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FAMILY LAW
PRIMER |
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Temporary Orders Temporary orders usually act like a short term divorce decree.
Temporary orders are legally binding guidelines for you and your spouse until
the Court can make its ruling in the final decree. They can specify who gets
to reside in the marital residence, who can write checks on specific bank
accounts, who gets the kids, etc. Temporary orders can also prevent a spouse
from contacting you, spending or transferring money, leaving with the
child(ren), or almost any other action you can prove could be detrimental to
you or your child(ren). In a divorce you are also entitled to have a
temporary restraining order issued with out your spouse being present that is
valid for 14 days. Custody and Child Support The Court will grant orders regarding temporary child
custody and child support when they are required for the child's safety and
welfare. Following notice and a hearing, the court may order: ·
An
award of temporary conservatorship, providing for possession of and access to
the child by the parents. ·
An
order for the preparation of a social study into the circumstances and
conditions of the child and of the home of any person seeking managing
conservatorship or possession of the child ·
The
appointment a mental health professional to aid the determination of the
child's best interest in a contested custody case. Note - such an appointment
at the temporary order stage is usually considered premature, as is the
requirement of a social study, given the prospect that the parties may reach
an agreement on the custody issue. ·
An
order for the temporary support of a child, including provisions for health
care. ·
And
often an order for the payment of reasonable attorney's fees and expenses for
the divorce, including the temporary orders hearing, and anticipated costs.
This prevents an unjust disparity in the representation of one spouse over
another. In 1999 the state legislature made a new provision in the
Family Code, that creates the opportunity in a suit affecting the
parent-child relationship, including an action to modify an order providing
for possession of or access to a child, for the court to order the parties to
attend a parent education and family stabilization course if such an order is
in the child's best interest. The course must be at least four hours but not
more than 12 hours in length and be designed to educate and assist parents
with regard to the consequences of divorce on parents and children.
Information obtained in a course or a statement made by a party during a
course may not be considered in the adjudication of the suit or in any
subsequent legal proceeding. Any report that results from participation in
the course may not become a record in the suit unless the parties so
stipulate in writing. If a party fails to attend or complete a course as
ordered, the court may take appropriate action, including holding the party
in contempt, striking pleadings, or invoking any sanction provided by Texas
Rule of Civil Procedure Rule 215. However, a party's failure to attend or
complete the course may not delay rendition of judgment. Spousal Support The application for temporary orders may contain a request
that the court, after notice and hearing, require that the opposing party pay
the applying party support during the pendency of the case. The request for
spousal support is based on the applicant having insufficient income for his
or her own support during the pendency of the suit, and the opposing party
being capable of contributing to the movant's support in a limited specified
sum. Temporary Orders for support are not intended to make an interim
division of the property or to equalize the standard of living for each party
pending a final property division. The duty of support usually ends with dissolution of the
marriage. However, the Family Code extends that duty in exceptional situations
by allowing the court to award ``maintenance,'' meaning payments from the
future income of one spouse for the support of the other. The Code does not
expressly authorize spousal maintenance during the pendency of the suit and
before a divorce is rendered, but it does not prohibit an interim award.
Nevertheless, the prerequisites for maintenance are many, including the the
necessity of at least a 10-year marriage, or compelling circumstances like a
disability or criminal conviction for family violence. Accordingly, the
better route for temporary support pending a final decree is the enforcement
of the other spouse's duty for support during the existence of the marital
relationship. Temporary Restraining Orders A temporary restraining order (TRO) is an order issued
without notice to the opposing party. Although purely optional, a TRO is
often an essential ingredient in an action for dissolution of a marriage in
order to preserve the marital estate and protect the parties. A restraining
order may be made effective as soon as it is served on the opposing party,
usually just after an action for dissolution of a marriage is filed. The
court's power to render these ex parte orders is limited, however, to
``keeping the peace'', and no TRO may be effective for more than 14 days,
unless extended by the court for good cause. Protective Orders Orders more onerous than usual, referred to as
``protective orders,'' may be issued in situations involving family violence.
A protective order may take the form of a temporary injunction issued after
notice or it may be issued ex parte, akin to a TRO. By its very nature, a
protective order is a temporary order because it is effective for no more
than two years. Protective orders may be issued to restrain violent acts or
threats of violence committed by members of a family or household against one
another. An application for a protective order may be filed while a
dissolution suit is pending |
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