A motion or request for order is the formal process of requesting the court for a specific ruling, action or other decision. In family law proceedings, a party can request the court intervene on certain issues when an agreement cannot be reached. Motions can be filed for a variety of reasons. The filing of a motion or request for order requires the party filing the motion to present their side of the facts and circumstances and explain to the court why they are asking the court to intervene. Either party can file a motion in a divorce case at any time while the case is open, and can seek modification of certain types of orders after the case is closed. The party who is filing the motion is referred to as the moving party and the other is the opposing party. The other party can file a written response to the motion explaining why they oppose the requested order. Often the judge simply reviews the paperwork filed by both parties and then makes its decision.
Family law motions are often filed to resolve the disputed issues in a case where the parties may be in agreement with most other matters surrounding their marriage. This allows the court to render a decision on the disputed issues, and the parties can then sign an agreement resolving the remaining issues. Hiring an attorney to prepare and file a motion or object to a motion can be very expensive and is often an unnecessary expense. A People’s Choice can save you hundreds of dollars by preparing your family law motion and request for order instead of an expensive attorney!
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:
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.
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.
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.
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.
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.
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: