Often a party cannot wait until a final hearing for relief.
In such cases, a temporary hearing determines the rights and obligations of the parties pending the final hearing. The temporary hearing may involve only limited issues such as temporary custody, support, and use of the marital home pending a final hearing.
Many lawyers and judges believe that the temporary hearing should be very brief because the result will last for only a limited time. I disagree. The temporary hearing is important because the result at the temporary hearing may influence the judge at the final hearing. The result is the outcome of the final hearing is frequently similar or identical to result at the temporary hearing.
If the rules of court are followed, unless good cause is shown, the court will limit the evidence at the temporary hearing to the pleadings, affidavits, and the financial declarations of the parties. This means the court hears no in-person testimony, barring compelling circumstances.
The 55 active family court judges in South Carolina probably handle temporary hearings 55 ways. Some allow no testimony, some require testimony, some rely upon affidavits and financial declarations, and some pay no attention to affidavits and financial declarations. Some judges consider hearsay, conclusions, irrelevant matter, or anything else in the affidavits. The better judges will consider only those matters in the affidavits that would be admissible as oral testimony.
Effective advocacy at the temporary hearing requires the lawyer’s familiarity with the practices, prejudices, and idiosyncrasies of the presiding family court judge. Effective strategy with one judge may offend another judge.
The temporary hearing is often an excellent opportunity for you to obtain a fair and decisive result by thorough preparation, including well-drafted pleadings, an accurate financial declaration, and affidavits by you and your witnesses presenting the facts. Many lawyers believe more is better in presenting affidavits at the temporary hearing. My experience is few judges read more than one or two affidavits. My practice is to prepare only my client’s affidavit, absent a compelling reason for additional affidavits.
The trial judge's impression of you is important. Even if you do not testify, it is important you make a good impression. Discuss dress, grooming, and manners with your lawyer before the hearing. See Chapter 19, Trial Tips, page 43.
Some judges exercise "judicial muscle" to force a settlement at the temporary hearing. Valid arguments exist for and against this use of judicial muscle. Usually I favor this approach by the trial judge because these settlements often rely heavily upon accurate financial declarations, good pleadings, persuasive affidavits, and the lawyer's command of the facts. The downside is that the party refusing the settlement risks a result worse than the 41 settlement urged by the judge. This would not happen in a perfect world but the world of family law is far from perfect.
After the temporary hearing the judge will ask one lawyer, usually the lawyer the trial judge deems the winner, to prepare a temporary order. The temporary order controls the rights and obligations of the parties until a subsequent or final order or decree replaces it.