June, 2003

Temporary Orders

(Part 3 of a 6 Part Series on Divorce Procedure)

(Disclaimer - Avid readers of Legal Briefs will recognize some strikingly familiar points in this month's article as in the August, 2002 one.  This is not so much a case of my being too lazy to write something new as it is that this article fits nicely into our current series on the Divorce process.  Okay, there's an element of lazy here but it still works with the series.  I promise!)

In our pretend scenario, Wendy Wife has filed for a divorce and Henry Husband has filed his Answer.   The next step in the process is for one of the parties to file a Motion for Temporary Orders.  Because a divorce may take a long time to grind its way through the court system, it poses the question: "What are we supposed to do in the meantime?"  Most people need court orders in place right now which address issues such as child custody, child support, visitation, health insurance, alimony, etc. 

The answer is to get temporary orders put in place.  You do this by filing a motion with the court, asking that it enact orders covering these important topics right now.  Hence the name: Motion for Temporary Orders.  They are temporary because they are only in effect pending your divorce trial.   Page 3 of this newsletter has a sample motion.

Now the primary and obvious advantage of Temporary Orders is the speed with which they can be implemented.  In fact, you can schedule the hearing on this motion immediately after serving your spouse with the Complaint for Divorce.  Therefore, all these issues can be hammered out, albeit temporarily, in a matter of days rather than months or years. 

On the flip side of this coin is the disadvantage that "fast" does not necessarily mean "good".  You get all of five minutes to argue your case to the judge, and because of the limited time to prepare, little, if any, admissible evidence is actually presented to the court.  Rather, most of it is hearsay allegations which degenerate into a "He Said v. She Said" battle.  And that makes it difficult for even a good judge to make such important decisions on. 

Another important consideration is the "temporary" part of Temporary Orders.  Oftentimes they turn out to be permanent.  Take child custody as an example.  Let's say Wendy and Henry have two children.  At the temp order hearing, the court awards Wendy temporary custody of the kids.  Things go more or less smoothly over the next two years while the divorce is pending.  Now it is time for the judge to decide on permanent custody.  Well, guess what?  The kids are now used to being in Wendy's custody and, even if Henry was the better custodial parent, it very unlikely that the court will change the status quo and reverse custody. 

Therefore, if it is an important issue to you, don't sit back and try to wing it.  You need to prepare for the Temp Order hearing just as you would the divorce trial.  Get as much admissible evidence together NOW and be ready to present it to the court in a clear and concise manner.   The decisions made at this point in the process set the tone for the trial and will have everlasting effects.  Don't shortchange yourself and don't let anyone convince you that "It's only a temporary hearing."