Temporary Orders

Often at the beginning of the divorce process, it is necessary to put temporary orders in place for child custody and visitation, child support, spousal support, and sometimes property orders. These orders are not meant to be final determinations for a parenting plan, appropriate support levels, or division of property. They are just as the name indicates - temporary orders. They are intended to provide stability for minor children and allow each party to maintain the same standard of living as existed during the marriage until the divorce process is complete.

As always, the courts would prefer the parties to a divorce reach their own agreement for support and a temporary parenting plan. However, if that is not possible one party or the other may file a motion requesting the court make orders. This is accomplished by filing a form Order to Show Cause or Notice of Motion with a form Application for Order, which may be accompanied by a written Declaration of the moving party providing specifics as to the orders requested and the reasons for the moving party's requests. Once filed a hearing date is set for a month to six weeks in advance, and the opposing party will file a Responsive Declaration agreeing or opposing the moving party's specific requests.

If child or spousal support is an issue, each party must also file an Income and Expense Declaration and attach copies of their last three pay stubs or other evidence of income. If child custody and visitation is in dispute, the court will require the parties to participate in mediation regarding child custody and visitation. A child custody mediator's objective is to try to get the parents to agree on a parenting plan, but where and to the extent the parties are unable to agree the mediator will make a written report and recommendation to the court regarding child custody and visitation (I will not go into great detail of the mediation process here, as it deserves a more through discussion later).

 At the hearing on the moving party's requests, the court having either an agreement for a temporary parenting plan or a mediator's recommendation as to the best interests of the minor children, and evidence of the party's respective incomes, temporary orders can be made for child custody and visitation as well as child and spousal support. These orders will remain in place until they are modified by agreement of the parties, a subsequent court order, or a final judgment is entered.

On the one hand, I tell people not to get too caught up by not getting exactly what they want in temporary orders because they are just that - temporary. On the other hand they can set a precedent or status quo that may require a significant change in the parties' circumstances to modify. This is one area where experience with the dissolution process and good advice can make a big difference in the time you have your children and the amount of support you receive or pay. Divorce is not a simple matter. It shouldn't be. You should retain an experienced attorney to represent you if possible, and if not you should find one to give you advice on how to proceed on your own. Many good attorneys will counsel litigants on an hourly basis, prepare paperwork if necessary, and advise them how to handle specific issues.

After Service of Summons and Petition

After serving the Summons and Petition on your spouse, they have 30 days within which to file and serve their Response. If they do not file their Response within 30 days, you have the right to file a form Request for Entry of Default. When the Clerk of Court receives your Request for Entry of Default, they will verify your spouse has not filed a Response and if they have not they will enter default against the opposing party. And you've won, it's that simple. I'm just kidding, its not really.

Often, entering default against the opposing party as soon as possible is a waste of time. I am never quick to do so. The reason is that California Code of Civil Procedure section 473 provides liberal grounds to set aside a default on various grounds, including "oops I forgot." If you rush to the Clerk's office and file a Request to Enter Default, the opposing party will have up to 6 months to have the default set aside almost as easily as you had it entered.

Even once default is entered, you will have to set the matter for a "default hearing", at which the Judge will make certain the terms of the proposed judgment you are requesting provides for a fair and equitable distribution of the marital estate. That hearing will be set approximately a month away, and you will still have to provide your spouse notice of the hearing. Often, your spouse will show up and oppose entry of a default judgment and the Court will give him or her additional time within which to file a Response and appear in the matter.

This does not mean requesting entry of default is never appropriate. But it should be reserved for situations in which it is clear your spouse has no interest in participating in the dissolution proceedings. It is not intended as punishment for failing to strictly comply with time requirements.

Rather than immediately requesting entry of default against a spouse that does not promptly file a Response, consider filing a motion for custody, support, or other matter that is not likely to be ignored. Often the filing of such a motion will compel a reluctant spouse to get off the couch, because failure to do so will result in orders being granted in your favor.

On the other hand, there are times when requesting entry of default is entirely appropriate. If your spouse is incarcerated they may not be able to file a Response or appear. If there are no significant marital assets, a spouse may not care to appear and contest the proceeding. I have even had situations where a spouse wouldn't come near the courthouse because they had warrants for their arrest and were afraid the deputy sheriff bailiff might check for criminal warrants (they do, and they will be taken out of the courtroom in handcuffs after the hearing).


So, while many people think the opposing party's failure to timely file a Response results in victory, it just isn't the case. Besides, there are no victories in family law.

Service of Summons and Petition

Once you have filed the Summons, Petition, and Declaration Under the Uniform Child Custody Jurisdiction Enforcement Act (if minor children are involved), the opposing party must be personally served. These documents, and a blank Response and Declaration Under the Uniform Child Custody Jurisdiction Enforcement Act, can be served by anyone over the age of 18 who is not a party to the proceedings. Most people, and attorneys, use the services of a process server or the county sheriff. In the event of a dispute as to whether someone was actually served, the court is more comfortable when a Respondent has been personally served by a process server or deputy sheriff.

You can find a process server in the yellow pages under "legal services" or online. They typically charge $25 to $40 to serve someone locally, more if they have to travel to other areas. The sheriff maintains an office in the family law courthouse, and you can leave a copy of your pleadings with information on the person to be served. Of course, if you are represented by an attorney, they will take care of all of this for you.

Once the opposing party has been served, the process server, deputy sheriff, or other person must complete a Proof of Personal Service specifying the time, date, and address where the Respondent was served. Once completed, the original of that form should be filed with the court clerk. Again, as with all pleadings, you should file the original and two copies. That way you have an extra copy for you and one for the other party.

 Attorneys might also attempt another kind of service where the papers are mailed to the Respondent along with a form called a Notice and Acknowledgment of Receipt. This form of service is acceptable for the Summons and Petition only inf the Respondent signs and returns the Notice and Acknowledgment of Receipt to you or your attorney. That form in turn must be filed along with a Proof of Service by Mail to be valid. If the opposing party does not sign and return the Notice and Acknowledgment of Receipt, sending the Summons and Petition by Mail is not effective. This process is typically used where the opposing party knows the papers are coming, will cooperate, and does not want a process server visiting him or her at work or home.

If someone is avoiding service there is a process for what is called "substituted service" by leaving the papers with someone in the household of responsible age. There are other requirements for this kind of service, and you may leave yourself open to the opposing party challenging the validity of service, so this should only be used as a last resort. Finally, if you do not know where the opposing party is to have him or her served, it is possible to serve someone by publication. this requires publishing notice in a local publication for a specified period and requires an order of court. If you do not know where your spouse is, you should probably consult with an attorney for help. It is necessary to file a motion specifying the efforts made to locate the person and demonstrate it is not possible to locate them.

Automatic Restraining Orders

In a California Family Law matter, automatic restraining orders are contained on page 2 of the Summons. They are effective automatically as to the Petitioner upon filing with the court, and as to the Respondent when he or she is served.

These restraining orders are often misunderstood, but parties should review them carefully. One thing I will tell you often in explaining legal procedures you may have heard before - ignorance is no excuse for violating the law. Stated otherwise, if you are representing yourself in a legal proceeding you are held by the court to the same standard as an attorney. It is no excuse that you did not know or did not understand.

Those of you reading this who are represented by an attorney have already had these automatic restraining orders explained to you. But I know many of you are representing yourself so these articles are intended to inform the parties not experienced in the process.

The automatic restraining orders provide four restrictions:

     1. Neither party is to remove minor children from the jurisdiction of the court without the other party's written permission or an order of court. The jurisdiction of the court is the county in which you are located. Some attorneys will tell you this means removing the children "for the purposes of changing their residence" but does not preclude you from taking the children out of county for a vacation or brief trip. I would caution you to be very careful and obtain the other party's permission or a court order (especially at the beginning of a divorce before temporary custody orders are in place) out of an abundance of caution. If the other party learns you have taken the children, say to visit relatives, they may mistakenly believe you are moving or hiding the children and bring a motion compelling you to return them. It's best to coordinate any trips with the children in advance with your spouse. After all, if they were taking your children somewhere, you would want them to let you know where you are going and when you will be back, right?

     2. Neither party is to cash out, borrow against, cancel, transfer, dispose of, or change the beneficiaries of any insurance policy. That means neither of you can cash out, borrow against, or transfer any whole life insurance policy, change the beneficiary of any life insurance policy, or drop any insured from your insurance policy. If you insure your spouse on a life, health or auto policy, you must maintain that policy as is until judgment has been entered or you are able to obtain a court order allowing you to do so. Many people upon filing a divorce want to drop their spouse from an auto or health policy. Don't do it. You will have to reinstate them at your expense.

     3. Neither party is to transfer, encumber, conceal, or dispose of any property, whether community or separate property, without the written consent of the other party or an order of court, except in the "ordinary course of business."  This means parties cannot sell property, obtain a loan with property as collateral, give it to someone else, or even throw it away. Many people have a problem understanding this especially when they believe it is their 'separate property'. But sometimes separate property can have a community interest. It is always better to secure the other party's consent. If the other side has no claim against the property, obtaining their permission shouldn't be a problem. Finally, you can use monies in a joint account to retain counsel to represent you, and to pay community bills as they become due.

     4. Nether party shall create or modify a nonprobate transfer in a manner that effects the disposition of property. That means if their is a joint will or trust that determines the disposition of personal property or real estate, you cannot change your will or trust without the other party's permission or an order of court. However, when title to real property provides for right of survivorship, that right of survivorship can be changed after notice to the other party. In other words, title to property as joint tenants with right of survivorship can be changed to tenants in common after formal written notice to the other party.

These restraining orders appear fairly straightforward, but as applied to particular circumstances they can be difficult. If you have any doubt about a particular action you are contemplating, my advice is to get some good advice. Often obtaining your spouse's or the court's permission is easier than you think. Also, making a mistake at the beginning of what may be a long proceeding can label the mistaken party as someone not inclined to 'follow the rules'. 

Commencing a Divorce or Legal Separation

Once you have decided to file for a divorce or legal separation, whether you retain an attorney or represent yourself, you must file a Summons and Petition. Actually, if you are represented by an attorney, he or she will do it for you. If there are minor children involved, you must also file a Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act. All Family Law Forms are available through the Sacramento County Superior Court or the Judicial Council Forms website to download.

The Petitioner (person filing the Summons and Petition) must pay a filing fee of $355.00 to Sacramento County Superior Court unless they qualify for a fee waiver under the low-income guidelines. If you cannot afford to pay the filing fee, download the Information Sheet on Waiver of Court Fees and Costs. By the way, there is absolutely no advantage in being the Petitioner or Respondent, whether you are the one who files or are the one who is served by your spouse.

Once the Summons and Petition have been filed, the opposing party (Respondent) must be served. He or she can be served by any person over the age of 18 who is not a party to the legal action. That's any adult except for you. Most people have a process server or the County Sheriff serve the opposing  party. the cost is usually about $25 to $50. Some people have a family member or friend serve the papers in order to save the fee, but this can lead to problems if the other side claims they never received the papers.

In addition to serving a filed copy of the Summons and Petition, and Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act if appropriate, you must also serve a blank form Response for the Respondent. Once this has been completed, the person who served the Respondent must complete a Proof of Personal Service to be filed with court.

 When filing any court papers, you should present the original and two copies to the Clerk, and they must be two-hole punched at the top. The Clerk will keep the original for court files, and return two endorsed copies to you. One is for your records, and the other is to serve on the opposing party. Once the opposing party has been served, he or she has 30 days within which to file their Response. 

So that's how a divorce or legal separation is started. The hard part comes later. You can also get help in filling out forms at the Self-Help Center. Every county has one, and they are valuable in explaining forms and procedures if you are representing yourself and don't understand. But if you are represented by counsel, then all of this will be taken care of by your attorney. In my next post I'll begin to explain disclosures and discovery.