Attorney Notes: Family Law Refresher Course, 2003

These are attorney notes from a legal seminar on family law. The topics covered for this seminar included children, grandparent rights, custody to non parent, interstate custody, child support, spousal support, enforcement, equitable defenses, property, deferred compensation, business interests, dependency exemptions for children, capital gain, bankruptcy, prenuptials, domestic violence, parentage, jurisdiction and procedural posture. It is important to have an attorney who is experienced and also one who keeps current on the laws. The state bar of California requires attorneys to comply with continuing education credits to keep current on the law in order to maintain an active license to practice law.

  • FAMILY LAW REFRESHER COURSE 2003
    • (FEBRUARY 15 AND FEBRUARY 1
    • ATTORNEY NOTES FROM SEMINAR

CHILDREN

  1. Two leading cases regarding move away issues
    -Burgess if no more than 30% timeshare for non custodial parent then move almost automatic
    -Lasich- if move out of country or to different custom/language, can put safeguards for non-custodial parent

International Move- distance; culture; jurisdiction (does not follow Burgess outcome)

  • mover must accommodate parent who stays
  • must consider if move is whimsical or not based on good faith
  • move to country of origin and family is not considered whimsical

Only applies to final orders for custody and visitation for no evidentiary hearing
If language is not final order or if stipulation is not intended to be final
Montenegro trumps Burgess if not a final order and must have evidentiary hearing
Appellate court determines if order is final or not and must consider an appeal if denied hearing
Strategy for language in orders different depending on custody and visitation arrangement

  • - high time parent= final language
  • - low time parent= not final language
  • -good strategy for low time parent to continue asking for additional time

ne exeat clause: cannot move child from state and/or county
notice clause: cannot move child from state and/or county without agreement or court hearing

  1. Grandparent rights:
    -Troxel: leading case from US Supreme Court re: privacy of parents in raising children
    -Zasueta: appellate case from California (recent) finding no grandparent rights
    -Harris- reversal of a trial court judge now at CA Supreme Court- no grandparent rights
    -applies to step siblings and same sex relationships
    -estoppel possible argument for visitation to continue however not persuasive
  2. Custody to a Non-parent
    - Family Code Section 3041
    -standard if placed with de facto parent- standard of proof {preponderance of evidence}
    -standard if placed with non parent- standard of proof {clear and convincing evidence}
    -detriment to the child if placed with parent must be by the preponderance
    -unfitness of the parent must by shown as well by preponderance
  3. Sexual Abuse new rules
    -serious and must evaluate
    -child statement to mandatory reporter
    -substantial independent corroboration per Family Code Section 3011
    -non-serious means may evaluate if non of the above factors are found
  4. Interstate Custody
    -must immediately have conference and contact out of state court
    -must make record and preferable to have court report
  5. Family Code Section 3048
    -no limited to either high time or low time parents
    -Burgess is not applicable
    -look to abduction limitation factors
    -close bank account
    -terminate lease
    -sell residence
    -quit job
    -move away

CHILD SUPPORT

  1. income for child support purposes
    -DeGuigne case stands for proposition that court must consider assets for support
    -if SP financed during marriage, SP can be considered for support post marriage
    -Set MSOL for child support even if overspending
    -As to add on expenses, the Section 4062 list if exclusive
    -Tuition is always split 50/50
    -Methods of payment other than earned income
    -inheritance
    -rental property
    -assets in growth mode
    -assets not in growth mode

SPOUSAL SUPPORT

  1. income for spousal support purposes
    -use the above theory for additional spousal support over the earned income
    -no new mate income can be considered for spousal support
    -can consider new mate income for child support but only for tax effect
    -reduced need can trigger modification of spousal support
  2. Retroactivity for orders
    -ask court not to make retroactive- if denied appeal immediately
    -must analyze under all of the elements under Section 4320

ENFORCEMENT

  1. Equitable Defense of Laches
    -can only use for county and state cases (review and apply to DCSS cases)
    -cannot use against private party
    -cannot discount interest (no discretion to court)
    -retroactivity rule
  2. Child and Spousal Support modifications
    - If one party still lives in original home state, cannot bring motion for modification in any
    other state
    -Consider continuing exclusive jurisdiction
    -Domicile= residence
    -voting
    -pays taxes
    -drivers license
    -any other factors which affect residence
    -Child Support: if both parties move may make motion in other state since CEJ moves
    -Spousal Support: must always bring motion in home state and no other
  3. Notice of Delinquency
    -penalty for not paying child support
    -6% per month or 72% per year
    -If obligee, must file a notice under proper procedures first
    -If obligor, must file a notice of Abatement under proper procedures first
    -race to courthouse door
  4. Payment of Child Support
    -US Bank is issuing credit cards for payment of child support
    -deducted directly from payroll- good for payee
    -tracks spending- good for payor
    -No 5th Amendment protection for payor in child support enforcement motion

PROPERTY

  1. No prudent investor rule
    -look to duty to volunteer information about finances
    -Moore-Marsden
    -SP reimbursement for CP residence
    -acquisitions
    -improvements
  2. Separate Property
    -FMV: date of marriage
    -FMV: date of separation
    - CP interest is greater of ( investment or ( ration of investment to property increase
    -improvement to property is not the same as investment in land
    -look to whether improvement to property increased value of land
    -Use Moore-Marsden for purchase
    -Use Bono for improvement
  3. Epstein credits
    -mandatory
  4. Bifurcation date
    -all appellate cases hold that the later date of separation controls
    -set for bifurcation motion with date of separation as issue for trial court

DEFERRED COMPENSATION

  1. Fringe benefits are SP if must continue working to obtain after DOS

BUSINESS INTERESTS

  1. Excess earnings argument for CP business valuation for good will
    -multi year basis for analysis
    -must weight as to years
    -average hypothetical person in that business for those years as example
    -must use local information
    -consider alternative methods of valuation
    -better to have an expert
  2. Education expenses
    -Community will be reimbursed for education expenses incurred during or prior to marriage
    -must minus any community benefits

DEPENDENCY EXEMPTIONS FOR CHILDREN

  • -Judge has discretion to choose alternate years or to one party
  • -Look to maximum benefit under tax code for net income
  • -Must use form 8332 for all dependency exemptions
  • -Use agreements on court orders
  • -Conditional: support being current as of December 31 in year 8332 filed or open years
    IF SO: adverse consequences include contempt or recalculation of time share

CAPITAL GAIN

  1. Section 1041
    -no immediate tax consequences upon divorce
    -principal: capital gain defined for tax purposes
    -interest: must pay tax on interest received
    -structure deal for no interest to be paid in CP transactions
    -must live for two years unless residential care or assisted living
  2. Tax is paid by non-employed spouse at time of exercise and not time of transfer at divorce
    -401K and IRA: tax to person who took out money
  3. Innocent Spouse Rule
    -easier in last few years
    -safe harbor
    -reallocation
    -retroactive
    -if not joint tax return, no innocent spouse relief
  4. If unpaid taxes, place in clause in MSA regarding resurrection and reallocation of payment
    of difference
  5. Judge can revise CA state income tax liabilities
    - under $150 K in income
    -under $7.5K in liability for taxes

BANKRUPTCY

  1. Can obtain and must ask for relief from stay
    -dissolution
    -child support
    -spousal support
    -appeals
    -civil suits
    -QDRO

PRENUPTIALS

  1. Separate waivers for spousal support
    -prenuptials= yes
    -postnuptials= no
    -look for undue influence argument at time of signing of instrument and not date of separation
    -look to whether realistic basis if promotive of divorce= void as against public policy

DOMESTIC VIOLENCE

  1. New DV tort
    -CCP Section 1708.6
    -elements of injury from spousal abuse and relationship
    -damages can be general or punitive or special
    -SOL is three years from date of DV act

PARENTAGE

  1. Best interests of children
    -new standard favors best interest in social standing over biological relationship
    -establish legal relationship of new mother or father

JURISDICTION

  1. Personal jurisdiction
    -look for residency and domicile
  2. Subject matter jurisdiction
    -look for contacts

PROCEDURAL POSTURE

  1. For DCSS cases, there is a five year trial statute
    -review for facts
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