Obtaining temporary orders:
As previously stated, it can take as much as a year or even longer to get to trial in a contested divorce case. Temporary court orders may need to be put in place to maintain the status quo until the case can get to trial. You can’t have two parents in a tug-of-war custody battle for a year while waiting to get to trial. You need a temporary custody order to be put in place so both parents know what their custody rights are pending trial. You typically can’t go a year without a support order being in place because one party is going to need support from the other party. You will need a temporary child support and/or spousal support order to be put in place. You may also want to request that the court issue an order at the beginning of the case that your spouse pay you a lump sum of money so you can hire an attorney to represent you. You can obtain all of these types of temporary orders, as well as additional kinds of temporary orders, by filing a “Request For Order” (FL-300) with the court. Click the “Court Forms” button on the navigation bar to go to our Court Forms Database where you will find the FL-300 that you can fill out and print. We explain how to fill out the FL-300 below. Read the information below before you attempt to fill out the FL-300. You suggest you print the FL-300 now and have it in front of you as you read the information set forth below.
The court and attorneys refer to the Request For Order (FL-300) as an “RFO”. It is basically a motion requesting the court to issue various types of temporary orders. The following is a general discussion regarding the different types of temporary orders you can obtain by using the FL-300. After the general discussion, there will be a more detailed discussion regarding certain types of temporary orders with information you need to know about obtaining those particular types of temporary orders.
When you review the FL-300 form, you will see that there are boxes you can check to request the most common types of temporary orders. You can use the FL-300 form to request temporary child custody orders, temporary child support orders, and temporary spousal support orders. You can also use this form to request “property control” orders. For example, you may want the court to issue an order that gives you temporary use, possession, and control of property such as the family home or a particular vehicle. You can also use this form to have the court issue an order that your spouse make payments on certain debts. Credit cards bills, car loans, and mortgage payments all need to be paid even though you and your spouse have separated and are going through a divorce. If the debts are not paid, your credit will be ruined and you could lose your house or your car.
The FL-300 can also be used to request an award of attorney fees and/or costs. For example, assume you have a contested divorce and you want to hire an attorney, but you do not have the money to pay an attorney a retainer. You can use the FL-300 to set a hearing at the beginning of the divorce and at that hearing, you can ask the court to order your spouse to pay you a lump sum of money so you can hire an attorney to represent you.
The RFO FL-300 also has a box you can check to request “Other Orders”. If you need a temporary order, but there is no box on the form for the type of temporary order you want, then you can use the “Other Orders” box and write in the type of order you want.
The RFO FL-300 cannot be used to obtain Domestic Violence Restraining Orders. If you want Domestic Violence Restraining Orders, you need to file a different set of forms. However, if you previously obtained Domestic Violence Restraining Orders, you can use the RFO FL-300 form to modify or terminate those orders. If you need Domestic Violence Restraining Orders, see the “Domestic Violence” section of our website.
You can use the RFO FL-300 to request multiple temporary orders at the same time. At the beginning of the divorce, you may need a child custody order, a support orde r, and an attorney fee order. You can use the FL-300 form to request all of these temporary orders at the same time. You don’t need to fill out a separate FL-300 for each type of order.
After you fill out your FL-300, you are going to file it with the court clerk. You can file your FL-300 at the same time you file the Summons and Petition or you can file the FL-300 anytime after you file the Summons and Petition. When you file the FL-300, the court clerk will give you a hearing date. There is more detailed information at the end of this “Temporary Orders” section about how to serve the FL-300 and what happens at the hearing. First, we are going to go over things you need to know about certain kinds of temporary orders.
The following is a more detailed discussion with information you need to know about certain kinds of temporary orders.
Obtaining temporary child custody orders:
Before you file your RFO FL-300 seeking temporary child custody orders, you need to first read the previous sections of this website regarding child custody. See the “Getting Educated” section of the website and then the sub-topic of “Child Custody”.
If you want a temporary child custody order, you are going to check box #2 on the FL-300 form. List the names and dates of birth of the children. Indicate the type of legal custody you want (i.e. put one of the following: “Petitioner”, “Respondent” or “Joint”). If you put, “Petitioner”, you are requesting that Petitioner have sole legal custody. If you put, “Joint”, you are requesting joint legal custody. Indicate the type of physical custody you want (i.e., put one of the following: “Petitioner”, “Respondent” or “Joint”). Now describe in more detail what you are requesting regarding a custody order. You can do this in different ways. One way is to type up an attachment that describes in detail the exact custody order you want. The FL-300 indicates you should label the attachment as “Attachment 2a”. You can use the Judicial Council attachment form (MC-025) that is contained in our Judicial Forms Database. A second way to describe the custody order you want is to fill out one or more Judicial Council forms that are listed in this section of the FL-300. Those forms are as follows:
Click the “Court Forms” button on the navigation bar to go to our Court Forms Database where you can find all of said forms that you can fill out and print.
You don’t need to fill out all of said custody related forms. Review each form. Decide which form or forms you want to attach to your FL-300, and then fill out just those forms. If you are going to use said custody forms approach, then you need to at least fill out the FL-311.
After you have described in detail the child custody orders you want, explain in box 2c of the FL-300 why the orders you are requesting are in the best interest of the children. The form does not give you much room for your explanation. If you can’t fit your explanation in the box provided on the form, type up your explanation on a separate sheet and label that sheet, “Attachment 2c”. Again, if you need to use an attachment, you can use the Judicial Council form MC-025 that can be found in our Court Forms Database.
When you apply for temporary custody orders, the court is usually going to require you and your spouse to participate in a process to resolve the custody issues before you attend the hearing on your RFO (FL-300). The process you are required to participate in is going to vary dramatically from county to county. In this website, we are going to describe the most common process.
Most counties have a department that is called “Family Court Services” or a name similar to Family Court Services. After you file your RFO that contains a request for child custody orders, you will be instructed to call Family Court Services. Family Court Services may require you and your spouse to participate in a short class or workshop designed to increase the likelihood that you will be able to reach a custody agreement with your spouse and to provide you with useful information on how to co-parent your children. In some counties, the class or workshop is given at the court or a nearby facility. In some counties, you can take the class on-line. Not all counties require you to take a class or workshop.
The court or Family Court Services will likely require you and your spouse to participate in “child custody mediation” or “child custody recommending counseling” before the hearing on your RFO. Sometimes, the court will have you participate in “child custody mediation” or “child custody recommending counseling” on the morning of the hearing, just before the judge hears your case.
“Child custody mediation” involves you and your spouse meeting with a court employee that will act as the custody mediator. The mediator is typically a mental health professional with specialized training in areas pertaining to children and families. The mediator is usually skilled and knowledgeable in the areas of conflict resolution, parenting techniques, children’s developmental stages, and issues related to substance abuse and child abuse.
Normally, you and your spouse meet with the mediator for one meeting. However, if there is a history of domestic violence, you can usually arrange for separate mediation appointments or one spouse will participate remotely, such as by telephone or by being in another room. During the mediation session, you and your spouse will both describe the child custody orders you want and explain why your proposed orders are in the best interests of the children. The mediator will put pressure on both parties to reach a child custody agreement. If you and your spouse are able to reach an agreement, the mediator will either write up the agreement for both of you to sign or send a report to the judge describing your agreement. When you go to your hearing on the RFO, the court will make the agreement you reached in mediation the court’s order. If, during mediation, you and your spouse were unable to reach an agreement, then the judge will decide the custody dispute when you go to the hearing on the RFO.
“Child custody recommending counseling” is similar to “child custody mediation”, however, if you are unable to reach a custody agreement with your spouse, then the recommending counselor will issue a report to the court prior to the hearing on your RFO. The report will typically briefly summarize each party’s position, indicate the parties were unable to agree, and then make a detailed child custody recommendation to the judge. You will receive a copy of the report before the hearing, usually a week or a few days before the hearing. However, sometimes you don’t receive your copy of the report until the very morning of the hearing. Many judges simply “rubber stamp” the custody recommendations that are set forth in the recommending counselor’s report. Other judges are willing to listen to the parties before making a temporary custody order and will deviate from the recommendations. The report issued by the recommending counselor will carry great weight with the judge. It is usually very difficult to get a judge to issue a custody order that is dramatically different from the recommendations set forth in the report.
It is very important that you be prepared for your “child custody mediation” or “child custody recommending counseling”. Before your meeting, think about what you want to say during the meeting. Practice what you are going to say. We have put together a video of tips for parents that are about to participate in child custody mediation or recommending counseling. We have compiled the information contained in this video over a period of years by listening to clients’ experiences in mediation, as well as listening to mediators and recommending counselors. We have used the information in the video to coach our own clients. The video is available for purchase for $20. If you wish to purchase the video, click the “Video Guides” button on homepage and then click the “Custody Mediation” video.
There are a number of good divorce related parenting books available that you may want to read. You can go to the “Other Resources” section of our website and look at the sub-topic, “Other Useful Resources”.
Obtaining temporary child support orders:
If you want a temporary child support order, check box #3 on the FL-300 form. Enter the names and ages of the children. Check the box that requests “support for each child based on the child support guideline”. Do not enter a monthly amount. As previously discussed in the “Getting Educated” section of this website, “guideline” child support is the amount the court is required to order based on a statutory formula. For more information see the “Getting Educated” section of the website and then the sub-topic of “Child Support”.
Whenever you raise a financial issue with your RFO (FL-300), you need to have a “current” Income and Expense Declaration (FL-150) on file with the court. “Current” means your Income and Expense Declaration was filed not more than 90 days before the date of your scheduled hearing. If you don’t already have a current Income and Expense Declaration on file with the court at the time you want to file your FL-300, you will need to fill out and file an Income and Expense Declaration and then file your FL-150 at the same time you file your FL-300. The FL-150 is discussed in the section of this website under the topic, “Declaration of Disclosure”. You can find a blank FL-150 in our Court Forms Database.
When you ask for child support, the court will make a “guideline” child support order and that order should include provisions about the following two mandatory “add-ons”: 1) which parent will provide health insurance coverage for the children, including how out-of-pocket health care costs are to be shared; and 2) how child care costs are to be shared. At the hearing, make sure the judge addresses these two “add-on” issues. Sometimes, judges overlook these add-ons. If you want the court to include as part of the temporary child support order additional child support provisions, such as how to share the cost of the children’s educational and extracurricular activities, then state on your FL-300 form that you want the court’s child support order to include these items, and, at the hearing, remind the judge to address these items. You can make your request that the court address these types of “add-ons” by way of including an attachment to your FL-300.
There is also an issue of retroactivity. When will the child support order start? Typically, the child support order will start retroactive to the date you filed your FL-300. There may be a two month gap between the date you file your FL-300 and the date you have your hearing. If your spouse paid you child support between the date you filed your FL-300 and the date the hearing takes place, then your spouse will get a credit for those payments. If no support payments were made during this time, there will be a support arrearage. There is legal authority (Family Code section 4009) for the court to make a temporary child support order retroactive all the way back to the date you filed your Petition for Dissolution of Marriage. If you want your child support order retroactive to the date you filed your Petition, ask for it both in the FL-300 and at the time of the hearing.
As discussed in the “Getting Educated” section of this website, sub-topic “Child Support”, you can contact the Department of Child Support Services (DCSS) in your county and they will assist you in obtaining and enforcing a child support order and they will do so free of charge regardless of the amount of your income or your net worth.
Obtaining a temporary spousal support order:
If you want a temporary spousal support order, check box #4 on the FL-300. Box #4(a) asks for the amount you are requesting. Simply type the word, “Reasonable”. You don’t need to specify an amount.
Since a request for a temporary spousal support order involves a financial issue, you will need to have a “current” Income and Expense Declaration (FL-150) on file with the court. See the discussion about a “current” Income and Expense Declaration in the previous section on how to obtain a temporary child support order.
Like child support, there will be the issue of retroactivity. When will the temporary spousal support order start? Typically, it will start retroactive to the date you filed your FL-300 and your spouse will be given a credit for any spousal support that was paid to you between the date you filed your FL-300 and the date of the hearing. Like child support, there is legal authority for the court to make a temporary spousal support order retroactive all the way back to the date you filed your Petition for Dissolution of Marriage. The legal authority is In re Marriage of Dick (1993) 15 Cal.App. 4th 144, 165-166. These numbers refer to a Court of Appeals case that was decided in 1993. Your judge should be familiar with this Court of Appeals case. If you Google the name of the case (i.e., “Marriage of Dick”), you can read the case. It is usually harder to get a judge to make a spousal support order retroactive to the date the Petition was filed than to get a child support order that is retroactive to the date the Petition was filed. If you filed your FL-300 months after you filed your Petition, it does not hurt to ask in your FL-300 and at the hearing that the spousal support order be retroactive to the date you filed your Petition.
Obtaining an award of attorney’s fees and costs:
If you want the court to order your spouse to pay you a lump sum of money so you can hire an attorney to represent you, check box #6 on the FL-300. Since a request for an award of attorney’s fees involves a financial issue, you will need to have a “current” Income and Expense Declaration on file with the court (as discussed in the temporary child support section of this website, “current” means your FL-150 is not more than 90 days old as of the day of the hearing). The court will also require you to fill out three additional Judicial Council court forms if you are requesting an award of attorney’s fees. You will need to fill out the following forms:
- Spousal Or Partner Support Declaration Attachment (FL-157)
- Supporting Declaration For Attorney’s Fees And Costs Attachment (FL-158).
- Request For Attorney’s Fees And Costs Attachment (FL-319).
Click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find all of said forms that you can fill out and print.
Filling out the FL-158 and the FL-319 is fairly easy. Filling out the four page FL-157 takes some time. If you want the award of fees, take the time to fill out all three forms and then attach them to your FL-300.
In order to get an award of attorney’s fees, you will be required to convince the court of a number of things. You will need to show that you are unable to afford to pay an attorney to represent you and that your spouse has the ability to pay not only the amount of attorney’s fees you are requesting, but also his or her own fees.
It is best if you can identify a source of funds that can be used to pay the attorney’s fees you are requesting. For example, if your spouse recently received a big bonus from his or her employer, you should tell the court that your spouse can pay the attorney fees from that bonus. Perhaps your spouse has a separate property bank account with funds that can be used to pay for your attorney’s fees. If your spouse does not have liquid assets to pay you a lump sum, ask the court to order your spouse to pay the attorney’s fees in installments out of his or her earnings. If your spouse does not have the ability to pay the fees you are requesting, try to identify a liquid community asset from which the fees you are requesting can be paid, such as a bank account or brokerage account. If there are no liquid assets, try to identify an asset that can be easily sold to raise money to pay the fees you are requesting (preferably an asset that belongs to your spouse).
FL-300 box #10:
At the end of the FL-300, the form gives you a relatively small space to recite any facts you want the court to know about in support of the orders you are requesting. In the alternative, you can recite the facts in a separate document (Attachment 10). As you go through the FL-300, there are all kinds of potential attachments you can make because the form does not provide sufficient room for the information the form requests. The potential attachments listed on the form go from “attachment 2(a)” through “attachment 10”. Rather than having a lot of separate attachments, most people just use one attachment. They will check all of the relevant boxes on the FL-300 for the orders they are requesting, and then, rather than try to squeeze information into little spaces or have ten separate attachments, they simply type in, “See attachment #10” in each section of the FL-300. Then, they type up, in paragraph form on attachment #10, a detailed description of the various temporary orders they are requesting and the reasons why they feel the court should issue each order.
Your “attachment #10” may start off telling the court the kind of temporary child custody order you want and why your proposed order is in the best interests of the children. It may then move on to say that you want a “guideline” child support order and a reasonable amount of spousal support and explain to the court whatever facts you think the court should be aware of before the court makes a support order. If you use this “attachment #10” approach, it is much more informative and persuasive than squeezing short bits of information into small boxes on the FL-300 form. If you use this approach, your “attachment #10” can’t exceed ten pages, not counting any exhibits. If you are going to use this approach, you can use the Judicial Council attachment form MC-025. Said form can be found in our Judicial Forms Database. Pull up MC-025. Type “Attachment #10” at the top, and then start typing whatever you want to tell the court about the temporary orders you are requesting.
If there are documents you want the court to consider before making decisions about the temporary orders you are requesting, attach those documents as exhibits to your FL-300. Attaching exhibits is simple. Just take a blank sheet of paper and type or print, at the bottom of the page, in very large letters, the following: Exhibit “1”. Then, put your document behind this page. The next exhibit will be Exhibit “2”. Add as many exhibits as you wish. Create a separate exhibit page for each separate document or group of documents you want the court to look at.
Filing the FL-300 with the court:
After you have filled out your FL-300, make two copies and file the FL-300 with the court clerk, together with your Income and Expense Declaration (if your RFO raises financial issues). The court will charge you a filing fee, unless you have a fee waiver or you filed the RFO at the same time you filed the Petition for Dissolution. The filing fee is currently $60, unless the RFO involves custody issues, then it is $85. The amounts of these filing fees change from time-to-time.
When you file the RFO, the court clerk will give you a hearing date. The clerk will write the date on the front page of the FL-300. The court clerk will keep the original FL-300 and give you back two filed-endorsed copies. If your RFO involves custody issues, the clerk may also give you instructions about contacting Family Court Services to schedule child custody mediation or child custody recommending counseling.
Service of the FL-300:
When you serve the FL-300, you have to give your spouse a blank “Responsive Declaration To Request For Order” (FL-320). Click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find the FL-320 form and then print a blank form.
If your RFO raises financial issues, you will also have to give your spouse a blank Income and Expense Declaration. Click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find the FL-150 form and print a blank form.
If you filed your FL-300 at the same time you filed your Petition for Dissolution of Marriage, have the FL-300 served at the same time you have the Petition served on your spouse. If you filed the FL-300 after you served your spouse with the Petition, then the FL-300 can be served by mail if your spouse has made an appearance in the action (i.e., filed his or her FL-120). Have a friend that is over 18 years old mail your spouse a filed-endorsed copy of the FL-300 and your FL-150, together with the blank FL-320 and a blank FL-150. Again, you only need to include the FL-150 if financial issues are raised by your RFO. After your friend has mailed the FL-300 and other forms, have your friend fill out a “Proof of Service By Mail” (FL-335). Click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find the FL-335 form. After the FL-335 has been filled out and signed by your friend, make one copy and file the FL-335 with the court clerk. Take your filed-endorsed copy of the FL-335 with you to the court hearing. At the hearing, you will need to prove that the RFO was properly served.
The RFO (FL-300) must be served at least 16 “court” days before the hearing. Note it is “court” days, not “calendar” days. You don’t count Saturdays or Sundays or court holidays. Also be aware that if you serve the RFO by mail, as opposed to having it personally served on your spouse, you have to add an extra 5 calendar days. So, if you are serving your RFO by mail, look at the hearing date. Don’t count the day of the hearing. Count back 16 “court” days, and then add 5 additional calendar days.
Don’t wait until the last day to serve your RFO. Mail your spouse your RFO the same day you file it with the court. This is important, particularly if your RFO raises custody issues. If you and your spouse need to go to child custody mediation or child custody recommending counseling, it will take time to get an appointment. If you wait too long to serve the RFO, you may not get an appointment before the hearing, in which event, the hearing will likely need to be continued.
Attending the FL-300 hearing:
The first page of the FL-300 will tell you the date, time, address, and department for the hearing. Again, the court clerk will fill in this information when you file the FL-300 with the court. On the day of the hearing, go to the department and have a seat. The bailiff will typically call roll. Your case will not be the only case on the judge’s calendar that morning. There may be 10 or 15 other cases. Be prepared to wait for your case to be called. Don’t leave the department to feed the parking meter. If you have to leave the department to use the restroom, let the bailiff know.
You may want to attempt to negotiate a settlement with your spouse before the hearing takes place. Many courts have local rules that require you to make a good faith attempt to negotiate a settlement with your spouse before the hearing. If you are going to discuss settlement with your spouse in the court hallway while waiting for your case to be called, let the bailiff know and the court will pass your case and give you time to negotiate a settlement. If you try to negotiate a settlement with your spouse in the hallway before the court calls your case and you are unsuccessful, go back into the courtroom and let the bailiff know you were unable to negotiate a settlement and the court should call your case. If you are able to negotiate a settlement, ask the bailiff if the court has a form you can use to write up the details of your settlement. If the court does not have any such form, wait for the court to call your case and then recite the terms of your settlement in front of the judge.
Before the hearing, you should have received a copy of your spouse’s Responsive Declaration (FL-320). It is likely your spouse will say some things in their FL-320 that you disagree with or that are false. When the judge calls your case, you will have an opportunity to make a statement to the court. Prepare what you want to say to the judge in advance of the hearing. You may want to type up a statement and just read the statement to the judge. Most judges will have read your FL-300 and your spouse’s FL-320 before the hearing starts and will be familiar with the kinds of temporary orders you are requesting and why you are requesting those orders. However, sometimes the judge will not have read the paperwork. Sometimes, the documents you filed with the clerk do not make it to the judge’s chambers before the hearing. Sometimes, judges are just too busy to read all the paperwork. You should be prepared to explain at the hearing to the judge what temporary orders you want and why the court should grant your requests, just in case the judge did not read your paperwork.
Hearings on FL-300 motions are “short cause” hearings. They typically last only 15 or 20 minutes. Rarely is there any direct examination or cross-examination of witnesses. Most of these hearings consist of back and forth discussions with the judge. The judge may ask you and your spouse questions and give each of you one or more opportunities to say what you want to say. If you have documents you want to show the judge during the hearing that you did not attach as exhibits to your FL-300, make copies and provide your spouse with copies of the documents before the hearing starts so your spouse has an opportunity to review the documents.
Do not take children to the hearing on your FL-300.
Findings And Order After Hearing:
At the conclusion of the RFO hearing, the judge will make a decision. Some courts will prepare a “Findings And Order After Hearing” (FL-340) that sets forth all of the judge’s decisions and give you a filed-endorsed copy immediately after the hearing. Other courts (most courts) will require you or your spouse (whichever is the prevailing party) to prepare the FL-340. If the court directs you to prepare the Order, after you get back home, click the “Court Forms” button on the homepage to go to our Court Forms Database where you will find the FL-340. Prepare the FL-340, using the Judicial Council forms listed on the FL-340 (all of which can be found in our Court Forms Database). After you have prepared the FL-340, mail it to your spouse and ask your spouse to approve your draft by signing the space at the bottom of the FL-340 form. After your spouse approves the FL-340, mail the original and one copy, with a self-addressed stamped envelope, to the judge’s department for the judge to sign. If your spouse refuses to approve your draft of the order within 10 days, and if you and your spouse can’t agree on appropriate revisions to the proposed order, then mail your draft to the court with a cover letter letting the judge know that your spouse refused to approve your draft of the order and ask the judge to sign your draft. Send a copy of your letter to the judge to your spouse.
After the judge has signed the FL-340, have a friend serve a filed-endorsed copy of the FL-340 on your spouse by mail, fill out the Proof of Service By Mail form (FL-335), and file the FL-335 with the court. The FL-335 can be found in our Court Forms Database.