Spouses must think carefully before proceeding with a dissolution of marriage (through legal separation, annulment, or divorce cases). The divorce process, which could be contested or uncontested, is not just about filling out divorce forms and paperwork. It involves negotiating about certain things in order to protect the legal rights of those involved.
Divorcing with one’s spouse and resolving differences is a complicated legal process. Parties may opt to agree, through negotiation or mediation, on things that would be affected by the divorce filing. Otherwise, these shall be brought to the courthouse. For matters that must be decided upon even before formal divorce case hearings, a petition for a temporary order may be filed. Such can cover child custody and primary residency, parenting time, child support, alimony or spousal support, or division of property (marital property) and debts.
What are Temporary Orders for?
Temporary orders are made through a court hearing. These are made to govern parties filing for divorce until they are able to finalize their petition. Despite being temporary, such court order will likely be considered during formal decisions made by the family court.
The temporary order process begins when a Motion for Temporary Orders, with a Sworn Declaration or Affidavit, is filed. Such a Sworn Declaration is based on direct observation of the situation and explains why the petitioner deserves the request. The other party is given the chance to respond through a Counter-Motion for Temporary Orders. If the other party responded, a final reply may be made before the hearing date. Both parties could opt to provide and make use of documentary evidence. This may include photographs, parenting time calendars, or bank statements. The period of time one waits before a hearing is scheduled would be four to six weeks after the motion was filed to the court.
The hearing is held before a Commissioner who, in a way, acts as a judge for family law cases. All pleadings would have been read before the actual hearing and live testimony would likely not be taken. Instead, the family law attorney involved would proffer evidence and argue with the family attorney of the other party. The one who filed the request would talk only when asked by the Commissioner with a specific question.
In some instances, witnesses may be required to attend. Such witnesses must be subpoenaed fourteen days prior to the hearing. After the involved parties have presented their arguments, the Commissioner shall make recommendations that will be provided to the court. These shall be forwarded to and signed by the Judge.
If it is believed that the Commissioner made recommendations that are legally incorrect, an objection may be filed with the Judge. Within fourteen days of the recommendations, the one who filed the motion may ask that these be overturned.
The status quo, or what is taking place prior to a family law case, is often formalized by the court through a temporary order. If, for example, parenting time has been shared by parties 50/50, the family court will likely formalize such a 50/50 parenting time arrangement through a temporary order. Depending on the circumstance, however, the status quo may also be modified by the court.
When to request a Temporary Order
A temporary order is often requested to address alimony and child support. Temporary alimony and child support will likely be determined by the requesting party’s need and the other party’s capacity to pay. A Financial Declaration must be filed with the family court, ideally at the start of the litigation process. Otherwise, you may be precluded from asking for child support or alimony. A temporary order does not guarantee that alimony or child support shall be continued after the divorce proceeding is finalized. These court orders are, after all, temporary.