Monthly Archives: September 2014

Practicing Family Law in the 21st Century – Series Post No. 1: South Carolina’s “365-Day Family Court Benchmark” – Tick, Tick, Tick

I would like to begin a series of posts which focus on how we might become better prepared to effectively practice family law in South Carolina in the 21st century (or at least through the rest of this decade), and I’m interested in focusing on practical ways in which you can use the existing “patchwork quilt” of family law statutes, appellate court opinions, court rules, and administrative orders to increase your chances of achieving a successful result for your clients, while also protecting your attorney-client relationship.

I’d like to begin by asserting there are (at least) three irrefutable “truths” associated with the practice of family law in South Carolina:

  • Policy has always been driven by the “politics of the moment” (which means that, especially in the area of family law and because our family courts are “courts of limited jurisdiction”, the enactment or creation of statutory policy is more often “reactive” than “contemplative”).
  • In the practice of family law, there are three distinct “tracks” in play in every domestic relations action filed in every county throughout the State: the “legal track”, the “track of the practical result”, and the “track of unintended consequences”.  And with rare exceptions (and there are exceptions), every new statute, family court rule, and administrative order always perfectly addresses – at the moment of its effective date – the “legal track” (e.g., the intended legal result of that specific act or action at that specific moment is “perfect”); however, rarely, if ever, do the “legal track”, the “track of the practical result” and the “track of unintended consequences” meld effectively together for any extended period of time.
  • A family law attorney can never control that single factor which always drives your case forward – the emotions or the emotional state of your client throughout the litigation.

Using that as our backdrop, let’s begin with an analysis of the “365-day Family Court Benchmark” which became effective on August 27, 2014 (with emphasis added):

  • “… all domestics relations and juvenile cases … shall be disposed of within 365 days of filing … “.
  • “Once a case older than 365 days has been scheduled for a final hearing, only the Chief Administrative Judge for the circuit or county may continue it, even if the request for continuance is received by the assigned judge during the week of trial.”
  • “In the event no request for a final hearing is received by the Clerk of Court within (365 days from the date of filing) and there is no order by the Chief Administrative Judge extending the case, the Clerk of Court shall prepare an Order of Dismissal without prejudice and provide the order and file for review by the Chief Administrative Judge. If it is determined that dismissal is appropriate, then the Chief Administrative Judge shall sign the Order of Dismissal.  If a case is continued for any reason past 365 days (from the date of filing), the Order of Continuance must include a time and date for rescheduling the case.
  • ” … 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 (note: meaning every pendente lite order) 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.

This 2014 Administrative Order superseded the May 9, 2006 “Family Court Benchmark” which simply stated:  ” … all domestic relations and juvenile cases in South Carolina … shall be disposed of within 365 days of their filing.  … within each county, the Chief Administrative Judge for Family Court shall direct and oversee the monitoring of all cases which are older than 365 days, and for which no final hearing has been requested.  The Clerk of Court for each county shall provide all necessary reports and information as requested by the Chief Administrative Judge to assist in the timely disposition of cases as set by this Order.”

If the intent of the 2014 Family Court Benchmark is to place pressures on the family law attorneys to bring about a final resolution of litigation within this finite period of time, and if it is believed that a full calendar year is more than enough time to accomplish this purpose, then the “legal effect” of this Administrative Order is perfect.  The clock starts “ticking” from the moment you file your complaint in your Clerk of Court’s office, and you have 365 days with no exceptions, reasons, or excuses to file your request for your final hearing in your client’s case; and, even if your Chief Administrative Judge gives you a “get out of jail free” pass, and extends your case “for any reason”, that order of continuance is required to “include a time and date rescheduling the case” (for a final hearing).

The “practical effects” and the “effects of unintended consequences” of this new Benchmark are more far-reaching both for you and certainly for your clients (I’ll give you just four examples, obviously assuming that you would have not yet filed your request for a final hearing):

  • If you’re now going to engage in “open discovery”, then you’ll need to fully complete your discovery well prior to your trial date (forget about filing “motions to compel” at the last minute because that motion may not be scheduled for weeks or longer, and the clock keeps ticking).
  • If you’ve “won too big at your temporary hearing”, and your client has a terrific pendente lite order in effect – e.g., sole custody, substantial child support, alimony, the other spouse is saddled with paying all the monthly expenses, etc. – you can no longer “slow play” your case beyond the 365-day deadline, because ” … all existing orders which were not final will be considered null and void …” [also see: Terry v. Terry, 400 S.C. 453, 734 S.Ed2d 646 (2012) ].  Conversely, be careful about the opposing attorney who has “lost too big at the temporary hearing”, because as you approach the 365-day deadline, that attorney (who wants all of those pendente lite orders to go away) is going to do everything possible to lull you into delaying your filing a request for a final hearing.
  • In a mandatory mediation county, in the event of an impasse in your mediation, your mediators are now required, at the time they file their mediation report(s) with the clerk’s office, to indicate the amount of “trial time” necessary to complete your case.  Consequently, you may have no choice but to accelerate the date to mediate your case even though the case and the parties are “not ready” for mediation.  Furthermore, you’ll most probably have to guess as to the amount of time you’ll need to request for your final hearing.  And the clock keeps ticking.
  • As you approach your 365-day deadline without having requested your final hearing, you’re going to have to be careful about filing subsequent motions for temporary relief requesting a modification of an existing temporary order, because you may not have enough time to do so.

Recommendations and suggestions:

1.  In those counties where you routinely practice family law and file your cases, find out from that county’s clerk of court whether the clerk can implement an emailed “early warning alert” once a case hits, for example, 270 days from its file date.  In various counties the clerks have provided this service in the past, and I can find nothing in the new Family Court Benchmark which prohibits that activity. This could also apply to those cases filed by self-represented litigants (the clerks can, or most already do, require an email address from these litigants).

2.  To protect yourself professionally, attach a copy of this Administrative Order to your detailed attorney-client retainer agreement, and make certain that your client initials this attachment.  Put a provision in your retainer agreement which acknowledges (a) that you have informed your client of the critical importance of working within this 365-day timeline, and the legal consequences in the event the client’s case is dismissed pursuant to this Administrative Order, (b) that your client agrees to fully and timely cooperate with all of your requests for information, documents, and materials, and (c) that your client will at all times keep you informed as to his/her residence address, mailing address, current email address and current cellphone or telephone number.

3.  If you have not already been using some type of computer-based or internet-based “case tracking” system, then you might want to create one within your office, where you will immediately enter the filing (commencement) date of every new family court case, with a “notification” automatically sent you on the 270th day of filing.

4.  This Administrative Order expressly states that “[I]f it is determined that dismissal is appropriate … “.  Perhaps your county or circuit has a family court liaison committee which could meet concurrently with your current Chief Administrative Judge and your clerk of court in an effort to put together some type of protocol that will provide clarity to your family court bar as to how, and under what circumstances, your Chief Administrative Judge would “determine that dismissal (or a continuance) is appropriate”.

5.  As strange as this sounds – and as counter-intuitive as this may seem to a family law attorney – as soon as you’ve completed your mediation (you can’t wait until the bitter end to mediate your case), or even as soon as you’ve completed your first temporary hearing, send in your request for a final hearing.

6.  And, in tandem with No. 5, if you practice law in a county which has a court coordinator who then sends you an email to inform you that your filed final hearing request is premature because the case has not yet been mediated, then at the very least you’ll have written confirmation that you made this filing (if that sounds like a stretch, so what…and it may show just enough due diligence on your part to convince your Chief Administrative Judge that you made a good faith effort to comply with this Administrative Order).

In the months ahead, as this 365-Day Family Court Benchmark is put into practice, then I’ll want to revisit it and discuss how this particular Administrative Order has affected your family law practice, if at all.  However, I’m going to stop at this point because this seems to be a good stopping point [and I also want you to know that future posts in this series will be much more succinct and more tightly focused on one particular family law issue].


Exempting Your Family Court Case From Mandatory Mediation

Although it may be counter-productive of me to post this suggestion, given that I make my living mediating family court cases, in those cases which warrant this action I’m wondering if you’ve ever made (or considered making) a formal request of your chief administrative judge (CAJ) to exempt your clients’ case from mandatory mediation?

ADR Rule 5(e), SCADR, states the following:

“(e) Motion to Defer or Exempt from ADR.  A party may file a motion to defer an ADR conference or exempt a case from ADR for case specific reasons.  For good cause, the Chief Judge for Administrative Purposes of the circuit may grant the motion.  For example, it may be appropriate to defer an ADR conference or completely exempt a case from the requirement of ADR where a party is unable to participate due to incarceration or mental or physical condition.”

Additionally, the South Carolina Court of Appeals in Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct.App.2011), affirmed the right of the CAJ to have exempted that case from mandatory mediation.

I’m fully aware that ADR Rule 5(e) states that a “motion to…exempt” may be filed by the requesting attorney/party; however, because this Rule does not compel that a motion be filed, it may be entirely possible that your CAJ may entertain your written request for such an exemption; and, consequently, I’m providing your with the following form letter which might serve your purpose, and at minimal cost to your client.



Honorable (name of family court judge)
Chief Family Court Judge for Administrative Purposes
Post Office Box —–
(City – SC – zip code)

Re: Jane Doe vs. John Doe
File No. 2010-DR-___-_______

Dear Judge ————–:

First of all, pursuant to Rule 5(b)(3), SCRCP, and prior to my sending this letter, I have previously consulted with the opposing counsel whose name is listed below, and (name of opposing counsel) is both aware of this contact with the court and has joined in this request.

Pursuant to ADR Rule 5(e), and in lieu of filing a motion, we are respectfully requesting that the abovecaptioned case be exempted from ADR for the following reasons, and that this case be docketed for a final hearing as soon as practicable:


• The (plaintiff) (defendant) (both parties) meet(s) the current federal poverty guidelines and are unable to afford the cost of mediation [please see the attached affidavit(s) of the (plaintiff) (defendant) (parties) regarding (his) (her) (their) current income(s)].

• The parties and counsel have previously held good faith settlement conferences, without success, and it is the professional opinion of counsel that any mediation will not only prove to be unsuccessful, but it may even exacerbate the disputes between the parties.

• Pre-trial discovery has been completed. While the parties and counsel are prepared, in continued good faith, to engage in pre-trial conferences with the court, it is the professional opinion of counsel that mediation will not resolve the case nor result in the settlement of any of the contested issues.

• The parties and counsel have previously engaged in a pre-filing mediation which proved to be unsuccessful, and it is the professional opinion of counsel that any post-filing mediation will prove to be equally unsuccessful.

• The defendant(s) (has) (have) been served in accordance with Rule 4, SCRCP, and are in default.

With all due respect, and in an effort to save the court time, I have provided a “response from the court”, below.


(Name of submitting attorney)

cc: (Name and fax number of opposing counsel)
* * * * * * * *

This case shall be exempt from ADR.    ______________

The request to exempt this case from ADR is denied.  _________________

Chief Family Court Judge for Administrative Purposes







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.