay, but if there are any issues that remain contested (child custody, support, visitation, alimony or property division) you should definitely have an attorney.(Aside: I know this looks self-serving coming from a divorce attorney, but I totally believe that it's true)
"A well-trained man knows how to answer questions; an educated man knows what questions are worth asking."- E. Digby Baltzell (1955)
I like this quote. It reminds me about what a lawyer is supposed to do - that is, to know which questions are worth asking. A lawyer also knows the rules in the courtroom. How to make sure you ask the questions that are worth asking so you tell the judge everything he/she needs to know in order to decide the case the best way possible for you.
"Just Right": A parable of neckties and communicating with your lawyer
This morning I was putting on a tie. It’s a court day that means suit and tie. I was feeling good so I went for the dark gray suit, white shirt (with my initials on the cuff) and the red tie. My power suit. I threw the tie around my neck, passed it over itself a couple of times and pulled it tight. It was a little long and hung down way too low. So I untied it, made a few adjustments and went back to work tying it again. This time – too short. I was frustrated. Having a tie that is tied too long is okay, especially if you are going to wear a coat to cover it up, but a tie that is too short just looks tacky and odd. It’s just an inch or two either way but looks bad nonetheless. But as we work on tying the tie several times we find out where we need to position the tie so that we can get it tied “just right.” The more information we learn the better off we are (we look).So what does this have to do with your family law case or litigation in general? The more information you share with your attorney about yourself and the issues involved in your case the better off you are going to be. Sometimes clients don’t share some of the bad information with their attorney because they are afraid it will hurt their case. They “forget” about their criminal background, that they were abusive to the children, that they had addictive tendencies, that they didn’t do what they were previously ordered to do and so on. They hope everyone else forgets about these things too. The truth is the opposing side in your litigation does not forget about those things. They want to use it against you in the litigation. When you fail to share that information with your lawyer, he has no way to prepare a defense. Now, your worries have come to reality. You were scared that this information would hurt your case and it has, two-fold. Not only has the other side used the information against you, but because you withheld it from your lawyer you have prevented him from being able to mitigate the damage that it causes.Back to the necktie: the more information your lawyer has about your case the better job he can do in presenting it to the court on your behalf.
Who's In the Court Room?
One of the concerns I hear from clients as we are preparing for both contested and uncontested divorce hearing is who is going to be in the court room with us? Family Courts, except for cases like child abuse and neglect matters, are open to the public and that means any one could be sitting in on your hearing.The reality is that in nearly every case you will only find a handful of people in the courtroom with you:
- Family Court Judge
- Court Report - the person who is recording everything that is being said in the courtroom to keep an exact record of what is happening in there.
- Deputy/Bailiff
- Lawyers
- Parties
- Witnesses
That's pretty much it. Occasionally, a law student, newly minted lawyer, or paralegal student will be observing cases as part of a class assignment or bar requirement to practice.
What Happens After my Temporary Hearing?
A temporary hearing in a divorce case can set the tone for the rest of the matter. It is probably good to note right here that the decision made by a judge at a temporary hearing is temporary in nature (hence the name) and it carries no weight as far as what the trial judge may or may not rule on. Therefore, if you are ruled against at the temporary hearing it isn't the end of the world. However, when a judge rules for or against a person at a temporary hearing it seems to give each party some false sense of power or weakness in the case.After your temporary hearing a temporary order will be prepared and signed by the judge and that sets the standard of conduct for the remainder of the litigation. Generally, in this period between the temporary hearing and the final hearing the parties will engage in discovery, potentially take depositions of key witnesses, mediate the case, and attempt to reach a negotiated settlement. If there are minor children involved, a guardian ad litem will be appointed who will perform an investigation into the issues surrounding the minor children.This process can take several months. Often, depending on the complexity of the case, it can last over a year. The final phase before the final hearing is the trial preparation phase where you and your lawyer will be preparing for trial by meeting with witnesses, preparing any necessary witness subpoenas, creating trial exhibits, etc. All of this leads up to the final hearing in your case.
Do You Get a Free Lawyer for Your Child Support Contempt Hearing?
One question I hear frequently is whether you can get a court-appointed attorney in your divorce or child support case. The answer is no. There is no constitutional right to have an attorney provided for you in a private family court matter like there is in a criminal prosecution or even in a DSS abuse and neglect case. This issue recently was before the South Carolina Supreme Court in Rebecca Price v. Michael D. Turner.In this case a father had previously been ordered to pay child support for his children and had not made a payment in over a year and a half. He was over $6,000.00 behind in his child support payments and the Court "ruled him in." Basically, when a non-custodial parent is ordered to pay child support through the family court the clerk of court monitors the cases and requires any person not paying on time to come to court and tell the judge their reason for not paying as ordered. Mr. Turner's excuses were that his failure to pay was due to incarceration, drug addiction, unemployment, and injury. At a hearing like this the defendant could be sentenced to one year in jail for civil contempt of court. In Price v. Turner, the defendant was sentenced to one year in jail, but he could get out of jail sooner if he paid the total child support arrears that he owed. Mr. Turner appealed this ruling because he did not have an attorney present at the hearing and he asserted that he has a constitutional right under the Sixth and Fourteenth Amendments of the U.S. Constitution.The SC Supreme Court held that there is no right to legal counsel for a civil contempt case. The difference between civil contempt and criminal contempt is that the person sentenced to incarceration for civil contempt can purge their prison sentence by doing the activity that they previously refused to - in this case, pay child support. In the case of criminal contempt, you cannot purge your jail sentence - you must serve the sentenced time in jail.If you find yourself in the position that you are behind on child support and you are going to a Rule to Show Cause (contempt) hearing in the Family Court, you will not be offered to have a court appointed attorney represent you so you should either be prepared to represent yourself or retain a lawyer to defend you prior to your hearing.