Attorney Notes: Family Law Refresher Course, 2006

These are attorney notes from a family law seminar in La Jolla, California in San Diego, California.   Attorneys are required to attend continuing education credits in order to maintain their license with the state bar of California.  Below are notes from one of these seminars. The contents include children, jurisdiction, child support, spousal support, child support enforcement, spousal support enforcement, property divisions, deferred compensation, taxes, bankruptcy, attorney fees and sanctions, parentage, procedure, annulment and guardianship. As the law is constantly changing, it is important to choose an attorney who attends seminars in the area of law in which your case is.  Experience, education and training are all important considerations when determining which attorney to hire for your important legal matter.

2006 CFLR SEMINAR: LA JOLLA (2-18 & 2-19)

A) Judicial order
    1) final unless states is not final
    2) use change of circumstance standard
B) Stipulation
    1) not final unless states final
    2) use best interests of child standard
C) Drug Testing                                    
    1) FLC section 3041.4
        a) limits testing to employment standards for federal government
        b) urine test only
        c) least intrusive method can have multiple meanings
            1) one substance only tested for
            2) length of time in system and use for least amount of time
            3) least bodily invasive
            4) lease privacy invasive
        d) can be used for any person and not just a parent
            1) guardianship
            2) adoption
D) Ex Parte communications with mediator/evaluator
    1) FLC Section 216
         a) no attorney communication
         b) no staff communication
E) Registered sex offenders
    1) FLC Section 3030
         a) no custody or unsupervised visitation unless
             1) no significant risk
             2) other reasons
             3) registration is prima facie evidence
         b) modification to custody and visitation acceptable ex parte
F) Move Away cases
    1) Historical Analysis
         a) Montenegro: permanent order and requires change of circumstance
         b) Burgess: wide discretion of Judge (footnote 13 uses 30% as determining factor for E/H)
         c) La Musga: wide discretion of Judge and focus on evaluation and evidentiary hearing
         d) Brown & Yana: wide discretion of Judge for sole legal/physical post judgment
   2) Procedural posture of move away cases
       a) need full evidentiary hearing
       b) need live testimony
       c) need to consider psychological evaluation
       d) allege detriment by no frequent and continuing contact
           1) expert witness
           2) nature of family unit
   3) Change of Circumstance procedurally
        a) word “permanent”
        b) default judgment
        c) order after hearing
   4) Other considerations
        a) moving parent should offer to pay all costs associated with travel
        b) moving parent should allow extended visitation prior to move
        c) moving parent should offer majority of non school time
        d) moving parent should offer access: pay cell bill; e mail account
G) Procedural for hearing
    1) all witnesses must be sworn in
    2) all pro per must be sworn in

A) Jurisdiction for continuing cases
    1) issuing state of order
        a) one parent remains in issuing state
        b) parent in state remains in contact with minor= visitation in issuing state

A) Factors for child support income
    1) rental: free or assisted
    2) vehicle: free or assisted
    3) new mate income: exceptional circumstances
    4) investment: reasonable return on principal (interest)
    5) earning capacity: opportunity and ability with vocational evaluation
B) Cash Flow for self employed
     1) burden on self employed spouse
     2) gross income of business minus necessary expenses to operate
     3) look to tax return
C) Time period fo income for guideline calculations
     1) presumption: last 12 months average gross income
     2) must compare to other approaches
     3) if deviate from 12 months approach
         a) goodwill
         b) earning ability
         c) stable number
         d) reasonable predictor
D) Loan applications   
    1) ask for in discovery for the past 36 moths
    2) look for any discrepancy in total numbers for loan application and I&E
    3) use highest amounts from all applications
E) Bank accounts
    1) ask for in discovery for the past 36 months
    2) use deposits as proof of income
    3) alternative theories as above to document actual income for guideline calculations
F) Payors who are terminated due to cause
    1) Regney is ability to earn plus opportunity to earn
    2) Smith is used for assets
    3) termination must be involuntary
        a) different method if quit
    4) ask for job contacts and job offers and set review every three months
G) Support modifications for military who are deployed
    1) normally applied to reservists since difference in pay
    2) make motion prior to deployment
    3) after return from deployment
        a) applicable to welfare reimbursement cases only
        b) both out of home state and out of country deployment
        c) ends 1-1-07
H) Rent
     1) acceptable to consider rent as income even if no benefit to payor
 I) Acceptable to deviate from guidelines
     1) high timeshare
     2) both parties ow income

A) Duration
    1) Short term marriage
        a) supported spouses needs
        b) earning capacity speculations
        c) must consider marital standard of living
        d) large assets not a bar to spousal support
        e) may not place a termination date of less than one half of the marriage
    2) Long term marriage
        a) include Gavron warning in MSA when representing supporting spouse
        b) include Richmond step down language in MSA when representing supporting spouse
        c) ask for vocational evaluation
        d) look to potential for withdrawal from IRA with no penalty if appropriate
        e) look to any volunteer work for consideration for ability to work and earn
        f) file for termination if all above are met
       g) consider passage of time
   3) Spousal support earning ability terminates at age 65
B) Pre Nuptial
    1) spousal support waiver will be held void and unenforceable if unconscionable at the time
        of enforcement and not at time of signing of pre nuptial.

A) Laches
    1) reliance
    2) detriment
    3) ask to hold open case until after Fellows decided if laches facts arose prior to 1-1-03
B) FLC Section 4
    1) interpreted as being retroactive
C) Disestablishment of finding of parentage
    1) FLC Code section 7575
        a) no reimbursement
        b) shorter than two year window
        c) only available until 10-28-06

A) Living trusts
    1) ask for in discovery
    2) does not act as transmutation
B) Causes of action
    1) ask for in discovery
    2) list all causes of action
        a) include marital claims against 3rd party
C) No oral transmutations
    1) FLC Section 852: no exceptions
D) Acceptable transmutations
    1) writing
    2) accepted
    3) express declaration to transfer and change character
        a) only deed will suffice under current law given current rulings
    4) if not acceptable try the below strategies
        a) breach of fiduciary duty
            1) Haines
            2) Delaney
            3) look to advantaged spouse
            4) rebuttal by advantaged spouse of no violation of fiduciary duty
            5) standard of proof= preponderance of evidence
        B) estoppel
    5) ask for in discovery   
E) Joint tenancy prior to marriage
    1) use FLC section 2640 and can obtain SP credit even prior to marriage
F) Valuation of residence
    1) date of trial
    2) if need date of separation for valuation, file motion for alternative valuation 30 days prior
        to settlement conference
G) Reimbursement for CS for payments during marriage
    1) use monthly accounting
    2) very difficult to implement without full tracing and accounting
    3) discourage clients from pursuing
    4) must have had non exempt SP during time of payments
    5) can only be for the last 36 months prior to request under FLC 920: SOL
    1) do not transfer or sell property without
        a) written consent
        b) court order
    1) make sure fair to all creditors when division in property agreement

A) Retirement
    1) cannot leave interest in retirements to children
    2) always send out to QDRO Pro’s immediately upon decision retirement will be divided

A) No assigning of contracts as will create taxable event
B) No “family support” due to recent IRS ruling
C) Tax exemptions
    1) child dependency exemption always goes with child tax credit and cannot separate
    2) always use form 8332 and attach to tax form
    3) include stipulation and in MSA for both parties to cooperate in signing
    4) if true 50/50 parenting plan: higher adjusted gross income earner obtains deduction
D) No Gilmore elections
E) Attorney fees as deductible
    1) have to itemize on all billings
     2) tax advice is for child support and spousal support
    3) tax advice is for pursuing any potential income

A) Post 10-17-05
    1) more onerous for consumer to file
    2) drastically limited automatic stay as applicable to family law cases
    3) ½ of population can no longer use Chapter 7 and must use Chapter 13 with a five year
        repayment plan
    4) domestic support obligations obtain highest priority and even over taxes owed

    5) non support dissolution debt is subject to discharge in Chapter 13 as long as plan           maintained

A) Do not use CCP 1021.5 for public policy attorney fees
B) CCP 128.7
    1) “safe harbor” for 30 days and opportunity to withdraw “offensive” pleadings
    2) no “bad faith” required
    3) use if original order post 1995
C) CCP 128.5
    1) use only if original order pre 1995
D) FLC 3027,1
    1) false allegations of sexual misconduct in pleadings
    2) no time limit to bring sanction motion
    3) can be party or non party
    4) if making allegations of sexual misconduct
        a) must have evidence
        b) CPS report
        c) police report

A) Voluntary Declaration of Paternity
    1) presumption arises if not withdrawn within 60 days

A) Notice of Entry of Judgment
    1) if prevailing party, serve notice immediately upon opposing party 

A) No “annulment” unless “very essence” of marriage
    1) must be procreation related
    2) not a money issue

A) Test is best interests under Probate Code Section 1601
B) Must now show detriment to terminated under FLC Section 3041
C) Rule is for parent never to agree to guardianship since more difficult to terminate

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