What Is A Temporary Order?
Once a petition is filed and the other side has filed an answer, the case is considered to be started, or initiated. However, litigation takes a long time. Unless the case is settled early, family law litigation can take in the neighborhood of a year or even more. So when there are issues that need temporary resolution between the beginning of the case, and the end, a party can file a motion for temporary orders. The customary issues in a family law case temporary orders hearing include temporary possession of the home, child support, alimony, temporary custody, temporary parent time, restraining orders against dissipating marital assets, medical insurance reimbursement, medical expense reimbursement, childcare reimbursement, and whether supervision the parent time or other restraining orders are needed, etc.
If a party feels that temporary orders are needed now before the case is resolved (at mediation or at trial), they can file a motion for temporary orders, and get a hearing before the court.
How Can Someone File A Motion For A Temporary Order?
One would draft a motion setting forth the relief that they are requesting and an affidavit explaining the facts that motion is based on. For example, if I am requesting temporary alimony, I would set forth the parties’ incomes, their expenses, and a calculation of what would be a fair division. If I were requesting temporary custody, I would explain who has been the primary caretaker, and what the history of the parties with the children has been. I would do an analysis of the fourteen or so different factors that a court considers in determining child custody.
Typically, it would be a short motion explaining the relief you are requesting, with a longer affidavit explaining the facts justifying your request. You can also include a memorandum of law, which cites the various statutes and cases that provide legal guidance to the courts when they make that decision. One can also file a verified motion that combines the motion, a memorandum of law, and the affidavit on to a single document. All of that said, certain page limits that apply. Typically you are only going to be allowed twenty-five pages, which include exhibits.
Once a motion, or a verified motion is filed with the court (together with any affidavits, exhibits, etc.) then we have to set up a hearing. We call court and get a hearing date.
The court will not set a temporary orders hearing fewer than twenty-eight days from the date that your motion is filed. Once the court sets the hearing date, other deadlines attach, counting backwards from the date of the hearing. The party responding to the motion may file a response, and counter motion within fourteen days prior to the hearing. If you choose to file a reply brief, or a reply affidavit, that may be done up to seven days prior to the hearing.
Once a motion for temporary relief has been filed, and you have scheduled a hearing date with the court clerk, whoever files the motion not only is obligated to draft, file, and serve the other side a Notice of the Hearing, which includes the date, time and location of the hearing.
What Can Someone Expect At A Temporary Orders Hearing?
At a temporary orders hearing, the procedure may differ depending on whether a court commissioner is the judicial authority presiding at the hearing, or if it is a judge presiding. A court commissioner has a great deal judicial authority, but not as much as a judge. They can make temporary orders, but they cannot make permanent ones. Also, court commissioners do not put witnesses on the stand to testify. In fact, if a temporary orders hearing is in front of a court commissioner, the testimony will be “proffered.” That means your attorney will stand up and say, “Your honor, here is my client. If called to testify they would say X, Y, Z. “
This makes a hearing in front of the commissioner shorter than it does before a judge, because there are no witnesses that are on the stand to be examined, or cross-examined. Temporary orders hearings are meant to be quick hearings to get prompt relief to one or both parties quickly, so those immediate concerns are addressed while the parties prepare for a mediation or trial.
If the hearing is before a judge, the judge has the discretion to hear or proffer, but very often, they also require testimony. You typically see this situation on television shows, where a party is under oath to tell the truth, the whole truth and nothing but the truth etc. This hearing takes much longer. In the State of Utah, in the more populated areas, court commissioners are generally available.
However, in rural areas, court commissioners are generally not available. At a temporary orders hearing, the attorney will often refer to the motions and affidavits that have been filed. If they are called to testify, the witnesses who are called to testify would say what is in their affidavits. The other side will raise any objections they have, and will present their counter motion, and make a proffer for any evidence contained in their affidavits. Then you would be allowed to reply. The court will then usually issue a ruling orally right there in court.