The Temporary Hearing: Often The Most Critical Stage of Your Case
The answer to what is the most critical and most important stage in a divorce or child custody case is often the temporary hearing in the majority of cases. As described below the temporary hearing is not the most critical part of every case as not all cases are well suited to a temporary hearing, and the issues at the temporary hearing often differ very materially from the issues that will be heard at the final hearing. But a temporary hearing is very important in every case, and in many cases it is the key and most critical component of the case. The temporary hearing 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. In the majority of cases if you win the temporary hearing you have gone a long way towards winning your case. In the majority of cases if you lose the temporary hearing, all is not lost, but you will have an uphill fight. However, there are also a good minority of cases where getting through the temporary hearing is just one step in the process of getting to a final trial where you case can be fully heard in the forum proper to your case. Whether your case is in the majority of cases where the temporary hearing is a very critical part of the case or the minority of cases where it is less critical, the temporary hearing is very important in every case and needs to be approached very seriously.
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. And this is the key difference in a temporary hearing vs. a final trial. The issues being heard are limited to the temporary issues, and the evidence you are allowed to present is also much more limited. For example, take temporary support of a spouse. At the temporary hearing your spouse may not be expected to be employed. However, give it a few months, and get back in front of the judge, and if that same spouse is still not employed the judge is going to be looking at the matter with a much different perspective and not necessarily as sympathetically. There are innumerable nuances that separate the temporary hearing from the final hearing, some will work to your advantage and some will not.
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?”
However, it is also true that not every case is a good fit at a temporary hearing, that the forum of a temporary hearing is often too limited to fully present the case, and at the temporary hearing the judge often will not even allow in evidence unless it relates specifically to the immediate temporary issues. In these cases, if the other party forces us into a temporary hearing, we prepare like heck and put on a great case because if we prevail at the temporary hearing, despite the case not being well suited to the forum, we can destroy the other party’s case. However, what often happens is that the temporary hearing becomes a process that needs to be endured so that we can move the case onto a final trial where the full case can be presented in a forum set up to hear all the evidence and all the issues on a final basis.
ISSUES AT THE TEMPORARY HEARING OFTEN DIFFER HOWEVER FROM A FINAL SO ALL IS NOT LOST.
But all is not lost. 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, 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. In fact, the judge may not even allow you to present much of your evidence at the temporary hearing because he or she will just not be interested in hearing anything but the most rudimentary temporary issues and not want to be bothered on a temporary basis to hear the more involved or important evidence if it does not directly relate to handling the immediate temporary issues in front of him on that day. 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 your 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.
One thing that I cannot possibly overstate and that is YOU NEED TO HAVE PATIENCE! The temporary hearing is not always a good forum for your case to be presented due to the limitations stated above. And it works the other way around as well, if the other party had a great temporary hearing. They may have had a great temporary hearing only because the temporary forum better suited their case, and their case may very well fall apart when exposed to the more expanded forum of a full final trial! I have seen this happen many times, and it is not just wishful thinking. You can turn the table at the final trial. There are innumerable differences and nuances that make the temporary hearing and the final trial very different from each other.
Contact us or call today to learn how Shaw Law can work with you to achieve the best outcome possible for you and your children.
Scott Shaw is founder and principle of Shaw Law Firm LLC, founded in 1995 and dedicated solely to divorce, family law and child custody matters that must be addressed and decided in the state of Georgia. Shaw Law Firm serves the greater Metro Atlanta area, particularly the counties of Fulton, Gwinnett, Cobb, Cherokee, Forsyth, Paulding, Henry, Fayette, Coweta, Newton, Walton, Bartow and Douglas. Schedule a consultation today at 770-594-8309.