Frantic clients come in my office with a stack of papers, which were delivered to them by a person in regular clothes or perhaps an officer, stapled in a manner that makes reading it difficult, with language about restraining orders that makes understanding the content even more perplexing and on the last page, a hearing is scheduled for early next week! Please help me!
What just happened? The prospective client was most likely served with either a divorce or suit affecting children and the matter has been set for a temporary orders hearing.
Courts in most East Texas counties have local rules that impose a mutual injunction (enjoining both the person who filed the suit, called the “petitioner”, and the person who was served, called the “respondent”). This injunction applies to issues involving persons (the parties and their kids, if any) and property at the outset of a divorce or suit affecting their children. This injunction prevents either person from taking an unfair advantage of the other person and protects the children. It is generally intended to keep matters at the “status quo” which is a shortening of the original Latin phrase “in statu quo res erant ante bellum”, meaning “in the state in which things were before the war”.
The language of these mutual injunctions is confusing and many people believe it prohibits them from communicating with the other party or seeing their children. For the most part, this is not true. Most mutual injunctions apply during the pendency of the litigation and prohibit communication that is harassing or threatening, but they do not prohibit all contact with the other party. They prohibit withdrawals from accounts or spending of money unless it is reasonable and necessary. With regard to children, the injunction usually prohibits either parent from withdrawing the child from school, disturbing the peace of the child or secreting the child from the other parent, but only rarely will it prohibit sharing time with the child, as agreed by the parents.
If relief is requested based on an affidavit alleging bad behavior of one of the parents, the court can enter injunctions that are more restrictive, but absent such facts, the local rules and mutual injunctions apply to all suits for divorce or child related issues.
Close to the end of the papers the client brings in, there is notice for a hearing in the very near future. What is this hearing about?
Divorce and child related litigation uniformly takes longer than the client thinks it will take. Attorneys and “the court system” are routinely blamed for the delay, but many important issues must be considered before a final order can be entered. Some final decisions are made because the parties agree, but those that cannot be agreed upon must be presented to a judge or jury to decide. Information must be exchanged between the attorneys and disclosed to the other party so everyone can reach informed decisions and agreements, if possible. If not, the evidence must be gathered and organized in a manner that is admissible to the Court. This process can be lengthy.
In the meantime, what are the rules that the parties will live by for the next several months? Who will live in the marital residence? Who will have the right to use the cars or trucks? Who will pay the credit cards? Who will the children live with while the case is pending? Who will pay child support and how much? These are all questions that will either be agreed upon by the parties or decided by the judge at the temporary orders hearing.
Use of Property and Payment of Debt
Some counties limit the amount of time attorneys have to present evidence at the temporary orders hearing. To conserve time, clients are asked to provide information about their income and monthly expenses. This information is frequently reduced to spreadsheets and presented to the court in the form of exhibits. If the parties cannot agree on temporary orders regarding use of property and payment of debts, judges appreciate a concise summary so they can make informed decisions in the best interest of the parties.
Children’s Issues in Temporary Orders
If children’s issues are contested, witnesses may be called to testify about what the “status quo” of the children has been in the recent past. Generally, courts and social scientists will agree that, absent an abusive family environment, consistency in the everyday life of the child during the pendency of the case provides the most stability for them. So, if you have been the parent who provided the primary care of the child during your relationship, generally the court will allow the child to live with you and visit the other parent. Sometimes parents are even ordered to allow the child to live in the home and the parents rotate in and out of the house during the pendency of the case. In other cases, parties may agree to equally divide their time with the children in temporary orders.
Temporary child support may be ordered to be paid by one parent to the other or certain expenses of the child can be assumed by a particular parent based on income and needs of the child. The responsibility for health insurance and uncovered medical expenses must also be allocated between the parents on a temporary basis.
Hopefully, family law litigation is something you never have to experience, but if you do, understanding the basic process and procedures can help you make the best decisions during a difficult time.