Can You Walk Me Through The Process Of A Divorce In SC?
Every case in family court is unique, and thus there is no one magic formula for determining exactly how a given divorce case will proceed. However, a “typical” case might proceed as follows: One party, designated as the Plaintiff, will file a Complaint, which is the document that initiates the lawsuit. That Complaint will then be served upon the other party. The other party is designated as the Defendant and has a 30 days window to file an Answer in response to the Complaint. Whether one is the Plaintiff of the Defendant in a divorce case does not indicate who is at fault or not at fault. Rather, these terms simply designate who initiated the action and who is responding. However, there may be certain advantages and disadvantages to being the Plaintiff or the Defendant.
Often, contemporaneously with the Complaint, a Motion for Temporary Relief is also filed. This provides the moving party an opportunity to be before a judge within 30 days, in order to obtain a judge’s ruling on how things will proceed in the interim, while the divorce action is pending. Issues such as who will live where, who will have custody of the children, how visitation will work, and what amount of child support will be paid are usually set out on a temporary basis at these hearings, so both parties know what is expected of them and what is expected of the other party while the divorce action is ongoing. Temporary Orders are not permanent, but simply give the parties rules to abide by for the immediate future.
After filing these initial pleadings, the parties’ attorneys will typically confer with each other, to see if there is any way they can help bring the parties to an acceptable agreement that will settle their case as quickly as possible. If no agreement can be reached, the parties will typically proceed to the Temporary Hearing, and be issued a Temporary Order. Following this order, the parties may continue to attempt to resolve the issues pertinent to the divorce. If they are not able to do so, they will proceed to Mediation, which is a mandatory process in South Carolina prior to the Court permitting parties to hold a trial. With the assistance of a neutral third party facilitator (i.e. the mediator), the parties and their attorneys will attempt to reach an agreement that is acceptable to all parties.
If one cannot be reached during this session, the parties will generally then proceed to trial, at which point all issues will be presented. A judge will ultimately issue a Final Order, which permanently resolves and closes the case. Most aspects of a Final Order are non-modifiable, however, the family court retains jurisdiction over issues directly relating to the best interest of children (custody and child support), which can be modified in the future upon a showing of substantial change in circumstances.
Is There Any Benefit To Filing For Divorce Before Your Spouse?
Typically, there is no particular benefit to attempting to file for a divorce before your spouse. Again, every case is different, and there may be special circumstances that arise under which it may be prudent to try to do so, but generally speaking, it does not matter who is the Plaintiff and who is the Defendant. If you get served with divorce papers, you should always consult an attorney immediately to be certain that your rights and interests are protected throughout the process.
Why Should A Couple Hire Separate Divorce Attorneys Vs. Hiring One Attorney To Sort Everything Out?
Although it may seem reasonable for spouses who can get along well, even throughout the divorce process, to simply hire one attorney to help them sort out their affairs, this is not an available option. Attorneys are not permitted to represent two opposing parties in a case at the same time, even when those parties desire to cooperate toward the same end. There are several reasons for this, among which is the bind in which the attorney would find himself or herself if suddenly the parties’ interests diverged, and there was no practical way to help them without advocating for one side or the other. If both parties employed the attorney, he or she would inevitably end up violating ethical obligations by advocating against her own client.
Even if it were permissible for attorneys to represent opposing parties, this still would not be advisable, because each party is always better off with an advocate to represent their interests, even in the most cooperative separations and divorces. This is also true when one party tells the other that he or she does not need to get an attorney because the initiating party will have his or her lawyer handle everything. It is never advisable to voluntarily proceed pro se (without your own representation), because this creates a fundamental power imbalance in the process because one party is left without any means of being certain that their interests are being properly protected. Even if you trust your spouse, you should hire your own attorney.
For more information on Divorce Process In South Carolina, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (843) 856-2222 today.