Temporary Orders During Divorce Mediation in California: A Step-by-Step Guide

If you and your spouse are mediating your divorce, temporary orders can still apply. Automatic restraints printed on the summons take effect when the case is filed and served. Beyond that, you can agree on custody, support and use of the home in a stipulation for a judge to sign. If you cannot agree, either spouse can ask the court to decide.

You and your spouse may have chosen mediation so the two of you could settle the divorce together. Then the same practical questions come up anyway. Who stays in the house next month? How do the children split their time? Who pays which bills while the case is open? Most people facing this process don't know whether these questions have to wait for a final agreement, or whether something has to happen in court first. This guide walks through that middle stretch step by step. It covers what is already binding, how a temporary agreement is made, and when a court hearing comes in.

Simple Divorce Mediation mediates California divorces for couples in San Diego County and, online, for couples anywhere in California. The steps below explain how temporary orders and private mediation run side by side. They also explain how the court's separate custody mediation fits in, so the whole picture is in one place.

If you are in immediate danger, call 911. Where there has been domestic violence, coercion or a protective order, safety comes first. Mediation with the other spouse may not be appropriate. The guide on when mediation is not appropriate covers this in more detail.

At a Glance: The Temporary-Orders Timeline

No single timeline fits every divorce, because each step depends on the spouses' circumstances.

• At the start. The ATROs begin at filing for the petitioner and at service for the respondent.
• Within the first months. Preliminary disclosures are generally due with the petition or response, or within 60 days of filing it, unless that time is extended.
• During the case. Temporary orders, whether stipulated or ordered after a hearing, can be made, and changed, at any point while the case is pending.
• At the end. The earliest the marriage can end is six months after service of the summons and petition or the respondent's appearance, whichever comes first. Temporary orders last until the court modifies them or enters the judgment.

Before You Start: What Temporary Orders Are and What They Can Do

A temporary order is a court order that sets how spouses and children live while the divorce is pending, before a final judgment is entered. It is not the final outcome. It holds things in place while the case moves forward, and the court can change it before the case closes.

Temporary orders usually fall into these categories:

• temporary child custody and visitation
• temporary child support
• temporary spousal support
• temporary use of property, such as the family home or a vehicle
• temporary restraining orders

The authority for temporary support appears in Family Code section 3600. While a dissolution or legal separation is pending, that section lets the court order either spouse to pay support for the other spouse. It also lets the court order either or both parents to pay support for a child. For custody, Family Code section 3060 allows a request for a temporary custody order to be filed with the first papers in the case or at any time after.

There are two kinds of temporary orders, and they work differently.

• Automatic Temporary Restraining Orders (ATROs). These are standard restraints printed on the divorce summons, the court paper that tells the other spouse a case has been filed. No one has to apply for them. They take effect on their own.
• Separately requested orders. Custody schedules, support amounts and exclusive use of the home do not come with the summons. They are set either by a stipulation the spouses sign or through a Request for Order, the court process for asking a judge to decide.

Neither kind resolves the divorce. Both stay in place only until the court changes them or a final judgment replaces them.

Step 1: Understand Which Temporary Orders Are Already in Place

The ATROs bind the petitioner, the spouse who files, as soon as the petition is filed. They bind the respondent, the other spouse, as soon as that spouse is served. They are mutual, which means the same restraints apply to both spouses equally.

The ATROs restrain both spouses from doing the following:

• Property. Transferring, encumbering, hypothecating, concealing or disposing of property, real or personal, without the other spouse's written consent or a court order. "Encumbering" and "hypothecating" mean pledging property as security for a debt. Ordinary business activity and spending on the necessities of life are excepted.
• Children. Removing the minor children from California, or applying for a new or replacement passport for them, without the other spouse's prior written consent or a court order.
• Insurance. Cashing, borrowing against, canceling, transferring, disposing of or changing the beneficiaries of any insurance held for either spouse or the minor children. This includes life, health, automobile and disability coverage.
• Nonprobate transfers. Creating or changing a nonprobate transfer, such as a beneficiary designation that passes property at death outside a will, in a way that affects how property would pass, without written consent or a court order.

Violating an ATRO can have legal consequences, and the restraints apply to each spouse, not only to the other one. The court's California Courts Self-Help Guide has the summons form and a plain-language explanation of these restraints.

ATROs do not set child support, spousal support or a custody schedule. If the spouses need those settled before the divorce ends, that takes another step.

Step 2: Decide Whether You Need Additional Temporary Orders

Couples often find this step clarifying. Once the ATROs are understood, couples in this situation face two paths: reaching a temporary agreement between themselves, or asking the court to set the terms through a Request for Order.

If you agree. The spouses can write their temporary arrangements into a stipulation, a written agreement both sign and submit to the court for approval. No hearing is required. Once the judge signs it, a stipulated temporary order is a court order, enforceable the same way as one decided after a hearing. Some kinds of stipulated orders follow their own rules for later changes — for example, a stipulated child support order below the guideline amount can be modified up to the guideline level without having to show changed circumstances (Family Code section 4065(d)).

Using mediation to reach it. Mediation is a process in which a neutral person helps the spouses communicate so they can reach an agreement they both accept (Evidence Code section 1115). The mediator does not decide anything for either spouse. A temporary stipulation on parenting time, support or who stays in the home is something spouses can work out in mediation, then submit to the court.

Child support has a limit on agreement. Parents may agree on a child support amount, but the court must approve it. Under Family Code section 4065(a), the court does not approve an amount below the guideline formula unless the parents declare all of the following:

1. They are fully informed of their rights concerning child support.
2. The order is being agreed to without coercion or duress.
3. The agreement is in the best interests of the children involved.
4. The needs of the children will be adequately met by the stipulated amount.
5. The right to support has not been assigned to the county, and no public assistance application is pending.

If you don't agree. Either spouse may file a Request for Order (RFO). The issues most often raised this way include:

• a temporary custody and visitation schedule
• temporary child support under the guideline formula
• temporary spousal support
• exclusive use of the family home
• attorney's fees and costs

Where there has been domestic violence, coercion or a protective order, mediation may not be appropriate, and safety comes first.

Step 3: Request a Temporary Order Through the Court (the RFO Process)

A Request for Order involves three parts: filing papers, serving the other spouse, and a hearing. The spouse asking for the order files the request with supporting declarations, which are written statements signed under penalty of perjury. The other spouse can file a responsive declaration before the hearing. At the hearing, both spouses or their attorneys appear, and the judge decides based on the papers and any argument.

The court applies a different standard to each issue.

Custody and visitation. The court decides what is in the child's best interest. Family Code section 3011 lists factors the court considers, including:

• the health, safety and welfare of the child
• any history of abuse by a parent or other person seeking custody
• the nature and amount of contact with both parents

Child support. The court applies the statewide guideline formula in Family Code section 4055. That formula is based mainly on each parent's net disposable income and each parent's share of time with the children. Under Family Code section 4057, the guideline amount is presumed correct. That presumption can be rebutted only in the circumstances the section describes, one of which is a stipulation that meets section 4065(a).

Spousal support. Family Code section 3600 lets the court order temporary support, consistent with subdivisions (i) and (m) of Family Code section 4320 and with Family Code section 4325. For support ordered after judgment, section 4320 sets out a fuller list of circumstances the court considers, including whether each spouse's earning capacity is enough to maintain the standard of living established during the marriage, and the supported spouse's marketable skills.

Attorney's fees. Family Code section 2030 directs the court to make sure each spouse has access to legal representation. Where needed, the court can order one spouse to pay the other's fees and costs, based on an assessment of income and needs.

Emergency custody orders. An ex parte order is one made on short notice, sometimes before the other spouse has had a chance to respond. Under Family Code section 3064, the court generally does not grant or change custody on an ex parte basis. It does so only when there is a showing of immediate harm to the child or an immediate risk that the child will be removed from California. Domestic violence or sexual abuse of the child that is recent, or part of a demonstrated and continuing pattern, are among the situations the statute names as immediate harm.

The California Courts Self-Help Guide explains the RFO process in plain language.

Step 4: Keep Mediation Moving While Temporary Orders Are in Place

Temporary orders stay in effect until the court modifies them or a final judgment replaces them. They do not pause mediation. A couple can live under a temporary custody schedule while working in mediation toward a lasting parenting plan.

What mediation can address. Mediation can cover the same subjects as temporary orders: custody, support and use of property. It can also cover the division of assets and debts, including issues like property division in mediation and retirement accounts in mediation. When the spouses reach agreement on any of these, they can submit it to the court as a stipulation. Once the judge signs it, it replaces or modifies the existing temporary order.

The mediator's role. The mediator is a neutral person who helps both spouses communicate (Evidence Code section 1115). The mediator does not represent, advocate for or protect either spouse, does not act as either spouse's lawyer, and does not decide anything.

Confidentiality, with limits. Under Evidence Code section 1119, what is said and written in mediation is generally not admissible as evidence and not subject to discovery, except as the Evidence Code's mediation chapter otherwise provides. That protection is not absolute. Under Evidence Code section 1123, a written settlement agreement signed by the spouses can be admitted or disclosed if any of these is true:

• it says it is admissible or subject to disclosure
• it says it is enforceable or binding
• all parties expressly agree to its disclosure
• it is used to show fraud, duress or illegality relevant to an issue in dispute

Lawyers are optional. Either spouse may have an attorney during mediation. An attorney who represents a spouse in mediation must give that client a printed disclosure of the confidentiality rules and get a signed acknowledgment, as soon as reasonably possible (Evidence Code section 1129). That happens before the client agrees to participate, or after the attorney is retained if that comes later.

Disclosure still applies. Mediation does not remove the duty of financial disclosure.

• Preliminary declaration. The petitioner serves a preliminary declaration of disclosure with the petition, or within 60 days of filing it; the respondent serves it with the response, or within 60 days of filing the response. Either period can be extended by written agreement or by court order (Family Code section 2104(f)). If the petition was served by publication or posting under a court order and the respondent files a response before a default judgment, the petitioner has 30 days from that response.
• Final declaration. A final declaration of disclosure and a current income and expense declaration are due before or at the time the spouses enter into an agreement resolving property or support, other than temporary support. If the case goes to trial, they are due no later than 45 days before the first assigned trial date. A court order for good cause can change this (Family Code section 2105(a)).
• Waiver. The spouses may waive the final declaration only mutually, never one spouse alone. A waiver must be executed under penalty of perjury and include the representations section 2105 lists.

Step 5: Modify or Dissolve Temporary Orders Before the Final Judgment

Life tends to keep changing during a divorce. A job shifts, a child's school changes, or a temporary schedule stops working. Temporary orders can be changed to keep up.

Two ways to change an order. A temporary order can be changed in two ways:

• By stipulation. Both spouses sign a new stipulation, which may come out of mediation, and the judge approves it.
• By a new Request for Order. A spouse files a new RFO, generally showing that circumstances have materially changed.

The same standards apply at modification. For custody, the court still looks to the child's best interest. For child support, the guideline formula still applies, and the court departs from it only in the circumstances section 4057 describes.

When a full agreement is reached. A mediated settlement agreement can resolve every issue: property, support and custody. It can then be submitted to the court. Once the court approves it and makes it part of the judgment, it replaces all temporary orders. The page on what happens after mediation and the guide to the divorce mediation agreement walk through that stage.

Signing an agreement is not the same as the court acting. A signed mediated agreement does not by itself end a temporary order. Temporary orders remain in effect until the court acts.

The six-month waiting period. The marriage cannot end before the waiting period in Family Code section 2339 runs out. Under that section, a judgment of dissolution is not final for ending the marriage until six months have passed from the date the summons and petition are served or the date the respondent appears in the case, whichever occurs first. This is true even when the spouses have resolved everything in mediation. The court may extend the period for good cause. The California Courts website has information on submitting a judgment by agreement.

When the Court's Custody Mediation Is Also Required

Private mediation and court custody mediation are two separate things. Under Family Code section 3160, each superior court must make a mediator available. When a petition or other filing shows that custody or visitation is contested, Family Code section 3170 requires the court to set those contested issues for mediation. That court process is not voluntary.

How it works in San Diego County. Family law cases in San Diego County are heard by the Superior Court of California, County of San Diego. There, the court's custody mediation is child custody recommending counseling with the court's Family Court Services (Family Code sections 3170 and 3183). Under Family Code section 3183(a), except as section 3188 provides, the court's mediator may submit a custody or visitation recommendation to the court, consistent with local court rules. The mediator must first give the recommendation in writing to the parties and their attorneys before the hearing. A mediator with that authority is called a child custody recommending counselor. Family Court Services calls this person the Family Court Counselor.

If there is no agreement. Family Court Services states that if no agreement is reached, the counselor makes a recommendation and the court hearing proceeds. The judge decides custody.

Domestic violence cases. Family Court Services handles these under a separate written protocol approved by the Judicial Council (Family Code section 3170(b)).

Different confidentiality rules. The Evidence Code's mediation confidentiality chapter does not apply to this court process (Evidence Code section 1117(b)). Instead, those proceedings are held in private and are confidential under Family Code section 3177.

Not connected to private mediation. Private divorce mediation with Simple Divorce Mediation is separate from, and not connected to, the court, Family Court Services or any government program. The comparison of private and court mediation covers the differences. The Superior Court of San Diego County and the Self-Help Guide describe the court's process.

When the process gets complicated

Custody is contested on the papers Once a filing shows custody or visitation is contested, the court sets those issues for its own mediation. Private mediation may continue on other issues at the same time. Parents looking to change an existing order later can read about mediation for custody modification.

There has been domestic violence or a protective order Safety comes first. Domestic violence restraining orders are a separate process from the ATROs. Mediating with the other spouse may not be appropriate.

One spouse is slow with financial disclosures Agreements on property and support depend on complete disclosure. The deadlines in sections 2104 and 2105 apply whether or not the spouses mediate.

Temporary support no longer fits When income or time-sharing changes, the spouses may stipulate to a new amount or one may file a new RFO. Below-guideline child support still requires court approval and the section 4065(a) declarations.

This guide does not cover how a particular judge would rule on your facts. It also does not cover domestic violence restraining order procedure in detail.

Talking Through Temporary Orders and Mediation

Temporary orders raise questions that touch the whole case. What is already binding? What can the two of you agree on now? What belongs in a stipulation, and how does it fit with the agreement you are working toward? A conversation with the practice can cover how mediation could address custody, support and property while temporary orders are in place, in San Diego County or online anywhere in California. If you and your spouse would like to talk with the practice about next steps, call Simple Divorce Mediation at 858-330-1378 for a joint mediation consultation.

About this article. Reviewed by Amy J. Lass, CA Bar No. 246779. Last updated 2026-10-08.