Family Court Terminology

Family Court is one of the most complicated judicial systems in which a person can be involved.  Understanding basic Family Court terminology is essential for anyone involved in Family Court Litigation.

The “Judgement” or “Order” of the Court

Unlike many states, in South Carolina we do not use the term “Judgement” in Family Court.  We use the term “Order”.  The terms appear to be interchangeable (see Rule 26, SCRFC), but the term “Judgement” is never used in common parlance.  The following are different kinds of Orders (i.e. Judgements) that are commonly issued in our Family Courts as follows:

  1. Final Orders:  These orders enter a final award regarding property division, support and custody.  Property division will be final and can never be revisited unless permitted by Rule 59 or 60 SCRCP.  All property, custody and support issues must be addressed in Final Order, and if not, they are forever waived.  Sometimes a case may be kept open after a Final Order has been entered for the sole purpose of seeking a divorce at a later date.
  2. Temporary Orders:  Temporary Orders are entered on a temporary basis to maintain the status quo pending a final resolution of all issues.  SCRFC 21   Temporary Orders are sometime also referred to as “Interim Orders” although there is no such reference in the Family Court Rules.  These orders will not address every issue between the parties and will leave many issues to be resolved by agreement or in trial.
  3. Miscellaneous Orders:  Other orders are often entered during the pendency of family court case.  These orders will resolve motions (motion to compel, etc) or Rules to Show Cause.  These orders are often titled simply “Order” or “Order from Motion to Compel” or “Order from Rule to Show Cause”, etc. and will be limited to resolving the specific issues raised in the Motion or Rule.

The Kinds of Hearings Needed to Get an “Order” or “Judgement”

  1. Separate Support and Maintenance:  The Family Court has jurisdiction to make a Final Order or approve a Final Property and Support Agreement resolving all property, custody and support issues while the parties remain legally married.  SC Code Sec. 20-3-60 and 20-3-130. However, the court only has jurisdiction to issue these orders if the parties are living separate and apart. Theisen v Theisen; 394 S.C. 434 (2011)
  2. Divorce Decree: A Family Court only has jurisdiction to enter a Decree of Divorce if one of the 5 statutory factors are met:  Adultery, Physical Cruelty, Abandonment, Habitual Drunkenness, or Separation for One Year.  SC Code Sec. 20-3-10.  The Family Court also has jurisdiction to make a Final Order or approve a Final Property and Support Agreement resolving all property, custody and support issues while also making a ruling on the issue of divorce.  SC Code Sec. 20-3-60 and 20-3-130.
  3. Merger:  If the court enters a finding, or approves the parties agreement, resolving all property, support and custody issues in an action for Separate Support and Maintenance, the parties can later petition the court for a divorce based upon one of the 5 statutory factors.  If and when this is done, the Divorce Decree must merge and incorporate the terms of the prior Order of Separate Support and Maintenance into the terms of the Divorce Decree.  Moseley v Mosier; 279 S.C. 348 (1983).
  4. Custody Order: A custody order, often called a “Final Order” is simply a Final Court Order, or Judgement, that resolves issues involving custody, visitation and child support.  These kinds of cases arise when parties are not married and are involved in a dispute regarding their children.  These orders can happen at any time.  There is no need to wait a specified period of time, as in a divorce case, for a final order or judgement.  

 

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