The Terrible Horrible No Good Day In Court
Four Steps To Improve Your Chances Of Getting What You Desire In Family Law Hearings
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 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.
This article assumes the reader is a litigant in a family law case and is represented by a lawyer. The article uses terms with which lawyers are familiar. If you have child support, child custody, alimony or property division issues in your divorce you need a lawyer unless you and your spouse are on great terms and agree on most issues of the divorce. If that’s not the case and you do it yourself, you will not obtain a good result.
1. If You Are the Movant Submit Terrific Papers. If you are the moving party make 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 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 your client to take 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 your client 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 belied by the fact that 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.
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 For You. The divorce client may not be able to tell if his or her lawyer is making a good legal argument in the request for orders or opposition prepared by the divorce lawyer. But, often in addition to the memorandum 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 about whether you want your divorce attorney to file an objection to the evidence pleading. Objections to the evidence can be labor intensive, and they 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, conceded or still in contention plus redacted copies of the declarations. 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!
Often what happens is the court continues 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 can 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, comes from personal knowledge, etc. 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 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–several months which can be a disaster for the moving party. For example, If the court continues a hearing on child support or temporary spousal support (alimony) that can be a big problem for the movant.
You can minimize the chance of an evidence related continuance by writing good declarations. If you are the moving party and you have written clear and concise facts in a declaration there may be less evidence to which the opposing side objects and if you can you might stipulate to all the objections as long as there is still enough facts for the court to decide the issue in order to have your matter heard (and decided) that day.
It would be great if everyone could behave rationally and with kindness toward each other as they divorced. Alas, many litigants attempt to use the legal system to inflict emotional pain on their spouses to “get back at them.” Some acknowledge they do it. Some deny it or are not consciously aware of it. The worst situations involve using children as pawns in a brutal game played by the parents to see who can hurt the other spouse the worst.
I mention this because many requests for orders are unnecessary. If you, as a person obtaining a divorce, can try to keep lines of communication open with your spouse to discuss how to handle issues of support and custody, etc. during the divorce proceeding you will save lots of money and emotional energy. You will be doing a great service to your children.
If you think your spouse is blindly following the orders of legal counsel as he or she makes the divorce increasingly hostile and expensive, ask them. Sometimes lawyers do not have their clients best interests at heart and simply want to increase the billings. It may be that you can reach an agreement that is filed with the court and thereby becomes an order of the court regarding issues that would otherwise be the subject of a request for orders.
In many cases it’s better to compromise because the overburdened courts are not capable of dispensing “justice.” You may not get a fair ruling even if you do everything right. The courts are in a horrendous state and they are going to get worse. Avoid being in them whenever you can.