Speaker 1: 0:08

Welcome back to the Texas Family Lawyer Podcast. My name is Alex Hunt. With Hunt Law Firm, we serve the greater Houston area with offices in Katy, sugar Land, cypress and League City, and today I am joined by Margaret Tucker, senior Associate Attorney at Hunt Law Firm. Welcome, thank you for having me. Well, let's jump right in. Today we're going to talk about what is a temporary orders hearing in a Texas divorce or family law case, and if anybody watching this has been through a divorce case or a family law case, they probably have broached the idea of temporary orders at some point or they're getting ready to go through the process right now. Tell us a little bit about what a temporary orders hearing is.

Speaker 2: 0:54

This is the first thing that's going to come up in a temporary orders hearing is a time when you're going to approach the judge the first time in a case. It comes up relatively soon in a case when you file for divorce. That's one of the first things we do is set up a temporary orders hearing. It's usually going to be set out about a month away. So when the respondent is served in the case, the temporary orders date is going to come up pretty fast.

Speaker 2: 1:22

This is the moment when the judge sees you for the first time and the judge wants everything to kind of say status quo. What have you been doing? What has your household been doing, what have you and your husband been doing? What have the kids been doing? So the judge kind of wants to hold everything status quo. You know the judge doesn't know what y'all have been doing, so this is the time to tell the judge what's been going on. This is the moment where you know the judge is going to say OK, I want to put things in place, but we're going to hold until we can get to final trial. For me, temporary orders is the most important thing in a case. It is the most important hearing. This is when the judge makes some determinations that are going to affect the rest of your case.

Speaker 1: 2:09

And this isn't the time certainly you got at this a little bit not a time to make major changes.

Speaker 1: 2:15

You know, if one parent was, you know, paying all the bills, it's not the time to say, well, now the other parent's going to pay all the bills. The judge is not really looking to do that in these cases, the judge is just looking to keep things going, like you said, status quo. So before you get to a temporary orders hearing and we've got this resource on our website if you're watching this on video, we'll put this up on the screen now. But in a divorce case or child custody case, on our website, if you go to familylawyerkdcom, click on resources, we've got a divorce checklist, we've got a child custody checklist and it goes through the typical steps in each of these cases and it will guide you through. And before you even get to a temporary orders hearing, there's usually a step right before that. In Harris County and Fort Bend County and Waller County here in Texas, they're going to want you to go to mediation. Is your preparation for temporary orders mediation going to be different than going to temporary orders?

Speaker 2: 3:20

Well, the good news about temporary orders mediation is that the power is in your hands. So this is the one time before you turn over the power to the judge in a hearing that you get to control the situation. So this is the time when you and your spouse you know each of you are in a separate room with a third party mediator who's going to go back and forth and you try to reach an agreement with your spouse. Both of you know what's been going on at the house. Both of you know what's been going on with your children and you try to come to some agreement. When you are empowered with your own case, you make the best decisions, and temporary orders is a lot about your children.

Speaker 2: 4:01

This is the time when the judge is going to want to know that your children are taken care of in the home, that there. When the judge is going to want to know that your children are taken care of in the home, that there's money that is going to be paid for child support, so that there's money for children to you know, get shoes for the new school year. There's money for you know. Food for them, shelter for them that's what the judge is going to want to see. So when you're in a mediation, you make all those decisions who's going to see the child when, who's going to take the child to school, whose possession period is it, those kinds of things. So you empower, you're empowered in the mediation to make decisions for yourself.

Speaker 1: 4:37

So mediation before temporary orders you and your co-parent or your partner because temporary orders happen even when there's not children sometimes taking control of your own destiny, making an agreement, trying to come to an amicable resolution and then presenting that to the court for final approval, which 99 times out of 100 is going to happen. So let's say we go to mediation, no deal. At our firm we always hope for the best and we prepare for trial if we need to go there, and we're ready to present our clients' cases. So let's say we're getting ready for temporary orders. What does that preparation look like? What are the conversations that we're having with our client? What do they need to know?

Speaker 2: 5:24

And this again depends on if you're talking about property and it's just a husband and a wife, or you're talking about children.

Speaker 1: 5:31

So let's take that one at a time. Let's talk about property first. What does the court decide with regard to property in a temporary orders hearing, and how do we prepare for that? What do our clients need to know?

Speaker 2: 5:43

Well, it really is a determination of what you're asking for. What are you asking the court to do? If you're a husband and wife and you've been living together in a house, are you asking to stay in the house together? Are you okay staying in the house together? Is there any domestic violence? Is there someone at risk in this house? Then we look at things like is money an issue? Are people able to pay for the house? Is the house going to go in foreclosure If one person moves out? Is the other one able to afford the house? So you start looking at how are you going to function during this case. If this case is going to last for nine months, are you able to survive? You know going forward for nine months Financially? You know economically, is your house okay? The court wants you protected. So you know they're going to do something to protect the property. So you know they're going to make decisions on who stays in the house, who pays for the house. That's what you're asking for. The court will sometimes order the sale of the home on temporary orders, but it's very rare because they don't really know much about your case yet. They don't really want to make decisions until the end. So they're going to be looking at how can we hold things in place and kind of just put it on a hold until they can get to final trial.

Speaker 2: 7:08

So the way we prepare is is there something that you're claiming against your spouse? Are you, you know? Are you claiming domestic violence? And if so, we need proof of that. You know, have you made, have you made, calls to the police? Have you gotten police records? You know? Is there any other evidence? Is there any text messages between the two of you? Have you and your spouse made some other agreements? Have there been text messages or emails we're looking for? So you know, if we're talking about who's going to stay in the home, who can afford it. So we need bank records. We need, you know, proof of incomes. You know. Do you have retirement accounts? Do you have bank accounts? Do you have? Are you getting paid? Are you getting paid on a regular basis? Are you able to protect the property if you stay there?

Speaker 1: 8:00

And I know, I know this is the case with you, this is the case with me, this is the case with all the attorneys at Hunt Law Firm is we are typically the most prepared people in the room and our clients are the most prepared people in the room. So we always have conversations, as many as possible with as many as necessary with our clients beforehand, to make sure that they're comfortable, they know what to expect. But there are certain documents that will help guide our preparation. One of those is a summary of relief requested. Tell us a little bit about what that document is and what its purpose is.

Speaker 2: 8:36

Okay, the courts. You know for the courts. They don't even know who you are when you walk in the door that day. They've never seen you before, they've never heard from you before and they have a million cases on their docket.

Speaker 1: 8:49

And they might only give you an hour each to present your entire story, correct?

Speaker 2: 8:55

So whether you have kids and you're a divorce with kids or you're a divorce in just two spouses, you've got one hour to present everything that you need all at once. So we try to prioritize. You know the most important things that we're asking for. So the summary of relief requested is telling the court exactly what you're looking for. So if you have kids, we tell them.

Speaker 2: 9:19

You know who do we think is the primary parent, who do we think is the parent who's going to make the best decisions for the children. You know who do we think is the primary parent, who do we think is the parent who's going to make the best decisions for the children. You know if we're asking for something with a property, you know why are we asking for this and what exactly are we asking for. So we kind of just spell it out absolutely directly to give it to the court, and they like to use it. You know very quickly in the case. So if you have an hour, we try to present it very early to the judge so that when the judge is listening to all the pieces of evidence that we present, they already know what we're asking for.

Speaker 2: 9:54

So do we meet that burden? In a case with children, the burden is the best interest of the children. What is the best interest for these kids? So that's what the court's going to be listening for. So when we give them the summary of relief requested, they look at that and they're listening for it. What is going to protect the children the most?

Speaker 1: 10:15

Really, it's just sort of like a checklist of sorts just to simplify the issues for the court. Not every firm does this, but we found that it really helps break things down for the court if they're only going to have an hour and their days and their weeks and their months are taken up by really complex issues. They have sometimes thousands of cases that these judges are handling all at once. It's important to simplify things as much as possible for them, especially ahead of time, since you have such a limited time scope.

Speaker 2: 10:45

And so we've gotten feedback from judges that maybe get off the bench and that said that our firm does prepare very, very well. They know that when they have a hunt law firm attorney, that attorney is coming. They have all their documents ready to go. They have everything you know. All ducks are in a row, everything's organized. We have exhibits ready to go.

Speaker 2: 11:05

We've already sent electronic files to the court and we're also prepared with our own clients, our own clients. You know we usually have a list of questions that we're going to ask them and it's mostly my notes to kind of lead the client through the questions. But the client knows what to expect. So we send, send the questions, we work on the questions with our clients. We kind of prepare you for what we think the other side is going to ask and we're ready to go. There shouldn't be many surprises that come up and if you're very open and honest with your attorney, there shouldn't be a lot of surprises. We kind of are leading the judge through the case, we're leading you through the. So this is your moment to tell the court who you are, who your children are, what your property is and ask for the best result possible. So if we go in and we're organized and we're ready to go. It's a great setup for a hearing.

Speaker 1: 12:00

One of the most important documents after a summary of relief requested at a temporary orders hearing is the financial information statement. We call it FIS. Tell us a little bit about an FIS and its importance, okay.

Speaker 2: 12:15

An FIS is a document. It has a lot of blanks for you to fill out. But we start out and we are talking about what income you make. So what's your gross income, what are your deductions, what are, what's your net income? And we look at first the income and then second, what are your debts.

Speaker 2: 12:33

So you know, if you have children, we have a lot of debts associated with children. There may be child care, there may be extracurricular activities. You know, and you know just, any spouses, any family have food, shelter, insurance, so all these costs add up. So we're trying to determine what is your income versus what is your debt and there may be a negative. And if there's a negative, the court's going to look to give you some release because they don't want. They want you to succeed, they don't want you to not have any money at the end of the day. So the court's going to try to figure out a way to make sure that the case can continue on and that each party is set up enough to continue on in the case, and so they will try to make sure that everybody has enough to afford an apartment or a house or something to get to the end.

Speaker 1: 13:27

And you and I have both had cases we even handled cases together where there's been a stay-at-home parent and they just don't have the means on their own. They've maybe stayed at home for the last 10 years with their child and been a good at-home caregiver for their child, and then they get cut off. The court's not going to allow that to stand and it's our job to go to court and to make sure that the court understands the situation and then helps maintain the status quo. The court's not going to be okay with not getting the mortgage paid, making it so that they don't have enough money to eat or pay educational expenses, things like that. We need to make sure that whatever money is coming into that community estate, that our client's going to be taken care of, and that's an important piece of temporary orders hearing for a lot of different people.

Speaker 2: 14:19

I will say that's very repetitive in consults that I have, because you have this stay-at-home mom that has been home for 10 years and she hasn't been earning an income. And maybe she has a degree, maybe she doesn't, but she hasn't been using it, so she doesn't have a job, she doesn't have a means to go have a new job and make income. So they come in and they're very, very worried, and so what I tell clients at this time is use an FIS. I actually will send it to them and show them look, look at your numbers. Because the problem is is that they really don't know and it's kind of a pie in the sky number.

Speaker 2: 15:00

They're just so worried about money and they're so worried about am I going to be able to pay for this or what's going to happen. If you start looking at concrete numbers and you start putting together, you know, okay, this is going to cost this amount and this is going to cost, and it's more concrete, they start to settle down a little bit and get more comfortable with where they are financially, you know, and especially for their children, can they afford to put food on the table? It's a big deal, and so we really try to help calm things down and say let's get some concrete numbers here and then we're going to take them to the court and present them to the court and we're going to ask for relief at that point from the court.

Speaker 1: 15:39

So we've talked quite a bit about finances. Another important aspect of temporary orders is children If you have kids involved in your case, if it's a child custody case or if it's a divorce involving kids, and of course, the most important thing that's driving the court is what's in the best interest of these children. Tell me a little bit about some of the decisions that could potentially be made in a temporary orders hearing as it relates to kids.

Speaker 2: 16:06

Okay, At the temporary orders hearing the judge is going to make a decision. The judge is going to appoint a primary on a child custody case. What that means is this is the person who has the exclusive right to designate the primary residence of the children. This is the person who has the exclusive right to designate the primary residence of the children. So if you're in Harris County, most likely the court is going to say the primary residence of the child has to be within Harris or Harrison Contiguous and contiguous counties to Harris. Are any ones that touch it? Well, that's a really big deal in Harris County because Harris County is so large.

Speaker 1: 16:42

Huge area.

Speaker 2: 16:42

It's a very large area. So when you add contiguous counties on, you're talking about possibly a four-hour span. So who gets appointed as the primary is a big deal. In my opinion, temporary orders is the more important hearing between the temporary orders hearing and the final trial, because that is when the judge is going to make the determination At that. The final trial, because that is when the judge is going to make the determination. At that point in time the judge is going to pick a primary. And I do hear people talk and say don't worry, it's just for temporary. The judge can change their minds. You can go to final trial and while you do get a second bite at the apple if it was something you didn't like at the temporary orders hearing, a judge has made a determination. They're not very likely to change their minds unless you give them some overriding reason that they didn't hear the first time.

Speaker 1: 17:34

Yeah, and judges aren't interested in completely overturning the apple card and changing things up late in the case. So if it's working or it seems to be working, they're just going to roll with it. They are, and this was their decision.

Speaker 2: 17:48

So you're literally telling the judge I know you made the decision at temporary orders, but now, on final trial, I need you to change it. So are they likely to do it? Probably not. So temporary orders is very important to establish everything. So this is the time when you need to tell your attorney everything so that when you bring this evidence, you could bring all the evidence you need into the temporary orders. I'd been involved with a kid. Has mom been involved with a kid? You know, are there? Is there drug usage? Is there? You know something else that the court needs to hear. This is the time to let the court hear it. This is it. This is the moment that the judge needs to hear everything. So sometimes people want to bring tiny, minute little details to the court. They want the court to know absolutely everything. Little details to the court. They want the court to know absolutely everything. But you'd need to decide what is important, because we are the ones under the parameter of an hour for each side.

Speaker 1: 18:51

So primary or exclusive right to determine the primary residence is one right that the court will decide. What are some of the other rights and duties that the judge is going to make a determination on in a temporary orders hearing?

Speaker 2: 19:04

We have a nickname for some of the other big ones. We call them heads, eds and meds. The first one is medical invasive. You know who has the right to make decisions for your child in a medical invasive type procedure. This is not something that's an emergency. If you're a conservator, then you're going to have the right to make a decision in the choice of an emergency situation. But this is more of a situation where something pierces your child's skin. You know, the dentist tells you that your child's wisdom teeth needs to come out.

Speaker 2: 19:37

So who makes that decision? It can either be a joint decision, where the parties have to do it together and they each have to come to an agreement. It can be a exclusive decision making, where one parent is allowed to make the decision by themselves, or it can be independent, and that means that both of you can make the decision on your own. So the court will look, you know, to determine for each of these rights. Do they give the joint rights, do they give the independent or do they give exclusives? One of the other big rights is psychiatric and psychological. Who consents to your child having a therapist? Who consents to a child having a psychiatrist and who consents to a child having a psychologist At this point, when there is a psychiatrist involved, who consents if the child is asked to be on medicine. So who gets to say yes or no? Again, it can be a joint decision, it can be exclusive and it can be independent. The last one is education. Who has the right to make educational decisions for your child? Maybe you have a child that special needs. This child may need a shadow in school with them. This child may need to be in special classes that you know you're going to have ARDS for, and those kind of things that you know are going to be recommended by the school. Who has the right to make those decisions? Again, it can be joint, independent and it can be exclusive.

Speaker 2: 21:06

There are some other rights that we have, and one of them is passports. Who has the right to go get a passport for a child? Again, it can be joint, it can be exclusive or it can be independent. And so who holds the passports? Once you get the passport, who holds it? Those are some of the ones that we talk about the most and we decide the most. There are some others that don't come up as often, you know legal action for a child. What if your child gets caught doing something they're not supposed to be and you have to hire an attorney for them? Who pays for the attorney? Who chooses the attorney? I've actually only had that come up one time, and it was a 17-year-old, but when your child's 17,? This is an important decision to make.

Speaker 1: 21:54

Or if the child is, say, in a car accident and they need to hire a personal injury lawyer in order to recover some funds, that's another situation that would come up. I would say the default tell me if you disagree would be joint decision, decision making and unless there's some unusual reason that the court would look at, you know, maybe one parent has been completely disengaged on educational decisions or has made poor decisions in the past for educational Usually, you're going to do joint decision making, Would you agree?

Speaker 1: 22:26

Without a doubt going to do joint decision making, would you agree? Without a doubt and there's also some of these decisions are you really can't do like independent, like you can't do independent psychiatric decision making. And, as you said, independent is when you know whenever that parent has the child they can make the decisions. Well, you can't have the child on a psychiatric medication when they're with mom and then not have it when they're with dad. So there's going to have to be some sort of collaboration in that instance or somebody needs to make the decisions exclusively, and that would be something that the court would decide. Child support, medical support what other decisions Tell me about that process? What's the court going to do there?

Speaker 2: 23:12

Once the court has decided a primary, that's the main decision that they will make. As soon as they make that decision it's going to springboard off some other decisions that they make. The court is going to award child support from the non-primary parent as soon as they award a primary. Child support is going to award child support from the non-primary parent as soon as they award a primary child support is going to be awarded.

Speaker 2: 23:32

Texas courts are not flexible with child support. They do not play around with it. They are going to award guideline support, are awarded based on the number of children that you have and they are going to compute child support and that is the way it's going to be. The non-primary is responsible for the child support and medical and dental. So medical and dental insurance. So it's either going to be that you cover the mom may have insurance and dad pays for it, or you know dad may have insurance and he just keeps the insurance and pays for it. So they're going to make the decisions on that.

Speaker 1: 24:13

Okay, and then possession and access, which is Texas's way of saying who has the kids and when. Tell me about what the court's going to do there, and are there any presumptions in place?

Speaker 2: 24:25

So the court is going to follow the Texas Family Code. The Texas Family Code right now is the presumption is that the non-primary gets awarded an expanded possession order. These are the days that you have the child in your possession. The court is likely to follow this, unless they are given a reason not to so. When you walk into court, the court's going to pick the primary and the non-primary is most likely going to be awarded the standard possession order.

Speaker 2: 24:59

And the simplest way I describe a standard possession order is that the non-primary parent gets the child every single Thursday night. They get them when the school lets out for the day and they return the child to school on Friday morning and then on first, third and fifth weekends they get the child from when school lets out until Monday morning. So the easiest way to look at it is on first, third and fifth weeks. Way to look at it is from on first, third and fifth weeks, from when Thursday school lets out until Monday morning, and then on the second and fourth week they get them Thursday, from when school lets out until Friday morning. So that is the schedule that is in place for most of the year.

Speaker 2: 25:41

The only things that will change are holidays or spring break, and spring break is one week and it rotates between parents, so odds are even years. One parent gets it one year and then the next the other parent will have it and the non-primary also gets 30 days during the summer. So the non-primary this is their moment to kind of pick their schedule. They get to select their 30 days, either July 1st to July 31st or they can break it up into two different pieces and you know that gives them the power to decide what they want to do with their vacation and they let the primary parent know by April 1st. They also will rotate holidays such as Thanksgiving and Christmas. They also will rotate holidays such as Thanksgiving and Christmas.

Speaker 1: 26:34

So the court wants Texas parents who are involved with their children to be able to share those moments with their kids, and it's been. My experience, and this is what the family law, family code says, is that in the absence of something unusual or extraordinary, they're going to follow the standard possession order, or what's called an expanded standard possession order. And if anybody out there, if you're watching this on video, we can put on the screen a resource that we have on our website at familylawyerkatiecom. Click on the resources tab. We have our standard possession order calendar. We also have previous years where you can visually see when the custodial parent and the non-custodial parent will have the kids. You might see other versions of this on other websites, but ours is the original, the most comprehensive, often emulated, never replicated. You could find it on our website, along with plenty of other information, blog posts, information on what possession schedules might look like.

Speaker 2: 27:34

We have clients come from previous years asking for that calendar.

Speaker 1: 27:38

Yeah.

Speaker 2: 27:38

So it's according to the KDISD, since we're in KDISD, but it just helps lay it out. It's so easy to follow and people love our calendar, come back every year to ask and we're happy to provide it.

Speaker 1: 27:50

So one question that folks might ask is do I need a temporary orders hearing, particularly if I don't have kids or if we're kind of getting along? Do I need to have a temporary orders hearing in my divorce or in my custody case? What does your analysis and what are your conversations with the clients look like to determine, you know, are you recommending to the client they should go to a temporary orders hearing or they should set one?

Speaker 2: 28:19

Okay, A lot of times we set a temporary orders hearing just to get the case started. You know they, when you serve the other party, they have a time that they can wait a little bit and respond. But this kind of jump starts it. Setting a hearing date is what kind of forces everybody to move. Even if we went to court on that day, the court won't hear us until we have mediated. So we have to mediate anyway. So you know, coming to an agreement for your own case is by far the best interest of everyone involved. It keeps things calmer. It lets you be empowered to settle your own case. So do you need a hearing? Not necessarily.

Speaker 2: 29:05

There's a lot of times when I'm able to work with the opposing counsel or if the other party represents themselves, we can work together to come up with some sort of agreement. Whether it's just for property or whether it's for kids and property, we can come up with some sort of agreement. I do like to have an agreement in place because it makes sure everybody's on the same page. We know what to expect, we know what we're looking for, we're holding until we can get to final trial. But it kind of gives everybody a perspective.

Speaker 2: 29:37

I think a lot of times we do go to temporary. We have a temporary orders, hearing or mediation or a settlement when children are involved, just so that we make sure that both parents are seeing the kids, they're spending enough time with them, child support set up. That's when I think it's the most important If it's, you know, a couple that doesn't have any children. A lot of times we do skip temporary orders because we're going to get to the end soon enough, unless there's some pressing issue that the court needs to deal with immediately, such as a house is in foreclosure or something like that that the court needs to hear immediately. We're just gathering information and trying to find financials. So if it's a divorce with no kids and we're able to get a hold of financials, we probably are starting discovery at this point in time to get numbers to get you know where the money is bank accounts, credit cards, debt, those kinds of things. We're trying to come up with that to get to final trial.

Speaker 1: 30:38

And if it doesn't need it then we won't do it. You know we want to try to be as cost efficient as possible for with our clients money. If they don't need temporary orders hearing, we're not going to recommend that they do it. So let's say we do temporary orders hearing the judges. Typically in all the counties that we're in now. They typically are giving us unless we can really show good cause giving us about an hour for each side to put on their case. So let's say we do that. The judge renders a decision which might not come immediately at that hearing. Sometimes the judge will take it under advisement. We'll get a decision a few days later, maybe a week later. What's next? In order to get our temporary orders, because we're not done then when we get the judge's decision.

Speaker 2: 31:26

Right and people think that we're going to be done once you go to court and you say everything to the judge and then you're just waiting for that moment when the judge is like, okay, here's my decision. And, like you said, sometimes it doesn't come for a week, two weeks, that kind of thing. So we just have to kind of again hold everything. When we get that document it's about one page and even if you settle and you're in mediation, we have a document that is called a mediated settlement agreement and those are usually about five pages. So you have these agreements or a rendition from a judge that are very small, and we take those documents and we turn them into bigger temporary orders. So it's usually going to be about 30 pages and it lays out the schedules for kids or you know who pays child support, the medical and dental, you know what the rights and the duties are. It's going to lay it out in a 30-page document.

Speaker 2: 32:24

So the petitioner drafts. So whoever files, that attorney is going to draft and that will put in place an order and that's when the judge signs. So the important part is to get the judge to sign the actual order, because once that order is signed by a judge. It is then enforceable. If there is any problems during the case and somebody's not doing what they're supposed to be doing they're not moving out of a property, say, or they're not giving the kids when they're supposed to you can go in and enforce a court order.

Speaker 1: 33:00

But the judge has to have signed in order for that to happen. For whatever reason, after they're signed aren't working, or if circumstances change, you can go back and do additional temporary orders, or you can modify your temporary orders. So that's one of the benefits of temporary orders is you get an opportunity to see what's working and what's not working before you finalize everything, and if you need to tweak some things, you can. Now you don't want to be running back to the courthouse every few weeks Court's not going to like that but you can see what works and what doesn't for your family, for your finances and all that. So we've covered a lot of ground, but I know that there's more. So in a future episode I'm going to be back with you, margaret, to talk about some of the do's and don'ts in a Family Law Texas temporary orders hearing. So I'd like to thank you for joining me.

Speaker 2: 33:51

Thanks for having me.

Speaker 1: 33:53

All right. If you would like any more information on temporary orders or on our firm, on law firm, you can visit our website at familylawyerkatiecom to get all the information that you might need. To get all the information that you might need. I'll be back with Margaret soon and until then, take care.