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When to file a contested marital dissolution action before negotiating and when not to request a temporary hearing when filing a contested family court case

It is my experience that most family law attorneys in South Carolina reflexively file a motion for temporary relief when filing a contested family court action or fail to file a marital dissolution action when they hope to negotiate a separation agreement.  Yet I know of two good reasons (there may be others) to file a contested family court action without filing a simultaneous motion for temporary relief or filing a separate maintenance action before beginning negotiations.

File a separate maintenance (or divorce) action to establish the marital estate or establish jurisdiction

Unless there is some urgent support or custody issue that needs resolution, most attorneys typically seek to negotiate a separation agreement before filing a contested marital dissolution action in the family court.   However it can be useful to file a marital dissolution action before negotiating simply to establish the marital estate, which is defined as “all real and personal property which has been acquired by the parties during the marriage and which is owned as of the date of filing or commencement of marital litigation.” S.C. Code Ann. § 20-3-630(A).

There are two reasons one might wish to establish the marital estate before beginning negotiations.  The first is that the client’s spouse may be a spendthrift and debts that spouse incurs during the negotiation period can later be considered part of the marital estate if negotiation fails to result in a separation agreement.  I have had enough cases in which the other spouse attempted to use debts incurred during the negotiation period as leverage to obtain more assets–“give me more money or I will demand that you pay part of my post-separation debts”–that, when I am retained by a client who is concerned about a spouse incurring substantial debts, especially surreptitious debts, I counsel a “file first; then negotiate” strategy.  This strategy is also useful when one’s client is fearful that the other party will dispose of jointly titled assets (such as cleaning out the bank accounts), as doing this after the separate maintenance action has been filed will be treated by the court as an expenditure of marital funds and that expenditure will be considered part of the other party’s equitable distribution award.

The other reason one might wish to establish the marital estate before beginning negotiations is that one’s own client might be coming into substantial assets shortly. By filing a separate maintenance action and then negotiating, one prevents the other spouse from seeking a portion of these assets or using these assets as leverage to obtain more assets: “give me more money or I will demand that you provide me some of these post-separation assets.”

Filing a separate maintenance action for these reasons requires that the parties actually be separated but it is a worthwhile strategy to forestall the other party’s claim for a portion of one’s client’s post-separation assets or a demand that one’s client pays a portion of the other’s post-separation debts.  It also eliminates the need to argue that assets the other party disposed of after separation but before filing should be treated as part of that spouse’s equitable distribution award.

It can also be useful to file a separate maintenance action to establish jurisdiction when the other spouse has moved out of the marital home and is now threatening to move back in.  If the other spouse moves back in before a separate maintenance action has been filed the family court will not have jurisdiction to resolve a contested marital dissolution action unless one’s own client moves out.  See Five Ways to Get a Spouse Out of the House.  By filing a contested separate maintenance action in this circumstance, one preserves one’s client’s right to have a judicial resolution of the marital dissolution if the parties cannot reach an agreement.

File a custody or support modification action without requesting an immediate change in custody or support

There are often circumstances in which a client believes he or she is entitled to a modification of support (either child or spousal) or custody (including visitation) but the claim might be stronger once discovery is conducted.  See What is Discovery? If one seeks a temporary modification at the beginning of the case, before discovery has been conducted, one might fail to obtain the temporary modification only to develop, through discovery, evidence that might have made the temporary modification more likely.  Though Calhoun v. Calhoun, 331 S.C. 157, 165, 501 S.E.2d 735, 739 (Ct. App. 1998), allows subsequent motions for temporary relief based on changed circumstances, my experience is that it is much harder to obtain a temporary modification when a previous temporary modification request has been denied and many family court judges do not consider information developed through discovery to be a “change of circumstances.”

When the issue is urgent, it is difficult to forgo an initial request for a temporary modification.  However when the issue is not urgent and the proof to establish the change of circumstances will be better developed through discovery, simply seeking an order of discovery (and, in cases involving custody or visitation, the appointment of a guardian ad litem) at the beginning of the case and seeking the temporary modification later on is the better course.

A strategy I commonly employ when seeking to change custody based on the child’s preference is to file the action in spring and obtain the appointment of a guardian ad litem immediately.  Typically, my non-custodial client will have substantial summer visitation so there is no urgency to change custody during the summer.  However, by mid-summer, the guardian will have enough information to be able to represent to the court the child’s preference and the reason(s) therefore.  One is then in a much better position to obtain a temporary change of custody for the upcoming school year.   Obtaining discovery before seeking a temporary modification of an existing support order is also desirable when information that might justify a temporary modification (such as proof of the other party’s income or child care expenses) is in the other party’s sole possession.

I am convinced that it is mere habit that has most attorneys failing to file separate maintenance actions before negotiating when there is no need for immediate judicial resolution and reflexively filing motions for temporary relief whenever they file modification actions.  When I note in the introduction that there are probably more than two reasons to file a contested action but not seek immediate temporary relief it because there are probably additional circumstances in which is makes sense to file an action even when one expects to reach a settlement or to forgo a temporary relief request when filing a contested action.  I would suggest being mindful of whether one’s client’s situation creates such a circumstance.

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