Family law cases have stages that you must pass through before you can finish your case. One of the most important of those stages is what I call the Temporary Orders stage. Temporary Orders are, wait for it, orders that are temporary and will last for the duration of your case. Ultimately you are trying to negotiate for final orders that will be in effect after your case has been completed. For now, however, you will be working with your opposing party to negotiate for temporary orders.
What all do temporary orders take into consideration. It depends on the type of case that you have. If yours is a divorce, issues regarding the use of your family home, the paying of bills (like the mortgage), the assignment of visitation rights for your child, the payment of child support and the payment of temporary spousal support (if applicable) will be discussed). All of the same can be said if you have a child custody case, other than issues relating to property, debts and spousal support.
Hopefully, you and your spouse or opposing party will be able to settle your issues between yourselves and can save a trip to the courthouse. However, it sometimes happens that settlements cannot occur in every family law case. In those situations, temporary orders hearing with a judge will occur in order so that orders can be established for the duration of your family case.
What to do in order to get ready for a temporary orders hearing
A temporary orders hearing is not something that you should hurriedly prepare for the day prior to the hearing. Rather, your attorney and you should be working together to create your case from the moment that you sign up with him or her.
To begin with, the initial paperwork that your attorney had asked you to fill out concerning your family and the details of your case is going to be important for your lawyer to prepare for a possible temporary order hearing. Make no mistake, you and your lawyer should want your case to be resolved in mediation. That process allows you to put your own mark on the orders and basically, it gives you a lot more direct control over the outcome. However, if an agreement cannot be reached the groundwork should already have been laid for a hearing strategy.
Your lawyer will likely ask you to go online or into your file cabinet at home to pull out documents that will need to be used as evidence in your case. Things like paystubs, tax returns, bills, mortgage statements, etc. are all relevant in order to show how much money you earn, what sorts of bills you are responsible for and how to divide responsibilities for the finances of your family.
You can either work feverishly on the day before the hearing to come up with these documents, or you can do so weeks in advance and not be rushed. The reality is that these documents are also helpful in mediation so you and your lawyer really ought to have them ready long before the hearing. It is relatively easy to take the documents from mediation preparation, stick exhibit stickers on them and use them for your temporary orders hearing if a settlement cannot be reached.
Next, you and your attorney will meet to prepare for the hearing. Yes, this means that you will likely need to take off from work to attend the meeting at the office of your attorney. You should do what you can to prepare your employer for the need to do this. If you know that this will be a problem that you should strongly consider doing what you can to settle your family case in mediation. It is difficult to imagine a temporary orders hearing going well if you cannot meet for an extended preparation session with your attorney beforehand.
Much of that preparation session will focus on what your goals are. You should ask questions about what to expect and how to testify in front of a judge. Ultimately, you are just answering questions from your attorney and the opposing party's attorney. However, it can be a different experience for you if you have never spoken under oath and in front of a judge. I have seen perfectly educated, well-spoken persons change their demeanor completely when having to answer questions from a judge. You will want to get over your nerves before you ever step foot into the courthouse.
Practice with your attorney on answering questions. He or she will have a sample of the questions that are expected to be asked of you. You can work on how to answer the basic questions and also work on how to react to questions from the opposing attorney. Typically it is a good idea to give detail to the answers you provide to your attorney’s questions and be short and sweet with your answers to the other attorney’s questions.
One thing that happens in hearings that will not happen in your preparation meeting is that your attorney will need to prepare you for how to deal with objections to questions and answers from the other lawyer. Objections are made when an attorney believes that the question being asked or the answer being provided violates the rules of admissible evidence in a hearing or trial.
Here is how it works: if your lawyer asks you a question that the other attorney believes is improper then he or she will stand up and state their objection to the form or content of the question. Your attorney will then have an opportunity to respond to that objection by providing a reason why the question should be allowed. The judge will then consider both arguments and make a ruling as to whether the question can be asked.
All the while you are to remain silent until instructed by the judge on how to proceed. Basically what I tell clients is that as soon as you hear the word “objection”, you should remain silent until you receive instructions from the judge on how to proceed. Do not provide an answer to a question that receives an objection from either attorney until the judge makes a ruling and gives you the ok to move forward with a response.
Who will talk during temporary orders hearing?
It happens with the regularity that you and your opposing party may be the only people to testify on the witness stand during your hearing. Most of the time this happens when you and your opposing party are the only people who have personally experienced something related to your case or have knowledge of a disputed fact. You may have family members who you have relied on as a support system during a difficult marriage, but their being used as a witness will not be helpful to the judge unless those people have personally seen or experienced something relevant to your case.
For instance, if you have an adult family member who has seen your spouse hit you or your child then that family member should be called as a witness. The same rules that apply to your testimony that I provided in the prior section of this blog apply to any other witnesses who testify in your hearing. You can call family members, friends or any other person as a witness.
What specifically will be determined in your temporary orders hearing?
Let's spend some time discussing what exactly will be discussed during a typical temporary order hearing. Your attorney should provide the requests that you are making to the court in a document before the hearing begins. That will serve as a roadmap for the judge and will help him or she get a better understanding of what all is an issue for you and your opposing party.
For starters, in a divorce case, you will need to know which spouse will have exclusive use of the home for the duration of the case. Arguments will be presented to the judge as to which of you should be able to remain in the house for as long as the divorce lasts. I can tell you that whichever of you will be taking care of the kids on a primary basis will have the leg-up when it comes to being able to stay in the house.
Next, it is always relevant to discuss which of you will be paying a certain bill during the divorce. Think about all the places that receive a portion of your income on a monthly basis. The alarm company, utilities, the mortgage company, lawn care, pool care, sports for your kids, school for your kids. The list goes on and on. Since you and your spouse were not able to figure out between yourselves how to divide up these bills a judge will take on that responsibility for you. As a side note, I will tell you that you will need to be able to accurately show your income so that the judge can fairly divide the bills up accordingly.
Conservatorship and custody of the children will be the most important topics discussed in a temporary order hearing. Most parents are named as joint managing conservators of their children in a temporary order hearing. This means that you and the other parent will likely share in the rights associated with raising your kids on a fairly even basis. The main exceptions to this are that one of you will be named as the parent with the right to determine the primary residence of the kids. That same parent will also be given the right to receive child support from the other parent.
Details associated with dropping off/picking up the kids will also be sorted out. Many times one parent will be responsible for picking up the children from the primary conservator’s home and then dropping the children off after the visitation period has ended. Sometimes when parents live a greater distance apart, a location in between your residences will be chosen for drop off and pick up. I can tell you that most of the time that location tends to be the parking lot of a fast food restaurant.
In the event that there are safety concerns regarding your or your opposing party’s ability to care for the children, then there may be restrictions put on that person’s ability to parent and have access to the kids. A history of family violence can be a key reason why visitation and access to the kids may be restricted at least for a period of time.
Child support is always a hotly contested issue. If you are the parent who will be on the hook to pay child support, a percentage of your net monthly resources will be taken in order to pay child support. Again, your income must be accurately shown to a judge in order to allow him or her to order an appropriate amount of child support. If one of your children has a special need that requires more than a "guidelines" level of child support that issue can be raised in a temporary order hearing as well.
Health insurance for the kids, as well as who and how out of pocket expenses, are dealt with is a related issue to child support that also will be decided in your temporary orders hearing.
How to conduct yourself on the day of your temporary orders hearing
Come back to our blog tomorrow to find out more advice on how to act during a temporary orders hearing. There are certain behaviors that you may think nothing of in day to day life that can be more important in a temporary orders hearing. We want to be able to share that information with you so that you can be prepared for your big day.
In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations to potential clients six days a week. It is our honor to meet with the people of our community to answer questions and discuss the important issues in your life.