TEMPORARY ORDERS AND RELIEF IN FLORIDA DIVORCES
A common element in divorce appears to be consistent in practically all cases, the finish line is farther than it seems. This is due to the fact that spouses usually cannot agree on everything that encompasses a divorce such as; alimony, child visitation, parenting plan, property division, and child support. On rare cases which are the exception and not the rule, spouses will agree to everything, but in many of these cases there is very little assets and no minor children. Disagreements range in severity from a few isolated issues to almost everything under the sun. Even a few isolated issues can quickly spread into other areas that spouses thought they had agreed about.
Nevertheless, on occasion one of the of the spouses in a divorce requires immediate legal relief. Some common examples include domestic violence, abusive or threatening behavior, victimization, or harassment. Additionally, if one spouse earns more the other spouse, the lower earning spouse worries how they will be able to support themselves without the other spouse’s income.
Understanding that certain issues are more urgent than others and that in particular circumstances a divorcing spouse requires immediate action by the court, which are called temporary orders and authorize courts to enter such order under Florida law. Also, known as an order for relief, this can be the most appropriate and necessary remedy for a divorcing spouse’s immediate circumstances which cannot wait until the conclusion of the divorce action.
How is Temporary Relief Granted?
The court upon hearing in a divorce case can grant relief in the form of issuing temporary orders. As the name suggests, these orders are intended to only remain for a specified length of time, usually through the pendency of the divorce. Pending the conclusion of the divorce, modification of temporary orders by the court is determined by any changes in the divorcing spouse’s situation. Usually, modifications of temporary orders are commenced by one of the divorcing spouses filing a motion in court. The motion is used to apprise the court that there has been a change in circumstances and the reason why the temporary order is no longer suitable. Any temporary orders that remain unchanged, are enforceable as court orders and last the duration of the divorce until a final order is entered by the court.
A constant in every hearing for temporary relief is that the party making the request usually bears the burden of showing the need for the court to enter such an order. The burden must be proved by a preponderance of the evidence standard, which means that the circumstances exist more likely than not and the requested relief is justified.
What is an “Ex Parte” Hearing?
There are particular situations, when you may need to ask the court for relief, and an “ex parte” hearing is required. An “ex parte” motion is usually a temporary relief motion where the other spouse is not present.
Emergency Court Order
For an emergency court order, most courts require a legitimate emergency situation where a strong possibility exists that serious and irreparable harm will occur in order to grant the relief. The spouse who requests the court to hear the ex parte motion bears the burden of producing evidence that a genuine emergency exists.
Ex Parte Motion for Relief
The most common circumstances where an ex parte motion for relief is granted, occurs when the divorcing spouse and/or his or her children are threatened or in danger of repeated abuse. In these types of cases, a restraining order or a temporary injunction may be entered by the court in order to protect the spouse and/or children. Another but less common circumstance where a court is likely to grant ex parte relief is if one of the divorcing spouses intends on fleeing the country with the couple’s children.
Ex parte relief orders are generally valid for only several weeks. After a few weeks, the court will normally expect both spouses to come to court and present any additional evidence so the court can make a determination on whether the emergency still remains and whether the relief should stand.
Visitation and Support Motions for Temporary Orders
During the initial separation of divorcing spouses with minor children, one of the most contentious and litigated family law issues deals with custody of the children, who will pay child support to the other spouse, and finally how much support will the paying spouse be required to pay. The divorcing couple equally has an opportunity to offer evidence and testimony on visitation and custody issues. Although family law judges have quite a bit of discretion for custody and visitation issues, child support is statutory and therefore limits a judge’s discretionary power.
Typically, during the early stages in a divorce case, a temporary parenting plan will be adopted by the court, setting forth the parent that the minor child will live with primarily as well as parenting time that the nonresidential parent will receive with the minor child. The court creates this temporary parenting plan by applying the best interest of the child standard in its determination. The best interest of the child is determined by the application of many factors some of which include: age of the minor child or children, any stipulated agreements among the spouses for visitation and custody, the child’s preference if the child is of a certain age, the parent that primarily provided care for the minor child preceding the start of the divorce.
Child custody is determined completely different from child support. For child support, there is a presumption that each parent has a legal obligation to support their children. Courts follow child support guidelines which is a statutory calculation that uses the income of both parents, and a percent of custody that each parent has with the minor child. This type of determination by the court is known as the presumptive amount and can only be changed if additional facts are provided by either parent which show that the presumptive support is insufficient or unfair.
Modification of Temporary Child Custody and Child Support
Determinations for both temporary child custody and child support can be evaluated and modified by a court. In order for a court to make a determination on modification of child support or temporary child custody, a written motion must be filed by a party with the court, describing that there has been a material change in circumstances which necessitates a modification to be granted. Generally, circumstances that warrant a modification for child support include a loss of a job, a promotion, demotion, or serious illness. In order for a modification of child custody to be granted, the nonresidential parent much show that either the minor child’s wellbeing is in danger by living with the residential parent, the residential parent is engaged in some reckless act involving the minor child, and or the residential parent is alienating the child from the nonresidential parent.
Temporary Orders for Property Division
In some cases, a court may award certain marital property to one spouse for a temporary period. Family court judges have flexibility in granting a temporary award of marital property, and are usually encouraged to do so in order to be fair and equitable. One thing to remember is that if one spouse is awarded certain property on a temporary basis, this is not a signal that the spouse who received the property will end up with it at the conclusion of the divorce.
The most common temporary award of marital property is automobiles. As an example, if the divorcing couple has two cars, but they are both titled in only one spouses name, a court may award one spouse a car to use for a temporary period for transportation to work. At the final hearing the court the court might learn that one spouse made all of the payments on the temporary vehicle and may decide that the spouse that made all of the payments and had title should keep both cars in the final property division. Additionally, temporary orders are issued for use and possession of the marital home. In many cases divorcing spouses try and live under one roof, but due to the contentious nature of a divorce, the couple is unable to reside together in the marital home and one spouse temporarily moves out until the conclusion of the divorce.
Furthermore, a court has the power to execute a modification of any temporary awards of property as long as one of the parties files a written motion for the court. The spouse making the request for the temporary property award modification, has the burden of proof in showing the court that the previously awarded temporary order has gravely disadvantaged the spouse and is unfair.
Temporary Order for Relief of Alimony and or Spousal Support
An additional and common kind of temporary order is for spousal support or alimony. This type of relief is normally awarded in divorce actions where one spouse significantly earns more than the other, or where one spouse is not able to work due to being a career homemaker or for medical reasons, and the spouse in need is not able to live independently without financial help.
The availability of alimony and/or spousal support is based on one spouses need, and the other spouse’s ability to pay. The burden is on the divorcing spouse who is making the request and must show need and the paying spouses means of paying the temporary spousal support. Similarly, to the other temporary orders for relief that we have discussed, temporary spousal support automatically terminates when the court enters a permanent order either denying or approving spousal support finalized in the divorce decree. As with previous temporary orders, a temporary spousal support order can be modified or terminated if there is a significant change in circumstances of the divorcing parties.