Divorce: What Are My Rights Before It Is Final?


Many people wonder what laws or rules govern the relationship between the parties once a divorce action is commenced by service of the Summons and Petition, but before the final divorce decree is entered. To many parties, it may seem as though they are “limbo land” mentally and emotionally until the divorce is finalized, but what are their rights and obligations legally? Of course, each case must be analyzed according to its specific facts, but there are some general guiding principles to keep in mind.

Restraining Provisions in the Summons

Every Summons served in a divorce action contains specific provisions that govern the parties while the matter works its way through the system, which include:

  • Neither party may dispose of any assets except: (i) for the necessities of life (including the necessary generation of income or preservation of assets); (ii) for retaining an attorney to represent a party in the divorce proceeding; or (iii) by a written agreement between the parties;
  • Neither party can harass the other party; and
  • Neither party may cancel an insurance policy or make any other change to an insurance policy with regard to coverage or beneficiary designation.

If a party violates any of these provisions, that party may be subject to sanctions imposed by the court.

Motion for Temporary Relief

Additionally, a party may also bring a motion for temporary relief during the pendency of the divorce to obtain a court order addressing matters such as:

  • Temporary custody and parenting time of the children of the parties;
  • Temporary maintenance of either spouse;
  • Temporary child support;
  • Temporary costs and reasonable attorney fees; and
  • Awarding the temporary use and possession of the family home, furniture, household goods, automobiles, and other property of the parties.

When a Temporary Relief Order is obtained, it will govern the legal rights and obligations of the parties until the divorce is finalized, unless another interim order is granted and supersedes the earlier order.

Specific Orders Regarding the Children

As mentioned above, a party may bring a Motion for Temporary Relief to request that the court decide issues such as custody, parenting time and child support while the case is making its way through the system. However, without a court order in place, the “default rule” regarding custody is that the parties share joint legal and joint physical custody of the child. Additionally, the expectation is that the parties will equitably share expenses for the child during the pendency of the action absent a court order stating otherwise.

It is important to note that a temporary order cannot deny parenting time to a parent unless the court finds that the parenting time is likely to cause physical or emotional harm to the child. Further, in situations where a party is successfully able to establish that there is an immediate danger of physical harm to a child by the other parent, a court is authorized to grant an ex parte restraining order that prevents the other parent from having parenting time with the child.

Disputes Are Common

Unfortunately, disputes regarding custody, parenting time, child support and property division/disposition (among other things) often arise in the middle of a divorce because the parties are not able to communicate effectively given the emotional nature of the divorce. In these circumstances, it may be a good idea to seek legal counsel in order to know your rights and responsibilities in your specific case. At that point, a determination can be made as to whether seeking a court order is right for you.