A recent Texas Supreme Court case has come down in applying the new Constitutional standard of the seminal case of Troxel v. Grandville530 U.S. 57, 120 S.Ct.2054. We haven’t got to grandparent access yet, so if you are interested, check out the full post at my “blanco” blog by clicking here: Texas Divorce and Family Law Blog.
Don’t ever let anyone tell you that a temporary order is not a big deal. Temporary orders may have a profound impact on not only your life, but the life of your children. When the lives of your children are being affected, I don’t know what could be a bigger deal.
The filing of a suit affecting the parent child relationship places a lot of power over chilren into the hands of the Court. The Court can make any temporary order it sees fit regarding children so long as the Court feels it is in the safety and welfare of the child. (TFC 105.001). The amounts to the sobering reality that once parents put themselves into the hands of the court, they are putting their children in the hands of the court. Even if neither one of the parents agree to certain provisions, the Judge can override the will of the parents and make nearly any binding order regarding the child so long as it determines it is for the child’s best interst. This means that in the span of a short hearing, the Judge can make significant decisions that for a potentially long period of time will affect all aspects of a child’s life. Kind of scary, hun?
The Court can order temporary restraining orders regarding the children without the need of hearing. TROs of this nature usually relate to enjoining either party from withdrawing the child from their school or daycare, and keeping either party from taking the child out of a geographic area.
After an evidentiary hearing, the Court has even more sweeping powers to determine the temporary situation for any child who is a subject of the divorce or suit affecting the parent child relationship. The court is empowered to determine the temporary conservatorship of the child (custody), temporary child support, orders restraining a party from determining the peace of the child, keeping someone from removing the child from a certain geographic area, and the payment of attorneys’s fees. (TFC 105.001(a)).
As sweeping as these powers are, there are a few restrictions on the court. Unless there is a verified (sworn) pleading or affidavit by a party, the court cannot on its own, take possession of the child away from a person who has lawful custody, nor can the court exclude a parent from possession or having access to their child. (TFC 105.001(c)).
The normal requirement of an evidentiary hearing is done away with if the order is an emergency order sought after by a governement agency such as Child Protective Service. (TFC 105.001(h)).
This post was simply to give you an understanding of the impact of temporary orders on children issues. We’ll discuss children issues in more more detail in latter postings.
The solution is to request interim attorney fees during the pendency of the case. Interim fees may be awarded through temporary orders under TFC 6.502.
The Court will want to hear testimony about why there is a need for interim attorney fees. Reasons include great disparity of incomes, or lack of access to credit by one party. Generally, the Court should strive to equalize any inbalances so that each party has a fair chance to put on their case.
Many times, the judges will look for a source of income that they can channel to the disadvantaged party. This for example could be a large tax refund or yearly bonus that the judge orders on temporary orders to be used by a party to pay interim attorney fees. The judge can also order that spouse ordered to pay the interim fees must cash in stock or take a loan out against a retirement account.
The payment of interim attorney fees is considered temporary spousal support and is enforceable by contempt. (TFC 6.502 and 6.506 see also In re Bielefeld, 143 S.W. 3d 924 (Tex. App.-Fort Worth 2004)).
In cases in which one party is the primary wage earner, that party has an ongoing duty to support their spouse. Just because a divorce has been filed doesn’t change that obligation. At a temporary order hearing, the judge has the power to order one spouse to make support payments to the other until a final decree is entered. (TFC 6.502). If they fail to make this payment, they could be found in contempt of court. (TFC 6.506(a)(2)) If they continue to refuse to pay that “*itch” or “b*asterd”, the may find themselves in “j*il” under a contempt order for up to 18 months (Texas Government Code 21.002(f).
A common tactic while one party is paying support to another is to try to delay the end of the trial and “lezzes les bon temps roule” (let the good times roll) in regards to receiving the temporary spousal maintenance. That is why some attorneys will request that the temporary spousal maintenance remains just that..TEMPORARY and ask that a limit of three to six months be put on the obligation to pay. Most judges will allow that. But even if this limit is not requested in the temporary orders, the court may listen to a motion to modify the temporary orders in which the benefiting spouse is receiving payments, but has made no efforts to seek employment or make other financial arrangments to support his or herself after the divorce. Since the State of Texas does not beleive in permanent alimony, the courts will not allow a spouse to suckle at the money teet longer than is necessary to be weened and go out to forage on their own.
Remember we are only talking about spousal support here. CHILD SUPPORT is a whole other matter…