Step 4 – Getting Temporary Orders
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 therefore be requested immediately.
Requesting A Temporary Order
As soon as the Petition for divorce is filed, a party can request an order from the court. 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.
Restraining orders can be issued to prevent spouses for acting in certain ways. The most common understanding of a restraining order is preventing the spouses from coming within a certain distance of one another. This type of order is appropriate when abuse or the danger of abuse is present. It may also apply to children, preventing the non-filing spouse from coming in contact with the children. This type of order can also be pursued under the Protection from Abuse Act, which offers similar orders for individuals that live together, regardless of martial status or pending divorce. The court has held, in Crim v. Crim, that this type of order can be pursued even though a divorce is pending. The reasons to use this “parallel-type” proceeding is based upon the circumstances of each case and is best determined with counsel on a case-by-case basis.
These orders can also 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 specific type of restraining order is the possession of residence order. As the name implies, these orders may force one spouse from the marital home while the divorce is pending. This type of order is required when a physical restraining order is granted, as the spouses can’t be in the same home under the terms of the order. Couples that are litigating a divorce often make their own arrangements regarding which spouse can remain in the home, but those agreements are unenforceable without a corresponding court order. 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 require payment to be made from one spouse to the other. This support can be for the spouse or, more commonly, for children of the marriage. 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
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
When the court has issued a temporary order ex parte, the non-filing spouse will likely want to modify the order upon being served with it. Even when the order was issued with the opportunity to argue by the non-filing spouse, circumstances may change that warrant revisiting the terms of the orders. Understanding this, all temporary orders are open for review and modification during the pendency of the divorce proceedings.
The non-filing spouse will receive notice of the order by being served with it (for an ex parte order) or being informed of the order following the hearing on the matter. If the order was issued ex parte, the spouse can challenge the order directly after being served. These challenges are given top priority, with a hearing on the matter being held within 14 days. The hearing operates like a “mini-trial,” with the judge hearing evidence from both sides concerning the need for the order. If the court finds that the circumstances that supported issuing the ex parte order still exist, a new temporary order will be issued in its place (ex parte orders always expire at the beginning of a hearing challenging them). If the court finds that circumstances have changed or that the information presented by the non-filing spouse negates the apparent need found when issuing the order, a modified order—including no order at all—will be issued.
The process for modifying an order that was issued after a hearing is similar. The party seeking modification, which may be either the original filing spouse or non-filing spouse, will request a hearing on the modification with the court. The court will schedule a hearing date and conduct a “mini-trial” on whether the temporary order in place is still necessary and appropriate based upon the circumstances. Unlike ex parte orders, temporary orders issued after a hearing do not expire upon a new hearing. Instead, the order will remain in effect until modified by the court or upon issuing the decree of divorce. Thus, the court may modify the order, remove the order altogether, or leave the order as it is.
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