A Motion for Temporary Relief, commonly called a “Temporary Hearing,” is the first hearing in most cases filed in Family Court. The hearing itself is scheduled in response to a written motion filed by either side. The various clerk’s offices will schedule the date and time of the hearing. They are under a directive that this first hearing must be held within 30 days of filing the request; most often the hearing will come much sooner than the 30 day-deadline.
Why is a Temporary Hearing needed?
Judges take this opportunity to solve immediate, pressing problems, such as those that simply cannot wait until a final hearing (which may take up to a year to schedule). Matters such as custody of the children, support for the children, appropriate time-sharing with the children, how to pay the bills, and other responsibilities of each party are considered. Many people also have to resolve who lives in the house and how its bills are paid, whether or not restraining orders are needed, who pays for the cars, for insurance, for private school, etc. All pressing issues will be reviewed by the Court upon request, and will be resolved with the issuance of a “Temporary Order.” Such a Temporary Order is not final, does not carry any precedential value, and is intended to last only until a Final Order is issued.
The issuance of a Temporary Order is intended to calm the troubled waters of a recent separation, and organize the day-to-day rules between the parties so as to eliminate the possibility of continued disputes. Literally, a Temporary Order is intended to reduce continued conflict between the parties, and to allow each to govern himself or herself according to the rulings set out in the Temporary Order. According to this theory, “taking a breath” is possible when each knows how he or her is supposed to behave, conflict will be reduced, and rational thought will be possible, thus allowing the parties to think more clearly about a permanent resolution which is appropriate for their entire situation.
How does a Temporary Hearing proceed?
Proper notice is given to the other side, by the person filing the Motion for Temporary Relief. Strictly speaking, the “proper notice” is five days, not counting the date of service and not counting the date of the hearing. However, this is interpreted by some Family Court judges to mean “5 business days” — which is certainly more fair but which is not specifically required in the Rules at this time. Responses are due not later than the commencement of the hearing; literally, it is typical that one side or the other will pass over their responsive paperwork as they sit down in the courtroom for the hearing. This process, while in compliance with the existing notice requirements, does nothing to assist either side in trying to resolve matters without the assistance of a judge.
Is it possible to reach an agreement without needing to attend a Temporary Hearing?
Yes, in fact estimates are that 75% or more of Motions for Temporary Relief are resolved by way of agreement prior to the hearing. With such an agreement, the Court will accept a “Temporary Consent Order” signed by both parties and their attorneys instead of having a contested hearing. The most difficult 25% +/- of all Motions for Temporary Relief will end up in a courtroom, and the assistance of a judge will be needed to work things through.
What materials will be expected by the Court at a Temporary Hearing?
Particular court rules dictate the submission of certain vital materials:
a. Each party should file a full, signed, and notarized Financial Declaration. Of note, a Financial Declaration is considered incomplete without the attachment of a recent paystub;
b. Each party (if children are involved in their dispute) is to file a Parenting Plan which outlines his or her thoughts on the best possible arrangements for their children;
c. Each party is to file a Child Support Worksheet, if child support is an issue, using those figures which are gathered to the best of his/her ability for each side;
d. Each party is permitted to file Affidavits in support of his / her positions. Of note, there are important limits on the number of pages of Affidavits which may be filed by each side: for the typical 15-minute Motion hearing, up to 8 pages of Affidavits may be filed. Different judges will permit more attachments/exhibits to these Affidavits.
The presentation of these materials to the Court is the responsibility of your attorney, as is the supervision of gathering of the outlined materials.
How will the Court handle the Temporary Hearing?
Time limits at these hearings will not permit live testimony, unless a request for live testimony is submitted to the court prior to the hearing. Such a request would be unusual, and granting of such a request even more unusual. Typically, the court will accept materials from each side. The judge will literally count the pages and will raise procedural issues about the materials, if any, prior to reading them. The parties are not usually asked any questions, by anyone, but of note the Court has the right to ask questions if the judge would like to do so. Predicting a judge asking questions is impossible for attorneys. Each party should be prepared to be honest, direct and respectful in any answers to any questions which may be asked by a judge.
When will a judge rule on the Motion for Temporary Relief?
Judges are permitted to consider their ruling for up to 30 days post-hearing. This is not the norm; most typically, judges will issue at ruling at the end of the hearing. If they do not, they will explain that they are taking the case “under advisement” and they will send an email to each side when they have resolved their concerns and reached a decision.
Bottom Line: A Motion for Temporary Relief is important in your case. Although the rules say otherwise, the results of a contested hearing will remain in your file and will be read by any other judge who is assigned to any other hearings in your case. Accordingly, it is important to be direct, honest, and clear. Your lawyer will instruct and guide you in matters of Affidavits from other persons. Regardless, your presentation needs to be “to the point” and clearly understandable. Work on accuracy to the very last opportunity. Dress respectfully for court proceedings. Learn from your lawyer how your own personal behavior may impact the hearing. Be calm, breathe deeply, and pay attention.