Temporary Relief in Florida Divorce
There are two types of temporary relief a party can seek:
- Ex-Parte Emergency Relief
- Regular Temporary Relief
Ex-Parte Emergency Relief
When there is a true emergency the proper avenue for relief is an Ex-Parte Emergency Relief Motion. But BEWARE, what you may consider an emergency may likely not be considered an emergency for the Judge. The Judges have strict guidelines they follow when deciding if there is an emergency. The case of Crider v. Crider, 932 So.2d 393 (Fla. 2nd DCA 2006) is controlling in this matter. An emergency situation would arise where a child is threatened with physical harm or is about to be improperly removed from the state.
If your case rises to an emergency status there is a certain procedure which must be followed:
- The Motion MUST be signed and notarized by the filing party. This means you would be swearing under oath that the facts in your motion are correct.
- The Motion is then filed with the clerk of court with your proposed order.
- When the clerk receives the Motion he/she then brings the Court file up to either the duty Judge or Judge assigned to the case.
- The Judge will then review the order. If the Judge grants the order then he/she will set a hearing as soon as possible to let the other side be heard on the matter; however, in the meantime your requested relief will be in place. If the Jude denies that the Motion is an emergency, he/she will send an order to the submitting party instructing them to set the motion in the regular course.
Sub-Heading 2: Regular Temporary Relief
For all other matters for Temporary Relief which do not rise to the level of an emergency, a Regular Temporary Relief Motion will be filed. This motion will be filed with the clerk, and then you would have to contact the Judge’s judicial assistant to request a hearing date.
For most Court’s in order to even have a Temporary Relief hearing you will be required to go to mediation first. If you allege an expedited hearing is request because the filing party would be harmed by a delay, some Judges will allow you to set a hearing prior to attending mediation.
If mediation is required, the fear is that it will be months before you see any temporary relief. It can be extremely stressful when the relief you are seeking is financial in some way and you are living off credit cards, family, or simply behind in your bills. However, it is important to remain patient because this process can sometimes take a bit.
One of the ways to attempt to speed up the process is to file a Motion for Order of Referral to private mediation for temporary relief. Most Courts have the authority to enter an order setting mediation if the parties cannot schedule mediation by agreement. So you can coordinate with a mediator is the other side is not coordinating a mediation, and then file the motion with the pre-set mediation date. After filing, send the Motion with a proposed order to the Judge. A majority of the time the Judge will sign the order, and you will have a quick two hour temporary mediation. This way you can expedite getting your Temporary Relief Motion heard, and who knows, maybe even resolve the issue at the Temporary Mediation.
Types Of Temporary Relief In Florida Divorce
The main issues raised in Temporary Relief Hearings are the following:
- Need for Spousal Support: Affidavits must be submitted and the Court looks at a temporary basis to the needs and ability to pay of each spouse. Temporary spousal support may even be ordered in short term marriages. A lot of times if the Court award an amount it is often similar to what may be awarded at a final hearing.
- Need for Child Support: Even though a divorce is pending the children’s needs do not stop. The Court’s will look at the incomes of both parties and what time sharing is being exercised to establish a temporary child support amount to be paid during the proceeding. This may change if the time sharing schedule changes down the road.
- Temporary Time Sharing Schedule: Parties tend to try to use the children to gain leverage over the other during the proceeding. DO NOT DO THIS, it only harms the children. However, getting a temporary time sharing schedule in place may help alleviate some of the fighting during the proceeding. If there are concerns as to the safety of the children if left alone with one parent, this would be the time to raise those issues!
- Exclusive Use and Possession of the Home: Unless ordered otherwise, during the pendency of the divorce case BOTH parties are entitled to equal use of the home. However, this may not be the best living situation for either party. If this is the case, you might want to see if the Judge will award Temporary Exclusive Use and Possession of the Home so the other party cannot come and go as they please.
- Temporary Use of an Asset: Whether it is the shared vehicle or access to a money market account, if an asset is only in one party’s name you need to get permission to gain access from the Court.
- Temporary Responsibility for Liabilities/Debts: Unless ordered otherwise, the parties are supposed to maintain the status quo after a divorce proceeding is filed. This means whoever was paying the marital bills is supposed to keep paying those bills. When one party stops paying the bills then this motion is appropriate to bring to have the Judge order it. (Remember: just because you are paying all the bills does not mean you will not get credit for it in the end!)
- 7. Temporary Attorney’s Fees: Pursuant to Florida Statute 61.16 and Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), both parties to a dissolution proceeding are entitled to secure competent legal counsel. The Courts have recognized that just because one party has all the money and can hire a top notch attorney, doesn’t mean the other party isn’t entitled to the same just because they do not make the money. So if the incomes of the parties are disparate the Court will place the parties on “equal footing” and order one party to pay some or all of the other party’s attorney’s fees and costs. The Court will look at all the income, assets and liabilities each party is responsible for, or has access to.
Most of these issues arise when one party was historically the “breadwinner” who was responsible for all of the bills, and then when the divorce is filed the “needy spouse” is often cut off financially. Most of the time this is done to try and get the upper hand in a divorce proceeding. However, Judges do not look favorably on this practice.