Sample and Exemplar Stipulations for Use In Marital Dissolution
and Other Family Law Proceedings
What is a Stipulation and how are they typically used in divorce and other family law proceedings?
Stipulations are agreements between the parties, or sometimes just the attorneys on the behalf of the litigants, as to any or all the issues in a pending case. They cover the spectrum from a simple continuance of scheduled court hearings, to agreements for temporary spousal support or child support, for payment of attorney fees, custody and visitation, the pre-division of community property or the confirmation and award of separate property, to the ultimate settlement of the entire case.
Most cases begin acrimoniously between the parties, since the relationship break-up is usually fresh and raw. This can make agreements difficult to reach in the early stages of a family law case. Often one or both sides feels compelled to seek temporary orders involving money and children, or specific restraining orders, and so in California "Requests for Orders" are filed seeking the relief a party feels entitled to or in need of and a court hearing is scheduled by the Clerk of the county Superior Court between 35 to 60 days down the road (although I understand cases are taking much longer to be heard in Los Angeles County and in northern California venues).
At the same, a growing number of people attempt to resolve some or all of their issues amicably at the outset. One way to lock in those compromises is by way of written Stipulations that comes to be filed with the Court and include a provision for the Family Law Judge or Commissioner to approve the document and so order each party to comply with its terms. While many lawyers will prepare Stipulations that only contain their signatures on behalf of their clients, this is a bad practice except for the most non-controversial of agreements - like a continuance of a hearing from February 15 to March 18. But where the litigants are agreeing to something of material importance, best practices require that they also sign the Stipulation document while the attorneys likewise execute it under the heading "Approved as to Form." The reason why the parties must also sign the Stipulation is to ensure their is an enforcement remedy in the event one party later wishes to renege on the deal, or otherwise ignore their stipulated obligations. If they themselves have not signed their names to it, and so have not been directly ordered to perform the terms set forth when the judge makes the Stipulation a Court Order, then remedies of contempt for violating the orders may not be available but more importantly a party may claim that their attorney exceeded their authority by agreeing to something that the client later claims that did not know of or consent to. Obviously, they do always sign when one or both is self-represented.
In my experience, 95% of all marital and domestic partnership dissolutions settle, sooner or later, and do not result in a court trial. However, along the way their may be court hearings for temporary orders pending the final resolution. These hearings come in many flavors, but typically involve requests for specific restraining orders outside the ATRO's created by Family Code section 2040 at the commencement of the proceedings (and service upon the Respondent) in disso and legal separation cases; requests for child custody and visitation orders; requests for spousal support (alimony); requests for child support; requests for attorney fees; agreements for exclusive possession and use of vehicles or residences; payment of certain debts; and any number of different types of "bifurcation" requests ranging from early termination of the marital status to the date of physical separation or the date of valuation for businesses and professional practices.
The most comprehensive form of Stipulation is the settlement of the entire case (or issues that have been reserved). Many lawyers draft these as "Marital Settlement Agreements" (MSA's) or "Marital Termination Agreements" (MTA's), but in our opinion the best practice is to utilize a form of "Stipulated Judgment" that does everything that MSA's and MTA's do, but which also contains more teeth in terms of later enforcement and resisting motions to later set aside the settlement agreement. This is because stipulated judgments contain specific direct orders by the judge who approves and signs the documents as to each item the parties have agreed to, and findings that the parties have knowingly agreed to each point and that their consent was informed and voluntary.
Here is a list of sample forms of Stipulations that may serve as exemplars for your use, to be revised and modified as is applicable to your case. They are for illustration purposes only. All of the names and identifying facts have been changed or masked to ensure anonymity.
This is the most basic form of Stipulation, entered into between the attorneys, where we were retained to late to file responsive paperwork to a spousal support RFO. Note there was no need in this situation to obtain the signatures of the parties themselves to sign the document.
I've modified the basic stipulation for continuance above to include maintaining hypothetical temporary orders; note that this requires the signatures of the parties themselves as well in order to binding on them to a certainty.
This stipulation was used to continue the Husband's request for spousal support orders because the Wife was unavailable on the date the matter was originally set. The quid pro quo was that the Court would issue retroactive orders at least to the date of the initial hearing, as well expressing maintaining jurisdiction to make the orders retro to the date of the filing.
- Stipulation for Temporary Custody and Visitation Orders
This Stipulation addresses temporary spousal support, a payment of attorney fees which wife agreed to be taxed on, and the responsibilities of the parties to pay family residence related debt while their home was listed for sale.
This Stipulation was used after we first obtained "no-notice" ex parte restraining orders freezing the subject safe deposit box pursuant to Cal. Financial Code section 1620. We were then able to go into the box and inventory the contents and take possession of the cash that was found there.
This is a complex Stipulation used to obtain consumer records from the parties in a dissolution relating to their Oregon accountants and lawyers, without the necessity of issuing a formal subpoena and going through a series of interstate hurdles that would otherwise be required.
What if you want to dissolve your marriage before the rest of the case (i.e., property division, permanent spousal support) has been concluded? You can either file an RFO to "bifurcate" the issue of marital status so that you become divorced now (or once and so long as the statutory six month 'cooling off' period required by Cal law has passed) or stipulate to dissolve the marriage with the other party without having to file an RFO or before the hearing on your request, while reserving everything else in the case to final determination later. Maybe you want to get remarried. Maybe you feel that your spouse cannot accept the fact that the marriage (or domestic partnership) is really over, and so he or she is stalling and generally being uncooperative. The termination of the legal relationship by a judgment imposes a level of finality that sometimes allows or motivates the other side to accept that fact and begin to move on. Where the other party is in agreement to end the marriage, the sample form above provides you a sample Stipulation that you might draft for their signature. Please be aware that there can be adverse legal or economic consequences from a bifurcation of marital status, usually for the requesting party but sometimes for the other party as well, or instead. Here is a Blog that explains the marital status bifurcation procedure and consequences in detail.
The list of potential sample stipulations is endless, and I will continue to layer in more and more as I can and upload and link stipulation exemplars. To make tracking this progress easier, I provide the date the page was created and the date of the most recent update.
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Created: January 12, 2014
Last updated: January 18, 2014