Utah Divorce Code 30-3-4.5
Utah Divorce Code 30-3-4.5 – Motion For Temporary Separation Order.
(1) A petitioner may file an action for a temporary separation order without filing a petition for divorce by filing a petition for temporary separation and motion for temporary orders if:
(a) the petitioner is lawfully married to the respondent; and
(b) both parties are residents of the state for at least 90 days prior to the date of filing.
(2) The temporary orders are valid for one year from the date of the hearing, or until one of the following occurs:
(a) a petition for divorce is filed and consolidated with the petition for temporary separation; or
(b) the case is dismissed.
(3) If a petition for divorce is filed and consolidated with the petition for temporary separation, orders entered in the temporary separation shall continue in the consolidated case.
(4) Both parties shall attend the divorce orientation course described in Section 30-3-11.4 within 60 days of the filing of the petition, for petitioner, and within 45 days of being served, for respondent.
(5) Service shall be made upon respondent, together with a 20-day summons, in accordance with the rules of civil procedure.
(6) The fee for filing the petition for temporary separation orders is $35. If either party files a petition for divorce within one year from the date of filing the petition for temporary separation, the separation filing fee shall be credited towards the filing fee for the divorce.
Motions for Temporary Orders
A Motion for Temporary Orders asks the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision. It can take months to get a judgment (final decision) in your case. If you need the judge to make an order about something right away, you can file a Motion for Temporary Orders. A Motion for Temporary Orders asks the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision.
Some common motions are the
• Motion for Temporary Custody Order,
• Motion for Visitation Order, and
• Motion for Child Support Order.
When you file a motion, you need to file:
• A motion form.
• You can also ask for it at the court clerk’s office.
• Write on the motion form what you want the court to Order.
• An Affidavit.
• In an affidavit you swear that everything you say is true.
• Write the facts the judge needs to know about what happened, and when.
• A Proposed Order form.
There will be a hearing on your motion. Usually you can choose the date for the hearing. Ask the court clerk which days the court hears motions, and then pick a day that works for you. Later, you might need to file a Motion to Modify a Temporary Order. You may need to file a motion if there is a very important change in your situation or if there is an emergency. Some judges do not permit filing motions to modify temporary orders while the case is going on.
Do I have to serve the Motion for Temporary Orders also?
Yes. Motions for Temporary Orders must also be served. Serving the motion when you serve the complaint give the motion, affidavit, and proposed orders to the sheriff or constable to serve with the complaint. Be sure to write down the time, date, and place of the hearing on the motion.
Serving a motion later
• Mail the motion, affidavit, and proposed orders to the other party. Be sure to write down the time, date, and place of the hearing on the motion. You must mail it at least 10 days before the hearing; or
• You or a friend can hand the motion, affidavit, and proposed orders to the person you are taking to court. You or your friend must hand the other party the papers at least 7 days before the hearing.
Family Court Decisions: Temporary Orders
When a couple decides to separate, many issues come up that must be decided. Formal family court decisions can take months or even years, and many issues can’t wait that long. For example, child custody, child and spousal support, possession of the family car, and possession of the marital home are all issues that must be decided quickly, long before the formal divorce or legal separation hearings. Temporary orders by family courts, covered in greater detail below, serve to address these urgent issues in a timely manner. Temporary orders are made by family courts at a hearing when couples separate. In some states, a party can request a temporary order from the family court even before separation papers are filed. The hearing will then be scheduled within days or weeks. Decisions on issues that must be resolved quickly are made, and given temporary effect, until family court decisions can be made in a formal divorce hearing or until the parties agree through mediation or negotiation. Despite their temporary legal effect, temporary orders are often considered when making formal family court decisions. Temporary order hearings are far less formal and much shorter than formal family court hearings, so you should be sure that you know exactly what you want before the hearing. The hearing will proceed quickly, not giving you much time to tell the court what you want. Since every situation is unique, there isn’t a set list of issues that may be addressed. However, the following types of family court decisions are commonly made in temporary order hearings:
• Sale or possession of the marital home
• Possession of the family automobile
• Child support, usually based on the child support guidelines/calculator
• Spousal support
• Child custody and visitation schedule
• Health Insurance
• Uninsured medical expenses
• Restraint of a spouse from contacting or coming near the other spouse (this can have the effect of forcing the other spouse out of the marital home)
• Order either spouse from selling valuable assets and marital possessions
Remember that all of the decisions made through temporary orders are not permanent. They’re intended to maintain the family’s security and circumstances until more formal and steadfast family court decisions can be made.
Importance of Temporary Orders for Child Custody
Some spouses are able to agree on things on their own. If you find yourself in that situation, that’s great and probably will save you some hassle. Just be sure you and your spouse write out the child custody and visitation agreement together and sign it so that there’s no doubt about the agreement later. If you and your spouse can’t agree on these issues, like many couples facing separation, you should seek a temporary order immediately. This is especially important when it comes to child custody. If you’ll be maintaining custody of the child(ren), especially if you take them away from the home, it’s important to at least file for custody as soon as possible. If you don’t, your spouse could try to file a kidnapping claim against you. Not only will a judge and/or police take this claim seriously, but it could come up against you later in your divorce hearing. If you file for custody and your spouse files a claim of kidnapping against you, the judge will see your custody request and the kidnapping claim can be dropped.
The hearing is the place for the judge to:
• Review the details of your request;
• Consider the underlying facts;
• Ask any questions of the parties;
• Get your spouse’s side of the story; and
• Consider your financial circumstances and the state guidelines to come to a recommendation on child support.
Often, your temporary order hearing will be sent to what is called “probation.” Probation is an opportunity for the separate parties to agree on as much as possible, before they go in front of the judge. This saves the court and judge a lot of time and allows more time to focus on the actual conflicts at hand. The issues that can’t be resolved in probation are presented before the judge, where each side presents its argument. The hearing usually is no longer than 20 minutes and is held either in a courtroom or the judge’s office. The judge will listen to both sides and the declarations of any witnesses. Some judges only accept written evidence.
Temporary Order Requests: How Decisions are Made
It’s not common for the judge to make a decision right then and there from the bench, unless the issue is particularly time-sensitive (in which case the specific issue will be decided). The entire temporary order is made within a week of the initial hearing. If granted, the order you fashioned will either be granted in its entirety or modified by the judge as they deem appropriate. If you’re seeking a request for temporary child support, you may be required to present income documents and an outline of your expenses. Some courts have you fill out pre-made forms before or when you file your request. Even if your state has no such requirements, it may be good to prepare these documents anyway to support your claims for financial support. Sometimes, the judge decides that more information is needed to make an appropriate decision or that your spouse was not given appropriate notice before the hearing. In these cases, the judge might make a decision that’s only effective until another temporary order hearing can be held. The temporary order includes any agreements the parties were able to make before the hearing, including agreements made in probation. If the parties happen to come to a complete agreement during probation, then the judge will review that agreement. Usually, the judge finds these agreements satisfactory, and can order such agreement serve as the temporary order. Temporary orders are only effective until your divorce settlement, or until you and your spouse reach a mutual agreement to settle the divorce. However, the decisions made in temporary order hearings can be influential in divorce proceedings.
How to Request a Temporary Order
Requesting a temporary order involves filing some paperwork with the family court. Many courts have these forms available online on their courts’ websites. Check to see if your court has a self-help law center, where these forms would be available. Sometimes, courts even hire people to help you sort through the paperwork. States vary on when you can file for temporary orders. Some states require you to wait until divorce papers have been filed, while other states allow you to file upon separation.
The following are common requirements for filing a request for a temporary order.
• An Order to Show Cause: Also called an, “Application for Order to Show Cause,” this is a document that requires you to state what you are asking for, like child custody, through the temporary order. This document then calls your spouse to court to “show cause” of why your requested order should not be granted.
• A Supporting Declaration: This written document states the relevant facts that support why your order should be granted. You would set out your financial information, for example, to show the need for temporary child support. Declarations of other people could also be included in a supporting declaration, so long as they have first-hand knowledge of the relevant facts they are asserting. Keep in mind that courts take perjury very seriously, so you want to be careful not to misrepresent or embellish these facts in order to help your cause.
• A Proposed Temporary Order Giving You Your Requested Relief: This is a document that sets out the terms of the order. It states exactly what is being ordered. You bring this to court and if the family court judge grants your temporary order, he or she will sign the document.
• A Proof of Service Document: The court needs this document to prove that all of the necessary court documents have been delivered properly to your spouse. When you obtain your proof of service form, there should be instructions on how to file it with the court. You can also look into your state’s law about filing proof of service papers. Some courts list these instructions on their websites.
Talk to an Attorney at Ascent Law LLC about Temporary Orders in Family Court Actions
Divorce, spousal support, child custody, and other family law issues typically arise at once, although finalization of these processes can take months or years. If you and your estranged spouse are unable to agree on terms while waiting finalization, you may need to use temporary orders. Have an experienced family law attorney review your case and give you some peace of mind.
When you need legal help with a divorce in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506