When one party sues another by filing a complaint asking Family Court to resolve a family dispute.

This approach is a traditional lawsuit. Litigation is the best option for many complex and difficult conflicts and when used effectively, its processes can protect a client in ways other approaches cannot. The communication is formal and much of it is rule-based.

In South Carolina, a person can sue their spouse by alleging marital fault, such as adultery, habitual drunkenness or drug use, abandonment, or physical cruelty. This is called a “fault based” divorce. If a person proves to the court that their spouse has committed marital fault, it could affect an award of alimony, child custody and the distribution of the parties’ marital property. In order to obtain a “no fault” divorce in South Carolina, the parties must live separate and apart for one year.

How It Works
The litigation model includes:

  • Temporary Hearings and Temporary Orders (court-ordered alimony, division of marital property or custody on a temporary basis pending a final hearing or settlement);
  • Discovery (the formal process of collecting relevant information, such as the document production, property inspection and depositions);
  • Rules to Show Cause (Court determination of compliance with previous Court orders);
  • Final Hearing – a trial before a Family Court Judge who will hear contested issues and make a final decision regarding property distribution, alimony, child support and custody issues, and
  • Appeals – if one party feels that the decision of the judge at the Final Hearing was in error, they can appeal to the South Carolina Court of Appeals, South Carolina Supreme Court or the U.S. Supreme Court.

Benefits of Litigation

  • Formal process: Temporary and Final Orders are enforceable and the rules are very clear. If marital fault is proven, it can affect the payment of alimony, child custody, and the division of the parties’ marital property. The judge may even award attorney fees to the non-offending spouse.
  • Accountability: The litigation process can be used to enforce child custody and financial commitments. Its use will depend on the nature of the relationship between the parties, marital fault, ages of the children, size of the parties’ estates, and the relative ability of the parties to earn income.
  • Open Discovery with Sanctions: When information is requested, it must be produced or parties are sanctioned by the Court.

Drawbacks of Litigation

  • Expensive: Complex issues and wide disagreement require time and, often, additional experts.
  • Time-consuming: Communication among parties, attorneys and the Court can be convoluted. Appearances in court can be subject to delays in scheduling and continuances.
  • Emotional cost: Litigation of family law cases does not include any process for resolving emotional issues. These issues are often made worse.
  • Money factor: If so motivated, a party with more money can out spend the other party.
  • Court decides: Temporary Orders and final outcomes, if not resolved prior to court, can be decided by the presiding judge rather than by the parties. This can leave parties feeling dissatisfied with the result.
  • Public: All documents filed with the court become public record and can be accessed by anyone.