Planning for a Hearing on Temporary Orders in Massachusetts
A temporary order in a divorce case sets the course for the rest of the litigation process. Knowing what to expect when you get there can relieve some of the stress that comes with a court hearing.
Make sure your attorney is prepared.Although every attorney should be prepared, you know all the little and important details of your life. You know what the most important things are that need to be addressed. Your attorney will have a general sense of the normal things that need to be determined within a hearing on temporary orders; such as custody, child support, parenting plans, health insurance, who stays in the house, who pays what bills, etc. But there might be things that really influence what the best case scenario may be that your lawyer will not know unless you bring it to his or her attention. Do not wait until right before the hearing to throw out something that could eventually have a huge impact on the outcome if it needs to be argued before the judge.
Complete a detailed and accurate financial statement.There are two different financial statements - one for people who make under $75,000 per year and one for people who make over $75,000 per year. Although it can take a while to find all the correct information, it is CRUCIAL that your financial statement is accurate and complete. A financial statement is used to determine financial matters, but it also effects whether a Judge could find you to be credible later on. You might think leaving off a small retirement account is no big deal if you forget to list it, but it could later come back to haunt you if the Judge thinks you were trying to hide money. If something needs an explanation, make sure you attach an explanatory note. Better to explain something than allow others to make assumptions or try to use it against you later. It is never going to be worth lying on your financial statement to try to avoid paying more or getting more child support. Ever.
Know where you're going when.At least one day before the hearing, double check the date and time of your court date. Usually, you will be scheduled for 8:30 a.m. Plan to be there on time. Different counties are slightly different with how they start the morning. For example, in Worcester County, you will check in with the probation department starting at 8:30 a.m. sharp. In Plymouth County, you will head straight for the courtroom you are assigned to and check in with the clerk. The clerk will either call the list or you'll form a line and check in one by one. In Norfolk County, you will check the docket list hanging in the hall on the second floor - if your case is highlighted, you will head up to the third floor's probation department to check in. (The earlier you an the other side can check in, the sooner your case will be called). In Middlesex, you will check in directly with the clerk. Sometimes that is inside of the courtroom; sometimes they set it up in the hallway. In Bristol, you will check in at the courtroom with the clerk - Make sure you look at the number next to your name so you can give that to the clerk and avoid getting yelled at! Bristol County has three courthouses - Fall River, Taunton, and New Bedford. Plymouth County has two - Plymouth and Brockton. Middlesex has two (one on Cambridge Street and one on Third Street). Some counties also have other courts in smaller towns/cities where cases are heard as well. For example, sometimes Middlesex cases are heard in Marlboro. Just make sure you double check and know exactly where you're going before the day of your hearing.
How to dress.My advice is dress like you are going to a church or a funeral. It's about respect for the Court and respect for yourself. If you're walking into court dressed like you're heading out to a club on a Friday night or like you're headed for a day at the beach, how is a Judge going to take you seriously in your custody case? Dressing up shows that you are serious about the issues that you're going to court over. I recommend at the very least a button down shirt and tie with khakis and dress shoes for guys and business casual wear for gals. If you can go in a suit, go in a suit. But if it's something you would wear to a funeral, then you're probably doing it right.
You will likely be sent to Probation to attempt to mediate your case.Most courts will require the Parties to attempt to settle the issues with the help of a mediator from the probation department. It's usually called, "going to probation." This is not probation like in a criminal case or someone that is going to check in on you at different points. Think of it like a mediation. Sometimes the two parties and their attorneys will all sit down together with the probation officer; sometimes it will just be the two attorneys. In some counties, if there are two attorneys on the case, the attorneys can try to work things out and opt out of the probation mediation.
Probation is not court and cannot tell you what to do.Probation is there to try to help you and the other party come to agreements where you can. There is definitely a benefit to keeping the outcome in your own hands (decided by you rather than chancing it with a Judge), so there are times it will be better to give a little and settle than to keep fighting. However, if you feel really strongly about something or you will not agree to something you do not believe is right, you have a right to go before the Judge. The probation officer is not the judge and should not force you into a stipulation. Do not be rude, but just state that you are not comfortable with the proposal and that you desire to go before the Judge. Probation also isn't court in the fact that you do not need to put on a trial for the probation officer. Save that for the Judge. Let the probation department understand your position and what you are looking for, but you do not need to get the probation officer to like you or believe you. If you are able to come up with an agreement, it will be written up into a stipulation and incorporated into a temporary order issued by the Judge.
Going before the Judge.If you cannot agree to any or all of the issues, you will be sent back into the courtroom to appear and argue before the Judge. This could take a while. The Judge will usually hear cases that have settled first. Once you are called, the person who filed the motion first will get to argue first. That side will present what they are looking for and why they should get what they are looking for. Then the other side will do the same thing and have the opportunity to refute any claims that were made that were not true.
Depending on the issue that you are arguing before the Judge, there are going to be some things the other side might say that just don't matter in the big picture. To find in your favor, there are certain things that a Judge must hear and consider. There are many things a Judge may hear that aren't relevant to the issue he or she needs to decide. An experienced lawyer will know what to fight and what to leave alone and not draw attention to.
A lot of people think a motion hearing is going to be like a trial, but it's not. Witnesses are not called. Usually, evidence is not submitted. The hearing consists of the two attorneys making oral arguments before the Court. Sometimes the Judge may look at something one side says is really important if the Judge believes it will be helpful for him or her to be able to make a decision on the issue.
Unless you are pro se (representing yourself) - your job during the hearing is to stay absolutely quiet and calm. Number one rule - DO NOT SPEAK unless the judge specifically asks you a question and your lawyer says it is okay to talk. You hired an attorney, so let your attorney do what you pay them to do.
Once the Judge hears both sides, the Judge will generally take it all under advisement and send out an order in the mail. Most of the time, you will leave court having no idea what the order is going to be. It will usually take anywhere from a few days to a few weeks to receive the order.
Once you get the order, you MUST follow the terms of the order. If you do not, you could be held in contempt. If you notice anything that isn't right in the order, let your attorney know so you can try to fix them as soon as possible.