Initial Hearing

Within 90 days or so of the initiation of the action, depending on the county and how crowded the docket is, you will have your initial hearing. The hearing is to set initial support, rule on any motion for exclusive possession of the marital residence, rule on any motion for temp. alimony and child support, attorney fees, or other initial motions, and otherwise set initial structure. Fulton County Divorce Attorney Russell Hippe has extensive experience in handling initial hearings throughout the Atlanta area and North Georgia.

Per Uniform Superior Court Rule 24.5, at a temporary hearing, each party is limited to their own testimony and one other live witness but can present additional witnesses testimony by affidavit. The court will set the initial custody, visitation, and support structure, will set initial support, and may allow the payment of attorney fees out of income or marital assets.

This hearing is critical. You have to be well prepared. You need to arrive at the courthouse with your witness early. It will be important to have all of your evidence organized and in an admissible format (properly certified business records for example). Your DRFA will be critical. It must have been on file at least 5 days prior to this hearing. You will be cross examined on your DRFA, so it is critical that it is completely accurate and honest. Most courts will allow for electronic presentation of pictures, video, or audio files, which can be very persuasive. This order will set the tone for the rest of the divorce.

An award of temporary custody differs in its nature and purpose from an award of permanent custody; the temporary award is intended to create an interim arrangement that serves the best interests of the child pending adjudication of the rights of the mother and father, whereas an award of permanent custody constitutes a final adjudication of the rights of the parties. See, Pace v. Pace, 287 Ga. 899 (2010).

In this case, the trial court based its ultimate custody decision at a final trial based on its notes and recollection from the temp. hearing. The mother appealed. The Georgia Supreme Court held that the trial court erred in its reliance on evidence from the temporary hearing. Temporary orders and final orders are not governed by the same rules. In a temporary hearing, only the parties and one additional witness for each side may testify. See, Uniform Superior Court Rule 24.5(A). In addition, minor children cannot testify at temporary hearings absent court authorization. Id. at (B). These rules do not apply at a final hearing. In Pace, the Supreme Court stated: “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.”

Likewise, the fact that one spouse may have make support payments during separation, or prior to a final trial, should not be admissible merely to establish that he or she is able to continue to make these payments. Rather, the final support payments should be based on the evidence and financial circumstances at the time of the final trial. See, McEachern v. McEachern, 260 Ga. 320, 394 S.E.2d 92 (1990) (Evidence of post separation support payments is not admissible in a divorce case unless court determines that the evidence should be permitted for impeachment purposes to prevent a party's perpetrating a fraud upon the court.)