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What can I do if I need a Probate and Family Court order right away (temporary orders)?

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By

Massachusetts Law Reform Institute

Reviewed

February 2024

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It can take months to get a judgment, the final decision, in your case. If you need the judge to make an order about something right away, you can file a motion for a temporary order. This can include orders about:

custody,
visitation,
child support,
urgent financial issues,
who can live in the marital home or apartment, and
anything else that you need guidance on during the case.

A motion for a temporary order asks the court to deal with important issues while you wait for the final hearing. If you get a temporary order, it will last until the judge makes a new order or a final decision.

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How do I file a motion for temporary orders?

Contact the court that is handling your case. Each Massachusetts Probate court also has a virtual registry. You can talk to the registry by zoom.

You can also get information about filing a temporary motion from the Massachusetts Court Service Center.

Ask to talk to someone about filing your motion.

Tell them about the motion you need to file. Tell them if it is an emergency. Ask:

How do I file my motion for a temporary order?
What do I need to do to schedule a hearing on my motion?
Do I need to "serve" or give notice of the hearing to the other party?

Later, you might need to file a Motion to further a temporary orders. You may need to file a motion if there is a very important change in your situation, if there is an emergency, or if a new issue comes up that you need to address.

What papers do I need to file?

When you file a motion, you need to file:

A motion form.
- You can also ask for it at the court clerk's office.
- Write on the motion form what you want the court to order.
A Proposed Order form.
- Write what you want the court to order.
You may also be asked to file an Affidavit supporting your motion.
- In an affidavit you swear that everything you say is true.
- Write the facts the judge needs to know about
  - what happened, and
  - when.

How do I serve a motion for a temporary order?

Serving the motion when you serve the complaint

Give the motion, affidavit, and proposed orders to the sheriff or constable to serve with the complaint. Write down the time, date, and place of the hearing on the motion.

Serving a motion later

Mail the motion, affidavit, and proposed orders to the other party. Be sure to write down the time, date, and place of the hearing on the motion and include that information in the mailing: this is called a “Notice of Hearing.” You must mail it at least 10 days before the hearing; or
You or a friend can hand the motion, affidavit, and proposed orders to the person you are taking to court. You or your friend must hand the other party the papers at least 7 days before the hearing.

With very few exceptions, the Court will not hear a motion unless a copy of the motion and notice of the location, date and time of the hearing has been delivered to the other party through one of these acceptable means.

What happens at the motion hearing?

Go to court on the date of the motion hearing. Find the right courtroom. Tell the court room clerk that you are there. Follow their instructions.

The clerk may tell you to go to the Probation Department first.

If you were able to work out an agreement before you see the judge

If you can work out an agreement, you go into the courtroom to ask the judge to approve it.

If you cannot work out an agreement

If you do not work out an agreement, you will have a hearing. When you get into the courtroom, wait for the clerk to call your case. When the clerk calls your case, you and the other person will stand in front of the judge. The judge will give you both a chance to speak. The judge will then decide the motion based on what the two of you say and the papers you filed.

The judge will write up a temporary order with the decision. The judge may write up the order the same day and you will get a copy before you leave the court. If the judge writes the order later, you will get a copy in the mail.

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