A declaration is a written statement made under the penalty of perjury. If you are filing a “Request for Order” (or responding to a “Request for Order”) asking that the Judge enter orders providing you some type of temporary “relief”, you will need to attach a declaration explaining the basis for your request and the facts that support it.
Examples of Request for Orders (RFOs) include (but are not limited to) requests for:
- An enforceable parenting plan
- Modification of an existing child support or spousal support order
- Establish child support or spousal support
- Control over certain property pending the full resolution of the divorce (think vehicles, bank account, marital home)
- An order for attorney fees or costs
- Reinstatement as beneficiary of a life or health insurance policy
Your declaration will be read by your judge and possibly even your court mediator if child custody is at issue. Your spouse will also read your declaration and if you establish strong enough facts, it might give you the leverage you need to settle issues before they end up in the courtroom.
We’ve compiled 10 tips to ensure that your declaration is on point.
1. Ten Pages:
According to California Rules, a declaration (attached to your RFO or response to RFO) may not exceed 10 pages. That being said, it’s very rare you need to use all 10 pages to get your point across. In fact, judges find it quite frustrating when you repeat facts or requests or include irrelevant information. Assuming your spouse files a Response to the RFO, you may also file a “Reply,” but it is limited to five pages in length.
2. Plain English in Your Own Words:
Judges do not expect non-lawyers to use legalese. Actually, contrary to popular believe, most judges don’t even like lawyers to use ‘fancy’ lawyer talk. They are overburdened, tired, have huge caseloads and are pressed for time. They want you to get to the point in a clear, concise way and in your own words. Judges want the declaration to be written by you and about you. If they sense some third party wrote the declaration it won’t be seen as credible, authentic or persuasive.
3. Numbered Pleading Paper (i.e. Documents, Declarations):
While it’s not required, if you are attaching to an RFO, you’ll score big points if you write your declaration on numbered pleading paper. Use 12-point font and easy-to-read, professional font (think: Times New Roman).
4. Bullet Points:
Consider highlighting your actual requested orders or some of your compelling points by using bullet points or bold font. This is an effective way of letting the court know that this is a summary of your key points and position.
5. Organize, Proofread & Condense:
Organization is everything and will help you prepare your argument should the matter proceed to a court hearing. Some of the hearings where we have obtained the best results included really well-thought-out declarations. If your RFO includes a request for child custody and child support, consider the following outline:
a. Introduction: When were you married, when did you separate, what are your children’s names and ages? Summary of your requested orders (e.g., “I am requesting an order for joint child custody, guideline child support and shared ‘add on’ expenses like private school and swim class for our children”).
b. Background: What have been the parenting arrangements since separation? If it has changed, how so? How have expenses been paid? Do your kids have special needs? What type of work do each of you do? Are you both gainfully employed? How much do you earn? Have you sacrificed your career to take care of the home and/or kids?
c. Compelling Facts (and give specific, concrete examples): State the basis for the orders you are requesting. Why is your proposed parenting plan best for your children? Does your spouse have a substance abuse or anger management problem that impacts his or her ability to parent? Is there a significant disparity of income and/or assets between the two of you? Does one spouse have free or low-cost housing that enables him or her to pay more support or receive less? Has your spouse refused to negotiate in good faith or to communicate with you about these issues before filing an RFO? Is your spouse preventing your access to joint funds?
d. Conclusion: Clearly state the exact orders you are requesting. “Given the foregoing, I am requesting that the court order the following: (1) The children reside with me every week on Mondays and Tuesday and every other weekend Friday through Sunday morning, 9am.; (2) Guideline (per the state guideline formula) child support; and (3) holiday and vacation time be shared equally pursuant to a schedule determined in mediation or as proposed in the attachment.
- If you are responding to your spouse’s RFO, here is an example of language you may want to consider (adjust according to the facts of your case): “I respectfully request that (1) Petitioner’s request for child support be denied since s/he is capable of being self supporting but has recently quit his/her job; (2) a parenting plan be implemented that provides the children will alternate residences on a 2-2-5 (day) schedule; and (3) we share equally the cost of all unreimbursed/uncovered medical expenses.
6. Avoid Bashing Your Spouse:
There are ways to make your declaration compelling without not so subtly hinting to the court that you are angry with your spouse. Judges want you to respect your spouse (even if you can’t stand him or her). In fact, if you don’t, it could be a basis for awarding custody to the ‘respectful’ spouse. Instead of “my spouse is an alcoholic who can’t even take care of him/herself, let alone our kids” try “I am concerned about my spouse’s ability to care for our children since s/he has a long history of drinking 5-10 alcoholic drinks per day. In fact, against my objection, there have been times that s/he has driven our children after consuming several martinis.”
7. Pick and Choose:
Consider your demands. Are they reasonable? Will they matter to you in a year or two? Do you really need access to a (joint) vehicle when your parents recently gave you a reliable, comfortable and safe car? Don’t ask for something out of spite – it’s not worth it and the judge may get frustrated.
You may make an attachment to your declaration, including documents that are compelling or relevant to your case (just make sure to refer to them in your declaration). So, for example, if your spouse is claiming that s/he has no liquid funds but you have a (recent) bank statement proving otherwise, attach it! (But be sure to redact all but the last four digits of the account number). Or, if your child is late to school every time your spouse takes her to school, attach school records indicating absences or late arrivals and the dates accompanying them. Photographs can also be quite persuasive. If your spouse claims that your children are unhappy or afraid of you (an extreme example, I know), attach recent photographs of your kids enjoying time with you.
9. Under Oath:
Before signing your declaration, you must attest to the facts you stated under the penalty of perjury. Example: “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on [insert date] at [insert city and state].” (Then sign and date).
10. Final Points:
Add anything else you think it is important for the judge to know about you, your spouse and/or your children. Have an unbiased person review the Declaration for grammar/spelling/formatting and for clarity and persuasiveness. Think about having a legal coach review and revise. You will save time and money by drafting on your own (after all, only you know the facts intimately well), but consider having a lawyer review and make some suggestions or revisions based on his or her experience successfully litigating issues similar to yours. With all of these points in your hip pocket, you are sure to be in good shape going into negotiations and/or court.