Temporary Orders: 80% of a Divorce In Six Weeks

There is an old adage among family law lawyers that 80% of the work in a family law case happens in the first six weeks. Today, I would like to explain how the temporary orders work in family law cases in Snohomish County, and hopefully by the time we are done, you will see how that old adage is usually entirely correct.

What Are Temporary Orders: Temporary orders fill a practical but immediate need. Filing for divorce, in and of itself, does not do much to guide the parties. For example, it does not provide a custody plan or child support, nor does it determine who gets to stay in the family home or who pays which bills. Temporary orders are the interim orders that the Court puts in place to determine a short term “operations plan” while the parties get situated and do the fact-finding needed to negotiate a resolution or try a case.

As the name implies, they are temporary. These orders terminate when the final orders are entered (at the end of the case), but they can also be modified by the court at any point before the final orders are entered and the case is done.

Getting Ready to File the Motion for Temporary Orders: The reason lawyers say that 80% of the work happens up front is because the lawyer has to get the client through the temporary orders process. This means meeting with the client, setting up a financial arrangement, and learning the client’s entire set of custody / divorce problems. For example, in a long-term marriage with two kids, I would need to learn about:

a) The parties’ careers and income

b) The parties’ historical income

c) All the parties’ assets, including their real property, vehicles, retirement assets, and other large items

d) Calculations for child support

e) The parties’ expenses, to determine who should pay what

f) The parties’ schedule

g) The history of parenting duties and obligations

h) Proposed plans for who will stay in which home

i) Proposed custody schedules

j) Any other emergent issues, such as domestic violence, mental health issues, addiction, or other things

I would then take this information, and need to generate a motion for temporary orders where I am asking the court for interim orders that will address every item above. Since the motions are decided mostly on written documents, this means generating a lot of paperwork. Most of this is generated by me (and my excellent staff), but it is common for clients to have to write (with our guidance and assistance) detailed declarations where they outline the facts to the court, and explain why the court should grant us the things we are asking for.

How Long to Get to Court on the Motion: What makes this process even harder is the time constraints. Typically when someone is served with the divorce, they need orders from the court on these things now. This means generating an extraordinary amount of documents, reviewing them with the client, and getting them filed and served on the other party. It is hugely labor intensive. Typically, it is going to be twelve days from filing until when you can get in front of a court.

In emergency situations, you may be able to get the court to make some rulings on emergency issues within a day or two of filing, but these things are limited to real severe problems, like domestic violence and severe medical emergencies.

Motion Responses: Once you file the motion and serve it, you will have to wait for the other party to file a written response. This will include their side of the story (with any supporting evidence) and their recommendations for what the court should order. You will have to review these materials and we will need to file a short written response. This deadline for a response is quick (two days from when we get their response), so leading up to the hearing you will have to be on “high alert” and ready to respond.

The Hearing: The actual hearing happens in front of a Superior Court Commissioner, who is effectively the stand-in for a Superior Court Judge. They wear black robes, they have court rooms, and they decide cases, so they are virtually identical to judges. The only meaningful difference is that if you think the Commissioner made a serious error, you can ask a judge to take a second look at a case. (This is rare – the Commissioners are very seasoned practitioners, and their decisions get a lot of deference.)

Dress well for the hearing. So much of family law stems from your ability to be responsible and appropriate. Commissioner’s aren’t going to take your claims seriously if you cannot be bothered to show up looking like you do. If you don’t habitually wear a suit, do not bother with that (you’ll look unnatural), but do at least wear a collared shirt and slacks, or something comparable for the ladies.

You should make sure to be at the hearing at least half an hour early. I know that sounds crazy, but this allows you plenty of time to find parking (pay to park in the garage, it’s worth the money to not stress about feeding a meter). This also gives you some breathing room if there’s a long line in the security checkpoint getting into the court house. The whole point is to limit your stress to what happens in the courtroom, and eliminate the potential stressors that can be fixed by setting an alarm clock. (Right now, with COVID, you’ll be at your lawyer’s office for attending through video conferencing, but still be there early. If you are participating remotely, test all your tech stuff before the hearing.)

The hearing is typically one of several that is set on a morning or afternoon docket. There can be as many as sixteen cases on any one docket (although that is rare). The Commissioners will take care of any cases with quick dispositions first (either cases where the hearing needs to be rescheduled or the parties came to an agreement), with more involved argument cases afterwards. You should plan on being there all morning if you are on the morning calendar, or all afternoon if you’re on that calendar.

In your case, each lawyer will only get five minutes to argue their side of the case, and then the Commissioner makes a ruling. Listen carefully to what is being said and take notes. School your facial expressions. It can be really easy to roll eyes or sigh when you hear the things from the other side which you don’t agree with. Remember that what might seem like legitimate grief to you could be interpreted by a commissioner as a bad attitude. Calm, quiet, and attentive are the way to go. I like clients taking notes because I cannot listen to them, the Commissioner, and the other lawyer all at once. You’ll have an opportunity to show your lawyer your notes and point out anything you want them to address before they start talking. After the argument, the Court makes an oral ruling.

The two lawyers work together to submit written orders that reflect the court’s ruling. Please make sure and read every word of the order because you will be bound be everything in the order. You need to know what you are allowed to do, and what you aren't allowed to do. A good lawyer will usually review it with you, but if not, make sure and educate yourself. Later, as issues arise, make a point to read these orders before picking up the phone and asking your lawyer questions - it can shorten the discussion with your lawyer or eliminate it outright, saving you money.

Recovery: The temporary orders process is utterly exhausting, physically and emotionally. I would highly recommend you clear the rest of your schedule on the day of the hearing, since you are going to be wiped out. If you can get the next day off too, even better. Remember that self-care is a mandate for the entire process (and beyond).

Why are Temporary Orders Important? Temporary orders are enormously important, and lawyers invest lots of effort into them for good reason. Even though the law says that the judge at trial should start with a “clean slate” and should not make judgements based on what the Commissioners ruled at temporary orders, the reality is that the Commissioner’s temporary orders rulings have enormous precedential value. The parenting plan entered in temporary orders usually looks a lot like the final parenting plan after trial. Same deal for child support or maintenance (sometimes called alimony). Getting a favorable result in the temporary orders phase can result in substantially less work as you get farther into the case.

How Can I Save Money on Temporary Orders: Two words – organization and dialogue.

If you are organized and can get your lawyer all the documents they ask for and evidence in a prompt and organized manner, the lawyer and his staff has to do a lot less to get things ready for court since we aren’t sifting through a mountain of documents trying to make sense of them. Since you pay lawyers and paralegals hourly, this organization on the front end quite literally saves money.

The second thing is dialogue with the other party (or having the two lawyers talking). If the parties can discuss the issues and come to agreed orders, this can save both sides of a divorce on a small fortune. It can also enormously reduce psychological wear and tear. Court is stressful, and if the two parties have gone out in public and said terrible things about each other, it becomes a lot harder to work together and come to agreements later on. The more adversarial a divorce is, the less agreement there is, the more work the lawyers have to do.

When these “pre-hearing” negotiations are going on, I would strongly encourage you to listen to your lawyer. Your lawyer has likely been in front of the same Commissioners on issues similar to yours hundreds of times. Their predictions about how they court will rule are usually extremely accurate. If they are recommending an agreement, even if it is not everything that you might want, give it serious consideration. I can’t tell you how many times I have had a client disregard a recommended settlement, spend a fortune litigating issues, and end up with exactly what I predicted the court would do before anyone spent thousands of dollars.

Conclusion: This is a difficult process. In the next several posts, I will be going through different aspects of temporary orders, such as a temporary parenting plan, child support, and property usage. Hopefully this has given you a good practical overview of this very important and labor intensive process.

And, as always, good luck. As difficult as this process is, it is your first step towards building a happier, healthier life for you and your loved ones.