9. Temporary Orders – I can’t wait six months to get a divorce. Can I get temporary orders?

The short answer is yes. The six month waiting period from the date of service (or first appearance) is for dissolution of the status of the marriage from married to that of a single person (Cal. Fam. Code § 2339(a)). This is because the law promotes marriage and wants couples to either have a chance to reconcile, or for a “cooling off” period during which time neither party can remarry.

In the meantime, the court has the power to make temporary orders on child custody, visitation, child support, spousal support, property control, and payment of attorney fees as discussed in the preceding paragraph eight above. San Diego Superior Court has local rules governing the format of RFO’s, such as time limitations on the hearing and having the RFO served at least 10 calendar days after filing (San Diego Local Rules, Rules 5.5.1 & 5.5.2). The court has the power to do so either through a Request for Order (“RFO”) previously discussed in paragraph eight, or through an ex parte hearing.

A RFO can be personally served at least 16 court days before the hearing. A RFO may also be served by mail, but five days are added for a service address inside the state, 10 days if outside the state, and 20 days if outside the country. Use of an overnight service inside the state only adds two days, not five (Cal. Code Civ. Proc. 1005).

An ex parte notice may be given verbally or in writing by 10 a.m. the day before ex parte relief is sought (Cal. Rules of Court, Rule 3.1200 et seq.). The ex parte application to the court must be in writing and contain, among other things, a declaration that there is irreparable harm or an immediate danger if the relief sought is not addressed (Cal. Rules of Court 3.1202(c)). The types of matters that will be heard ex parte are limited to emergencies. Because of court congestion and regular hearing dates often set months down the road in San Diego County, sometimes the ex parte process is abused. The legislature has set out the types of matters that may be brought ex parte, as follows: (a) to prevent immediate danger or irreparable harm to a party or children; (b) to prevent immediate loss or danger of harm to property; or (c) to set a shorter time period for hearing and continuing a hearing (Cal. Rules of Court, Rule 5.151). Either the court on its’ own motion, or upon a showing of good cause by a party, the court can also grant an order shortening the time for a hearing (Cal. Rules of Court, Rule 3.1300(b)).

For instance, Paul and Rhonda have been married ten years and have two children ages two and three. Paul works full-time while Rhonda has been a homemaker raising the children. Paul drains the joint bank account, moves out, and then files and serves divorce papers on Rhonda. She files a response. Both parties agree that Rhonda should have custody of the children with weekend visitation for Paul. But Paul, in a classic power and control move, refuses to voluntarily pay either child or spousal support thinking that it will force Rhonda to settle on his terms. Rhonda files an ex parte RFO for child and spousal support. She includes a declaration of irreparable harm because if she doesn’t have access to some money, she will not be able to pay rent, get the children to medical appointments, and generally keep up the marital home. Rhonda does not ask for money the next day at the ex parte hearing, but asks the court to shorten the time period in which one another must file Income and Expense Declarations (Judicial Council Form FL-150) and advance the time for a hearing. The court grants Rhonda’s motion and orders both parties to file Income and Expense Declarations supported by either the three most recent pay stubs or the last filed tax return within one week and sets a hearing in two weeks. In the meantime, Rhonda will support herself on a joint credit card that requires both parties to cancel the account. Rhonda gets her order for support within two weeks and Paul decides to voluntarily pay rather than have his wages garnished.

One must be careful to avoid the pitfalls of ex parte applications versus RFO’s because if one abuses the ex parte process, an already overworked judge and court staff may look upon that party with disfavor.