Massachusetts divorce lawyer Nicole K. Levy discusses how to plan for temporary orders in Massachusetts divorce and family law cases.
The biggest moments in many divorce and family law cases occur at temporary order hearings. Temporary orders set the tone for the remainder of the case. Often, the temporary orders entered within the first six weeks of a case can dictate parenting time, child support, alimony and even elements of the division of marital assets for the remainder of a divorce or modification. In her Massachusetts Divorce Series, Attorney Miraglia described hearings for temporary orders as follows:
So, you have filed your Complaint for Divorce, now what? Typically, several months will pass before your case is resolved, but you need to know how you are going to live in the meantime, right? Certainly, if you have children, you need to know where they are going to live; who is going to make decisions regarding their welfare, health and education; what about child support? It is typical that to address these pressing issues your attorney will file Motions for Temporary Orders.
Temporary orders come in several forms. They may be a Stipulation of the Parties, a partial Stipulation and a Court Order, or simply a Court Order. The language contained within temporary order defines the tasks and behaviors the parties must follow for months – or even years – as the case progresses towards settlement or trial. Temporary orders give parties an opportunity to test the waters with a parenting schedule, a support structure, and/or the disentanglement of their personal and financial lives. In this regard, Temporary Orders provide a guide for parties to learn what works and what does not work.
For example, a temporary parenting plan provides parents with a way to understand early in a case if a specific schedule simply does not work for their children. A spouse who wishes to remain in the marital home may discover it is not financially feasible. A party accustomed to a certain lifestyle may learn, through the temporary order, that their former lifestyle is now beyond their reach. Temporary orders allow the parties to experiment with the legal structures and guidelines that become less flexible in a final judgment. That said, parties should be mindful that temporary orders often shape the final judgment in important ways.
Table of Contents for this Blog
- Think Practically: Gaming out Temporary Orders before they Happen
- Practicing Projection: Temporary Orders for Parenting Time
- Temporary Financial Orders: Envisioning a Future Budget Impacted by Alimony or Child Support
- Shared Expenses: Considering Who Will Pay Housing Costs, Debts and Child-Related Expenses
- Imagining Change: Projecting the Impact of Temporary Orders Under Changing Conditions
I encourage my clients to visualize how temporary orders are likely to play out well in advance of a hearing for temporary orders. Although parties routinely reach agreement on temporary orders at court, these negotiations are often fast-moving, and can be confusing for parties who have not considered their options in advance:
Hand-written stipulations are a function of necessity and compromise at the temporary order stage of family law cases. Family law cases can move extremely quickly, and major decisions about child custody and financial issues are often put before a judge mere weeks (or days) after a complaint is filed, after one party files a motion for temporary orders. There is often no time for attorneys to exchange type-written proposals in advance of a motion hearing. The result is hand-written stipulations that are negotiated under pressure, at the court house, where parties decide to compromise. The alternative to compromise, the parties learn from their attorneys, is to take their chances with an overburdened judge who will hear 50 motions that day, and who will decide hugely important issues for the clients after just 10 minutes or less of argument from the attorneys.
It can be crucial for clients to think about what their temporary orders should look like before they reach the court house steps. Clients in the early stages of a case are often intensely driven by short-term considerations. They tend to view the implications of parenting and financial issues through the lens of recent events, and fail to project the impact of temporary orders beyond the immediate future. Where temporary orders shape the judgment, however, parties must try to elevate their medium and long-term goals above short-term considerations.
Therapists, self-help gurus and professional athletes have long extolled the virtues of “visualization”, a process by which individuals imagine goals including “losing weight, asking for a raise, quitting smoking or starting your own business.” The process involves:
Before we can believe in a goal, we first must have an idea of what it looks like. To paraphrase the old adage: we must see it before we can believe it.
This is where visualization comes in, which is simply a technique for creating a mental image of a future event. When we visualize our desired outcome, we begin to “see” the possibility of achieving it. Through visualization, we catch a glimpse of what is, in the words of one writer, our “preferred future.” When this happens, we are motivated and prepared to pursue our goal.
Using visualization in the context of temporary orders is a little different then planning for a job interview or preparing for an athletic event. But the core idea is similar: parties should try to imagine how a specific parenting plan will affect them in their day-to-day lives. Similarly, parties should calculate their weekly and monthly budget to understand their financial needs with precision. In short, they must superimpose the proposal for a temporary order over the realities and logistics of their day-to-day lives.
First, let’s examine a parenting schedule. One or both parties might wish for a relatively equal parenting schedule. Parties have a tendency to equate parenting time with “parental rights” by rating their importance as parents based on the hours they have with a child each week. However, when parties begin executing a shared parenting schedule, it often becomes apparent that the schedule is highly practical due to the work schedules or one or both parties, the cost of daycare or the daily routines of the children. Even when there is a common desire for a shared parenting schedule, parents must examine a proposed schedule through the lens of everyday life to determine its practicality. If the schedule is unlikely to be successful over the long run, parties find themselves back in court sooner than anticipated.
One party may work full time and the other part-time, making a shared schedule unrealistic. Perhaps the parties initially agree that weekends should be shared, but not everyone works Monday through Friday, from 9:00 a.m. until 5:00 p.m. If mother works three weekends a month, then sharing weekends is not the optimal plan. If father works overnights and does not get home until 8:00 a.m., then he may not be able to get the children to school during the week. By visualizing how a proposed order would play out in practical terms, parties can avoid costly and stressful conflict.
All of this probably seems obvious. However, when parties distracted by a stressful and emotional court date, their respective day-to-day routines are easily forgotten. In addition to their own schedules, parties must consider the children’s schedule(s), when school or daycare ends, what activities they have, and unpredictable meetings and appointments. Seemingly obvious considerations tend to get lost in anxiety-ridden court hearings.
Understanding temporary orders for alimony and child support often comes down to good, old fashioned budgeting. The first step for a party is making a budget based on their current income and expenses. Even if a party is cohabitating with a spouse he or she will soon separate from, it is important to understand the present before tackling the future.
Next, the party should consider their likely living situation in 3 to 6 months. Will they be moving? Will their spouse be moving out? Will they be working more or less? Will they have a new daycare expenses? Are housing expenses likely to change, such as mortgage, rent or utilities? Some potential changes may depend on difficult to predict legal outcomes; parties should consult with an attorney about specific scenarios and possible outcomes that could impact their costs and expenses.
Last, a party should consult with their attorney about likely financial orders in their case. Is the party likely to pay or receive child support pursuant to the Massachusetts Child Support Guidelines? Does the parenting schedule and each party’s earnings result in a straight-forward calculation – or do questions and complexities exist that could dramatically swing a support order. Is it an alimony case? Are the financial needs of the party seeking alimony based on his or her current circumstances or is the request based on potential/future costs?
Just because parties have separated, it does not always follow that shared financial obligations will be divided equally. Decisions must be made about which party will incur the costs of certain expenses. If real estate is involved, there needs to be conversations about selling the property, one party temporarily retaining the property, or one party buying out the other party’s interest in the property. A party may wish to remain living in the marital home; however, a review of his or her finances may show this is not feasible in the long-term. If the challenge is raising funds to buy out the other party’s interest in the property, then a temporary solution can often be worked out. If the operating costs of the home are too high for one party to bear, however, the range of options is often reduced.
Moving out of the marital home does not necessarily relieve the “leaving” party of the financial responsibilities associated with the home. The party may be required to contribute to the cost of the home through alimony or child support, or may be ordered to contribute directly to the cost of the mortgage by a judge issuing a temporary order. Even if the home will eventually be sold, such a temporary order can be an expensive proposition while the divorce remains pending. Other expenses that may be shared included joint credit cards, auto expenses (loans, insurance, etc.), taxes (income and real estate), and insurance premiums.
By budgeting and fully understanding the financial implications of temporary orders, parties can avoid worst-case scenarios. For example, consider a party who leaves the marital home, and who may be required to pay a share of the mortgage to keep the house afloat during the divorce. One scenario for this party might involve a temporary order for support to the other party, as well as a second order requiring him or her to pay the mortgage indefinitely, while the other party lives in the home. A better scenario might involve that party agreeing to contribute to the mortgage for a period of six months, after which the home would be listed for sale (if the other party is unable to afford the cost on his or her own), with a share of the sale proceeds earmarked for reimbursement to the party once the sale occurs. Understanding these possibilities requires clear-thinking and planning by parties.
Not all situations are easily predictable, but most can at least be imagined. Unforeseeable changes are a part of life that tend to become more common during the stress and changes of a divorce of family law case. Perhaps one party needs to change his or her work schedule, or a child begins a new activity. Perhaps one party loses or gains a new job. What was once a very practical temporary order can become inconvenient or counter-productive. Not all change is unpredictable, however. Parties should try to consider likely future scenarios such as:
- The beginning or end of a child’s upcoming school year
- Plans for upcoming holidays or vacations
- One or both parties changing residences
- New financial constraints following a separation, as newly single parents budget for two households
- Potential tax liability, whether income or real estate taxes, and the options for payment and risks of non-payment
- Predicable reactions from children to changes in their home life or parenting schedule, such as anxiety or anger
- The impact of limited access to major assets and similar financial constraints while a divorce is ongoing
Considering these likely scenarios in advance of the entry of temporary orders reduces the likelihood that a party will be forced to return to court for further temporary orders based on relatively events like the ones described above. Understanding the practical applications of temporary orders requires parties to conduct a global examination of their lives, while asking specific questions of themselves and their attorney to determine the risks and benefits of a particular strategy or approach.
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About the Author: Nicole K. Levy is a Massachusetts divorce lawyer and Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.
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