After one party files for divorce, what happens next? By statute, sixty (60) days must pass before the court can enter a divorce decree. A divorce is often a complex financial transaction separating the parties’ assets and an emotional one involving child custody and support. Most divorces take at least a few months to finalize. During this time, many parties cannot agree on who will live in the marital residence, how they will share the children, what car each will drive and who will pay what bills. In these cases, typically one party will move the court to set a preliminary hearing to address these matters on a temporary basis. This blog covers four important legal principles you should know about preliminary hearing.1
First, a preliminary hearing will generate an order that will determine issues in dispute until a final divorce decree is entered or another preliminary order issues. These are binding on the parties but expire when the divorce decree is entered. In preliminary hearings (which are often very short, such as 15 minutes) the court will make the best decision it can make with limited evidence (the parties will likely gather this later in discovery) it has before it. That said, it is key to know what you desire for a temporary property division (such as who will have possession of the marital residence) and be able to explain why this is the case. If your issues relate to the children, you need to present evidence to the court that what you seek in custody, parenting time, and child support is in the best interests.
Second, a preliminary hearing is without prejudice to the right of the parties. This means if the court orders the parties to have possession of a certain car, it can change this upon receiving additional evidence at a final hearing (if the parties do not reach an agreement before trial). In other words, if the court makes a temporary order that really does not best serve a party, then he or she must present evidence at the final hearing of why the court should alter its decision. It is not enough to merely state the court did not make the best decision; instead show in the evidence why this is the case. This takes preparation by a litigant and his/her counsel. A grave mistake many litigants make in a final divorce trial is to just testify as to what they want to the court without putting on evidence why the property division sought is fair and equitable and why a position on custody is in the children’s best interests.
Third, because preliminary hearings sometimes occur very soon after a divorce filing and have limited time for hearing, it is important to follow the technical requirements that are part of the statutes covering temporary hearings or the court may deny the request. For instance, most preliminary hearings requests must be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested or relief sought. This must be verified by party making the request. Thus, make sure your filings are complete and proper. All attorneys and judges have observed preliminary hearing filings that are not proper.
Fourth, a preliminary hearing does not necessarily address all of the property (including debts) and child-related issues. The statutory scheme covering preliminary hearings generally anticipates the following requests for determination by the court:
- Temporary maintenance for a spouse.
- Temporary support or custody of a child of the marriage entitled to support.
- Temporary possession of property.
- Counseling.
- A protective order issued under the Indiana Civil Protection Act.
This noted, for litigants seeking preliminary physical and/or legal custody of the children, it should be remembered that stability and continuity for the children is a significant part of meeting their best interests. Later changing custody, particularly physical custody, in a final hearing is inconsistent with the children’s best interests in many cases, so extreme care should given to preparation for ligating the preliminary custody case.
This blog is written by attorneys at Dixon & Moseley, P.C. who handle complex domestic cases of all types throughout the state. Dixon & Moseley, P.C. advocates understand the importance of properly handling, analyzing, and litigating every aspect of any divorce case to the ultimate objective a client seeks at a final hearing on custody and property division. Attention to detail matters. This blog is written for general educational purposes only. It is not intended as legal advice for any particular situation, nor is it a solicitation of services. It is an advertisement.