Chapter 6: Obtain Temporary Orders and Agreements

I.   Determine Whether Temporary Orders Are Necessary

A. Mediation and Collaborative Practice

§6.1   If the clients have agreed to early stage mediation or collaborative practice, they will also agree to (1) maintain the status quo that existed before one of them decided to move forward with the divorce or (2) negotiate an interim agreement, which may include separation, to cover the new situation. These agreements are recorded by the mediator or by the attorneys in the collaborative practice case (if a mediator is not part of the team) and are circulated between the parties and their attorneys after each session. They are not entered as orders. Part of the basis for mediation and collaborative practice is that everyone must be able to make and keep promises. You can still use the issues identified in this chapter as a checklist of issues that must be negotiated or resolved in mediation or collaborative practice.

Research has shown that the stress on the couple and particularly on the children can be reduced when the parties separate. Therefore, working toward the separation in a humane and reasoned fashion will help the family. It can reduce the acrimony between the parents. Reduced conflict usually results in reduced cost to the parties. While attorneys may be uncomfortable doing less work and reducing fees, these reduced fees can be collected instead of written off. Using mediation and collaborative practice result in more satisfied clients who refer work to their attorneys.

Clients are generally anxious to restore order to their lives quickly. They will want to resolve issues, such as the custody of minor children, child support, and the right to possession of the marital home, as soon as possible.

B. Litigated Divorce

§6.2   In cases where the clients are not involved in early mediation, or collaborative divorce, the divorce complaint is usually filed right away. If appropriate, ex parte orders may be obtained without giving the other party notice or an opportunity to respond, but only in emergency situations. Child custody and support orders are probably the most frequently entered ex parte orders. It may also be appropriate for the court to enter a restraining order at the beginning of a divorce action to prevent the parties from hiding assets, changing beneficiaries on retirement assets or life insurance, or terminating insurance coverage while the matter is pending.

In some cases, the parties reach an agreement on those orders, and in that event, the parties place the agreement in an order and stipulate to entry of that order. In fact, it is not uncommon for attorneys to request that the other party stipulate to the order before filing a motion for entry. However, if an agreement is not reached, it is appropriate to file a motion to enter a temporary order, a subject that is addressed in more detail in §6.4.

Friend of the Court services may also be useful in resolving interim issues. The Friend of the Court not only investigates issues, such as custody, parenting time, and child support, but it also offers services for alternative dispute resolution, such as mediation. If the Friend of the Court makes a recommendation on an issue, the parties have the right to object and have a hearing about the objection. If a timely objection is filed, the judge reviews and makes a final decision. In addition, the Friend of the Court’s enforcement division has authority to conduct hearings when orders are not obeyed and to make recommendations for enforcement. See MCL 552.501 et seq.

II.   Prepare and File Ex Parte Orders and Motions for Temporary Orders

A. Ex Parte Orders

§6.3   Ex parte orders are orders that one party obtains without giving the other party notice or an opportunity to respond. It is possible to obtain ex parte orders regarding matters such as child custody and support, concealment of assets, and maintenance of insurance coverage. However, ex parte orders are only available in emergency situations, where the moving party can show that irreparable injury, loss, or damage will result unless the court issues an order that is effective immediately. See MCR 3.207(B).

Courts will consider ex parte orders concerning child custody and support. Some counties offer litigants a form to request entry of an ex parte order pertaining to minor children. In other counties, counsel prepares the proposed orders (see form 6.1). An ex parte order for child support, custody, or parenting time must include the following notice:

            NOTICE:

1. You may file a written objection to the order or a motion to modify or rescind the order. You must file the written objection or motion with the clerk of the court within 14 days after you were served with this order. You must serve a true copy of the objection or motion on the friend of the court and the party who obtained the order.
2. If you file a written objection, the friend of the court must try to resolve the dispute. If the friend of the court cannot resolve the dispute and if you wish to bring the matter before the court without the assistance of counsel, the friend of the court must provide you with form pleadings and written instructions and must schedule a hearing with the court.
3. The ex parte order will automatically become a temporary order if you do not file a written objection or motion to modify or rescind the ex parte order and a request for a hearing. Even if an objection is filed, the ex parte order will remain in effect and must be obeyed unless changed by a later court order.

MCR 3.207(B)(5).

All other ex parte orders must include notice that the ex parte order will automatically become a temporary order if the other party does not file a written request to modify or rescind the ex parte order and request a hearing. MCR 3.207(B)(6).

To obtain an ex parte order concerning minor children, file

• a verified complaint including allegations about the children (see form 4.3);
• a verified statement (SCAO form FOC 23);
• any affidavit or certification required by the county (see, e.g., form 6.2);
• the proposed ex parte order (form 6.1) and, in some counties, an income withholding order (SCAO form FOC 5); and
• additional forms as required locally.

The party submitting the first temporary order awarding child custody, parenting time, or support and the party submitting any final proposed judgment awarding child custody, parenting time, or support must serve the Friend of the Court and the parties with SCAO form FOC 100, Domestic Relations Judgment Information, and proof of service. This form, which contains personal identifying information, is separate from the court order and is not a public document. MCR 3.211(F)(2). See §1.9 for further discussion of these forms.

An ex parte order is effective on entry but may not be enforced until the other party is served with notice. MCR 3.207(B)(3). The moving party under MCR 3.207(B)(2) must arrange for service of a true copy of the ex parte order on the other party as well as on the Friend of the Court if the case involves minor children or spousal support. See §6.15 on service.

An ex parte order remains in effect until modified or superseded by a temporary or final order. MCR 3.207(B)(4). However, a timely filed objection to the ex parte order will negate the effectiveness of the order until there is a hearing on the matter. If there is a timely objection or motion and a request for a hearing, the hearing must be held within 21 days after the objection or motion and request are filed. MCR 3.207(B)(6).

For the entry of an ex parte order, take the affidavit in support of the ex parte order, as well as the proposed ex parte order, directly to the judge. Be sure to include in the affidavit the basis for the assertion that irreparable injury, loss, or damage will result unless the court issues an order that is effective immediately. Your filing should also include any documents required by local practice and anything else necessary to establish the factual basis for the order.

Several steps can facilitate rapid signing and receipt of conformed copies in counties where the clerk does not provide true copies:

1. Once the judge is assigned, use the stamps available at the courthouse to stamp the judge’s name on all the orders and supporting motions that the judge must consider.
2. Have sufficient copies of the complaint and separate motions in the file so that one of each can be left for the judge to review when they consider signing the orders.
3. Provide the judge’s clerk with a stamped, addressed envelope in which conformed copies of the orders can be sent to your office. These can be invaluable if the original order subsequently gets lost or is misfiled by the clerk.
4. If the judge enters the ex parte order, be sure to promptly arrange for service of that order on the other party.

B. Temporary Orders Requiring a Hearing

1. In General

§6.4   Nonemergency temporary orders require a hearing, unless the parties agree otherwise or fail to file a written objection or motion. See MCR 3.207(C)(2). If possible, the parties should attempt to negotiate their own temporary solutions rather than going to court, because the judge will not have much time to consider the subject matter of the plaintiff’s initial motion (or motions) before the hearing. See §§6.7–6.8 for discussion of the various methods that may be used to obtain temporary orders without going to court.

The plaintiff often files a motion to enter a temporary order at the same time the complaint is filed and schedules the motion (or motions) for hearing in two to four weeks, depending on the court’s docket. The motion must be filed at least nine days before the time set for the hearing if served by first-class mail or at least seven days before the time set for the hearing if served by delivery. MCR 2.119(C). Typical temporary orders provide for child custody, parenting time, child and spousal support, income withholding, preservation of assets, personal protection, and assistance in paying attorney fees. However, in some counties, such as in Ottawa County, there is no need to file a motion for a temporary order concerning custody and child support. In Ottawa County, for example, as soon as the divorce complaint is filed, even when the defendant has not yet been served with the divorce complaint, the Friend of the Court will schedule a conciliation conference. This is a conference that the parties are required to attend. At that conference, a representative of the Friend of the Court meets with the parties, and based on information presented in that meeting, the evaluator either tries to assist the parties in reaching a settlement or the evaluator issues a written recommendation regarding temporary custody, parenting time, and child support. If a party disagrees with the recommendation, the party files an objection and schedules a hearing on that objection and the judge ultimately decides whether to adopt or modify the recommendation of the evaluator. If you are unfamiliar with the practices of the Friend of the Court in a particular county, be sure to call the court clerk to learn what to expect on the filing of the divorce complaint.

In most counties in Michigan, it is routine to file a motion to enter a temporary order. In this regard, the documents that must be filed are (1) the motion (see forms 6.3 and 6.4), (2) any corroborating affidavits and exhibits, (3) the praecipe (a court form used in some but not all counties requesting that the matter be set for hearing; see, e.g., the 3rd Circuit Court’s ePraecipe; see also Michigan Civil Procedure §13.5 (Hon. Sima G. Patel et al eds, ICLE 3d ed)), and (4) a notice of hearing (see form 6.5). In cases involving minor children or spousal support, a copy of all pleadings, the praecipe (if required in your county), and a notice of hearing must be filed with the Friend of the Court. Check with the court clerk for any additional local forms that might be required.

The party submitting the first temporary order awarding child custody, parenting time, or support and the party submitting any final proposed judgment awarding child custody, parenting time, or support must serve the Friend of the Court and the parties with SCAO form FOC 100, Domestic Relations Judgment Information, and proof of service. This form, which contains personal identifying information, is separate from the court order and not a public document. MCR 3.211(F)(2). See §1.9 for further discussion of these forms.

Motions for temporary orders in domestic relations cases must be verified, MCR 3.207(C)(1), and the attorney must sign as the preparer, MCR 1.109(E). If the party signs an acknowledgment that they have read the pleadings and that to the best of their knowledge, information, and belief, formed after reasonable inquiry, the pleading was well-grounded in fact, the signature indicates to the court that the party supplied the facts. If the facts later prove to be false, the judge could conclude that the false representations are the result of overzealous advocacy or the client’s perception of the case. A tip for best practice is to carefully review the client’s assertions and ask for independent verification of their claims. Consider whether the court would benefit from documentation of the client’s claims, such as wage information. If submitting a tax return, be sure to redact private information, such as Social Security numbers.

2. Restraining Orders

§6.5   A restraining order is often entered at the beginning of a divorce action to prevent the parties from hiding assets, changing beneficiaries, or terminating insurance coverage while the matter is pending. If you plan to ask the court for a restraining order, include the factual basis for the relief in a separate affidavit. See MCR 3.206(A)(6). Remember that under MCL 552.6(1), a complaint for divorce must not include any explanation concerning the grounds of divorce other than by use of the statutory language.

Under MCR 3.206(A)(2), the complaint must state (1) the allegations required by applicable statutes; (2) the residence information required by statute; and (3) the complete names of any minors involved in the action, including all minor children of the parties and all minor children born during the marriage, and the ages of all children born of the marriage.

The court will be more inclined to grant the restraining order if it is mutual. Frequently the parties have no interest in engaging in the prohibited conduct and are amenable to having the orders restrict their behavior in exchange for saving the expense, trouble, delay, and uncertainty of a hearing. See form 6.6.

At the same time, you should take care to discuss with the client the limitations that such an order imposes. Once the order is entered, the client might not be able to withdraw money from their own accounts, even to pay you, without the permission of the other side. If the client is planning major purchases, such as a car or furniture, these events should be specifically excluded from the language of the order. Further, it is common to include a term in the restraining order that prevents prepayment of bills.

If you seek ex parte relief, i.e., entry of a restraining order without notice to the adverse party, (1) it must clearly appear from specific facts that immediate and irreparable injury, loss, or damage will result to the applicant from the delay required to effect notice or from the risk that notice will itself precipitate adverse action before an order can be issued; (2) the applicant’s attorney must certify to the court in writing the efforts, if any, that have been made to give the notice and the reasons supporting the claim that notice should not be required; and (3) a permanent record or memorandum must be made of any nonwritten evidence, argument, or other representations made in support of the application. MCR 3.310(B)(1).

The restraining order must set forth the reasons for its issuance in specific terms and must describe in reasonable detail the acts restrained. MCR 3.310(C). The order is binding only on the parties to the action; their officers, agents, servants, employees, and attorneys; and on those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. Id.

In domestic relations cases, unlike other cases, there is no requirement that a restraining order expire within some fixed amount of time or that it set a date for hearing. Domestic relations restraining orders do not expire automatically but continue in effect throughout the pendency of the action until modified or superseded by a temporary or final order. MCR 3.207(B)(4), (C)(5). Unless specifically preserved in the judgment, temporary orders terminate when the judgment is entered. MCR 3.207(C)(5).

If a restraining order is entered to maintain insurance coverage, some attorneys send an attested copy of the order to each insurance company that issued a policy. In that event, send the copy by certified mail, return receipt requested, and enclose a cover letter explaining the effect of the order and a request to call you with any questions.

3. Personal Protection Orders

§6.6   A personal protection order (PPO) must be obtained in an independent action. See §4.14. Technically the court in a divorce case has the authority under MCR 3.207 to enter a restraining order against abusive conduct. However, such a restraining order is not enforced in the same manner as a PPO—i.e., it is not entered into the Law Enforcement Information Network, is not enforceable by arrest, and does not carry criminal penalties. Therefore, a PPO is the preferred method for restraining abusive behavior.