A declaration is a written statement made under penalty of perjury. If you are filing a Request for Order (RFO) or responding to an RFO 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 RFOs include (but are not limited to) requests for the following:
- An enforceable parenting plan
- Modification of existing child support or a spousal support order
- Establishment of 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 lawyer fees or costs
- Reinstatement as a beneficiary of a life or health insurance policy
Your declaration will be read by your judge and possibly your court mediator, if child custody is at issue. Your spouse will also read it. If you establish strong enough facts, it may give you leverage to settle issues before they go to the courtroom.
We compiled these 10 tips to help you craft a declaration that’s on point.
1. Fill 10 pages, max.
According to California rules, a declaration (attached to your RFO or response to RFO) must not exceed 10 pages. That said, it’s rare you’d need 10 pages to convey your point. In fact, judges get frustrated 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 that will be limited to just five pages.
2. Make your point in your own words.
Judges don’t expect non-lawyers to use legalese. In fact, most judges prefer that lawyers avoid “fancy” lawyer talk. They are overburdened, tired, and pressed for time with huge caseloads. In short, they want you to state your point clearly, concisely, and in your own words.
Judges want the declaration to be written by you and about you. If they sense that a third party wrote the declaration, it may not be seen as credible, authentic, or persuasive.
3. Use numbered pleading paper.
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 an easy-to-read, professional 12-point font like Times New Roman or Arial.
4. Use bullet points.
Consider highlighting your requested orders or some of your compelling points with a bold font or bullet points. This effectively conveys to the court your main points and position.
5. Organize, proofread, and condense.
The organization is everything. It will help you prepare your argument should the matter proceed to a court hearing. Hearings with the best results often involve extremely well-crafted declarations.
If your RFO includes a request for child custody and child support, consider the following outline:
- Introduction: When were you married? When did you separate? What are your children’s names and ages? Summarize your requested orders. For example, “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.”
- Background: Describe parenting arrangements since the separation. If arrangements have changed, how have they changed? How have expenses been paid? Do your kids have special needs? Are you and your spouse gainfully employed? What type of work do each of you do? How much money do you earn? Have you sacrificed your career to care for the home or the kids?
- Compelling facts: State concrete facts that support your requests. Why is your proposed parenting plan best for your children? Does your spouse have a substance abuse problem or an anger management problem that hinders their ability to parent? Is there a significant disparity of income or assets between the two of you? Does one spouse have free or low-cost housing that allows them to pay more support or receive less support? 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?
- Conclusion: Clearly state the orders you are requesting. For example, “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, 9 a.m.; (2) Guideline child support (per the state guideline formula); and (3) Equally shared holiday and vacation time 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 the type of language you may want to use (adjust according to the facts of your case): “I respectfully request the following: (1) Petitioner’s request for child support be denied since they are capable of self-support but recently quit their job; (2) The implementation of a parenting plan that provides the children will alternate residences on a 2-2-5 (day) schedule; and (3) Equally shared costs for all unreimbursed/uncovered medical expenses.
6. Avoid negativity toward your spouse.
There are ways to craft a compelling declaration without hinting to the court that you are angry with your spouse. Judges want you to respect your spouse, even if you can’t stand them. In fact, if you don’t, it could be a basis for awarding custody to the “respectful” spouse.
For example, instead of, “My spouse is an alcoholic who can’t even take care of themself, let alone the kids,” try, “I am concerned about my spouse’s ability to care for our children because they have a long history of consuming 5 to 10 alcoholic drinks per day. In fact, against my objection, there have been times they have driven our children after consuming several martinis.”
7. Choose your battles wisely.
Consider your demands. Are they reasonable? Will they matter 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 it may frustrate the judge.
8. Know how to use exhibits.
You may make an attachment to your declaration, including relevant documents that are compelling to your case. Just make sure to refer to them in your declaration.
For example, if your spouse claims they have no liquid funds but you have a recent bank statement proving otherwise, attach it. (Redact all but the last four digits of the account number.) Or, if your child is late to school every time your spouse takes them to school, attach school records indicating absences or late arrivals and the accompanying dates.
Photographs can also be quite persuasive. If your spouse claims your children are unhappy with you or afraid of you (an extreme example, I know), attach recent photographs of your kids enjoying time with you.
9. Attest to the facts.
Before signing your declaration, you must attest to the facts you stated under penalty of perjury. For 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. Ask a professional to review your document.
Ask an unbiased person to review your declaration for grammar, spelling, and formatting errors and for clarity and persuasiveness. Think about hiring a legal coach to review and revise your declaration.
You will save time and money by drafting the document on your own (after all, only you know the facts intimately well), but getting professional input from someone who has experience with similar issues can be immensely helpful.
With these 10 tips in your hip pocket, you are sure to be in good shape as you go into negotiations or visit the court.