Chaos and Temporary Orders - You Missed an Issue!

When the parties go to court to get temporary orders in a divorce, there is a staggering number of moving pieces. Parties have to hammer out a full temporary parenting plan (about 10-14 pages), a temporary order for payment of bills and usage of property (3-4 pages), and a child support order and worksheets (15 pages). As you might imagine, there are a lot of specific provisions in all those orders. This is understandable, given that these court orders quite literally shape the lives of two or more people. Life has a lot of variables.

The mechanics of temporary orders hearings are that the parties each brief all of these individual issues and provide proposed orders granting all their relief. The Court hears five minutes of argument from each side. The Court rules on the major points, but there is no way the Court can orally dictate their rulings on 30 pages of documents. The reality is that the parties pick the set of orders which is "closer" and do their best to tailor those to the Court's ruling via hand-written and initialed changes.

If the parties cannot agree on a piece of language the Court did not already address, they go back in front of the Court to get a ruling.

The process can be absolutely frantic, as the parties have to argue their case, work on orders (which sometimes involves something like making a new child support worksheet or drastically re-writing parenting plan provisions), review the orders with their clients, get them signed, and have any disputes out in front of the Court all before the Court gets off the bench at 11:30. Add onto this that everyone involved is probably coming off a massive adrenaline rush and you have a recipe for problems.

A near-inevitable byproduct of this that there will be some issues that the Court does not rule on that will not get addressed in the orders. This is an irritating occurrence, but it does happen. Try to be kind to lawyers about it - even though lawyers are highly skilled legal professionals, the amount of variables in a set of family law orders is staggering, and far more complex than in most other types of law.

Many of the issues are minor (lawyers and client's don't overlook the major ones when drafting orders). Some of the issues are not, so I 'd like to provide some guidance about how to avoid having a major issue addressed in the order and what happens if an issue does get missed.

To mitigate the risk of "lost issues," you will want to think really hard about all the potential points of conflict and make sure they are addressed in the motion. Be very familiar with the motion your lawyer generates and think about the "got to have this issues" are touched on in your documents and proposed orders. Take time to think about all the things that have to be right. If it helps, make a list of those things and bring it to the hearing. The process of making these sorts of lists often helps identify issues that the parties might have overlooked in their briefing, which can be a disaster.

For example, I had a case several years ago where neither party mentioned to their lawyer that they owned a dog together, and that the possession of the dog would be a hotly disputed topic. When the Court didn't rule on it (because no one briefed it), there was nearly a shouting match between the parties in the Court hallway when he realized that in leaving the home (the issue we did brief), he would also be leaving his beloved pet. Had either party advised their lawyer this was a "got to have" issue, it would have been briefed by both sides and the Court would have made a thoughtful ruling.

Had my client made that "got to have" list, I suspect the dog might have come up and we could have worked through the issue without the explosive public confrontation.

Another thing you can do to avoid missed issues is when your lawyer gives you a copy of the orders to read and sign, make sure you understand them and that all of the "got to haves" are ruled on. I've even had a client check off the items on her "got to have" list as she read through the orders. It is far easier to get it sorted out then and there then having to figure it out after the fact.

If you don't realize an issue has been missed until after Court, take heart. Typically, these missed issues are minor and get worked out between the lawyers when they occur. Even if the issue is not minor, the Court has given enough of the "flavor" of their ruling that the parties can correctly intuit how the Court might rule on thee issue and negotiate accordingly. Worst case scenario, you might end up back in court on a very narrow unresolved issue, but this is fairly rare.

Getting temporary orders can be a very intense and chaotic experience, so hopefully this gives you some useful guidance to manage this chaos and work with your lawyer to get all the rulings you need.