File an answer at or before the temporary hearing

One of the odd procedural quirks of South Carolina family law is that one can have a hearing seeking temporary substantive relief as part of a family court lawsuit long before the time to file a response to that lawsuit has passed. That is because under Rule 21(a) of the Family Court Rules one can have a motion for temporary relief five days–actually, due to Rule 6(a) of the Rules of Civil Procedure, five business days–after the lawsuit is served but, under Rule 12(a) of the Rules of Civil Procedure, one has thirty days from the service of the complaint to file an answer to that complaint.

However, under Rule 41(a) of the Rules of Civil Procedure, until an answer has been served the Plaintiff has the absolute right to dismiss his or her complaint without prejudice. Thus, a Plaintiff can file a lawsuit, schedule a temporary hearing, obtain a bad result at the temporary hearing, and dismiss the complaint and, unless the Defendant has filed an answer prior to the dismissal request, there is nothing the Defendant can do about it. Further nothing prevents the Plaintiff from immediately filing the same or similar action and requesting another motion for temporary relief [Rule 41(a) would prevent the Plaintiff from doing this a third time].

Rule 15(a) of the Rules of Civil Procedure allows a party to amend his or her pleading once as a matter of right so long as he or she does so within thirty days of the other party filing a response to that pleading. Thus, one can file a quick answer prior to the temporary hearing and then file a more detailed answer, or an answer and counterclaim, later on.

Filing an answer prior to the temporary hearing prevents the Plaintiff from unilaterally dismissing the complaint if they do poorly at the temporary hearing. If one wants to protect the Defendant’s successful requests in defending these temporary motions one should routinely file answers at or prior to the temporary hearing.


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