Contested Family Law Issues
If your case is contested by the other party, depending on the issues involved and the complexity of the case, a party may want to seek temporary or immediate orders for several reasons.
If the parties cannot agree on a particular issue, it may be necessary to file a Request for Order (RFO) to obtain an order. These orders can be temporary until a final judgment is entered, or in some instances, they can be permanent. Such orders include:
- Child custody, visitation, and support orders
- Spousal support orders
- Property possession orders
- Payment of debt
- Restraining orders against domestic violence
- Move-out orders
- Move-away orders
- Modification of a previous order
- Motion for bifurcation
- Motion for clarification of the order
Child Custody/Visitation Motions
When it is an issue, a motion can be filed to address custody. The court will also require the parties to attend a preliminary “Mediation Hearing” in an attempt to settle the issues. There is no fee for mediation. If the parties cannot settle the issues, the mediator will submit their “Recommendation” to the court before the scheduled hearing. The mediator does not make any orders. Only a judge can make orders on the issue of visitation and custody, but the court will not make any orders until there has been a mediation. All children in the household who are six years of age and older must attend the mediation.
For first time mediation, there is also a requirement to attend an “Orientation.” The parties involved in custody and visitation disputes must attend separate orientations. Children are not allowed to attend. Parties are excused from attending only when they reside 250 miles or more away from the courthouse. The time for your orientation and mediation will be set when your Order to Show Cause is filed with the court.
Child Support Motions
For matters of child support, California follows a statewide guideline. It is based on the actual income of the parties and the amount of time that each has physical custody of the children. Support is normally based on actual current income, but if a court finds that a spouse has voluntarily reduced income when employment at a higher level is available, support can be based on that spouse’s ability to earn income. California law allows modification of an existing child support order to be made retroactive to the date of filing of the child support motion.
Every order for child or spousal support must include an order assigning the wages of the paying spouse to the recipient spouse or an agency appointed by the court to collect support. The parties can agree in writing that the wage assignment order will not be served on the payor’s employer so long as payments are current.
Spousal Support (Alimony) Motions
In family law matters, child support has priority over spousal support. Spousal support (also known as alimony) will be considered only after children have been adequately provided for and will be based on the finances of the parties after child support has been accommodated. There are also guidelines for spousal support, but they are applied to each case in the judge’s discretion. By law, the court must consider the factors outlined in Family Code Section 4320 when calculating spousal support.
Property Possession Motions
Sometimes it is necessary for one party to obtain an order allowing them temporary use and/or possession of an asset, pending the outcome of the proceeding. In this situation, a motion can be filed seeking a temporary order from the court to formally give them the exclusive right of possession and use of such property.
Debt Payment Orders
These orders are to obtain a decision by the court that will require one party or another, or both, to make payments on certain debts or obligations until the issues are resolved. Sometimes one party may be ordered by the court to make the car payment on a car that the other party has in their possession. Often these types of orders are rendered when there is a large discrepancy in the parties’ incomes which make it a severe hardship on one of the parties to make payments on certain debts after the parties’ separation.
Restraining orders are direct orders issued from the court. Temporary restraining orders can be issued without a formal hearing and are intended to protect a person from the actions of another. In divorce cases, temporary restraining orders are often granted for two reasons. Due to the nature of divorces, one or both of the spouses may be fearful that the divorce proceeding will cause the other to become angry or vindictive. The angry party may threaten or try to cause harm to the other. The second reason involves the assets of the marriage. A temporary restraining order can order the parties not to dispose of any of the marital assets during the pendency of the divorce proceeding. After a temporary restraining order has been issued, a hearing is held where both sides can present their cases. The judge then rules whether to lift the order or make it permanent.
Move-out and Move-away Orders
These orders can be difficult to obtain. In particular, move-out orders are rarely issued by the court unless there has been domestic violence. Move-away orders are usually sought when one parent who has custody of a child wants to move with the child, usually out-of-state or a substantial distance from the other parent. The court will consider a number of questions before issuing a modification of custody decision or a move-away order. Examples include:
- Have circumstances changed since the original order for custody and visitation was issued?
- Is the purpose of the move to prevent the noncustodial parent from having contact with the child?
- Is a move out of state going to be detrimental or beneficial to the child?
- If the parents have joint or shared physical custody, how much time has the child been spending with each?