When most couples marry, they slowly and unwittingly merge their financial, business, and personal lives together. They may have a car loan on a car purchased for the husband, but as time goes on, it makes sense for the wife to drive it, such as if one car dies and the husband gets a company car. A joint account may be equally contributed to or each party’s paycheck goes into it and is used to pay for all bills. Parties, in fact, have rituals for who pays what and how the household is handled that are unsaid and unwritten but each knows what to do. However, when a divorce action is filed, it is often the case that these matters cannot be untangled quickly, but the parties cannot agree on certain necessary things while the divorce pends, such as who stays in the martial residence, and without agreement, the parties are forced to ask the court to have a preliminary hearing to make a temporary order. There is an entire section of the Dissolution Act covering provisional orders in dissolution and legal separation matters that can address any legal need you may have.1 This blog explores the common topics the parties ask the court to address on a temporary basis, how courts handle certain matters, and what you need to know to avoid falling into preliminary hearing pitfalls.
After a divorce is filed, nothing changes. Each party is still entitled to the same access to the martial home and children. Unfortunately, the emotion of a divorce sometimes causes parties to act in ways that force a preliminary hearing. The most common examples are, when someone cleans out the bank accounts, takes the children and separates them from the other parent, and/or changes the locks on the house. Because this is an untenable situation, one party (usually the one locked out, who has not seen the kids, or has had all of his/her access to cash removed) asks for a preliminary hearing to address this situation.2 That said, although a provisional order is without prejudice to the rights of the parties or child as adjudicated at the final hearing as set forth by statute,3 all seasoned family law attorneys know that a court does not like to upset the stability of children and whoever obtains possession of the marital residence and/or physical custody of the children, in particular, is likely to maintain this and be awarded same at the final hearing. Thus, significant preparation for a preliminary hearing is key and sets the tempo for the entire case.
During the preliminary hearing, the court typically orders a certain party to have possession of a certain car, no matter how titled. So if you have a specific need for a specific car, you have to put it into evidence. The issues of how bills are divided is equally important. Both sides need to carefully consider what they ask for at a preliminary. It costs more to run two households and it may be that the parties cannot afford to live apart and not go deeper into debt as the proceedings go on. In this case, the ultimate amount left for the court to divide at a final hearing is less. This means that if a party has a relative, parent, or friend who will let him or her live with them temporarily during the pendency, it may be wise to consider this. This does not even have to be you the reader, but your spouse. Certainly, you can subpoena witnesses to testify they will provide free temporary shelter to your spouse. So even if your spouse is not reasonable, a wise litigant will present to the court what makes sense for both parties with documents and testimony to back it up. Ordinarily, the unreasonable spouse will then not be able to explain how the parties will afford to live apart under their proposal. This leaves the court the tools it needs to decide how to fairly and reasonably make preliminary orders, even if the other party will not be reasonable. Simple budgets in spreadsheets and gross weekly income can vividly make the point. Courts want parties to be able to have a life after a divorce and will work hard to craft fair order—if you present the evidence.
Ultimately, only a small percentage of cases have enough acrimony to have a preliminary hearing as they are expensive, emotional, and, well, only temporary and the order ends when the divorce decree is entered. Most of the time, the parties/attorneys work out preliminary matters between them and submit an agreement to the court to sign, saving a lot of time, grief and money while avoiding the risks of a preliminary hearing, as even the best judges and lawyers sometimes do not have their best day. However, whatever path your divorce turns, you should understand that the ruling coming from a preliminary hearing has a significant bearing on the way your case may finally be decided. Do you need a preliminary hearing? What evidence do you need to properly prepare for it? This is where a seasoned family law attorney can be an invaluable asset. The take-away from this blog is a preliminary hearing is a “big deal” and can set the stage for your case for the rest of the divorce proceeding. Take a preliminary hearing seriously. Dixon & Moseley, P.C. advocates handle domestic cases throughout Indiana. This blog about preliminary hearings is written for general educational purposes only. It is not intended as legal advice or solicitation for services. It is an advertisement.