Temporary Restraining Order
A Temporary Restraining Order (TRO) is a court order issued without notice to the opposing party. Although purely optional, a Temporary Restraining Order is often an essential ingredient in an action for dissolution of a marriage in order to preserve the marital estate and protect the parties.
A temporary restraining order may be made effective as soon as it is served on the opposing party, usually just after an action for dissolution of a marriage is filed. The court’s power to render these ex parte orders is limited, however, to “keeping the peace”. No Temporary Restraining Order may be effective for more than 14 days, unless extended by the court for good cause.
Temporary Orders are legally binding orders setting forth the rights and duties for you and your spouse during the divorce process and until the final decree is entered.
Temporary Orders apply to a wider range of issues than Temporary Restraining Orders. They can specify who gets to reside in the marital residence, who can write checks on specific bank accounts, who gets the kids, etc. Temporary orders can also prevent a spouse from contacting you, spending or transferring money, leaving with the children.
If you and your spouse cannot agree on possession and access to your minor children during the divorce, you will need temporary orders. You have a right to be a parent to your children. If your spouse is currently refusing to let you see or contact your children seek legal counsel.
Do not attempt to force possession even if it is the fair thing to do. You can endanger yourself and your children, as well as jeopardize custody in the future. If your spouse fails to abide by the temporary orders they are in contempt, and can be ordered to appear in Court.
If they do not appear a bench warrant can be issued, and they will be taken into custody. At their contempt hearing they can be sentenced to jail or can have assets taken to satisfy the Court’s orders.
A party filing a divorce in Dallas County is immediately subject to the “Dallas County Standing Order Regarding Children, Pets, Property and Conduct of the Parties.” The other party becomes subject to the Standing Order immediately on receipt of service.The Standing Order was adopted to protect persons, pets and property during the divorce process. A violation of the Standing Order is a very serious matter, and, depending on the violation, may lead to contempt proceedings and possibly a fine and/or incarceration.
Custody and Child Support
The Court will grant orders regarding temporary child custody and child support when they are required for the child’s safety and welfare. Following notice and a hearing, the court may order:
An award of temporary conservatorship, providing for possession of and access to the child by the parents.
An order for the preparation of a social study into the circumstances and conditions of the child and of the home of any person seeking managing conservatorship or possession of the child
The appointment a mental health professional to aid the determination of the child’s best interest in a contested custody case. Note – such an appointment at the temporary order stage is usually considered premature, as is the requirement of a social study, given the prospect that the parties may reach an agreement on the custody issue.
An order for the temporary support of a child, including provisions for health care.
And often an order for the payment of reasonable attorney’s fees and expenses for the divorce, including the temporary orders hearing, and anticipated costs. This prevents an unjust disparity in the representation of one spouse over another.
Parent Education Course
The court may order the parties to attend a parent education and family stabilization course if such an order is in the child’s best interest. The course must be at least four hours but not more than 12 hours in length and be designed to educate and assist parents with regard to the consequences of divorce on parents and children. Information obtained in a course or a statement made by a party during a course may not be considered in the adjudication of the suit or in any subsequent legal proceeding. Any report that results from participation in the course may not become a record in the suit unless the parties so stipulate in writing. If a party fails to attend or complete a course as ordered, the court may take appropriate action, including holding the party in contempt, striking pleadings, or invoking any sanction provided by Texas Rule of Civil Procedure Rule 215. However, a party’s failure to attend or complete the course may not delay rendition of judgment.
Orders more onerous than usual, referred to as “protective orders”, may be issued in situations involving family violence. A protective order may take the form of a temporary injunction issued after notice or it may be issued without notice, akin to a TRO. A protective order is usually issued if there has been a history of family violence within the previous six months. A protective order is designed to keep the offending party at least 1000 feet away from the victim and the residence and place of business of the victim. It may also be used to keep the offending party away from the children if there is a history of abuse.
By its very nature, a protective order is a temporary order because it is effective for no more than two years. Protective orders may be issued to restrain violent acts or threats of violence committed by members of a family or household against one another. An application for a protective order may be filed while a dissolution suit is pending.
The application for temporary orders may contain a request that the court, after notice and hearing, require that the opposing party pay the applying party support during the pendency of the case. The request for spousal support is based on the applicant having insufficient income for his or her own support during the pendency of the suit, and the opposing party being capable of contributing to the movant’s support in a limited specified sum. Temporary Orders for support are not intended to make an interim division of the property or to equalize the standard of living for each party pending a final property division.
The duty of support usually ends with dissolution of the marriage. However, the Family Code extends that duty in exceptional situations by allowing the court to award “maintenance”, meaning payments from the future income of one spouse for the support of the other. The Code does not expressly authorize spousal maintenance during the pendency of the suit and before a divorce is rendered, but it does not prohibit an interim award.
The prerequisites for post-divorce maintenance are many, including the the necessity of at least a 10-year marriage, or compelling circumstances like a disability or criminal conviction for family violence. Accordingly, the better route for temporary support pending a final decree is the enforcement of the other spouse’s duty for support during the existence of the marital relationship.