Ed. note: This article presupposes a “final hearing” to be one in which the parties are placing an agreement on the record with the Family Court, and are proceeding with a divorce based on one year’s separation. A “final hearing” may also refer to a contested trial, which would be an entirely different article, or more likely, series of articles.
Having braved all of the hazards of divorce, having made the difficult decisions needed to settle your differences with your spouse in a compromised agreement, and having waited out the year-long separation period required for a no-fault divorce in South Carolina, you have finally arrived at the courthouse for your final hearing, ready to put the ordeal behind you. As a Charleston Family Court attorney, and as a someone who handles such matters routinely, I sometimes forget that my client may approach such a hearing with a certain amount of nervousness or fear. A small bit of knowledge of what is about to transpire can certainly help with that fear. So, what should you expect?
1. Expect to wait a little while.
Perhaps your final hearing was scheduled for 9:30. Absent some stroke of good luck, you probably shouldn’t expect it to start until at least 10:00. Judges handle emergency matters first thing in the morning, and the more emergencies there are, the longer you will wait. Also keep in mind you aren’t the only case scheduled for 9:30. There may be as many as 8-10 other cases on your judge’s “docket” for the same time slot. If they are all going forward, meaning none have been cancelled or postponed, or if one of the cases ahead of you hits some unexpected snag, expect to wait. The longest I have ever waited for a 9:30 hearing was until almost lunchtime. Plan ahead, take the whole morning off.
2. You get called.
A sheriff’s deputy will call the name of your case. Upon getting called, we proceed inside. Definitely make sure your cell phone is turned off. There will be two tables directly across from one another in front of the judge’s bench. I will make sure you know exactly where to sit. Go ahead and sit down (almost every client I’ve ever had has remained standing until I tell them to sit; I think this is some engrained cultural behavior).
3. Papers will be exchanged.
One attorney or the other has, prior to the hearing, prepared a Decree of Divorce with your agreement attached as an exhibit. Both parties have prepared Financial Declarations. A copy of the Decree of Divorce and Financial Declarations is provided to the deputy, who gives them to the judge.
In certain circumstances, one of the parties may not be present for the final hearing. If so, that party’s attorney will also provide the judge with an Affidavit of Testimony for consideration.
4. The judge will start by announcing the case, the case number, and identifying the parties and attorneys appearing before the Court.
When the judge is finished, one of the Charleston Family Court attorneys will state for the record that the parties wish to proceed with approval of an agreement, and oftentimes will need to move the Court for leave to amend pleadings to request a no-fault divorce, which request will be with the consent of opposing counsel.
5. The judge will put both parties under oath.
This portion may vary according to the presiding judge; some judges occasionally prefer for the attorneys to question their clients about the terms of the agreement, or to provide the Court with a brief overview of the agreement. But most times, the Court will ask its own questions of the parties. The judge will ask each of the parties, in turn, to respond to some variation of the following questions regarding their agreement:
a) Do you understand the terms of the agreement?
b) Do you need to ask your attorney or this Court anything further about your agreement before entering into it?
c) Did you give and receive full and accurate financial disclosure prior to entering into this agreement? Are you satisfied that the financial disclosure you received is truthful and accurate?
d) Under the circumstances, is the agreement fair to both parties?
e) Did you enter into this agreement freely and voluntarily? Were you threatened or coerced in any way into entering this agreement?
f) Were you under the influence of anything (drugs, alcohol, stress, etc.) when you entered this agreement that would have impaired your ability to understand its terms? Are you under the influence of anything now?
g) Does the written agreement include all of the terms of agreement between the parties, meaning there are no unwritten “side deals” to the agreement?
h) Are you now contemplating bankruptcy?
i) Is the agreement in the best interests of your child(ren)?
j) Do you understand that, under certain circumstances, any provision pertaining to the custody, support, or welfare of the child(ren) can be modified at a later date by the Court?
k) Do you understand that certain provisions of your agreement, once approved, can never be changed, especially those involving the division of property, the waiver of alimony, etc.?
l) Are you satisfied with the services of your Charleston Family Court attorney, and has he done everything you have expected of him?
m) Do you understand that, if the Court approves this agreement, it will become an Order of the Court, meaning that you would be subject to the contempt powers of the Court for willful violations of the terms of the agreement? That the penalty for such contempt can include up to a year in jail, a fine, community service, or some combination of all of the above?
n) Knowing that, do you still wish for the Court to approve the agreement?
The judge will give each of the attorneys the opportunity to ask additional questions; generally there are none. The judge, except under the rarest of circumstances, will then approve the agreement and pronounce it the Order of the Court.
6. The judge will then ask both of the parties if there is anything that can be done to reconcile this marriage.
Unless your answer is “no,” you won’t be getting divorced.
7. The judge will ask the Plaintiff to call his or her first witness.
Assuming you are the party requesting the divorce, usually the Plaintiff, I will then call you to the stand. You will go sit in the witness’s chair that I point out to you, and I will ask you the following series of questions:
a) What is your full legal name, and are you currently married to the Defendant?
b) When and where were you married?
c) In what county do you currently reside? In what county does the Defendant currently reside? In what county did you last live together as husband and wife? How long have both of you lived in this county?
d) At some point in your marriage, did you and your spouse take up separate residences? Do you recall the date of this separation?
e) Have you, at any time since that date of separation, resumed cohabitation with your spouse, even for a single night?
f) Are you asking that this Court grant you a divorce on the statutory ground of one year’s continuous separation?
You will return to your seat.
8. I will call my second witness.
The second witness is a friend or family member that you have procured to come assist with your divorce. This person is known as the “corroborating witness.” It is the job of this person, essentially, to confirm that you have been separated for a year. The questions for this witness are as follows:
a) What is your full name, and what is your relationship to the Plaintiff?
b) How long have you known the Plaintiff?
c) Would you say your relationship is close, such that you communicate with one another frequently?
d) Is your relationship sufficiently close that you were aware of when the Plaintiff separated from his/her spouse?
e) And did that separation take place on x date?
f) Is your relationship sufficiently close that you would have known if the Plaintiff resumed cohabitation with his/her spouse at any time since that date of separation?
g) To the best of your knowledge, has such a resumption of cohabitation taken place?
9. I will rest the case. The Defendant may call witnesses, but such is rare (often it has to do with a wife wishing to resume her maiden name, a topic for another day).
10. The judge will make findings of fact about jurisdiction and the period of separation, that no reconciliation is possible, grant the divorce, and sign the Decree of Divorce.
I will retrieve the signed Order from the judge, we will exit the courtroom, and we will go down to the clerk’s office to make some copies. You will leave with a certified Decree of Divorce and you will officially be single again.
From the time you get called, until the time I shake your hand, will take approximately 15 minutes.