What Are Court Orders; When Are They Effective; and Who Drafts Them

Family Law gavelIn family law we spend a good deal of time talking about court orders.  There are orders for child support, orders for spousal support, custody orders, and orders for the payment of attorney fees.  Getting more specific, all of the aforementioned orders can either be interim orders (also called temporary orders) or they can be final orders. The point of this blog is to discuss court orders in a family law context and to provide some basic understanding of how, why, and when they are made.  This is only a basic discussion of orders, a topic that can be very complex.  For this reason, you should speak with a qualified family law attorney about your specific case so you can be certain you fully understand your rights.

Judge vs. Parties

All orders are made by a Judge, otherwise they are not orders; they are just agreements.  That does not mean that the parties cannot tell the Judge what they want to be ordered.  If you and the other party have reached an agreement about a specific issue, say child custody, you can prepare a stipulation – which is just a written version of your agreement which contains your signatures – and present that to the court for entry.  As soon as the Judge signs the agreement, your orders are effective.

On the opposite end of the spectrum are court orders made after a contested hearing.  The contested hearing can be a Request For Order hearing, an Ex Parte hearing, or any other hearing where two parties argue a position to a Judge in anticipation of receiving a decision.  Orders made following a contested hearing have all the same impact of orders made via a stipulation, but there are subtle differences between the two.  That discussion is too complex for a single blog, so speak with your family attorney for more details.

Preparation of Orders

If your orders are the result of a contested hearing, then the Court will order one of the parties – or their attorney – to prepare the formal order.  This order is called a Findings and Order After Hearing.  The party who filed the motion is usually responsible for preparing the order, but not always.  Here is a little family law secret.  Sometimes the Judge will order the party who was successful at the hearing to prepare the order, while other times (and there is no legal basis for this) the Court will order the younger of the two attorneys to prepare the order.  I know it seems silly, but that is just sometimes the way it goes.

If possible, you want to have your attorney prepare the order.  This way you can be sure the order is drafted properly and completely.  Leaving out certain findings (these are the facts the court determines are true and upon which the order is based) can have a long lasting impact on your case down the road.

The preparation of orders is governed by California Rule of Court 5.125.  CRC 5.125 is a very straight forward rule which contains deadlines to prepare orders and options if the party ordered to submit a draft order fails to do so.  The last thing you want to have happen in your case is for an order to be forgotten.  If that happens, it can be difficult to piece together what was ordered months or years earlier.  There are ways, but they are not full proof; memories fade and notes get lost.  That is why it is important to be vigilant when ensuring that orders are drafted and filed.

Once an order is drafted, it is sent to the other party or their attorney for review and approval.  CRC 5.125 contains the procedure for objecting to the draft order and what happens if the parties or their attorneys reach an impasse.  It is rare for the attorneys to disagree about what a court ordered, but it happens.  In that case, both sides submit their own version of the order and the Judge signs the version they find is correct.

Effective Date of Orders:

Unless otherwise stated, the court orders are effective when made by the Judge.  So if your hearing was on September 1st, all orders made by the Court are effective September 1st.  Even if it takes months to get the order prepared and filed – which sometimes happens.

In some cases, the Court will decide an order is effective on a particular date that is different from the court date.  For example, a court may decide support is effective on the first day of a month, even if your hearing is before or after that effective date.  Also, if the Court is making a decision about what school a child will attend, the effective date of the order may be the first day of school. In these scenarios it will depend on the facts of your case.

Making sure your court orders are properly and accurately drafted is a crucial part of your case.   That is why it is so important to speak with a family law attorney to discuss any questions you might have about the orders in your case.

Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding family law orders. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

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www.bickfordlaw.com