What if a Litigant Waits Too Long to Contest a Family Court Action?

What if a Litigant Waits Too Long to Contest a Family Court Action?

Waiting too late to deal with a Family Court action will have devastating, irreversible consequences.  Lately, I have noticed a disturbing trend of litigants contacting me well after a case is over, wanting to change some aspect of property division or an alimony provision in a final order.  Typically these parties have entered into an agreement and are no longer happy with the terms.  Achieving a change to a final agreement is nearly impossible, as it should be.  The litigant who waited too long to take action is not happy to hear this news.

It is my belief that people avoid dealing with Family Court situations for a variety of reasons.  Some of them are hoping for reconciliation.  Some of them are just procrastinators by nature.  Some seem to hope that by avoiding dealing with it, the situation will go away.  Some seem to believe that the Judge will look out for them in Court.  Some feel guilty about their behavior that caused the break-up.  Some have a drug or alcohol problem.  Some do not want to spend money on attorney fees.  None of these reasons are valid reasons to avoid the Family Court process.

If you have been served with a Summons and Complaint in Family Court, you have thirty days to file responsive pleadings.  Period.  After the thirty days is up, you can be held in default.  Once you are in default, you cannot contest the grounds for divorce.   A wise litigant will hire an attorney to represent him or her in this process.

If you sign an agreement, and it is ordered by the Court, it is virtually impossible to change it.  There a few very narrow exceptions to that rule.  However, it is much, much easier to contest a divorce or a separate maintenance action on the front end, at the beginning.   After it’s over, you can’t say you didn’t have lawyer, didn’t understand, don’t really agree, were under duress, or any of the myriad of other excuses I hear, in order to change a final decree.  The Family Court Judge has asked a lot of questions at the time of the divorce hearing and you are shut off from changing your answer after the hearing is over.

The same rule applies if you don’t enter an agreement, but simply allow the process to occur.  Perhaps you don’t show up for the final hearing or show up, but don’t really mount a defense.  You are stuck with the final outcome.

Provisions regarding children are always modifiable.  But again, it is easier to deal with issues at the time of the divorce, rather than after it is final.  To modify a custody and visitation order, one must be able to prove a substantial change of circumstances that renders it in the best interest of the children for the custody or visitation to change.  This is a difficult burden.

A separation or divorce is a big change in anyone’s life.  It is a one shot deal.  It should be thought of as a one shot deal.  If a litigant fails to deal with the divorce and all its terms at the proper time, the litigant does so at the litigant’s own risk.  So be warned.  Deal with it in the appropriate time, or expect to be stuck with what you get, forever.  An action brought to try to change property and alimony provisions of a Divorce Decree is likely to be legally impossible or extremely difficult and very expensive.

If you need assistance with a Family Court matter in Upstate South Carolina, contact me at:  mj@mjgoodwin.com  I can typically answer email correspondence within 12 hours.

 

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