Sample Family Law Trial Brief: California Rule 5.394 and Format

A California family law trial brief is the written argument you serve and file before trial that tells the judge the undisputed facts of your case, identifies the issues to be decided, previews your witnesses and expert reports, and explains why the law supports the outcome you want. Its required contents come from California Rules of Court, Rule 5.394, its formatting comes from the general filing rules at Rules 2.100 through 2.119, and it must be served on every other party and filed with the court at least five court days before trial.

What Rule 5.394 Requires You to Include

Rule 5.394(a) sets the minimum list. Every family law trial brief the court orders must contain each of the following.1Judicial Branch of California. California Rules of Court 5.394 – Trial or Hearing Brief

  • Statistical facts: the dates of marriage or domestic partnership and separation, the length of the marriage in years and months, and the names and ages of any minor children. If any of these are disputed, flag the disagreement.
  • A short, neutral case summary of what happened and what each side is asking for.
  • A statement of issues listing the specific questions the judge needs to resolve, such as custody, support amounts, or how to divide a particular asset.
  • A summary of any expert reports or appraisals you plan to introduce.
  • A witness list with each witness’s name, a description of what they will say, and, for expert witnesses, their qualifications and business address.
  • Legal argument analyzing how the relevant statutes and case law support your position, organized under headings that track the issues.
  • Anything else the judge ordered at the trial-setting conference. That order must be provided to you in writing before the conference ends.

Rule 5.394 does not require a table of contents or a table of authorities. Those are required for memoranda supporting civil motions under Rule 3.1113, but that rule does not govern family law trial briefs.2Judicial Branch of California. California Rules of Court Rule 3.1113 – Memorandum Your county’s local rules or the judge’s individual order may add either requirement, so check both before you finalize the brief.

The judge decides at the trial-setting conference whether trial briefs will be required at all.3Judicial Branch of California. California Rules of Court 5.393 – Setting Trials and Long-Cause Hearings If they are, and if the judge adds anything to the Rule 5.394 list, treat those additions as mandatory. Missing a required element carries the same risk as missing the filing deadline.

Formatting Rules That Apply to Every California Filing

Rules 2.100 through 2.119 govern the physical format of any document filed in a California trial court. They are not specific to trial briefs, but a brief that ignores them can be rejected by the clerk.

Paper must be 8½ by 11 inches, white.4Judicial Branch of California. California Rules of Court Rule 2.103 – Size, Quality, and Color of Papers The font must be essentially equivalent to Times New Roman, Courier, or Arial, printed in black or blue-black ink at a minimum of 12 points.5Judicial Branch of California. California Rules of Court Rule 2.104 – Font Size; Printing Lines must be either 1.5-spaced or double-spaced and numbered consecutively down the left margin. Footnotes, block quotations, and real property descriptions may be single-spaced.6Judicial Branch of California. California Rules of Court Rule 2.108 – Spacing and Numbering of Lines

The first page follows a specific layout: the filing party’s name, address, and phone number appear in the upper left, the court name is centered below, and the case caption with the case number sits on the right.7Judicial Branch of California. California Rules of Court Rule 2.111 – Format of First Page

Rule 5.394 does not set a statewide page limit, but many local courts do. Los Angeles County caps family law trial briefs at 15 pages.8Superior Court of California, County of Los Angeles. Long Cause Trial Package Guidelines Find out your county’s limit before you start drafting so you can budget your arguments.

When to File and How to Serve

The brief must be served on every other party and filed with the court at least five court days before the trial or long-cause hearing.1Judicial Branch of California. California Rules of Court 5.394 – Trial or Hearing Brief Court days exclude weekends and court holidays. Count carefully, and count backward from the trial date rather than forward from today. A Monday holiday in the week before trial can quietly turn a comfortable schedule into a late filing.

File a proof of service confirming that every opposing party or their attorney received a copy. If you miss the deadline, the judge may refuse to read the brief or discount it, which effectively wastes the work. Finishing two or three days early gives you time to proofread, verify exhibit references, and confirm that your witness list matches the testimony you actually plan to elicit.

Custody Arguments: Best Interest of the Child

If custody is at issue, frame the entire argument around the best interest of the child. Family Code Section 3040 sets the order in which the court considers potential custodians, starting with both parents jointly or either parent individually, and it directs the court to evaluate best interest under the factors in Section 3011.9California Legislative Information. California Family Code 3040

Section 3011 lists the factors judges weigh:

  • The child’s health, safety, and welfare, including stability of the home environment.
  • Any documented history of abuse by a parent or anyone seeking custody, against the child, the other parent, or a current partner. The court may require independent corroboration such as police reports or protective services records.
  • The nature and amount of contact with each parent, and which parent is more likely to facilitate ongoing contact with the other.
  • Habitual use of illegal drugs or alcohol by either parent, again subject to independent corroboration.

The court cannot consider a parent’s sex, gender identity, gender expression, or sexual orientation.10California Legislative Information. California Family Code 3011 – Best Interests of the Child Tie each factor you argue to specific evidence: declarations, school records, therapist reports, or testimony from a witness on your list. Judges notice when a brief makes broad claims about a child’s welfare without pointing to anything in the record.

Child Support: Guideline Calculations and the FL-150

California uses a statewide formula for child support, set out in Family Code Section 4055, that depends on each parent’s net monthly disposable income and the percentage of time each has physical custody.11California Legislative Information. California Family Code FAM 4055 In practice, courts and attorneys run the calculation through guideline software, most commonly DissoMaster. Your brief should state the inputs used, report the resulting guideline amount, and explain either why the court should adopt it or why it should deviate.

The income figures come from a current Income and Expense Declaration, Judicial Council Form FL-150, which both parties must file. The form requires copies of your pay stubs for the last two months and directs you to bring your most recent federal tax return to the hearing.12Judicial Council of California. Income and Expense Declaration (Form FL-150) You should also have your spouse’s FL-150 with their two months of pay stubs and their tax returns from the last two years.13California Courts. Decide if You Have the Information You Need If the other side’s disclosure is incomplete or outdated, say so in the brief. Judges are skeptical of support arguments built on stale or one-sided income data.

Spousal Support: The Section 4320 Factors

Unlike child support, permanent spousal support has no statewide formula. The judge weighs the factors in Family Code Section 4320:

  • Each spouse’s earning capacity and whether it is enough to maintain the standard of living established during the marriage, taking into account job skills, the labor market, and time out of the workforce for domestic responsibilities.
  • Contributions the supported spouse made to the other spouse’s education, training, career, or professional license.
  • The supporting spouse’s ability to pay, considering income, assets, and earning capacity.
  • The duration of the marriage. Longer marriages generally support longer or indefinite awards. For marriages that are not “long duration” (typically under ten years), a common benchmark is support lasting roughly half the length of the marriage, though the court has discretion to order more or less.
  • Documented domestic violence by either party, including emotional distress inflicted by the supporting spouse on the supported spouse.
  • The age and health of both parties.
  • The goal that the supported spouse become self-supporting within a reasonable time.

Address each relevant factor with evidence, not just a recitation.14California Legislative Information. California Family Code 4320 – Spousal Support Considerations If you are requesting support, connect your financial need to specific facts. If you are opposing it, show how the factors weigh against an award.

Property Division and the Date of Separation

California is a community property state. The default under Family Code Section 2550 is an equal division of the community estate, which includes virtually every asset and debt acquired from the date of marriage through the date of separation, regardless of whose name is on title.15California Legislative Information. California Family Code 2550

Proving the Date of Separation

The date of separation is often the most contested fact in a property case, because it draws the line between community and separate property. Under Family Code Section 70, the date of separation occurs when there has been a complete and final break in the marriage, shown by two things: one spouse expressed an intent to end the marriage to the other, and that spouse’s conduct was consistent with that intent.16California Legislative Information. California Family Code 70 – Date of Separation Thinking about divorce or sleeping in another room is not enough. The court considers all relevant evidence, so build a clear timeline in your brief with texts, emails, lease agreements, bank account changes, or anything else fixing when the break became real and final.

Tracing Separate Property and Section 2640 Reimbursement

If you claim an asset is separate property, or that you used separate funds to acquire community property, you carry the burden of tracing. Family Code Section 2640 entitles a spouse to reimbursement for separate property contributions used to acquire community assets, such as a down payment on the family home made with inherited money. The reimbursement is the amount contributed, without interest or inflation adjustment, and it cannot exceed the net value of the property at the time of division.17California Legislative Information. California Family Code 2640 – Reimbursement for Separate Property Contributions Qualifying contributions include down payments, payments for improvements, and principal payments on a loan. Interest, insurance, maintenance, and taxes do not qualify.

Back up your tracing with bank statements, inheritance documents, or gift records showing the money’s path from a separate source into the community asset. Vague assertions that funds “came from an inheritance” without a paper trail will not hold up.

Dividing Retirement Accounts

Retirement benefits earned during marriage are community property, but you cannot simply withdraw from a 401(k) or pension and hand half to your spouse. Private employer plans governed by ERISA require a Qualified Domestic Relations Order to divide benefits without triggering taxes or early withdrawal penalties. A QDRO must specify the names and addresses of both the participant and the alternate payee, the name of each retirement plan affected, the dollar amount or percentage of benefits to be paid, and the time period or number of payments covered.18Office of the Law Revision Counsel. 29 USC 1056 – Form and Payment of Benefits A QDRO cannot require a plan to provide a benefit it does not already offer or increase benefits beyond the plan’s terms.

Submitting the proposed order to the plan administrator for pre-approval before the judge signs it can save months of back-and-forth. Federal civilian pensions (FERS and CSRS) are divided instead through a Court Order Acceptable for Processing filed with the Office of Personnel Management, and the Thrift Savings Plan uses a Retirement Benefits Court Order. Using QDRO language for federal benefits will result in rejection. If your case involves any government retirement plan, identify the correct division mechanism in the brief and flag the procedural requirements specific to that plan.

Tax Consequences to Address in the Brief

Property transfers between spouses incident to divorce are generally tax-free under Internal Revenue Code Section 1041. No gain or loss is recognized when property is transferred to a spouse or former spouse if the transfer happens within one year after the marriage ends or is otherwise related to its end.19Office of the Law Revision Counsel. 26 USC 1041 – Transfers of Property Between Spouses or Incident to Divorce The receiving spouse takes the transferring spouse’s basis, so any built-in gain or loss travels with the asset. This matters in practice: a $500,000 house with a $200,000 basis is not the same as $500,000 in cash, even though both look equal on a spreadsheet. Account for basis when arguing for a fair division of high-value assets. The tax-free rule does not apply if the receiving spouse is a nonresident alien or if the transfer involves property in trust where liabilities exceed adjusted basis.

Spousal support tax treatment changed with the Tax Cuts and Jobs Act. For divorce or separation agreements executed after December 31, 2018, alimony is no longer deductible for the payer and is not taxable income for the recipient. The payer is now paying with after-tax dollars, and the recipient keeps the full amount. Factor that into any support figure you propose.

When Bankruptcy or Active Military Duty Is in the Picture

A bankruptcy filing by one spouse triggers an automatic stay that halts most litigation, but family law cases get significant carve-outs. Federal law lets these matters proceed despite the stay: actions to establish or modify child support or spousal support, custody and visitation proceedings, paternity actions, domestic violence proceedings, and the divorce itself, except to the extent it seeks to divide property that has become part of the bankruptcy estate.20Office of the Law Revision Counsel. 11 USC 362 – Automatic Stay The property division carve-out is the critical one: custody and support can proceed, but division of estate assets waits for the bankruptcy case to resolve or for the trustee to abandon the property. If bankruptcy is in the picture, address it directly in the brief and identify which issues can move and which are frozen.

Family law debts get special treatment on the discharge side. Domestic support obligations, meaning child support and spousal support, are completely non-dischargeable.21Office of the Law Revision Counsel. 11 USC 523 – Exceptions to Discharge Property settlement debts owed to a spouse or child that are not support obligations are also non-dischargeable under a separate provision. If you are owed an equalizing payment, characterizing it as support rather than property settlement gives you stronger enforcement tools if the paying spouse later files bankruptcy.

If either spouse is on active military duty, or within 90 days of leaving active duty, the Servicemembers Civil Relief Act allows a request for a delay of trial proceedings. A proper request requires the court to grant a stay of at least 90 days. The request must include a statement explaining how military duties prevent the service member from appearing and a letter from the commanding officer confirming that the service member cannot attend and that military leave is not authorized.22Office of the Law Revision Counsel. 50 USC 3932 – Stay of Proceedings When Servicemember Has Notice The service member can request additional stays with updated documentation. Filing a request does not count as a court appearance and does not waive any defenses. If the opposing party is on active duty, expect the possibility of a stay and plan your timing accordingly. If you are the service member, raise the issue as early as you can rather than at the trial date.