Discovery in Family Court

Before May 1, 2017, parties involved in family court litigation had to ask the court for the ability to engage in discovery. On that date an order went into effect that amended the previous version of the rule that governs discovery in family court litigation: Rule 25, SCRFC. Since that date, husbands and wives, moms and dads, and all other litigants in the family courts of this State are “allowed to engage in formal depositions and discovery according to the South Carolina Rules of Civil Procedure.

For more than 2 years litigants have been able to engage in discovery as soon as the action has commenced. In spite of that, I still see lawyers waiting until after the temporary hearing to send out discovery requests. Some lawyers will include a request for discovery in their client’s pleading, or in the motion for temporary relief. A decade ago, it was common practice to include a request for discovery in a party’s motion for temporary relief, but there is no need for that any longer — it’s automatically provided once the litigation begins. There was no reason to request discovery in the pleadings before May 1, 2017, nor is there any reason to do it now.

The tools of discovery are a necessity in properly building your presentation, or your client’s presentation to the family court at trial. Whenever I hear the other side of a case complain about the discovery requests that my client submitted to them, my interest is piqued, particularly when the bulk of the requests are tailored around financial matters. The amendment of Rule 25, SCRFC was a refreshing change; a change that probably should have occurred a decade or two earlier. Regardless, it was progress, and progress is a good thing. I’m hopeful that by May 1, 2027 I won’t see lawyers still requesting the right to engage in discovery in pleadings or their client’s motion for temporary relief, but it won’t surprise me if I do.