Request For Temporary And Emergency Orders
Many months can pass from the time the Dissolution of Marriage is started until the trial takes place. During this time, either party may ask and obtain temporary orders by means of an Order to Show Cause (OSC) hearing. (Form FL-300). At this hearing, the court will make “pendente lite” (Latin for “pending litigation”) orders that will remain in effect while the divorce case is pending.
If there is an emergency, such as ongoing domestic violence by a spouse, the other spouse can ask the court to issue “ex parte” orders. These are temporary orders that will be in effect until the Order to Show Cause hearing, which usually takes place approximately three weeks later.
The Order to Show Cause notifies the other party of the date and place of the hearing and the request for temporary orders. If the Order to Show Cause papers are filed at the same time as the Petition, this hearing is usually held within three (3) weeks after the first papers are filed.
The specific orders being requested are set forth in the Application for Order and Supporting Declaration. (Form FL-310). The law allows the court to make many different types of orders, requests may include the following:
Child Custody And Visitation
Parents who have just filed their divorce cases often have ongoing disputes regarding how they are going to share their children’s time and important decision that has to be made. If the parents could not request temporary child custody orders, they would have to wait many months until the trial of their case is set, to get the court to decide where the children will live.
Bob and Susan have two children, ages 10 and 12. Bob left the home one week ago and is living in a two-bedroom apartment that is not more than five minutes from the home. Bob wants to be able to see the children and have them stay with him overnight. Susan is concerned that Bob’s small apartment is not suitable for the children.
After numerous – often heated – discussions with Susan, Bob decides that the only way to resolve this issue is to have his attorney file an Order to Show Cause to request temporary child custody and visitation orders. In his application form, Bob states that his apartment is clean and comfortable. He has furnished one of the bedrooms with bed and other with furniture for the children. At the end of the hearing, the judge decides that Bob can have the children every other weekend, from Friday after school until the following Monday, when he is to return the children back to school.
Temporary Child Support And Spousal Support
The Family Court can make temporary child and support orders. Child support is governed by the Statewide Guideline for Child Support. A more detailed discussion of the child support guideline can be found on page ____ of this manual. There is not an official statewide guideline for spousal support. However, many courts have informally adopted the spousal support guideline that was initially created by the Santa Clara County Superior Court. This is discussed on page _______ of this manual.
Attorney’s Fees, Expert’s Fees And Court Costs
At an Order to Show Cause hearing, the court can make one spouse contribute to the litigation expenses of the other party. This can include orders for attorney’s fees, filing fees and expert witnesses fees. These orders are almost always based on the comparative incomes of the spouses and the extent to which the spouses have money in the bank that can be used to finance the divorce case.
Unlike child support, the law has not provided courts with a guideline or formula to make its attorney fee orders. Instead, courts are required to analyze each case separately and to make orders that ensure that both spouses will have equal access to the legal system.
After 25 years of marriage, Kim has filed for a divorce from Terry. Kim has been a homemaker, devoting her time to raising their three adult children. Terry has built a highly successful accounting practice, from which he earns $20,000 per month. Kim and Terry have been able to save more than $1 million, that is in multiple money market and savings accounts.
To retain her divorce lawyer, Kim charged $3,500 on her Visa account. However, her attorney is telling her that the divorce could cost Kim as much as $20,000. A large part of that cost will be for the certified public accountant that Kim will have to retain to determine the value of Terry’s accounting practice and to verify exactly how much Terry earns from his business. Kim does not have access to all of the savings, which are controlled by Terry. At the Order to Show Cause hearing, the Judge orders Terry to withdraw $15,000 from one of the savings accounts, which is to be paid to Kim’s attorney.
– Removal of a spouse from the other home
– Temporary possession of community property
– Payment of bills while the dissolution is pending
– Restraining orders
Because the orders made at the Order to Show Cause hearing are temporary, Judges often limit the amount of time spent on each individual matter. For that reason, the Order to Show Cause hearing is usually much shorter than the trial.
All orders made by the judge at an Order to Show Cause hearings are temporary. This means that they remain in effect only until the Judgment of the Dissolution is filed.