“Success is not final; failure is not fatal. It is the courage to continue that counts.” — Winston Churchill

In the last article, we discussed the different ways a judge can help you settle a case. The key take aways from the post was not only that you should be thinking about alternatives to trial (settlement) but also that you should open up your thinking about the role of the judge in your case.

We tend to think of judges in their traditional roles:

• “Presiding over” (running the courtroom during trial) to decide procedural issues such as
  • Whether evidence can “come in” (be considered by the fact finder)
  • Giving instructions (jury instructions and scolding witnesses or lawyers when they aren’t following the rules
  • Deciding starting and ending times
  • Scheduling trials and hearing
• Fact finders (in cases without juries called “bench trials”) who decide the issues
• Making Judgments (who wins)
• Issuing Orders (what each side must do)

While these are all traditional roles judges fill, the best judges also see their role to include problem solving.

We went through one way they do that – settlement – in the last post. This week I want to talk about another way judges can help you solve problems – temporary orders.

The truth is the vast majority of cases settle.

• old estimates were over 90%
• some estimate that number is over 98%

But for those that don’t, the time it takes to finish cases can be years—especially after the pandemic. Many courts are backed up and have been for years. The pandemic shelter orders and court closures only made this worse. Not just for judges but for lawyers. If you’ve ever tried to schedule a meeting or event with multiple people, you know how hard it can be.

To schedule a trial, you have to factor in both you and your spouse/partner/co-parent. If you both have lawyers, you’re now trying to find a date that works for at least 5 people: 2 parties; 2 lawyers and the judge. If you add in any essential witnesses, the struggle to find a date gets even harder.

Even after you find a date that works, you aren’t guaranteed that day will stay yours. Certain cases can bump other cases by law (such as child protective cases) so the date you’ve waited for gets moved at the last minute. And rather than bumping all cases, many courts just put yours at the back of the line.

If you add to that illness, personal emergencies, or one side’s attempts to delay the trial, it can take a long time – months at a minimum; years at worst.

Temporary Orders & Solution-Finding

This is where temporary orders come into the picture.

A temporary order, also known as “temporary relief,” is just that –temporary. Such orders can keep things stable or decide time-sensitive issues until you can get to the final decisions in your case. They can also provide boundaries and calm down the uncertainty.

These orders can include

• financial payments
• use of property
• parenting issues
• whatever you can convince the judge needs to be decided right away but just until trial

Many judges understand that things may be time critical. They’ll carve out a time for short hearing to keep things stable while you wait for your trial. They understand that these are just working, imperfect and temporary solutions.

Other judges may balk at these.

If they think they are just a way to get 2 bites at the apple, or, go through the same issue twice (now and later), they may refuse to issue an order or refuse to set a hearing. This is especially true if your judge is overly optimistic about how soon your case can go to trial. For that reason, it’s important to think through your approach and arguments for why you need what you are asking for on a temporary basis.

Regardless of who your judge is, your court may have rules that allow you to get “status quo” orders on parenting issues, or get financial support without even having a hearing – they just decide issues after reviewing the paperwork such as financial worksheets.

But there’s another really important way to use temporary relief: they can serve as a “test-drive” where you and your spouse/partner or coparent get to try out a particular solution. 

Let’s say you are struggling with what parenting time should look like after your breakup. It may be hard to agree to something you’ve never done, knowing you could be stuck with a schedule for years.

A temporary order is by definition something that won’t be permanent.

Or you can use a temporary order to buy yourselves time – one of you needs to find a job but needs financial support to keep the lights on, the mortgage current or fill your gas tank while you go on interviews.

Temporary orders can help with these situations. 

If you include language in your order that spells out what you are doing and why, it can make it easier for both of you to try something out. Sometimes you can figure these temporary fixes or experiments out with your spouse/partner or co-parent.

But if you can’t, you can explain what you are doing to the judge as part of the reason you are asking them to give you relief.

In some cases, what starts out as temporary, can become permanent. 

Ideally, this is because you tried something and it’s working so it can lead to an agreement to adopt whatever you are doing as part of a settlement. In other cases, you may know up front that you can’t do permanently what you are trying to do so it’s important that the judge understand this.

The key is to be creative and view your judge as part of your solution strategy.

Carefully think through the problem, identify possible solutions on a short term basis and explain in detail if this is just a temporary solution and why. That can create room to experiment and reach short term agreements or solutions without committing on a permanent basis.

If you’d like help figuring out ways to solve short or long term problems, talk it over with a lawyer during a consult, with your lawyer or apply to book an orientation with us.