What is the 365 Day Benchmark?

The family court 365-day benchmark is a South Carolina procedural rule requiring all family court litigation to be concluded or set for trial within 365 days of the filing of the summons and complaint.  The requirements under that benchmark are set forth in an August 27, 2024 Supreme Court order. 

Per this order, “Written requests for a final hearing in this case must be delivered by a party or attorney to the Clerk’s Office within 365 days of this filing date.  Failure to comply with this notice shall result in the dismissal of this case by the Chief Judge for Administrative Purposes.”  A copy of the 365-day benchmark notice is available here.  The form to request a hearing is available here.  In some counties, cases are being dismissed shortly after the benchmark passes. In other counties it can take months.  One is safest assuming the matter will be dismissed on day 366 if the matter has not resolved and no final hearing has been requested.

However, one cannot request a contested hearing without also providing a mediation report. Rule 3, SCRADR, makes almost all family court matters subject to mandatory mediation before a contested trial can be scheduled.  Thus, one cannot simply do nothing to prepare the case for trial and request a trial on the 365^th day.  Instead, one needs to plan on setting mediation before the 365 day period ends.  As most mediations cannot be set immediately, this means beginning the task of setting mediation a few months before the 365-day deadline.

The Chief Administrative Judge is authorized to extend the 365-day deadline and sometimes will if the parties can demonstrate a good cause and show that they have been actively preparing the case for trial.  However, one should not assume that the benchmark will be extended until it is actually extended and one is better off making the request before the deadline has passed.  The courts will rarely extend the benchmark unless either both parties agree or the party opposing the extension has caused the delay.

Per this order, the dismissal will be “without prejudice.” This means the litigants are free to file a new action and the dismissed action will have no precedential effect on that new action. It further means that any changed circumstance to justify modification of child custody/visitation, child support, or alimony, would relate back to the date of the previous final order rather than the date the dismissed action was filed.

Further, “in the event an action is dismissed without prejudice pursuant to this Administrative Order, any existing orders in the affected case file which were not final will be considered null and void and no longer subject to enforcement by this court (including, but not limited to, the enforcement and collection of child support and/or alimony), with any support arrearages being thereby dismissed.”

Essentially, dismissal under the 365-day benchmark means that all the litigation preparation in the dismissed case can be used in any new case (with the exception of requests for admissions, which are valid “for the purpose of the pending action only and is not an admission by him for any other purpose”).  However, the temporary orders and any fees or support due under orders from the dismissed case no longer remain in effect and have no precedential value.

Sometimes, when a case has resulted in a status quo that is worse than the prior final order or is otherwise disappointing, administrative dismissal can be a blessing that allows a party to either a do-over or a return to the prior status quo. Other times, a party may simply not be close to prepared to take the case to trial and an administrative dismissal allows that party to file a new action and have time to fully prepare.  However, most parties do not want their case administratively dismissed and should take the necessary steps of trial preparation and mediation to ensure they can request a final hearing within 365 days of the complaint being filed.