RFO Hearings During Divorce

The prospect of appearing before a judge in family court can be one of the most stressful aspects of navigating a divorce or child custody dispute. And both the client and the attorney, including very experienced lawyers, feel that stress.

The dreaded “Request for Order” or RFO hearing – California’s primary method of getting individual issues in front of a judge for decision – can bring significant anxiety to the client-attorney team.

RFO hearings should be short, lasting no more than 10 to 15 minutes. Before the court date, each side submits a declaration describing their position on the issues. Declarations may be supplemented with pertinent legal information or financial data. On the appointed day, the parties attend the court hearing, each side hoping for the best.

Why, then, is going to court with a “Request for Order” so stressful in family law matters?

Certified Family Law Specialist NEIL FORESTER explains:

Though I’ve argued hundreds of RFO hearings all over Northern California, and though I know the courtroom procedures inside and out, the harsh reality of placing my client’s case before a black-robed decision-maker can be uncomfortably unpredictable.

Judges are people, too, after all. And different people feel differently about even the most straightforward of problems. With so many substantive problems – like support, custody, attorney’s fees and the like – left up to the sound discretion of the court, it should come as no surprise that outcomes can vary depending upon the judge’s predilections for interpreting the relevant law.

Nothing is ever a slam-dunk, despite the perceived simplicity of the issue – and we lawyers know this after suffering unexpected set backs on issues thought to be easy.

The judges have to consider both sides of the issue, not just one side . . . a perception that can trip up a lawyer who is paid to represent a client on only one side of that issue. And the judges all want to do the right thing, which in some circumstances may not be entirely what a divorce lawyer could predict based upon the Family Code and the case law.

This is not a discredit to the judges. Far from it. Our judges must protect the integrity of the process, and sometimes that requires an individual judge use their own discretion to effect the goal that both parties be treated fairly. This is inherently difficult to predict for lawyers – and is nearly impossible to predict for the individual client. Perspectives on fairness tend to differ between the parties, after all.

How does a client get the most out of a process that can be so difficult to predict?

In most cases, our family law clients are encouraged to be open to the idea of compromise before stepping into the courtroom for an RFO hearing.

The parties have a duty to “meet and confer” before arguing their positions before a judge. This typically takes place at the courthouse immediately before the hearing. Generally, both sides have something to gain by rational compromise. It takes the issue off the judge’s desk, and eliminates a nasty surprise ruling in RFO hearings.

Secondly, and simply put, we encourage our clients to really listen to our advice.

Most lawyers have been to court on the same or similar issues – maybe even in front of the same judge – dozens of times. We have a fairly good idea about how things will go. Do not discount that perspective. Attorneys often endeavor to settle a matter all the way up to the point when the clerk calls the case. Clients who put their faith in good counsel often get better results than they may otherwise.

What if the opposing party refuses to settle or compromise?

Not every case can be resolved during the “meet and confer” session. When push comes to shove, a lawyer who knows the court (the judge and the jurisdiction) and who has the confidence to present the best possible argument for you may be the best option.

“We do our best to ensure clients understand that no lawyer can completely eliminate the risk of an unexpected decision in court,” says Forester.

RFO hearings are almost never the best path to resolving issues given the unpredictability, so work with your attorney to find potential compromises wherever possible. If the hearing is unavoidable, we can only do our best – but the decision will be up to the judge on that day.

 

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FORESTER PURCELL STOWELL PC  is a Northern California law firm focused exclusively on specialized counsel for complex divorce and family law issues. The firm’s founders are recognized by the State Bar of California’s Board of Legal Specialization as Certified Family Law Specialists and regularly represent business owners, professionals, and other high net worth individuals (or their spouses) in divorce, premarital agreements, guardianships, and related actions. The legal team can be reached via our Contact Page or by phone at 916 293 4000. This information is general in nature and should not be construed as legal advice.
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