Very often in
divorce cases one spouse will file a request for temporary
custody, exclusive use and occupancy of the house, exclusive use of a car, payment
of house carrying charges and utilities and attorney's fees.
This application is typically filed by Order To Show Cause (which is a
fancy way of saying that the attorneys have to come to court to argue
the request before the judge) and this often occurs in the beginning of
the divorce case. These requests are complicated, often very large in
size and the amount of money being requested can be overwhelming. Most
attorneys take the approach of asking for as much as possible and leaving
it up to the court to trim the amount.
When the request is made the attorney must provide 24 hour advance written
notice of the court appearance unless there are some unusual circumstances
that make providing the notice risky. When the lawyers are in court after
the papers have been reviewed by the opposing attorney and the judge a
conference will take place so that the opposing party can explain to the
judge why the request should not be granted or why the amount requested
is excessive. The judge will ask questions and then decide which requests
to grant, modify and deny. The judge will sign the order and it will become
a temporary order to be followed until the attorneys have written their
responses to the Order to Show Cause and any requests made by the opposing
spouse for temporary assistance also.
This topic is complicated and not the easiest to explain in a blog post
because there are many procedural parts to this type of court practice
and there are many areas of divorce law that are also part of the application.
In addition, unless the case has already been assigned to a particular
judge it is very likely that a different judge will decide the request
once both sides have submitted their papers. Therefore, this area of the
law can be very unpredictable because different judges will apply their
own sense of fairness and assess the urgency of the request and determine
how much should be done for either party after one brief court appearance.
It is very important to have an experienced matrimonial attorney because
this area of law is unique and the results may last throughout the duration
of the case once the motion is finally decided by the court.