Emergency and Temporary Orders in divorce cases involving family violence

Probably the most frantic people that I come into contact with as a family law attorney are spouses who need to file for divorce and are victims of violent actions at the hands of their spouses. We do not have time to wait a few weeks for a temporary order hearing in these situations. Suppose there are concerns for a spouse or their child’s safety, an emergency hearing will need to be sought. The process of requesting an emergency temporary orders hearing will be the topic of today’s blog post from the Law Office of Bryan Fagan, PLLC.

To begin, an affidavit (or statement made under oath) will need to be submitted to the coach that makes them aware of the situation that you are alleging requires an emergency hearing.

The judge will utilize this emergency hearing as an opportunity to learn about your case, learn about you and your spouse, and collect information and evidence. If your case needs to be treated as a high-risk/high conflict case where court and community involvement is necessary, that sort of determination can be made at the emergency hearing.

What sort of allegations will usually justify a request for temporary emergency orders hearing?

Suppose in your sworn statement you allege that your child is not safe in the home environment because of your spouse’s actions. In that case, your request for a temporary orders hearing should be approved if your child is the victim of family violence, then that should be more than sufficient to approach a judge as quickly as possible.

A difficult part of making allegations against your spouse in a divorce case is that you have no history with the court and this judge. You will need to establish the initial facts and circumstances for the judge to begin to form an opinion about the situation. Remember that even though your family’s situation is well known to you, it will not be that way with a judge.

You and your attorney will need to methodically present evidence of the dangerous situation in your home to achieve the results you have requested. Judges are usually pretty adept at identifying behaviors from your spouse that are outwardly controlling or harmful to you. Do not be intimidated by your spouse if they display behavior like this.

Remember that you will want to share all aspects of your case with your attorney before filing your divorce petition or requesting a temporary emergency orders hearing. The reason for this is that as quickly as you are moving in attempting to file your case, you will not want to get to the hearing date only to have your attorney blindsided by information that can harm your case.

To avoid this, be clear about any instances of violence between you and your spouse. Even if some of these situations you describe do not cast you in the best light, be sure to share them with your attorney.

It is better to have time to prepare with your attorney before a hearing rather than to learn about them at the hearing with no time to prepare. Again, you attempt to make a lasting and positive first impression on the judge in this hearing.

How a judge can see that your spouse controls your actions financially

It isn’t only physical violence that leads to abuse. Financial control is another powerful way that your spouse may be exerting a force on how you act.

You may not be able to take care of your household, parent your child the way you want or even buy necessities for yourself if your spouse gives you no access to credit cards, bank accounts, or other financial outlets. Allegations of physical violence coupled with extreme financial control are telltale signs of an overbearing and possibly abusive spouse. Judges are trained to see this and take note of it.

Appointing ad litem or amicus attorneys to your case

Even after an emergency hearing or temporary orders hearing, a judge may not feel like they have all of the information they need to issue a ruling in your case on the more significant issues of conservatorship, visitation, possession, and access. You may receive some orders that will ensure that you and your child are safe, but more oversized picture items may not be dealt with at that initial hearing.

Often judges will appoint attorney ad litem or amicus attorneys to your case to conduct research on you and your spouse and to do home visits and interviews. The judge is hoping to gain more information about your home life, and these persons will help act as the eyes and ears of the court when there is not a hearing in session.

These folks can report on the condition of your home, the nature of your and your spouse’s relationship to your child and can see if they have a feeling about to what extent domestic violence has occurred in the home. Ultimately a risk assessment can be given to the judge to make recommendations regarding where your child ought to be living on a temporary or permanent basis.

Treatment programs and counseling for an abusive spouse

Ultimately if you meet the burden and prove to a judge that your spouse has been abusive, it could be ordered that they attend anger management or similar therapy sessions regularly. Their attendance will be checked, and their ability to visit with your child will be dependent in large part on your spouse’s ability to attend class regularly.

While there is no guarantee that your spouse attending these classes will ensure they stop their violent behavior, I would argue that the failure to attend indicates a lack of respect for the judge and their orders.

If you have evidence to present to a judge that your spouse acts with violence towards you or your child, even on a sporadic basis, you should speak to your attorney about presenting this evidence in court. Doing so now will ensure that you are prepared to do what it takes to get this robust evidence in front of the judge.

Questions on emergency and temporary orders hearings? Contact the Law Office of Bryan Fagan

To learn more about the process of requesting temporary orders and emergency temporary orders hearings, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. Our office has experience representing clients who have violent spouses and need protection and strong representation.

For a free consultation with one of our licensed family law attorneys, please do not hesitate to contact our office today. We offer consultations six days per week.

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