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Attorney Notes: Family Law Refresher Course, 2004

These are attorney notes from a legal seminar. The contents include children, domestic violence, international moves, sibling relationship, grandparent rights, jurisdiction, Hague Convention, child support, spousal support, child support enforcement, spousal support enforcement, property division, reimbursement credits, deferred compensation, tax, bankruptcy, attorney fees, prenuptials, non marital relationships, registered domestic partners, parentage, procedure, discovery, evidence, appeals and ethics. Attorneys must comply with the mandatory requirements of the state bar of California to have an active license to practice law. Experience is a very important factor in choosing an attorney.

CFLR 2004 Attorney Notes 1) Children/Domestic Violence
  1. Domestic violence and the presumptions
    1. Use mandatory DV forms when filing
    2. Presumption against DV offender having custody
    3. Presumption trumps frequent and continuing contact (Section 3020 yields to Section 3044)
    4. Any conviction or conduct within five years is applicable
    5. Any court in any jurisdiction and can be civil or criminal
    6. Can use police reports or declarations but not solely on FCS
  2. Child Abduction Act protects against possible abductions (Section 3048)
    1. Factors to consider in declaration
      1. Quit job or no income
      2. Buy plane tickets
      3. Sell home
      4. Written intent
  3. International Moves
    1. Distance
    2. Culture
    3. Jurisdiction
    4. Consider posting of bond
    5. Dangerous part of world
    6. Once move away, no subject jurisdiction if adult disabled child
    7. Consider no taking clause
    8. No ban regarding civil unrest but the grave harm theory can be extended (Iraq)
  4. All moves including international
    1. Notice
    2. Mediation
    3. Evaluation
    4. Full hearing
    5. No Reifler proceedings
    6. Appoint counsel for minor
    7. One exeat clause does not violate a move per Burgess
    8. Move away allowed if motive is not bad faith
    9. Can argue detriment to child at hearing
    10. Argue to court no move away cases while LaMusga is pending without full hearing
  5. Sibling relationship
    1. Cannot split siblings which would, potentially, include half siblings
    2. Agreement of parents- trump
    3. If no agreement, best interests of child by court
  6. Grandparent rights
    1. Troxel is the natural parent’s rights under Federal constitution
    2. Harris is the natural parent’s rights under California law
    3. Discourage from trying for custody and visitation in family law court
    4. Can stipulate to grandparent visitation and will be enforceable and lawful
  7. Final Orders
    1. Use Montenegro language (final) as to the determination
    2. Consider a no taking clause
    3. Final versus temporary orders
    4. Change of circumstance if permanent order
    5. Best interest test is still applicable
  8. Presumed Parent
    1. Hold out to community as parent of child
    2. If no other parent available, then presumed parent becomes legal parent
2) Jurisdiction
  1. Hague Convention
    1. Enforcement
    2. Father and mother living together
    3. Specific parenting time in court agreement
    4. Must be joint legal custody
3) Child Support/Spousal Support/Enforcement
  1. Parent by Estoppel (case of stepped up step father/mother)
    1. Yes for child support
    2. No for custody and visitation
    3. Gender neutral
  2. Presumed income for all child support cases unless other evidence of income
    1. 40 hours per week at minimum wage (40 times $6.75= $1,083.33)
  3. Low income adjustment presume for less than $1,000 per month net
  4. Cannot arbitrate/mediate child support or custody orders= must be judge
    1. Can consider hiring private judge/ have authority confirmed by court/ waive right of appeal = risky
  5. Court will properly deny child (spousal) support motion if update income and expense is not filed (1) at time of OSC filing and (2) current within 60 days of court hearing
  6. Loan application is valid evidence of income
  7. Writs of Execution
    1. Priority to child and spousal support
    2. Must levy on central location of bank or invalid
  8. No equitable defense in setting of child support
    1. Arrears is a money judgment
    2. Not retroactive
    3. File modification motion immediately
  9. Enforcement of child support defenses
    1. Concealment until after child reaches 18th birthday
    2. Laches
    3. Substituted performance = child was living with payor more than 50% of time
    4. There cannot be any interest reductions under the law under Cordero
    5. Section 4502 bars laches in private cases (even those enforced by a public agency)
      1. Does not bar laches on facts pre 1-1-03
    6. Can ask for 72% penalties if private
    7. DCSS can now compromise on welfare arrears
      1. Best interest of state
      2. DCSS discretion absolute
      3. Direct pay obligee must consent
      4. Current CS required
      5. Inability to pay documented
      6. SUNSET = 1-1-07
4) Property
  1. Haines is for duress cases in which Section 721 is a presumption of undue influence
  2. Delaney is to cancel a deed which can favor community or separate property
    1. Look to whether an advantage was obtained in favor of one spouse
    2. Five elements for an advantage for the rebuttal
      1. Voluntary
      2. Full knowledge of facts and law
      3. Fair and just
      4. Adequate consideration
      5. Independent counsel
    3. Look for special vulnerability
    4. Look for who assumed role of financial knowledge
  3. Section 2581 states acquisition date as controlling as during marriage and CP presumption
  4. Section 2640 is for reimbursement of SP from the CP and used in conjunction with 2581
  5. Family Code section 852 (oral transmutation disregarded after statute date) is enforceable if there is a partial or full performance and this is an exception
    1. Section 721 (fiduciary duty among spouses) is part of the reasoning for this decision
  6. Workers compensation benefits
    1. CP = Present or past for earning and pre DOS
    2. SP = Future earnings and post DOS
  7. Disability = same as workers compensation
  8. Severance = same as workers compensation
  9. Personal Injury award= separate property
  10. Education loans with reimbursement claims
    1. Education more than 10 years prior to DOS= no reimbursement
    2. Education less than 10 years prior to DOS= reimbursement
  11. Creditors
    1. If post judgment, no signature = no exposure or enforcement
  12. Uniform Fraudulent Transfer Act (UFTA)
    1. Does apply to pre, during and post dissolutions
    2. Reason for having a trial as this is an automatic insulator as CP law is 50/50
5) Deferred Compensation
  1. Beneficiary forms
    1. Make sure copy of completed form in file prior to closing
  2. Domestic Partners
    1. Must be registered
    2. Acceptable
  3. COBRA
    1. Only triggered by qualifying event
      1. Dissolution = yes
      2. Employee cancels = no
6) Tax
  1. Acceleration on tax reductions
    1. Capital gains (stock/mutual fund/dividends)
      1. 20% to 15%
      2. 10% to 5%
      3. retroactive to 1-1-03
    2. Support
      1. Obtain total tax bill on return
  2. Interest
    1. Taxed at ordinary income rates
  3. Child tax credit = $83 per month
    1. If make more than $7,000 per month not applicable
  4. Dependent Care Credit
    1. Follows IRS rules
      1. Dependency exemption takes child care credit
  5. Exemption
    1. Make sure have Form 8332 filled out and signed
  6. QDRO
    1. QDRO will not protect
    2. Always make sure QDRO even if more expensive due to tax exposure (penalties, etc.)
7) Bankruptcy
  1. Cannot bring any action in a family law (or other court) and must ask for relief from fed ct
  2. Non discharge able if malicious prosecution for criminal or civil= slander, libel, DV, sex abuse, etc.)
8) Fees
  1. All attorney fees in writing
  2. FLRPL in attorney retainer
  3. Volunteer/pro bono attorneys can be awarded attorney fees and sanctions if appropriate
  4. CCP 128.7
    1. Safe harbor provision
      1. 21 days from date of filing
      2. Withdraw pleadings or offending documents
9) Agreements
  1. Prenuptials
    1. State specific reasons as to the division of the contents
    2. Divorce insurance clause reasonably related to parties individually
    3. Use the tailored financial positions of the parties
10) Nonmarital Relationships
  1. Joint accounts with both names
    1. With drawer keeps all amounts taken with no offset
    2. Characterized as gift from one to the other at time of transfer
    3. Does not matter whose funds were initially placed in the account
11) Registered Domestic Partners
  • Heterosexual = one partner over 62 years of age
  • Homosexual = any adult age
  1. Prior to 1947, no inter racial marriages in CA or US
  2. 1986- USC upholds sodomy law in Georgia as constitutional
  3. 1999- USC strikes down sodomy law in Texas
  4. Opt out system for current RDC
    1. Must send opt out
  5. Can share benefits
    1. Health care insurance
    2. Life insurance
    3. Other employment and non related employment benefits
    4. Step parent adoption instead of independent adoption
  6. Must register
12) Parentage
  1. Declaration of Paternity
    1. Conclusive
  2. Paternity through holding out as child’s parent
    1. Bioparentage not required
    2. Can be for female of male
    3. Consider for child support implications
13) Procedure
  1. Post judgment OSC
    1. Less discovery than in pre dissolution with SOAD and all documents
  2. Unbundling of legal services
    1. Approved for state bar use
    2. List specific services on retainer agreement
    3. Look to procedures for withdrawing when retainer work completed
14) Discovery and Evidence
  1. Mediator or settlement judge cannot be called to testify
    1. Mediation privilege
15) Appeals
  1. Statement of Decision
    1. Always request timely
    2. If other party requests, can rely upon opposing request
16) Ethics
  1. Obtaining confidential information
    1. First = court order
    2. Second = subpoena after court order
    3. Mental health
    4. Psychiatric
    5. Any other confidential information

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