Attorney Notes: CFLR Seminar 2009

FEBRUARY 14 & FEBRUARY 15
DEL MAR

1. Support

  1. Imputed income
    1. Use procedural posture to try and influence outcome
    2. Modification of support requires change of circumstance
      1. more or less than 10% from gross income from last order
      2. use most recent order for change of circumstance
      3. burden of proof is on person trying to modify
      4. imputation of income with vocational evaluation
  2. Change of circumstance
    1. Early retirement
    2. No employment= look to Gavron warning
    3. Time share
    4. Ages of child[ren]
  3. Income considered for support
    1. Ostler-Smith: percentage of bonus for additional support
    2. All income per family law code
    3. Disability
    4. Unemployment
    5. Wages
    6. Interest
  4. Enforcement
    1. Wage assignment
    2. Judgment
    3. Contempt
      1. State of California statutes
      2. Federal statutes
      3. use all income minus necessities of life which would meet federal standards
  5. Compromise of arrearage
    1. If not DCSS, can compromise arrearage with other parent
    2. If DCSS and non aid case, need agreement with other parent
    3. If DCSS and aid case, can negotiate directly with DCSS
  6. Adult child support
    1. Normally age 18 plus graduate high school or age 19
    2. Disabled adult child
    3. Agreements between the parties for child support either directly or by school expenses
    4. Do not agree to adult child support

2. Mediation

  1. Agreements
    1. Do not leave meeting until agreement signed by the parties and attorneys
    2. Include CCP 664.6 language
    3. State that this is the current agreement
    4. Make sure settlement can be disclosed per Evidence Code Section 1112

3. Immigration

  1. Timing of filing of Petition for Divorce
    1. Wait until conditional residency requirement fulfilled
    2. Domestic violence is exception
  1. It is a general rule that no one can control the conduct [statements, opinions] of others
  2. If needed, seek a temporary restraining order if conduct falls within the domestic violence or other grounds for a restraining order
  3. If there is a potential criminal or civil action, “innocent” spouse can file for divorce to try and insulate from potential restitution order or civil suit by victim
  4. 5. Transmutation

    1. Inter Spousal Transfer Deed
    2. Quit Claim Deed
    3. Revocable Living Trust
    4. After 1-1-85 all transmutations must be in writing
      1. Signed by party against whom to be charged
      2. Express declaration to change character of property
      3. Express means to change ownership or characterization
      4. No oral testimony is allowed
      5. Intent is not relevant
      6. No exceptions to the statute of frauds: partial performance; full performance; estoppel
    5. Fiduciary Duty
      1. Presumption of undue influence
      2. Presumption if advantage taken
      3. Breach of duty
      4. Constructive fraud
      5. Cannot gain an unfair advantage
      6. Inconsiderate compensation= most inter spousal transfer deeds, quit claim deeds and revocable living trusts do not have compensation at all
    6. Post Nuptials
      1. Continue with current procedure of not preparing or executing
    7. Moore-Marsden
      1. Many cases now with separate residences
    8. Reimbursement
      1. Family Law Code Section 2640
      2. Reimbursement to community for payments made on separate property.
    9. Direct Transmutation versus indirect transmutation
    10. All property during marriage presumed to be community
      1. Exceptions are inheritance, gift, title taken separately, transmutation, commingling and others
    11. Family Law Code 650 trumps Evidence Code Section 662
      1. Written title of property no longer controls

      6) Death of Party

      1. Obtain QDRO for non member spouse prior to judgment
      2. Local rules of court require joinder for bifurcation purposes
      3. Refer with writing to QDRO Pro’s in San Diego
      4. Family Trust cannot be revoked in case of marriage or transmutation
      5. Normally, revocable living trusts are not transmutations
      6. Marriage settlement agreement language will control over intestate succession in many cases however it is always preferable to have a revocable living trust prepared as soon as the judgment is final.
      7. Emphasizes need for revocable living trust immediately after judgment
      8. Look to language in MSA which will waive all inheritance rights from the others

      7) Attorney Fees

      1. No unreasonable positions
      2. No appeals
      3. Notice court when hearing not proceeding in timely manner
      4. Blaming paralegals and associates is not mitigating and is aggravating
      5. Do not misrepresent to the court.
      6. Do not suborn perjury
      7. Relative financial circumstances

      8) Declarations of Disclosure

      1. Attached all documents to pleadings
      2. Prepare and serve preliminary declaration of disclosure with initial pleadings
      3. File proof of service of preliminary declaration of disclosure with proof of service of petition and summons
      4. Continuing obligation to provide documents exists and after judgment if an issue is reserved or if property is to be jointly sold or divided
      5. Both spouses have a right to material facts and material information a
      6. d the other spouse has a duty to provide
        1. Material
        1. identity
        2. character
        3. expenses
        4. income
        5. valuation
      7. Ways in which material facts and material information can be obtained
        1. formal discovery
        2. informal discovery
        3. private investigator
        4. asset search
        5. subpoena
        6. internet
        7. corporations code applicable if corporation is community property
      8. Purpose of discovery rules
        1. truth seeking process for valuations
      9. Enforcement of obtaining material facts and material information when not provided
        1. Motion to compel
        2. Motion excluding evidence at trial
        3. Section 271 sanctions
        4. Sanctions shall be in the amount sufficient to deter repetition of the conduct or comparable conduct
        5. Includes reasonable attorney fees

      9. Children and Jurisdiction

      1. Ex parte orders for change of custody and visitation
        1. Showing of immediate harm to child
        2. Need evidence such as police report or CPS report or other compelling evidence
        3. Recent acts of domestic violence
        4. Pattern of domestic violence
        5. Immediate risk of removal from California
        6. Sexual abuse
      2. Drug testing
        1. Extends until 1-1-13
        2. Cannot disclose or use drug tests outside of family law court= penalties
        3. Must show by preponderance of evidence
          1. habitual
          2. frequent
          3. continual
        4. Only urine test
      3. Custody evaluations
        1. Cannot disclose contents
        2. Lodge with court
      4. Change of Circumstances
        1. New trend does not look as much to change of circumstances given below
          1. best interest of children
          2. frequent and continuing contact
          3. age
          4. school
          5. residence
        2. Need to look whether initial order [pendente lite] which is temporary and without prejudice or permanent and under Montenagro
        3. Factors for best interests
          1. health
          2. safety
          3. welfare
          4. substantiated history of abuse of parent or child
          5. habitual or continual use of drugs and/or alcohol
      5. Parent Child Relationships
        1. Quality of parental attachment
        2. Parent attuned to child’s current development
        3. Realistic Assessments of child’s skills and challenges
        4. Instances of parental competency
      6. Child Focused Factors
        1. Developmental ages of children
        2. Special needs children
        3. Parental attachment
        4. Parental competence
        5. Parental awareness of child’s needs
        6. Past involvement of parent
          1. intact family
          2. allocation of parental responsibility
        7. Present availability of parent
          1. work hours
          2. use of day care
          3. use of other family members
        8. Logistics
          1. commute time
          2. exchange locations
          3. long distance travel times
          4. finances
        9. New partners and children
          1. relationship with new partner
          2. relationship with new partner’s children
          3. relationship with parent and new partner’s children
        10. Individual child’s personality and needs
          1. different time shares for different children
          2. different ages of children
          3. parent child relationship issues
          4. special needs children
        11. Children’s activities
          1. preseparation and post separation dynamics
          2. over scheduled
          3. expand or limit activities.
          4. different activities by different parents
          5. use of activities as method of interference
          6. inclusion of both parents
        12. Children’s preferences
          1. child interviews by FCS
          2. child interviews by minor counsel
          3. irresponsible children
          4. entitled children
          5. permissive parents
          6. manipulative parents
          7. permissive parents
          8. lawyer involvement
          9. Court’s duty
      7. Parent Focused Factors
        1. Alienating parent
        2. Entitled parent
        3. Drug use
        4. Alcohol use
        5. Pornography
        6. Sexual addiction
        7. Other addictive behaviors
        8. Domestic violence
        9. Child abuse
        10. Sexual conduct
          1. prostitution
          2. pedophile
          3. incest
        11. Redeemed parent
        12. Blame shifter parent
        13. Broken parent child relationships
        14. Task master parent
        15. Indulgent parent
      8. Parent-Parent Relationship
        1. History of sharing parenting responsibility
        2. Conflict resolution
          1. most divorces caused by inability to resolve conflict during marriage
          2. this needs to be changed in the divorce but is difficult
          3. nature and importance of conflict
          4. does one parent predominately cause conflict
          5. does one parent inappropriately avoid conflict
          6. does one parent wisely reduce conflicts
      9. Extended Family Relationships
        1. Promotes extended relationships with other parent’s family
        2. Protects child from unsafe family members of environments
        3. Sacrifices individual rights to assure child participates in important family passages
      10. Logistical Factors
        1. Physical accommodations
        2. Homework at the kitchen table
        3. Quiet place to study
        4. Separate bedrooms
        5. Separate beds

    10. Paternity

    1. Family Law Code 7643(b) expanded
      1. Agents of the attorney
        1. letter with jurat and notarized
        2. mandatory language
      2. Set Aside motions
        1. Two years from date of notice of entry of default
        2. 2 year period from 1-1-05 to 12-31-06 {only if filed during this time}

      11. Adoptions

      1. Family Law Code 7613(b) is amended to include as not child’s natural father if sperm donation is made to
        1. Physician
        2. Sperm bank
        3. In vitro fertilization
      2. Family Law Code 7660.5 is amended to presumed father and waiver of notice
        1. Signed before representative of department of social services
        2. Authorized public or private adoption agency
      3. Family Law Code 7662(a)(3) is amended so that birth father may execute a waiver of notice or denial of paternity
      4. Family Law Code 8700 is amended so birth parent may sign consent and waiver before judicial officer or adoption service provider of parent is represented by counsel
      5. Family Law Code 9205 is amended and delayed until 7-1-10
        1. Lowers age to 18 for sibling requests for contact
        2. Expands siblings to include half and step siblings
        3. Allows adoptees to waive confidentiality for contact information
        4. Increases fees for independent adoptions and requires 50% payment at time of Petition with balance due as set by the department of social services
        5. Waiver of fees allowed only for very low income

      12. Procedures for Obtaining Juvenile Court Records

      1. Welfare and Institution Code Section 827
      2. California Rules of Court Section 1423
      3. Ask for in camera inspection
      4. Notice of lodgment and not filed

      13. Emergency Jurisdiction

      1. Hague if international custody
      2. Hague is not a child custody determination and only a jurisdictional determination
      3. Within states, only for as long as emergency exists

      14. Indian Child Welfare Act

      1. Must apply Act
        1. Dependency
        2. Adoption

      15. Domestic Violence

      1. Minor’s interview
        1. Series of questions
        2. Interview child
        3. NEVER attach a letter from a child to any pleadings
        4. Ask mediator to meet with child
        5. Send any necessary pleadings and obtain expert
        6. Ask for evidentiary hearing if necessary
      2. Current divorces increase chance of domestic violence
        1. Financial stress
        2. Family stress
        3. Foreclosure
        4. Credit card issues
      3. Highest time for lethality is when TRO issues
      4. Multiple text messages are sufficient
      5. Domestic Violence and Custody cases
        1. Risk assessment factors
          1. Abusive-controlling violent relationships
          2. conflict instigated violence
          3. violent resistance
          4. separation instigated violence
      6. Level of Severity, Dangerousness & Risk of Lethality
        1. Use or history of drug abuse
        2. Use or history of alcohol abuse
        3. Separation
        4. Job loss
        5. Home loss
        6. Loss of custody
        7. Severe financial problems
        8. Depression
        9. Mental illness
      7. Assessment of Risk Based on Screening
        1. History of threats or physical violence
        2. Disregard or contempt for authority
        3. History of emotional abuse and attacks on self esteem
        4. One party dominates decision making in all areas
        5. Partner is isolated or restricted from outside contacts
        6. Obsessive preoccupation
        7. Stalking
        8. Hostage taking
        9. Threats of abduction
        10. Multiple litigation for harassment
      8. Goals of Court and levels as to action needed to be taken
        1. Protect children
        2. Protect parent’s rights
        3. Protect rights of adult victims
        4. Hold perpetrator accountable
        5. Allow child access to both parents
      9. Practice Tips
        1. Risk assessment by attorney
        2. Risk assessment by professional
        3. Estimate of threat
        4. Consider litigants who attack attorneys
        5. Treat both sides and all involved with courtesy and respect to lessen threat

      16. Marriage Cases and Proposition 8

      1. Registered Domestic Partnerships
        1. Putative partner doctrine
        2. Good faith belief that domestic partnership is valid
      2. Key dates for these issues
        1. January 1, 2005: Domestic Partnership Law enacted
        2. May 15, 2008: Marriage Cases Decisions issued
        3. June 16, 2008: Marriage Cases Decision final
        4. November 4, 2008: Electorate considers Proposition 8
        5. November 5, 2008: Actions filed to stay Proposition 8
        6. November 8, 2008: Proposition 8 amends or revises constitution
        7. November 19, 2008: California Supreme Court issues Order to Show Cause
        8. to consider issues in the first 3 cases
        9. December 13, 2008: election results certified
          1. 52.3% in favor
          2. 47.7% not in favor
        10. January 5, 2009: briefs due
        11. March 5, 2009: oral argument
        12. June 2009: decision to be made by California Supreme Court
      3. Compelling State interest
        1. Sexual orientation
        2. Suspect class
      4. Core Issues identified by California Supreme Court
        1. Is Proposition 8 a revision of the California constitution or an amendment?
        2. If Proposition 8 is valid, what happens to marriages between June 16, 2008 and November 8, 2008?
        3. Does Proposition 8 violate the separation of powers doctrine?
      5. Statistics
        1. Estimated 100,000 same sex couples in California
        2. Marriage cases did not revive the 4,000 same sex marriages performed in 2004
        3. Since the marriage cases decision, approximately 12,000 same sex marriages
      6. State of the Law
        1. Five countries recognize same sex marriage
        2. Massachusetts, California and Connecticut have legalized same sex marriages
        3. New Jersey and Vermont have ruled in favor of benefits but not of title
        4. Iowa Supreme Court now has issue in front of it
      7. States with Domestic Partnership Laws
        1. California
        2. New Hampshire
        3. New Jersey
        4. Vermont
        5. Hawaii
        6. Maine
        7. Oregon
        8. Washington

      17. Support Deductibility

      1. Family support
        1. Unallocated support
        2. 100% tax deductible to the payor
        3. 100% taxable to the payee
        4. Do not tie to certain even [age of majority or others]
        5. Always add the language that the support terminates upon the following
          1. death
          2. remarriage
      2. Spousal support [alimony]
        1. Deductible in year which paid
      3. Internal Revenue Code Section 1041
        1. No taxes between spouses for division of property at divorce settlement
      4. Not a good idea to file an amended return
      5. Not a good idea to have both parents filing for the same child as a deduction
      6. Cannot deduct spousal payments when parties live together
      7. Order of application of payments
        1. Child support
        2. Interest
        3. Arrear

      18. Innocent Spouse

      1. Limited applicability
        1. Look to whether community property was used to pay taxes
        2. Look to whether community property was liable to pay debts

      19. Sanctions

      1. Never misrepresent to the Court
      2. Never file an appeal and refer to another attorney
      3. Never file a motion another reasonable attorney would not
      4. Never file a motion if there is no reasonable chance of success

      20. Mandatory Dismissals if no judgment

      1. Divorce
        1. Exception if there are temporary orders for support

      21. Confidential Marriage and Nullity

      1. No common law marriage in California
      2. Confidential marriage licenses
        1. Valid for 90 days only in same county where issued
        2. Shield parties and children from publicity
        3. Encourages persons to legalize relationships
        4. Requirements
          1. unmarried adult man and woman
          2. living together as husband and wife
        5. Benefits
          1. no health certificate required
          2. license not available to public inspection
        6. Nullity
          1. Fraud as to procreation
          2. Fraud as to intent to live as husband and wife

      22. Soldier’s and Sailor’s Relief Act

      1. 90 day stay
      2. Consider appointment of counsel
      3. Need letter from commanding officer
        1. Military duty affects ability to appear in court
        2. When the service member will be available
        3. That there is no leave authorized for court appearances