Sunday, February 18, 2007

The Provisional Hearing

Simply put, the provisional hearing means a temporary hearing. They are generally short and to the point. Quite often, the parties agree to matters before the actual hearing. The purpose here is for preserving as much of the status quo as possible and provides for a transition to a post-marriage life for the parties. Only the Final Hearing determines the issues with anything approaching permanency. Indiana Code 31-15-4-13 specifically deals with this: "The issuance of a provisional order is without prejudice to the rights of the parties or the child as adjudicated at the final hearing in the proceeding." The provisional order ends in one of the following ways: 1) at the Final Hearing, 2) the Petitioner dismisses the Petition for Dissolution, or 3) a petition to modify is filed before the Final Hearing.

If either you or your spouse needs possession of property until the Final Hearing, this needs to be brought up at the provisional hearing. Dividing that property permanently is for the Final Hearing.

We may also request a temporary restraining order. Indiana law allows a temporary restraining order to only property issues. You and your spouse may be restrained from transferring, encumbering, concealing, or in any way disposing of any property, except in the usual course of business or for the necessities of life or granting temporary possession of property to either party. For protecting people, there is a protective order proceeding. The law requires a protective order be filed separately and the joined to the divorce case.

Law allows courts to order counseling. I am aware of one judge who will not order counseling for the parents if one parent objects. He reasons that counseling will have no effect if both parties are not willing to make an effort. I think his reasons are valid. The statute says this about counseling:

The court may require the parties to seek counseling for themselves or for a child of the parties under such terms and conditions that the court considers appropriate if:
(1) either party makes a motion for counseling in an effort to improve conditions of their marriage;
(2) a party, the child of the parties, the child's guardian ad litem or court appointed special advocate, or the court makes a motion for counseling for the child; or
(3) the court makes a motion for counseling for parties who are the parents of a child less than eighteen (18) years of age.
The next statute specifically forbids joint counseling without the consent of both parties or "or "if there is evidence that the other party has demonstrated a pattern of domestic or family violence against a family or household member."


Anonymous said...

It's not clear ... is a provisional hearing required ... particularly in an amicable divorce?

Sam Hasler said...

If you mean an uncontested divorce, then you need to take a look at the topics under "Uncontested Divorces".

Anonymous said...

iam the person who filed for my divorce and my wife has not done anything the courts told us to (parenting classes) and has stated she will not be going to the provisional hearing. can i request for the Dissolution of our marriage at the provisional hearing if she does not show up?

Sam Hasler said...

In Indiana a divorce cannot be final until more 60 days have elapsed since the date the Petition for Dissolution was filed. Please, remember to read the disclaimer that this blog is not for giving advice on specific cases.