Family Court Decisions: Temporary Orders

In situations where the divorce case may drag out for months or years, there may be issues that can't wait. Spousal support or alimony may be necessary. Urgent matters like these need temporary orders issued in family court.

Temporary Orders: The Basics

A judge may issue temporary orders (also known in some states as "pendente lite or PL orders") whenever a couple separates. The orders may address any serious issue the couple wants a court order for during the pendency of the divorce proceedings. Temporary orders let the couple live separately and begin the division of marital assets before the final divorce decree.

During the divorce process, couples must keep all assets intact until the court determines what property is marital property. In a contested divorce, the parties may argue over the marital home or other real property, bank accounts, and custody or visitation rights.

Family law cases are decided in stages. Courts issue temporary orders during the intermediate steps between the start of the case and the final order. Temporary orders become part of the final order or are included as attachments.

Some states allow couples to request temporary orders during legal separation. The temporary order hearing is set within a few weeks.

Types of Temporary Orders

Some temporary orders are without the other party's presence. These are ex parte orders. Ex parte motions are filed with the court without notice to the other party. The order is valid for a brief period until the party is notified and appears in court.

Temporary restraining orders are the most common ex parte orders. In domestic violence cases, a victim may request that the alleged abuser be prevented from approaching them until a judge can hear the case. The order will only last until both parties can come to court, and the judge can decide if the order should be permanent.

Other types of temporary orders include:

• Temporary child custody: Courts issue temporary custody orders if there are allegations of abuse or neglect or there is a risk that one parent may attempt to flee the jurisdiction with the child.

• Temporary support orders: If the primary wage earner has moved out, the judge may order support payments based on initial financial disclosures from both parties. This may include child support, spousal support, or household support, such as groceries or utility payments.

• Payment of attorney's fees: This depends on which party initiated the divorce proceedings. For instance, if the primary wage earner filed the divorce petition and began the process knowing the other party could not afford a court battle, the judge may issue a temporary order for divorce attorney fees and costs.

• Disposition of the marital residence: If the couple cannot agree before the divorce on who should stay in the family home, there is likely to be an argument over who should have it. If there are minor children, they need a stable place to live. Judges will often issue an order giving temporary use and possession of the home to the custodial parent until the divorce ends.

Temporary custody and support orders are only a stopgap for couples needing more time to devise better alternatives. If parents can come to a reasonable agreement about custody and visitation and write their own parenting plan, the divorce process will go much smoother.

Temporary Order Hearings

To get a temporary order, both parties must appear at a court hearing unless it is an emergency ex parte hearing. One side presents the reasons for granting the order. The other side explains why they oppose it or offers alternatives.

Couples don't always disagree about temporary orders. Sometimes both parties agree they need a support order or custody arrangement but can't agree on the terms themselves. In that case, they may ask the judge to write it for them.

A judge may grant a temporary order immediately (from the bench), or the judge may want to review the evidence. The judge may make changes to the order, especially if the couple wrote it themselves. The judge may ask for more information or set a second hearing for additional information.

The temporary order is only valid until the final order is issued or until the date of the order. If the judge sets a second hearing, the order expires on that date.

Requesting a Temporary Order

If you need a temporary order before your divorce, start at the courthouse. The paperwork you will need is available there or on the court website. Each state and sometimes each county has its own forms, so you should ask the clerk's office before filing. Most courts have a self-help law center that can explain how to complete the forms but cannot offer legal advice. They can provide general information, like which forms you need and how to file them.

If you file an emergency request for an order, such as a restraining order, you will see the judge the same day. Otherwise, the clerk will give you a hearing date. Most requests for temporary orders are not emergencies, but the judge hears the requests as soon as possible.

Although each court has its own forms, the steps for a temporary order are the same. You may need to talk to a divorce lawyer when writing your request so nothing gets overlooked.

• Petition: The first document is the request. It is also called an application or a motion. It tells the judge what you are asking for, briefly states why you should have it, and orders your spouse to court to oppose your request.

• Declaration: Sometimes called an affidavit or supporting document. This fully explains why you need what you are asking for. For instance, if you are requesting child custody, you would explain that your spouse works full time, is away from home at night, likes to spend weekends with friends from work at the bar, and leaves all decision-making about the children to you. You might include a need for temporary child support during the separation since you will be caring for the children.

• Proposed temporary order: It helps your case if you offer the judge a reasonable order that gives you what you ask for and answers any objections your spouse may make. For example, in a custody case, make provisions for parenting time in your order so your spouse cannot argue that you're "taking the children away."

• Proof of service: After filing, you must deliver or "serve" these documents to your spouse. You can hire a process server, get the sheriff's department to serve the documents, or get anyone over 18 who is not involved in the case to deliver them. They must complete the proof of service document correctly and return it to the court. You then can file the proof of service.

Talk to an Attorney About Temporary Orders in Family Court Actions

Divorce, spousal support, child custody, and other family law issues typically arise simultaneously, although finalizing these processes can take months or years. If you and your estranged spouse cannot agree on terms while waiting for finalization, you may need to use temporary orders. Have an experienced family law attorney review your case and give you peace of mind.