In divorce cases that we represent, clients are advised that the need to get in front of a judge to get the court to make temporary rulings on property, debt, and any other issues related to property, is very important to preserve community property as well as to have the rights to possession and use of community property.
During the pendency of a suit for divorce, the parties may request many types of relief relating to the property of the parties and protection of the parties from the court, and the court may grant such relief as deemed equitable and necessary. On the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including:
- Temporary injunctions for the preservation of assets and protection of the parties.
- Temporary orders for spousal support.
- Temporary orders for the payment of community debt.
- Orders for interim attorney’s fees and expenses.
- Discovery orders and an order setting the deadline for the filing of the parties’ sworn inventories.
- Orders for appraisal of assets.
In divorce cases involving children, it is very important for our clients to decide whether or not they want to get the Court involved from the onset in order to get a Court’s ruling on temporary conservatorship, support, and possession of a child.
In a suit affecting the parent-child relationship, the court may make or modify a temporary order for the safety and welfare of the child, including orders—
- for the temporary conservatorship of the child,
- for the temporary support of the child,
- restraining a party from disturbing the peace of the child or another party,
- prohibiting a person from removing the child beyond a geographical area identified
by the court, or
- for payment of reasonable attorney’s fees and expenses.
In addition, the court may make orders for—
- psychological evaluation of the parties, relative to the issues of conservatorship
and possession of the children;
- preparation of a child custody evaluation relative to the issues of conservatorship
of, possession of, and access to the children (see Tex. Fam. Code
§ 107.103); and
- appointments of representatives for children in a conservatorship dispute.
What if a parent wants temporary custody?
An order may not be entered for temporary conservatorship of a child (except in an
emergency order sought by a governmental entity under chapter 262), for temporary
support of a child, or for payment of reasonable attorney’s fees and expenses, except
after notice and hearing. Tex. Fam. Code § 105.001(b), (h). Absent a finding supported
by evidence that the safety and welfare of a child will be significantly impaired by the
appointment of a parent as the child’s managing conservator, the parent’s decision
regarding whether the child will have any contact with third parties is a fundamental
right of a parent, and it is unconstitutional for the trial court to enter temporary orders
appointing third parties as temporary possessory conservator.
A temporary order in a suit affecting the parent-child relationship rendered in accordance
with Family Code section 105.001 is not required to include a temporary parenting
plan. The court may not require the submission of a temporary parenting plan in any
case or by local rule or practice.
What about a Child Custody Evaluation?
In a suit affecting the parent-child relationship, the court may order the preparation of a child custody evaluation regarding (1) the circumstances and conditions of the child, a party to the suit, and, if appropriate, the residence of any person requesting conservatorship of, possession of, or access to the child and (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Tex. Fam. Code § 107.103(a).
What about a Parent Education and Family Stabilization Course?
In a suit affecting the parent child relationship, the court may order the parties to attend a parent education and family stabilization course if the court determines that the order is in the best interest of the child.
Is Counseling mandatory in Texas divorces?
While a divorce suit is pending, the court may, in its discretion, direct the parties to counsel with a person named by the court. Tex. Fam. Code § 6.505(a). If the parties ordered to counseling are the parents of a child under eighteen years of age, the counseling shall include counseling on issues that confront children who are the subject of a suit affecting the parent-child relationship. Tex. Fam. Code § 6.505(e).
What about a Mental Health Evaluation?
A party may request mental health evaluations of the parties, relative to the issues of conservatorship and access to children.
What about appointments in involving disputes in custody?
In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint one of the following: an amicus attorney, an attorney ad litem, or a guardian ad litem.
What is one of the parents are military? Is there a Stay for Military Service?
A stay may be granted under certain circumstances to a party who is in military service or has separated from service within ninety days.
What about Temporary Restraining Orders and Temporary Injunctions?
After a suit for divorce is filed, on the motion of a party or on the court’s own motion,
the court may grant a temporary restraining order without notice to the adverse party for
the preservation of the property and for the protection of the parties as necessary.
A temporary restraining order may not include a provision concerning a requirement,
appointment, award, or other order listed in section 64.104 of the Texas Civil Practice
and Remedies Code (concerning receiverships) or include a provision that excludes a
spouse from occupying the residence where that spouse is living.
Divorces are complex proceedings especially when children and property are involved. It is always best for a party contemplating filing for divorce to always seek the advice and counseling of an experienced attorney to consult prior to filing a petition with the Courts.