The Case for the Court to Promulgate a Standing Order

All family law practitioners know that there are certain actions that their clients cannot take without court permission, and if done, their clients will be sanctioned by the court. One problem is that the very act of explaining these ground rules to a client often creates an adversarial relationship between the client and his or her attorney. Given that this discussion with one's client needs to take place at the first meeting, such a conversation may not be a good way to get started with what needs to be a relationship of trust. Clients want their own attorney to represent them with full vigor, but an attorney also needs to be an agent of reality. Many clients perceive that when their lawyer tells them “like it is,” their lawyer is not fully “on their side.” Luckily, at least with respect to communicating the “ground rules,” there may be a solution to this problem.

Pleadings

In most jurisdictions, without a court's prior permission, a litigant cannot leave the state with her or his children; cannot dissipate assets; and essentially must maintain the status quo. Once most litigants truly understand those rules, they will follow them even though they might prefer otherwise. However, if those rules are not well established at the outset or, if a client chooses to violate those prohibitions, the response will almost certainly be a motion or a similar pleading from the other side. Inevitably, such a pleading will be one-sided, i.e., it will only seek to impose restraints on the misbehaving party. A typical pleading or motion will request the other spouse to pay spousal and child support; to maintain health, automobile, and life insurance; and, to enjoin the dissipation of marital assets. In short, this pleading whether in response to misbehavior or just to put pressure on the spouse, can get the whole divorce process off on the wrong foot. This is especially true because most courts will make these restraints mutual anyway, and this type of motion or pleading practice merely elevates the tone of the divorce, encouraging each party to respond in kind.

So, what kind of solution is available to prevent the undermining of confidence between clients and their attorneys and to let the parties start where they should ultimately end up anyway? Basically, how can attorneys handle a process in which clients believe that the ground rules are fashioned by the whim of the parties, and explain that one does not bargain to maintain the status quo? The status quo is where you start.

One solution is to have a third party promulgate the rules. Where possible, as has been done in some jurisdictions, the family court can promulgate a Standing Order that sets forth each party's duties and obligations from the outset. Where one's local courts are not prepared to go in that direction, even a “neutral” pamphlet from a local or state bar association can be used to inform clients as to appropriate behavior. Either way, the source of information about the need to maintain a status quo during the course of the litigation would not be one's own attorney.

How It Works

Can this work? The courts in Travis County, TX, think so. In that jurisdiction, the court has promulgated a Standing Order addressing the manner in which spouses must deal with each other, their children, and their property. It calls for the preservation of property, the preservation of business and personal records, and the continued maintenance of insurance coverage. It informs the litigants what they are authorized by the court to do, thereby maintaining the status quo. Further, the Travis County, TX, Standing Order encourages parties to use mediation or other alternate dispute resolution methods.

For example, there is a section entitled, “No Disruption of Children.” It states the following:

Both parties are ORDERED to refrain from doing the following acts concerning any children who are subjects of this case.

1.1 Removing the children from the State of Texas, acting directly or in concert with others, without the written agreement of both parties or an order of this Court.

1.2 Disrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court.

1.3 Hiding or secreting the children from the other parent or changing the children's current place of abode, without the written agreement of both parents or an order of this Court.

1.4 Disturbing the peace of the children.

In the section entitled “Preservation of Property and Use of Funds During Divorce,” there are 14 prohibitions. For example, a party cannot misrepresent or refuse to disclose to the other party or to the court the existence, amount or location of any property of one or both of the parties. Moreover, a party cannot discontinue or reduce the withholding for federal income taxes on wages or salary while the suit is pending.

The Order is attached to the initial pleading and is applicable to both parties. It takes effect upon filing of the original pleading and remains in full force and effect as a temporary restraining order for fourteen days after the date of the filing of the original pleading. A party may contest the Order on or before the 14 days. If there is no challenge to the Order, it remains in full force and effect as a temporary injunction until further order of the Court. The Order is no longer effective once a court signs a final judgment. All the issues dealt with in the Standing Order are part of the general rules and procedures for Travis County. The complete Travis County Standing Order can be found at http://www.meislikfamilylaw.com/TravisCountyOrder.php.

According to the Court Administrator of Travis County, since the Standing Order was enacted on Jan. 1, 2005, judicial and administrative time has been cut down. The Order substantially decreased the number of litigants coming to court requesting emergent relief. With the courts so overburdened, an Order such as this will allow judges more time to deal with the more complex issues that are brought before them. It will also cut down on administrative time and expense.

Benefits for Attorneys

From an attorney's perspective, this Order would level the playing field and maintain the status quo. It acts as a behavioral guideline for the litigants and will help to reduce the animosity and distrust between them. Moreover, it sets the tone for the entire case, making the litigants feel that they have the protection of the court from the beginning. This type of Order will help establish a firm but calm tone for the way each litigant deals with the other. Obtaining the Order is a no-brainer and a money-saver. It merely sets forth what is the law of most jurisdictions in simple, clear, concise terms. The litigants will walk away knowing what to do and what not to do in order to avoid a long drawn litigation process.

If your county does not have a Standing Order or a “neutral” pamphlet, speak to your local Bar Association about drafting one. Divorce is tough, emotional, painful and costly. As attorneys, we have an obligation to streamline the process to help our clients achieve a fair result without too much bloodshed.

Karen Meislik is a Principal in the Montclair, NJ, law firm of Meislik & Meislik and a member of this newsletter's Board of Editors. She practices family law exclusively and is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.

All family law practitioners know that there are certain actions that their clients cannot take without court permission, and if done, their clients will be sanctioned by the court. One problem is that the very act of explaining these ground rules to a client often creates an adversarial relationship between the client and his or her attorney. Given that this discussion with one's client needs to take place at the first meeting, such a conversation may not be a good way to get started with what needs to be a relationship of trust. Clients want their own attorney to represent them with full vigor, but an attorney also needs to be an agent of reality. Many clients perceive that when their lawyer tells them “like it is,” their lawyer is not fully “on their side.” Luckily, at least with respect to communicating the “ground rules,” there may be a solution to this problem.

Pleadings

In most jurisdictions, without a court's prior permission, a litigant cannot leave the state with her or his children; cannot dissipate assets; and essentially must maintain the status quo. Once most litigants truly understand those rules, they will follow them even though they might prefer otherwise. However, if those rules are not well established at the outset or, if a client chooses to violate those prohibitions, the response will almost certainly be a motion or a similar pleading from the other side. Inevitably, such a pleading will be one-sided, i.e., it will only seek to impose restraints on the misbehaving party. A typical pleading or motion will request the other spouse to pay spousal and child support; to maintain health, automobile, and life insurance; and, to enjoin the dissipation of marital assets. In short, this pleading whether in response to misbehavior or just to put pressure on the spouse, can get the whole divorce process off on the wrong foot. This is especially true because most courts will make these restraints mutual anyway, and this type of motion or pleading practice merely elevates the tone of the divorce, encouraging each party to respond in kind.

So, what kind of solution is available to prevent the undermining of confidence between clients and their attorneys and to let the parties start where they should ultimately end up anyway? Basically, how can attorneys handle a process in which clients believe that the ground rules are fashioned by the whim of the parties, and explain that one does not bargain to maintain the status quo? The status quo is where you start.

One solution is to have a third party promulgate the rules. Where possible, as has been done in some jurisdictions, the family court can promulgate a Standing Order that sets forth each party's duties and obligations from the outset. Where one's local courts are not prepared to go in that direction, even a “neutral” pamphlet from a local or state bar association can be used to inform clients as to appropriate behavior. Either way, the source of information about the need to maintain a status quo during the course of the litigation would not be one's own attorney.

How It Works

Can this work? The courts in Travis County, TX, think so. In that jurisdiction, the court has promulgated a Standing Order addressing the manner in which spouses must deal with each other, their children, and their property. It calls for the preservation of property, the preservation of business and personal records, and the continued maintenance of insurance coverage. It informs the litigants what they are authorized by the court to do, thereby maintaining the status quo. Further, the Travis County, TX, Standing Order encourages parties to use mediation or other alternate dispute resolution methods.

For example, there is a section entitled, “No Disruption of Children.” It states the following:

Both parties are ORDERED to refrain from doing the following acts concerning any children who are subjects of this case.

1.1 Removing the children from the State of Texas, acting directly or in concert with others, without the written agreement of both parties or an order of this Court.

1.2 Disrupting or withdrawing the children from the school or day-care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court.

1.3 Hiding or secreting the children from the other parent or changing the children's current place of abode, without the written agreement of both parents or an order of this Court.

1.4 Disturbing the peace of the children.

In the section entitled “Preservation of Property and Use of Funds During Divorce,” there are 14 prohibitions. For example, a party cannot misrepresent or refuse to disclose to the other party or to the court the existence, amount or location of any property of one or both of the parties. Moreover, a party cannot discontinue or reduce the withholding for federal income taxes on wages or salary while the suit is pending.

The Order is attached to the initial pleading and is applicable to both parties. It takes effect upon filing of the original pleading and remains in full force and effect as a temporary restraining order for fourteen days after the date of the filing of the original pleading. A party may contest the Order on or before the 14 days. If there is no challenge to the Order, it remains in full force and effect as a temporary injunction until further order of the Court. The Order is no longer effective once a court signs a final judgment. All the issues dealt with in the Standing Order are part of the general rules and procedures for Travis County. The complete Travis County Standing Order can be found at http://www.meislikfamilylaw.com/TravisCountyOrder.php.

According to the Court Administrator of Travis County, since the Standing Order was enacted on Jan. 1, 2005, judicial and administrative time has been cut down. The Order substantially decreased the number of litigants coming to court requesting emergent relief. With the courts so overburdened, an Order such as this will allow judges more time to deal with the more complex issues that are brought before them. It will also cut down on administrative time and expense.

Benefits for Attorneys

From an attorney's perspective, this Order would level the playing field and maintain the status quo. It acts as a behavioral guideline for the litigants and will help to reduce the animosity and distrust between them. Moreover, it sets the tone for the entire case, making the litigants feel that they have the protection of the court from the beginning. This type of Order will help establish a firm but calm tone for the way each litigant deals with the other. Obtaining the Order is a no-brainer and a money-saver. It merely sets forth what is the law of most jurisdictions in simple, clear, concise terms. The litigants will walk away knowing what to do and what not to do in order to avoid a long drawn litigation process.

If your county does not have a Standing Order or a “neutral” pamphlet, speak to your local Bar Association about drafting one. Divorce is tough, emotional, painful and costly. As attorneys, we have an obligation to streamline the process to help our clients achieve a fair result without too much bloodshed.

Karen Meislik is a Principal in the Montclair, NJ, law firm of Meislik & Meislik and a member of this newsletter's Board of Editors. She practices family law exclusively and is certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.