Someone has handed you a number. Maybe it came from the other parent’s lawyer, maybe from a DSS caseworker, maybe from an online calculator at midnight. It looks either far too high or far too low, and nobody has explained where it came from. Understanding how child support is calculated in South Carolina is the first step to knowing whether that number is right, and whether your situation is one where the court can set a different one.

The formula: income shares

The South Carolina Child Support Guidelines, issued by the Department of Social Services and most recently revised in a 2024 edition that took effect January 15, 2024, describe the model in one sentence: it “calculates child support as the share of each parent’s income which would have been spent on the children if the parents and children were living in the same household.” The parent who does not have primary custody pays his or her share to the parent who does. The idea is that the child should receive the same proportion of parental income after the separation as before it.

The calculation runs in a fixed order. Each parent’s monthly gross income is determined. The two figures are combined and matched to a schedule in the Guidelines that sets a basic obligation for that combined income and that number of children. The cost of the children’s health insurance and of child care the custodial parent needs in order to work are added to the basic obligation. The total is then split between the parents by their percentage of the combined income. DSS publishes a calculator that runs the arithmetic, but the calculator is only as good as the numbers typed into it, and the numbers are where the disputes are.

What counts as income when child support is calculated in South Carolina

Almost everything. The Guidelines define gross income to include “income from any source including salaries, wages, commissions, royalties, bonuses, rents (less allowable business expenses), dividends, severance pay, pensions, interest, trust income, annuities, capital gains, Social Security benefits” and more. Overtime, a second job and self-employment income are in. So are disability benefits; our post on why VA disability counts as income for child support explains the most common surprise. What is excluded is narrow: means-tested public assistance such as TANF, SSI and food assistance.

Two rules catch parents who try to manage the number. First, income can be imputed. The Guidelines direct that if the court “finds that a parent is voluntarily unemployed or underemployed, it should calculate child support based on a determination of potential income,” meaning what that parent could earn given education, work history and the local job market. Quitting a job or taking a lower-paying one on the eve of a hearing does not lower support. Second, alimony and child support are linked: the Guidelines treat alimony paid or received as part of the income picture, which is why the South Carolina Supreme Court has held that child support must be recalculated when alimony is reversed.

The adjustments that change the number

• —Shared physical custody. The Guidelines apply a different worksheet where “each parent has court-ordered visitation with the children overnight for more than 109 overnights each year,” roughly thirty percent. Below that threshold the standard worksheet applies, and a schedule that gives one parent 100 overnights is calculated the same way as one that gives that parent every other weekend. This is the single adjustment that most often changes the result, and it is decided by the parenting plan, not by the support hearing.
• —Split custody. Where there are two or more children and each parent has primary custody of at least one, the Guidelines run a separate calculation for each household and offset the two.
• —Other children. Support a parent already pays under a court order for children of another relationship, and children living in the parent’s home, are taken into account before the number is set.
• —Health insurance and child care. The premium attributable to the children and the work-related child care cost, net of the tax credit, are added to the basic obligation and shared. Whoever pays them gets the credit on the worksheet, so the receipts matter.
• —The self-support reserve. The Guidelines build in a floor that protects a low-income paying parent’s ability to meet basic needs, so that support for the very lowest incomes is set below the strict formula.

When a judge can set a different number

S.C. Code § 63-17-470 makes the guideline amount “a rebuttable presumption” of the correct support. A judge may award a different amount “upon a showing that application of the guidelines in a particular case would be unjust or inappropriate,” but must then make “specific, written findings” that state what the guideline amount would have been and why the order differs. The statute lists the reasons a court considers, and they are worth reading against your own facts: educational expenses for the children, including private school; the equitable division of property; consumer debts; families with more than six children; extraordinary medical expenses of a parent or of a child; mandatory retirement and union deductions; support obligations for other dependents; fixed payments imposed by a court; significant income of the child; a substantial disparity where the paying parent earns much less than the receiving parent; alimony; and an agreement between the parents.

That last factor has its own rule. Parents may agree to a number that differs from the Guidelines, and the court may adopt it, but only where both are represented by counsel or the judge has examined an unrepresented parent to be sure the agreement is understood, and the court keeps “the discretion and the independent duty to determine if the amount is reasonable and in the best interest of the child.” An agreement that shortchanges the child can be rejected even when both parents signed it.

How the number is proved

Child support is decided on documents. Both parents file a sworn financial declaration required by Rule 20 of the Family Court Rules, and the worksheet is built from it: pay stubs, tax returns, business records for the self-employed, the insurance premium statement and the child care invoice. A parent who is being paid partly in cash, who runs income through a business, or whose bonus structure is irregular is the parent whose income becomes the contested question, and that question is answered with records, not with estimates. The same records support a later modification, because support can be changed when circumstances change substantially; the statute says that a change in the Guidelines alone is not such a change, except in a DSS case.

One more point that surprises people every year: the order is for money, paid through the court or the DSS system. Buying the children’s clothes or paying their activity fees directly, however generous, does not satisfy it. Our post on why direct payments do not count as child support explains why.

Frequently asked questions

Is the DSS calculator the final answer?

No. It runs the Guidelines arithmetic on the numbers you enter. The court decides what the numbers are, and whether any deviation factor applies.

Does 50/50 custody mean no child support?

Not automatically. Above 109 overnights each, the shared-custody worksheet applies, and it usually reduces support rather than eliminating it, because the parents’ incomes are rarely equal.

My ex quit a good job. Does support go down?

Not if the court finds the unemployment or underemployment is voluntary. Income is then imputed at what the parent could earn.

Can we agree on our own number?

You can propose one. The court can adopt it if both of you understand it, but it keeps the duty to decide whether the amount is reasonable for the child.

How long does child support last?

Until the child reaches the age and circumstances the law sets, with some exceptions for older children still in school. That deserves its own article, and it is the next post in this series.

Talk to a Charleston child support attorney

The formula is public. What is not obvious is which of your facts change it, and those are decided long before anyone runs the calculator. Klok Law handles family law matters across Charleston, Mount Pleasant, Berkeley and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

Hurricane season in the Lowcountry ends with the same phone calls every year. A live oak in the yard next door has come down across a fence, a roof or a parked car, and in the worst cases onto a person. The first thing both insurers say is “act of God.” Whether that answer holds when a tree falls on a neighbor’s property in South Carolina depends on two things: whether the tree was healthy, and where it stood.

The case that decides it: a dead pine on Highway 61

In Staples v. Duell, a driver heading from Charleston toward Summerville on Highway 61 in the early morning struck a dead pine tree lying in the road. The tree had come from the wooded buffer along the two-mile frontage of Middleton Place. The owner employed a caretaker who drove the perimeter twice a day looking, among other things, for dead trees. The driver sued, and the trial court ruled the owner owed her no duty. The Court of Appeals agreed.

The court explained that “in South Carolina rural landowners and urban landowners have different duties and responsibilities,” and that “South Carolina follows the traditional rural and urban distinction.” Quoting the treatise it had adopted a decade earlier, the court described the two rules: the owner of rural land “is not required to inspect it to make sure that every tree is safe,” although “if the defendant knows that the tree is dangerous, he may be required to take affirmative steps”; but “when the tree is in an urban area, and may fall into a city street, the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe,” a protection that “recent decisions have extended” to “adjoining landowners as well.”

What that means for a tree that falls on a neighbor’s property in South Carolina

Where the line between rural and urban falls in a fast-growing county is decided case by case, and the court in Staples noted that the classification was the trial judge’s call. A wooded parcel on the edge of a new subdivision in Berkeley or Dorchester County is the hard case, and the facts about the tree and the surroundings decide it.

Who pays: the insurance picture

Property damage to your house from a neighbor’s tree is, in the first instance, a claim on your own homeowner’s policy, whatever the cause. Your insurer pays your loss and, if the neighbor was negligent, pursues the neighbor’s insurer for reimbursement. Where the neighbor was negligent, you may also claim directly against the neighbor’s liability coverage for what your policy does not pay, such as your deductible or an uncovered item. Removal of the tree from your land is generally your policy’s problem too, and policies vary on how much they pay for it; read yours before the debris is hauled off.

An injury changes the calculation. A limb that falls on a person walking a sidewalk, a tree that comes through a bedroom, a child hurt in a yard: those are negligence claims against the owner, paid by the owner’s homeowner’s liability coverage, and they are evaluated exactly like any other injury case. Our guide to the damages you can claim in a South Carolina personal injury case covers what those claims include, and our post on the types of negligence South Carolina recognizes explains the duty and breach the claim has to prove. Insurers treat a tree claim as a weather claim until they are shown the evidence that it was a dead-tree claim; our post on how insurance companies handle claims describes the pattern.

The evidence that turns “act of God” into a claim

• —Photograph the tree where it fell, before it is cut up, and especially the base and the break: rot, hollow trunk, fungus, dead limbs and old lean marks are the proof that the tree was a known or discoverable danger.
• —Gather the history. Prior complaints to the neighbor, texts, HOA notices, an arborist’s earlier visit or a prior limb fall are how actual knowledge is proved on any land, and how the duty to inspect is shown to have been breached in a neighborhood.
• —Get an arborist’s opinion quickly. Whether the tree was dead or diseased before the storm is a question an expert can usually answer from the stump and the wood, but only while they still exist.
• —Report the loss to your own insurer promptly and, where someone was hurt, do not give the neighbor’s insurer a recorded statement before you have spoken with a lawyer.

Your own share of the fault

Where the injured person ignored an obvious hazard, walked under a limb that had been roped off, or refused to let a neighbor remove a tree that straddled the line, the owner’s insurer will argue comparative fault. Under Nelson v. Concrete Supply Co., that reduces a recovery by the injured person’s percentage and bars it only where that share exceeds fifty percent. It is an argument, not an answer, and it is decided on the facts.

Frequently asked questions

My neighbor’s healthy tree fell on my house in a storm. Can I make them pay?

Generally no. A sound tree brought down by a storm is not negligence, and the claim belongs on your own homeowner’s policy.

I told my neighbor the tree was dead months ago. Does that matter?

Yes, a great deal. Actual knowledge of a dangerous tree is what creates a duty on rural land, and on a neighborhood lot it is strong proof that the owner failed to use reasonable care. Keep the message, email or letter.

The tree fell on a sidewalk and hurt someone. Is that different from damage to a house?

It is an injury claim against the owner rather than a property claim on your policy, and it is proved the same way any negligence claim is. Staples was itself an injury case, and its rules apply. Compare how liability is assigned when a dog attacks: some claims in South Carolina are strict, but a falling tree is not one of them.

Can I cut the branches that hang over my side of the line?

That is a property question rather than an injury question, and the safe course is to talk to a lawyer before cutting anything that could damage the tree. This article does not address it.

How long do I have?

Generally three years from the injury or the damage under S.C. Code § 15-3-530, and shorter where the tree stood on government land. Insurance policies also carry their own notice deadlines, which are much shorter.

Talk to a Charleston attorney about a fallen-tree injury

Most fallen-tree losses are handled between insurers, and most should be. The ones that need a lawyer are the ones where the tree was a known danger and a person was hurt. Klok Law handles injury and property damage claims across Charleston, Mount Pleasant, Berkeley and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

You finally have a hearing date. Then you learn your lawyer will be out of the office that week. Will your case stall, or will you face the judge alone? Thanks to Rule 615 secure leave, South Carolina now answers that question long before it comes up.

What is Rule 615 secure leave?

Secure leave is protected time away from court. A lawyer picks the weeks in advance, and courts schedule around them. The idea is not new. It first appeared as a pilot program adopted on November 16, 2022, at the request of the South Carolina Bar.

In a June 19, 2024 order, the Court extended the pilot through 2026. That order also raised the limit from three weeks to four. In addition, it cut the advance notice from ninety days to sixty.

Then, in its September 23, 2026 order, the Court made the program permanent “based on the success of the Pilot.” The order took effect immediately. Notably, the procedures from the 2024 pilot carry over without change. The Court also updated its secure leave forms to cite the new rule. For family court, form SCCA 500 now carries a September 2026 revision date and is posted on the South Carolina Judicial Branch court forms page.

Although the rule sits in the appellate rules, it reaches much further. Secure leave applies in every court in South Carolina’s Unified Judicial System. That includes the family courts in Charleston, Berkeley, and Dorchester Counties.

How a lawyer designates secure leave

Rule 615 sets clear limits on when and how a lawyer can take secure leave. Here are the key points:

What Rule 615 secure leave means for you as a client

Here is the most important part for clients. Once a lawyer properly designates secure leave, it is allowed “without further action of any court.” In other words, no motion is needed.

During that week, neither the lawyer nor any client the lawyer represents has to appear at any in-person or remote proceeding. The rule expressly covers depositions and court-annexed mediation, too. One exception applies: the lawyer may agree to go forward.

So if your family court mediation or a deposition lands in a secure leave week, you will not have to attend without your attorney. Instead, the session can be moved to another date.

What happens if a hearing is set during secure leave?

Sometimes a hearing gets scheduled for a protected week anyway. When that happens, the lawyer promptly files and serves a copy of the designation, along with a request to reschedule. If someone other than a party or the clerk set the proceeding, such as a mediator, the lawyer notifies that person as well.

Under Rule 615, the court shall reschedule the proceeding. There are only two exceptions. The first is a designation that did not follow the rule. Another is a designation made solely to hinder the timely resolution of a case. Better still, there is no motion fee for filing proof of secure leave.

Secure leave does not pause your deadlines

This point surprises many people. A secure leave designation does not extend any deadline to file or serve papers. Discovery answers, financial declarations, and motions are still due on time.

As a result, planning matters. If your lawyer has a secure leave week coming up, expect requests for documents earlier than usual. Getting your paperwork in early keeps your case on track.

Limits on secure leave

Rule 615 is not a blank check. A judge may revoke a designation that did not follow the rule or that was made solely to delay a case.

At the same time, the rule does not replace the old ways of asking for time away. Courts keep their inherent power to protect a lawyer for a day or several days, or to continue a hearing when that is appropriate. Likewise, the Court’s 2024 order stressed that secure leave supplements the existing system of protection letters and orders. Other continuance requests still go through the usual process, often handled by the chief administrative judge in family court.

What about the other side’s lawyer?

The rule works both ways. Your spouse’s or co-parent’s attorney can also take secure leave. If that lawyer protected a week first, your hearing may need to move.

This can feel frustrating when you want answers quickly. Still, a proper designation is not a stall tactic. If a designation looks improper, your lawyer can raise it with the court.

Practical tips for clients

• Ask your lawyer early whether any secure leave weeks are planned during your case.
• Share your own schedule, such as school breaks, work travel, or holidays, so dates can be planned together.
• Send documents on time, because deadlines keep running during secure leave.
• Ask who at the firm can help with urgent questions while your lawyer is away.

Frequently asked questions about Rule 615 secure leave

Does Rule 615 apply in South Carolina family court?

Yes. Secure leave applies in any court in the Unified Judicial System, including family court. For family court, the lawyer also submits a form to the clerk in the county where the lawyer mainly practices.

How much secure leave can a lawyer take?

A lawyer may designate up to four full calendar weeks each year. Each week runs Monday through Friday.

Will my mediation be moved if it falls during secure leave?

Usually, yes. Neither the lawyer nor the client must attend court-annexed mediation during secure leave unless the lawyer agrees. In that case, the session would typically be rescheduled.

Does secure leave extend my filing deadlines?

No. Rule 615 states that secure leave does not toll or extend deadlines to file or serve papers.

Is secure leave new in South Carolina?

Not entirely. It began as a pilot program in 2022. On September 23, 2026, the Supreme Court of South Carolina made it permanent as Rule 615, SCACR.

Talk with a Lowcountry family law attorney

Court rules change often, and each change can affect when and how your case moves forward. At Klok Law Firm LLC, we help families in Mount Pleasant, Charleston, Berkeley, and Dorchester Counties understand what to expect at every step. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

The emergency room at Roper or MUSC said the CT scan was clear and sent your husband home with a concussion sheet. Six weeks later he cannot follow a conversation, sleeps twelve hours and is angry in a way he never was. A traumatic brain injury claim in South Carolina is often exactly this case: an injury that does not show on the first scan, that the insurer calls a concussion, and that has changed a family’s life. This article explains what these claims involve and how they are proved.

What a traumatic brain injury is

The Centers for Disease Control and Prevention describes a traumatic brain injury as an injury that affects how the brain works, caused by “a bump, blow, or jolt to the head” or by “a hit to the body that causes the head and brain to move quickly back and forth,” and notes that the resulting symptoms may affect how a person thinks, learns, feels, acts and sleeps. It also notes that a person with multiple or repeated mild injuries may have a longer recovery, more severe symptoms and long-term problems. The point for a claim is that a “mild” TBI is a medical classification of the initial injury, not a description of its effect on a life, and that the head does not have to strike anything for the injury to occur.

Car and truck crashes, motorcycle crashes, falls from height and falls on stairs are the common sources in our practice. Our post on the most common injuries in a South Carolina motorcycle crash and our guide to paraplegia and quadriplegia cover the other catastrophic injuries that often accompany a TBI in the same event.

Why the normal scan does not end the claim

A CT scan in the emergency room is designed to find bleeding and fractures that need surgery. It is not designed to find the diffuse injury to brain tissue that produces the cognitive, emotional and behavioral changes families notice later. A normal CT is consistent with a significant brain injury, and insurers know this even as their letters cite it. What documents the injury is the follow-up: a referral to a neurologist, neuropsychological testing that measures memory, attention and processing speed against expected baselines, and, where indicated, more sensitive imaging. Getting that referral requires telling the treating provider what has changed, in detail, and that is where families matter.

How a traumatic brain injury claim in South Carolina is proved

What the claim pays for

Every category discussed in our guide to the damages you can claim in a South Carolina personal injury case applies: past and future medical care, lost wages and lost earning capacity, and the noneconomic losses. In a brain injury case the noneconomic element is often the largest, and South Carolina treats loss of enjoyment of life as an element separate from pain and suffering. The Supreme Court in Boan v. Blackwell, 343 S.C. 498, 502, 541 S.E.2d 242 (2001), described those damages as compensating for the limitations “on the injured person’s ability to participate in and derive pleasure from the normal activities of daily life, or for the individual’s inability to pursue his talents, recreational interests, hobbies, or avocations.” For a person who can no longer read a book, coach a team or hold a job, that is the loss.

Where the injury has changed the marriage, the uninjured spouse has a separate claim of their own under South Carolina law for the loss of the injured spouse’s companionship, aid, society and services. It is pleaded and valued separately, and in a serious brain injury case it should be evaluated at the first meeting. Our post on what loss of consortium is in South Carolina explains that claim.

Who pays, and the limits that apply

Where more than one defendant caused the injury, S.C. Code § 15-38-15 makes a defendant found fifty percent or more at fault jointly and severally liable for the whole verdict, which matters in a catastrophic case where one defendant’s coverage cannot pay it. For claims arising after January 1, 2026, an amended version of that statute also allows fault to be allocated to some persons who are not parties, and the fifty percent comparison then counts their share too. Every potentially responsible party should be identified early.

If the responsible party is a government entity, including a school district, a city or county vehicle or a public hospital, the South Carolina Tort Claims Act applies. S.C. Code § 15-78-120 limits recovery to $300,000 per person for a single occurrence and $600,000 in total for the occurrence, and bars punitive damages and prejudgment interest. The claim must also be brought within the two-year period in S.C. Code § 15-78-110, extended to three years only where a verified claim was filed with the entity first. For a permanent brain injury those limits are a hard ceiling, and identifying every non-governmental defendant becomes the way around it.

How insurers handle brain injury claims

The pattern is consistent: the normal scan is cited as proof of no injury; the diagnosis is described as a concussion that resolves in weeks; the later symptoms are attributed to stress, a prior condition or the person’s age; and an early settlement is offered before neuropsychological testing has been done. Our post on how insurance companies handle auto accident claims explains the approach. The response is to slow down, get the testing, and not resolve a claim whose permanence is not yet known.

Frequently asked questions

The ER said it was a mild concussion. Is that a traumatic brain injury?

A concussion is a mild traumatic brain injury. “Mild” describes the initial clinical picture, not the outcome, and some mild injuries produce lasting symptoms.

He never lost consciousness. Does that matter?

Loss of consciousness is one indicator, not a requirement. The CDC’s description of the injury does not require it, and many documented brain injuries involve none.

How much is a brain injury claim worth in South Carolina?

There is no schedule. Value follows the permanence of the deficits, the cost of future care and the loss of earning capacity, all of which are proved through experts. Government defendants are subject to the caps described above.

Can the family bring a claim too?

A spouse has a separate claim for loss of consortium. Other family members generally do not have their own claim while the injured person is living, but they are essential witnesses.

How long do we have?

Generally three years from the injury under S.C. Code § 15-3-530, and two years for a government defendant. A brain injury case should be started long before either deadline, because the testing and expert work take time.

Talk to a Charleston brain injury attorney

A brain injury claim handled as a concussion file is undervalued from the first letter. Klok Law handles serious injury cases across Charleston, Mount Pleasant, Berkeley and Dorchester counties; our post on why you need a lawyer after a car accident explains what that first evaluation covers. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

You have custody. Your children are settled, and then a process server hands you a complaint asking the court to change everything. The first question most parents ask is how much they will have to prove. In many cases the better question is how much the other parent has to prove. A Rule 41(b) motion in family court lets your lawyer test that proof the moment the other side rests, before you ever take the stand.

What the moving parent must prove under Latimer v. Farmer

The leading South Carolina case is Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004). There, the Supreme Court said a change in custody requires changed circumstances occurring after the entry of the prior decree. The parent seeking the change must then establish two things: (1) a substantial change in circumstances affecting the welfare of the child, and (2) that a change in custody is in the overall best interests of the child. 360 S.C. at 381. Both parts sit on the moving parent’s shoulders, not yours.

Latimer also tells you what is not enough. In that case, the custodial father had remarried and planned to move to Michigan. The Court held that remarriage, in and of itself, is not a sufficient change. It also declined to hold that relocation in itself is a substantial change, calling relocation one factor that is not alone enough. 360 S.C. at 382. The firm’s earlier post on Latimer v. Farmer and child relocation covers the relocation side of the case in more depth.

The Latimer factors in relocation cases

When a move is the claimed change, Latimer offered factors other states use. The Court was careful to say it did not endorse any of them, but it provided them for consideration. 360 S.C. at 382-83. Family law practitioners now call them the Latimer factors. They include:

• each parent’s reasons for seeking or opposing the move;
• the quality of the child’s relationship with each parent;
• the impact of the move on the child’s future contact with the other parent;
• whether the move may improve life for the parent and child economically, emotionally, and educationally;
• whether the move is more than a whim, and the integrity of each parent’s motives; and
• whether suitable visitation can preserve the relationship with the other parent.

Use the factors as a checklist of gaps. If the other parent offers no evidence on a factor, or offers only their own opinion, note it. Those gaps become the outline for your Rule 41(b) argument. Our post on what best interests of the child actually means explains how judges weigh the second prong.

How a Rule 41(b) motion in family court works

Rule 41(b), SCRCP, allows the defendant to move for dismissal once the plaintiff has completed the presentation of his evidence in a case tried without a jury. The ground is that upon the facts and the law the plaintiff has shown no right to relief. Family court applies the civil rules through Rule 2(a), SCRFC, and Rule 41 is not on that rule’s list of exceptions. For more on how the two rulebooks fit together, see our post on Rule 2(a) and the Rules of Family Court.

Here is the part that matters most. Because the family court judge is also the fact-finder, the judge does not have to view the evidence in the light most favorable to the other parent. Instead, the judge may weigh the evidence, determine the facts, and rule against the plaintiff at the close of his case. Johnson v. J.P. Stevens & Co., 308 S.C. 116, 417 S.E.2d 527 (1992), 308 S.C. at 118. In other words, a case that looks adequate on paper can still fail if the judge does not believe it.

The rule also protects you. You make the motion without waiving your right to offer evidence if the motion is denied. The judge may also choose to wait and decide after hearing all of the evidence. If the judge does dismiss, the rule requires findings under Rule 52(a), and the dismissal operates as a ruling on the merits unless the order says otherwise.

Motions in limine: clearing the record before trial

A Rule 41(b) motion is strongest when the other parent’s record is thin. Motions in limine help make it thin. They ask the judge, before trial, to exclude evidence that should never come in. Here are common examples in a custody modification case.

Common mistakes that let a weak case survive

• Calling it a directed verdict. Rule 2(a), SCRFC, makes Rule 50, SCRCP, the directed verdict rule, inapplicable in family court. Ask for dismissal under Rule 41(b) so the judge applies the right standard and can weigh credibility.
• Waiting too long. The motion belongs at the close of the other parent’s case. Once you put on your own witnesses, you may fill the very gaps you wanted to point out.
• Arguing best interests first. The substantial change is a threshold. Lead with the missing change, then address best interests.
• Treating a limine ruling as final. A ruling in limine is not a final decision on the evidence. Even if your motion is granted, you must object when the evidence is offered at trial. Parr v. Gaines, 309 S.C. 477, 424 S.E.2d 515 (Ct. App. 1992), 309 S.C. at 481. Without that objection, the issue may not be preserved for appeal.
• Assuming hidden evidence is out. Under Jumper, exclusion depends on the circumstances. Raise the discovery failure early and show how it prejudiced you.
• Skipping the order. If the motion is granted, the judge must make findings. Have a proposed order ready that tracks the Latimer test, so the record supports the ruling.

For a general overview of how modification works on both sides, see our post on whether custody and visitation awards can be modified.

Frequently asked questions

Can a family court judge dismiss a custody modification case before I testify?

Yes. Under Rule 41(b), once the parent seeking the change rests, the judge may weigh the evidence and dismiss if no right to relief has been shown. The judge may also wait until all evidence is in.

Does a Rule 41(b) dismissal mean the other parent can never file again?

A dismissal is usually a ruling on the merits of that case. However, custody can always be revisited if new circumstances arise after the order. The next case would need new changes, not the same facts.

Is moving to another city a substantial change in circumstances?

Not by itself. Latimer held that relocation is one factor but is not alone a sufficient change. The effect on the child is highly fact specific.

When should a motion in limine be filed?

Before trial, often with the pretrial filings or at a pretrial hearing. Remember that the ruling is not final, so you must still object when the evidence is offered.

Talk to a Lowcountry custody attorney

Klok Law Firm LLC defends and brings custody modification cases in Charleston, Berkeley, and Dorchester County family courts. We prepare every modification trial with the Latimer test and the evidence rules in mind from the first day. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

If you are reading this at two in the morning because something happened today and you do not know whether it can wait, here is the short version first: South Carolina family courts can issue an ex parte order without waiting for the other parent, but only in narrow circumstances, and the order that results is short-lived by design.

Why the ordinary route is not fast enough

The usual way to get relief while a case is pending is a temporary hearing under Rule 21 of the South Carolina Rules of Family Court. That has a floor built into it: once the request for hearing is filed, the date may not be sooner than twenty-one days.

Three weeks is the right pace for most disputes. It is not the right pace when a child is being harmed.

Our post on what actually happens at a temporary hearing covers the ordinary process.

The standard for an ex parte order

Rule 21(g) is short enough to quote in full:

Two things follow. The subject matter is narrow — a child's health, safety or welfare, or irreparable harm. And the procedure is borrowed wholesale from the temporary restraining order rules in the civil rules, which is where the real requirements live.

What Rule 65 actually demands

Rule 65(b), SCRCP is exacting, and understanding why explains what your lawyer will ask you for. No temporary restraining order may be granted without notice to the other side unless:

“it clearly appears from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss or damage will result to the applicant before notice can be served and a hearing had thereon.”

Read that closely, because every phrase is a hurdle. Specific facts — not characterizations, not history, not what you fear generally. By affidavit or verified complaint — sworn, not asserted by counsel. Immediate and irreparable — harm that cannot be undone by an order made later. And before notice can be served and a hearing had — you must show why the other parent cannot be told first.

That last requirement is the one most requests fail on. The question is not whether what is happening is serious. It is whether it will cause irreparable harm in the days it would take to give notice.

What the order looks like, and how briefly it lasts

Rule 65(b) also dictates the form and life of the order. Every temporary restraining order granted without notice must be endorsed with the date and hour of issuance, filed forthwith in the clerk's office and entered of record, and served on the other party together with a summons and complaint if none has been served already.

The order must also “define the injury and state why it is irreparable and why the order was granted without notice.” A judge signing an ex parte order is required to explain, on the face of it, why you were allowed to proceed without the other side.

And it expires quickly. The order lapses by its own terms within the time the court fixes, not to exceed ten days, unless extended for a like period for good cause entered of record, or unless the party it is directed against consents to a longer period.

The hearing comes immediately, and the burden stays with you

An ex parte order is the beginning of a process, not the end of one. Where a temporary restraining order is granted without notice, the motion for a temporary injunction must be set down for hearing “at the earliest possible time” and takes precedence over all matters except older matters of the same character.

When that hearing arrives, the party who obtained the order must proceed with the application — and if they do not, the rule states plainly that the court shall dissolve the temporary restraining order.

The other parent also has a fast route to challenge it. On two days' notice to the party who obtained the order, or on shorter notice as the court may prescribe, they may appear and move to dissolve it.

So the realistic picture is this: a very short order, obtained on a demanding sworn showing, followed almost immediately by a contested hearing at which you carry the burden.

What to have ready

If it is not a true emergency

Most difficult situations are not legal emergencies, and treating one as an emergency has costs. A request that does not meet the standard is refused, and the attempt is visible to the judge who will handle the rest of your case.

The alternatives are real. A temporary hearing addresses the same subjects with a fuller record. Where the concern is a child's safety during visits, the court has power to restrict or suspend visitation on a proper showing. Our post on when South Carolina courts can suspend visitation rights covers that route.

And where the other parent is not following the order, the remedy is enforcement rather than emergency relief — see how to enforce a visitation order in South Carolina.

Rule 21 also allows the family court, for good cause, to modify the scheduling, notice and time requirements it imposes, on its own motion or on a party's motion supported by affidavits. Between the ordinary three-week track and a true ex parte emergency, there is room to ask for something faster without meeting the ex parte standard.

Frequently asked questions

Can a judge give me custody today?

Only on the narrow ex parte standard — to protect a child's health, safety or welfare, or to avoid irreparable harm — and only on sworn specific facts showing why the other parent cannot be notified first.

How long does an ex parte order last?

Not more than ten days as fixed by the court, unless extended for a like period for good cause entered of record, or unless the other party consents to longer.

Does the other parent get to respond?

Yes, and quickly. The hearing on the temporary injunction is set at the earliest possible time and takes precedence over most other matters, and the other parent may move to dissolve the order on two days' notice.

What happens if I do not go forward at that hearing?

Rule 65(b) provides that the court shall dissolve the temporary restraining order if the party who obtained it does not proceed with the application.

Is calling the police the same thing?

No, and it is not an alternative. If a child is in immediate danger, contact law enforcement. An ex parte order is a civil remedy that addresses custody and contact; it is not an emergency response.

Talk to a Charleston custody lawyer

Emergency relief turns on specific sworn facts and on why notice cannot wait, and both are assembled quickly or not at all. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. If a child is in immediate danger, contact law enforcement. For advice about your specific situation, contact Klok Law at (843) 701-1695.

You have been covered for years under your spouse's federal health plan. Now you are divorcing, you are not yet 65, and buying private insurance at your age could cost more than your mortgage. Keeping FEHB after divorce is possible, and for many former spouses it can last for life. But it depends almost entirely on the words in one court order, and the mistakes that cost people their coverage are hard or impossible to fix later.

Short answer: A former spouse can keep Federal Employees Health Benefits (FEHB) in their own name if the divorce order awards them a share of the federal retirement annuity, a former spouse survivor annuity, or both, and they apply within 60 days. To protect coverage until Medicare and beyond, the order should award both, in the exact terms the U.S. Office of Personnel Management (OPM) requires.

Who can keep FEHB as a former spouse

Federal law lets a "former spouse" enroll in FEHB on their own. Under 5 U.S.C. § 8901(10), you qualify if all of these are true:

• •You were divorced while your spouse was a federal employee or was receiving a federal retirement annuity.
• •You were enrolled in an FEHB plan as a family member at any time during the 18 months before the divorce.
• •You receive, or a court order entitles you to, a portion of your spouse's retirement annuity or a former spouse survivor annuity.
• •You have not remarried before age 55.

The third requirement is the one you control in the divorce. OPM summarizes the same rules on its spouse equity FAQ page. If you are already 55 or older, remarrying later will not cost you eligibility.

What to put in the order to keep FEHB after divorce

Many South Carolina divorces end with a written agreement that the family court approves and makes part of the final order. For a federal employee or retiree, that agreement should include these terms:

• •A share of the retirement annuity, with no end date. Coverage based on an annuity share lasts only while you are entitled to that share. An award that stops after a set number of years, or once a set amount is paid, can end your health insurance with it.
• •An express former spouse survivor annuity. If coverage rests only on an annuity share, it ends when your former spouse dies and no survivor annuity is payable. A survivor annuity keeps you eligible after that.
• •The right words. Name the retirement system — CSRS, FERS, "OPM" or "Federal Government" all work — and call the benefit a "former spouse survivor annuity."
• •Who pays for the survivor annuity. The order can take the cost from your share or from your former spouse's share. More on that below.
• •A statement that you will remain eligible for FEHB as a former spouse. It does not create eligibility on its own, but it puts both sides on notice of what the order is meant to protect.

Trap 1: "A COAP to follow"

OPM honors state court orders it calls COAPs, short for court orders acceptable for processing. It is common to sign an agreement that says a separate retirement order will be prepared later. For a survivor annuity, that can be fatal.

In Rafferty v. Office of Personnel Management, 407 F.3d 1317 (Fed. Cir. 2005), the divorce order reserved jurisdiction to enter a COAP later but did not itself award a survivor annuity. The court held that a reservation like that does not satisfy the federal requirement that the award be express. Put the survivor annuity language in the agreement and the final order themselves.

Trap 2: A share of the pension is not a survivor annuity

Many orders say the former spouse gets "50% of the retirement" and stop there. That divides the monthly annuity while your former spouse is alive. It does not provide anything after death. In Hokanson v. Office of Personnel Management, 122 F.3d 1043 (Fed. Cir. 1997), the court refused to read a share of retirement benefits as a survivor annuity. "An award of a former spouse survivor annuity must be express," the court wrote. "This requirement is not a mere technicality."

Wording matters in the other direction too. OPM's rules, at 5 C.F.R. § 838.912, accept terms such as "former spouse survivor annuity" or "survivor annuity." Never use the phrase "insurable interest annuity." That is a different benefit, OPM cannot enforce an order for it, and the wording does not qualify.

Trap 3: Thinking you can fix it later

If your spouse is already retired, there is usually no second chance. Federal law says a change to a divorce order made after retirement or death has no effect on a survivor annuity. 5 U.S.C. § 8341(h)(4) (CSRS); § 8445(d) (FERS). OPM's rule, at 5 C.F.R. § 838.806, requires that after retirement the survivor annuity be in the first order that divides the marital property. A later "clarifying" order does not work — that was the second holding in Hokanson. Neither does an order entered "nunc pro tunc," back-dated to the divorce. OPM counts the date it was actually filed.

There is one narrow opening. If the divorce decree left property division for later, the first order that does divide the property can still award the survivor annuity. Newman v. Love, 962 F.2d 1008 (Fed. Cir. 1992). Do not plan around that. Get it right the first time.

Trap 4: Asking for a five-year survivor annuity

If your goal is coverage only until Medicare, a survivor annuity that ends after five years can sound like a fair compromise. OPM will not carry out that limit. Under 5 C.F.R. § 838.931, a temporary award becomes permanent on the date OPM can no longer honor changes to the order. If your spouse is already retired, that is the date of the first court order dividing your property. If your spouse is still working, it is the date your spouse retires or dies. Until then, a court can still change the survivor annuity, but whatever the order says on that date is what OPM will pay, for life. The survivor annuity also ends if you remarry before 55 or die. Both sides should understand they are agreeing to a lifetime benefit, whether or not your spouse has retired.

Trap 5: Missing the 60-day deadline

Under 5 U.S.C. § 8905(c), you must enroll within 60 days after the divorce. If the marriage ends after your spouse's retirement, the window can run instead from a later survivor annuity election by the retiree, if that date is later. OPM's guidance also allows 60 days after it notifies you that you are eligible. Calendar the date the day the order is signed, and send OPM a certified copy of the order promptly.

Expect to pay the full premium yourself, plus the amounts OPM sets for administration and reserves. The government no longer pays a share. That premium is a real monthly cost to account for when you negotiate support, including any of the five types of alimony in South Carolina.

Trap 6: Cancelling coverage, or missing a payment

This one can undo everything. Under 5 C.F.R. § 890.807, a former spouse whose coverage ends may not re-enroll, and neither may one who cancels for any reason. If you miss a premium payment, coverage ends back to the last period you paid for. Pay on time, every time, and never cancel to save money for a few months.

When you reach 65, you do not lose FEHB. Many people keep it alongside Medicare. If you decide to move to a Medicare-sponsored plan, such as a Medicare Advantage plan, the rule lets you suspend FEHB instead of cancelling it. Ask before you make that change.

Why temporary continuation of coverage is not enough

You may hear about Temporary Continuation of Coverage, or TCC. It is a short-term bridge, not a solution. After a divorce, it lasts no more than 36 months, and you pay the full premium plus up to 2 percent. 5 U.S.C. § 8905a. If you are 60 and need coverage until 65, TCC runs out two years early.

Who pays for the survivor annuity?

A survivor annuity is paid for by reducing the retiree's monthly annuity. OPM will collect the cost only that way; it will not honor an order that has either side pay it some other way. 5 C.F.R. § 838.807. The order can take the cost from your share of the annuity or from your former spouse's share. If the order says nothing, OPM takes it from the retiree's share.

That gives you room to negotiate. A modest survivor annuity costs less and, under the rules above, still supports your FEHB eligibility. Offering to bear the cost from your own share can make the retiree more willing to agree. For more on how retirement accounts are treated in a South Carolina divorce, see our article on protecting nonmarital retirement accounts in South Carolina divorces.

Frequently asked questions

My spouse is still working for the federal government. Do the same rules apply?

Mostly, yes. You still need a court order awarding a share of the annuity or a survivor annuity, and you still have 60 days to enroll. While your spouse is still working, you enroll and pay premiums through your spouse's employing agency rather than OPM. The "no fixes after retirement" rule is less of a risk before retirement, but there is no reason to wait.

Can my children stay on my FEHB plan?

A former spouse can enroll for self plus one or self and family. Under § 8905(c)(2), covered children are the unmarried children of the marriage under 22, or older if they cannot support themselves because of a disability that began before 22. Confirm the current rules with OPM before relying on coverage for an older child.

What if my divorce was already finalized without a survivor annuity?

If your former spouse is retired, a later order usually cannot add one. If your coverage rests on an annuity share, it continues while that share is payable. Talk with a lawyer about where that leaves you before your former spouse's health or circumstances change.

Does this apply to military retirement and TRICARE?

No. Military retired pay and TRICARE run under different rules. An order affecting military retired pay does not award a survivor annuity under the civilian systems this article covers.

Talk to a Charleston family law attorney before you sign

A divorce involving a federal employee or retiree turns on details that are easy to miss and hard to fix. Klok Law represents spouses in the Charleston, Berkeley and Dorchester County family courts, and we review federal retirement and health insurance terms before an agreement is signed. Call Klok Law at (843) 701-1695 to discuss your options, or visit our family law practice page.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

Your first hearing is coming and you have been told it will be short. That is true, and it is the most disorienting thing about it. Months of anxiety are resolved, at least for now, in a proceeding that may last fifteen minutes and in which you will probably not say a word.

The rules described here come from Rule 21 of the South Carolina Rules of Family Court, which was substantially rewritten and applies to any request for a temporary hearing submitted on or after 1 October 2025.

Getting the hearing scheduled

Temporary relief starts with a written motion, filed and properly served, that must “state with specificity the issues raised and the relief sought.” Vagueness at this stage costs you later — the motion frames what the judge can address.

To get a date, the moving party files or submits a request for hearing with the Clerk of Court, identifying how much time is being requested and any known counsel of record. The date then falls inside a window: not sooner than twenty-one days and not later than forty-five days from the date the request is filed.

That window is worth understanding if you are in a hurry. Three weeks is the floor. If your situation cannot wait three weeks, a temporary hearing is not the tool — see the section on emergencies below.

The deadlines, in order

The five-day deadline is the one that surprises people. Evidence is not something you hand up on the day. By the time everyone walks into the courtroom, the judge's file is essentially closed.

It is decided on paper

This is the feature that most confounds first-timers. Rule 21 provides that evidence received at a temporary hearing “shall be confined to affidavits, financial declarations, and any other documents which are statutorily-required (such as a parenting plan).”

There is a safety valve: for good cause, in the discretion of the judge conducting the hearing, additional evidence or testimony may be permitted or required. But the default is paper. You will likely not testify. Your witnesses will not testify. Their accounts arrive as sworn affidavits or they do not arrive at all.

All of it must still comply with the South Carolina Rules of Evidence.

The page limits are real

Rule 21 caps the volume of evidence by reference to the length of the hearing:

Two carve-outs make the limits more workable than they first appear. Proposed parenting plans, financial declarations and attorneys' fees affidavits do not count toward the page limit. And exhibits attached to affidavits are capped separately at thirty pages per party, which also do not count toward the affidavit limit.

If a document is referenced but not attached, it must be served with the affidavit on the opposing party and be available in the courtroom at the hearing.

The practical consequence is that a temporary hearing is an exercise in compression. Ten pages is not much room to describe a marriage. What goes in those pages, and what is left out, is most of the work.

Financial declarations are their own subject and their own form. Our post on South Carolina financial declaration requirements covers what Rule 20 requires.

If you cannot wait three weeks

Rule 21 has a separate provision for genuine emergencies. The family court may order ex parte temporary relief “to protect the health, safety, or welfare of a child, and/or to avoid irreparable harm.” A party seeking it must follow the protocol and requirements for temporary restraining orders in Rule 65 of the South Carolina Rules of Civil Procedure.

That is a demanding standard and a different process, not a faster version of the same one.

Separately, the rule gives the family court discretion, for good cause, on its own motion or on a party's motion, to modify the scheduling, notice and time requirements Rule 21 imposes. A motion asking for that must be supported by relevant affidavits.

What a temporary order does and does not do

A temporary order governs the period while the case is pending. It sets the schedule, the support, and often who stays in the house. It is not the final word, and it is not a prediction of the final word.

It is also not nothing. Temporary arrangements have a way of becoming the status quo, and the stability of a child's existing arrangement is one of the things a court weighs later. That is why a hearing that lasts fifteen minutes deserves preparation measured in days.

If custody is disputed, the judge may also appoint a guardian ad litem to investigate on the children’s behalf. Our post on what a guardian ad litem does in a South Carolina custody case explains that role.

How to prepare

Frequently asked questions

Will I testify at my temporary hearing?

Probably not. Rule 21 confines the evidence to affidavits, financial declarations and statutorily-required documents. The judge may allow or require additional evidence or testimony for good cause, but that is the exception.

How soon can I get a temporary hearing?

Not sooner than twenty-one days from the date the request for hearing is filed with the Clerk, and not later than forty-five days.

How many pages can I file?

Ten pages of affidavits for a fifteen-minute hearing, twenty for a thirty-minute hearing. Beyond thirty minutes, the chief judge for administrative purposes must approve both the time and any page limit. Parenting plans, financial declarations and fee affidavits are excluded from the count, and exhibits are capped separately at thirty pages.

What if my situation is an emergency?

Rule 21 allows ex parte temporary relief to protect the health, safety or welfare of a child or to avoid irreparable harm, following the temporary restraining order requirements of Rule 65, SCRCP. It is a separate and demanding route.

Is the temporary order permanent?

No. It governs while the case is pending. But temporary arrangements often become the status quo, so it matters more than its name suggests.

Talk to a Charleston family law attorney

A temporary hearing is short, decided on paper, and largely won before anyone reaches the courthouse. Klok Law Firm handles South Carolina family law in Charleston, Mount Pleasant, Berkeley, and Dorchester counties. Call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.

The judge ordered the other parent to pay your attorney’s fees. Months later, you still have not seen a dollar. If that parent owns a house, a family court judgment lien may be the tool that finally gets the bill paid.

Short answer: In South Carolina, a fee award becomes a lien on real estate once it is a final judgment and the Clerk of Court enters it in the Abstract of Judgments. The lien lasts ten years. In family court, however, the order itself usually has to tell the Clerk to do that.

Where the power to award attorney’s fees comes from

The family court can order one parent to pay the other’s legal fees. Under S.C. Code § 63-3-530(A)(38), "suit money, including attorney’s fees, may be assessed for or against a party" in any family court action. That covers more than divorce. It also reaches custody modification, visitation, and child support cases.

First, the judge decides whether a fee award is fair. E.D.M. v. T.A.M. lists four factors: each party’s ability to pay, the results each side obtained, the parties’ financial conditions, and the effect of the fee on each party’s standard of living. Next, the judge sets the amount. Here Glasscock v. Glasscock adds six more factors, including the difficulty of the case, the time spent, and customary fees in the area.

The judge must make findings on each factor. For that reason, the fee affidavit and testimony at your final hearing carry real weight. If you are still in the middle of a custody fight, our post on modifying custody and visitation in South Carolina explains how those cases unfold.

Why a fee award is not automatically a family court judgment lien

Many people assume a fee award attaches to the other parent’s house on its own. It does not. Under S.C. Code § 15-35-810, a final judgment becomes a lien on the debtor’s real estate in each county where it is entered in the abstract of judgments and indexed. The lien starts on that entry date and runs ten years from the date of judgment.

Family courts are courts of record, so their judgments qualify. The key word is "entered." In circuit court, clerks place money judgments on the judgment rolls as a matter of routine. Family court is different. Rule 2(a) of the South Carolina Rules of Family Court makes the civil rule that clerks rely on, Rule 78 of the Rules of Civil Procedure, inapplicable in domestic cases. The South Carolina Attorney General has also advised that family court orders go on the judgment rolls only when a statute requires it or the judge directs it.

In practice, then, the words of the final order do the work. A fee award that does not say "judgment" and does not direct the Clerk to enroll it may never become a lien at all.

What the final order should say

Ask your lawyer to put specific language in the proposed final order. A well-drafted order should:

• •State that the fee award is a final money judgment against the other party, in a stated dollar amount.
• •Direct the Clerk of Court to enter the judgment in the Abstract of Judgments.
• •List every version of the debtor’s name for indexing. Compound surnames are often indexed in more than one way, so "José García López" might appear as "López, José García." A title search under one spelling can miss a judgment filed under another.
• •Describe any real estate the debtor owns by street address and tax map number.
• •Award post-judgment interest under S.C. Code § 34-31-20(B).
• •Require that any unpaid balance be paid from the debtor’s net proceeds if the property is sold or refinanced.
• •Fold in earlier fee awards from the same case that are still unpaid, and credit the ones already paid.
• •Authorize you to docket a transcript of the judgment in the Court of Common Pleas.
• •Find that the fees were incurred, at least in part, for the children’s benefit.

That last finding may seem minor. Even so, it can matter a great deal later, as the bankruptcy section below explains.

After the judge signs: enrolling the judgment

A signed order is only the start. To turn it into a recorded lien, follow these steps:

• •Get the clerk-signed Form 4, Judgment in a Family Court Case, showing the date of entry.
• •Deliver a certified copy of the order to the Clerk of Court with a written request to enter it in the Abstract of Judgments.
• •Confirm the judgment is indexed under each name variation listed in the order.
• •If the debtor owns land in another county, docket a transcript of the judgment with that county’s clerk under S.C. Code § 15-35-540. A judgment entered in Berkeley County does not reach a lot in Charleston or Dorchester County until it is docketed there.
• •Calendar the ten-year expiration date, measured from the date of judgment.

How much is the lien worth?

Liens generally rank by the date they are recorded. A mortgage recorded years ago comes ahead of your judgment. Your lien is therefore only as valuable as the equity left after earlier mortgages and judgments. Our post on who gets the house in a South Carolina divorce covers how equity is measured.

Foreclosure is the biggest risk. If a lender files a foreclosure and records a lis pendens before your judgment is enrolled, the buyer at the sale can take the property free of your lien. In that case, you would be limited to any surplus money left after the sale, and you must file a claim in the foreclosure case to get it. That is why prompt enrollment matters.

A few other limits apply. Under S.C. Code § 15-35-820, the lien does not reach property the Constitution exempts. In addition, if you try to force a sale of the debtor’s home, he or she may claim the homestead exemption in S.C. Code § 15-41-30, an amount adjusted every even-numbered year.

Still, a junior lien has teeth. It must be paid off before the owner can sell or refinance with clear title. The lien also attaches to any other real estate the debtor owns, or later buys, in that county during the ten years.

Can you file a lis pendens during a custody case?

Usually not. A notice of pendency under S.C. Code § 15-11-10 is for "an action affecting the title to real property." A custody or visitation case does not affect title to anyone’s house. Filing one anyway could expose you to a slander-of-title claim. The safer path is to wait for the final order and enroll the judgment.

Collecting on the judgment

Once the judgment is enrolled, you have several ways to collect:

• •At closing. Send a payoff demand to the closing attorney when the property is sold or refinanced.
• •In family court. Under S.C. Code § 20-3-125, the attorney whose client won the fee award may petition the family court to enforce payment. A rule to show cause for contempt is another option. Our post on enforcing a visitation order walks through that process, and this post on discovery in contempt actions covers one wrinkle.
• •Through execution. S.C. Code § 15-39-30 allows executions on final judgments "at any time within ten years." However, the examination of a judgment debtor is ordered by a circuit judge. The cleaner route is to docket a transcript of the family court judgment in the Court of Common Pleas under § 15-35-540. Once docketed, it has the same force as a circuit court judgment.

One more point: the judgment belongs to you, the client, not to your lawyer. The order can, however, direct that payment go to the law firm’s trust account.

What if the other parent files bankruptcy or appeals?

Bankruptcy does not wipe out every debt. A "domestic support obligation" is not discharged under 11 U.S.C. § 523(a)(5), and a debtor cannot avoid a judicial lien that secures one. Whether a fee award counts as support depends on the facts. A finding that the fees were incurred for the children’s welfare makes that argument much stronger.

An appeal raises a separate issue. A final fee award is generally stayed while an appeal is pending. By contrast, § 63-3-530(A)(38) says a temporary fee award "must not be stayed by an appeal." Post-judgment interest keeps running in the meantime.

Frequently asked questions

Does a family court fee award automatically become a lien on real estate?

No. It becomes a lien only after it is a final judgment and the Clerk enters it in the Abstract of Judgments. In family court, the order should direct the Clerk to do this.

How long does a family court judgment lien last?

The lien lasts ten years from the date of judgment under S.C. Code § 15-35-810.

Does the judgment earn interest?

Yes. A money judgment draws interest at the prime rate plus four percentage points. The South Carolina Supreme Court confirms the rate each January.

Does the lien cover property in other counties?

Only in counties where the judgment, or a transcript of it, is entered and indexed. You can docket a transcript in any South Carolina county under § 15-35-540.

Can I put a lien on the other parent’s house while the custody case is still open?

Generally, no. A lis pendens is for cases that affect title to real property, and custody cases do not. The lien comes from the final judgment.

Talk to a Lowcountry family law attorney

A fee award only helps you if you can collect it. Klok Law Firm represents parents in custody, visitation, and support cases in Charleston, Berkeley, and Dorchester Counties. We draft final orders with collection in mind. Visit our family law practice in Mount Pleasant, or call Klok Law at (843) 701-1695 to discuss your options.

This article is for general information only and is not legal advice. For advice about your specific situation, contact Klok Law at (843) 701-1695.