Demand formal requests before allowing a home inspection in marital dissolution cases

Posted Tuesday, May 19th, 2020 by Gregory Forman
Filed under Family Court Procedure, Litigation Strategy, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

A request for entry upon land for the purpose of inspection is a discovery option infrequently used by family court attorneys. Part of the reason for this is we often informally allow such inspections. There’s a good reason to require more formality.

Rule 34(a), SCRCP, allows a party to request an inspection “to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon…” In many marital dissolution cases involving equitable distribution, a party might seek inspection of the other party’s residence to inventory and document the marital household items contained therein. Typically, these inspections are done informally–without the necessity of a request for inspection. However, the best practice is to require a formal request for inspection.

I began requiring such formal requests after a few cases in which an opposing counsel sought additional inspections of my client’s residences. While I fought these requests, my belief is that if I demanded, and obtained, a formal request when the initial inspection was sought, I would have a firmer basis to deny the subsequent request. Rule 26(a), SCRCP, authorizes the court to limit discovery when “the discovery sought is unreasonably cumulative or duplicative” or when “the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought.” Further, demanding a formal request for inspection impresses upon the opposing party the need to do a full and complete inspection the first time–and not to cause trouble during the inspection. The number of times the opposing party has gotten argumentative with my client in the midst of an inspection drastically decreased once I began demanding formal requests for inspection.

While a party certainly has the right to inspect the opposing party’s residence to inventory marital property, that right is limited and does not provide the party unfettered access to an estranged spouse’s residence. Demanding formal requests for inspection insures better behavior and more thoughtful inspections.

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