Have you filed for divorce but are unclear about what the next steps are? Or have you been served with divorce papers from your spouse but haven’t heard back from your spouse’s attorney? Today’s blog post from the Law Office of Bryan Fagan should be helpful, then. No matter what position you are in, it is normal to be a little nervous or apprehensive about the process since you have probably been through a divorce before.
Walking you through one of the most important phases of your divorce, the temporary orders phase, can probably clear up some misunderstandings about the divorce process. It is important for you to be able to speak to your attorney about the circumstances of your case so that you and your attorney can create a plan for your case.
In some situations, you may be able to work closely with your spouse and their lawyer on negotiating the terms of your divorce with little to no arguments or disagreements on the subject matter. Keep in mind that this is very difficult due to the sheer breadth of issues in a divorce. Your children, your property, your home, your debts and a range of subjects below those are all relevant in a divorce.
If you can avoid having to prolong your divorce for months due to the inability to readily agree with your spouse on the major issues of your case then you should do so. It is better for everyone involved. However, you may find yourself in a situation where you are not able to avoid a longer and more contentious divorce case. That is what we will talk about at the beginning of today’s blog. At the end, we will go through the process of how our office can assist you if you and your spouse do not need a temporary restraining order and/or temporary orders.
What is a Temporary Restraining Order?
In most Texas divorce cases, a temporary restraining order (TRO) is filed at the same time as the original petition for divorce. When you see the word “order” in connection with a divorce, it is typical an order can only be signed after a hearing where both you and your spouse are able to offer arguments to the judge as to whether the order should be signed or not. A TRO is an exception to that rule.
When it comes to a TRO, the judge in your case can sign the order without notifying you or giving you an opportunity to defend yourself against the arguments in made in favor of signing the document. The reason that a TRO can be signed without your knowledge or notice to you is that the purpose of the TRO is to protect property or protect a party to the divorce when the safety/well-being of the property/person is in question.
The TRO will prevent you and your spouse from threatening one another, harassing the other one at their job or school, or from destroying or hiding potential evidence in the divorce case. If you are concerned that your spouse may want to remove you from being covered by insurance or may try to drain the bank account leaving you penniless, you may want to file a TRO at the same time as your petition for divorce.
A TRO is temporary in nature- hence the name. Typically a TRO, once signed by the judge, can be in effect for up to 14 days. Upon motion of the party who filed the original TRO, it can be extended for an additional 14 days after that. The purpose of only allowing the TRO to be in affect for less than a month is for your spouse to have an opportunity to go before the judge in a hearing to contest the allegations made within your petition for divorce and TRO.
The effect of violating a TRO can be pretty drastic. Violation of a court order is generally known as being held in contempt of court. Punishments for violation of a court can include fines and even jail time for extreme violations. I wouldn’t be too concerned about jail time for minor violations of a court order, but if you were to harm your spouse physically or emotionally then that may be a different story.
Seeking temporary orders after filing for divorce
We have already gone over the general process for filing a divorce. You can file the divorce petition along with the TRO, which are done at the same time in most circumstances. Along with those documents would likely be a notice for the actual temporary orders hearing.
You can ask the court to assign your case a temporary orders hearing date. This would allow you and your spouse to show up to the courthouse and submit evidence to the judge as to why the TRO needs to be extended until the end of your divorce. This would allow for both sides to have their say before the judge ultimately rules one way or another.
Why might you need orders that extend past this initial 28 day period? In some situations the living situation for you and your spouse becomes untenable. You all may get to a point where it is not safe for you and your spouse to be living together. If alternative living arrangements cannot be worked out between the two of you, then you may need to go to a temporary orders hearing to have the judge play tie breaker. The biggest issue in connection with your living situations is which spouse is able to remain in the family home during the divorce case.
Another situation that commonly results in temporary orders being necessary would be to work out a plan on which spouse is going to pay certain bills during the pendency of the divorce. Think about all the financial responsibilities that you have: mortgage/rent, daycare/school for your kids, utilities, insurance, etc. are all on the table. These bills will not go away just because you have filed for divorce. Hopefully you and your spouse can get to a point where you can divide up the bills on your own. If not, you can see the judge and he or she can decide that for you.
Part of this conversation about money concerns whether or not both you and your spouse will be able to survive without the financial assistance of the other. If both you and your spouse are working and earn about the same income then this probably won’t be much of a problem for either of you. However, if you have been out of the workforce for years or work only part time you may need financial assistance for at least as long as the divorce runs.
If you find yourself in a position like this, I would recommend that you look into whether or not temporary spousal support from your spouse is a possibility. It is not always, but can it be a useful tool in your case. Spousal maintenance after the divorce ends can take a little more effort to win, especially since you must have been married for at least ten years for it to be awarded, but temporary spousal support can help you stay on your feet while looking for employment.
Finally, the most important issue of your divorce for parents would be conservatorship, possession and support of your children during the divorce. While your life in general will be changing dramatically as a result of the divorce, your children’s lives and your relationship with them will be changing as well. Temporary orders regarding one spouse paying child support to the other will be instituted. Temporary orders regarding who has primary conservatorship of the kids and who will have visitation will be decided as well.
Conservatorship refers to the rights and duties of each parent in relation to their children. This is an important part of any divorce or child custody case, but it gets much less attention than the actual possession component of these cases. We all want to have as much time with our children as possible, but it is the ability to make decisions for our children that is just as important. Imagine being in a position where you cannot weigh in on whether or not your child can get a medical procedure or take a certain class in school. That is essence of conservatorship.
How to arrive at temporary orders in your divorce case
Here are the ways that you and your spouse can arrive at temporary orders in your Texas divorce case.
Go to see the judge: Temporary Orders Hearings
First, you and your spouse can attend what is called a temporary orders hearing. The judge would listen to evidence submitted by you and your spouse (both documentary evidence and testimony) and render a decision on whatever issues are relevant to your case. This is a method that does not have to be employed all that often. Most divorce and child custody cases settle prior to a temporary orders hearing.
The main thing that I will tell clients as to why they do not want to be in a position where they rely upon the judge making a decision in the case is that you do not know what way the judge will go as far as ruling in anyone’s favor. This may seem like an obvious statement to make but bear with me while I explain myself.
The judge will not get to know your family well enough to as aware of every circumstance affecting you all during the course of a one or two day hearing or trial. So, he or she will be operating at a disadvantage as far as decision making is concerned. While you may never see eye to with your spouse on these important subjects, that doesn’t mean that the best thing for you to do is to roll the dice and see what the judge has to say. It’s rarely the best option, but if you fail to go into negotiations with an open mind then it may become your only option.
Mediation and settlement
Mediation is the likely ending spot for arriving at temporary orders in your child custody or divorce case. This means that you and your spouse would agree to name a third party mediator to help arrive at a settlement in your case. You all would go to the mediator’s office with your attorneys and that mediator would assist you all in coming together and hopefully settling your case.
If you reach a settlement on any issues in your case, a Mediated Settlement Agreement (MSA) would result which contains a summary of the agreements reached. That document would be the basis for one of your attorneys to draft temporary orders for your case. Keep in mind that a settlement does not have to be reached on every item in your case. Rather, you and your spouse can settle certain issues and then leave other issues to be discussed with the judge.
Informal settlement without mediation
The final alternative to arriving at temporary orders is negotiating directly with your spouse and arriving at settlement terms. This is not always something that is desirable considering that you and your spouse can “settle” a case on a Monday only to find that your spouse has changed their mind shortly thereafter. The best I think you could do is to get the agreement in writing with everyone’s signatures included. That way you can notify the court of the settlement in the form of a Rule 11 agreement between your two attorneys. There is no guarantee that this will hold up if one of you goes back on your word, but I think it’s the best option all things considered.
Questions about temporary orders and temporary restraining orders? Contact the Law Office of Bryan Fagan
There are a lot of moving pieces within a divorce case. For that reason, I recommend that you contact the Law Office of Bryan Fagan if you have any questions. We offer free of charge consultations six days a week where our attorneys can answer your questions and provide you with direct feedback about your specific circumstances. Thank you for choosing to spend part of your day with us today here on our bog. We hope you will join us again tomorrow.