Quite often when the parties decide to proceed with a divorce action, a decision has to be made by one of the parties as to whether to pursue temporary relief or relief during the pendency of the divorce action.
That determination is fact specific and would depend on the circumstances of each particular case. For instance, do the parties have minor children together? Are both parties employed? Is one of the parties a stay-at-home parent and the other party is the primary wage-earner? Do the parties have debt? What are the typical household expenses? Will one of the parties leave the marital home during the pendency of the divorce action or will the parties continue to reside together until the entry of the final judgment of dissolution of marriage? Is domestic violence a factor? This, of course, is not an exclusive list of things to consider when making a decision on whether or not to pursue a motion for temporary relief, but is a good example of what the party who is considering moving forward with such a motion should consider.
The cost of pursuing temporary relief must also be considered. Motions for temporary relief and hearings thereon are often costly and time-consuming undertakings. These temporary relief hearings are often referred to as mini-trials as they generally require a significant amount of preparation. For example, all the pertinent evidence must be assembled, witnesses must be prepared, the party must also be prepared for both direct and cross examination, a strategy has to be developed on the issues at hand, a proposed temporary parenting plan and time-sharing schedule must be developed, if children are at issue, a need for spousal support must be determined and evidence to support that figure must be available, if applicable, proper arguments must be alleged in support of an award of exclusive use and possession of the marital home, etc. All these tasks are quite involved and often are emotionally draining in addition to being costly. However, since it is during a hearing on temporary relief when the Court is first introduced to the parties and the issues, it is imperative to be fully prepared as the old adage that first impressions do count, does hold true in this context.
If there is a need to pursue temporary relief, a hearing on such a motion actually does more for the parties than just grant or deny the relief that is being sought in the motion. For one thing, the actual preparation for the hearing often allows the parties to organize their thoughts and identify the outstanding issues in the case, which, in turn, enables the parties to achieve an expeditious resolution of the case. Sometimes it actually takes an order on temporary relief for the parties to settle. For example, when one party is dissatisfied with the outcome of the temporary relief hearing, that party often becomes quite amenable to settling the case as quickly as possible, fearing an even more unfavorable outcome at the final hearing.
However, deciding on whether or not to pursue temporary relief is truly a case-specific determination as circumstances of each case do vary. Since the dissolution of marriage actions must go through mediation before the case is set for trial, in the event of an impasse, it is not uncommon for the parties to forgo temporary relief either altogether or, if filed with the petition for dissolution of marriage, to forgo setting it for a hearing until after mediation, in case of an impasse or partial settlement. Also, even if a party tries to move forward with temporary relief prior to mediation, the Court may wait to schedule the hearing until after mediation is held or that could occur simply because the Court may not have anything available prior to that date. It is also important to be aware how only true emergencies are heard by the Court on an expedited basis. So even though the parties often consider their particular situation to be “a true emergency”, for the Courts there are only very few circumstances that would warrant an immediate hearing.
Of course there are circumstances when a party has no choice but to pursue temporary relief, whether it is in the form of temporary child support, temporary parenting plan with time sharing schedule, temporary alimony/spousal support, exclusive use and possession of the marital home, etc. The Court may also award other relief if found to be in the best interests of the children, if children are at issue.
It is also important to keep in mind that a temporary arrangement, especially regarding the children, may also give the parties a better idea of what the likely arrangement will be on a permanent basis. Unless the parties are truly having issues with the temporary arrangement or the circumstances have changed since the initial filing and the temporary relief hearing to where the terms of the temporary arrangement are either no longer in the best interests of the children or are simply no longer a viable solution for the parties, the Courts often do not stray too far from their original ruling on temporary matters when ruling on issues at the final hearing. Now, the parties may always reach an agreement on all the outstanding issues after the temporary relief hearing. Such an agreement would obviate the need for the Court to decide any of the issues, and, rather than have the Court decide the issues, the Court would then simply ratify the agreement and incorporate it into the parties’ final judgment.
Consequently, deciding on whether or not to pursue temporary relief is not a simple decision. There are definitely cases where temporary relief is a must and there are those where it does not come into play at all. However, it is all those cases “in-between” that require an in-depth analysis of all the facts and the weighing the pros and cons of moving forward with a temporary relief motion.