Motion for temporary Orders or Emergency Relief in RI Divorce?

A Rhode Island divorce attorney discusses emergency motions and motions for temporary orders in Providence Family Court.

Should I file a motion for emergency relief in a RI Divorce?

A motion for temporary orders in a Rhode Island Divorce should be filed if the husband or wife is in need of temporary resolution of issues while the Divorce case is proceeding. These temporary motions typically request: temporary Child Support, Temporary Child Custody, payment / contribution to daycare, Temporary Alimony / Spousal Support, contribution to medical bills, alimony, payment of household expenses, payment of marital debts and bills, payment of the mortgage, taxes and insurance.

RI custody, sole custody and joint custody

Rhode Island motion for temporary orders

A motion for temporary orders can also address Child Visitation and Child Custody issues related to the minor children as well as issues concerning exclusive use and possession of the marital home. The temporary motion can also request temporary orders related to: restraining orders both financial and personal as well as a myriad of other temporary issues. The motion for temporary orders will typically be heard by the Court within 30-40 days of the filing of the complaint for divorce.

“[E]ach unpaid installment as it accrues becomes in the nature of a judgment, regardless of whether the defaulting party has an understandable grievance against the former spouse.” Grissom v. Pawtucket Trust Co., 559 A.2d 1065, 1067 (R.I. 1989) (quoting Lippman v. Kay, 415 A.2d 738, 743 (R.I. 1980)). Healey V Healey

Automatic orders in RI divorce

If no temporary orders enter then there is no legal obligation of a spouse to pay anything in a divorce while the case is proceeding until there is a decision by the judge or the parties sign a property settlement Agreement. However, the parties must comply with the automatic Court Orders that enter in every Divorce Case. If there are no temporary orders, the financial issues, visitation and custody issues will be up to the parties to figure out while the case is proceeding without the benefit of a Rhode Island Family Court order.

Motion for temporary orders

If a spouse is in urgent need of immediate help to pay the mortgage to avoid foreclosure then they should file a motion for temporary orders with the filing of the Rhode Island Divorce Complaint. If a spouse is having difficulties supporting the children, then he or she should file for temporary Rhode Island Child Support. If the parties are arguing or fighting about visitation schedules, pickup and drop-offs or other Rhode Island Child Custody and Visitation issues then a motion for temporary orders should be filed with the Rhode Island Divorce. If a spouse is concerned that the other spouse will unreasonable dissipate, hide, conceal or sell marital assets then the spouse should speak to his or her Rhode Island Divorce Lawyer concerning filing a motion for temporary orders. There are hundreds perhaps thousands of adequate justifications for filing a motion for temporary orders in RI Family Court.

Murphy v Murphy

“A trial court having jurisdiction under § 15-5-16 may make an award for temporary relief in the proper case. A temporary support order continues in existence pending appeal until further order of the court that originally entered the order. See Sundlun v. Sundlun, 103 R.I. 25, 37, 234 A.2d 358, 365 (1967), aff’d, 108 R.I. 603, 277 A.2d 918 (1971). A party may, however, petition the court to modify the order. “The long-standing rule which prevails * * provides that the rights of the parties are settled by the existing decree and cannot be altered unless the moving party by a fair preponderance of the evidence shows that subsequent to the entry of that decree a change of circumstances or conditions occurred.” Heatherton v. Heatherton, 110 R.I. 144, 145, 290 A.2d 912, 913 (1972); see also McHenry v. McHenry, R.I., 424 A.2d 1067, 1068 (1981).” Murphy v. Murphy 471 A.2d 619 (1984) Katherine MURPHY v. Dennis J. MURPHY. https://law.justia.com/cases/rhode-island/supreme-court/1984/471-a-2d-619.html

How does the RI Family Court determine a parties ability to pay temporary support?

“The foregoing are the principal facts and circumstances of this case. In determining the proper amount of support to award out of the husband’s estate the trial justice was required in the exercise of a sound judicial discretion to measure the wife’s needs and circumstances against the husband’s ability to comply with whatever order he might make. That ability, however, did not rest solely upon the husband’s existing earning capacity, but included other available means of compliance as well as his capacity to acquire those means by the exercise of reasonable efforts. Compare Jennings v. Jennings, 78 R.I. 139, 143, 79 A.2d 920, 922 (1951) with Boyden v. Boyden, 50 R.I. 326, 329, 147 A. 621, 622 (1929).” Wattman v. Wattman, 288 A.2d 263 (R.I. 1972)

“We have previously held that a justice of the Family Court, in determining a father’s ability to pay for the support of his children or to meet other support obligations, may consider capital assets. McHenry v. McHenry, R.I., 424 A.2d 1067, 1069 (1981); Bellows v. Bellows, R.I., 382 A.2d 816, 819 (1978); Ferrazza v. Ferrazza, 102 R.I. 265, 267-68, 229 A.2d 773, 774 (1967). However, in the case at bar the trial justice was persuaded that this obligation, which was payable in the future, did not affect or enhance the father’s present ability to pay. Even though the trial justice may at the time of this hearing have had the authority to order a setoff against the future obligations,1 we cannot say that he was clearly wrong in declining to do so.” 426 A.2d 265 (1981) Janet C. MORRY v. Leonard J. MORRY, Jr. Supreme Court of Rhode Island. March 13, 1981.

“Furthermore, we have made it clear that in providing for the support of children of divorced parents, the Family Court may “consider every factor that would serve to reveal in totality the circumstances and conditions” bearing on the welfare of the children. Cambra v. Cam bra, 114 R.I. 553, 560, 336 A.2d 842, 846 (1975); see Gartner v. Gartner, 79 R.I. 399, 403, 89 A.2d 368, 371 (1952). Such an investigation may include consideration of capital assets belonging to the father, such as stock in a partially or wholly-owned corporation, as well as other sources of income. Ferrazza v. Ferrazza, 102 R.I. 265, 267-68, 229 A.2d 773, 774 (1967).” 382 A.2d 816 (1978) Virginia H. BELLOWS v. Burney H. BELLOWS.Supreme Court of RI

When do orders for temporary support terminate in a divorce in RI?

“Although the second issue appears to be one of first impression in this jurisdiction, apparently as a general rule temporary orders regarding support or alimony payments terminate with the entry of the interlocutory decree[2] or the rendition of the final decree of divorce.[3]” Silva v. Silva, 404 A.2d 829 (R.I. 1979)

Relevant case law in RI:

Robert W. MURPHY v. Deborah T. MURPHY

Thayer v. Thayer 265 A.2d 436 (1970) Elizabeth J. THAYER v. John B. THAYER, Jr. No. 792-M. P. Supreme Court of Rhode Island.

288 A.2d 263 (1972) Ruth WATTMAN v. Edwin Z. WATTMAN. Supreme Court of Rhode Island. March 7, 1972.

Morry v. Morry 426 A.2d 265 (1981) Janet C. MORRY v. Leonard J. MORRY, Jr. No. 79-29-Appeal. Supreme Court of Rhode Island.

382 A.2d 816 (1978) Virginia H. BELLOWS v. Burney H. BELLOWS.

424 A.2d 1067 (1981)Barbara McHENRY v. Matthew J. McHENRY. Supreme Court of Rhode Island.
January 22, 1981.

340 A.2d 120 (1975) Elise F. PANSEY v. Roy H. PANSEY. Nos. 73-189 M. P., 74-33 Appeal. Supreme Court of Rhode Island.

Renaud v. Renaud, 373 A.2d 1198 (R.I. 1977)

79 A.2d 920 (1951) JENNINGS v. JENNINGS. Supreme Court of Rhode Island. April 9, 1951.

290 A.2d 912 (1972) Carole Ann HEATHERTON v. James Thomas HEATHERTON.
No. 1563-Appeal Supreme Court of Rhode Island. May 22, 1972.

Should I file an Emergency Motion in Rhode Island Family Court?

If there is an emergency in which irreparable harm will be caused if the party waits for a court date, then an emergency motion should be filed with the complaint. An emergency motion must either be verified under oath or be accompanied by an affidavit. The Rhode Island Divorce Attorney will bring the emergency motion to the proper judge and ask for an ex-parte order. The term “ex-parte” means that the other side will not be present to object.

The Rhode Island Family Court Judge will only consider the affidavit and documentation before him. If the judge signs the emergency order, then it will be served by the constable along with the Divorce complaint. The Spouse seeking an emergency order must establish that there will be “irreparable harm” if the emergency relief is not granted immediately. Emergency motions should only be filed in real and serious emergencies.

These types of emergency motion typically deal with issues concerning abuse of a child, dissipation or unreasonable spending of marital assets, domestic violence, child abuse or a plethora of other potential emergencies. If there is domestic violence involved in which you are in imminent fear of physical harm or have been abused or threatened with abuse, please discuss with the Rhode Island Divorce Attorney the benefits of filing a separate case called a “Complaint Protection from Abuse” seeking a Restraining Order. Please note that the Complaint Protection from Abuse is very different from an Emergency motion. A detailed explanation of a Complaint Protection from abuse is beyond the scope of this article.

Permanent removal

An emergency motion in a RI divorce also could be filed if a spouse is about to permanently remove a child to another state without permission or consent of the other spouse. An emergency motion could also seek an order that a parent immediately return a child back to Rhode Island who was wrongfully or illegally taken / Kidnapped to another state. The timing of whether the divorce or Complaint Protection from Abuse case is filed first or whether they are filed simultaneously could be crucial to your case.

If an emergency motion is granted and emergency orders enter then a hearing will be set approximately 20 days to determine if the order should stay in effect while the divorce case is proceeding. At that hearing your spouse has an opportunity to contest the motion and tell his or her side of the story. At that hearing, the Court will determine whether the emergency relief will stay in effect while the divorce case proceeds. Rhode Island Attorneys legal Notice per RI Rules of Professional Responsibility:

David Slepkow, RI divorce lawyer

David Slepkow is a Rhode Island (RI) lawyer concentrating in Divorce, Family law, Restraining Orders, DCYF, Rhode Island Child Support law, alimony, adoption, child custody and visitation. David has been practicing since 1997 and is licensed in Rhode Island, Massachusetts and Federal Court. Free Initial Consultation with a divorce lawyer in RI.

The Rhode Island Supreme Court licenses all lawyers in the general practice of law, but does not license or certify any lawyer as an expert or specialist in any field of practice.