Very often, a divorce action can take several months, or even years, to conclude. As a result parties may need to decide how financial and parenting time matters will be handled while their case is pending. If parties are unable to reach an agreement regarding these matters, then they will often put these issues before the Court at a temporary orders hearing. This article is intended to provide general information as to temporary orders hearings.
Understanding Temporary Orders in Divorce Law
Issues: In most states, parties can ask for temporary orders as to child support, parenting time schedules, decision making for the children, use and possession of property, including the marital residence or other properties, use and possession of cars, payment of expenses (including attorney fees) and debt, as well as payment of spousal support (commonly referred to as alimony or maintenance).
Process: The point of any hearing in a divorce case is for you or your attorney to provide the court reliable, credible information (evidence) that supports the result you are seeking. The evidence can be embraced in documents (bank statements, credit card statements, for example) or “told” to the Court by people with information relevant to the issues at hand (witnesses). Typically, a temporary orders hearing will be handled in one of two ways, either by calling witnesses (including the parties) to the stand and asking them questions aimed at eliciting direct testimony from them (referred to as an “evidentiary hearing”) or by your attorney offering summaries of what witnesses would say, either orally or via affidavit. (This second way is often referred to as “proffering” or “offers of proof”). The significant distinction between these two processes is, essentially, who does the talking; witnesses or attorneys. Temporary orders can even be a mix of these two methods, but either typically allows for the submission of documents in addition to written or oral testimony.
Preparation: It is important to be very prepared for the temporary orders hearing in your case. First, you must have a clear agenda as to what you are asking for and that must be clearly articulated to the Court. Second, you must be prepared to offer evidence up that supports your requests.
Hearing: As a party, you will almost certainly either testify or provide the information contained in an “offer of proof”. If you testify, that means you will “take the stand” by sitting in the witness chair and answer questions you are asked. Both your attorney and the other side will ask you questions directly, and you will answer them in open court. You may wish to present information from other persons too, and they may either testify directly or a summary of what they will say will be provided. Often, these summaries are provided by written statements that are sworn to by the person making them. If your Court handles their temporary orders by offers of proof, then affidavits are often required a few days in advance of the hearing so the other side gets to see what will be presented.
Orders: After the hearing is done, the Court will decide on the issues presented, and render formal orders. Sometimes the Court will state the orders immediately at the conclusion of the hearing, or sometimes they will take the matter under advisement and issue orders after due consideration. As the name indicates, these temporary orders are not necessarily representative of what a final decree will require, however they do have the same binding effect as a decree until such time as a new order or final decree is entered.
Understand that every state’s laws and procedural rules governing temporary orders are different, and even in a situation where the divorce is amicable and the parties are in agreement on all issues, the security of formal temporary orders that set forth the agreed-upon terms may be the route you should – or must – pursue. An experienced domestic relations attorney is your best source for current and relevant information about what you should expect regarding the orderly management of your household and family affairs during the pendency of a divorce.