Practice Areas
Temporary Orders
One of the Most Important Hearings in the case
What Are Temporary Orders?
A Texas divorce or child custody case can remain pending for months before the parties reach a settlement or receive a final ruling from the court. During that period, families still need rules governing the children, the home, bills, property, and the parties' conduct. Temporary orders provide those rules while the lawsuit is pending.
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In a divorce, Texas Family Code § 6.502 authorizes the court, after notice and hearing, to enter temporary orders that the court considers necessary and equitable for the preservation of property and the protection of the parties while the case is pending.
When children are involved, Texas Family Code § 105.001 gives the court additional authority to enter temporary orders concerning the safety and welfare of the child, conservatorship, possession, child support, and other matters.
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Temporary orders do not end the case. They establish the structure under which the family will operate until the parties reach an agreement, the court modifies the temporary orders, or a final order is entered.
Why Temporary Orders Matter
Temporary orders can have an enormous practical effect on a divorce or custody case. They may determine where the children live, how often each parent sees them, who remains in the marital residence, who pays the mortgage and household expenses, whether temporary child support or spousal support is paid, and how the parties may use marital property while the case is pending.
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Although temporary orders are not necessarily the final outcome, the arrangement created at a temporary orders hearing may remain in place for many months. That means the hearing should be treated seriously. The evidence presented at this early stage can affect the family's day-to-day life throughout the litigation and may establish a practical status quo that becomes important later in the case.
Temporary Conservatorship and the Children
When parents cannot agree on how to care for the children while the case is pending, the court may enter temporary orders concerning conservatorship, possession, access, decision-making, and the child's residence.
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The court's primary consideration remains the best interest of the child. See Tex. Fam. Code § 153.002. Depending on the facts, the court may temporarily allocate rights concerning education, medical care, psychological treatment, extracurricular activities, and other significant decisions.
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The court may also determine which parent has the temporary exclusive right to designate the child's primary residence and may impose a geographic restriction on that residence. The exact rights and duties awarded at a temporary orders hearing depend on the evidence and the circumstances of the family.
Temporary Possession Schedules
A temporary orders hearing may establish the possession schedule that applies while the case is pending. The court may use a Standard or Expanded Standard Possession Order, an equal possession schedule, or another schedule designed around the needs of the child and the circumstances of the parents.
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For very young children, particularly children under three, the Standard Possession Order is not presumed to be appropriate. Texas Family Code § 153.254 directs the court to consider the circumstances of the child and the family when establishing possession for a child under three.
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Work schedules, school transportation, the distance between the parents' homes, the historical involvement of each parent, the child's age, and the child's developmental needs may all affect the temporary schedule.
Temporary Child Support
The court may order temporary child support while the case is pending. Child support is generally calculated using the paying parent's net resources and the guidelines contained in Chapter 154 of the Texas Family Code.
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Temporary child support can be particularly important when the parents separate and one household has historically depended on the other parent's income. The court may also address health insurance, dental insurance, and allocation of uninsured medical expenses for the children.
Temporary Spousal Support
In a divorce, the court may order temporary support for a spouse while the case is pending. Temporary spousal support is different from post-divorce spousal maintenance.
Temporary support is intended to address financial needs during the litigation. The court may consider the parties' incomes, available resources, ordinary monthly expenses, responsibility for household bills, and the financial circumstances created by the separation.
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Because temporary support is equitable relief, the amount and duration depend heavily on the facts presented to the court.
Who Stays in the Marital Residence?
Temporary orders frequently determine who may remain in the marital residence while the divorce is pending.
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The fact that a house is titled in one spouse's name does not necessarily determine who will temporarily occupy it. The court may consider the needs of the children, the financial circumstances of the parties, allegations of family violence, the parties' ability to obtain alternative housing, and other relevant circumstances.
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An award of temporary exclusive use of the residence does not determine who ultimately receives the home in the divorce. Final ownership is addressed as part of the property division.
Who Pays the Bills During the Divorce?
Once spouses begin maintaining separate households, the financial structure of the marriage often becomes impossible to continue without court intervention.
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Temporary orders may allocate responsibility for the mortgage, rent, utilities, vehicle payments, insurance, credit cards, children's expenses, and other recurring obligations. The court may also determine how the parties may use existing bank accounts and other liquid assets while the case is pending.
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Clients should prepare a realistic monthly budget before the temporary orders hearing. Bank statements, pay records, mortgage statements, insurance bills, credit card statements, and other financial records can help the court understand the parties' actual financial circumstances.
Protecting Property While the Divorce Is Pending
A temporary orders hearing may also address preservation of the marital estate.
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Under Texas Family Code § 6.502, the court may prohibit the parties from selling, transferring, concealing, encumbering, or otherwise disposing of property except as authorized by the court. The court may also regulate the use of property, require inventories, and enter orders designed to preserve assets until a final division can be made.
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Many Texas counties also use standing orders that automatically restrict certain conduct after a divorce or custody case is filed. The specific standing order should be reviewed carefully because its requirements vary by county.
Temporary Restraining Orders and Temporary Orders Are Different
A temporary restraining order, commonly called a TRO, is different from a temporary orders hearing.
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A TRO is generally intended to preserve the status quo until the court can conduct a hearing. It may prohibit conduct such as hiding property, withdrawing funds outside ordinary expenses, disturbing the peace, or interfering with the children.
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Temporary orders are generally entered after notice and an opportunity for a hearing and may establish longer-term rules that remain in effect while the case is pending. A TRO therefore often serves as the short bridge between filing the case and obtaining temporary orders.
Evidence at a Temporary Orders Hearing
A temporary orders hearing is an evidentiary hearing. The court makes decisions based on admissible evidence rather than simply accepting the allegations contained in a petition or affidavit.
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Depending on the issues, relevant evidence may include text messages, photographs, recordings that were lawfully obtained, financial statements, pay records, school records, medical records, police reports, drug or alcohol testing, witness testimony, and other documents.
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Clients should preserve original evidence whenever possible. Text-message screenshots should show the actual conversation, date, time, and surrounding context. A summary prepared by a client is generally much less useful than the original communication.
Drug and Alcohol Restrictions
When credible evidence raises concerns regarding substance abuse, temporary orders may include restrictions designed to protect the children.
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Depending on the evidence, the court may order urine testing, hair or nail testing, PEth alcohol testing, Soberlink monitoring, or testing through an established laboratory with appropriate chain-of-custody procedures. The court may also prohibit the consumption of alcohol during or before periods of possession or prohibit the use of illegal drugs.
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Significant restrictions should be supported by evidence. Family courts routinely hear allegations of substance abuse, and unsupported accusations are different from documented testing, criminal records, admissions, witness testimony, or other reliable evidence.
Family Violence and Safety
Allegations of family violence can significantly affect temporary orders.
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Texas Family Code § 153.004 requires courts to consider evidence of family violence when determining conservatorship and possession. Depending on the evidence, the court may restrict possession, require supervision, establish protected exchange procedures, or enter other orders necessary to protect a parent or child.
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A temporary orders hearing can therefore be particularly important when immediate safety concerns exist. Protective orders are separate proceedings with different statutory requirements and may provide additional relief in appropriate cases.
Temporary Orders Can Be Modified
Temporary orders are designed to govern the parties while the case is pending and may be modified when circumstances justify a change.
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The legal standard depends on the relief requested. In modification cases involving children, Texas Family Code § 156.006 imposes important limitations on temporary orders that change the person with the exclusive right to designate the child's primary residence. The statute generally requires the specific circumstances authorized by the Legislature before such a temporary change can be made.
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Because different standards may apply depending on whether the case is an original divorce, an original SAPCR, or a modification proceeding, the procedural posture of the case matters.
Temporary Orders Are Not the Final Trial
A temporary orders hearing does not ordinarily determine the final outcome of the divorce or custody case.
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The parties may continue conducting discovery, obtain expert evaluations, participate in mediation, and prepare additional evidence for final trial. Information that was unavailable at the temporary hearing may later change the court's understanding of the case.
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Nevertheless, temporary orders should not be treated casually. A workable temporary arrangement may remain in effect for a substantial period, and the history created while those orders are in place may become relevant when the court later considers final orders.
Preparing for a Temporary Orders Hearing
Preparation should begin as soon as it becomes apparent that temporary issues cannot be resolved by agreement.
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The attorney needs a clear understanding of the family's existing routine, the children's schedules, each parent's historical involvement, the parties' incomes and expenses, the condition of the marital estate, and any safety concerns. Relevant documents and electronic communications should be organized early enough for counsel to determine what is admissible and what additional evidence may be needed.
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Temporary orders hearings are often shorter than final trials, which makes preparation especially important. The attorney must identify the issues that matter most and present the evidence efficiently within the time available.
Fergus& Tomanka
Represents Clients at Temporary Orders Hearings
Temporary orders often establish the rules that govern a family during the most uncertain stage of a divorce or child custody case. Decisions concerning the children, the marital residence, financial support, property, and safety may remain in place for months before the case is finally resolved.
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At Fergus & Tomanka, we represent clients throughout Central Texas in temporary orders hearings involving divorce, conservatorship, possession, child support, temporary spousal support, property preservation, family violence, substance abuse allegations, and other contested family law issues. We prepare these hearings with the understanding that temporary orders can have a significant effect on both the immediate circumstances of the family and the eventual resolution of the case.
Call (512) 291-6952 to set up a consultation with one of our attorneys OR simply Make An Appointment on your own!
These issues can be quite difficult to handle on your own due to the legal complexity and emotionally-charged nature of the proceedings. It’s best to consult with an experienced family law attorney in your area.