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.
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.
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.
In the divorce proceeding the court can issue a temporary restraining order preventing parties from “disposing of marital assets.” This order, which applies to both parties, speaks to a restraining order that prevents one party from disposing of property that may be subject to property division later on in the divorce.
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.
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.
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.
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.