CYA – Do You (Now) File A Motion For Temporary Relief In Every Case?

To all of my fellow family law attorneys, the following excerpt is from a March, 2014, unpublished opinion of the South Carolina Court of Appeals (the case was an attorney malpractice action, and, presumably as of this date, it continues to be wending its way through the appellate courts):

“As to Client’s assertion that she would have received separate maintenance and support during the pendency of the divorce litigation had Attorneys sought this relief, we agree. As with permanent alimony, an award of separate maintenance and support is within the family court’s discretion after considering the factors listed in section 20-3-130(C). However, at the beginning of her separation from Husband, Client did not have access to the funds she later received as advances on property distribution. Further, while Husband eventually provided ample funds for many, if not most, of Client’s expenses, this primary source of her income did not possess the stability that court-ordered separate maintenance and support would have possessed. When we view the evidence in the light most favorable to Client, it shows that she most probably would have received court-ordered separate maintenance and support, along with the stability that comes with a court award enforceable by contempt, had (the attorney) obtained a temporary hearing to pursue this relief soon after Husband left the marital home. Therefore, we reverse summary judgment on Client’s malpractice claim as it pertains to her loss of court-ordered separate maintenance and support.” (Emphasis added)

Given the vagaries and unknowns inherent during a pendente lite (temporary) family court hearing – where the family court judge’s decision following a typical 15-minute hearing is based entirely, not on “evidence” but rather, on competing and contradictory affidavits and (incomplete/inaccurate/often deliberately falsified) financial declarations from the respective parties – I have a concern that this particular holding by the COA will raise (or most probably already has raised) the spectre of “the law of unintended consequences” [see immediately below].

  • “More recently, the law of unintended consequences has come to be used as an adage or idiomatic warning that an intervention in a complex system tends to create unanticipated and often undesirable outcomes.” – From Wikipedia.

Unfortunately, in the increasingly difficult practice of family law, where your professional responsibilities require that you first must process how you deal with a distraught and emotionally fragile client before any considerations are given by you as to “trial and case-processing strategies”, you are now almost compelled to immediately file a motion for temporary relief in every contested (or even potentially contested) case, and whether or not that is a sound strategy to pursue.  The reality we face is that as the practice of family law has become more complex and much more stressful for the many excellent and highly skilled family law attorneys in this State, you are left with no reasonable alternative other than to CYA at every professional turn.