Before bedtime, I like to read the children fairy tales filled with magic. These centuries-old folk stories often end with the well-known phrase “and they lived happily ever after.” That a long and happy life is not granted to every couple is a fact I encounter regularly in my practice. Not all divorces are the same.
While some couples amicably formalize the irreparable breakdown of their marriage through a covenant attached to the divorce decree, other couples engage in fierce disputes over spousal and child support and/or the division of shared assets.
Spouses are obligated to care for and raise their children. They are also obliged to cohabit unless there are significant reasons preventing this. The obligation to live together ceases if a request for divorce or a request for legal separation has been filed, or if a decree regarding one or more provisional measures is in effect.
It goes without saying that a divorce is a turbulent period for both parties, during which uncertainty prevails. When cohabitation abruptly ends without consultation, financial problems often quickly arise. After all, two separate households usually involve additional costs. A provisional measure can provide clarity for the couple as long as the divorce has not been finalized. Who will leave the marital home? Where will the children live, and how will the visitation schedule be arranged? What about support payments? If the parties cannot reach an agreement themselves, a provisional measure may offer a solution.
Through a provisional measure, one can request the court to decide who may continue to use the marital home or certain property – to the exclusion of the other – during the divorce proceedings, who will have custody of the children during the divorce, the amount to be paid for the care and upbringing of the children by the spouse not entrusted with custody, the allocation of parenting and caregiving responsibilities, visitation arrangements, a system for exchanging information or consulting each other about the minor children, or a provisional amount that one spouse must pay for the other spouse’s maintenance.
A provisional measure issued by the court applies for the duration of the divorce proceedings. It is therefore possible that the amount of support determined in the provisional measure may be higher or lower during the (subsequent) divorce procedure.
The court makes a balancing of interests in which all circumstances of the case are considered. For example, each party has an equal right to remain in the marital rental or owned home. There may even be situations in which the spouse who owns the marital home (for instance, in the case of a prenuptial agreement) must leave so that the other spouse can continue living there until the divorce proceedings are concluded. Who takes care of the children? Does one party work from home? Does one party have a job that requires frequent travel abroad? Is the home adapted to specific needs? The court will take such circumstances into account when deciding on the exclusive use of the marital home by one of the parties during the divorce proceedings. These questions are not determined on a “first come, first served” basis.
It must also be considered that the other party may file a counter-request after being informed of the provisional measure request.
Decisions of the court in provisional measures cannot be appealed. However, it is possible to request a new measure based on changed circumstances. This might be the case if the support-paying spouse is suddenly dismissed from work or if the spouse granted exclusive use of the marital home decides to go on a year-long world trip. Because a provisional measure is urgent, the request is typically heard by the court within three (3) weeks of filing, and the judge issues a decision as soon as possible after the hearing. A provisional measure can be requested before filing for divorce, but it loses effect if no divorce or legal separation request is filed with the court within four weeks after the provisional measure is issued.
If you realize that your marriage is not a fairy tale and you do not intend to continue living unhappily, it is wise to consider divorce and plan how you will manage your life during the proceedings based on your personal circumstances.
Ideally, both parties are willing and able to reach reasonable agreements. Unfortunately, divorcing couples often encounter difficult obstacles, making mutual agreement impossible. If you face a spouse who is obstructive, a provisional measure can provide some clarity and relief. If you have questions after reading this article, please feel free to contact me.