Initial Decisions

Temporary Orders

CPS 2/10/07

Do you need help now? Call 810 235-1970 !
By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/

A divorce action often has one party asking the judge to make temporary decisions about issues like child custody, child support, spousal support, use of the marital home, and who pays the bills.

A divorce has a waiting period , with no children its 60 days, with children its 180 days. In a divorce 6 months is a long time and some issues must be resolved. Without an order each parent ha the right to custody and either party may retain the children. Without an order a stay at home mom with the working husband gone but the kids with her will have no income unless the father voluntarily pays or there is a court order.

Genesee County has a set of general guidelines as to dissipation of assets, conduct around the children and the children no residing out side of the county.

If a party is fearful of their personal safety from the other a personal protection order can be sought.

These motions for temporary relief then typically concern child custody and support, spousal support, parenting time schedules for each parent, restraints on distributing property, residence in the marital home and requests for attorney fees.

These motions unless agree upon are not granted without a hearing. MCR 3.207 ( C)(2).

A motion may be made at any time during the divorce proceedings by filing a verified motion setting forth facts sufficient to support relief requested. MCR 3.207 ( C)(1).We talk to court by complaint, petitions and motions. The court talks back to us by orders and judgements.

MCR 3.207 Ex Parte, Temporary, and Protective Orders

(A) Scope of Relief. The court may issue ex parte and temporary orders with regard to any matter within its jurisdiction, and may issue protective orders against domestic violence as provided in subchapter 3.700.(B) Ex Parte Orders.

(1) Pending the entry of a temporary order, the court may enter an ex parte order if the court is satisfied by specific facts set forth in an affidavit or verified pleading that irreparable injury, loss, or damage will result from the delay required to effect notice, or that notice itself will precipitate adverse action before an order can be issued.(2) The moving party must arrange for the service of true copies of the ex parte order on the friend of the court and the other party.(3) An ex parte order is effective upon entry and enforceable upon service.(4) An ex parte order remains in effect until modified or superseded by a temporary or final order.(5) An ex parte order providing for child support, custody, or visitation pursuant to MCL 722.27a must include the following notice:

"NOTICE:
"1. You may file a written objection to the order or a motion to modify or rescind the order. You must file the written objection or motion with the clerk of the court within 14 days after you were served with this order. You must serve a true copy of the objection or motion on the friend of the court and the party who obtained the order.

"2. If you file a written objection, the friend of the court must try to resolve the dispute. If the friend of the court cannot resolve the dispute and if you wish to bring the matter before the court without the assistance of counsel, the friend of the court must provide you with form pleadings and written instructions and must schedule a hearing with the court.

"3. The ex parte order will automatically become a temporary order if you do not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed unless changed by a later court order."

(6) In all other cases, the ex parte order must state that it will automatically become a temporary order if the other party does not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. The written objection or motion and the request for a hearing must be filed with the clerk of the court, and a true copy provided to the friend of the court and the other party, within 14 days after the order is served.

(a) If there is a timely objection or motion and a request for a hearing, the hearing must be held within 21 days after the objection or motion and request are filed.(b) A change that occurs after the hearing may be made retroactive to the date the ex parte order was entered.(7) The provisions of MCR 3.310 apply to temporary restraining orders in domestic relations cases.(C)

Temporary Orders.

(1) A request for a temporary order may be made at any time during the pendency of the case by filing a verified motion that sets forth facts sufficient to support the relief requested.

(2) A temporary order may not be issued without a hearing, unless the parties agree otherwise or fail to file a written objection or motion as provided in subrules (B)(5) and (6).

(3) A temporary order may be modified at any time during the pendency of the case, following a hearing and upon a showing of good cause.

(4) A temporary order must state its effective date and whether its provisions may be modified retroactively by a subsequent order.

(5) A temporary order remains in effect until modified or until the entry of the final judgment or order.

(6) A temporary order not yet satisfied is vacated by the entry of the final judgment or order, unless specifically continued or preserved. This does not apply to support arrearages that have been assigned to the state, which are preserved unless specifically waived or reduced by the final judgment or order.

At any time a party may request that the court order the other to pay attorney fees and expenses related to the action or a specific proceeding. The motion must allege facts sufficient to show that the petitioner is unable to bear the expense and that the other party is able to pay. Another tactic is to say that the expenses and costs incurred are because the other party was unable to comply with a previous order but refused. MCR 3.206 ©).

The parties may enter into an agreement regarding custody during the pendency of the divorce. Thompson v Thompson, 261 Mich App 353,. But a stipulation cannot , if raised by the judge, overcome the court obligation to consider the best interest of the child when determining the permanent custody arrangement or even a temporary order.

A temporary order stipulated to and not litigated by a hearing is not a previous judgement or order for the purpose of requiring a change in circumstance to be awarded a final judgement different from the temporary order. The test will be in custody is the new arrangement in the Best Interest of the Child.

In brief a temporary order may not preclude a different order in the judgement but there is a great tendency by the court to do just that.

Usually the first time the parties are in court is to enter or argue about a temporary order.

By Attorney Terry Ray Bankert 810 235-1970
http://attorneybankert.com/
Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer. http://terrybankert.blogspot.com/