Affidavits for Temporary Hearings in Family Court
- By: mjgoodwin
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Writing affidavits for (non-complex) temporary hearings in Family Court
By M. J. Goodwin
A temporary hearing, brought when either party files a motion for temporary relief, is the first step into the Family Court process for many litigants. These hearings are set within four weeks of filing. The order that results from the motion for temporary relief serves as a “band aid” measure until such time as the case progresses through the Court system to a final hearing.
The Rules require that the temporary hearing is conducted on affidavits only. That means that the Judge is only going to read written sworn statements. Nobody will testify or “take the stand” absent some really unusual circumstances.
The Rules also limit the affidavits to eight pages. What a litigant uses the eight pages for is critically important to the outcome of the temporary hearing. Every case is different, but there are some common factors that I usually cover in every affidavit.
- The first thing one should do is state why you are in Court today. This needs to be a topic sentence and set the theme for the action. For example, “I find myself in Court today because my spouse has committed adultery.”
- In the next section, a litigant should set out what relief he or she wants from the Court. The Court can’t read your mind. The relief requested can be anything from payment of alimony, to custody of children, to possession of the marital home. Creativity is the only limit here. I continue to be surprised that people go to Court without really having thought about what relief they want ordered. This requires careful consideration. The issues are important: child custody, visitation, child support, alimony, debt, assets and restraining orders.
- Use the rest of the space to fill in why the relief sought is warranted. A little history is OK, but too much will bog down the affidavit.
It is preferable to have professional legal representation at a temporary hearing. Chose a lawyer with significant experience in Family Court. My 22 years in Family Court have helped me develop a sense and feel of what will help a litigant and what will hurt a litigant at a Temporary Hearing. Many times, clients want to start with the date of the marriage and work forward. That is not the best way to proceed, in my opinion. Too much detail is an enemy of Family Court affidavits.
Background information and other details are covered in documents other than the affidavit. This is important to know. It allows more space in the eight pages for substantive matters.
A completely different set of rules exists for complex matters in Family Court. Complex matters most definitely need a competent Family Court attorney.