The Mn Criminal Defense, Personal Injury & Family Law Blog
Getting Off to a Fast Start: The Divorce Temporary Hearing
April 28, 2019
Sports commentators often point out that baseball is a game of firsts. Teams which consistently score the first run of the game and record the first out of an inning usually win most of their games. In fact, the first-run winning percentage is .689, which translates to roughly 110 wins over the course of a season.
Your divorce is a lot like a baseball game. You probably did not see that comparison coming, did you? The temporary hearing is the first major event in a McLeod County marriage dissolution. Unless your Hutchinson divorce lawyer is thoroughly prepared and very aggressive, you will be playing from behind for the rest of the game. That’s not a good position to be in.
The Build-Up to the Temporary Hearing
Success at the temporary hearing depends on a diligent investigation of the facts, a good procedural foundation, and seizing the initiative in court.
There is no time to conduct extensive financial discovery, such as forensic audits. But there is time to collect and review basic documents, such as tax returns and incorporation instruments. There is also time to look for financial red flags, such as:
Account alerts that suddenly cease,
Employment income levels that unexpectedly drop, and
Correspondence addressed to unfamiliar entities.
All these things could indicate that your spouse is trying to hide money. For example, if take-home pay suddenly drops, the person may have adjusted income withholding to conceal funds.
If you see these red flags, do not confront your spouse. That will just drive him/her underground. Instead, review your concerns with your Hutchinson divorce lawyer.
A child custody investigation should include document reviews, like report cards and medical bills, as well as brief interviews with friends, clergy, and other witnesses. Since time is limited, a Hutchinson divorce lawyer should probably focus on before-and-after questions (e.g. the kids were doing well in school until they moved in with their mother or father).
There are procedural issues as well. The hearing cannot take place until the respondent is personally served. Some people are hard to find, and some people intentionally dodge service. If service is an issue, a Hutchinson divorce lawyer has some options. Private process servers, which more expensive than constables or sheriffs, are also usually more diligent. Alternative service, perhaps even including service via Facebook or other social media, may be available as well.
The initiative is very important as well. Your Hutchinson divorce lawyer should prepare temporary orders for the judge to sign. Many times, such a draft becomes the final temporary orders, with just a few modifications.
Issues at the Temporary Hearing
The proposal should cover all interim financial and parenting time issues in your divorce case. These decisions will probably remain in place until the judge enters a final decree of divorce.
Financially, it’s very difficult to divide property at this early juncture. The temporary orders may only cover FSOs (Family Support Obligations), like child and spousal support. If the couple has revenue-producing property, like a rent house, that income probably needs to go into an escrow account until the court decides whether the property is marital or non-marital property.
The status quo usually determines the parenting plan. At this point, the parents are almost always living apart. So, the children “live” with one parent and “visit” the other one. Unless there are some significant concerns, such as a physical abuse allegation, the existing arrangement will probably stay in place. So, if a Hutchinson divorce lawyer needs to change this arrangement, the aforementioned investigation is even more important.
Can a Hutchinson Divorce Lawyer Change the Outcome of a Temporary Hearing?
If the judge’s decision is unfavorable, it may be possible to appeal it. However, the law is unclear. Usually, an associate judge handles the temporary hearing, and this court is not a court of record. But, the temporary order is not a final order either. Under the law, parties can automatically appeal decisions not made at a court of record (i.e. no court reporter is present), and only final orders are appealable.
Later, if new evidence emerges during discovery, a Hutchinson divorce lawyer should immediately file a motion to modify the temporary orders. That’s especially true with regard to the parenting plan. The longer the current arrangement stays in place, the harder it is to undo it. Since divorce is such an unstable situation, most McLeod County judges don’t like to rock the boat any more than necessary.
Work with a Hard-Hitting Attorney
A fast start at the temporary hearing may be the key to protecting your legal and financial rights. For a free consultation with an experienced Hutchinson divorce lawyer, contact Carlson & Jones, P.A. The sooner you call, the sooner we’ll start working for you.