The Case For The Court To Promulgate A Standing Order With The First Pleading In A Divorce Action

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, this isn’t a good way to get started in 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 as well. Many clients perceive that when their lawyer tells them “like it is,” their lawyer is not fully “on their side.” At least with respect to communicating the “ground rules,” there may be a solution.

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 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 a tit for tat response.

So, what kind of solutions is available to prevent the undermining of confidence between clients and their attorneys and to let the parties start where they ultimately get anyway? Basically, how can attorneys convert a process from one where clients believe that the ground rules are fashioned by the whim of the parties, and to understand 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 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.

Can this work? The courts in Travis County, Texas think so. In that jurisdiction, the Court has promulgated a Standing Order dealing with how 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 tells the litigants what they are authorized by the court to do, thereby maintaining the status quo. Further, the Travis County, Texas 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 fourteen 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 fourteen 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 obtained by emailing your request to: .(JavaScript must be enabled to view this e-mail address).

I spoke to the Court Administrator of Travis County to see if the Standing Order made a difference to the court and administrative personnel. I was told that since the Standing Order was enacted on January 1, 2005, judicial and administrative time has been cut down. The Order substantially decreased litigants coming to court requesting emergent relief. With the courts so overburden, 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.

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. It 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, please 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 client’s achieve a fair result without too much bloodshed.