Finding Relief From A Family Court Temporary Order
Family Court Temporary Hearings should not be taken lightly. Once an order has been issued, it is virtually impossible to change it prior to a final hearing without an agreement.
I recently had a case where a judge issued an order after a Temporary Hearing awarding my client about 28% of husband’s gross income on a temporary basis until a final resolution has been reached for ordered by the court. Husband was upset, fired his lawyer (after all, the judges ruling could not have had anything to do with the facts of the case!) and hired a new lawyer who immediately filed a “motion to reconsider”.
Unfortunately for Husband, not only will his motion be denied, he will be required pay the attorney fees we incurred in order to defend the motion, and we have also asked that his attorney be sanctioned for filing a frivolous motion. The reason for our aggressive response is because Husband is trying to avoid paying his wife temporary financial support by using relying on rules applicable only to trial verdicts.
The motion that Husband’s lawyer filed to challenge the family court temporary order can only be used after a final ruling has been made by the court. A ruling that “…leaves some further act to be done by the court before the rights of the parties are determined…” is not final. Tommy L. Griffin Plumbing & Heating Co. v. Jordan, Jones & Goulding, Inc. A temporary order is simply that: temporary. It can, and often will, change either by agreement or by court ruling at the conclusion of the litigation.
The only way that a person may directly challenge a family court temporary order is by way of a little used legal process called a Writ of Supersedeas. If properly done it will stay the litigation while the Court of Appeals reviews the family court temporary ruling.
Absent a successful Writ of Supersedeas, a person can file a new motion at some future time alleging that the circumstances have changed since the date of the initial hearing and the court must now review new facts and issue a new ruling. But this is a risky legal maneuver because it relies on very specific legal requirements which can be difficult to prove. If a person loses a hearing in family court (especially if they are trying to challenge a prior ruling), they can be assured of having to pay the opposing party’s legal fees and possibly get a new ruling that is even worse that the one they were trying to overturn!
The best way in our experience to get out from under a bad temporary order is to first not let one be issued! A person must properly prepare and present good quality evidence at a temporary hearing in order to ensure that their positions are heard. More importantly, it is generally best to be avoid a temporary hearing in the first place. It is better to resolve temporary issues by agreement whenever possible, or simply not request a hearing unless it is absolutely necessary.
It is important to remember that at some point the legal process will end, the lawyers and judges will be gone and the parties to the litigation will have to pick up the pieces and move forward. The way the litigation proceeds will often determine the nature of the post litigation family relationship for years to come.