(a) Motion for Temporary Relief. A written motion for temporary relief, and notice of the hearing thereof, shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by order of the court. In an emergency situation, such order may be made on ex parte application.
(b) Evidence at Hearing. Evidence received by the court at temporary hearings shall be confined to pleadings, affidavits, and financial declarations unless good cause is shown to the court why additional evidence or testimony may be necessary.
(c) Service of Affidavits. Notwithstanding the provisions of Rule 6(d), SCRCP, affidavits filed at a temporary hearing need not be served on the opposing party prior to the temporary hearing.
Most clients are unaware that temporary relief may be available in their case. In fact, I've met people who are avoiding separating from their spouse or leaving an unhealthy relationship for the simple fact that they don't believe they will be able to survive or support their children during the year long separation that will offer grounds for a divorce (if no other fault grounds exist at the time of separation).
Essentially, when the parties separate and they cannot, for whatever reasons, agree on who gets what pending the final settlement at the time a divorce is granted, one or both parties will file motions for temporary relief. The idea behind this process is to preserve the “status quo” of the parties as far as property division and support so that the year of separation can be used to work through the details of a final agreement for divorce. The order from a Temporary Hearing can cover such things as child support, child custody, spousal support, debt payments, property division, exclusive use of the marital home and any restraining orders that may be needed to protect the individuals or property involved in the litigation. Generally, the temporary hearing is used to set up a situation that could weigh heavily on the final outcome of the case. Because of this, preparing for a temporary hearing can be very expensive. One of the most common issues at the heart of the Motion for Temporary Relief is custody of the children.
It is impossible in South Carolina for two parties to share “sole” custody of the children. Even in joint custody situations, one parent is typically named as the primary custodian and the visiting parent is named the secondary custodian. Many couples fight long and hard for the designation of “primary custodian” since this usually means the children live “full-time” with that parent and the primary custodian usually retains “final decision making” rights in the event the two parents cannot agree on an issue involving the children. The attorneys for both parents will spend a great deal of time working with their clients to interview those close to the family and obtain witness affidavits and any other evidence that will be helpful to the court in deciding which parent should be named “primary.”
These affidavits may not look like much going into court and some clients even complain about the expense of preparing them, but as the Rule states, these hearings are limited to evidence by affidavit only unless “good cause is shown.” That means, that unless your case is an exception to the rule, the results of your hearing will be based on the short argument your attorney will be allowed to present and then what the judge reads within your stack of affidavits. The results — or order of the court — will be announced either at the end of the hearing or the judge may take the evidence under advisement and issue a ruling later. Either way, the order will more than likely be the order you live with while developing a final settlement agreement or preparing for trial if settlement is not possible.
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