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HOW TO OBTAIN TEMPORARY ORDERS
Prepare the following forms (click here for some helpful instructions.)
1. NOTE FOR MOTION
2. MOTION AND DECLARATION FOR TEMPORARY ORDERS - WPF DR O4.0100 (8/91)
3. DECLARATION IN SUPPORT OF PROPOSED TEMPORARY PARENTING PLAN, PROPOSED TEMPORARY FINAL ORDER - WPF DR 01.0400 (/79)
4. TEMPORARY PARENTING PLAN - WPF DR 01.0400 (7/91).
5. NOTICE OF HEARING
6. DECLARATION OF WITNESS
7. RETURN OF SERVICE - WPF DR 01.0250 (7/91)
File these forms with the court at the time you file your Summons and Petition OR at any time until your divorce is final (i.e. during the 90 day waiting period).
Arrange to have these documents served on your spouse (See instructions in chapter ) and then file the RETURN OF SERVICE WPF DR 01.0250 (7/91).
After the court hearing, prepare the following forms to reflect what the Judge ordered:
1. TEMPORARY ORDERS Any changes the judge made to the Parenting Plan should be addressed in the Temporary Orders form.
2. SUPPORT WORKSHEETS
3. DECLARATION OF SERVICE OF TEMPORARY ORDERS
Serve these documents on your spouse.
If you and your spouse are unable to agree on temporary arrangements concerning children, use of property or cars while the divorce is pending or you have a concern about contacts between your spouse and the children you will want to consider obtaining a temporary order to protect your rights or to obtain restraining provisions while the divorce is pending and until a final decree is entered. Temporary orders can be obtained any time after you first file for divorce until the final decree is entered.
There are mainly three types of Temporary Orders:
1. Emergency (Ex Parte) Orders;
2. Non-Emergency (Temporary) Orders;
3. Agreed Temporary Orders
The Motion.
A motion contains many different requests. After you have filled out the CAPTION as described in the General Instructions, you should check each box next to the sentence which states what you want the court to order. The first seven requests for orders can usually be obtained when you file your petition. These are called restraining orders. The remaining boxes are requests for payment of debt, arrangements for support and placement of the children as well as the use of property. Those requests must be considered at a later hearing, the date for which is set by the Order to Show Cause.
Whichever boxes you checked in the motion should also be checked on the Order to Show Cause.
Again, the first seven boxes are effective after the judge or court commissioner signs the order. The remaining boxes inform the court and your spouse what you are asking for at the next hearing.
EVIDENCE IN SUPPORT OF YOUR MOTION
At a minimum you must fill out a Declaration setting forth your reasons why the relief you are requesting should be granted to you. It is helpful to the court if you have Declarations prepared by friends, relatives or counselors describing what conduct was done by your spouse in their presence and which supports your need for the temporary restraining orders.
If you want your Parenting Plan to become a temporary court order you must also fill out the Declaration in Support of Parenting Plan. Again, it is helpful to have declarations from friends, relatives and counselors indicating why your parenting plan should be adopted as a temporary court order.
Declarations, whether yours or others, should state only the most important facts. Long, detailed, rambling, or hand written declarations are unlikely to get as much of the courts attention as those which are typed and get to the important facts supporting your requests.
Before you fill out the Declaration in Support of Parenting Plan be sure to read the sections about restrictions in the permanent parenting plan. This declaration requires that you describe the arrangements you and your spouse have had for the care of the children during the past year.
Any problems affecting your spouse's ability to care for the children must be included. The court will need to know whether special limitations on parental access should be considered. You should be as thorough as possible when filling out this declaration.
GETTING THE ORDER SIGNED AND SERVED
Before taking your paperwork to the courthouse call the Superior Court Clerk's office and find out what procedures are necessary to get your order signed. Remember that if you are requesting temporary orders when you start your divorce, you can save yourself a second trip to the courthouse by presenting your Ex Parte Restraining Order and Order to Show Cause when you file your Petition. Call the Superior Court Clerk ahead of time, describe the type of order you plan to file and find out when you can come to court to get the order signed.
Appear at the courtroom at the time given to you by the clerk. Show the Judge's assistant (clerk or bailiff) your documents and wait until your case name is called. When you are called forward tell the court you want an Ex Parte Restraining Order and Order to Show Cause. Be prepared to explain why you need the restraining order and why your spouse should not be notified before the order is signed.
If the court will not sign the Ex Parte Restraining Order and Order to Show Cause, you will probably need to contact an attorney for assistance. You may also request a non-emergency temporary order.
If the order to show cause is granted, fill in the assigned hearing date on the Note for Motion docket.
If you are requesting temporary orders when you start your divorce, these papers can be served along with the summons and petition. Be sure your spouse was served with copies of all the documents you are filing with the court.
If you are filing for temporary orders after you have already filed for your divorce, file the following:
1) Motion and Declaration for Temporary Order
2) Temporary Parenting Plan (if there are children)
3) Declaration of Witness(es), if any
4) Notice of Hearing for relief pending trial
5) Conform the copies (one for your spouse and one for you) and serve these documents on your spouse in the same manner you did for the Petition and Summons.
At the hearing you will be expected to prove that your spouse received the papers. Therefore, after your spouse has been served, file the Declaration of Service of Motion and Affidavit for Temporary Orders with the court.
Remember that the papers must be served by someone other than yourself and that your spouse is entitled to ample notice of the hearing date. If you are requesting a restraining order, the order signed by the Judge must be delivered to your spouse personally to be effective. In the case of personal service on your spouse, service should be made at least six days in advance of the hearing, not including the date the papers are served. Add three more days for service if service is by mail. (Service by mail will not be effective for restraining orders).
If your spouse agrees with all of your requests you may be able to sign an agreed order and avoid the necessity of a hearing. In that case write the word "agreed" in the caption of the temporary order and fill in the blank showing what orders you and your spouse agree upon. To be effective this order must be signed by both spouses and by a Judge or Court Commissioner. The court clerk's office will instruct you how to have an Agreed Order signed.
A) Preparing for the Hearing.
Some courts require you call 24 or 48 hours in advance to schedule the Hearing.
Before going to court on the day you schedule your hearing, fill out the Temporary Order. Be sure you do not check boxes in the Temporary Order that differ from those you checked in your motion.
If you are contacted before the hearing by your spouse's attorney you may decide to request a postponement of the hearing so that you can decide to get an attorney yourself. If you are asked to sign any documents by the attorney be sure you understand them before you do so.
Since the Judge or Court Commissioner begins the hearingpromptly be sure to arrive a few minutes early. This will also give you time to locate the proper courtroom that hears Family Law matters. When your case is called answer "ready." After all the cases have been called to determine their status, the Judge or Court Commissioner will then go through those cases which need to be argued, hearing them in the same order they appeared on the docket. If your case was not called be sure to inform the commissioner or judge that your matter was scheduled for a hearing.
If your spouse fails to appear at the hearing, let the court know when your case is called that he or she is not present in the courtroom and that your spouse was properly served. You will then present your properly completed temporary order which the court will sign, provided all the papers are in order. The temporary order must be consistent with the request you set forth in your motion and declaration for temporary orders. When signed, you will then have a temporary order which will remain in effect until you finalize your divorce (note, however, that restraining provisions last no longer than one year). Be sure to obtain a certified copy of the signed order.
If your spouse appears at the hearing each of you will have an opportunity to inform the court of your side of the case. You would be well prepared to have notes prepared before the hearing because the court limits the time you have to speak. After deciding which of your requests are appropriate the temporary order will be signed. The court may make changes on the temporary order you prepared. If restraining orders are granted these must be sent to the local law enforcement agency to be entered in a computer, ask the clerk how to do this. If the Judge or Court Commissioner also decides what the temporary parenting arrangements are to be, you should prepare a temporary parenting plan that includes the provisions determined by the court.
The temporary order will need to include a copy of the parenting plan and support worksheets must be attached if support has been ordered. Samples of support worksheets can be found in this book.
A copy of the temporary order (and a Parenting Plan with attached support worksheets, if there are children) should be given to your spouse. Your spouse should sign this order if he or she appeared at the hearing to argue it. If your spouse failed to appear and the order was entered in his/her absence, you still need to serve the order if there are restraining provisions. Be sure the court is provided with proof that service of the order was accomplished by completing and filing a declaration of service of order.
Remember that temporary orders, temporary parenting plans and Ex Parte restraining orders have a major impact on the lives of all those affected. In order to be affective against your spouse these orders must comply with strict procedural requirements. A violation of any of the orders, once granted, can carry severesanctions, including jail time. Whether you are obtaining an Order or one is being sought against you, you may want to seriously consider obtaining the services of a lawyer to assist you through this complex process.
HERE IS A SHORT CHECKLIST OF WHAT YOU WILL NEED FOR:
Ex Parte (emergency) Temporary Orders:
1. Motion and Declaration for Ex Parte Restraining Order, Order to Show Cause and other temporary orders, form WPF DR 04.0150 (8/91).
2. Note for Motion Docket;
3.Ex Parte Restraining Order and Order to Show Cause;
4. Parenting Plan (if you wish to make temporary arrangements for the children), form WPF DR 01.0400 (8/91)
5. Declaration in Support of Parenting Plan (if you are using a Parenting Plan) [WPF DR 04.0120 (8/91)]; and
6. Declaration(s) of Witness(es).
Non-emergency Temporary Orders:
1. Motion (temporary orders);
2. Note for Motion docket;
3. Temporary Order; form WPF DR 04.0250 (7/91)
4. Parenting Plan - form WPF DR 01.0400 (8/91) - and child support worksheet (if you wish to make temporary arrangements for the residences in support of your children);
5. Declaration(s) of Witness(es);
6. Declaration in Support of Parenting Plan (if you are using a Parenting Plan); form WPF DR 04.0120 (8/91)
7. Declaration of Service; If the motions for temporaryorders are being filed with a petition serve them along with the other papers. Otherwise the papers must be personally served at least six days or mailed at least ten days before the date of the hearing.
8. Then go to the Hearing;
9. Getting the Order Entered and Served:
1) If you and your spouse agree on the temporary order, write "agreed" into the caption, both of you must sign the order and it must be signed by a judge and each of you should retain a copy for your records.
2) If the order is "contested" and the court after hearing argument decides on the request, fill in the provisions ordered by the judge, obtain a copy of the signed order and, in the case of restraining orders, be sure that a copy is sent to the appropriate law enforcement agency to be entered on the computer. Often the enforcement agencies have a special form you must fill out before they will accept your restraining orders. Your spouse must be personally served or signed and acknowledged service on restraining orders that are issued by the judge.
To obtain an Emergency Order you need to notify the court (Note for Motion), set forth the request (called a Motion for Ex Parte Restraining Order) and then obtain a Restraining Order and Order to Show Cause. To obtain the Restraining Order and Order to Show Cause you will need to file a Declaration and, if you have witnesses who support your motion, Declarations of the Witnesses as well.
Also, if you wish to make temporary arrangements for the children you will need to fill out a Parenting Plan and a Declaration in Support of Parenting Plan. The Declaration is broken into seven categories which the judge will want to address.
Please
pardon our dust; we are under construction.