The Bresso Law Blog

Bankruptcy and Family Law Blog

Do we have to go to court? Stipulating to Issues in Divorce, Child Support and Visitation

Last week I attended an order to show cause (OSC) hearing for one of my family law clients.  The OSC was to modify child support.  We were at the court for about about two hours and ended up agreeing to a modification without going before the judge.  A stipulation and order was drafted and the judge signed off on it.  Now, if respondent had called me before the hearing we may have been able to work out something ahead of time and had the hearing take off the court’s calendar.

To answer the question, no, you don’t always have to go to court.  Well, specifically you don’t always have to attend a hearing.  I know issues surrounding divorce, child support and visitation are often contentious.  You don’t want to give an inch and neither does the other parent.  But if you are one of those individuals who are having a “friendly” divorce or are on good terms with the father or mother of your child, then maybe you can agree to things by stipulation before your hearing.

A stipulation is an agreement between the parties.  If you stipulate (or agree) to something, then the judge doesn’t have to decide the issue and can make an order based on what you’ve agreed on.  For example, if you and your ex agree on a visitation schedule for your children, you can file a stipulation with the court setting out the visitation schedule.   From my own personal experience, my ex-husband stipulated to giving me sole legal custody in exchange for closing the Department of Child Support Services (DCSS) case against him (i.e. no more child support).  We filed a stipulation with the court and I didn’t even have to file an OSC to get a hearing (which saved us the filing fee, too).

So how do you get your stipulations?  First, you and the other parent have to agree, which is not always and easy thing.  You can try and sell the idea of stipulation by telling the other parent it will save them time and money by agreeing ahead of time.  If you and the other parent, have an informal agreement already, you can emphasize that it will just turn what you’re already doing into a court order.

After you and the other parent hash out the agreement, you will need to file it with the court.  The California Court has two forms, one for custody and visitation and the other for child support that you can use to do this.  You can find all the California Court forms by visiting the California Courts Self Help Center at http://www.courtinfo.ca.gov/selfhelp/and clicking the link to “forms” at the top of the page.  With the forms, all you’re doing is checking the boxes that set our your agreement.

For child custody and visitation the form is FL-355.  You will need additional forms that set out your custody and/or visitation schedule or you can attach your own document that spells it out.  A good one to use if MC-025.  It’s a blank  judicial council form that you can use to write out your custody and visitation schedule and attach it to FL-355.

For child support, the form is FL-350.  This form is a little more complicated because you’ll need to show what the guideline support amount would be.   You can use the free calculator on the DCSS website at http://www.childsup.ca.gov/default.aspx and click on the “Calculate Child Support Link” on the left side of the page.  However, I recommend paying an attorney to figure out the guideline amount for you and you can attach the print out to your stipulation.  This form also covers health care  and travel expenses for visitation.  If DCSS is involved in your case, then you will need to get them to sign off on the agreement as well.

I think it’s always a good idea to get your custody, support, and visitation issues made into court orders.  Even so, that doesn’t necessarily mean you have to appear in court.  Try resolving your issues through stipulation and save yourselves the time and money of appearing in court.

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October 12, 2010 - Posted by | Family Law | , , , , ,

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