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We have a court date in two weeks. My exwifes attorney wont

We have a court date...
We have a court date in two weeks. My exwife's attorney won't tell me how much she wants in arrears. I don't owe her but I need a number so I can prepare for court.
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Answered in 1 minute by:
8/30/2013
Brandon M.
Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12,620
Experience: Attorney experienced in numerous areas of law.
Verified

Brandon M. :

Hello there.

Brandon M. :

Thank you for your question. What is the procedural history of this action? Who filed for what?

Customer:

  1. My exwife filed a modification of original divorce agreement from 2009.

Brandon M. :

Ok, so this part of your ex-wife's request for a modification of the original divorce order. How to arrears come into play? Why is that even an issue before the court in two weeks?

Customer:

She wants to go to court because her records of what I have been paying in child support are different than mine.

Customer:

After I gave her attorney my records, her attorney originally stated that she would be willing to negiate, but now she won't even tell me how much my ex is demanding in arrears.

Brandon M. :

Which form did she use to request a hearing? It should be on the top right-hand corner of her filing.

Customer:

She filed a request for order

Brandon M. :

It's probably something like "FL-300"

Customer:

yes

Brandon M. :

Ok, that would be the FL-300.

Brandon M. :

On the first page of the Request for Order, there are different boxes that can be checked. Some of the boxes are for things like "Child Custody" or "Child Support". Which boxes did she check off on that Request for Order?

Brandon M. :

Which boxes on the front page, just below the party names.

Customer:

child support

Brandon M. :

That's the only one? Interesting. When you go down to paragraph 3, "Child Support", there is a box "b" for requesting guideline child support, and a "c" for a monthly amount requested, if not by guideline. Which did her attorney request?

Customer:

sorry, she also checked modification. In paragraph 3 she checked B

Customer:

I completed the Income and Expense form and she actually did tell me that what I am currently paying her every month is about on target. Its just what she says I didn't pay her at very times over the last five years that she says I owe her for.

Brandon M. :

I don't see that arrears are in question here. You have said that your ex-wife is asking for a modification of the custody order and you have said that there is a dispute between you regarding how much arrears is owed, but what is in the Request for Order that suggests that the court is being asked to determine how much is owed?

Customer:

Sorry again, in the box in paragraph 8 she has checked "other" and it states a $200.00 tax bill and "Determination of outstanding Child Support Arrears.

Brandon M. :

Have you filed a response to the request for order?

Customer:

No because initially her attorney asked if I wanted to settle something out of court. Now that I am actually asking how much money my ex wants. The attorney isn't responding.

Brandon M. :

Thank you. I now have what I believe to be a clear understanding of the situation. Now that I understand what has happened, I don't want to make the wrong assumption about how I might help---what question may I answer for you?

Customer:

ok, thanks, XXXXX XXXXX is, does her attorney have to tell me how much money my ex wants before we go to court?

Brandon M. :

If she's only asking for a determination of arrears, she doesn't have to state in her request for order the amount she claims is owed. Technically, it would not be required to disclose the information--she could say that she has no idea what is owed and is just asking for the court's determination, so there's no requirement per se to give a number. That said, there are several considerations that should be taken into account.

First, the parties have a duty to meet and confer. I would refer you to California Rule of Court 5.98 http://www.courts.ca.gov/cms/rules/index.cfm?title=five&linkid=rule5_98 The refusal of a party to meet and confer prior to the hearing is grounds for a continuance or even a dismissal of the action if the circumstances justify doing so. Such a refusal would typically be brought to the court's attention at the time of the hearing (although, every case is different).

Second, if the other party has a specific number in mind and refuses to disclose it prior to the hearing date, even if the court made a tentative order, it would normally be appropriate to just ask for a trial at that point. The hearings are "law and motion" hearings--they are designed to be 5 minutes in length, and they are not evidentiary hearings. An actual trial requires the parties to actually prove their case.

I would just conclude by saying that you might next time want to consider using the formal discovery process... e.g. depositions or interrogatories.

Brandon M. :

Does that make sense?

Customer:

Ok, Thanks, XXXXX XXXXX my if I filed a response. What forms should I use. I already filled out the income and expense. I notice she has a declaration, should I attached my rebuttle or should it typed into a specific form. Also can I attach my own personal spread sheet and bank statements when I file all with the court?

Brandon M. :

Usually, one would respond with FL-320. http://www.courts.ca.gov/documents/fl320.pdf

Brandon M. :

As for attachments, I can't tell you whether you can attach specific forms that I have not seem. Generally, it's not a problem, but I would have to examine the specific sheet in the context of the specific response. I am sorry that I have those limitations in this format.

Customer:

ok, do I need to type my rebuttle to her declaration on a certain form?

Customer:

Can I attach my copies of cancelled checks and personal spread sheet when I file the forms with the court?

Brandon M. :

I apologize, but I don't understand your first question.

Brandon M. :

Could you please rephrase?

Customer:

Sure

Customer:

Attached to her "request for oder" is a page that is numbered and at the bottom says "Declaration of Theresa". I have typed a rebuttle. Is there a certain form or page that I have to type that on.

Brandon M. :

Ok, so you want to write out a declaration to attach to your response?

Customer:

Yes

Brandon M. :

Ok, let me recommend forms MC-030 and MC-031 (you can follow the links).

Customer:

great, and can I attach the copies of cancelled checks etc....to my filing?

Brandon M. :

It's certainly a possibility for any given case. I can't tell you whether you can attach specific documents that I have not seen. Generally, it's not a problem, but I would have to examine the specific documents in the context of the specific response. But it's certainly possible and I have done it in the past.

Customer:

ok, thanks for your help.

Brandon M.
Brandon M., Counselor at Law
Category: Legal
Satisfied Customers: 12,620
Experience: Attorney experienced in numerous areas of law.
Verified
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Category: Legal
Satisfied Customers: 12,620
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