How Do Temporary Orders Work in the Context of a Petition to Modify?
Utah divorce modifications have distinct steps to them.
First, you start by filing a Petition to Modify. The Petition to Modify lays out (1) what your current divorce decree/order says, (2) how you want to change it, and (3) what has changed that necessitates the change you’re requesting.
Second, you go one of two ways. Either you go to mediation (where you negotiate directly with your spouse attempting to finalize things without going to court), or you go to Temporary Orders.
Temporary Orders are just like they sound. They are temporary orders made by a judge or commissioner that govern how things will work until the Petition to Modify is finalized.
What Can You Address in Temporary Orders?
Temporary Orders can address any issue in a divorce or child custody modification situation, including:
(1) child custody,
(2) child support,
(3) alimony,
(4) parent-time, and
(5) payment of debts.
How are Temporary Orders in Modifications Different than Temporary Orders in Regular Divorces?
In Utah, courts handle Temporary Orders differently when they come up in the context of a Petition to Modify than when they come up in a regular divorce case.
The biggest difference is this: Utah courts are far less likely to grant Temporary Orders (i.e., make temporary changes to the divorce decree/order) when a Petition to Modify has been filed.
When Temporary Orders come up right after a divorce is filed, a judge or commissioner is looking primarily to maintain the status quo and move things along to trial. When Temporary Orders come up after a Petition to Modify is filed, you already have a status quo (the decree/order), so you have to convince the Court there is a really important reason to change things now instead of keeping the status quo until trial.
Now, I’m not saying you can’t succeed on Temporary Orders in the context of a Petition to Modify, but it is difficult. That said, here are the most common situations in which the Court will grant Temporary Orders:
(1) The change requested ratifies a new status quo everyone has been living by for a while.
Let me give you an example of what I mean. Say your divorce decree gives dad very limited parent-time (maybe 4 out of every 28 overnights). Say also that for the last two years, dad has had the children overnight 50% of the time (14 out of every 28 overnights). If dad were to file a Petition to Modify and ask for 50/50 parent-time, then file Temporary Orders saying he’s had 50/50 parent-time for two years, and that should continue until the Petition to Modify process is finalized, he has a pretty good shot at a judge granting his Temporary Orders request. All he’s asking is to maintain the new status quo.
(2) There will be immediate and irreparable harm if the Temporary Orders are not granted.
This one’s pretty self-explanatory, but let me give an example to make the concept a bit more concrete.
Say dad has 50/50 parent-time and he has a mental breakdown and beats his kids repeatedly. Mom files a Petition to Modify and Temporary Orders and says if she doesn’t get primary custody of the children, dad will beat the kids again. In a situation like that, mom has a good chance of the Court granting her Temporary Orders, because if it didn’t, the kids would be in constant danger of dad beating them (and physical beatings would qualify as immediate and irreparable harm).
How Do You File for Temporary Orders?
In a Petition to Modify situation, you begin the Temporary Orders process by filing a Motion for Temporary Orders. This Motion is accompanied by a Sworn Declaration (think: Affidavit).
This Sworn Declaration, which is based on a person’s direct observations (not what they heard from other people), explains (1) the situation, and (2) why the person requesting Temporary Orders deserves what he or she is requesting.
Once you have filed, your spouse can respond, and possibly file his or her own Counter-Motion for Temporary Orders.
For More Information on Temporary Orders
For a more complete explanation regarding Utah Temporary Orders, read here.
