Dec 14

Motion for Temporary Relief

Written by: Megan Dell

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Temporary ReliefOne of the most common hearings in South Carolina Family Court is a hearing on a Motion for Temporary Relief. These motions are intended to establish how things will be while the case is open but before a final conclusion is reached. Many lawyers automatically file these motions at the same time that they file a new case.

The hearing on a Motion for Temporary Relief is often referred to as the “temporary hearing.”

The goals of a divorce action are to legally end the marriage, divide any property, determine whether alimony should be awarded, and determine custody and visitation of children. But there is a period of litigation when both parties are trying to prove how much property they’re entitled to, who should have custody, etc.

This is the “temporary phase” of a South Carolina Family Court action – it starts when the case is filed and ends when a Final Order is issued.

Why is a Motion for Temporary Relief necessary?

During the litigation, people’s regular daily lives continue on, and they need guidance on how things will be. For example: When will a parent get to have visitation with his or her children? How much child support must be paid? Who gets to live in the marital home? Who has to pay the mortgage for that home?

Because these issues are so immediate and important, people involved in South Carolina Family Court cases can’t wait until all the case is over for answers. This is where the Motion for Temporary Relief comes in.

When a party files a Motion for Temporary Relief, they are asking the Court to make an immediate ruling about what will happen while the case is going on. Typical requests for relief include:

  • Decide who gets to live in the home during the case
  • Decide who has to pay for the home during the case
  • Restrain the parties from depleting marital assets or incurring marital debts during the case
  • Establish a temporary spousal support obligation so that the receiving party can maintain their standard of living during the case
  • Determine who has custody of the children during the case
  • Establish a visitation schedule and child support
  • Restrain the parties from participating in “bad” behavior around the children (exposing them to boyfriends/girlfriends, drinking excessively, etc.)

The Clerk of Court tries to schedule a hearing on a Motion for Temporary Relief within 4 weeks of the motion being filed.

Because these hearings are scheduled so quickly, very little notice of the hearing is required for the other party.

Notice of the hearing: How much is enough?

Rule 21(a), SCFCR requires that the written motion for temporary relief and notice of the hearing on the motion must be served at least five days before the hearing. However, Rule 6(a), SCRCP, provides: “When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, or holidays shall be excluded in the computation.”

So for notice to be proper, a Motion for Temporary Relief must be served at least seven calendar days before the hearing.

Preparing for the Hearing

Affidavits

Temporary Hearings are usually 15-30 minutes long, which is not much time to present your case. Because the hearings are so short, South Carolina Family Court Rule 21(b) requires that any evidence be provided in the form of an affidavit.

An affidavit is a statement that is signed by the person making it, in the presence of a notary. The person making the statement does so under oath, just like if they appeared in Court. If the person is dishonest, he or she is subject to the penalties for perjury.

Judges do not want testimony from witnesses at a Temporary Hearing. If there is a witness with important information to share, the judge expects an affidavit from that witness.

Financial Declaration

South Carolina Family Court Rule 20 requires that each party submit a financial declaration at a hearing on a Motion for Temporary Relief. The financial declaration form can be found on the SC Judicial Department website.

Proposed Parenting Plan

In 2012, the South Carolina Legislature passed S.C. Code Ann. Section 63-15-220, which requires each party to submit a proposed parenting plan in any case in which child custody or visitation is at issue. The South Carolina Supreme Court has provided a blank Proposed Parenting Plan for litigants to complete.

Procedure for Hearing on Motion for Temporary Relief

During the hearing, each party is usually given about 5 minutes to tell the judge what they are asking for. Then the judge will review the written evidence provided by each party. Often the judge will issue their ruling at the end of the hearing, but sometimes they “take the matter under advisement” then send a letter to each party with their ruling, usually within a few days.

Result

The judge’s ruling then becomes the Temporary Order. That Order controls what each person can do and has to do until the case is over. Temporary Orders are not supposed to set a precedent for the rest of the case. They do, however, establish important rights and responsibilities for each party that can affect trial results.

A Motion for Temporary Relief can be very important in South Carolina Family Court. Schedule a consultation to talk with us about your situation and develop a strategy for your Motion for Temporary Relief.