Filing a Motion for Temporary Relief

The divorce process can turn a person’s life upside-down. The finances that previously served everyone’s needs now must support two separate households. Once the divorce is final, issues like child support and spousal maintenance will be resolved, but a divorce, depending on the level of conflict and the issues involved, can take a substantial amount of time to resolve. How are those issues dealt with in the interim? What if you need that financial support now?

We can ask the court to order temporary relief on various issues such as child support and spousal maintenance. The court can make preliminary determinations that can ensure that you and your children have financial support while the issues of the divorce are being resolved. Recent changes to the law have established a formula for calculating the presumptively correct amount of temporary spousal maintenance. Nevertheless, there is great discretion placed in the trial court’s hands to deviate from the statutory amounts.

As with all family law, it is very important that you work with an attorney who remains abreast of all developments in the law.

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What Are Temporary Orders For?

Let’s say a couple decides to divorce. The husband moves out, and the wife who stays in the family home needs money to pay the bills and feed the kids. Divorce proceedings can take months, if not years, before going to trial. The wife may realize that her kids would starve long before the divorce makes it to court. So with the help of an attorney, she can go to court and request the judge to grant her a temporary order. Once this is done, a hearing will be schedule, at which the judge will issue a decision. 

Temporary orders will:

  • Freeze assets to prevent one or the other spouse from spending or hiding property held in the marital estate;
  • Determine temporary alimony and child support until the divorce is finalized;
  • Decide on a temporary custody arrangement;
  • Establish domestic violence injunctions;
  • Suspend passports and issue orders regarding the removal of minors from the state;
  • Determine support related to attorney’s fees;
  • Decide issues related to health insurance.

Most divorce orders involve the sale or transfer of property that is considered part of the marital estate. The marital estate includes any property the two of you acquired during the course of the marriage with the exception being agreements made in a prenuptial agreement. It can also include shared bank accounts meaning that neither spouse has access to funds that they need to support themselves or their children.

Issues That a Motion for Temporary Relief Can Address

Motions for temporary relief are established in lieu of a final agreement. They address issues such as:

  • Child support,
  • Spousal support (alimony),
  • Visitation schedules, and
  • Exclusive possession of the home.

Such orders remain in place until the two sides can either come to an agreement on their own or the court formally decides the matter on a semi-permanent basis.

When Should I File a Motion for Temporary Relief?

In every divorce, you have two options. You can either reach an agreement on your own or have a judge decide the issue.

The latter is more costly and time-consuming, but in some situations, there is simply no way to reach an agreement. In situations where it’s possible to come to a decision yourselves, it has the benefit of saving you money in legal expenses and reducing animosity during the divorce proceedings.

How to Ask for a Temporary Order

Temporary relief orders are prepared by your attorney and then filed with the court. In the documents, you will outline what it is you’re looking for and what cause or need you have for the court decision. Since your accounts will be frozen until the divorce is finalized, it’s very common for those who have primary custody of the children to ask for child support and alimony. These motions are granted unless your former spouse can show some reason why you should not be entitled to that money.

Common reasons for denying spousal support or child support include the financial distress of the spouse making the payments or the financial solvency of the one making the request.

What are the steps in the process?

  • Filing the request for temporary relief. You file a formal request making some demand of the other party. The other party must, in turn, give the court a valid reason why that request should be denied. The request is filed under penalty of perjury and outlines the reasons why you are making the request. It is called a “supporting declaration”.
  • Proposal for temporary relief. The proposed order for relief will (usually) be granted by the family court judge. It will outline the specific demands made of your spouse and the means by which those demands will be met. Once the document is signed, the temporary order for relief goes into effect.
  • Proof of service. This ensures that your request and the related documents have been formally delivered to your spouse.

What Can I Expect at the Hearing?

After the aforementioned steps have been taken, the family court judge will schedule a hearing. This may require a formal hearing in the courtroom or a less formal hearing in “chambers”. At this point, witnesses may be called and affidavits filed supporting your request.

In the event that you are requesting child support, you will need to show evidence of your income and expenses. New York State provides the courts with a basic calculator to act as a guideline for child support requests.

These hearings generally last around twenty minutes unless there is cause to believe one party is withholding financial information or the party of whom the request is made vehemently opposes the support request. In the case of the latter, the court may issue a modification of the support request. In some cases, the judge will request more information. If your spouse hasn’t had time to respond to the request, the judge may issue a temporary order that is only valid up until the next hearing.

Creating Solutions to Help You Through Your Divorce

At Colwell Law Group, LLC, our firm is committed to making the divorce process work for our clients. If that means securing temporary financial support or effectively opposing a request for temporary relief, we can ensure that your best interests are well represented. Our tailored approach to family law means that we will develop a strategy that reflects the approach you want us to take. The divorce process can be extremely difficult, we are here to help ensure you make it through.

To learn more about how we have been able to help others, please review some of our testimonials.

Temporary Child Support and Spousal Maintenance Attorneys Serving the Capital District and All of Upstate New York

We are there for our clients; working to make things better for them at every stage of the divorce process. To schedule a consultation with one of our Albany lawyers, call 518-462-4242, or contact us online.

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