Friday, November 11, 2016

Temporary Orders in Massachusetts Family Law Cases

     Many cases in the Massachusetts Family Law Courts start with a motion hearing requesting temporary orders. If you have just been served with papers initiating an action and scheduling such a hearing, do not wait until after the hearing to hire a lawyer, even if you only have a few days' notice. The Orders issued by the Court will usually last until either the trial or settlement, and will set the tone of the litigation to follow. You do not want to prejudice yourself by agreeing to terms without the benefit of legal advice and experience. Many people have agreed to financial orders without the benefit of counsel and discovered later that they cannot afford the payments they agreed to. Their requests for relief from the Order usually fall on deaf ears, as the Court will always assume that you can afford any financial order you agreed to pay, regardless of what your Financial Statement says.
     Temporary orders are issued during pending divorces and other cases in order to resolve certain issues which cannot wait until trial, and to maintain the status quo until the Court has an opportunity to hear the merits at trial, or until the parties settle. Common issues in a divorce or other family law matter involve: temporary physical and legal custody of minor children, visitation, spousal and child support orders, who remains in the marital home, and who pays to maintain the marital home, i.e. mortgage, real estate taxes, and utilities.
      Once a Court enters a temporary order, they are reluctant to change the Order prior to trial, especially if the Order was agreed to by both parties. This is why an Agreement at the Temporary Order stage for the children to remain with one spouse "for now" may remain in effect for months or years. This could prejudice you in a child custody case where, all things being equal, the Court will usually not uproot children. Your odds of changing physical custody before trial improve if the initial temporary order was made over your objection, (although you would still have to show that the immediate change is necessary under the Best Interests of the Child standard).
     In Massachusetts, two kinds of temporary orders issue automatically upon service of the Divorce Complaint:
         1.  One is the Financial Restraining Order under Rule 411, which prohibits each party from transferring, hiding or encumbering assets except in the normal course of business, as well as changing any beneficiaries or coverage in insurance policies and pension plans without either the consent of the other party, or Order of the Court after notice to the other party. This remedies a problem in the past where vengeful spouses would respond to a divorce complaint by canceling their spouse's car insurance or medical coverage. All parties to a divorce action are automatically served with a copy of the Order, and violation of he Order is punishable by the Contempt power of the Court.
         2.  Under Rule 410 of the Supplemental Rules of Domestic Relations Procedure, each party must exchange financial documents with the other within 45 days of service of the Complaint. The documents exchanged must include three (3) years of all tax returns, bank statements, investment accounts, pension and retirement accounts, as well as current financial statements and current health insurance coverage. This rule obviates the need for attorneys to file routine discovery motions, and pushes the case along early with an exchange of information which will hopefully result in a quicker settlement, or at least quicker preparation for trial.