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Legal Seminar Notes

Attorney Notes: Briefcase Seminar, February 21, 2009

1. Residence Character Issues

Transmutation
Trusts
Consider title search of all residences for history of above

2. Petition/Judgment

Give clients copies of all pleadings
Make sure clients understand the legal obligations in both of these court documents
Send closing letter to client with instructions to form new estate plan

3. Attorney Fee Hourly Rates for Fee Awards

300 per hour approved for attorney with the below circumstances
1. Unaccredited law school
2. Family law case
3. Trial experience in excess of average associate
American standard
1. Each pay their own attorney fees
2. Statute
3. Agreements
Proof
1. Declaration from client
2. Bills to client
3. Add details to billing memo and then redact work product in bills submitted to court
Pro per attorneys
1. Cannot receive attorney fee award
No contingency fees in family law cases

4. Adoption

Same sex second parent adoption is legal
County investigation fee raised to $4,500 with one half paid at time of filing of petition and one half paid prior to court hearing

5. Child and Spousal [Alimony] Support

Personal injury awards= normally not income for support purposes
1. No difference between lump sum or annuity payments
Capital gains= normally not income for support purposes
Statute is controlling on issue of income= if not in statute then not income
Imputation of income
1. Vocational evaluation
2. Burden of proof on party modifying current order
3. Ability
  1. Resume
  2. Education
  3. Past job performance
  4. Past earnings
  5. Spouse’s testimony
4. Opportunity
  1. Want ads
  2. Employment agencies
  3. Witness testimony
  4. Letters from previous employers
  5. Pay scales of available jobs
5. Willingness
  1. No need to prove this
Deferred salary is to be included as current income for support purposes
Irregular income [Ostler/Smith] and percentage
1. Look to when paid and adjust support not amortized over 12 months but in month when bonus income paid
When to impute income
1. Best interest of supported spouse with minor children before ability to earn or return back to work
Court can order child support set at $0 and reserve on medical insurance for an inmate sentenced to life
DCSS cases
1. Different state for order: enforcement in California
  1. Look to parallel concurrent orders on California DCSS support
  2. Must refer to other state order
  3. Post child support order in another state may nullify order from DCSS
  4. Potential survivability of validity and enforcement of California order
  5. Timeline for court orders
2. Look to difference between RURESA petition and UIFSA petition as can have different results
Crediting support arrearage
1. CCP 695.221
  1. First to current month’s support
  2. Second to principal amount of the judgment remaining unsatisfied
  3. Third to accrued interest
2. Ask for DCSS audit as necessary
3. If disagree with DCSS audit, retain independent forensic accountant

6. Community Property

Transmutations
1. Evidence Code Section 662: presumption of title
2. Family Law Code Section 760: normally trumps EC 662
3. No oral [parole] evidence normally allowed
4. Change title to an existing piece of property from date of marriage to date of separation: does not apply to new properties purchased in one name alone during marriage
5. New case law and will have to wait for California Supreme Court opinion

7. Custody and Visitation

Hague Adoption Convention ratified by the United States
1. Effective April 2008
2. Any United States citizen seeking to adopt and bring to the United States a child habitually a residence in another country which has ratified the Hague Convention must follow the Hague process
3. The purposes is to protect children and their families against the risk of unregulated adoptions aborad and ensures that intercountry adoptions are made in the best interests of the child[ren] and prevents the abduction of, sale of, or traffic in children and protects the rights of children, birth parents and adoptive parents and promotes transparency in the adoption process
Change of Circumstance
1. Always look to the procedural posture of the case for burden of proof
Default Paternity Judgments
1. Family Law Code section 7646 enacted on September 28, 2004 and effective on January 1, 2005
2. Permits males named as fathers in default paternity judgments to file a motion to set aside the default paternity judgment within two years
3. Need genetic tests
Home Schooling
1. Split authority on whether teaching credential needed and in court appeal process
Indian Child Welfare Act does not apply to family law cases as long as placement is with a parent and not third party
Third Party Joinder in Family Law Case
1. Third party joinder for in family law court for grandparents whose child has either been incarcerated or in custody
2. If in home, must show that this was a wholesome and stable environment
3. Family law codes for joinder and orders
  1. 3040
  2. 3041

8. Death of a Spouse

Severe consequences for failure to revise, create, change or reaffirm a life insurance policy
Revise revocable living trusts and wills immediately after judgment entered in divorce
If non member spouse, immediately finalize qualified domestic relations order or domestic relations order after judgment
If changes not made, look to marriage settlement agreement of back of judgment form [judicial council] and see if waiver of any or all appear
Revocable living trusts: cannot be conditional
Language can be inserted as to character and reimbursement [use family law code section 2640 for reimbursement if revocable living trust does transmute character]

9. Domestic Partners

“Putative” status applied to domestic partners

10. Domestic Violence

Child Abuse Central Index is a database of known and suspected child abusers
Definition of “former cohabitant” for penal code section 273.5
1. 2 month relationship is within code
2. Do not have to have a defined or stable residence during this time
Males can be victims of domestic violence as well
Victim of domestic violence is able to terminate lease under civil code section 1946.7
1. Permits domestic violence victim to terminate lease
2. Must notify landlord in writing [with copy of temporary or permanent or emergency restraining order] with a 30 day period that they are a victim of domestic violence and intend to terminate the lease within a 30 day period

11. Employment Benefits

Qualified Joint and Survivors Annuity Trusts
Use service or expert attorney for qualified domestic relations orders
Normally reservation over retirement benefits in marriage settlement agreement

12. Interstate Custody

Emergency jurisdiction
Uniform Child Custody and Jurisdictional Act applies

13. Marital Status

Confidential marriage
1. Living together as husband and wife when marry
2. Family Law Code Section 500
Nullity
1. Fraud towards procreation still grounds
2. Fraud towards intent to be man and wife now new grounds
Same Sex Marriages
1. Proposition 8
2. Review by California Supreme Court
3. If sexual orientation is a constitutionally suspect class then strict scrutiny is standard
4. Effect on marriages from June of 2008 until November of 2008 during period of time when marriage was legal in California
5. Issues for consideration
  1. Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment of the California Constitution?
  2. Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
  3. If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same sex couples performed when legal?
Name changes when married
1. Not required to be same last name or to change name when married
2. May elect to change name to
  1. Other spouse’s current last name
  2. Other spouse’s last name at birth
  3. Hyphenated last name
  4. A combination of the above

14. Procedure Before Trial

Must accommodate parties under Americans with Disabilities Act
Do not have to accommodate if below
1. Failure of party to satisfy rule in invoking Americans with Disabilities Act
2. Would create an undue financial or administrative burden on court
3. Would fundamentally alter the nature of the service, program or activity
Spoilation of evidence can result in adverse ruling
Mediation privilege is not absolute
Child Protective Services is immune from most lawsuits
1. Government code section 820.2
First Amendment and prior restraint
Fee waivers are available at the court house
Expedited process for interstate and international depositions

15. Procedure After Trial

Motion for reconsideration
1. By party with noticed motion per requirements of code
2. By Judge sua sponte

16. Income Tax

Death or remarriage must terminate spousal support for deductibility
Use of work “unallocated support” most commonly referred to as “family support”
1. 100% tax deductible to payor and 100% included in income for payee
One time individual retirement amount/401K change
1. People over 70 ½ must make minimum withdrawals from individual retirement accounts, 401K, 403(b) to avoid tax penalty
2. For 2009 [only], the required minimum distribution has been eliminated
3. Check with certified public accountant

★★★★★

Dear Roy, I would like to thank you and all team members as well as office staff for helping me defend in this case. It has been a difficult time for me during the last couple of weeks, and now because of this success result, I am able to move forward with my new chapter of life, even a little late at this age!!! Again with much appreciation, I wish you all to continue to do the same with a big heart as it was with me, in helping those who are in need of your professional services. W.

Thank you for your time and energy on this case, you took so much of the worry away from me! I appreciate all of your help. I will use and recommend you to other in the future. T.S.

I want to take this time to thank you and your staff for an outstanding job with my case to terminate spousal, you are an excellent attorney Roy, and your staff is very professional and considerate to my questions and concerns of my case. Thank you very much again. T.Y.

I wanted to say how much I appreciate your help and advice in regards to my name change. Your assistance during this time has been invaluable. Thank you again. M.J.

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