I still often see other attorneys filing motions for temporary relief with their initial complaint even if the status quo is acceptable to their client. Obviously if one expects the status quo to change shortly (for example, the other spouse is threatening to stop providing financial support or the other parent is threatening to remove the children from the state), filing such motions is advisable even if the status quo is acceptable. In that circumstance, one needs the resulting court order to prevent the other party from taking unilateral action that upsets the status quo. Absent that circumstance, there are three good reasons not to file such motions when the status quo is acceptable.
The first reason is cost. The $25.00 filing fee for the motion is only a minute part of the cost of such motions. A temporary motion involves much document generation, which means a lot of attorney’s fees if one isn’t pro se. One needs to draft the motion and the client’s financial declaration. One has to draft the temporary hearing background information sheet and, if custody or visitation is in dispute, a proposed parenting plan. Then one needs to draft affidavits to support the motion. One will need to spend time developing and implementing a strategy to prevail in the motion. There will be time spent traveling to and from the motion, attending the motion, and (often) waiting in court for hearing to be called. Most family law attorneys bill by the hour and the hours accrue rapidly for contested temporary motions. Fees for such motions are rarely under $1,000.00 and sometimes top $10,000.00. If the status quo is acceptable spending these funds to obtain a temporary order is often a waste.
The second reason is that filing such motions sends the wrong signals to the opposing party and that party’s attorney, as it communicates that the status quo is not actually acceptable to one’s client. When the status quo is actually reasonable a motion that implies it isn’t creates the inference that one’s client is greedy and litigious. Most attorneys and litigants find it difficult to negotiate with greedy, litigious opposing parties, so they naturally respond by anticipating difficult litigation. Rather then working towards a reasonable resolution the parties are now girding for battle. If one seeks temporary relief when the status quo is reasonable, do not be surprised when the matter goes from calm to explosive.
The final reason to avoid filing such motions is that when the status quo is acceptable, one is more likely to get a worse resolution from the court rather than a better resolution. Typically the status quo is acceptable because it is reasonable-to-generous (if it wasn’t reasonable, it probably wouldn’t be acceptable). Doing better-than-reasonable in the family court is unlikely and, if the family court believes the status quo to have been generous to one’s client, the family court is likely to be less generous–and perhaps make one’s client pay some temporary attorney’s fees.
Given these concerns, such reflexive filings are potentially malpractice. Unless there’s an articulable reason to file a motion for temporary relief when the status quo is acceptable, one shouldn’t do it.
I agree. I often find this difficult to explain to clients whose “friends” have told them that the first step in Family Court is a temporary hearing.
Wow! I just told a friend the same thing this morning. I just saw this and was able top make him feel better by printing this out for him. Thanks, as always, for your insightful, practical advise Greg.