Family Court Temporary Hearings: 3 Ways To Better Prepare For Trial By Ambush

The filing of a divorce or custody case will often begin with a request for a Temporary Hearing. These hearings are a “trial by ambush” and the ruling by the court can leave an indelible stain on the course of the subsequent litigation. Here are three ways to protect yourself as much as possible and give you the best chance for a positive result.

Family Court Temporary Hearings are designed to preserve the status quo of the family pending a final ruling, which could take a year or longer. They are held prior to the exchange of information (i.e. discovery), are based almost exclusively on hearsay contained in affidavits and exhibits, and rarely provide the court with reliable information upon which they can fashion an appropriate interim order for the benefit of the family. However, the implications of this ruling can have lasting effects on the future legal positions of the parties, and an adverse ruling can have permanent implications.

Litigants are limited to a total of 8 pages of affidavits. A parties’ affidavit needs to be concise, clear and thoughtful and supported by other affidavits corroborating the separate issues contained in Husband or Wife’s affidavit.

As you consider moving forward with filing for divorce or custody, here are three ways to help you be as prepared as you possibly can.

  1. “Think before you file”: If you are the Plaintiff, barring an emergency, there is little reason to file a case until you are ready. Filing the case will alert your spouse of your intentions and provide them with ample opportunity to clean up their act. Whatever evidence you need to collect, such as Facebook posts, taking photographs, gathering financial statements, emails, etc., do so before filing, because once the train leaves the station, it may be very difficult to get what you need.
  2. “Put on your running shoes”: If you are the Defendant and have just been served with a lawsuit and notice of a Temporary Hearing, you need to act like this is the most important event in your life– which it is. Once you learn your spouse has filed a lawsuit, you need to take immediate action: change all passwords to emails, social media, mobile phone accounts and financial accounts that are titled to you individually (not joint accounts). Second, DO NOT DESTROY ANY EVIDENCE as you could inadvertently violate the rules of discovery and cause yourself to have bigger problems later. Finally, get a lawyer!
  3. “Make lists”: Regardless of what side you are on, your attorney will need you to provide information relative to the “status quo” of the family prior to the start of the lawsuit. This information is usually provided by people who are your witnesses. They need to be able to provide a short and concise statement of a particular issue in your case that corroborates the story of your marriage that is contained in your affidavit. Providing your attorney with the list of names, emails and a short summary of your witnesses statements will be invaluable.

A woman recently retained us (“Jill”) who suspected her husband (“Jack”) of infidelity. She had been a stay at home mom for 26 years and had played the traditional homemaker role by raising their 2 daughters, getting them into college, paying bills, etc. while her husband built a successful medical practice. She was now 53 and looking forward to this new phase of her life with her husband, but she felt something was amiss in her relationship with him. He had been distant for some time and they barely touched each other. He was also spending an inordinate amount of time at work when it really did not seem necessary.

A review of the families’ cell phone records by Jill revealed some disturbing information. Jack was calling and texting a number repeatedly and had been doing so for well over one year. Jill checked his Facebook page, which was “clean”, and Jack did not seem to have an account with a dating service, but their bank records revealed interesting charges for alcohol, flowers, gifts and other similar “amourous” expenses that were not seen by Jill!

We hired a private investigator who tied up the loose ends nicely; Jack was having a romantic relationship with a much younger nurse on his staff and had been doing so for about a year and a half. It was easy for us to gather the documents we needed proving Jack’s infidelity and prepare our case for the temporary hearing. Jill’s affidavit told a story of commitment to the family, hard work, sacrifice and betrayal.

Once we had all the evidence we needed to prove Jack’s infidelity, he was served with the Summons and Complaint and notice of the Temporary Hearing. His attorney called us soon thereafter and initially denied our allegations. Once we presented him with the evidence of Jack’s infidelity, they settled with us out of court on favorable terms to Jill. Jack and his attorney realized that they were boxed in and that trying to fight back would be futile. (Remember the Borg: “You will be assimilated, resistance is futile”!!)

The terms Jack agreed to on a temporary basis then established a status quo and proved Jack’s ability to meet his financial obligations to Jill. Needless to say, the terms of the final marital settlement did not vary very much from the terms of the temporary order.

Since Jill took the time and patience on the front end of her case to fully prepare, she was able to force a settlement on favorable terms. Had she rushed to file the lawsuit, Jack would have been alerted to her intentions and gathering information would have been much more difficult and costly. Jill’s early preparation allowed her to end her marriage in a way that was not only favorable to her, it also reduced the time, emotional stress and financial loss that is caused by protracted family court litigation.


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