Temporary Orders Affidavits

What is the difference between temporary orders and temporary restraining orders?

Temporary Restraining Orders

In family law, sometimes temporary restraining orders are made at the beginning of the divorce case.  These orders are general orders and usually are not specific to the facts of a certain case.  In custody cases between parents who were not married, they are usually limited to an order that the minor child cannot be permanently removed from the state of Ohio.  In divorce cases, temporary restraining orders require that the other party refrain from harassing you at work or at home, selling, hiding or giving away assets, incurring debt in your name, changing beneficiaries of life insurance, cancelling health insurance and taking the minor child and permanently leaving the state.

Temporary Orders

In an Ohio divorce or custody cases, Temporary Orders are orders which the court issues to establish how the parties are going to operate while their case is pending.  Temporary orders are VERY important because even though they are temporary, they often set a precedent that determines how the case is going to turn out at trial.  For this reason, it is very important that for both parties and witnesses giving affidavits in support of temporary orders to do their best job of collecting and presenting information in support of the position they are supporting in their temporary orders affidavit.   

For parties who are or have been married, temporary orders are governed by the local rules of the county/court, and by the Ohio Rules of Civil Procedure, Civil Rule 75.  You can obtain a copy of the Ohio Rules of Civil Procedure, which includes Civil Rule 75, by clicking (you may have to press both the Ctrl AND click your mouse) this link:

http://www.sconet.state.oh.us/Rules/civil/CivilProcedure.pdf

If the link did not work for you, you can copy and paste the link into your internet browser.

For parties who were never married, temporary orders in custody, visitation, support and paternity matters are governed by the local rules of the county/court and by the Ohio Revised Code,

http://codes.ohio.gov/orc/3111.111

When does a court decide temporary orders?   

This depends on the local practice of the court and the county in which your case is pending.  In Columbus Ohio divorce lawyers and custody attorneys usually file a motion for temporary orders when the file the complaint for divorce, custody or visitation.

 

In many counties, a court will not issue temporary orders unless one party asks the court to make temporary orders.  In others, the court always issues temporary orders, whether the parties ask for it or not.  In some counties, each Judge or Magistrate has a different procedure regarding temporary orders.  This is something that you should ask your attorney about if you have an attorney. 

 

If you do not have an attorney, the Magistrate in your case may have some written instructions or procedures regarding temporary orders.  Most Judges or Magistrates do not have any written instructions regarding temporary orders prepared.  In all cases you should be aware of the requirements of that county and court’s local rules regarding temporary orders.  You can get these local rules from the court’s website, from the local library, or from the clerk of court, depending on which county you are in.  Your attorney should have a copy of these local rules as well.

Some counties issue temporary orders within 14 days of the case being filed, which is often before the Defendant has even been served with the summons and complaint.  This gives an unfair advantage to the Plaintiff, (the party who filed the case) because the court issues temporary orders with one-sided information.  However, this encourages the Defendant to act immediately upon being served with the summons and complaint.  If the Defendant comes to the first hearing and says they need a continuance to obtain an attorney, the temporary orders will remain in place until they participate in the proceedings and ask the court to change the temporary orders. 

 

How does the court decide temporary orders? 

 

It depends on the local practice of the court and the county in which your case is pending.  Some courts allow oral hearing, but many require the submission of Affidavits.  Practices vary from county to county, and even within a county, may vary depending on which Judge or Magistrate is deciding your temporary orders. The practice for temporary orders may also vary depending on whether the parties to the case have ever been married. If you want to look at the local rules for your county, you may be able to find them on the county’s website, or on our website by clicking here.

 

What is an Affidavit?

An affidavit is a written statement which is given under oath. This means that the person giving the affidavit has read EVERYTHING in the affidavit, and then swears before a notary, IN PERSON, that all of the information contained in the affidavit is true to the best of their knowledge.  A person who knowingly gives a false affidavit is subject to penalty of perjury.  A person should never sign an affidavit which contains a false statement.

Is there a form for temporary orders affidavits?

Temporary affidavits are like having a mini-trial, only in writing instead of in front of the Judge or Magistrate.  There is a lot of information that must be included in good temporary orders affidavits.  Some counties have forms which contain SOME, but not all, of the information the court should have to make temporary orders. 

Here are some examples of forms that Ohio counties use.  These forms contain SOME of the relevant information the court needs:

http://www.co.delaware.oh.us/clerk/Forms/Form%202%20temporary%20orders.pdf

http://www.co.delaware.oh.us/clerk/Forms/Form%201%20temporary%20orders.pdf

http://www.domesticcourt.org/resources/form/202_Motion_and_Affidavit_for_Temporary_Orders.pdf

http://www.perfectprobate.com/pdf/hamiltondomesticrelations/2456.pdf

http://www.co.greene.oh.us/coc/forms/cl_Affidavit_of_Income_and_Expenses_and_Financial_Disclosure.pdf

http://crawfordcocpcourt.org/Local%20Court%20Rules%20HTML/Counter%20Affidavit.pdf

www.hamilton-co.org/DOMESTIC/Court%20Forms/Court-Forms/3-2.doc

http://www.franklincountyohio.gov/clerk/docs/domestic/motionstatus.pdf

 

We have never yet seen a form which contains all of the information which should be submitted with temporary orders affidavits.  Especially when there are children involved, it is nearly impossible to create the perfect form for temporary orders affidavits.  This means that in addition to whatever local forms a county uses for temporary orders affidavits (if any ), the party to the litigation also needs to submit narrative affidavits.

What are narrative affidavits?

Narrative Affidavits are Affidavits which contain or have attached all the information that the court should know when issuing temporary orders, (but is not included in the forms each county has which relate to temporary orders).  Parties or attorneys must take it upon themselves to figure out what information is relevant to the case, and include it in or attach it to their affidavit.  For a blank affidavit from click here. 

In narrative temporary orders affidavits, people tell the Magistrate, under oath, information which they think is relative to issues which are decided on temporary orders. 

While it is helpful to TELL the court what the affiant (person giving the affidavit) has to say, it is also important to SHOW the court what you mean.  For example, it is one thing to say that a person earns $10.00 an hour, but it is much more persuasive to SHOW the court a paystub, or, even better, tax returns with attached W-2s or 1099s if you have them.  It is one thing to say that a person’s hours at work have been decreased, but it is much more persuasive to SHOW the magistrate an affidavit from your employer which states that your hours have been decreased and why they have been decreased.

You do not need to include all of the information in each and every affidavit.  Most witnesses will only have information about some of the topics, but not all of them.

Temporary Order Affidavits for parties who have children (Married & Unmarried parents)

When creating temporary orders affidavits in cases where children are involved, the court is going to want to know all relevant information, including, but not limited to, the following topics (if known):

·         The names and dates of birth of all children involved

·         The names, addresses and ages of all parents

·         Whether either parent has children from another relationship

·         Whether either parent pays or receives child support for a child from another relationship

·         How much each party earns or is capable of earning

·         The education and earning history of each party

·         Each party’s employer(s) or sources of income and work schedule

·         Whether either party or the child receives any disability or non-means tested payments

·         Whether either party receives spousal support, bonuses, overtime, unemployment, workers compensation, pension payments, social security or any type of monthly income, as that term is defined by Ohio law

·         Whether the child has health insurance and the cost of health insurance for the child (over and above the cost of health insurance for the parent

·         The cost of day care for the child

·         Whether either parent pays any union dues

·         Any expenses that either parent pays on behalf of the child

·         The physical and mental health of both parents and the child

·         Any special needs of the child

·         If either parent is the primary caretaker of the child

·         What parenting time schedule each parent should have with the child (usually AT LEAST) as much as that county’s local rule visitation schedule permits, but very possibly more time than the local visitation schedule.  Click here to see your county’s schedule

·         Which parent should be the residential parent while the case is pending (almost always the mother if the parties are not married, except under rare and unusual circumstances), or if both parents should be the residential parent while the case is pending (rare in cases where the parents were never married)

·         Which parent should pay child support, if either.

·         Whether child support is requested according to Ohio child support guidelines, or whether an upward or downward deviation in child support should be ordered, and why.

·         A child support guidelines worksheet

·         If either party should be required to pay part or all of the other party’s attorney fees (rarely awarded on temporary orders where the parties were never married)

·         Whether any parenting classes or court ordered counseling should be ordered for one or both parents and/or the child

·         Who should pay for day care while the case is pending

·         Any necessary orders regarding transportation, telephone access, clothing of the child, etc. if not covered by your county’s local rule.

·         The wishes of the child’s parents regarding the child’s care;

·         The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest;

·         The child’s adjustment to the child’s home, school, and community;

·         The mental and physical health of all persons involved in the situation;

·         The parent more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights;

·         Whether either parent has failed to support the child

·         Whether either parent previously has been charged with, convicted of or pleaded guilty to any criminal offense, or has been involved in domestic violence or with children’s services.

·         Whether either parent has established a residence, or is planning to establish a residence, outside the county or outside the state.

·         Any information that shows that either parent is good for the child

·         Any information that shows that either parent has issues, problems or judgment that is not good for the child

·         Any other information relevant to the situation

 

Temporary Order Affidavits for parties who are married

 

If parties who are married are filing temporary orders affidavits they should include the following information, if known:

 

·         The names, addresses and and ages of all parties

·         How much each party earns or is capable of earning

·         The education and earning history of each party

·         Each party’s employer(s) or sources of income

·         Whether either party receives any disability or non-means tested payments

·         Whether either party receives spousal support, bonuses, overtime, unemployment, workers compensation, pension payments, social security or any type of monthly income, as that term is defined by Ohio law

·         Whether either party has health insurance and the cost of health

·         Any expenses that either party pays on behalf of the other

·         The physical and mental health of both parties

·         Any special needs of either party

·         Whether spousal support is requested

·         Which party should pay spousal support, and how much they should pay

·         If either party should be required to pay part or all of the other party’s attorney fees, and how much money is requested for attorney fees

·         Whether any anger management classes should be ordered for either party (usually in domestic relations situations, more likely to be ordered if children are involved)

·         Any necessary orders regarding use of the marital residence or vehicles during the divorce (rarely ordered as part of temporary orders)

·         All of the debts and monthly payments of both parties, including credit cards, student loans, mortgages, car payments, rents, leases, loans, and any other monthly obligation

·         Monthly utilities, insurance, taxes, living expenses and budget of both parties

·         Requested orders regarding payment of debts

·         Any other issue relevant to the parties’ situation

In addition, if the parties have children, they should include all of the bullet point information listed in the section directly above (titled Temporary Order Affidavits for parties who have children (Married & Unmarried parents)

 

DON’T FORGET!

·         You must file your temporary orders affidavits with the clerk of court on or before the day the Judge or Magistrate has ordered they are due. 

·         DO NOT PROCRASTINATE.  If you discover that it is too hard to do and you need to hire an attorney, your attorney is going to have a very difficult time trying to put together temporary orders affidavits in a short period of time.  It is a lot of work.  

·         You must serve a copy of your temporary orders affidavits on all parties to the case and the guardian ad litem, if any.  You must put a Certificate of Service at the end of the affidavit which says that you did this.

·         Your affidavits must have the case caption at the top of the affidavit

·         Your county may require your affidavits to be double spaced

·         Your county may limit number of total pages your affidavits can have in affidavits.  Most of the time attachments and exhibits do not count  toward the total page count

·         Affidavits must be notarized

 

The information provided in this web site is applicable in the state of

Ohio and is provided as a public service. Although Virginia Cornwell is a Columbus Ohio Divorce Lawyer and Columbus Custody Attorney, viewing the information in this web

site does not constitute an attorney-client communication, and acting upon

information obtained from this web site does not create an attorney-client

relationship. If you would like to discuss the application of the law to your

fact situation, or if you would like additional information, please call the Law

Offices of Virginia C. Cornwell at 614-225-9316 to schedule a consultation.

 

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