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When to File a Motion for Temporary Relief in a South Carolina Divorce

Contrary to what you may believe when you decide to file for divorce, the divorce process could end up taking a lot longer than you may expect.  At times, divorce can drag on for many months or in some cases even years before becoming finalized.  However, there is a way to get some temporary order set in the midst of the chaos of a divorce.  If you anticipate your divorce will be highly contested or that your spouse may be non-compliant during the divorce process, you may want to consider filing a Motion for Temporary Support Temporary Custody, and/or other temporary relief.  There are some considerations to take into account in order to decide whether you should consider filing for temporary relief.

What Is “Temporary Relief?”

Temporary relief is granted by agreement of the parties or after hearing by the court.  It is then enforceable through a court order until a final judgment is entered.  It is advisable to file a motion for temporary relief early in a case so there is a temporary arrangement between the party that can be enforced if violated.  Temporary hearings can allow judges an opportunity to order particular custody or support arrangements that may ultimately have a bearing on the final order.  These hearings also give judges the opportunity to become familiar with the parties and their circumstances prior to a final trial.

What Are Different Forms of Temporary Relief I Could Request?

There are several forms of temporary relief you may consider requesting in a motion for temporary relief, including:

  • Temporary Custody: Motions for Temporary Custody often ask for one parent to be designated as the primary custodian, which often means that parent also receives final decision-making rights for major decisions involving the minor children.
  • Temporary Alimony or Child Support:  You could ask the court to make a temporary alimony or child support determination during the pendency of the case to ensure you continue receiving enough money to support yourself and your children during the pendency of your marriage.  Oftentimes, family courts will make determinations for temporary support orders in the same way they would make a final support order.  That is, they would look at factors including spouses’ respective incomes, deductions, insurance premiums, payment of child expenses, and duration of the marriage.
  • Temporary Contributions to Fixed Monthly Expenses: One major consideration courts take into account when hearing motions for temporary relief is what the status quo has been during the parties’ marriage.  If one spouse has typically paid all of the household bills, mortgage payments, or other fixed monthly expenses during the parties’ marriage, a party may request that the party continue to pay this expense during the pendency of the divorce proceeding.
  • Temporary Injunctions on Disposing of Marital Assets: A party may ask the court to enjoin another party from selling or otherwise disposing of a valuable marital asset, including real property or monies in the parties’ joint accounts.

What Evidence Is Presented at a Hearing for Temporary Relief?

Rule 21 of the South Carolina Rules of the Family Court limits evidence admitted by the court at hearings for temporary relief to contents of the underlying pleading, supporting witness affidavits signed by the parties, and financial declarations completed by both parties, unless a party can show why additional evidence or testimony may be necessary.

This rule highlights the importance of making sure your motion, affidavits, and financial declarations are accurate and detailed since the judge likely will not hear much outside testimony.  Specifically, for motions for temporary financial support or contribution, you will want to ensure your financial declaration accurately reflects your income, monthly expenses, assets, and debts.  If you are asking for contribution to monthly expenses such as your mortgage and your spouse has historically contributed to these expenses, you may want to note the “status quo” as well.  As briefly noted above, courts tend to favor preservation of the status quo in determining whether to grant temporary relief.

For motions for temporary custody, you will want to plead facts related to the best interests of your children.  This may include facts related to the child’s adjustment to school and activities, interaction with both parents, and work schedules of both parents.  Given the court’s heavy reliance on affidavits, when preparing for hearings on Motions for Temporary Custody, parties should work with various witnesses to draft written affidavits in support of their side.  Contents of affidavits often include third party observations of parents with their children, including mistreatment or abuse by one parent or other observations as to a child’s adjustment to the community.

How Do I Modify an Order for Temporary Relief?

Similar to a final order for support or custody, an order for temporary relief may only be modified by agreement of the parties or upon a showing of a “substantial change in circumstances.”  A typical example in modifying temporary support orders is seen when a temporary support order is determined based on a spouse’s income and that spouse subsequently loses their job and is unable to secure another form of gainful employment.  Some common examples in modifying custody orders is if a parent granted temporary custody engages in unfit behavior or starts trying to alienate the minor children from their other parent.

Given the restrictions on modifying these temporary orders and the potential lengthy durations of the orders, you may want to consider whether it would be more appropriate to file a motion to set a parenting schedule for a specified duration, such as school breaks or summer vacation.  This way, you do not have to meet the burden of proving a substantial change in circumstances to modify the order.

Contact an Experienced Greenville, South Carolina Family Law Attorney Today! 

Deciding whether you should file a motion for temporary support or custody during the pendency of your case is a difficult strategic decision during your divorce case.  To help you decide what the best course of action is, you should hire the skilled Greenville family law lawyers at Elliott Frazier Law Firm, LLC to help you evaluate your case and decide what motions you should file.  Contact us today for a case evaluation!

Angela Elliot Frazier is a Family Law Attorney who practices in Greenville, SC. She graduated from the University of South Carolina School of Law, and has been practicing law for 14 years now. Angela Frazier believes in helping you through one of the most stressful times of your life. Learn more about her experience by clicking here.

Your lawyer for your life.

Greenville, Spartanburg, Oconee, Anderson, Pickens, South Carolina Attorney At Law