What is a Motion for Temporary Relief?

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Before you file for divorce, you are simply married; After your divorce is granted, you are simply divorced, and  your divorce decree becomes the “private law” of your divorce. In between, while you are still technically married, your relationship may be somewhat contentious, and there may be conflict over rights and responsibilities. You don’t yet have the certainty a divorce decree provides, and you may need the court to weigh in. In such a circumstance, your attorney may file a motion for temporary relief on your behalf.

What is a motion for temporary relief? A motion is a formal request for the court to take some action in the context of a lawsuit (and a divorce is a lawsuit). “Granting relief” is the legal term for giving one party what they ask for in a motion. The relief is “temporary” because the divorce decree is considered a “final” order (though there may be subsequent motions and orders in the case).   

Motions for temporary relief may resolve conflicts that arise between the time a divorce is filed and the time it is finalized, but that doesn’t mean that every time an issue arises, it can quickly be resolved by filing a motion. Motions for temporary relief are granted (or denied) after a hearing. In order to give all parties adequate notice of a hearing, the hearing cannot take place until at least fourteen days after the motion is filed.

As a practical matter, it may take even longer to get on the docket to be heard. So, rather than filing a motion as a reaction to something your estranged spouse has done, you and your attorney may want to sit down, anticipate issues that could arise, and work on mediating a solution rather than filing a motion for temporary relief.

Filing motions and having hearings is expensive, as well as time-consuming, and you can’t file a motion every time you have a problem. You also can’t depend on the judge to have the same view of your situation as you do.   So, to the extent you can resolve an issue without going to court over it, you, your spouse, and your kids will all be better off.

What Are Some Kinds of Motions for Temporary Relief?

A husband or wife in a pending divorce can ask the court for many types of temporary relief, including:

  • Temporary child custody or parenting time;
  • Temporary spousal maintenance or child support;
  • Temporary costs and reasonable attorney fees;
  • Temporary use and possession of the marital home, car, or other possessions;
  • Restraining the other party from selling, destroying, or disposing of marital property;
  • Restraining one or both parties from harassing the other or the children;
  • Restraining one or both parties from removing a child from the state or country:
  • Excluding one party from the marital home or the other spouse’s home.

The court may also issue a temporary order requiring one or both parties to do or not do certain things that might delay or interfere with the case.

Certain things cannot be the subject of a temporary order. For instance, a court will not issue a temporary order denying one parent parenting time with the child, absent a finding that parenting time would cause physical or emotional harm to the child.

Hearing on a Motion for Temporary Relief

As a party, you will need to be present at a hearing on a motion for temporary relief, but there will not be much for you to do. When your attorney files the motion, he or she will submit an affidavit, which is a sworn statement signed by you, stating the facts on which you are basing the motion. For instance, if your spouse has threatened to sell certain marital property, you would certainly state that in the affidavit that accompanied a motion for a restraining order with regard to property.

In court, the attorneys will present their arguments for and against the motion. Is that the end of it? Not necessarily. After hearing a motion for temporary relief, the judge has up to 90 days to issue an order. While most don’t take that long, it may still take weeks before you have an official, definitive answer to the issue you’re trying to resolve.

None of this is to discourage you from seeking clarity or help from the court during your divorce if you need it. Sometimes it is essential to file a motion for temporary relief. However, if you have a good attorney, he or she may be able to help you resolve the issue sooner, with less hostility, and less expense, through negotiation or mediation.

If you have further questions about dispute resolution or motions for temporary relief in your family law case, we invite you to contact our law office.

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