Upon filing for divorce, a waiting period of 60 days begins. Parties cannot be divorced before the waiting period has expired. Because of the waiting period, temporary orders become necessary to protect parties and provide orders before the divorce is finalized and permanent orders are entered. After filing a Petition for divorce with the court, the filing spouse may need some immediate judicial action while the divorce process is ongoing. The temporary judicial action may come in the form of Temporary Orders issued by a judge on an ex parte basis. These orders include requiring temporary spousal support payments, setting up temporary custody arrangements for children, or even prohibiting the non-filing spouse from coming within a certain distance of the filing spouse. By their nature, these orders are time sensitive and can be requested immediately.
Requesting A Temporary Order
A Motion for Temporary Order can be filed with the Petition for Divorce. In the Motion, you can ask the court to enter temporary orders regarding temporary custody, support, and property division. The court can grant these requests after hearing only one party’s side of the story. When the other spouse finds out about the allegations made in the Motion, he or she can require the court provide him or her with a hearing on the Orders. The court can choose to continue the temporary orders if it believes they are reasonable and appropriate.
K.S.A. Section 23-2707 outlines the types of orders that may be requested and granted—these are discussed in detail below. When the party requests a temporary order, the court will docket the matter for a hearing within 21 days. The non-filing party will receive notice of the hearing and be permitted to appear at the hearing to present competing evidence. However, most orders may also be issued ex parte, meaning without the non-filing parent being present. These types of orders are reserved for extraordinary circumstances, particularly outside the context of a restraining order. Any ex parte order will expire upon the beginning of the hearing regarding a temporary order, with any order resulting from the hearing severing to replace the ex parte order.
One request in temporary orders can be a restraining order. In most divorces, there will be an order preventing the parties from bothering or harassing each other. This is not a restraining order in the traditional sense as it does not prevent contact, but does prevent harassing or violent contact. The parties are still welcomed to communicate and see one another.
There are more aggressive restraining orders a party can request in temporary orders. If there is a risk or threat of violence between the parties, the petitioner can request that the court enter a full restraining order either through the divorce or under the Protection from Abuse Act, which allows parties to initiate a separation action solely regarding the contact between the parties. This idea is present in Crim v. Crim, where the court found that this sort of request can be sought after despite the fact that a divorce is also pending.
Restraining orders can be issued to prevent spouses for acting in certain ways. These orders can restrain the spouses from “disposing of marital assets.” This type of restraining order prevents one spouse from getting rid of property that will likely be divided in the property division portion of the divorce. This type of order will generally apply to both the filing and non-filing spouse. However, when circumstances indicate that one spouse may be attempting to dispose of assets the order may be issued restricting just that spouse’s use of martial property, such as checking accounts. These types of orders do not require a spouse to use assets in a certain way, such as to support children—that type of requirement is covered by different types of orders. Instead, the key to these orders is restraining the use of assets until the property can be divided by the court as part of the divorce proceedings.
Possession Of Residence Orders
A possession of residence order is a particular kind of restraining order that may compel one person to leave the marital residence while the divorce proceeding is ongoing. This kind of order is necessary when there is a physical restraining order in place, as the spouses cannot remain in the same home per the terms of the order. Spouses frequently come up with their own decisions regarding who will stay in the home during the divorce proceedings, but without a court order those agreements are not legally enforceable.
This means that at any time, the “ousted” spouse can return home against the other spouse’s wishes; police will not be able to remove the spouse unless violence or the threat of violence exists. A possession of residence order alters this, allowing the spouse that remains in the home to enjoy peace of mind knowing the agreement can be enforced if needed.
Support orders mean that one party must make payments to the other. This payment can be for the spouse or for the parties’ children. Depending on the parties’ financial and living situation, an order of spousal support may be appropriate. If there are children involved, a temporary child support order may be entered by the court. Child support depends on an equation that considers wages, health care costs, child care costs, and several other factors that vary from case to case.
A spouse may require such support if he or she has been removed from the home and now is incurring additional living expenses. Support may be required for the reverse situation, where the spouse remaining in the martial home needs assistance making mortgage payments. This is particularly true when one spouse serves as a homemaker while the other spouse has traditionally worked for the couple’s sole income. The court may order spousal support depending on the length of the marriage, the financial situation of both parties, and a myriad of other factors. Child support is based on a formula which takes into account the parties’ income, health care costs, child care costs, and several other factors that tend to be case specific. A qualified attorney should be able to provide specifics based on your specific situation.
Child Custody Orders
The court can enter custody orders on an ex parte basis. If one party plans to move from the marital home after filing for divorce, temporary custody orders will typically be necessary. Parties can opt to leave the custody arrangement vague and see their children as they can. In some cases, however this is not an option and a more structured plan is necessary. These orders are modifiable as circumstances change, but because the goal is working toward permanent orders, the temporary orders will typically stay in place until the permanent orders are entered.
Child custody orders can be issued on an ex parte basis, but keep in mind they will only be temporary in nature and the court generally will not prevent a parent from having parenting time with their child unless compelling evidence that it would be in the child’s best interest is presented.
Other types of orders can largely serve to modify “custody” of children and can be issued ex parte. For example, a restraining order may prevent a spouse from coming into contact with the children or force the spouse from the marital home where the children are. The key difference is that the children must remain, while the spouses can be forced to adjust their conduct or location. Only when a hearing at which both parents are notified can the court modify the living arrangements of the children. Even in such situations, the court will only do so in the most compelling circumstances. Instead, the court will try to keep the children in a “regular” routine as far as residency is concerned during the other changes that the divorce proceedings bring about.
Modifying An Order
Once the non-filing party is served with the temporary orders, he or she can file a motion to modify the temporary orders if he or she is not pleased with the orders. A hearing on the respondent’s motion to modify will usually be held inside 14 days as that will be the respondent’s first opportunity to be heard by the court. The hearing mirrors a trial and the judge takes evidence from both parties into consideration when determining if the orders are appropriate. If the court finds that the conditions that upheld issuing the ex parte order still exist, another temporary order will take its place (ex parte orders end at the start of the hearing challenging them). If the court finds that conditions have changed or that the facts displayed by the non-filing party discredit the petitioner’s motion for temporary orders, it can issue new orders that it believes are just and equitable. Regarding children, the court will determine what orders would be in their best interest.
The procedure for altering an order that was issued after a hearing is comparable. The spouse who wishes to modify, which could be either spouse, will ask the court for a hearing. The court will plan a hearing and the parties will have a short trial on the necessity of the temporary order based upon the facts surrounding the case. Different from ex parte orders, temporary orders issued after a hearing do not terminate upon another hearing. Rather, the order will stay relevant until altered by the court or after issuing the ruling of divorce. Consequently, the court may change the order, evacuate the order through and through, or leave the order as is.