18 Dec TROs And Temporary Orders In A Divorce
Once the decision has been made to file for divorce, people are often unsure and anxious about the next steps. At McNamara Law Office, PLLC, we endeavor to tailor the process to the individual client’s needs and situation.
You’ve Filed Your Divorce…Now What?
When we meet with a client, we work with them to determine how best to proceed with his or her case and develop a plan of action. In many instances, the parties are working amicably with one another and there is simply not yet a need for a Temporary Restraining Order or Temporary Orders. Frequently, we are able to skip temporary orders altogether and work with the opposing party and/or their counsel on a final agreement either by exchanging proposals, or with the help of a third-party mediator. In some instances, the parties may agree on issues relating to the children, but issues regarding property must be resolved (or vice versa). Sometimes, the parties cannot meet in the middle and it is necessary to get a Temporary Order in place to set a status quo and maintain stability while the divorce is on file.
The Temporary Restraining Order (TRO)
A TRO is typically filed simultaneously with the Original Petition. Judges are normally not allowed to sign any orders without notice to the opposing party but in the case of the TRO, a judge may sign an order “for the preservation of the property and for the protection of the parties as necessary” without the presence of or notice to the other party. Tex. Fam. Code §6.501(a). The TRO prevents one or both parties from threatening or harassing the other party, destroying or hiding property, withdrawing funds, canceling insurance coverage, terminating credit cards, etc. Tex. Fam. Code §6.501(a)(1) – (26). If the filing party fears that the opposing party might take drastic measures to hide or transfer property or fears his or her spouse may verbally threaten or physically harm him or her, a Temporary Restraining Order becomes a necessary step in filing for divorce. The TRO lasts for 7 days and may be extended an additional 7 days, which ideally gives the filing party time to serve the opposing party with the petition and set a hearing date for Temporary Orders. A party that violates a TRO may be held in contempt. Tex. Fam. Code §6.506.
Temporary Orders After Filing for Divorce
Once the petition is filed and the TRO is in place, the opposing party is served with the divorce petition, TRO and notice of the hearing date for the Temporary Orders. At this time the opposing party will usually hire an attorney to appear for him or her in the case and we can ascertain from the opposing lawyer where any issues of disagreement might lie. Temporary Orders are necessary if the parties cannot agree on one or more of the following issues: living arrangements, payment of bills and expenses, temporary control of finances and bank accounts or other property, conservatorship and support of the children, and temporary spousal maintenance. A temporary order can be as long and exhaustive as a Final Decree of Divorce, depending on how many issues need to be resolved. In addition to temporarily resolving the above issues, the temporary order will also turn all of the prohibitions from the TRO into prohibitions that last throughout the divorce process. These are called Temporary Injunctions and remain in place throughout the pendency of the divorce.
There are three ways to enter a Temporary Order:
- The parties can negotiate and agree to some or all of the terms through their attorneys. One attorney will draft the Orders and once all parties sign off, the Temporary Orders are filed with the Court for the judge’s signature.
- The parties can agree to some or all of the terms through a third-party mediator and sign a binding Mediated Settlement Agreement (MSA). At this point, one attorney will draft the Orders, all parties sign off if there are no disagreements and file with the Court for the judge’s signature.
- The parties attend a hearing on all unresolved issues and the judge decides any of the terms that the parties were unable to agree upon.
Most courts require the parties attend mediation prior to a Temporary Orders hearing. Mediation is very effective, and the majority of cases settle without the need for court intervention. Making your own agreement also removes the uncertainty of allowing a judge to decide the outcome.
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