Because divorce cases may take some time to resolve, especially if they are contested, Utah law allows the parties to petition for temporary orders pending the ultimate outcome of the case.
Temporary orders are a very important part of almost any divorce case that is contested. A contested divorce is one in which the parties disagree on one or more of the issues.
Temporary orders continue until permanent orders are entered pursuant to a trial or agreement of the parties.
Temporary orders may, however, be amended or modified during the course of the divorce proceedings.
Temporary orders may cover such things as: custody of the minor children; visitation or parent-
time rights of the non-custodial parent; child support; alimony; division of debts and/or obligations; possession of the marital home; possession of items of personal property; restraint from dissolving, concealing, dissipating, or encumbering marital assets, among other things.
Temporary orders are just that – temporary. They are designed primarily, in my opinion, as a stopgap measure in order to tide the parties over until the divorce can be resolved through trial or further agreement of the parties.
Temporary orders do not necessarily reflect what will happen at trial. Because temporary orders are entered following a motion and hearing, the evidence that is presented in obtaining these orders is of necessity somewhat limited as compared to the more extensive and comprehensive evidence presented at trial.
So, for example, oftentimes temporary orders are entered following a fairly brief hearing in front of one of the family law commissioners. These commissioners are highly trained family law experts. Their job is similar to that of a family law Judge, but they do not hear trials. They do, however, hear almost every other kind of motion in family law matters. They have their own courtrooms and take evidence into the record. A record is kept of the hearings, and a certified transcript of the proceedings may be obtained from the Court.
Both parties have the opportunity prior to the hearing to submit documentary evidence regarding any of the issues raised in the motion. This may include affidavits, financial documents, police reports, and other exhibits. Both parties may request orders that they believe are appropriate for their circumstances. Then the hearing itself is usually done by oral arguments, or proffers from the parties’ attorneys. This is referred to as a “law and motion” hearing.
If either party is dissatisfied with the Commissioner’s recommendations, they may file an objection within fourteen (14) days of the date the recommendation is made. Oftentimes the recommendation is made in open court, but the Commissioner may take the matter under advisement and issue a minute entry. If a minute entry is issued, a party wishing to file an objection must do so within fourteen (14) days of service of the minute entry.
The objection may then be heard by the Judge assigned to the case. If the Judge grants a hearing request, he or she will conduct the hearing de novo. This means that the Judge will make an independent decision based on all the evidence presented, without giving deference to the Commissioner’s recommendations. See Rule 108 of the Utah Rules of Civil Procedure (URCP). See also Rule 101 of the URCP for more on motion practice before domestic relations commissioners.
However, only evidence that was presented to the Commissioner may be considered by the Judge at the new hearing. Only where there has been a substantial change of circumstances since the Commissioner’s recommendation may the Judge, in the interests of judicial economy, consider new evidence. See URCP Rule 108.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.