Preliminary Matters and Motions
Some kinds of orders can be obtained immediately upon filing for divorce. For example, either party, upon request, may obtain a “Joint Preliminary Injunction,” or “JPI,” which provides that both parties are restrained from: (1) disposing of co-owned property (with some exceptions); (2) molesting, harassing, or injuring the other spouse or a child; and (3) attempting to relocate with a child and so deprive the court of jurisdiction as to the child.
More specific requests for assistance from the Court must be requested by motion, which may be filed at any time from the filing of the divorce Complaint until the end of the case. Certain kinds of emergency orders may be obtained “ex parte”; that is, without notice to the other party, but such motions are disfavored.
More typically, a motion for temporary relief asks the Court to have a hearing after notice to the other party and an opportunity for the other party to respond. At the hearing, the Court, on a temporary basis, may order: custody of the minor children; that the other spouse leave the residence; payment of spousal support or child support during the proceedings; that a party be prevented from selling or borrowing against marital property except in the usual course of business; an award of preliminary attorney’s fees and costs of the petitioning spouse (generally on the basis of who has more funds available); or that either or both spouses do some act, or refrain from some act or behavior that the other finds objectionable, usually relating to the children, house, or possessions. If any relief relating to money is requested, each party is required to file a “Financial Disclosure Form”.
Hearings on motions are usually not “evidentiary.” In other words, they do not involve testimony by the clients or anyone else, but only arguments by the attorneys. The Court can decide, however, to set an “evidentiary hearing” on any contested issue, at which witnesses are called to the stand to testify. The issuance of a temporary order does not finally determine the rights of the parties; final decisions occur by settlement or at trial. In reality, however, a “temporary” order regarding custody or possession of the residence can be given substantial weight later on in a case, especially if there is a long time between that order and the trial date.
WILLICK LAW GROUP vigorously litigates preliminary motions, when necessary, so that the rights of our clients are protected at all phases of the litigation process.