The Temporary Hearing: Often The Most Critical Stage of Your Case
Copyright © 2004 Shaw Law Firm, LLC
The answer to what is the most critical and most important stage in a divorce or child custody case is the temporary hearing in the majority of cases. This is so because it is the first point in time when you are in front of the judge who will decide your case, and where most of the major issues including child custody, child support, alimony, use and possession of the home, and other issues will be decided on a substantive basis. The result of the temporary hearing is by definition, temporary, but it has very material implications for a party as the case moves forward towards trial. Win the temporary hearing and you have gone a long way towards winning your case. Lose the temporary hearing, and its not the end of the world, but be ready for a heroic uphill battle.
WHAT IS A TEMPORARY HEARING?
It is a hearing in front of a judge without a jury, where the issues of child custody, child support, alimony, and some property matters, such as who can stay in the house, who can get what car, etc., are made on a temporary basis that lasts for the duration of the case. The orders that come from the temporary hearing are not permanent and can, on the proper circumstances, be modified as your case proceeds forward. The intent of the temporary hearing is to settle issues temporarily so as to allow the parties to live their lives while the divorce or child custody suit is pending.
WHEN IS THE TEMPORARY HEARING?
A temporary hearing is not mandatory and not used in every case. However, it is usually to one party’s advantage that a temporary hearing be held, and thus the vast majority of cases involve at least one if not more temporary hearings. The temporary hearing will usually take place shortly after the parties initiate the case by serving papers. Sometimes a temporary hearing is held on an emergency basis and scheduled almost immediately after the serving of papers. As little as 5 days notice need be given in most cases before the temporary hearing is held, and in cases where an emergency situation exists, it may even be held on a 1 day notice.
Given the importance of the temporary hearing and the short period of notice that exists in some cases, if at all possible, a party should begin preparing for the temporary hearing even before the case is filed, or at least as soon as possible. As stated above, win the temporary hearing and you have gone a long way towards winning your case.
WHY IS THE TEMPORARY HEARING SO CRITICAL?
The temporary hearing is so critical because the results of the temporary hearing create a benchmark against which the rest of the case becomes measured by the judge. It also gives the prevailing party the upper hand and bargaining leverage over the other party during any future settlement negotiations. As an example, the prevailing party may say “Fine, you don’t like our settlement offer, we will just take it in front of the judge, as we already know how the judge feels about this case.” At least some parties who prevail at the temporary hearing will develop this attitude. A poor temporary hearing also puts the non-prevailing party at the psychological and real disadvantage throughout the rest of the case of trying to undo the results at the temporary hearing. It is not uncommon, for example, for judges to implicitly ask at the final trial, “Okay, now what has happened since the temporary hearing to change my mind on this case?”
But all is not lost. The temporary hearing is indeed important, but losing it is not necessarily the end of the world. As an example, in Georgia, a party is free to ask for a jury trial on many of the issues decided at the temporary hearing, thereby by-passing any bias that may have been created by the judge’s decision at the temporary hearing.
In addition, as described below, the temporary hearing is very limited in time and scope. Preparation for a temporary hearing is often rushed, most issues cannot be fully developed, and the judge at the temporary hearing will not hear all of the evidence due to the limitations of time and scope. Due to these limitations a poor temporary hearing can be overcome by an excellent trial where you fully develop the issues and get the chance to present all of the evidence. Losing the temporary hearing makes life more difficult, but it is not the end of the world and will not be dispositive of your case. Nevertheless, you can see why so much time and preparation should be devoted towards prevailing at the temporary hearing from the inception of your case, and why, if at all possible, preparation for the temporary hearing should begin as soon as possible.
WHAT OCCURS AT THE TEMPORARY HEARING?
A temporary hearing is before a judge, without a jury, and handled on an expedited basis, with limited time allotted to the parties to present their case (sometimes as little as 15 minutes per party), and very severe limitations placed on testimonial evidence (one live witness outside of the party is all that is allowed in most cases per party). The bulk of the evidence will consist of witness affidavits (affidavits are sworn written statements that are generally drafted by your attorney to accurately reflect the witnesses testimony and then signed and notarized by the witness) and the arguments of the attorneys to the judge. Issues such as child custody, child support, alimony, and some property distribution issues will be decided by the judge on a temporary basis.
Given the importance of the temporary hearing it is surprising to learn how expedited and informal temporary hearings can be. But that is the reality of temporary hearings, and one of the reasons why it is so essential to prepare ahead of time for temporary hearings and to be represented by someone with experience and talent in this area of law. Losing a temporary hearing is not the end of the world, but as stated above, it does make life more difficult and places a party at a disadvantage as the case moves forward.
The temporary hearing is often the most critical stage of your case. The temporary hearing is much more informal and expedited than a formal trial, and even the rules of evidence are not as strictly adhered to as they will be in every other aspect of the case. Nevertheless, despite the informality and looser rules of evidence, the results of the temporary hearing can be very vital to your case. As such it is critical to properly prepare for the temporary hearing, and prepare early. Under the rules of procedure in Georgia the opposing party can give you as little as 5 days notice (and sometimes less in emergencies) of the existence of and date of a temporary hearing. It is not unusual for one party to prepare for months or even years only to surprise the other party, who had no idea what was going on, with 5 days notice. It is not impossible, but it is certainly very difficult to prepare your case effectively with only 5 days notice.