Divorce: The Case is Filed, Now What?

Justin O'DellBy Justin O’Dell

As we continue to look at Dick and Jane and the topic of divorce, we will assume that both have met and selected counsel and that the process of divorce is underway.  This brings us to the filing of a divorce and what happens next.

Recall that our case involves a contested divorce (no settlement agreement reached before filing).  For those who do not recall the facts about this family, you can find them here:  http://www.odelloneal.com/blog/dick-and-jane/meet-dick-and-jane-2/.

The first issues, post-filing, for Dick and Jane are temporary issues.  In order to deal with these issues, Georgia law allows for a “temporary hearing.”  The purpose of a temporary hearing is to address the immediate needs of the parties and the children, specifically temporary custody, temporary child and spousal support, temporary use and possession of assets (including the house) and temporary payment of expenses.  The decisions on some of these issues can be quite different from the ultimate outcome in a divorce.  For example, on a temporary basis the Judge could order the wage earning party to continue to pay a variety of expenses directly, like mortgages and car payments.  Thus, issues like alimony and even child support may be addressed through the payment of direct expenses.  On a final basis, the Judge is going to expect each party to pay his or her own expenses and will deal with availability of funds through child and spousal support.  If the parties have a contested custody matter, the Judge may be inclined to consider alternative custody arrangements like shared/split parenting time or even “bird-nesting” (where the parents take turns living in the house with the children rather than the children moving from home to home).

Although Judges do not divide assets at a temporary hearing, it is not uncommon for the parties to be awarded temporary use and control of the same.  Those awards are generally an indication of where the asset is ultimately going to go.  For example, if a Judge awards Jane temporary use and possession of the marital residence on a temporary basis, the asset (if not sold) is going to probably remain with her in the final settlement.

A temporary hearing is also designed to ensure that each party has access to funds to secure adequate representation.  Georgia law allows an award to be made to the non-primary wage earning spouse from the marital estate or from the earnings of the other spouse for payment of her attorneys’ fees and litigation costs.  This allowance is recognition that it would be fundamentally unfair for one spouse to be forced into a settlement simply by being unable to afford the process or unable to conduct discovery regarding assets.

A temporary hearing is usually set anywhere from 30 – 45 days following the filing of the divorce, though this time can be longer in some counties than others.  Most parties are able to reach a temporary agreement without the intervention of a Court.  This is true even in instances where there are hotly contested issues in the case.  Many times, the temporary order is simply a reflection of the status quo.

One of the most underappreciated benefits of the temporary hearing can be the “venting” process.  In our case, Jane may be particularly upset about Dick’s alleged misconduct.  The lawyers in the case might be indicating a possible temporary resolution that would be workable for everyone.  Jane may feel that the resolution is unfair given “what he has done.”  In a temporary hearing, Jane can require Dick to get on the stand.  Dick can be compelled to answer questions about his conduct (or he can take the 5th Amendment and refuse, which in a civil case allows the Judge to assume an admission).  Jane can take the stand and discuss the impact and difficulty on her children and her family.  Most often, the Judge will then issue a decision somewhere along the lines predicted by the lawyers.  Maybe the Judge will direct a comment or two toward Dick about his behavior.  Maybe the Judge will direct a comment or two toward Jane about moving on and making sure the children are not alienated against their Father, regardless of his behavior.  Jane may feel some catharsis from having had a public moment.  Both parties may come to understand that they do not want to be in front of a Judge again.  Finally, both parties may come to believe that when the lawyers who they have hired and who have extensive experience in the field and with the Judge, both indicate and seem to agree on a potential outcome, they are probably pretty accurate.

For Dick and Jane, we are going to look at the goals for a temporary hearing in the next few months.  We will view the case from each perspective.  In order to set up the discussion, we will assume that Dick has been unfaithful and that Jane is aware of it.  However, unbeknownst to Dick, Jane also had an extramarital relationship that started about a year ago.  Hers never became physical, but was emotionally intimate, flirtatious through texts and social media.  It was also around this time that Jane withdrew from Dick physically and emotionally.  When confronted with the issue of his affair, Dick left the house to stay with his brother.  He has been seeing the children some on weekends and attending their activities.  Thus far, he has been maintaining all of the household expenses and giving Jane a few hundred dollars each month for expenses.  We shall see how the temporary issues unfold…..