Temporary Relief in Florida Divorces
What is Temporary Relief?
Temporary relief refers to a procedure in a Florida family law case where one side or the other requests the Court order “temporary provisions” in the early phase of a case. A Temporary Relief hearing is normally not held until after mediation. One party can ask for temporary support, parenting provisions, possession of the home, or just about anything that can be specifically defined. Temporary orders are exactly as they sound; temporary. It is intended to keep the situation under control during a long court case. Any temporary orders are subject to change later in the case.
One fact about divorces seems to ring true in nearly every case: the divorce process takes time. Except perhaps in cases in which both spouses agree to the divorce, have little or no assets and no children, and can agree on every aspect of property division, alimony, and child visitation and support (if the couple does have children), every divorce in Florida will take several weeks – if not months – to finalize. When the couple disagrees about some aspect of their separation, the process can drag out for a significant period of time. A few of the disagreements couples may have that will prolong a divorce proceeding include disagreements about:
- Property valuation;
- Property division;
- Child custody and visitation;
- Child support; and
But sometimes one of the divorcing spouses needs some form of legal relief right away.Perhaps one spouse was abusive or threatening toward the other, and the victimized spouse needs some protection from threats, further abuse, or harassment. Perhaps one spouse would like to have the primary responsibility of raising the couple’s children. Or perhaps one spouse earns significantly more than the other, so much so that the lesser-earning spouse fears how he or she will make ends meet without the other spouse’s income.
Recognizing that some concerns and issues are more pressing than others and that sometimes a divorcing spouse needs swift action from the court, Florida law authorizes courts to enter a variety of temporary orders. These orders (or “relief”) can be just what a divorcing spouse needs to carry them through the long months ahead.
What is “Temporary Relief?”
Temporary relief is granted by the court hearing a particular divorce case through the granting of certain temporary orders. Like the name implies, these orders are designed to last only for a specific period of time – typically until the divorce is finalized. Until that time, these temporary orders can be modified by the court as the situation of the divorcing spouses changes. In most cases, changes to temporary orders are initiated by one of the spouses filing a motion with the court, a document that informs the court why the temporary order is no longer appropriate. If temporary orders are not changed, they remain enforceable as orders of the court until the divorce is finalized and final orders are entered.
In all hearings for temporary relief, the party requesting the particular order bears the responsibility of showing the court that circumstances exist justifying the order. This must usually be proven by a preponderance of the evidence – that is, it must be shown it is more likely than not that circumstances exist justifying the requested relief.
“Ex Parte” Hearings and Relief
In certain emergency circumstances, you may ask the court to grant you relief “ex parte.” This means the court will hear and consider your request for temporary relief without the presence of the other spouse. These motions and the corresponding relief granted are appropriate in situations where a genuine emergency exists and there will be serious and irreparable harm if immediate relief is not granted. The party requesting ex parte relief bears the responsibility of presenting evidence showing that such an emergency exists.
Ex parte relief is typically granted and orders entered where there is the threat that the couple’s children or the requesting spouse is in danger of continued abuse. This might justify a court entering a restraining order or an injunction for protection prohibiting the abusive spouse from coming near the child(ren) and/or spouse. If one spouse has credible evidence the other spouse intends to abscond to a foreign country with the child, this too may justify an ex parte order.
Ex parte orders are typically only valid for a few weeks. After that time, the court will typically require both parties to appear in court and will hear additional evidence before deciding whether the ex parte orders should continue or whether the emergency has passed.
Children: Temporary Orders for Visitation and Support
When a divorcing couple initially separates, one of the more litigious issues the couple will deal with will center on who has primary custody of the couple’s children and what, if any, child support the other spouse will need to pay. Both spouses will have an opportunity to present testimony and evidence on both of these issues. While a court has a great deal of discretion in awarding custody and visitation, its powers are much more restrained when it comes to child support.
Early on in a divorce case, the court will adopt a temporary parenting plan that will set forth which parent with whom the child will primarily live and what parenting time the nonresidential parent is to receive. In making this determination, the court is to consider what is in the “best interest of the child.” In making this determination, the court will consider a number of factors that can shed light on what might be in the child’s best interest, including:
- Age of the child(ren);
- Any agreement among the parties regarding custody and visitation;
- The wishes of the child, if the child is of a certain age (the child’s wishes are usually not determinative);
- Which parent is more likely to encourage the child to develop and maintain a relationship with the other parent;
- Whether one parent is likely to expose the child to some form of harm;
- Which will be residing at the child’s residence during the pendency of the divorce;
- Which parent provided primary care for the child prior to the commencement of the divorce; and
- Other relevant factors.
Child support is determined much differently from child custody. The law presumes that both parents have an obligation to support their children and the child support guidelines that courts must follow assume that both parents will contribute to the care and upbringing of the child. The court will set child support by determining the income of the parties. Florida law then directs the court to enter a presumptive child support award based upon that income. The court can deviate from this presumptive amount only if it finds that facts exist demonstrating that the presumptive child support award is somehow unfair or insufficient.
Temporary child custody determinations and child support determinations can be reviewed and modified by a court if a party files a written motion with the court explaining that there has been a material change of circumstance. Things like a promotion, demotion, or loss of job will typically justify a review and modification of child support. Child custody can be modified if it is proven the residential parent (the one with primary custody of the child) put the child’s well-being in danger, engaged in some reckless act with the child, or is alienating the child from the nonresidential parent.
Property Division: What’s Yours is Mine
The court may also enter orders awarding some marital property to one spouse or the other on a temporary basis. The court has a great deal of leeway in doing this: typically the court is motivated by considerations of fairness and equity. Just because a court awards certain property to one spouse is usually not an indication of which party will eventually receive the property in the final division of property.
For example, a couple may have two cars. A court is likely to award one spouse one of the cars for use on a temporary basis so that both spouses have a means of transportation. When the court is ready to enter a final division of the property, though, one spouse may present evidence that she has made all the payments on both cars, that both cars are in her name, and that she would like to retain both cars. The court may then award that spouse both cars, equitably dividing the remainder of the marital property.
Another item of property typically addressed by temporary orders is the marital residence. If the divorcing couple is unable to live peaceably during the divorce (and few are), one party may need to temporarily move out of the house until the divorce is finalized.
A court is able to modify temporary awards of property upon the written motion of one of the parties. A party requesting a modification of a temporary property award will usually bear the burden of showing how the previous temporary award was unfair or seriously disadvantaged the spouse.
Alimony: Supporting the Ex-Spouse
Another common type of temporary order designed to give divorcing spouses temporary relief involves alimony (or spousal support). This can be especially helpful in situations where one spouse earns significantly more than the other spouse or one spouse has special expenses (such as medical expenses) that make it difficult for that spouse to live financially independent. A temporary award of support can enable one spouse to live independently and begin to establish him- or herself while the divorce is ongoing. A temporary award of spousal support can help the receiving spouse to continue to enjoy a lifestyle similar to the lifestyle he or she would have enjoyed had the parties remained together.
Spousal support is generally available where there is both a need for one spouse to receive spousal support and the other spouse has the means to pay support. The spouse requesting spousal support is responsible for establishing both the need and means. For example, suppose that Harold and Mae were married for several decades. During the course of the marriage, Harold was the sole breadwinner for the couple and paid all of the couple’s expenses. Due to irreconcilable differences, Mae files for divorce. She requests that the court award her a certain amount of monthly alimony while the divorce is pending. Mae is responsible for showing the court that she has a need for spousal support from Harold and that Harold is able to pay her monthly alimony.
Temporary spousal support (like other temporary awards) will automatically terminate when the court enters a permanent order approving or denying alimony as part of the final divorce decree. Awards of temporary alimony may be reviewed and modified if the situation of the parties significantly changes. If the payor spouse loses his or her job or the payee spouse obtains a new, high-paying job (for instance), temporary alimony may be modified or terminated.
Other Temporary Relief Available
A court is also empowered to award other types of temporary relief to a party that requests such relief. Generally speaking, the party requesting temporary relief must show that he or she is entitled to such relief by providing evidence that the circumstances and facts justify the relief requested. For example, just because a party requests an award of temporary attorney’s fees does not automatically entitle that party to temporary attorney’s fees. Instead, the party must also show by a preponderance of the evidence that the facts of the situation make such an award appropriate (for example, by showing the other party has significant resources compared to the requesting party, the other party has acted in bad faith or is deliberately prolonging the case, or other such circumstances).
Other types of temporary relief can include orders awarding temporary attorney’s fees while the divorce is pending and restraining orders.
In order to request temporary relief, you must put your request into the form of a legal motion. This motion must usually be accompanied by a sworn declaration in which you or someone with knowledge of the relevant facts swears that the facts supporting your request entitle you to the relief you request. A proposed order for the court to sign is also typically included, as is a document entitled “proof of service” in which you indicate that you mailed a copy of the request to the court and to the other spouse. The experienced family law attorneys at Ayo and Iken can also help you in preparing and properly submitted to the court.