Attorney Notes: Attorney Briefcase Seminar, February 26, 2010

February 26, 2010
San Diego, California

This seminar covered divorce, child support, family law, paternity, child custody, family law courts and procedures, alimony, annulment, marriage law and proposition 8 issues, father’s rights, mother’s rights, parent’s rights, spousal support, child visitation, child custody, UCCJEA, the Hague Convention and many other topics.

After a juvenile court exit order, there needs to be a change of circumstance to modify the parenting plan of the exit order and this is not a best interests test.

The purpose of Family Law Code Section 2030 is to achieve parity in the ability to hire an attorney and litigate. In determining attorney fees, the Court should look at the big picture for a pendente lite attorney fee award and should consider the relative circumstances of the parties.

Spousal support factors contained in Family Law Code Section 4320 can be used as additional factors for determining spousal support.

New mate income can be considered for an attorney fee contribution even though generally irrelevant in child support matters.

Test for attorney fees in appeals are that the trial court must consider how to apportion the over all cost of the litigation equitably between the parties under their relative circumstances.

Attorneys in pro per cannot receive attorney fees.

If appeal issues, request statement of decision, findings of court and computation of any financial issues.

Always file income and expense declaration when financial issues are before the court.

A defense to Family Law Code 271 sanctions is that it would impose an unreasonable burden on the payor. Use the income and expense declaration for proof.

If noticed of bankruptcy, no further family law proceedings pending bankruptcy court approval. Sanctions can be imposed if proceed with family law case in violation of the stay in federal court. Some limited exceptions.

Seek work orders are to submit every two weeks, or at another frequency deemed appropriate by the family law court, a list of at least five different employment applications in person at the job site. Can ask for internet inquiries given the current job market and application process since many companies do not accept in person applications.

Gifts can be considered as income for determination of child support calculations.

Free rent cannot be included in the calculation for child support but can be used for the court to deviate from guideline. These are for “non cash” items. Better result would be to use a percentage under the Ostler-Smith method.

Bonus income, if regular, is to be considered income for support purposes both child and spousal. The burden of proof is on the payor to show that the bonus will not continue. This would need a declaration from the employer that the bonus would not continue.

Deferred salary can be used for both child and spousal support calculations.

An important consideration for transmutations is to obtain a title search which shows refinances and loan applications as well as revocable living trusts.

Loan applications which list income can be rebutted when the proof is that the applicant does not make that income and is “puffing” for loan application purposes.

For calculation of child support, only use 50% of the community property income for calculation. For enforcement of child support, can use 100% of community property.

Temporary spousal support should be higher than permanent spousal support.

Reinvestment income, unsold stock, home equity and inheritances are not considered for the child support calculation.

Exceptions for child support are not necessarily the same as for spousal support.

Guidelines for imputing income for deferred benefit plans and retirement accounts: less than 59.5 years of age are not imputed; 59.5 years of age to 70 years of age are discretionary with the court and more than 70 years of age must be imputed.

For rates of return on investments either obtain an expert or agree to the prevailing CD rate or United States government bonds.

If need a motion to modify a permanent spousal support order, file motion to modify while child support still ongoing

After date of separation, no transmutations except in writing. The only exception is stipulation in open court. Even though parties divide, the Court has the duty to divide equally absent a written agreement or stipulation in open court.

Gifts between spouses cannot include vehicles.

No conditional transmutations. Most often seen in revocable living trust.

Once a guardianship has been in effect for more than two years, then can petition for adoption. Test is not then parental rights versus non parental rights. The rationale is that, for extended guardianships which are two years or longer, the child develops an interest in a stable and continuing placement and the guardian acquires a recognized interest in the custody and care of the child. The statute requires the court to balance all of the familial interest in deciding what is in the best interests of the child.

The family law code can be applied retroactively and this is constitutional. Family Law Code Section 4.

A voluntary declaration of paternity can trump a presumed parent under Family Law Code Section 7611.

A child can have a new birth certificate issues and then can adjudicate the issue of the parent-child relationship.

The Soldiers and Sailors Relief Act applies to family law and dependency cases.

For contempt proceedings, must prove [beyond reasonable doubt] the following: valid court order; knowledge of valid court order; non compliance with court order and ability to comply. For child support, burden on payor to show paid child support. For spousal support, burden on payee to show that spousal support was not paid. Must have contempt citation personally served.

States where same sex marriage is legal are Massachusetts, Connecticut, Iowa, New Hampshire, Vermont and District of Columbia.

Countries where same sex marriage is leal are Belgium, Spain, Canada, South Africa, Sweden and Mexico City.

No posthumous nullity actions.

Non putative spouse can claim community property interest as quasi community property but cannot be awarded attorney fees or spousal support.

Changes of middle name in family law are as follows under Family Law Code Section 306.5: a person may adopt any of the following middle names: the current last name of either spouse; the last name of either spouse given at birth; a hyphenated combination of the current middle name and the current last name of the person or spouse or a hyphenated combination of the current middle name and last name given at birth of the person or spouse.