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Emergency and Temporary Orders in divorce cases involving family violence

Probably the most frantic people that I come into contact with as a family lawattorney are spouses that are needing to not only file for divorce but are victims of violent actions at the hands of their spouse. In these situations, we do not have time to wait a few weeks for a temporary orders hearing. If 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 him or her 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 to 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 normally justify a request for an emergency temporary orders hearing?

If in your sworn statement you allege that your child is not safe in the home environment because of your spouse’s actions then your request for a temporary orders hearing should be approved. Obviously, if your child is the victim of the family violence than 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 so that he or she can 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 in order 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 he or she displays behavior like this.

Keep in mind that you will want to share all aspects of your case with your attorney prior to filing your divorce petition or requesting an emergency temporary 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 that have occurred 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 are attempting 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 towards how you act.

You may not be able to take care of your household, parent your child the way that 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 be able 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 that he or she needs in order to issue a ruling in your case on the larger issues of conservatorship, visitation, possession, and access. You may be able to receive some orders that will ensure that you and your child are safe but bigger picture items may not be dealt with at that initial hearing.

Often times judges will appoint attorney ad litem or amicus attorneys to your case in order 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 where he or she can 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 he or she attend anger management or similar therapy sessions on a regular basis. 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 regularly attend class.

While there is no guarantee that your spouse attending these classes will ensure that he or she 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 how to present this evidence in court. Doing so now will ensure that you are prepared to do what it takes to get this powerful 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 in representing clients who have violent spouses and are in need of protection and strong representation.

For a free of charge 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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