Temporary Motions (Part 1)
Early in the legal process, parties may file motions for “temporary orders” with the court. In some states, these motions may bear an arcane Latin name, such as Missouri’s Motion Pendente Lite (pending litigation). The purpose of temporary orders is to establish temporary custody, support and property arrangements while the case is pending (i.e. until the parties agree on an acceptable final settlement or a judge orders one after a trial). A temporary order normally will be in force for the balance of the case. Often, a temporary order will address possession of the marital home, custody, and support of kids, maintenance, protection of assets, payment on debts, and any other pressing issue that cannot wait until the conclusion of the divorce.
A temporary motion hearing may be necessary for several reasons. First, in many states the filing of a divorce petition triggers laws designed to prevent either party from changing the status quo. While a divorce is pending, many states forbid either parent from removing children from the state and may even prohibit removing children from the “jurisdiction of the court,” a much smaller territory (usually a county). Also, usually the parent who had custody of the children at the time of filing continues to retain custody while the divorce is pending. In states where such statutes exist, parties to a divorce naturally have fewer things to argue about in temporary motions. However, in states where no such laws are in effect, a judge must decide the question of temporary custody at a hearing.
In addition to the question of custody, many unanswered concerns persist and may need to be resolved in a hearing. For example, kids may be facing the “tug of war,” seized by one party or another, or denied entirely to one party by the other. Funds could be squandered. One party may withhold necessary financial support to punish the other for going through with the divorce. In this case, the court will hold a temporary motion hearing because this precarious state of affairs simply cannot wait until the final trial date, which is perhaps a year or more down the road.
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While litigating temporary orders in court is one way to establish a temporary arrangement between you and your spouse, most parties and their attorneys normally make serious efforts to arrive at an acceptable temporary arrangement without going to court. In fact, as many as half of all divorces may be completed without a temporary order. There are several reasons for you to try to avoid litigating temporary motions:
- Proximity of the final hearing may eliminate the need for a temporary arrangement.
- Making a good impression on the judge deciding your case is an important part of winning a more favorable settlement in the end. Therefore, you may conclude that a reasonable temporary arrangement, while not ideal, will make a good impression on the judge. Moreover, convincing a judge that you are a rational, even-tempered person may be especially important if your spouse has alleged abuse. In addition, peacefully establishing a temporary compromise may avoid inflaming the opposing party unnecessarily, especially where the prospect of a favorable final settlement exists.
- Attorney fees are always a paramount concern. An attorney may charge you several thousand dollars to prepare and argue temporary motions. You have to decide whether the possibility of a slightly more favorable temporary arrangement is worth the money.
- Court time: the hearing on a motion for a temporary order may be at best perfunctory. Often, the evidence necessary to convince the judge to grant you temporary custody of the kids will be similar to the evidence that will be introduced at trial. This is particularly true regarding custody and support matters. So, if heard, the judge essentially tries the same case twice. This is not only very inefficient, but also very expensive. Therefore, most judges do not want to hear the same evidence twice in any divorce proceeding and may not give your arguments significant weight.
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There are nonetheless cases where matters must be tried. If you are seeking primary or joint (50/50) custody, the temporary arrangement may be strategically critical to your success. This tends to be true particularly where the final trial date is in the distant future; a judge deciding your case a year or more down the road might be very reluctant to disturb an already established custodial arrangement. Also, where mom and dad are in different school districts, dad may be disadvantaged if his children commence a new school while in mom’s care. In summary, you and your attorney must carefully weigh the costs and benefits of seeking a temporary order at the outset of a divorce and decide whether to compromise or fight. Of course, the other side may pursue its own temporary order and take positions that would force you into a court fight.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store .