There are many types of temporary relief that you can get in a divorce or dissolution matter. During a divorce, many times people cannot get along. Someone will hold back money or someone will hold back visitation so the court needs to be involved. A divorce can last anywhere from six months to a few years if people are highly litigating and the court system is bogged down. Because of this a temporary order is important.
First, the way you even open the door to the court for a temporary order regarding child support, alimony or custody/time-sharing is through the proper pleading. You must file some type of motion for temporary relief. This could be titled many different things, but the most common is just a Motion for Temporary Needs. In this motion you can ask for many things. You can ask for any type of time-sharing, custody or visitation arrangement you want and you can ask for any child support that you want. You can also ask for alimony or attorney’s fees. You can also ask for exclusive use and possession of the home. This would mean that the other spouse cannot come into the home and you change the locks. There are all kinds of things that you can ask for in a temporary needs motion. You can ask for sole parental responsibility on a temporary basis. That would mean that the other party does not get shared parental responsibility and if you won this that at least on a temporary basis you would have complete control of the decision making for the child or children. Know that this is very hard to get.
You can also get ultimate decision making authority on certain things. This is very similar to sole parental responsibility, but it is specific to a certain area such as healthcare or daycare. For example if you were to get ultimate decision making authority regarding healthcare, that means you would be the one to make all the decisions regarding doctors treatment and whatever. Again, know that it is very difficult to get ultimate decision authority because the courts favor shared parental responsibility which means that people need to discuss things and iron them out themselves. The court hates to get involved in the minutia of the raising of children, but will if necessary.
A demand for temporary relief may be included in the party’s initial pleading or in a subsequent motion. The existence of a valid marriage is a prerequisite to statutory entitlement to temporary support. You must plead the very basic elements if you want support or attorney’s fees in that you need to say that you have a need and that the other party has the “ability” to pay. At that point that entitles you to an evidentiary hearing where direct and cross examinations can take place. A financial affidavit and other financial information is required to be produced at least contemporaneously with the notice of hearing. A hearing can be dismissed or continued if this basic discovery is not given. Temporary support and temporary custody require this type of financial disclosure. The responding party must serve the required financial production on the party seeking relief no later than two days before the temporary relief hearing. This is all governed by the Florida Rules of Family Procedure. You can even ask for the marital home to be listed for sale at a temporary hearing but something like that is only granted if it is equitable and necessary.
The burden of proof to modify a temporary order can be changed easier than a supplemental petition. Usually it is just for good cause shown. A temporary support order does not create a vested right and it can be modified or vacated during the proceeding. The correct standard for temporary alimony is a balance of the needs of the requesting party as fixed by the party’s standard of living and the ability to pay of the other party. The court may not authorize an award of temporary support during the pendency of a divorce proceeding in excess of the other party’s ability to pay. Waiver of alimony in a prenuptial agreement does not preclude the court from entering a temporary support award. To find out how to calculate temporary child support go to Florida Statute 61.30. These are the guidelines that the court will use based on the party’s income.
An interim award of suit money, attorney’s fees, is to ensure that both parties have similar access to counsel and can thus fight the action on nearly equal footing. Again the appropriate inquiry is whether one spouse has a need for suit money and the other has the ability to pay. Other relevant circumstances considered for an award of attorney’s fees include the scope and history of the litigation, the duration of the litigation, the merits of the respective positions, whether the litigation is brought or maintained primarily to harass and the existence and course of prior or pending litigation. Awards and post-judgment proceedings should not include fees incurred for the time spent litigating the amount of attorney’s fees. It is inappropriate to consider that a party has received financial assistance from friends or relatives in order to pay his or her attorney’s fees when determining need and ability to pay. A party’s obligation to pay attorney fees when the criteria for such fees are met, cannot be waived or contracted away in an anti-nuptial agreement. Even where the parties have entered into a property settlement agreement providing for each party to bear their own fees, the court may award temporary fees to a needy spouse.
When trying to get temporary custody, time-sharing or shared parental responsibility, the courts must apply the same criteria for determining temporary time-sharing awards as it does for permanent awards. The key issue is the welfare of the child. This is found under Florida Statute 61.13. Due process must be followed in temporary time-sharing determinations and notice and opportunity to be heard must be provided to the opposing party. A temporary order based on the evidence presented determines the best place for the children to live until a final custody determination. Such temporary placement should cause the least amount of disruption in the children’s life.
When you are seeking exclusive use and possession of a marital home for the temporary basis, again, it must be plead in your temporary relief motion. A party must specifically request the temporary exclusive use and possession of the marital home in the petition for temporary relief, as well as set forth the facts which demonstrate entitlement to such relief. There must be an affirmative showing of fighting or quarreling which requires that the parties live separately prior to an award of exclusive possession. When minor children are involved in the dissolution, the courts and legislator favor allowing the child to remain in the marital home if it is equitable, financially feasible and in the best interest of the child.