CHILD SUPPORT - FATHER's RIGHTS

Certified Family Law Specialist Donald F. Conviser, of Warner Center Law Offices, a Los Angeles Divorce Lawyer in Woodland Hills California, serving divorce and family law clients in Los Angeles County and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law situation, reports on Marriage of KNOWLES, an important Child Support Modification case decided on October 6, 2009 which supports father's rights.

Dad had remarried after the divorce.

Mom sought a modification upwards, of Dad's Child Support, based on (among other things) successful real estate investments and a brokerage account that Dad and his new wife had.

The trial Judge imputed a rate of return on the real estate investments and brokerage account, and used those full figures in determining Dad's income in calculating his Child Support obligation, stating that although those assets are community property, the court won't reduce the value of the investment income by 50% as a result of the new wife's half ownership, stating that no law had been presented that stands for the proposition that passive community property income, such as capital gains, interest or dividends, should be divided with a new spouse for support purposes, making half of it unavailable for Child Support, further stating that public policy points in the opposite direction.

Prior to 1994, trial courts had the authority and discretion to consider a new spouse's income when setting a Child Support award, but Family Code Section 4057.5 now expressly prohibits courts from considering a subsequent spouse's income when determining or modifying Child Support, except in very limited circumstances. In Marriage of WOOD, an earlier case where the Mom was unemployed and claimed to be looking for work, the trial court found that it would be unjust to apply the child support guidelines because of the "phenomenal income" of her wealthy subsequent spouse.

In Marriage of KNOWLES, the trial Judge considered all the community investment income, including Dad's new wife's 1/2 when calculating Dad's child support obligation, but made no finding of extreme or severe hardship of Mom.

Family Code Section 751 provides that income generated from community property is community income, and spouses have an equal, individed interest in that income.

Contrary to the trial Judge's order and findings, the appellate court, in Marriage of KNOWLES, held that Family Code Section 4075.5 [is the law that] prohibits use of the community income attributable to the subsequent spouse, whether the income is earned or a return on investments, in calculating a Child Support obligation, and that the public policy of the state of California concerning the use of a subsequent spouse's income in calculating a child support obligation is found in Family Code Section 4075.5.

Note that Marriage of KNOWLES involved community investments of Dad and his new wife and limited the trial court's calculation of Dad's income from those investments to 1/2 of the income from those community investments. However, pursuant to Family Code Section 4075.5, the new wife's employment income and her separate property income cannot be considered in calculating Dad's child support obligation. That distinction should be borne in mind by Dad's attorney in cases where Mom is seeking modification of Child Support.

Divorce lawyers need vacations too

Certified Family Law Specialist Donald F. Conviser, owner of Warner Center Law Offices in Woodland Hills, California [in the west San Fernando Valley], serving divorce and family law
clients in Los Angeles County and Ventura County, offering a free confidential consultation, writes this article from Dalat, Vietnam, while taking a well-deserved break from the office.

All work and no play makes Johnnie a dull boy. While I am serious about my work, which frequently is on my mind 24/7 during the work year, I am likewise serious about my play. The practice of divorce and family law isn't something that I can tune out to before or after work hours during the work year. If I get a brilliant idea about a case at night or on the weekend, will it still be at the forefront of my mind when I return to the office? Best not to take the risk - I have PCs at home, portable PCs, an iPhone, paper and pens, and wherever I am, I jot down the pearl of wisdom to ensure that it won't be lost. While it is not my normal practice to work on weekends or holidays, in cases where an alternative doesn't appear to exist, I have made the time to meet with clients to handle critical matters that could make a significant difference in their cases. If time during the business day is insufficient to complete a task, I stay to complete the task. My clients (and quite surprisingly to other attorneys, my wife) appreciate my dedication.

This article deals largely with how and why I take vacations, and what I do to enable me to take vacations without harming my clients and cases.

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Before I take a vacation, I set certain forces in place to protect my clients and ensure that prospective clients get served.

In each of my pending cases, I prepare, serve and file a NOTICE OF UNAVAILABILITY, to ensure that my adversaries and the Courts have notice of my vacation.

I advise my clients and my adversaries of my vacation, including its duration.

I hire one or more back-up lawyers, to field calls, and in cases where I deem it to be critical, I associate another attorney in so that the court and adverse party will be required to give notices to both my associate counsel and me.

I plan discovery and depositions so that my vacation will not interfere with necessary discovery work.

I arrange continuances of hearings to enable me to have sufficient time to prepare for the hearings after I return from my vacation.

I leave a vacation voice mail on my after-hours and week-end telephone line, advising callers of my vacation, providing them access to my back-up lawyers, and asking that they send an e-mail to me and leave a message for me.

My receptionist connects incoming calls to my associate and/or back-up lawyers.

I periodically access and respond to my e-mail from my vacation destination(s).

I take a mini-notebook PC and a Magic Jack to enable me to make calls when necessary, and to enable me to hear and respond to voice mail messages left for me.

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Those things enable me to handle my work responsibilities AND take vacations.

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I find balance in my life with exercise, music (I play the Cello, the Theremin, and the Ukulele), vegetable and fruit gardening, gourmet cooking and eating, creative endeavors (including travel clothing design), and travel.

To me, travel isn't just seeing the sights. It is experiencing another slice of life in another slice of the globe. One of my travel sayings is: "When you find Paradise, use it up." I figure that my wife and I have gone to Puerto Vallarta over 80 times, and we have never used up Puerto Vallarta. If I am capable of "relaxation", the closest that I come to relaxation is in Puerto Vallarta or Dalat. This is our 5th trip to Vietnam, and our 2nd trip to Dalat, Vietnam - the honeymoon capital of Vietnam. While the rest of Vietnam is toasting in July, Dalat runs a cool 70 to 75 during the day, and a cool 65 to 70 at night. Datanla Falls, a few Km from town, has what I can best explain as a Bobsled Rollercoaster that runs down tubular steel rails to the falls, with only a handbrake for controls. There is a great gondola ride in the sky to a peaceful monestary, not far away. At Prenn Falls, there are go-carts... just for fun, not for riding fast or bumping. There is a great street marketplace that opens up at night outside CHO DALAT - the central market - and you can buy a golf jacket for $3. I'm not a golfer, but it is said that there are great golf courses in Dalat... there are three GOLF hotels there... GOLF 3 being the best.

I call my vacations: "Getting off the wheel." The wheel is exciting and challenging, during the work year, but getting off the wheel is rejuvenating.

This trip included a day in Hong Kong (I know how to do our style of Hong Kong in a day), in Bangkok (my wife loves to shop at a certain store in Bangkok), a few days in Luang Prabang Laos (pretty paradisical), 2 days in Vientiane (the starting point in our journey to Dalat - but a place that we won't return to), a week in Dalat (flying Vientiane-Pnom Penh-Saigon-Dalat), and will include a week in Nha Trang (hot, but superb food), a week in Hoi An (the place to get clothes tailor made - also hot but great food), and a few more days in Saigon (great shopping, and also great food). I do a lot of power-walking to walk off the great food.

I took 64G of SD Chips along on our trip, so much of my time is spent in shopping through my camera, taking what I call "Art-Shots" - of farming or gardening implements, structures, people, produce, eels, shadows, lines, etc., slowing down enough to be able to focus on life one screen at a time.

I took a few books and a Kindle, so if it is too hot outside, or if I just want to relax (or put myself to sleep), I can read.

I took two iPods on the trip - one 8G iPod to record the sounds of our trip on [and Dalat is the place to do that in], and the other 160G iPod full of over 16,000 songs, with a small but efficient speaker set as well as earbuds, in case I have to wait in line and find an alternative to impatience. I took a small Ukulele along, for the same purpose, or to just entertain.

I brought fabrics for my Hoi An tailors to use... fabrics that are not available in Vietnam, but I will have hats and vests made from the great Japanese Silks that are available in Hoi An.

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I have already begun to experience the disconnect from getting off the wheel, and that is the relaxation that vacations allow me. I have spoken with my receptionist via my Magic Jack (I must call before 9:30 a.m. local time to reach my receptionist at my office before 5:30 p.m.). I have exchanged e-mails with my backup attorneys and my associate, and I arranged a deposition, hired my court reporter, and reserved my conference room while on this vacation.

But this is a vacation, time to play, so play I will, now. Off to CHO DALAT, to record the sounds of the town and look at life one frame at a time.

Trade Secret protection in Divorce Cases via Stipulation and Order

Donald F. Conviser, of Warner Center Law Offices in Woodland Hills, a Certified Family Law Specialist in the San Fernando Valley serving clients for over 37 years in the Courts of Los Angeles and Ventura County, offering a free confidential consultation [call him at 818-880-8990 regarding your divorce or family law issues], writes today about thought processes that he has gone through when negotiating provisions to protect his clients against unauthorized disclosure of trade secrets in Divorce or Family Law discovery. This article is not intended to be used as or for "legal advice"; the readers of this blog are admonished to seek the counsel of a competent and seasoned Family Law Attorney to advise them regarding their specific needs and how to obtain appropriate protection against unauthorized disclosure or use of their trade secrets.

This is a follow-up to my last two blogs addressing trade secret and confidential information protection in family law cases, providing examples of protective terms that I have drafted.

In negotiating and preparing Stipulations and Orders to prevent disclosure of confidential commercial or financial information relating to the activities of my client and/or his/her business, I draft provisions to apply to ALL discovery and evidentiary documents and information, including attorney work-product, which is formally or informally sought from and/or formally or informally disclosed by my client and/or his/her business in connection with the family law case, and with the opposing party's and/or his/her attorney's and/or forensic accountant's investigation and analysis.

I identify "Confidential Information", and I draft a prohibition against unauthorized disclosure, requiring that the confidential information not be disseminated, disclosed or otherwise directly or indirectly communicated to anyone other than a "Qualified Person" (whom I define), and I require that the confidential information be held in confidence and not be disseminated, disclosed, published or otherwise communicated or used, directly or indirectly, by any qualified person to whom it is disclosed, except for and in the pending Family Law matter and except as necessary to enforce the terms of the Stipulated Protective Order that I draft.

I define "Confidential Information" as any document or information of and/or relating to the business, to include research, development, customer lists, customer identities, sources of equipment and materials, pricing of purchases and sales, commercial and financial information relating to the business, and any information relating to the business and/or financies of the business, whether in documentary, oral, or other form; my stipulation states that all such information and documentation is deemed confidential, proprietary and secret, and that my client shall not be required to demonstrate whether or not such information is in actuality confidential, proprietary or secret in order to invoke and enforce the provisions of the Stipulated Protective Order.

I define a "Qualified Person" to include 1) counsel for the parties, including all attorneys, paralegals, secretraries and clerical personnel employed by or working for such counsel (including contract labor), who are to use the information solely for the purpose of the litigation and for no other purpose; 2) Experts and consultants and all members of their staff, employed or retained by either party for the purpose of assisting in the preparation and trial or hearing of any aspect in the case; 3) my client; and 4) the Court personnel and Judical Officers. I require counsel, experts and the parties to use the documents and information solely for the purpose of the litigation and for no other purpose. I also specify particular people and businesses not to receive disclosure, generally to include the adverse party.

I draft provisions requiring deposition transcripts containing testimony and/or documents relating to my client's business to bear, on their covers, prominent and conspicuous legends directing that the contents of the transcript are confidential and are subject to a protecttive order issued by the (particular) court, further stating that unauthorized use of or disclosure of any part of the transcript is a violation of a court order, and I have a copy of the stipulation and order contained in the transcript as an exhibit. I draft provisions requiring that the transcript be transmitted to counsel in sealed envelopes, bearing the word "Confidential" on their exteriors. I provide that counsel may unseal the envelopes upon receipt, but I require that the transcript not be filed with the Court other than under seal, setting forth in declarations and points and authorities only the page and line numbers and starting and ending words of the text to be considered by the Court for the hearing/trial for which it is submitted. I draft language requiring that the deposition reporter shall be advised of the confidentiality of any testimony and exhibits at the time of the deposition, and that the deposition reporter shall be instructed at the deposition not to disclose any of the contents of the deposition transcript (including documents) to any person other than the deponent and counsel of record.

I draft provisions requiring that discovery responses containing confidential information begin on their first page with "CONTAINS CONFIDENTIAL INFORMATION", and requiring that the portions of such discovery responses marked "confidential" may only be filed with the Court via lodging under seal, along with reference to page and line numbers and starting and ending words similar to my deposition provisions noted above.

I draft provisions regarding the filing of documents consitituting, containing or referring to "Confidential Information" requiring them to be sealed, bearing endorsement of the title of the action, a general indication of the nature of the contents, and a statement indicating that the envelope containing the confidential documents is sealed pursuant to a Protective Order and contains information which is not to be opened or its contents displayed, revealed or made public except by order of court.

I draft provisions requiring that any copies made by Qualified Persons be treated as confidential information pursuant to the Stipulated Protective Order.

I draft provisions allowing confidential information to be withdrawn with the Court's approval after all orders made in connection with the relevant hearing/trial have become final.

I draft provisions excluding the public from hearings at which confidential information may be sought or disclosed.

I draft provisions requiring the return of all originals and copies of confidential documents after settlement or adjudication of all issues for which disclosure of the confidential documents was required.

I draft warranties that the adverse party, his/her counsel and experts specifically represent and warrant that they, their employees, agents & representatives, shall not disclose, disseminate, communicate, or use any "confidential information", other than for purposes of the pending trial or hearing.

I draft provisions requiring that the stipulated Protective Order is binding upon signing.

I draft enforcement provisions, including liquidated damages for each direct or indirect violation of the protective order, in addition to any other remedy and cause of action available at law or equity for violation of the stipulated Protective Order, to deter violation, and I include an attorney's fee provision as well.

If I can obtain agreement, the stipulated Protective Order is the preferable alternative to a Motion for Protective Order, which must be preceded with a Meet-and-Confer effort by the moving party, and the Court might not think of all the provisions that I would set forth in my stipulated Protective Order, so in my request for the order [and in my proposed order), I would need to specify all those provisions, to ensure the Court's consideration of those provisions.

In summary, this article addresses the complexity and many of the details of a stipulated Protective Order that I would draft to protect my client against unauthorized disclosure of trade secrets sought by the adverse party's discovery in a divorce or family law case.

TRADE SECRET PROTECTION SIMPLIFIED FOR THE LAY PERSON

Donald F. Conviser, Certified Family Specialist owner of Warner Center Law Offices in Woodland Hills, in the San Fernando Valley, serving people in family law and divorce cases in the Courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation at 818-880-8990, provides a simplified version of his blog posted last night, this version written for the lay person.

If the other party in a case (i.e., a divorce, family law, or even a civil or criminal case) seeks information or documents from you (whether you are a party to the case or a person whose confidential records or information is sought for the case) which would disclose confidential information - such as a trade secret, the public disclosure of which could devastate your business [such as the formulation of Coca Cola, or the techniques and/or processes used to fabricate a product, etc.], or your social security number or computer passwords, you should immediately contact and set an appointment with a competent lawyer to review the subpoena or discovery requests and determine what protection is needed and why, and to have that lawyer endeavor to meet and confer with the seeking party's attorney in an effort to either come to agreement [a Stipulation and Order filed with the Court] that the confidential matters do not have to be disclosed, or that they will be disclosed for only the specific restricted use in and for the case, and not used by or disclosed by the recipient to any other person or business, and providing for specific penalities enforceable by the Court for disclosure or use beyond the permitted process.

If such an agreement cannot be promptly reached and submitted in the form of a STIPULATION AND ORDER for PROTECTIVE ORDER signed by the propounding attorney and his client, you and your attorney [and if you are not a party to the case, then all the other attorneys and parties], your attorney MUST PROMPTLY file and serve a Motion for Protective Order seeking the Court's intervention and protection. By promptly filing and serving that Motion, your time to respond to and/or produce under the seeking party's discovery is put on hold pending the Court's determination on that Motion. I would suggest that you attend the hearing on the Motion, as well, so that if the Judicial Officer has any questions, they can be quickly answered before the Order is made.

Please read my yesterday's blog in connection with this blog. I trust that this blog should clarify matters where "technicalities" addressed in my former blog may have made that blog difficult to follow.

When time permits, I will prepare a new blog addressing some specific provisions that I have put into Stipulated Protective Orders in Divorce or Family Law Cases in the Courts of Los Angeles or Ventura County.

PROTECTING TRADE SECRETS AND CONFIDENTIAL MATTER FROM DISCLOSURE IN A DIVORCE OR FAMILY LAW CASE

Donald F. Conviser, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, serving divorce and family law clients for over 35 years in the Courts of Los Angeles and Ventura County, offering a free confidential consultation at (818) 880-8990 regarding your divorce or family law case, writes today about protecting trade secrets sought by the adverse counsel in family law discovery.

I apologize for the gap in my blogs, but my heavy litigation schedule over the last couple of weeks mandated priority for my clients and cases, leaving time only to sleep or write blogs, and I opted for sleep to best serve my clients.

The provisions of the Civil Discovery Act are set forth at California Code of Civil Procedure section 2016.010, et seq. [et sequitur - meaning "and the following provisions"]. Code of Civil Procedure section [CCP§] 2017.010 provides that unless otherwise limited by order of the court in accordance with this title [emphasis added], any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence [emphasis again added]. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.

That definition is far from exhaustive: discovery can be propounded as to any matter claimed by a party which "may tend to lead to the discovery of admissible evidence", even if the matter itself isn't admissible.

Discovery in divorce and family law cases can be sought in the form of Depositions [oral depositions before a court reporter, audiotaped and/or videotaped as well if so addressed in the Deposition Notice -CCP§ 2025.010, et seq.], Interrogatories [CCP§2030.010, et seq. - written questions that the responding party must answer in writing under penalty of perjury], Requests for Admissions [CCP§2033.010, et seq. - written requests that a party admit the truth of matters and/or admit the genuineness of documents], Requests for Physical or Mental Examination [CCP§2032.010, et seq. - requiring that a party submit to such examination], and Requests for production and inspection of documents, tangible things, land, and other property [CCP§2031.010, et seq. - which I will hereafter refer to as an "Inspection Demand" demanding such production and inspection].

However, on appropriate and timely Motion filed and served after endeavoring to meet and confer with the party seeking discovery, CCP§2017.020 provides that the court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The Court may make this determination pursuant to a motion for protective order by a party or other affected person, which motion must be accompanied by a meet and confer declaration under CCP§2016.040 stating facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.

Diligence is required in endeavoring to meet and confer, and the Motion for Protective Order must be "promptly" filed and served, as is required under CCP§2025.420(a) [regarding a Deposition], CCP§2030.090 [regarding Interrogatories], CCP§2031.060 [regarding Inspection Demands], [there seems to be no specific codified Motion for Protective Order against a Demand for Physical or Mental Examination], and CCP§2033.080 [regarding Requests for Admission].

If discovery is propounded seeking disclosure of confidential information or documents, such as trade secrets, the party from whom that disclosure is sought (or his/her attorney if represented) should immediately contact adverse counsel and meet and confer in an effort to come to agreement that the confidential information or documents shall not need to be disclosed or produced, or to come to agreement that the disclosure shall be restricted to the attorney receiving those documents and that the information and documents shall not be used for any purpose other than to address matters in the litigation, and shall be disclosed to nobody else and used for no other purpose.

The agreement of counsel should be done by way of STIPULATION AND ORDER, signed by both parties and their counsel and submitted to the Court for its ORDER pursuant to that STIPULATION. Because of the brevity of this article, I am not including all the details that should be set forth in that STIPULATION AND ORDER, but I am letting my readers know that the meet and confer effort needs to be commenced immediately upon the receipt of the discovery, and that the STIPULATION AND ORDER needs to be artfully drafted to restrict the use of the disclosed material and information to the attorney, with some punitive provisions in the event that it is disclosed and/or used beyond the restricted use. I may address in a future blog some provisions that I have included in STIPULATIONS for Protective Orders, but even then, I will not be disclosing those provisions as "legal advice" to my readers, but instead, I will disclose those provisions to demonstrate the thought processes that I go through when I am negotiating provisions to protect my clients against unauthorized disclosure.

In summary, this article addresses the breadth of discovery allowable in California, as well as the requirements of diligent meet-and-confer and prompt filing and service of a Motion for Protective Order to oppose discovery seeking disclosure of confidential information and/or trade secrets, and it briefly addresses the process of endeavoring to reach agreement to restrict use of trade secrets sought to be disclosed in discovery, and such agreement MUST be done in the form of a Stipulation and Order to provide protection, as well as consequences and remedies for unauthorized disclosure by the receiving attorney or party.

I'm looking forward to writing about provisions which might be used in a Stipulation and Order for Protective Order, which I hope to have time to do this coming week. Call me at 818/880-8990 if you have any question or issue concerning your need for protection of trade secrets or other confidential information in a Divorce or Family Law matter.

DISCOVERY AFTER JUDGMENT

Donald F. Conviser, Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills, serving clients for over 35 years in the Courts of Los Angeles and Ventura counties, a San Fernando Valley law Family Law and Divorce Lawyer offering a free confidential consultation regarding your family law or divorce issues by calling him at 818-880-8990, writes today about DISCOVERY AFTER JUDGMENT.

How can you find out whether or not your former spouse's economic situation has changed to justify your seeking a modification of prior Child Support or Spousal Support orders?

California Family Code Sections 3664 and 3665 were designed by the legislature to provide an expeditious method to make that discovery in cases where the judgment ordered payment of child support or spousal support.

Those sections allow a party to serve a request for production of an income and expense declaration after judgment [including the adverse party's last-filed State and Federal Income Tax Returns], Form FL-396, once a year, following Judgent, via Certified Mail, return receipt requested. If no response is received within 35 days of service, or if the income and expense declaration received is incomplete, the requesting party may then serve a request for income and benefit information from employer, Form FL-397, upon the adverse party's employer via Certified Mail, return receipt requested.

The above provisions may be enforced by contempt of court proceedings, forfeiture to the aggrieved party of $500, plus all damages that the agrieved party may sustain as a result of the failure to comply, and/or the Court may issue a warrant for the arrest of the person who failed to comply.

Additionally, Family Code Section 3666 provides that upon the subsequent filing of a motion for modification or termination of support, if the Court finds that the income and expense declaration submitted by the responding party was incomplete, inaccurate, or missing the prior year's federal and state income tax returns, or that the income and expense declaration was not submitted in good faith, the Court may impose monetary sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to obtain complete and accurate information.

No other discovery is permitted after Judgment unless authorized by a judge or performed following the filing and service of a post-judgment Motion or OSC where that discovery is reasonably calculated to lead to the discovery of admissible evidence in that proceeding. Otherwise, that other discovery would deemed to be an unauthorized "fishing expedition".

As a Los Angeles divorce lawyer and family law attorney, I have found it to be a good practice to file a request for production of income and expense declaration after judgment on an annual basis following entry of judgment, because support modifications cannot be made retroactively to a date prior to the filing of the motion or Order to Show Cause seeking such modification.

GETTING INFORMATION NEEDED FOR IMPUTATION OF INCOME

Donald F. Conviser, a Woodland Hills Divorce Lawyer with over 35 years of experience representing divorce and family law clients in the Courts of Los Angeles and Ventura Counties, a Certified Family Law Specialist, owner of Warner Center Law Offices in the San Fernando Valley, follows his May 2, 2009 blog about imputing earning capacity with this blog addressing how to obtain information needed for the Court to impute income to an unemployed or underemployed spouse.

In my May 2, 2009 imputation blog, I addressed the LaBass & Munsie and Mosley cases and the 2-pronged test that exists for imputation of earning capacity/income: 1) Ability to earn and 2) Opportunity to earn.

Competent evidence needs to be presented to the Court to satisfy both prongs in order to prevail on an imputation of earning capacity issue.

Discovery can be used to obtain evidence primarily on the Ability to earn prong, and if creatively done, to obtain evidence on the Opportunity to earn prong as well, comprising Inspection Demands [Demands to Produce Documents for Inspection and Copying], Special Interrogatories and/or Requests for Admission, and a follow-up Deposition where appropriate.

If you have propounded over 35 Special Interrogatories 0r 35 Requests for Admission of truth of facts in the past, or if your Special Interrogatories or Requests will take the total number of Special Interrogatories or Requests over 35, you need to justify the reasons why you need to propound interrogatories or Requests over the 35 point, pursuant to the specific requirements set forth in Code of Civil Procedure Section 2030.050 and 2033.050, whereas there is no such limit or requirement on Inspection Demands.

A competent and aggressive divorce lawyer could prepare appropriate discovery to ferret out such things as resumes, job applications, unemployment applications and benefits, claimed conditions affecting ability to work, distance or salary or limitations of job searches, education, training, experience, employment qualifications, fields that the person is qualified to work in, jobs the person is qualified to work in, skills to offer prospective employers, prior employment criteria, acceptable and unacceptable fields of employment and/or jobs, prior employment history, efforts to enhance employability, efforts to secure employment and responses to such efforts, job offers and rejections, as well as inquiring as to jobs available within a certain geographic area for which that person is qualified and salaries offered for those jobs, requiring the person to make a diligent inquiry to other people and entities pursuant to Code of Civil Procedure Section 2030.220(c).

In addition, a creative Family Law Attorney could propound a set of 35 Requests for Admission of truth of facts designed either to produce admissions usable in a Declaration to prove issues, or to obtain responses other than unqualified admissions, along with a set of General Form Interrogatories, including the valuable Form Interrogatory 17.1 [which requires the responding party to provide all facts and identify all witnesses and documents who/which support that party's responses to requests for admissions other than unqualified admissions], to prepare the Attorney to perform follow-up discovery, whether to depose the party or to subpoena documents or 3rd parties to testify at deposition.

The unemployed party can be examined by a Vocational Training Consultant pursuant to Family Code Section 4331, either by stipulation or by an Order granted on a Motion to require the party to submit to such an examination.

The Vocational Training Consultant will typically produce a report addressing the party's ability to work (i.e., skills, education, training, and work history, etc.) as well the party's opportunity work, via jobs which the Consultant has located through a survey of the available job market, and the Consultant may prepare a Declaration to be used in connection with the support (or support modification) hearing and/or testify at that hearing.

On a shoestring, as done in the LaBass & Munsie case, classified ads may be submitted to the Court (appropriately authenticated) to show that "offers to bargain exist", in an effort to satisfy the Opportunity to work prong of the test.

As a Los Angeles family law attorney with substantial experience dealing with imputation of income / earning capacity cases, I designed this blog to give my readers insight into how a competent Divorce Attorney can obtain evidence to satisfy both prongs of the impution of earning capacity test.