Attorney Notes: Briefcase Seminar, February 3, 2006

This was a legal seminar for divorce, legal separation, attorney fees and sanctions, bankruptcy, child support, community property, automatic temporary restraining orders, domestic violence, employment benefit, family residence issues, income tax, interstate custody, marital status, procedure after trial, procedure before trial, professional responsibility and spousal support including custody and visitation.  All attorneys licensed in California must comply with the continuing education requirement of the State Bar. This seminar was held in San Diego, California.  The experience of your attorney will be a significant factor in any decision to choose an attorney.   The below is an outline of the notes from this seminar.


A) ATTORNEY FEES AND SANCTIONS
    1) Attorney fees request after appeal
         a) File 271 motion under CRC 870.2 and use Rule 26(d) within 40 days from remittitur
    2) Sanction motion must be heard by same Judge who heard underlying motion
    3) If requesting fees from DCSS
         a) use CCP 128.7
         b) give “safe harbor” exception in written pleadings and time to withdraw
    4) Attorney and non parties can be sanctioned for allowing false abuse allegations in                       pleadings
         a) tailor declaration to only support facts and not allegations
         b) can be used to bring in an non party who has not been joined who makes false                               allegations
         c) no attorney factual declarations
         d) use FLC Section 3027.1(b)

B) BANKRUPTCY
     1) Cannot proceed if BK filed and
          a) trial on assets and debts
          b) enforcement of support against the BK estate
     2) IRA’s are exempt from being considered in the BK estate up to $1,000,000
          a) good asset protection

C) CHILD SUPPORT     
     1) If self employed
         a) subpoena and discover all loan applications within 36 months of DOS
         b) subpoena and discover all deposits in all bank accounts
     2) If fired for cause
         a) make a motion for modification immediately
         b) seek work order if opposing motion for modification
         c) ask for a list of all jobs applied for and make a list if applying for jobs
         d) consider asking for a list of all jobs in same industry not applied for
     3) Test for earning ability and imputation
         a) ability
         b) willingness
         c) opportunity
     4) Sub lessee versus Co lessee in renting applications
         a) better for payor to be co lessee so not considered income  
     5) Deviations to guideline
         a) very low income
         b) total money to parent considerations
     6) Time period for income to determine support calculations
         a) presumption= last 12 months average
         b) possibly better approach= YTD plus last 12 months average
     7) Phantom income cannot be used for support purposes
     8) Interest rate for imputation (investment) is based upon treasury notes
         a) FDIC insured
         b) no risk
     9) Increased value in equity in residence not used for support calculations
         a) good way to shelter appreciation from becoming income= invest in properties
  10) Can ask DCSS for compromise if reserve on active duty and make less money

D) COMMUNITY PROPERTY
     1) Reimbursement for support
          a) FLC 915: must analyze non exempt SP income on a monthly basis for reimbursement
     2) Fiduciary duty
          a) burden on party seeking to have agreement upheld as advantaged spouse
          b) use Haines analysis
               1) facts to overcome burden
                   a) other party fully understood transaction
                   b) questions were asked and answers were given accurately
                   c) no pressure applied
                   d) who controlled finances is an issue
                   e) make sure language not a problem
     3) ATRO’s
          a) before selling or disposing of any CP after ATRO’s issued
              1) written consent
              2) court order

E) CUSTODY AND VISITATION
    1) FLC Section 7611(d) will work for both genders
    2) New law for same sex mothers as a child can have two parents both of whom are mothers
    3) A party who participates or consents in a judgment which would be beyond the Court’s
         authority is estopped from latter collateral attacks on jurisdictions
    4) Set aside default paternity judgments have window through 12-31-06
    5) Presumed father
         a) multiple presumed fathers= balancing test
         b) no multiple presumed fathers= husband
         c) public policy
             1) father’s parental rights
             2) child to have two parents
    6) Drug Testing
         a) only urine testing allowed
     7) Move Away cases (see attached supplement)
          a) Brown & Yana
              1) if post judgment, non custodial parent must prove detriment to prevent move away
              2) if pre judgment, use La Musga
              3) if non custodial parent proves detriment on a post judgment case= de novo review
              4) if non custodial parent does not prove detriment on post judgment= presumptive                              right to move
              5) always ask for psychological evaluation to establish detriment
      8) Mediators
           a) under FLC Section 216 no ex parte communications

F) DOMESTIC VIOLENCE
    1) No mutual temporary restraining orders in family law without factual findings for both                    parties
    2) FLC Sections 6345 & 6361: can be issued for five years maximum

G) EMPLOYMENT BENEFITS
     1) Do not use QPSA’s (qualified pre retirement survivor annuity)
     2) Use QDRO’s (survivor benefit)
     3) Consider children if either spouse will re marry or has remarried

H) FAMILY RESIDENCE
      1) FC 2640(b) reimbursement proper for pre marital contributions to SP residence provided
          it is later transmuted to CP by refinance or CP payments on mortgage.
      2) Bono departed from Moore/Marsden in three ways
          a) Pro Tanto period begins when the CP makes its first contribution to the Separatizer’s
              property rather than the date of marriage
          b) Denominator of the CP and SP fractions (and the numerator of the SP fraction)
              include pre marital appreciation
          c) Pro Tanto period ends at date of separation rather than date of trial
          d) Pro Tanto- payment of SP property with CP funds
          e) CP paid down on mortgage= %

I) INCOME TAX MATTERS
   1) Add to OSC request for self employed to provide estimated tax payments
   2) Place disclaimer on all e mails regarding tax issues in their cases
   3) If non custodial parent wants dependency exemption, use Form 8332 which is mandatory
   4) Always use either “child” “spousal” or “family” as support and never just “support”

J) INTERSTATE CUSTODY
    1) Jurisdiction- always in state of judgment as long as one person lives there and connection
        including any visitation in home state
    2) Free resource for international custody cases (www.hiltonhouse.com)
    
K) MARITAL STATUS
     1) Annulment
         a) acceptable
             1) sexual aspect-= consummate
             2) procreation
             3) married when marry
         b) not acceptable
             1) character
             2) habits
             3) chastity
             4) business or social standing
             5) financial worth
             6) etc.

L) PROCEDURE AFTER TRIAL
     1) File CCP Section 473 motion and serve within 6 months of court hearing date
     2) New rules for reconsideration
         a) court is free to reconsider and modify sua sponte its decision prior to entry of judgment
             without reference to CCP Section 1008
         b) if party wants to bring motion to reconsideration, needs to file statutory rules
     3) Prevailing Party only
         a) mail notice of entry with a copy of the minute order
         b) mail file stamped order with proof of service specifying file stamped order
         c) file the proof of service
    
M) PROCEDURE BEFORE TRIAL
     1) EC Section 1152 applies to all communications in negotiation process
     2) Stipulations to Commissioners
          a) no problem
          b) must hear all ancillary proceedings before same judge= contempt or other
    3) CCP Section 998 now specifies how offers in compromise are to be made and follow
        these rules exactly
   4) Small Claims: now $7,500 limit

N) PROFESSIONAL RESPONSIBILITY
    1) Contract Attorneys and duty to notify client of appearances
         a) has primary responsibility for client’s case changed
         b) will contract attorney be performing a significant portion of the case
         c) has staffing changed from what the client was told   

O) SPOUSAL SUPPORT
      1) Change of Circumstances
          a) can withdraw from IRA without penalty
          b) health insurance costs increase or decrease substantially
          c) passage of time
              1) short term marriage= one half the duration of the marriage
              2) long term marriage
                  a) post dissolution support for only so long as is necessary to become self supporting
                  b) fair notice is required
                  c) opportunity for employment must exist
          d) ability to earn= consideration of vocational evaluation
          e) can ask for review hearing  


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