Contested divorce cases can sometimes take a year or more to complete. When the husband and wife have children in common, one or both of them are often unwilling or unable to wait until the divorce is finalized to get a child custody order / parenting time schedule in place. Often, one spouse has insufficient financial resources to survive and simply can’t wait up to a year or more to get spousal maintenance or child support started.
In such situations, either spouse may file a motion with the court seeking temporary orders. Upon receiving the temporary orders motion, the court may schedule a hearing to receive evidence and decide what temporary orders, if any, to issue. Temporary orders the court may issue include child custody, parenting time, spousal maintenance, child support, exclusive use of a home or vehicles, and even a temporary equal division of liquid assets. A.R.S. Section 25-315 B, C and E.
Temporary orders are not necessarily emergency orders. It often takes three months or more to get temporary orders issued after one party files a motion for temporary orders. Sometimes a judge is only able to set a hearing on temporary orders a month or two before the final trial. In such instances the parties may decide it doesn’t make sense to spend the time and money on a temporary orders hearing when their final trial will be just a short time later.
Temporary orders hearings are essentially small court trials to decide the issues raised in the motion for temporary orders. Each party must bring into court witnesses and documentary evidence to establish the claims she is making. Temporary orders hearings can, therefore, be quite complicated and expensive. Any temporary orders issued, however, only continue in force until the divorce is finalized, and the temporary orders do not set any precedent at trial. A.R.S. Section 25-315 F. Even though the parties may present extensive evidence and argument on certain issues at a temporary orders hearing, all that evidence must be presented again at the final divorce trial if the case doesn’t settle first.
Over the last several years, it seems fewer divorce litigants are pursuing temporary orders. This may be caused by the way the court schedules hearings now. Before the court will set a temporary orders evidentiary hearing or a final trial, the court usually first holds a scheduling hearing called a Resolution Management Conference (“RMC”). When the parties get to the RMC, they often find that the judge can get them in for a final trial only a couple of months after the first available temporary orders evidentiary hearing date. When they hear this, the parties frequently decide to forego the temporary orders evidentiary hearing and instead spend their resources on the final trial. As I stated above, it usually doesn’t make sense to spend the time and money on an evidentiary hearing to get orders in place that will expire just a short time later when the divorce is finalized.
In certain cases, however, temporary orders are imperative, such as when one parent is depriving the other of any meaningful parenting time with the children. Individuals should consult with a qualified attorney to evaluate whether it makes sense in their particular case to pursue temporary orders.
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.