What Is At Stake For A Person Who Is In Default Of A South Carolina Divorce Case
The word “default” has an ominous ring and a finding of default against a litigant can often be fatal. In Family Court, however, default is not nearly as draconian.
Default is when one party to a lawsuit fails respond to an allegation in the time required by court rule. Default most often happens when a person fails to answer a complaint. Default means that the party who filed the lawsuit will win on all allegations raised in their complaint by operation of law, as the Defendant failed to respond or defend in any way.
While default may be appropriate in litigation involving car accidents and contracts, South Carolina will not place this same burden on the families suffering through the process of marital dissolution. The South Carolina Rules of Family Court state:
Appearance by Defendant. In domestic relations matters, even though the defendant does not file an answer, notice of the time and date of the merits hearing shall be given to the defendant. If the defendant is not represented by counsel, notice as required by this rule shall be sufficient if mailed to the defendant at his last known address, by certified mail, return receipt requested. The defendant may be heard at the merits hearing on issues of custody of children, visitation, alimony, support, equitable distribution, and counsel fees. (emphasis added)
Default. In domestic relations matters, the provisions of Rule 55, SCRCP, regarding orders of default shall be made in the final order issued by the family court.
Rule 55 is the Rule of Civil Procedure that governs what is required to obtain a default judgement. Rule 55 permits a party to request default at any time by simply filing a motion. This is very different in Family Court, where Family Court Rule 17 requires that a request for a default judgment be heard at a final hearing (a trial).
I recently went to trial on a matter involving a husband who was not represented by an attorney. He failed to respond to our complaint and we filed the appropriate paperwork requesting he be found in default at the trial. The judge would have none of this, and permitted husband to testify and call witnesses in his behalf.
About 2 years ago I was retained by a woman who was trying to find a way out of a terrible custody ruling. She was the Defendant and her lawyer never filed an answer and counterclaim to the lawsuit. On the day of trial she and her lawyer were advised by the judge that the Plaintiff’s (previously filed) motion for default was granted and that the Defendant would only be permitted to questions the Plaintiff’s witnesses and testify on her own behalf. In other words she would not be permitted to present any affirmative evidence requesting custody of her daughter. Needless to say the trial did not go well for this person, although she later sued her attorney for malpractice and received a substantial settlement.
These two cases represent what I have seen in family court over the years. Judges seem to be much more lenient with the rules when dealing with unrepresented persons. The Rule states that orders of default may be heard at the final hearing, but it is not required. Litigants who have retained attorney’s are held to a much higher standard. Should their attorney fail to respond to allegations raised in a Complaint by the time the case is called for trial they may be in a very difficult position.
