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Global Lessons for Temporary Hearings in South Carolina

Posted by Unknown | Jun 13, 2017 | 0 Comments

Photo Credit: Wolf

Jordan W. Peeler is our Junior Associate. He was recently given the opportunity to attend a conference in New York City sponsored by the International Academy of Family Lawyers (IAFL) in order to be able to better assist our Senior Partner, Ben Stevens with our International Family Law cases. Jordan offers an interesting perspective on South Carolina Family Court Temporary Hearings after listening to several of the presentations at the IAFL conference, which we know will help to better serve our local clients, as well:

I recently had the opportunity to attend the New York conference of the International Academy of Family Lawyers (IAFL). Upon my return, I reflect on how much I learned about how attorneys in other parts of the world practice family law and how that knowledge can hone and shape our practice here in South Carolina.

One of the most common—and most contentious—occurrences in domestic litigation is the "temporary hearing." It can be easy to stay in the South Carolina “bubble” and assume these hearings are virtually the same in other places as they are here. However, this is not true by a longshot! In England and Wales[1], for example, the temporary hearing is known as the First Appointment (followed later by a Financial Dispute Resolution Hearing and a final hearing). As in the U.S., final hearings can last days or weeks. Each hearing in England and Wales requires a skeleton argument, in addition to the pleadings. The parties are “limited” to 350 pages per hearing. Contrast that to South Carolina, where the parties are limited to only eight (8) pages of affidavits for a 15-minute hearing and typically 16 pages for a 30-minute hearing.  Since the U.K. is the basis for our common law system, courts there have the discretion to base their decision in part on the parties' arguments. 

In France[2], the approach is très différents. Historically, France is the basis for civil law jurisdictions. As such, all decisions are based on statute, and there isn't much room for persuasion in the courtroom. The French system is referred to as a primary regime—a mandatory set of regulations that automatically applies to all couples residing in France. Interestingly, there is no duty to the court in France, only to the client. Further, the duration of oral argument is limited to seven minutes. Naturally, as you might suspect, prenuptial agreements are very popular in France.

In the Netherlands[3], which is also a civil law jurisdiction, courts have no discretion. Courts apply the law as written ... period. Courts in the Netherlands decide cases based on, above all else, the civil code, followed by case law, guidelines (mostly regarding maintenance issues), and the parties' evidence. In these courts, the evidence is naturally the least important factor. Unlike in the U.S. and other jurisdictions, there is no mandatory waiting period to file for divorce. The parties proceed to a hearing, where there is no witness testimony and no cross-examination. Hearings are short (though not as short as in France!). Usually, a non-complex case is set for 30 minutes, while a complex case may be scheduled for a full day. The Court typically reads the entire case file prior to the hearing, eliminating the need for lengthy argument or recitations of the facts. One of the obvious benefits of this regime is its predictability: courts are limited in their discretion and confined to the written code. However, just imagine what that "day in court" must feel like from the client's perspective.

It can be easy as a South Carolina practitioner, or even a Family Court litigant, to feel confined by hearing practice, rules, and procedure. However, these presentations at the IAFL conference demonstrate that hearings in South Carolina are, in a way, a compromised approach to handling our domestic litigation cases. Our Family Court judges are bound by statute but also allowed to use their discretion to judge the degree of equity in a matter which is not found in France or the Netherlands. In South Carolina family courts, our cases are limited to 15 or 30 minutes, but we're not limited to seven!

The most important lesson I took away from this amazing experience was that time is of the essence in our client's cases and every minute is precious. We will always prepare for our client's hearings with the international procedure in mind: we will construct the hearing packet as though a judge in Amsterdam will read it in its entirety, but also focus our arguments so that it could be successfully presented in seven minutes in a Paris courtroom. Pairing these two mindsets will result in straightforward, evidence-based presentations for our South Carolina judges.

[1] Many thanks to the dapper William Longrigg for these observations.

[2] The ever-cool Charlotte Butruille-Cardew gets credit for this knowledge.

[3] The studious, Hague expert Sandra Verburgt compiled this information.

To learn more about Jordan W. Peeler, click here.

The Stevens Firm, P.A. - Family Law Center has provided exceptional legal counsel and support to families throughout South Carolina for over two decades, handling all matters of family law, such as child custody, child support, and divorce. We are well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact us at (864) 598-9172 to schedule an initial consultation.

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