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Attorney Notes: Briefcase Seminar, February 21, 2009
1. Residence Character Issues
- Transmutation
- Trusts
- Consider title search of all residences for history of above
- 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
- 300 per hour approved for attorney with the below circumstances
- Unaccredited law school
- Family law case
- Trial experience in excess of average associate
- American standard
- Each pay their own attorney fees
- Statute
- Agreements
- Proof
- Declaration from client
- Bills to client
- Add details to billing memo and then redact work product in bills submitted to court
- Pro per attorneys
- Cannot receive attorney fee award Cannot receive CCP 128.7 sanctions
- No contingency fees in family law cases
- 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
- Personal injury awards= normally not income for support purposes
- 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
- Vocational evaluation
- Burden of proof on party modifying current order
- Ability
- Resume
- Education
- Past job performance
- Past earnings
- Spouse’s testimony
- Opportunity
- Want ads
- Employment agencies
- Witness testimony
- Letters from previous employers
- Pay scales of available jobs
- Willingness
- No need to prove this
- Deferred salary is to be included as current income for support purposes
- Irregular income [Ostler/Smith] and percentage
- Look to when paid and adjust support not amortized over 12 months but in month when bonus income paid
- When to impute income
- 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
- Different state for order: enforcement in California
- Look to parallel concurrent orders on California DCSS support
- Must refer to other state order
- Post child support order in another state may nullify order from DCSS
- Potential survivability of validity and enforcement of California order
- Timeline for court orders
- Look to difference between RURESA petition and UIFSA petition as can have different results
- Different state for order: enforcement in California
- Crediting support arrearage
- CCP 695.221
- First to current month’s support
- Second to principal amount of the judgment remaining unsatisfied
- Third to accrued interest
- Ask for DCSS audit as necessary
- If disagree with DCSS audit, retain independent forensic accountant
- CCP 695.221
- Transmutations
- Evidence Code Section 662: presumption of title
- Family Law Code Section 760: normally trumps EC 662
- No oral [parole] evidence normally allowed
- 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
- New case law and will have to wait for California Supreme Court opinion
- Hague Adoption Convention ratified by the United States
- Effective April 2008
- 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
- 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
- Always look to the procedural posture of the case for burden of proof
- Default Paternity Judgments
- Family Law Code section 7646 enacted on September 28, 2004 and effective on January 1, 2005
- Permits males named as fathers in default paternity judgments to file a motion to set aside the default paternity judgment within two years
- Need genetic tests
- Home Schooling
- 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
- Third party joinder for in family law court for grandparents whose child has either been incarcerated or in custody
- If in home, must show that this was a wholesome and stable environment
- Family law codes for joinder and orders
- 3040
- 3041
- 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]
- “Putative” status applied to domestic partners
- Child Abuse Central Index is a database of known and suspected child abusers
- Definition of “former cohabitant” for penal code section 273.5
- 2 month relationship is within code
- 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
- Permits domestic violence victim to terminate lease
- 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
- 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
- Emergency jurisdiction
- Uniform Child Custody and Jurisdictional Act applies
- Confidential marriage
- Living together as husband and wife when marry
- Family Law Code Section 500
- Nullity
- Fraud towards procreation still grounds
- Fraud towards intent to be man and wife now new grounds
- Same Sex Marriages
- Proposition 8
- Review by California Supreme Court
- If sexual orientation is a constitutionally suspect class then strict scrutiny is standard
- Effect on marriages from June of 2008 until November of 2008 during period of time when marriage was legal in California
- Issues for consideration
- Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment of the California Constitution?
- Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
- 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
- Not required to be same last name or to change name when married
- May elect to change name to
- Other spouse’s current last name
- Other spouse’s last name at birth
- Hyphenated last name
- A combination of the above
- Must accommodate parties under Americans with Disabilities Act
- Do not have to accommodate if below
- Failure of party to satisfy rule in invoking Americans with Disabilities Act
- Would create an undue financial or administrative burden on court
- 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
- 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
- Motion for reconsideration
- By party with noticed motion per requirements of code
- By Judge sua sponte
- Death or remarriage must terminate spousal support for deductibility
- Use of work “unallocated support” most commonly referred to as “family support”
- 100% tax deductible to payor and 100% included in income for payee
- One time individual retirement amount/401K change
- People over 70 ½ must make minimum withdrawals from individual retirement accounts, 401K, 403(b) to avoid tax penalty
- For 2009 [only], the required minimum distribution has been eliminated
- Check with certified public accountant