Tuesday, November 22, 2016

Family Law Part 2: The Temporary Hearing

Written by Jordan J. Mruz.

During your initial consultation with your attorney you may discuss whether or not it will be necessary to file a motion for temporary custody/parenting time and child support. If you are getting divorced you may also request temporary spousal support (or alimony). The post will address the preparation for this hearing as well as the hearing itself.

Do I even need to have a hearing?

It is not required that a temporary hearing be held. Whether or not it is appropriate to have this hearing in your case is dependent on a few things. For example, if both parties are working outside of the home in full-time jobs, your case may not be appropriate for spousal support (alimony and child support will be addressed in depth in a later blog post). If there is no disagreement about who should have custody of the children then it may not be completely necessary to have a hearing for temporary custody/parenting time. An example would be if one of the parties lives in another state and it would be disruptive to the child to move them at that particular point in time. Additionally you may file a motion for temporary custody and support and after discussing with the other party (or their attorney) you two reached an agreement on temporary matters. A stipulation could then be submitted to the court without having to go through with a hearing.

What do I need to bring to my attorney?

In the Districts where I currently practice (Central/South Central Nebraska), typically temporary hearings are done using affidavits only and there is no live testimony. This means that you will either need to bring affidavits to your attorney or you will need to meet with your attorney to write them together. An affidavit is essentially a sworn statement of facts, signed in front of a notary public. The affidavits should contain information that is relevant to what your hearing is addressing (e.g. custody and visitation). Your affidavit may state where the child has lived, with whom they have lived, who has been the primary care giver, how you meet their needs, and whether there any special circumstances surrounding the child that the court should be aware of (physical or mental disability). You may also need to tell the judge the reasons for why the other party should not have custody of the child such as their violent criminal history, drug/alcohol issues, abusive behaviors, etc. It is also helpful to provide the judge with what you think an appropriate visitation plan would be. These are just a few the things that your affidavit may address.

Your attorney should also discuss with you about whether any additional affidavits are necessary and they could be from a number of people. Maybe you have a close family member or family friend that has been witness to your great parenting skills and how much you do for the child. Maybe a coworker of the other party witnessed them get into a physical altercation and the child was around to witness it. People like this can be helpful to your temporary hearing, but be sure to avoid providing extremely duplicative information. Typically the judge does not want to read 10 affidavits from your parents, siblings, aunts/uncles, and cousins that all state how wonderful of a parent you are. Once is generally enough, and usually more than two of these are not really helpful.

If child support is being addressed at your temporary hearing, your attorney will typically present the judge a proposed child support calculation. This is what you believe the other party or yourself should pay for child support. You should bring your attorney pay stubs (at least a month’s worth of pay stubs, if not more) or if appropriate, your recent tax returns. The other party’s income information will be necessary to create an accurate calculation, but you may not have this information in your possession. Your attorney should be able to work with the opposing attorney to obtain this information.

What happens at the hearing?

As stated above, in the Districts where I practice, the hearings take place using only affidavits. Depending on the judge, the hearing itself may take place in the Judge’s chambers (not in the court room) with only the attorneys present. In other counties, the hearing will take place in open court without the clients present. In some counties the hearing will take place in open court with the clients present. Your attorney will advise whether or not you need to be present.

District rules will provide how soon before the hearing the affidavits needed to be exchanged and when responsive affidavits must be filed (rebutting what the other party said in their affidavit). At the hearing these affidavits and other exhibits (such as a child support calculation) will be offered and the parties will have a chance to object to the affidavits and exhibits. After the judge accepts the affidavits into evidence the attorneys will each have a chance to make an argument. The judge may make a decision at that time or they may take the matter “under advisement” so they have a chance to review the affidavits and issue a written order. That order may be available the next day or it may take a few weeks. Remember to be patient.

Please remember that this information is relevant only to Nebraska law and even within the state, there are specific rules for each District that your attorney should be aware of. This is meant to provide general information on what to expect with a temporary hearing. As always for more precise information, seek out assistance of a local attorney in your area.

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