One of the first steps in a divorce process that you may be asked to consider is whether you will need a temporary order or not. Here Lindsay Barbee will demystify temporary orders and tell us how to get them.
- What are temporary orders?
- What are the options for getting temporary orders in place?
- When do you see the less formal arrangements happening?
- What do you tell your clients about their temporary orders hearing?
- What do people need to know about the hearing itself?
- How do you build the financial information sheet?
- How do you factor the once-in-a-year payment into the monthly expenses?
- Is child support also something that we see in temporary orders?
- Does temporary spousal support during temporary orders mean getting spousal maintenance after the divorce?
- What do temporary orders cost?
- What is cross-examination?
- How long does it usually take to get a hearing for temporary orders?
- How long do we expect to get in front of the judge for regular temporary orders?
- Have you ever gone to mediation for temporary orders?
- What are the differences between the procedures of Dallas county and Colin county?
- What differs between the two counties if you don’t like the ruling you get in temporary order?
- What happens if you don’t like the temporary orders in the court of general jurisdiction?
- Do most clients end up having temporary orders?
- What are standing orders, and how are they different from the temporary orders?
What Are Temporary Orders?
We use temporary orders for the things we put in place to keep the status quo while a case is pending. It can be everything from who’s going to pay the bills to the schedule for the kids once the parents live in separate households. It can regulate how people spend money, whether they can use a certain bank account, how much debt they can incur, and how their attorneys are paid. All of those things that ensure people know what’s going on while they’re going through this divorce process can all be defined in that area of temporary orders.
Truly when people first come into the divorce process, they ask such questions as “Are we going to have to move or have to sell the house?” Those are really the issues that are getting resolved in temporary orders.
What Are The Options For Getting Temporary Orders In Place?
There are a lot of different approaches you can take. It could be as simple as two people having a verbal understanding. The intermediate thing we do when we don’t necessarily need to go to the judge to ask for something to be done is that the parties, through their attorneys, can enter into what we call a Rule 11 agreement, which is based on Rule 11 of the Texas Rules of civil procedure. It says that the agreement is put into writing and then filed at the court. Therefore the agreement defines the parameters of how things are going to go.
If the parties or the attorneys are unable to reach an agreement or come to some sort of understanding, we proceed to a temporary orders hearing. This is where you file a request with the court to have the judge hear everything. Thereafter, the judge is the one who defines the parameters.
You mentioned that there could just be an informal arrangement. A temporary order is an order of the court, and so it’s actually a written document that contains all the commands about what you shall and shall not do. So let’s talk about the less formal arrangements that people sometimes make in the process.
When Do You See The Less Formal Arrangements Happening?
I think it’s a great thing anytime clients can come to their agreements because it puts them in control. Negotiating something as simple as what day to pick up the kids or how to pay the phone bills sets the tone of future cooperation between parties, especially co-parents. One of the best parts about that is that it helps to reduce divorce costs.
Also, outlining the bullet point for clients in the agreement helps them know what’s going on. The agreement is filed with the court, and then time and resources are spent doing other things like getting a snapshot of the marital estate through a sworn inventory and appraisement or getting the intervention from a mental health professional in case of a child custody evaluation. These and some other things can be agreed upon and done instead of waiting to get into court and then having your attorneys prepare for this formal adversarial hearing.
The word ‘temporary’ in the term temporary order makes it sound informal or not as important. This can be a little misleading.
What Do You Tell Your Clients About Temporary Orders Hearing?
I call it a band-aid because it is in many ways from that time you file for divorce. It is a temporary arrangement prior to getting your final agreed divorce decree or just a final decree of divorce after a trial. There are just basic things that we always know that we will have to deal with. As I mentioned earlier, things like payment of bills, the children’s activities, the schedules, the children’s health, and childcare arrangements fall under temporary orders.
Often, when people are getting along and trying to cooperate, we just formalize what we’ve already been doing and just make sure everyone knows where they’re supposed to be at what time.
I think that is really important. Putting it all on paper helps set expectations, avoid frustration, and clarify those understandings as everybody knows what to expect. If the parties cannot agree, they go to a hearing.
What Do People Need To Know About The Hearing Itself?
Depending on what court and jurisdiction you’re in, some judges require that you go to mediation before having a hearing. Some judges give you 20 minutes aside. That goes by very quickly because that’s the time for you to put on your case and your attorney to cross-examine the other side if you’ve got witnesses. It’s all about simplifying and consolidating the main issues like finances and where the kids will be before the court.
One of the documents we use in every temporary order case is a financial information sheet, which is your monthly budget. It shows how much money there is between the couple and the cost of each bill. The document estimates things that maybe aren’t as much of a fixed cost, such as groceries or incidentals for medical stuff for the kids and even entertainment.
The financial information sheet is a really important document, and it takes some work to put it together.
How Do You Build The Financial Information Sheet?
When filing a lawsuit, you have to do required initial disclosures. This includes both sides having to produce and exchange two years’ worth of financial documents and tax returns. After going through those statements, we can create the budget, whether they’re from our client or the other side.
I use the Mint app, and other similar software applications to do the budgets. Also, many banks help categorize things that you spend money on. So those are all different tools that we use to gather the financial information. However, it’s never going to be the exact amount spent monthly. For the clients who don’t know or aren’t as involved in the finances, we usually have to work with the other side to get that information.
How Do You Factor The Once-In-A-Year Payment Into The Monthly Expenses?
Often, I will have clients just take the annual fee, dividing it by 12 and adding it in there because it needs to be paid and budgeted. In the case of quarterly payments, we use a rough estimate. What the judge is going to do, or even if you are figuring out the finances by agreement, is look at those monthly amounts that both people have. Sometimes it includes getting a second residence if one of the spouses moves out. We move those numbers around and then look at what income each spouse brings in.
If there’s a shortfall, then we look at the financial landscape as a whole. It may then be that the other spouse who makes more will be transferring a certain amount of money each month to their co-parent to help cover those bills. Or a judge can say, “Well, we know you’re not living in the house, but you’ve got to keep making the mortgage or car payments.” So it gets split out because the community estate is one big pie; it doesn’t matter whose paycheck it comes from.
That can be called temporary spousal support, where one spouse is helping to fund some of the expenses for the other spouse’s benefit. And we certainly see that in the temporary orders.
Is Child Support Also Something That We See In Temporary Orders?
It is. It’s still the same thing, but it’s more of a kind of math problem in this stage of the case than once you have a final order. This is because people have heard of guideline child support, which is the amount that the court orders at the end of the case to be paid every month by one parent to another. It’s calculated using a formula percentage depending on the number of kids. But while a case is pending, I think of it as a family budget because everyone is still a member of that unit until when the judge grants your divorce.
One thing that people don’t understand in the state of Texas is that you’re still married until you’re divorced. That means that there’s still community income and community property, which will change once the divorce is finalized.
Does Temporary Spousal Support During Temporary Orders Mean Getting Spousal Maintenance After The Divorce?
That’s correct. And there are also situations about a prenuptial agreement that have been entered into before marriage that actually outline a lot of these temporary issues. That’s something important for people to talk to their attorneys about so that they know where the general rule might be. Those terms may bind you, and so there might be limits on the amount of support that the court can order.
That’s right. And you just raised a really good point: the premarital agreement. You may want to think about premarital agreements because it allows you to put some of those parameters in place while you are still in love and anticipating marriage. This prevents you from having to go to court later on.
What Do Temporary Orders Cost?
For regular temporary orders hearing where you’re not in an emergency or family violence situation, I think of it in terms of an hourly rate and how much time it takes. If we’ve got a half-day hearing, I usually tell clients it will take 15 to 20 hours of preparation to draft everything and get all the evidence together. I make it a point to work with clients prior to the hearing, so they understand what questions will be asked and how we will get through the information to be efficient before the court in such a limited amount of time.
And it’s not ever going to be a script because we want our clients to tell their story, and you don’t want it to feel forced or rehearsed. But we discuss the ideas of what kinds of questions to expect from their lawyers and even from the opposing counsel during cross-examination.
What Is Cross-Examination?
Firstly, we have a direct examination when your lawyer puts on your case for you. They ask you open-ended questions such as who, what, when, where, why, and how. In cross-examination, it’s the other lawyer’s chance to ask questions from the adverse party or an adverse witness. And those are typical ‘yes’ or ‘no’ questions. Since your lawyer cannot ask you a leading question that suggests the answer, a cross-examination question is to dissect, poke holes, and clarify things to make their case through their questions.
Questions like, “Isn’t it true…?”
Yes. That’s exactly what it is. It is nerve-racking for someone who has not been through a legal proceeding before because cross-examination sounds like such a scary thing from TV and movies. We tell our clients to only answer the question that’s asked. And the question I always ask clients at the beginning of any preparation we’re doing is, “Can you tell me what color the sky is?” Everyone says, “Blue.” I say, “No, listen to the question I asked you. Can you tell me what color the sky is?” And once clients realize that, they can take a breath and realize what is happening.
The good part is, even if you feel like, “Oh my gosh, the other lawyer just beat me up,” I get to come back as your lawyer to redirect and clarify things. So if I see them trying to make an inference or take it down a direction whereby you didn’t get to say everything you needed to say, then your lawyer can come back and help.
And that’s where that preparation is so important because we spend time with our clients to really flesh out the story, to know what it is. During cross-examination, ‘yes’ and ‘no’ questions may make some things appear a little different from how they happened, but that’s why redirecting is necessary to put the story right.
I always think it’s such a highly stressful time. Being cross-examined is not fun, as it’s like every decision you’ve ever made is under examination, thereby making it really hard.
It’s really hard. Hence one of the reasons why we encourage clients to reach some sort of settlement is to avoid that adversarial portion of the process, which is not fun. It’s difficult to go from having your spouse’s lawyer beat you up on the stand to standing next to each other at the kid’s soccer game.
You raised a really good point that spouses share details about their life in marriage relationships. And when we come into the courtroom, people are often surprised to see that those confidences will or can be used against them. So this can create a lot of deep wounds that make it very difficult to be at the soccer game.
It’s true. And it’s not insurmountable. We have had clients who have had these adversarial hearings. Going through such at the beginning of the case makes them realize that going to court is not what they thought it was going to be. We know that this is a very limited process. We can buy time and get just the amount of information that will be relevant in the beginning.
Also, one of the things that’s difficult to understand is that the rules of evidence limit us. Evidence presented to the court has to be reliable, authenticated, and up to standards. This can frustrate people since they have been told many things and cannot blur them from their minds.
Concerning the evidence you mentioned, we put such in the initial disclosures mentioned earlier. It has to be exchanged within 30 days, so it’s important you bring your documents to your lawyer because we make your case with them. Often, the temporary orders hearing doesn’t happen in the first 30 days. At the end of the deadlines, not turning over the documents that you plan to use in that hearing means you’re not going to be able to use that awesome text or that your kid’s doctor report in the hearing.
We have to start gathering those documents very early in the game when we know we’re going into court for this or that. Because some things have to be on file with the court under a business records affidavit for 14 days, so you don’t have to bring the custodian of records down to court. It’s a lot of preparation. So it’s good to ask your lawyer about when you need to start gathering those documents.
One of the very frustrating things about the divorce process is having to go back to collect all these documents or if the other party has access to all these documents. It might seem to a spouse that they are working and that the other spouse is not doing much.
But the point is to help your lawyers to get the needed evidence for the hearing. This will help clients save themselves a lot of heartaches and a lot of attorney’s fees just by helping us to help you.
Exactly. Also, there are some amazing paralegals, as we have in our firm, who work hand in hand with each lawyer and bill at a lower hourly rate than we do which can be very helpful when divorce costs are a concern. These people can be a real resource to our clients to help them navigate through several necessary things, even if it’s on a granular level. People may not be dealing with the finances as much or might have even gone paperless. These people can help track down different institutions online and find ways around such issues.
Now we’re sharing with everybody that there is a lot of work involved in the process and that temporary orders are important because they set the stage.
How Long Does It Usually Take To Get A Hearing For Temporary Orders?
So there are different ways that hearings can come about. Firstly, if a temporary restraining order is granted, the law says the hearing must be set within 14 days because it is based on an affidavit and a sworn statement in writing filed by someone. That is the only thing the judge looks at in that situation, and the other side doesn’t have the time to be able to give their side of it. We call it a due process issue. Often, the 14 days are extended to 28 days either by agreement or if the court has other cases that take precedence.
On the other hand, an emergency protective order occurs when there has been family violence. And again, it’s something that’s done based on an affidavit filed by the petitioning party. When this is obtained, it is to be set within 20 days, a full-blown hearing. A protective order is a final order and can last up to two years.
How Long Do We Expect To Get In Front Of The Judge For Regular Temporary Orders?
Before the pandemic, it used to be within a couple of weeks. Now many courts are still doing things by Zoom, which has been really great and efficient. But there’s still a backlog that we’re witnessing in many different counties where it could be three weeks, six weeks, or two months in some situations.
That is another reason why trying to work things out is always going to be the better outcome financially for people. That time between filing for divorce and when the court can set you for a hearing is a limbo period. It should be an incentive for people to realize that they’re not going to get to just rush through the courthouse right away.
Have You Ever Gone To Mediation For Temporary Orders?
I have. A couple of years ago, I had a case in Houston where it was required to go to mediation prior to any temporary order hearing for the parties. It’s not uncommon that we have some sort of initial settlement conference with the other side. This could take place on Zoom, where everyone is discussing the issue and the way to move the case forward on the same screen.
In the more traditional mediation setting, different zoom rooms are used while the mediator shuffles back and forth, just trying to help them get through a certain list of things to gather more information and work on settling the case.
Here in Texas, different counties have different procedures. Even within each county, each court then has different procedures as well.
What Are The Differences Between The Procedures Of Dallas County And Colin County?
Courts in Colin county are courts of general jurisdiction. Some specialize more in family court and hearing of family cases, but general jurisdiction means that a judge may have a docket where they have everything from a civil matter between businesses to a divorce case at the temporary orders to criminal matters. Therefore, those judges set no special time aside. They hear different kinds of cases where everyone announces whether they have agreements prior to the beginning of the hearing or how much time they need.
In Colin county, a rule says that the temporary order’s hearing is 20 minutes aside. There are very few exceptions to that where one has to work hard to explain to the judge why you can’t put on your case in 20 minutes.
And then, in Dallas county, we actually have judges who are family court judges. All they hear are family court cases, but they have associate judges.
What Differs Between The Two Counties If You Don’t Like The Ruling You Get In Temporary Order?
Colin county has district court judges that hear everything, the same in Denton county. But in Tarrant county and Dallas county, we have the associate judges. Instead of being elected, these judges have been appointed to help with these cases by the district court judges. It’s the overflow. And mainly, our district court judges hear the final trial and certain specific issues. This helps to cut down the time to get into court.
Once one has had the hearing in front of an associate judge and gets a ruling, which is the judge’s recommendation, while it is an order of the court, it is appealable de novo to the district court judge. Where de novo means that you take the ruling and you have to abide by it until you get in front of the district court judge. But the district court judge hears your hearing all over again from the start. They do not review the record or make a judgment based on the former evidence, they are hearing it fresh.
But that also means it’s a second round of lining up the witnesses and preparing the exhibits, and you are putting in again all that work that went into the original temporary orders hearing.
Yes. People always ask too about these de novo hearings. Again, the law says that it has to be set within 30 days, but it’s been a long time since any of us has been able to actually have a de novo set and heard within 30 days. What some of the judges do is to give a scheduling conference or a pre-trial on the de novo hearing, but it could be months out from that first appearance before them before you actually get to have your do-over.
What Happens If You Don’t Like The Temporary Orders In The Court Of General Jurisdiction?
You may ask the judge to reconsider, which will probably be denied. In certain instances, we have what’s called Mandamus relief, which is where you take it from the district court to the actual Court of appeals, whether it’s the Dallas Court of appeals or the Fort Worth Court of appeal, depending on the jurisdiction of the court you are in.
A Mandamus is where you make your case for how the district court judge did things so horribly that you need this upper court to intervene in the middle of the case. So it’s got to be something pretty serious for them to even take it up.
The reasons for going to the Court of Appeal have to be pretty serious. It might be like a jurisdiction question or that the court didn’t even have authority to hear it or some other issues.
So even in the courts that have associate judges, one will be living under those temporary orders for a while as one’s case rocks along. This is another reason why so much preparation goes into these hearings because this will set the stage for a large amount of time while your divorce is pending.
It is. We talked about the nuts and bolts of the kinds of things that the judges rule on, but it also gives you a roadmap because the judge will talk about what the schedule’s going to be, how the bills will be paid, getting everything ready for mediation in terms of exchanging, sworn inventories that show all of the assets and liabilities by a certain day.
The judge is most likely to state the need to be in mediation for three or six months. Oftentimes the judge will appoint a mediator to handle your case. And unless you are able to reach a settlement agreement prior to mediation, that’s an order of the court requiring both parties to participate in mediation in good faith prior to ever having a final trial on the merits.
Do Most Clients End Up Having Temporary Orders?
The cases where we ultimately have a temporary orders hearing are usually the very high conflict cases or situations with family violence, child neglect, or substance abuse. In those situations, you can do your best to try to work something out, but if the other side is just not responding or willing to make any agreements or come around for a discussion, the court is needed to intervene.
But even in the cases we have set for temporary orders, the closer the hearing, the more anxiety people have, and the more stress they have. They start thinking, “Oh, do I really want to go to court?” “Do I want to do this?” There’s something about being at the courthouse and walking through those metal detectors, where you might be sitting and waiting for the judge to call your case, and the lawyers will say, “Can we go in the other room to talk?” There’s always an opportunity at every step of the way to resolve things by agreement. The quicker you do that, usually, the less costly things are.
It is so good when both parties can participate in the decision-making process and actually make an agreement. But people can find it frustrating to settle after all the preparation work that has been done. But the preparation work oftentimes makes that settlement possible.
A hundred percent. Even when you have an unsuccessful mediation and your case is not settled, but information is still being gathered, you’re getting a sense of what the other side needs and wants so that every single step of the way gets you closer to a final resolution of the case.
It really helps flush out the strengths and weaknesses for both our clients and the other side. To everybody who is watching this, everything we’re talking about today is general information and not legal advice. In case you are preparing for a temporary orders hearing, make sure to consult with your lawyer because different situations will require different levels of preparation.
The last thing I want to touch on is standing orders which is seen anytime a divorce is filed. This could sometimes confuse many of our counties, including Dallas county.
What Are Standing Orders, And How Are They Different From The Temporary Orders?
That’s a great question. I believe we have one standing order in Dallas County, Colin County, Denton County, and Rockwall County. Also, Tarran County had an emergency one at the beginning of the pandemic, but now they do not have one.
It is an exhibit usually three or four pages long that when a divorce is filed, the clerk automatically requires it to be attached. Every judge signs it in that jurisdiction, and it is the dos and don’ts of how to act while the process is ongoing. You have everything from don’t cancel someone’s cell phone service or credit cards or locking them out of the house without the judge’s authorization. Don’t destroy or hide property. Don’t divert mail, and don’t change online passwords. Don’t pull the kids out of school. Don’t run out of state with the kids and try to relocate to another jurisdiction. All of the things that intuitively we think you wouldn’t do, but we need them in writing for some reason.
We tell our clients to read this very carefully because it says everything they can’t do, but it also specifically authorizes behaviors. It doesn’t just say lockdown your bank accounts but says you can use funds or incur debt for reasonable and necessary living expenses and business expenses, and payment of attorneys. Of course, a lot of that is subject to interpretation. Like a temporary order, which is an order of the court, the judges sign the standing order, and certain judges take it as seriously with potential contempt of court if violated.
Examples of such actions can be making big purchases or paying off credit cards. This may not be authorized as you are supposed to be making minimum payments on the debts. If you need to do anything different, you need to talk with your lawyer. Again, there may be good reasons to be doing that; for business or living expenses, but pay attention so as not to stumble into activities that are not authorized and then create problems.
It can. Also, some counties have what we call morality clauses in the standing orders. Even though you consider yourself separated from your spouse, maybe both of you are dating another person, there are judges who say you’re not allowed to have someone you’re in a dating relationship with around the kids between certain hours. So you can’t have the boyfriend or girlfriend sleepover when you’ve got the kids with you. And a lot of judges take that very seriously.
They do. And it’s never a fun thing to be appearing in front of the judge when you have violated one of those orders. That’s something important for people to pay attention to.
And it doesn’t mean that you can’t do big things. We have had several cases where, in this market with real estate, people know they’re not going to be divorced in time to really take advantage of it, so they do want to agree to sell the house or to make a certain purchase.
And my rule of thumb is always that we can get an agreement on anything, and usually, the judge will approve it. It just involves making sure both sides know about it, and they’ve signed off on it if a major purchase or acquisition of some major debt liability is going to be made so that you’re not getting called out for having done something without the other person’s consent.
It’s definitely not okay to say, “Well, I knew she would’ve agreed with this,” or “He would’ve agreed with it,” and to go forward and then create a big mess.
I think clarifying expectations and having written agreements can really help move the case along.
This has been really fun. Thank you for sitting down and talking with me about temporary orders, why they’re so important, and what people need to pay attention to.
It was lovely. Thank you for having me.