Obtaining Temporary Orders for Your Texas Divorce

Family law cases take time to sort out. This goes especially for ending a marriage. The average Texas divorce takes six months to a year to finalize after the initial filing. It’s virtually impossible for couples in contested divorces to continue sharing a home and resources during this time. Courts can set enforceable ground rules, called “temporary orders,” for each party to follow until the final decree. Here’s what to know about obtaining temporary orders for your Texas divorce.

In this Legal Guide: 

• What Are Temporary Orders?
• Types of Temporary Orders
• Standing Orders and Injunctions

What Are Temporary Orders?

We don’t always like a court telling us what to do. However, without temporary orders, a contested divorce might fall into chaos. Temporary orders solve a variety of issues while divorce is pending, such as:

• Who stays in the marital home?
• Where will the children live?
• Who will pay child support and/or spousal support, and how much?
• How much time can the child support-paying parent spend with the kids?
• Who is responsible for paying the mortgage, other bills, and debts?
• Who can possess and use shared property?

Temporary orders also include restraining orders and injunctions to ensure that spouses, children, and property are protected.

Requesting Temporary Orders 

Some divorces will not require a court to structure each party’s life during the process.  However, no arrangement is enforceable without the court’s approval. With that in mind, here are three ways to put temporary orders in place:

1.   Agreement Between Parties: If you and your spouse agree on all key issues, you need only draft and submit your agreement to the court. Once the court approves the agreement, it becomes an enforceable temporary order.
2.   Mediated Settlement Agreement: If you and your spouse are at odds, your first instinct may be to turn to the court. However, courts often require that parties attempt mediation before scheduling a hearing. A signed and filed Mediated Settlement Agreement containing agreed-upon terms are less contentious and will be enforced when converted into Agreed Temporary Orders and signed by the Judge, as well as the parties and their attorneys.
3.   Court Orders: If mediation fails — or likely would fail — the court will schedule a temporary orders hearing. Each party presents their case to the judge, with witnesses, documents, and evidence. After weighing the facts, the judge will issue temporary orders setting forth the “rules” to follow until the divorce is finalized.

Orders Must be Requested 

Certain temporary orders — called “standing orders” — are immediately applied to new divorce cases, but not in all counties. I will discuss standing orders further down in this article.

If you need specific temporary orders for support or child custody, you must formally request them from the court.  You can do this  at the same time you file for divorce, through a Motion for Temporary Orders. The motion may be included in your divorce petition, or filed sometime thereafter, but must be filed with the same court presiding over the divorce.

An Important Caveat 

Temporary orders are meant to be just that: temporary. Sometimes circumstances change during the temporary orders period.  If so, the initial orders may become unworkable.  Temporary orders can be modified prior to the final ruling in the divorce.  .

Temporary orders are only in effect while a divorce or parent-child relationship suit is pending. Once a final order is entered, the temporary orders are usually discharged.  However, some matters, including support or other financial terms, may survive the temporary orders and continue as part of the final decree or order.

Types of Temporary Orders

Some issues — residence, child custody, financial support — are common in contested divorces.  Others are unique to particular families. The requirements laid out in temporary orders are always specific to the parties in the divorce.

Exclusive Use of the Marital Residence 

In Texas, couples must decide who stays in their shared home after one has filed for divorce. Either party can request exclusive rights to the residence. The court will review the facts as well as each side’s assets and income before deciding who stays and who leaves the residence.

Either party can also request:

• sworn inventory and appraisement of marital property,
• the production of important documents,
• appointment of a third-party receiver to protect family property, and
• payment of attorney fees by the other party.

Child Custody

Determining who gets more time with the children is usually the most contentious divorce issue. Courts have a statutory mandate to base this determination on “the best interests of the child.” — Texas Family Code 153.002

Parents in divorce proceedings often disagree over what’s in their child(ren)’s best interests. However, the court has a wide range of factors that influence decisions regarding conservatorship and possession/access orders. The judge will decide on custody and visitation based on those factors, after hearing the parties’ testimony and considering the evidence presented at the temporary orders hearing.

It is possible for temporary orders regarding children to get rolled into the divorce decree’s final orders, as is, with no major changes.

Child Support 

Temporary orders concerning custody also must address child support. The non-custodial parent, the “obligor,” pays child support to the custodial parent, the “obligee.”

Child support amounts are court-determined, starting at 20% of the obligor’s net monthly resources for one child. An obligor with 2 children pays 25%; with 3 children 30%; etc., up to 40% for 5 or more children.  There is also a percentage credit decrease for other children the parent supports that are not in this case.

Net monthly resources are not the same as net monthly income. Net monthly resources are determined by calculating an obligor’s average gross monthly income and then deducting taxes for one person claiming one deduction. An obligor with net monthly resources of $9,200.00 (or a yearly gross income of $147,000.00) or more has reached the maximum guidelines support amount, which is $1,840.00 for one child.  .

Example: You’re the non-custodial parent, or the “possessory conservator” in Texas legal lingo. You earn a gross salary of $67,500.00 per year.  Your net monthly resources are $4,500 per month. If you have one child, you’ll pay $900 per month in support. The amount increases by an extra 5 percent for each additional child, up to 40 percent. If you earned the same income, but had two children, you’d pay $1,125 per month.

Temporary child support, like custody, can be renegotiated or changed in the final orders. However, since temporary orders help to establish precedent and routine, they are more likely to extend to final orders, unless there has been a substantial change in the paying parent’s income by the time the divorce is finalized.

Spousal Support

Many divorces feature one primary earner and a primary caregiver for the children. Temporary spousal support can provide financial assistance to the lower-earning or non-earning party while divorce is pending — but only under certain conditions.

A court can order either spouse to pay to the other temporary spousal support while the divorce is pending.

The purpose of temporary spousal support pending divorce is for maintenance of the family until the final decree.  It is determined by the consideration of the needs of the spouse requesting support, and awarded based on considerations of both the degree to which the applicant is destitute of means to pay for his or her necessities during the pendency of the suit, and the ability of the requested spouse to pay. It is not a property division or to equalize the standard of living for each party pending a final decision.

Amount of Support 

If the court decides one party is eligible for temporary spousal support, it must determine the amount and duration of payments.

To do that, the Court will examine both parties’ income and expense statements at the temporary orders hearing to determine the amount of temporary spousal support to award, if any.

The duration of temporary spousal support is also within the judge’s discretion, based upon the length of time the case will take to finalize, and whether or not the requesting spouse will be able to work and earn money prior to final decree, thereby eliminating or decreasing the need for the temporary support.

—  Tex. Fam. Code 6.502

Standing Orders and Injunctions 

When you file a divorce or a SAPCR, your county may impose its own immediate standing orders. These orders are temporary injunctions, serving as interim rules each party must follow until the divorce has been concluded.  The Standing Orders are usually included in the Temporary Orders, either in their original form, or as Agreed Mutual Temporary Injunctions.

Neither party needs to formally petition for standing orders. However, the petitioner in a divorce (the party who files first) must attach their county’s Standing Orders to their original petition and it is then served on the opposing party (the respondent).  one who files for divorce must ensure that the other party receives that county’s standing orders.

Not all Texas counties use standing orders. In the Dallas-Fort Worth metroplex, however, these counties do:  Collin, Dallas, Denton, Kaufman, and Rockwall.

Tarrant County does not apply standing orders to family law cases.

What Do Standing Orders Cover? 

Certain activities are automatically and immediately prohibited by standing orders. These typically include, but are not limited to:

• keeping or hiding the children from the other parent
• removing a child from the state without a court order or written agreement signed by both parties
• stealing or hiding marital assets or funds
• threatening the other parent or spouse
• making derogatory or harmful remarks about the other parent in the presence of the child(ren)
• canceling insurance policies
• destroying documents
• harming or threatening the well-being of a pet

Temporary Injunctions

Injunctions are court orders aimed at stopping harmful actions in divorce and parent-child relationship cases. They help preserve the status quo until the court can issue new orders.

Like standing orders, an injunction prevents actions that could harm the rights, property, or safety of the parties and their children. However, when one party files for an injunction, the other gets a chance to respond. A hearing date will be set, usually within three days of the injunction’s filing, to hear both sides.

Temporary Protective and Restraining Orders

These temporary orders are quite similar, but with one important difference: Violating a protective order is a crime.

• A temporary restraining order (TRO) is a short-term ban on specific actions. You can request a TRO when you file for divorce or a SAPCR, and it will be set for hearing within 14 days. At the hearing, TROs are usually converted into temporary injunctions, which will remain in effect during the pendency of the case.  A TRO may be granted without notice to the adverse party for the preservation of the property and protection of the parties as necessary.  There is a “laundry list” of items that the TRO will prohibit, in order to retain the financial status quo and keep the peace while the divorce is pending.

If a party violates the TRO, they may be held in contempt of court, which will include fines and payment of the other side’s attorney’s fees.

• Temporary protective orders are crucial in domestic violence cases. As the term suggests, protective orders shield victims from future harm by blocking contact with their abuser. This includes all communication, even by electronic means  and imposes restrictions on the aggressor’s access to areas near the victims’ home, work and schools.  Protective Orders are very common in matters where family violence has occurred, and is likely to continue.Protective orders are also used in emergency child custody matters, as well as cases of stalking, sexual assault, and human trafficking.A person who violates a Texas protective order faces arrest, hefty fines, and up to a year in jail.

Getting Divorced? Get an Attorney

Don’t let the stress of a pending divorce push you into a passive corner. Your life is about to change in important ways, and you need good counsel on your side while it counts. Robinson & Henry’s family law attorneys have wide and deep knowledge of Texas law, including those surrounding temporary orders. We can evaluate the facts of your case and get you the best possible outcome. Call 214-884-3775 to begin your case assessment.