Temporary Orders I: Rights You Can Get During a Divorce

You are served with divorce papers in the San Francisco Bay Area.  You have custody of the kids but are afraid of losing them, don’t have money for a lawyer and can’t pay your bills while your spouse is earning $120,000 a year.  What can you do to survive the divorce process personally and financially?  Apply for “temporary” orders.  Here are the top choices for orders and how they can work for you.

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 It is often the exception, not the rule, that the parties parted amicably, are both self-supporting, able to finance the litigation, and agree on custody/visitation and child support.  All too many separations are fraught with resentment – the parties need a court order to ensure neither will take unfair advantage of the other by cutting off support, secreting property, or absconding with the children. In extreme situations, immediate protective relief may be essential to ensure the physical safety of a party and/or the children.

A person can seek a variety of interim, “temporary” orders (also referred to as “pendente lite” relief) in a divorce.  The purpose of a lot of these orders is to maintain the “status quo” until the divorce can be settled.  Some orders, labeled “protective orders,” are specifically designed to ensure the safety of a party and children in domestic violence situations.

Temporary orders are appropriate when any of the following exist:

  • There is actual or threatened physical or sexual abuse of a spouse, their children and/or other family and household members
    There is a dispute over child custody and/or visitation
  • The spouse needs spousal support and the other party refuses to help voluntarily
  • The children need financial assistance for their basic (child support) and/or extraordinary expenses (e.g., for medical/dental care, special education) and the other party refuses to help
  • The spouse cannot afford to pay attorney’s fees and costs
  • The family finances and community property estate are under the other party’s control and are at risk of being dissipated or at least separated from the client’s access to pay debts and expenses
  • The spouse otherwise needs help paying community debts and living expenses while the divorce is happening

There are a dizzying array of temporary orders available.  Here are the top picks:

  • Orders restraining assaultive conduct and harassment
  • Dwelling exclusion and other “stay-away” orders
  • Companion animal protection orders
  • Firearm restraining orders
  • Injunctive relief (specifying that a party do or don’t do something) as authorized in civil actions generally
  • Temporary custody/visitation orders
  • Property restraint orders, including orders regarding temporary use, possession and control of property and the payment of liens/encumbrances on that property.
  • Nondisclosure orders, in UIFSA support enforcement proceedings concerning the address or other identifying information of a party, child, parent, guardian or other child caretaker.
  • Child and/or spousal/partner support orders.
  • Attorney’s fees and costs orders.

Every type of temporary order involves a certain type of process and set of laws.  The process of securing temporary orders can be overwhelming but essential to one’s literal or financial survival.  A person engaged in a divorce is wise to seek the help of a family law attorney to maneuver this tricky area of family law.

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Don’t Be a Victim of the System with Domestic Violence

Divorce - Unhappy Couple

Recently, news outlets have posted stories on the domestic violence dispute between Jack White and his ex-wife, Karen Elson. After the couple filed for divorce last year, Elson obtained a temporary restraining order against White in fear for her safety and alleging that he was an unfit parent. It is important for survivors of abuse to know there are helpful resources out there to protect them from further abuse.

What is domestic violence exactly? It is defined as “abuse or threats of abuse when the person who is abused and the abuser are or have been in an intimate relationship.” An intimate relationship may include couples that are married or domestic partners, are dating or used to date, live or lived together, or have a child together. It also expands to those who are closely related by blood or marriage.

Domestic violence comes in many forms and is not always physical. It can be in the form of kicking, shoving, scaring, stalking, or being kept from freely going somewhere. Abuse can also be verbal, emotional or psychological.

If you believe you have been abused or feel scared for your own or your children’s safety, you have many options. You may want to consult with a domestic violence counselor or seek the advice of an attorney. You should contact an attorney who specializes in the key factors of your situation (i.e. immigration, custody issues, criminal charges, etc.). There are a variety of options you may use to obtain legal protection if you have been or believe you are under the threat of abuse.

Obtaining a restraining order is a common route used by survivors of abuse. However, there many types of restraining orders. Which one do you choose? If you are in an emergency situation, you may want to file a restraining order with a law enforcement agency, which may be obtained within twenty four (24) hours. However, an emergency restraining order (EPO) can only last up to seven (7) days. A temporary restraining order (TRO) can go up to about 20-25 days until the court hearing. TROs may be obtained by filling out paperwork detailing everything that has happened and why a restraining order is necessary. There are also “permanent” restraining orders and criminal protective orders.

Another option is that you may want to get a civil harassment restraining order depending on your circumstances. This is different from a domestic violence restraining order.  A domestic violence restraining order protects from abuse or threats of abuse from someone you have a close relationship with. A civil harassment restraining order broadens the “close relationship” aspect so you can be protected from someone you have a close relationship with or from more distant relatives, neighbors, coworkers, etc.

A person suffering from domestic violence is wise to seek legal help in dealing with their situation.  No one wants to be victimized by the legal system as well as by their abuser.

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