How to Obtain The Best Possible Outcome When You Have to Go to Court in Your Family Law Case
Four Steps to Improve Your Chances of Getting What You Desire In Family Law Hearings
- If You Are the Movant Submit Terrific Papers.
- Opposition Papers Should Be Filed As Early As Possible.
- Opposing Papers Should Attack the Weakness of The Movant’s Papers.
- Consider Telling Your Attorney You Don’t Want An Objection to The Evidence Pleading Filed.
In a divorce proceeding one spouse or both may seek temporary orders before the divorce is over on a variety of issues by filing a written paper called a Request for Orders (formerly known as an Order to Show Cause or Motion). Common issues are spousal support, child support and custody including “move away” orders giving one spouse the right to leave the state or city, and orders concerning small businesses owned jointly by spouses. These orders are known as temporary orders or pendente lite orders as they are made during the divorce proceedings. Temporary orders are also available in Paternity cases. (Paternity cases involve family law cases in which the parties have children together, but are not married.)
1. If You Are the Movant Submit Terrific Papers. If you are the moving party, the person seeking an order, makes sure your declarations contain facts, not argument. Make sure the facts can withstand objections to the evidence on the grounds of hearsay, best evidence and authentication. Make sure your legal argument is cogent and concise. Cite to the relevant statutory and case law on the subject unless it is so commonly known that it is unnecessary.
For example if you’re asking for guideline child support, the court knows what that is. So, your emphasis is not on quoting the Family Law Code it is on providing evidence of the earnings of the respective spouses and dissomaster print outs that show the amount you seek. On the other hand if you’re asking for an order allowing you to move with minor children out of state you better have a good memorandum of points and authorities showing what factors the court needs to consider in making its decision and the legal authority for the factors. Your declaration should show all the facts as to why it is in the best interests of the child (or children) to live with you out of state and how you propose to have the child have a meaningful relationship with the parent left in California.
2. Opposing Papers Should Be Filed As Early As Possible. The courts are underfunded. Often the judge doesn’t read the papers at all. You increase the odds of the judge reading your pleadings by filing them as soon as you can. The idea that you gain a tactical advantage by waiting, so the movant has less time to prepare a reply, is wrong. the court is even less likely to look at the reply than it is your opposition. Do all you can to get the court to read your papers by filing early.
3. Opposing Papers Should Attack the Weakness of The Movant’s Papers. When opposing a request for orders in family law court your lawyer should make sure your legal argument addresses the movant’s argument. Read the moving papers. What does the movant want? What authority does the movant have? What facts support the movant’s position?
Attack the weaknesses. Maybe the legal authority does not stand for the proposition the movant’s counsel claims. (Many lawyers don’t read the cases they cite in their papers.) It may be that the evidence provided does not support the movant’s contentions or the movant’s request for orders. The weaknesses in the movant’s papers should be pointed out whether the weaknesses are in the facts supporting the order sought, the authority for the order or both.
4. Consider Telling Your Attorney You Don’t Want An Objection to The Evidence Pleading Filed. Often in addition to the memorandum of law supporting or opposing a request for orders, lawyers draft a pleading called the “Objection to the Evidence.” Even if the opposing side’s declarations are riddled with argument, hearsay, foundational problems etc. consider long and hard whether you want your divorce attorney to file an objection to the evidence pleading.
Objections to the evidence can be labor intensive. This means they are expensive. Objections to the evidence are often of little value. The court is likely to make the parties’ lawyers discuss the objections, then prepare a table of objections stating the ones that are withdrawn, the ones conceded and the ones still in contention. That’s 8 to 20 hours of work for which the client must pay before the court even considers the issues in the motion. Yikes!
The court may continue the hearing to the next available date, so that the evidentiary objections table can be drafted by the divorce lawyers after they confer. The problem with that is that the next available date may be three or four months away. The delays have to do with the courts being woefully underfunded. By filing evidentiary objections one side might delay the court’s decision on a crucial matter for months.
The courts don’t like objections to the evidence in family law. The judge can figure out what evidence is relevant, what evidence comes from personal knowledge and what documents have a proper foundation.
Conclusion: Clear, purposeful writing containing concise authority and declarations containing germane facts will help you whether you are seeking an order or opposing it. Oppositions to requests for orders should be filed as early as possible in order to increase the chance the pleading will actually be read by the judge. Objections to the evidence enrich lawyers and don’t often make a difference worth their expense. Objections to the evidence can lead to a continuance of the hearing for a long time, often several months, which can be a disaster for the moving party.