Proposed Orders and their Purpose
Proposed Orders are a common feature in the Family Court. Contrary to the use of proposed orders in the appellate system where they are frequently used to memorialize an order, proposed orders in the Family Court are used for the purpose of memorializing the agreement and/or decision of the Court. In family court, a proposed order is an agreement between the parties that is reduced to writing upon which the Court enters a ruling by filling in the blanks. Proposed orders can be used in virtually any area of family court law and, almost without fail, there is a proposed order for each issue before the court. When the various issues are heard by the court (or by an agreement of the parties), the judge or court master will dictate each proposed order from the bench and they will be typed while the parties wait. In larger cases, the Court will approve the order after it is typed and will enter the order at a later date.
Whether using the online fill-in-the-blank proposed orders mandated by the Supreme Court of Pennsylvania or a specialty form customarily used in a jurisdiction, the purpose of all proposed orders remains the same. A property settlement agreement reached between the parties with regard to equitably distributing marital estate and/or alimony is reduced, at least in part, to a proposed order. For example, the amount of the distributive award and/or alimony is filled in on the proposed order. Thereafter , the actual exchange or change of assets may occur pursuant to a proposed "Transfer Agreement" or "Recital of Agreement."
When a party files a divorce complaint, the court will set a hearing date before the Master. At the time of the Master’s hearing, the parties will be in possession of a copy of the case history, discovery requests, interrogatories, etc. so that they are prepared for trial before the Master. In these large cases, there can be a proposed order for: equitable distribution, child support, child visitation, alimony, exclusive possession of the marital home, protection from abuse final orders, custody, etc. The proposed order(s) will be typed while the parties wait so that they can walk out of the court house with the signed order.
Proposed orders are also used in divorce cases that are contested; where one party is not in agreement with the request of the moving party, but the moving party is able to convince the court to enter the proposed order on the record. In these cases, the proposed orders can be used to spell out both sides of the argument. Using the same example as above, there will be a proposed order for: equitable distribution, child support, child visitation, alimony, exclusive possession of the marital home, protection from abuse final orders, custody, etc. The parties may or may not walk out of the court house with the signed order, but the proposed orders, if filled out properly, will contain all the items in dispute so that the parties will have a good idea about where the Court is going to rule on each issue.
Instances for Use of Proposed Orders
Proposed Orders are most commonly used when a party is seeking temporary orders for child related issues, as well as temporary orders for visitation with children while the divorce is pending for issues of custody, parenting time, child support and health insurance, cssp (deviations for child support). Perhaps one of the most important times that proposed orders are used is for emergent issues; an example of such an emergent issue is where someone believes their spouse is about to do something that will place them in physical or economic peril. It allows a litigant to "cut to the chase" and have a judge hear an issue quickly without a lengthy trial or even a final hearing (although sometimes the emergent issue may lead to a matter being settled before trial or final hearing). Proposed orders are often used to address issues that arise during litigation. For instance, in a high-conflict custody case, the litigants may wish to have the appointments of an independent parent coordinator and/or guardian ad litem addressed prior to the final hearing. Proposed orders are also used to settle discovery issues or for attorney’s fees. Because issues may be addressed expeditiously, a judge may decide to make a ruling on the record and the parties just prepare a proposed order memorializing the judge’s decision. I have been involved in cases where the proposed orders are even entered on behalf of unrepresented parties when one party writes them and they are signed by the judge. Because these cases often involve parties who are reaching settlement on their own, the proposed orders may be in the form of a settlement agreement, although they ultimately need to be approved by the court. There are situations where parties will prepare a consent order. That can be used where all parties are agreeable and there is no dispute between them as to what is in the best interest of the child or a matter. It is essentially a settlement agreement informed by the advice of counsel, and it may be entered after an aspect of the case is heard. The requirements of the local rules must be carefully reviewed.
Distinction Between Proposed and Final Orders
Proposed orders differ markedly from final orders in several important ways. For example, the actual Order that you see on a Judge’s official letterhead and which has a stamp on it with the date and time that it was written is a different document from the Proposed Order that is created by the attorney who requested the hearing. If an Order is signed by the Judge, then it becomes effective. If however, the Proposed Order is just signed by the Judge, it is not signed or time stamped and it will not be entered as an Order until the parties actually submit an order to the court. In fact, the Judge’s signature only serves as a stamp of approval and gives the attorney the go ahead to submit the Order to the court for entry.
Also in the motion for temporary relief process, after the hearing a copy of the proposed order is prepared and sent over to the Judge’s judicial assistant for entry/a signature. Within a day or so of the hearing, some Judges will have their assistant send a notice of motion hearing back out to the parties advising them that the proposed order is now signed, while others will not do this. Unless it’s obvious that the proposed order has not been signed, the attorney who seeks a temporary beak order should not assume that it is not going to be signed. If the parties are concerned about whether the order was going to be signed then the attorney should follow up with the assistant to the Judge where the motion for temporary relief was filed.
Creation of a Proposed Order
Parties and/or their attorneys are usually responsible for drafting the Proposed Order. The Proposed Order should contain the essential clause or terms for which the Court made a determination and/or should reflect the agreement of the parties as to any issues presented for hearing. At the very least, a party must submit the form for the Final Judgment, even if it is blank, and leave blanks to be filled in by the Court as to the specific terms. Depending upon the issues involved in the case, these terms may include: the date and time for the parties to exchange information for income and expenses; provisions for the division of debts of the marriage; if child support has been determined by the Court, it will also identify the parties’ names; their respective incomes; a base number for child support (depending on the number of overnights the child spends with each party); provisions for extraordinary medical expenses for the child; and provisions for health insurance. In order to be comprehensive and useful, a Proposed Order for Equitable Distribution should also reflect the decisions made by the Court and/or the parties as to the asset values and which party will receive which assets, the debt allocations and the reasons therefor, the amount and type of alimony (if any), and the reasons therefor. If the parties have not made an agreement as to any of the above, then the Proposed Order(s) should reflect same and/or leave the blanks.
The Approval of Proposed Orders in Family Court
If the judge approves the terms of a proposed order, then the order will become binding and can be enforced by contempt if not followed. If the judge does not approve the terms in the proposed order, then the judge will either (1) sign the form and hand write in terms that the judge believes should be in the order, or (2) return the form to the parties with instructions regarding the changes that the judge wants made prior to signing the order.
If the order is handed back with instructions, then the parties should get together in an effort to come to an agreement as to terms that everybody can live with. Oftentimes, one party will wish to have a "final" say on the terms of an order rather than making the judge write inside the order what the judge wants in the order. If the other side does not agree to the terms, then that party’s attorney will either fill in the proposed order and send back the proposed order with all of the terms the other attorney agreed to in an effort to have the judge sign the order as is, or the holding attorney will write up the order with the terms that his or her client believes are best for the order. If the terms are agreeable to both parties , then the proposed order, with all terms filled in, will be provided to the judge. If the judge believes that the terms are good, then the judge will sign and date the order. If the judge does not believe that the terms are good, then the judge will follow the two steps described above.
In the family law arena, there is often a large amount of post-judgment litigation. Oftentimes, just like a complaint can be contested, a proposed order can be contested. If only one party feels that the terms of the proposed order are acceptable, then that party will file a motion with the court for entry of the proposed order. The other party will then have the chance to file an objection with the court, contesting the entry of the proposed order. Sometimes, there is a history of proposals being filed with the court repeatedly. If the judge feels that the parties have been coming into the court too frequently regarding minor and/or trivial issues, then the judge may require that the parties try to resolve these issues on their own (i.e. mediation, discovery, etc..), or take the case to trial. We find that almost all family law issues can be resolved.
Attorney v. Self-Represented Individual
The role of attorneys and self-represented litigants in preparing proposed orders
Attorneys play a key role in the preparation of proposed orders. Good attorneys will attempt to have their clients review the proposed order before it is submitted to the Court. Attorneys also have the ability to ensure that the proposed order is submitted to the Court in a timely fashion. Additionally, attorneys are able to add their remarks to the proposed order which will provide the Court with context and allow the Court to understand the issues that were resolved or left unresolved.
Self-represented litigants are given different time frames to submit the proposed order once it has been approved by the Judge at an Interim or Final hearing. The time periods oftentimes range from twenty (20) days to sixty (60) days, although they can be shortened or lengthened depending on the circumstances of the case. On the plus side, if a proposed order is submitted by a self-represented litigant promptly, it allows the submission of an issuance of a dissent in the order to appeal sooner if the litigant was not pleased with the results of the Interim or Final hearing. Without a timely submitted proposed order, the litigant may have to wait up to an additional twenty (20) days to submit the dissent. Prior to submitting the proposed order, a self-represented litigant should attempt to review the contents of the proposed order with the opposing party in a good faith attempt to resolve any discrepancies. In the event that the litigant is asked to approve the proposed order, this approval can most efficiently be done through the use of the e-Court access system (if applicable) or by using a handwritten notation that clearly states their approval on the proposed order.
Effect of Proposed Order on Case
Proposed orders in family court can have a significant impact on the legal outcome of a case. Preparing and submitting a proposed order is standard practice. Nonetheless, whether it is a proposed order that a party creates for the judge to consider or a copy of the order that was actually entered by the judge, there is often great uncertainty as to its effect on the case. In some cases, a proposed order may be the only written record of what occurred in court. This can occur if, for example, in an oral ruling, the judge gives the parties or their attorneys specific instructions regarding what may be included in the order regarding incidental terms for the parties such as the amounts of alimony or child support, the details concerning the marital residence, and the transactions with joint assets. The judge will hear arguments as to the relevant circumstances and give general directions as to how the order should read. Obviously, the hearing has a clear impact on the case; however, what actually makes it onto the order may seem immaterial because it is just a transcribed rendition of what the judge already ordered. However, the proposed order can now have a significant legal impact. Depending upon the level of detail and the language of the proposed order, it may or may not have the actual meaning that attorneys may ascribe to it. For example, is the child support amount in the proposed order net of certain costs, or does it not include the costs? Does the proposed order direct a specific result for a specific item of property, or does it empower the recipient to dispose of the item and pay a certain amount? If there are differences, or if a party is left with adjectives as opposed to an exact description, it is possible that the proposed order is subject to different interpretations. Despite the fact that the judge hears the testimony and actually enters the proposed order, it is the proposed order that trumps: "It is a well-settled rule that the terms of a [court’s] order are to be gleaned from the order itself, not from parol, or extraneous, testimony by those involved in the proceedings." Wright v. Nichols, 445 N.C. App. 474, 481 (2019). Upon appeal, attorneys for the parties will argue about what the order means. The result can be either favorable or unfavorable to the client. Other times, when there is no dispute, a proposed order may not be material to the legal outcome in the case because the dispute involved a very narrow area of the law. However, the proposed order itself did not have the intended effect. For example, the proposed order is entered, the parties comply and operate under it as though it is the court order, and then it is discovered that the order submitted was improperly drafted or had errors in it. For instance, if at the hearing the judge hears testimony that on the same date the parties’ business tax returns are due, it is determined that the parties’ were engaged in the business on the date of separation and, therefore, alimony would be based upon income available from the business, the parties might agree to enter an order providing that amendments to the filed return shall be drafted by either party and that they will expand upon the language used for determination of income under the tax returns. If the proposed order does not reflect the true agreement of the parties, then there is no ability to go back and fix it without creating a dispute about the entry of an amended order. If the proposed order is clear, however, the judge can enter precisely what was intended and then the parties can proceed to compliance. It is always wise to have a valid written agreement such as a court order that follows what the parties actually did at the hearing. One does not have to wait for the official order from the court if the proposed order has already created some ambiguity. Technically, the parties may even be able to enter the proposed order into the record of the court.
Appeal of a Proposed Order
A proposed order can also be challenged if you feel that the terms are not in the best interests and welfare of the child involved. If a motion was filed as a request for a temporary order, and the judge has granted leave to hold a hearing on the matter where final orders will be made, then the proposed order will be in place temporarily until the hearing takes place and if the judge agrees with the proposed order.
At this time you may argue against the proposed order. If you wish to do this, then it is your responsibility to file the objection prior to the hearing. In your objection you must explain why the proposed order should not be signed in it’s present form. It is then the court’s responsibility to schedule the hearing and provide a copy of the objection to both parties.
If you are requesting changes to specific items in the proposed order, you should create a document that lists in detail all of your objections to the proposed order and the reasons for the objection , but you must request that the judge deny or modify the order before the order is changed.
If an objection to the proposed order is not filed then the contents of the order will stand as "law of the case" unless a timely objection to the entry of final order is made. The law of the case is the rule of law established by a given decision which the conduct of the same case must conform as long as the decision stands.
Under circumstances outside the "law of the case" rule the undesired contents of the order can be challenged or questioned.
In the event that you missed the deadline and did not file an objection to the entry of final order, and wish to challenge the contents of the order, then you will need to…the procedure for which varies by state where it involves the filing of a motion to reopen the matter or a motion to set aside with the court.
Substantial rights are those which the law entitles a party to insist upon, ascertaining who shall have the custody of the children of the parents at all times, and all matters for the children’s protection.