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When one party sues another by filing a complaint asking Family Court to resolve the family dispute.
With this approach, the two sides are clearly opposing one another and their attorneys act as hired gladiators. The communication is formal and goes from one client to his or her attorney, from that attorney to the other attorney and then to the other client and vice versa.
In South Carolina, a person can sue their spouse by alleging marital fault, such as adultery, habitual drunkenness or drug use, abandonment, or physical cruelty. This is called a "fault based" divorce. If a person proves to the court that their spouse has committed marital fault, it could affect an award of alimony, child custody and the distribution of the parties’ marital property. In order to obtain a “no fault” divorce in South Carolina, the parties must live separate and apart for one year.
How It Works
The litigation model includes:
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Temporary Hearings and Temporary Orders (court-ordered alimony, division of marital property or custody on a temporary basis pending a final hearing or settlement); |
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Discovery (the formal process of collecting relevant information, such as the document production, property inspection and depositions); |
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Rules to Show Cause (Court determination of compliance with previous Court orders); |
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Final Hearing – a trial before a Family Court Judge who will hear contested issues and make a final decision regarding property distribution, alimony, child support and custody issues.; and |
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Appeals – if one party feels that the decision of the judge at the Final Hearing was made erroneously, they can appeal to the South Carolina Court of Appeals, South Carolina Supreme court, or even the U.S. Supreme Court. |
Benefits of Litigation
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Formal process: Temporary and Final Orders are enforceable and the rules are very clear. If marital fault is proven, it can affect the payment of alimony, child custody, and the division of the parties’ marital property. The judge may even award attorney fees to the non-offending spouse. |
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Accountability is possible: The litigation process can be highly beneficial in terms of child custody and financial issues. This will depend on the nature of the relationship between the parties, marital fault, ages of the children, size of the parties’ estates, and the relative ability of the parties to earn income. |
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Open Discovery with Sanctions: When information is requested, it must be produced or parties are sanctioned by the Court. |
Drawbacks of Litigation
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Very expensive: The more battles fought, the higher the legal fees go. Experts can often be used to investigate issues and prove various points, which add costs to the case. |
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Time-consuming: Communication among parties, attorneys and the Court can be convoluted. Any appearances in court are subject to delays in scheduling and continuances. |
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Emotional cost: Litigation of family law cases does not include any process for resolving emotional issues. These issues are often made worse in the adversarial system and often motivate more battles than are necessary. |
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Money wins: This is not a level playing field. Some attorneys encourage fighting until their client’s money runs out, and only then encourage clients to settle. |
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The Judge decides: Temporary Orders and final outcomes are decided by the presiding judge rather than by the parties. This process often leaves parties feeling unconnected to and unsatisfied with the process and its result. |
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It's public: All documents filed with the court become public record and can be accessed by anyone. |
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