Last Updated on August 25, 2021 by Varghese Summersett Family Law Group
What are Temporary Orders in a Divorce?
Temporary orders are a type of legal protection that can help decide family and property-related matters while a divorce is being finalized. Temporary orders are put in place after a hearing but before the final trial or settlement of the case. Hearings regarding temporary orders are critically important because, in many cases, it might be the only hearing a person has in their divorce case if it is resolved by mediation or settlement.
How are Temporary Orders Used in a Divorce?
There are many reasons for temporary orders. Temporary orders can help balance the relationship of the parties or maintain a “status quo” while court proceedings are underway. The temporary order will control the lives of the parents and children for months before the divorce is final.
Once a person files for a divorce or is served with divorce papers, temporary orders can address issues like:
- conservatorship (custody),
- geographic restrictions for the children,
- possession and access,
- temporary possession of assets,
- temporary injunctions,
- child support,
- spousal support,
- interim attorneys fees etc.
The temporary orders often, but not always, maintain the status quo.
Similarly, in Suits Affecting Parent-Child Relationships (SAPCR), temporary orders may be used to modify an existing court order. Temporary orders are granted after one side files a petition or motion for temporary orders and the court has a hearing on the issues.
There are a few types of temporary orders that can be confusing. Temporary Protective Orders (TPO) and Temporary Restraining Orders (TRO) are two types of temporary orders that sometimes come up in, or have overlap with, family law cases.
Temporary Protective Orders are often used in cases of domestic violence. Texas Family Code Section 81.001 requires a court to issue a protective order in cases of proven family violence, where violence is probably going to occur again in the future. Another instance when Temporary Protective Orders may be used is in cases of stalking, human trafficking, or for sexual assault. In cases of domestic or family violence, the order is intended to keep the abuser away from the survivor or the survivor’s kids. Think of a Temporary Protective Order as a type of shield, because it can prevent repeat violence. This type of order can also prohibit contact, including in-person contact, electronic contact and contact through third parties.
Though the names sound similar, a Temporary Protective Order is different than a Temporary Restraining Order.
A Temporary Restraining Order operates as a short-term injunction or prohibition against a certain behavior. For a Temporary Restraining Order to be granted, one party must show the judge that a failure to grant the order would lead to immediate and permanent harm if no order is issued. If a TRO is in place, the temporary orders hearing will generally happen in the first two weeks.
Is a temporary order required in divorce proceedings?
No. The need for one is entirely dependent on the needs of you and your spouse. You may come to an agreement to the terms of conservatorship, child support, etc. without a hearing.
What is a Motion or Petition for Temporary Orders?
Generally, one party must file a petition for temporary order. Next, the court will have a hearing with both spouses present. A judge will preside over the hearing and may decide temporary issues, including child custody, visitation, spousal support, child support, and other matters, including those that involve property. For example, a judge may decide who gets to stay in the house while divorce proceedings are still underway.
What do temporary orders include in divorce cases?
Temporary orders can accomplish several things, including:
- Establishing temporary spousal support
- Temporary payment of financial obligations & debts
- Temporary use of a certain real or personal property
- Temporary use of cars or other motor vehicles
Do temporary orders change if children are involved?
Temporary orders can provide for the safety of kids, as well as other welfare concerns. Some things a temporary order can accomplish are:
- Determining temporary child custody arrangements & visitation; and/or
- Providing for temporary child support and benefits, such as health insurance.
Section 105.001 of the Texas Family Code contains a list of temporary orders that the court can issue with regards to the children including:
- temporary conservatorship of the child;
- the temporary support of the child;
- restraining a party from disturbing the peace of the child or another party;
- geographic restrictions;
- payment of reasonable attorney’s fees and expenses.
Can you be issued a temporary order for child support?
Yes. If you and your spouse cannot agree to child support terms, then a court can issue a temporary order obligating one or both parents to financially care for the child. This temporary order is effective until a final divorce decree is issued, and the court renders a decision for permanent child support payments.
What can a protective order do during divorce proceedings?
A protective order is incredibly useful during divorce proceedings. According to the Texas Family Code (Section 85.021), a protective order can:
- Prevent a party from taking a child out of a court’s jurisdiction or from the custody of a person named in the order;
- Prohibit someone from transferring or disposing of property that is mutually owned or rented, so long as the transfer, sale, or other infringement is done outside the ordinary course of business;
- Prevent the removal of a pet from the actual or constructive care of a person;
- Give exclusive usage or possession rights to property;
- Order someone to vacate property;
- Mandate custody and child support terms, as well as visitation
How long is a temporary order hearing and when is it held?
A temporary order hearing generally lasts less than a day and can be very short. That being said, a temporary order hearing may also span several days. This hearing occurs after a divorce petition is filed. If you have previously requested a Temporary Restraining Order, the judge considers the relief needed and how quickly it needs to be given. In cases where a Temporary Restraining Order or Protective Order has been requested, a judge may consider the case more quickly.
What is the main difference between Temporary Protective Orders and Temporary Restraining Orders?
The biggest difference is probably that a protective order allows immediate intervention by law enforcement where the person violating the order gets arrested. Essentially, if you violate a Protective Order, it is a crime. In contrast, violation of a Temporary Restraining Order leads to being held in contempt of court.
There are a few more differences to note as well. Temporary Restraining Orders are routinely issued while parties are in court proceedings for a divorce because they prevent the use or mismanagement of shared property. Temporary Restraining Orders can also do things like prevent one parent from bad-mouthing another parent in front of shared kids or prevent a spouse from incurring a ton of debt or liability while divorce proceedings are underway. In contrast, Temporary Protective Orders are issued for family violence and do not get ordered in every standard divorce case.
What kind of evidence is needed for a protective order?
The judge can examine several different kinds of evidence in granting a protective order. Here are some:
- Corroborating testimony
- Medical records
- Police reports
- Phone records
- Client testimony (which may be enough for a protective order)
Are there different types of Temporary Protective Orders?
Yes. For example, there are Temporary Ex Parte orders, which require an application and a short hearing with a judge. This type of order asks the court to do something without notifying the other party. The family violence protective order is an option that varies based on the type of violence occurring and can last a few weeks, two years, 10 years, or a lifetime. A judge has the discretion to evaluate the case using many factors, and two years is a common timeframe for family violence that does not cause serious bodily injury.
How can a Temporary Restraining Order help in divorce?
A Temporary Restraining Order (TRO) is helpful in divorce cases because it provides civil injunctions against certain behavior and can allow a judge to hold someone who violates the order in contempt or order a fine or jail time. A TRO is helpful in maintaining the status quo by protecting individuals and property. Texas Family Code Sections 6.501 and 105.001.
What is an Emergency Protective Order?
An Emergency Protective Order (EPO) is an order that is issued in family violence situations and is enforceable criminally. After the abuser or offender is arrested, an attorney can conduct a “lethality assessment,” which must be performed to gauge whether the victim is in danger. If yes, the attorney files a request for an EPO. An EPO is only obtainable when an arrest for a crime has occurred, since it is temporary and used generally for sexual assault or family violence. This type of order has range of 31 to 91 days. If the offender has displayed a lethal weapon, the order must be for a minimum of 61 days. Thankfully, many different parties can ask for an EPO. The survivor of family violence, the survivor’s parent or guardian, an attorney representing the state, or a peace officer can all request an EPO in cases of family violence or sexual assault.
What is the penalty for violating a temporary order?
The opposing party may request enforcement of the order and ask the judge to hold the violating party in contempt. If a judge finds you violated the temporary order, fines or jail time may be imposed. You may also owe attorney’s fees on top of fines or jail time. As mentioned, Temporary Restraining Orders come with civil penalties, like fines and being held in contempt, while the violation of a Protective Order generally comes with criminal charges.
Whether you are filing for divorce or have been served with divorce papers, put our experience to work for you. Call us at (817) 900-3220.
Don’t delay contacting an attorney, especially if you’ve been served with divorce papers. If you are the responding party, there are time limits on when counter-petitions must be filed before the temporary orders hearing.