DONALD F. CONVISER, a Certified Family Law Specialist in Woodland Hills, California, in the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County for over 35 years, owner of WARNER CENTER LAW OFFICES, addresses agreements relating to marriage in this Blog.
There are four (4) basic types of agreements relating to marriage: Prenuptial Agreements, Postnuptial Agreements, Transmutation Agreements, and Marital Settlement Agreements.
A PRENUPTIAL AGREEMENT (also known as a Premarital Agreement, an Antenuptial Agreement, a Prenup, or a Pre-nup) is a written agreement entered into by the parties prior to marriage between the prospective spouses, generally providing for division of property and limitation or elimination of Spousal Support [aka Alimony) if the marriage does not work out, and frequently eliminating or modifying inheritance rights and other rights that a married party may have on the death of the other spouse.
In California, Prenups are governed by FAMILY CODE Sections 1500 through 1620. People enter into Prenups for a variety of reasons, primarily to enable them to strucure their own settlement and allocate their property and income as they see fit, if their marriage does not work out.
In order for a Prenup to be valid, it requires an offer, an acceptance, consideration, mutual assent, legality, legal capacity of the parties, and it must be in writing, executed voluntarily by both parties, supported by a full and/or fair disclosure of each party's assets and liabilities, and cannot be unconscionable.
A POSTNUPTIAL AGREEMENT (also known as a Postmarital Agreement, a Postnup, or a Post-nup) is a written agreement entered into by the parties after their marriage, and is similar to a Prenup, except that a Postnup is far more strictly scrutinized by the Court in Family Law proceedings, because married people are saddled with Fiduciary duties and responsibilities to each other [as addressed in FAMILY CODE Section 721, 1100 et seq., and 2100 et seq.] of the highest good faith and fair dealing, requring that neither shall take any unfair advantage of the other, and requiring each spouse to make full disclosure to each other of all material facts regarding the existence, characterization, and valuation of all assets in which the community has or may have an interest, and debts for which the community may be liable, and to provide equal access to all information, records and books that pertain to the value and character of those assets and debts, upon request.
A TRANSMUTATION AGREEMENT (otherwise known as a Separate Property Agreement) is a written agreement entered into by the parties during their marriage, whereby they agree to change the character of property, whether from Separate to Community, from Community to Separate, or from Separate Property of one party to Separate Property of the other party.
The laws regarding TRANSMUTATION AGREEMENTS are strict, and unless they are strictly complied with, a court can void, refuse to enforce, and/or set aside a TRANSMUTATION AGREEMENT.
Parties enter into TRANSMUTATION AGREEMENTS for a variety of reasons, which may include making gifts or the protection of assets from the fallout of debts incurred by one spouse. For further information regarding TRANSMUTATION AGREEMENTS, see this writer's Blog posted on December 4, 2009, entitled: "A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT AFTER ALL."
A MARITAL SETTLEMENT AGREEMENT (otherwise known as a MSA or a PROPERTY SETTLEMENT AGREEMENT) is a written agreement entered into by couples during the process of a divorce or legal separation, and it may contain provisions resolving property issues, parenting schedules, support amounts, and other issues affecting the rights and obligations of the parties to the marriage. For further information regarding MSAs, see this writer's Blog posted on December 16, 2009, entitled "BEWARE GOING PRO PER; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET."
A party entering a marriage is best served by consultation with competent family law counsel regarding the preparation of a PRENUPTIAL AGREEMENT.
A party in a marriage where potential economic changes appear over the horizon is best served by consultation with competent family law counsel regarding the preparation of a POSTNUPTIAL AGREEMENT or a TRANSMUTATION AGREEMENT.
A party involved in a divorce or legal separation is best served by representation by competent family law counsel throughout the proceedings, including the preparation of an appropriate MSA when the case is resolved.
In 1980, the California State Bar commenced its Specialization Program. DONALD F. CONVISER [the owner and principal attorney of WARNER CENTER LAW OFFICES] was Certified as a Family Law Specialist in 1980 in the first group of Family Law Specialists Certified by the State Bar of California.
Wednesday, December 16, 2009
BEWARE GOING PRO PER [representing yourself] IN A DIVORCE OR FAMILY LAW CASE; THE DEAL YOU NEGOTIATE MAY NOT BE THE DEAL YOU GET.
DONALD F. CONVISER, Certified Family Law Specialist, representing people in divorce and family law cases in the courts of Los Angeles and Ventura county for over 35 years, owner of WARNER CENTER LAW OFFICES, located in Woodland Hills in the west San Fernando Valley, offering a free confidential consultation to address your particular divorce or family law situation, writes about pitfalls of going pro per [unrepresented by counsel] in a divorce or family law case.
In Marriage of DELLARIA and BLICKMAN (2009) 172 Cal.App.4th 176, the court of appeal held that the settlement that the parties had negotiated and fully performed was unenforceable.
In DELLARIA and BLICKMAN, after the Petition for Dissolution of Marriage was filed, the parties [at that time, both in Pro-Per, i.e., unrepresented by counsel] orally negotiated a property settlement, where the wife received the family home, the husband received two other pieces of real property, the wife received a car, the husband received two other cars, and each party received his and her own retirement plans. They signed and exchanged deeds and ownership documents to complete the settlement.
Husband thereafter realized that wife had gotten the better deal, and the case went to trial. Wife's attorney asked that Judgment should be entered on the parties' fully performed agreement dividing their community property, claimed that all of the property transfers were valid transmutations, and asked that the trial court impose monetary sanctions on husband for going to trial notwithstanding the parties' prior settlement.
The trial court found that the parties had entered into a valid and enforceable oral agreement to divide the major assets of the marital estate, and that they had fully performed their oral contract, and adjudicated the parties' Community Property rights in accordance with their oral settlement agreement, even though it resulted in an uneven distribution of community property.
Furthermore, the trial court imposed $175,000 in FAMILY CODE Section 271 Monetary Sanctions on the husband for his rejection of wife's 'reasonable settment offer' [she had offered to accept Child Support at its present level and to be responsible for her own attorney's fees if husband would not contest the parties' fully performed oral settlement agreement].
FAMILY CODE Section 271 provides that notwithstanding any other provision of the Family Code, the court may base an award of fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Husband appealed. The appellate court held the parties' oral agreement void and unenforceable, and reversed the trial court's property division and sanctions orders, applying the following rationale:
To the extent the Trial Court's decision reflects an interpretation of a statute, it presents a question of law that the Appellate Court reviews de novo.
FAMILY CODE Section 2550 provides that except upon the written agreement of the parties, or on oral stipulation of the parties in open court ..., in a proceeding for dissolution of marriage or legal separation, the court SHALL, either in its judgment of dissolution or legal separation, or at a later time if it expressly reserves jurisdiction to make such a property division, DIVIDE THE COMMUNITY ESTATE OF THE PARTIES EQUALLY.
In Marriage of CREAM (1993) 13 Cal.App.4th 81, 91, the appellate court held that if such an agreement [written or stipulated to in open court] is entered into, the court must accept the parties' agreement regarding the disposition of their property.
In Marriage of QUAY (2003) 18 Cal.App.4th 961, 966, the appellate court held that once a petition has been filed, the community property needs to be divided either by the parties or by the court. If the court divides the community property, it must do so equally. If the parties want to agree upon another disposition, they must do so either in writing or in open court.
In Marriage of MARICLE (1990) 220 Cal.App.3d 55, 58, the appellate court reversed a judgment based on a fully executed oral agreement, in a case whose facts were substantially similar the the DELARIA & BLICKMAN facts
The most significant difference in facts between the two cases was that in MARICLE, both parties were represented by counsel at the time the parties independently entered into their settlement agreement and performed its terms, whereas in DELLARIA & BLICKMAN, both parties were in Pro Per, i.e., unrepresented by counsel at time of their negotiation, entry into, and performance of their oral agreement.
In MARICLE, the appellate court held that there is no need to show fraud, oppression, or undue influence to set aside such a judgment, and stated that, full execution notwithstanding, the purpose of the statute is to ensure that the rights of a party are not dependent on faulty recollection or false testimony.
In MARICLE, the appellate court addressed oral settlement agreements of represented parties entered without their attorneys' knowledge, stating: "Where a party is represented by an attorney of record, the court should not accept a stipulation or agreement made without the knowledge and consent of the attorney."
As noted above, DELLARIA and BLICKMAN were in Pro Per when they entered and performed their settlement agreement, but the writer has included this reference to MIRACLE as an admonition to represented parties that the parties' attorneys should not be left out of the loop.
The DELLARIA & BLICKMAN appellate court stated that requiring the parties' settlement agreement to be committed to writing or recited in court, as mandated by FAMILY CODE Section 2550, prevents the risk of the court enforcing an agreement that was never made. [That was the danger encountered by that court - the parties' trial testimony regarding their alleged 'agreement' was conflicting]. Courts accepting stipulations or reviewing written agreements can be satisfied that such an agreement has been made.
Given that the appellate court in DELLARIA & BLICKMAN set aside the Judgment [finding the parties' fully performed oral settlement agreement to be void and unenforceable], the appellate court set aside the trial court's sanctions order against husband, which had faulted and penalized husband for taking the case to trial in the face of what the trial court had wrongly deemed to be a valid settlement.
Parties to Divorce or Family Law proceedings are best served by employing competent counsel to represent, advise and guide them in their dealings regarding their cases. People representing themselves in Pro Per face pitfalls resulting from their lack of education, training and experience, and can find themselves economically worse off than they would have been had they hired counsel in the first place.
In Marriage of DELLARIA and BLICKMAN (2009) 172 Cal.App.4th 176, the court of appeal held that the settlement that the parties had negotiated and fully performed was unenforceable.
In DELLARIA and BLICKMAN, after the Petition for Dissolution of Marriage was filed, the parties [at that time, both in Pro-Per, i.e., unrepresented by counsel] orally negotiated a property settlement, where the wife received the family home, the husband received two other pieces of real property, the wife received a car, the husband received two other cars, and each party received his and her own retirement plans. They signed and exchanged deeds and ownership documents to complete the settlement.
Husband thereafter realized that wife had gotten the better deal, and the case went to trial. Wife's attorney asked that Judgment should be entered on the parties' fully performed agreement dividing their community property, claimed that all of the property transfers were valid transmutations, and asked that the trial court impose monetary sanctions on husband for going to trial notwithstanding the parties' prior settlement.
The trial court found that the parties had entered into a valid and enforceable oral agreement to divide the major assets of the marital estate, and that they had fully performed their oral contract, and adjudicated the parties' Community Property rights in accordance with their oral settlement agreement, even though it resulted in an uneven distribution of community property.
Furthermore, the trial court imposed $175,000 in FAMILY CODE Section 271 Monetary Sanctions on the husband for his rejection of wife's 'reasonable settment offer' [she had offered to accept Child Support at its present level and to be responsible for her own attorney's fees if husband would not contest the parties' fully performed oral settlement agreement].
FAMILY CODE Section 271 provides that notwithstanding any other provision of the Family Code, the court may base an award of fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
Husband appealed. The appellate court held the parties' oral agreement void and unenforceable, and reversed the trial court's property division and sanctions orders, applying the following rationale:
To the extent the Trial Court's decision reflects an interpretation of a statute, it presents a question of law that the Appellate Court reviews de novo.
FAMILY CODE Section 2550 provides that except upon the written agreement of the parties, or on oral stipulation of the parties in open court ..., in a proceeding for dissolution of marriage or legal separation, the court SHALL, either in its judgment of dissolution or legal separation, or at a later time if it expressly reserves jurisdiction to make such a property division, DIVIDE THE COMMUNITY ESTATE OF THE PARTIES EQUALLY.
In Marriage of CREAM (1993) 13 Cal.App.4th 81, 91, the appellate court held that if such an agreement [written or stipulated to in open court] is entered into, the court must accept the parties' agreement regarding the disposition of their property.
In Marriage of QUAY (2003) 18 Cal.App.4th 961, 966, the appellate court held that once a petition has been filed, the community property needs to be divided either by the parties or by the court. If the court divides the community property, it must do so equally. If the parties want to agree upon another disposition, they must do so either in writing or in open court.
In Marriage of MARICLE (1990) 220 Cal.App.3d 55, 58, the appellate court reversed a judgment based on a fully executed oral agreement, in a case whose facts were substantially similar the the DELARIA & BLICKMAN facts
The most significant difference in facts between the two cases was that in MARICLE, both parties were represented by counsel at the time the parties independently entered into their settlement agreement and performed its terms, whereas in DELLARIA & BLICKMAN, both parties were in Pro Per, i.e., unrepresented by counsel at time of their negotiation, entry into, and performance of their oral agreement.
In MARICLE, the appellate court held that there is no need to show fraud, oppression, or undue influence to set aside such a judgment, and stated that, full execution notwithstanding, the purpose of the statute is to ensure that the rights of a party are not dependent on faulty recollection or false testimony.
In MARICLE, the appellate court addressed oral settlement agreements of represented parties entered without their attorneys' knowledge, stating: "Where a party is represented by an attorney of record, the court should not accept a stipulation or agreement made without the knowledge and consent of the attorney."
As noted above, DELLARIA and BLICKMAN were in Pro Per when they entered and performed their settlement agreement, but the writer has included this reference to MIRACLE as an admonition to represented parties that the parties' attorneys should not be left out of the loop.
The DELLARIA & BLICKMAN appellate court stated that requiring the parties' settlement agreement to be committed to writing or recited in court, as mandated by FAMILY CODE Section 2550, prevents the risk of the court enforcing an agreement that was never made. [That was the danger encountered by that court - the parties' trial testimony regarding their alleged 'agreement' was conflicting]. Courts accepting stipulations or reviewing written agreements can be satisfied that such an agreement has been made.
Given that the appellate court in DELLARIA & BLICKMAN set aside the Judgment [finding the parties' fully performed oral settlement agreement to be void and unenforceable], the appellate court set aside the trial court's sanctions order against husband, which had faulted and penalized husband for taking the case to trial in the face of what the trial court had wrongly deemed to be a valid settlement.
Parties to Divorce or Family Law proceedings are best served by employing competent counsel to represent, advise and guide them in their dealings regarding their cases. People representing themselves in Pro Per face pitfalls resulting from their lack of education, training and experience, and can find themselves economically worse off than they would have been had they hired counsel in the first place.
Wednesday, December 9, 2009
EXPENSES ARE RELEVANT TO ATTORNEY FEE ORDERS IN FAMILY LAW CASES
DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in the Woodland Hills section of the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura for over 35 years, offering a free confidential consulation regarding your divorce or family law situation, writes this article to address the relevance of expenses in attorney fee requests, oppositions to attorney fee requests, and attorney fee orders in family law or divorce cases.
In ALAN S. vs. SUPERIOR COURT (MARY T.) (2009) 172 Cal.App.4th 239, the appellate court addressed how courts are to achieve (particularly in low and middle income cases) the legislative goal of assuring "each party has access to legal representation to preserve each party's rights" [FAMILY CODE Section 2030(a)(1)] and the goal that each party, to the extent practical, to have sufficient financial resources to present the party's case adequately. FAMILY CODE Section 2032(b). The court stressed that the purpose of fee orders is parity, as opposed to redistribution of income.
Alan S. challenged attorney fee orders made by the trial court preparatory to a child custody hearing brought by Mary T, his ex-wife [ordering Alan to pay Mary $9,000 in attorney's fees at $300/month], which Alan claimed would deprive him of the ability to afford his own counsel at the custody hearing, and which were made without giving Alan the opportunity to present any testimonial evidence at the attorney-fee hearing.
Three weeks after the attorney fee order, Alan filed a Petition for a Writ of Mandate.
The appellate court reversed the trial court orders, and this article discusses some of the appellate court's reasoning.
The appellate court stated that, of all cases, child custody is perhaps the most time-sensitive (and hence least amenable to an adequate remedy by away of appeal) since time in a child's life can never be recovered. The Appellate Court found the normal (slow) appeal procedure to be inadequate, because of the interrelationship of the attorney fee order and Alan's ability to obtain counsel for the "main event".
The appellate court pointed out that the purpose of FAMILY CODE Section 2030 is not the redistribution of money from the greater income party to the lesser income party, but instead, its purpose is parity: a fair hearing with both sides equally represented.
The court noted that by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his/her own case.
The court addressed MARRIAGE OF KEECH (1999) 75 Cal.App.4th 860, which despite an abuse of discretion standard of review, reversed an attorney and accountant's fee and order for that very reason [in KEECH, the attorney fee order of $500/month would leave him a mere $593/month to live on, after his support payments of $1,468/month and his taxes and rent taking up the balance beyond the $593]. The KEECH appellate court stated that the trial court was required to take into consideration the need for each party, to the extent practical, to have sufficient resources to present the party's case adequately.
The ALAN S appellate court next addressed the EXPENSE side of Income and Expense Declarations, and noted that since expenses are (with very few exceptions [e.g Family Code Section 4071 - Hardship Circumstances & Deductions] irrelevant for child support, it is perhaps too easy for family law judges to dismiss the expenses on the income and expense declaration in other contexts, such as the context of a requested attorney fee order, but to do so is error.
The Court held that Expenses are relevant to attorney fee orders, citing FAMILY CODE Section 2032(b) [addressed hereinabove], taking into consideration, to the extent relevant, the circumstances of the respective parties described in FAMILY CODE Section 4320 [the code section setting forth factors considered in the determination of long-term marriage Spousal Support], including 4320(k) "balance of hardships to each party".
Section 2032(b) further tells courts that: "Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."
The court stated that reading section 2032 together with section 4320, one cannot escape the idea that a fee award should be the product of a nuanced process in which the trial court should try to get the "big picture" of the case, i.e., "the relative circumstances of the respective parties" [Section 2032(a)]. Conversely, determination of an attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test. The court stated that the record (including the order) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. The court found that the trial court took the truncated approach.
The court also stated that FAMILY CODE Section 2030(a) limits fee awards to amounts that are reasonably necessary, and that an award measured summarily by what the applicant has been billed or what his/her attorney is presently owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary.
The court next addressed the Reiflerization of the hearing [the hearing of OSCs and Motions based only on written declarations, per REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479] and the far more recent ELKINS decision [ELKINS v. SUPERIOR COURT (2007) 41 Cal.4TH 1337, 1369 - addressing live testimony at trials - as opposed to OSCs and Motions], finding that there is much in the ALAN S. case in common with ELKINS, and that just because live testimony may not be automatically required does not mean it may not be an abuse of discretion to refuse it if the peculiar facts of a case reuire it. The court noted that in REIFLER, the appellate court held that reliance upon the local policy rather than an intelligent application of trial court discretion was error, and sent the case back to the trial court to hear oral testimony.
In ALAN S., the appellate court sent the case back to the trial court for a reconsideration of the basic circumstances of the parties per KEECH, for reconsideration of taking live testimony per REIFLER, and for what it called a "re-do", where the trial court can get a bigger picture of the litigation, stating that a fee-shifting order may be an abuse of discretion if the timing or method of the payment obligation puts and unreasonable burden on the obligor in light of his/her own cash-flow situation (support obligations, personal living expenses, and own attorney fees).
The ALAN S. case is an important case for any party to review and cite in any family law or divorce case in which an attorney's fee request is made.
In ALAN S. vs. SUPERIOR COURT (MARY T.) (2009) 172 Cal.App.4th 239, the appellate court addressed how courts are to achieve (particularly in low and middle income cases) the legislative goal of assuring "each party has access to legal representation to preserve each party's rights" [FAMILY CODE Section 2030(a)(1)] and the goal that each party, to the extent practical, to have sufficient financial resources to present the party's case adequately. FAMILY CODE Section 2032(b). The court stressed that the purpose of fee orders is parity, as opposed to redistribution of income.
Alan S. challenged attorney fee orders made by the trial court preparatory to a child custody hearing brought by Mary T, his ex-wife [ordering Alan to pay Mary $9,000 in attorney's fees at $300/month], which Alan claimed would deprive him of the ability to afford his own counsel at the custody hearing, and which were made without giving Alan the opportunity to present any testimonial evidence at the attorney-fee hearing.
Three weeks after the attorney fee order, Alan filed a Petition for a Writ of Mandate.
The appellate court reversed the trial court orders, and this article discusses some of the appellate court's reasoning.
The appellate court stated that, of all cases, child custody is perhaps the most time-sensitive (and hence least amenable to an adequate remedy by away of appeal) since time in a child's life can never be recovered. The Appellate Court found the normal (slow) appeal procedure to be inadequate, because of the interrelationship of the attorney fee order and Alan's ability to obtain counsel for the "main event".
The appellate court pointed out that the purpose of FAMILY CODE Section 2030 is not the redistribution of money from the greater income party to the lesser income party, but instead, its purpose is parity: a fair hearing with both sides equally represented.
The court noted that by providing for orders to pay money so that one's adversary can afford an attorney, there is the paradoxical possibility that a court may effectively deprive the paying party of the ability to present his/her own case.
The court addressed MARRIAGE OF KEECH (1999) 75 Cal.App.4th 860, which despite an abuse of discretion standard of review, reversed an attorney and accountant's fee and order for that very reason [in KEECH, the attorney fee order of $500/month would leave him a mere $593/month to live on, after his support payments of $1,468/month and his taxes and rent taking up the balance beyond the $593]. The KEECH appellate court stated that the trial court was required to take into consideration the need for each party, to the extent practical, to have sufficient resources to present the party's case adequately.
The ALAN S appellate court next addressed the EXPENSE side of Income and Expense Declarations, and noted that since expenses are (with very few exceptions [e.g Family Code Section 4071 - Hardship Circumstances & Deductions] irrelevant for child support, it is perhaps too easy for family law judges to dismiss the expenses on the income and expense declaration in other contexts, such as the context of a requested attorney fee order, but to do so is error.
The Court held that Expenses are relevant to attorney fee orders, citing FAMILY CODE Section 2032(b) [addressed hereinabove], taking into consideration, to the extent relevant, the circumstances of the respective parties described in FAMILY CODE Section 4320 [the code section setting forth factors considered in the determination of long-term marriage Spousal Support], including 4320(k) "balance of hardships to each party".
Section 2032(b) further tells courts that: "Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."
The court stated that reading section 2032 together with section 4320, one cannot escape the idea that a fee award should be the product of a nuanced process in which the trial court should try to get the "big picture" of the case, i.e., "the relative circumstances of the respective parties" [Section 2032(a)]. Conversely, determination of an attorney fee order is definitely not a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test. The court stated that the record (including the order) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion. The court found that the trial court took the truncated approach.
The court also stated that FAMILY CODE Section 2030(a) limits fee awards to amounts that are reasonably necessary, and that an award measured summarily by what the applicant has been billed or what his/her attorney is presently owed is an abuse of discretion if it does not reflect consideration of whether the fees allegedly incurred were reasonably necessary.
The court next addressed the Reiflerization of the hearing [the hearing of OSCs and Motions based only on written declarations, per REIFLER v. SUPERIOR COURT (1974) 39 Cal.App.3d 479] and the far more recent ELKINS decision [ELKINS v. SUPERIOR COURT (2007) 41 Cal.4TH 1337, 1369 - addressing live testimony at trials - as opposed to OSCs and Motions], finding that there is much in the ALAN S. case in common with ELKINS, and that just because live testimony may not be automatically required does not mean it may not be an abuse of discretion to refuse it if the peculiar facts of a case reuire it. The court noted that in REIFLER, the appellate court held that reliance upon the local policy rather than an intelligent application of trial court discretion was error, and sent the case back to the trial court to hear oral testimony.
In ALAN S., the appellate court sent the case back to the trial court for a reconsideration of the basic circumstances of the parties per KEECH, for reconsideration of taking live testimony per REIFLER, and for what it called a "re-do", where the trial court can get a bigger picture of the litigation, stating that a fee-shifting order may be an abuse of discretion if the timing or method of the payment obligation puts and unreasonable burden on the obligor in light of his/her own cash-flow situation (support obligations, personal living expenses, and own attorney fees).
The ALAN S. case is an important case for any party to review and cite in any family law or divorce case in which an attorney's fee request is made.
Monday, December 7, 2009
PROPERTY RIGHTS OF PUTATIVE SPOUSES IN DIVORCE/ANNULMENT CASES
DONALD F. CONVISER, Certified Family Specialist, serving divorce and family law clients in Los Angeles and Ventura County Courts for over 35 years, owner of Warner Center Law Offices in Woodland Hills California in the San Fernando Valley, offering a free confidential consultation about your divorce or family law situation, writes about Marriage of TEJEDA, a case decided on November 25, 2009, in which an innocent wife sought to have property acquired by her during her marriage to her bigamist husband awarded to her as her separate property.
When Petra married Pablo Tejeda in 1973, she had no idea that Pablo was already married to Margarita, and she remained ignorant that Pablo had committed bigamy until some time in 1996. In the meantime, apparently also unknown to Petra, Pablo divorced Margarita in 1976. In and after 1994, Petra began acquiring properties in her own name (together with other relatives, but without Pablo). In 1996, Pablo filed for a divorce. Petra responded requesting a divorce. Subsequently, she amended her response to seek an annulment of their marriage, requesting that all property in her possession be confirmed as her separate property.
The trial court held that it was required to divide the property under Family Code Section 2251, which provides that if the court determines that the marriage is void or voidable and that either or both parties believed in good faith that the marriage was valid, the court shall 1) declare the party or parties to have the status of a putative spouse; and 2) if the division of property is in issue, divide that property acquired during the union which would have been community property or quasi community property if the union had not been void or voidable. This property is known as 'quasi-marital property'."
Petra appealed, claiming that she was the innocent party, that Section 2251 was ambiguous, and that it should only be applied at the request of the putative (innocent) party.
The appellate court construed FAMILY CODE Section 2251, and affirmed the trial court's ruling, holding that if either party is a putative spouse, quasi-marital property must be divided equally.
The appellate court's reasoning in its opinion included the following:
A marriage that is invalid due to a legal infirmity (such as bigamy of one of the parties) may be recognized as a putative marriage.
Property acquired during a putative marriage (quasi-marital property) is divided as if it were community property.
The status of putative spouse requires innocence or good faith belief. However, once either party is a putative spouse, the union is a putative marriage - a union in which at least one partner believes in good faith that a valid marriage exists.
The appellate court held that the mandate of Section 2251 must be applied without regard to guilt or innocence when the court makes the predicate findings that the marriage is void or voidable, and at least one party to the union maintained a good faith belief in the validity of the marriage.
If a marriage is voidable or void as a result of bigamy of one of the parties (or other appropriate factor) and at least one party has a good faith belief that a valid marriage exists, the parties' property acquired during their marriage is subject to the same rights that would have existed had the parties' marriage not been voidable or void.
The fact that one party is innocent and another is guilty makes no difference. In Marriage of TEJEDA, property acquired by the "innocent" putative party was held to be divisible as quasi marital property and the wrongdoer paid no penalty for his bigamy.
Query what would have been the result had Petra known at the time of the parties' "marriage" that Pablo was a bigamist and that their marriage was void? She may well have been awarded all the property that she had acquired during the parties' union. Section 2251 would have been inapplicable. This writer is unaware whether or not Petra actually knew at the time of the marriage that Pablo was a bigamist, but notes that Petra did obtain her legal immigration status through her marriage to Pablo. She might have been between a rock and a hard place in determining what to assert in her family law case.
When Petra married Pablo Tejeda in 1973, she had no idea that Pablo was already married to Margarita, and she remained ignorant that Pablo had committed bigamy until some time in 1996. In the meantime, apparently also unknown to Petra, Pablo divorced Margarita in 1976. In and after 1994, Petra began acquiring properties in her own name (together with other relatives, but without Pablo). In 1996, Pablo filed for a divorce. Petra responded requesting a divorce. Subsequently, she amended her response to seek an annulment of their marriage, requesting that all property in her possession be confirmed as her separate property.
The trial court held that it was required to divide the property under Family Code Section 2251, which provides that if the court determines that the marriage is void or voidable and that either or both parties believed in good faith that the marriage was valid, the court shall 1) declare the party or parties to have the status of a putative spouse; and 2) if the division of property is in issue, divide that property acquired during the union which would have been community property or quasi community property if the union had not been void or voidable. This property is known as 'quasi-marital property'."
Petra appealed, claiming that she was the innocent party, that Section 2251 was ambiguous, and that it should only be applied at the request of the putative (innocent) party.
The appellate court construed FAMILY CODE Section 2251, and affirmed the trial court's ruling, holding that if either party is a putative spouse, quasi-marital property must be divided equally.
The appellate court's reasoning in its opinion included the following:
A marriage that is invalid due to a legal infirmity (such as bigamy of one of the parties) may be recognized as a putative marriage.
Property acquired during a putative marriage (quasi-marital property) is divided as if it were community property.
The status of putative spouse requires innocence or good faith belief. However, once either party is a putative spouse, the union is a putative marriage - a union in which at least one partner believes in good faith that a valid marriage exists.
The appellate court held that the mandate of Section 2251 must be applied without regard to guilt or innocence when the court makes the predicate findings that the marriage is void or voidable, and at least one party to the union maintained a good faith belief in the validity of the marriage.
If a marriage is voidable or void as a result of bigamy of one of the parties (or other appropriate factor) and at least one party has a good faith belief that a valid marriage exists, the parties' property acquired during their marriage is subject to the same rights that would have existed had the parties' marriage not been voidable or void.
The fact that one party is innocent and another is guilty makes no difference. In Marriage of TEJEDA, property acquired by the "innocent" putative party was held to be divisible as quasi marital property and the wrongdoer paid no penalty for his bigamy.
Query what would have been the result had Petra known at the time of the parties' "marriage" that Pablo was a bigamist and that their marriage was void? She may well have been awarded all the property that she had acquired during the parties' union. Section 2251 would have been inapplicable. This writer is unaware whether or not Petra actually knew at the time of the marriage that Pablo was a bigamist, but notes that Petra did obtain her legal immigration status through her marriage to Pablo. She might have been between a rock and a hard place in determining what to assert in her family law case.
Sunday, December 6, 2009
WHY THE COURT SHOULD UPHOLD PENALTY AGREEMENTS FOR INFIDELTITY
DONALD F. CONVISER, Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, serving divorce and family law clients in the Courts of Los Angeles and Ventura County for over 35 yers, discusses in this article reasons for his disareement with the DIOSDADO opinion addressed in yesterday's blog, entitled LEGAL CONSEQUENCES OF INFIDELITY IN A MARRIAGE.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between a husband and wife providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other is unenforceable. The DIOSDADO Court addressed Marriage of WALTON (1972) 29 CA3d 108, 119, and FAMILY CODE Section 2310 (formerly CIVIL CODE Section 4506) as significant bases for its holding.
FAMILY CODE Section 2310 provides two grounds for dissolving a marriage: a) Irreconcilable differences which have caused the irremediable breakdown of the marriage; and b) Incurable insanity.
FAMILY CODE Section 2335 provides that in a pleading or proceeding for dissolution of marriage or legal separation, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. In Marriage of WALTON, the Court stated that with certain exceptions (such as child custody matters or restraining orders), evidence of specific acts of misconduct is improper and inadmissible.
In DIOSDADO, the appellate court stated: "The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce."
In DIOSDADO, the appellate court stated that contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium [the agreed $50,000 liquidated damages consideration] for the emotional angst caused by huband's breach of his promise of sexual fidelity.
This writer disagrees with the DIOSDADO appellate court. Whereas this writer agrees that no fault need be shown to dissolve a marriage, he notes that a spouse's fault has been the basis of awards to the other spouse in many cases. This writer proposes that the court should distinguish between the no-fault ground to dissolve a marriage and fault (or contractual) grounds and evidence to justify awards to the other spouse in appropriate circumstances.
In DIOSDADO, the appellate court stated: "To be enforceable, a contract must have a lawful object [Civil Code Section 1550(3)]. A contract is unlawful if it is contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage [See FAMILY CODE Sections 2310 & 2315]. For that reason, the agreement is unenforceable."
In yesterday's blog post, this writer addressed Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, which held that the intent not to observe an obligation for sexual fidelity will support a finding of nullity based on fraud. The Court in that case addressed FAMILY CODE Section 720, which reads: Husband and Wife contract toward each other obligations of mutual respect, fidelity, and support.
Is that not, per language quoted in DIOSDADO, a contract which has a lawful object? [Civil Code Section 1550(3)]. Is that contract contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. No - it is an express provision of the law, it clearly expresses its policy, and it endeavors to enforce good morals.
In RAMIREZ, the appellate court annulled a marriage based on violation of that very contract. The DIOSDADO appellate court overlooked the significance of Civil Code Section 1550(3), and the fact that the parties had entered into a contract which had a lawful object.
The DIOSDADO opinion addressed Marriage of ASKEW (1994) 22 Cal.App.4th 942, 960, when it stated that fault is not a relevent consideration in the legal process by which a marriage is dissolved.
In ASKEW, husband sued wife in civil court based on wife's pre-marriage representations that she felt sexual attraction for him, and in reliance on her statement, he had married her and put certain parcels of real property in both of their names as Joint Tenants. 13 years and 2 children later, he sued her for fraud, negligent misrepresentation, breach of fiduciary duty, constructive trust, constructive fraud, accounting, cancellation of deeds, and intentional infliction of emotional distress, claiming that she never felt sexual attraction for him, and that her fraud justified imposing a constructive trust on her share of those properties.
The appellate court in ASKEW rightly denied relief to the husband, holding that his suit was essentially a breach of promise suit, precluded by the Anti Heart Balm statute, CIVIL CODE Section 43.5 [No cause of action arises for alienation of affection, criminal conversation, seduction of a person of the age of legal consent, and breach of promise of marriage].
ASKEW isn't relevant to the issue as to whether or not a contract providing for liquidated damages for violation of the marriage contract of fidelity should be enforced. ASKEW's statement as to fault was mere dicta, and needn't be followed.
The DIOSDADO contract had a legitimate purpose founded in a California Statute - to enforce the statutory marital contract obligation of fidelity, and consideration - $50,000 for violation.
Although fault has been eliminated as a basis for granting a dissolution of marriage, fault and consideration have not been eliminated as the basis for certain relief in divorce cases.
For instance, Prenuptial Agreements have been upheld by the Court.
If a spouse makes a gift of community property to his/her girlfriend, that could form a basis for an award to the other spouse pursuant to FAMILY CODE Section 721 [Fiduciary relationship of husband and wife, imposing a duty of the highest good faith and fair dealing on each spouse] and/or FAMILY CODE Section 1101 [Remedies for breach of fiduciary duty between spouses - a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, and the remedy could be 50% of the highest value at the date of the breach, the date of the sale/disposition, or the date of the award by the court, or, if the breach qualifies for punitive damages, 100% of such value(s)].
Fault provisions of the law which have supported awards or denials of awards in family cases include:
CIVIL CODE Section 1550(3), as recognized and used as the basis for relief awarding an annulment in Marriage of RAMIREZ & LLAMAS, supra.
FAMILY CODE Section 782: Injuries to a married person by his/her spouse, caused in whole or in part by the negligent or wrongful act or omission of the spouse - the Community Property may not be used to discharge the liability to make contribution to a joint tortfeasor until the tortfeasor's nonexempt separate property is exhausted.
FAMILY CODE Section 782.55, authorizing award to the injured spouse of the entire community property interest in retirement/pension benefits of the injured spouse when the other spouse is convicted of attempting to murder the injured spouse.
FAMILY CODE Section 721 - as addressed above, imposing the highest duty of good faith and fair dealing on spouses, that neither spouse shall take unfair advantage of the other.
FAMILY CODE Section 1100 and 1101 - as addressed above - Fiduciary Duties and Remedies for breach.
FAMILY CODE Section 4324: Award of support or benefits prohibited to a spouse convicted of attempted murder of the other spouse, whether or not actual physical injury occurred.
FAMILY CODE Section 4325: Rebuttable presumption affecting the burden of proof, that any award of temporary or permanent support shall not be made to an abusive spouse convicted of Domestic Violence against the other spouse.
And consider the punitive effects of a BIFURCATION OF MARITAL STATUS, addressed in my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION.
Whereas this writer takes no issue with the proposition that fault not be a basis for granting a divorce, fault and/or legitimate objects of contracts beween the parties should form the basis of relief in Family Law Court.
This writer would hope that the next appellate court to address enforcement of a contract between spouses providing for liquidated damages for sexual infidelity in a marriage will consider the facts, authorities and arguments addressed in this post, and welcomes inquiries and comments regarding this post.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between a husband and wife providing for payment of liquidated damages in the event one of them is sexually unfaithful to the other is unenforceable. The DIOSDADO Court addressed Marriage of WALTON (1972) 29 CA3d 108, 119, and FAMILY CODE Section 2310 (formerly CIVIL CODE Section 4506) as significant bases for its holding.
FAMILY CODE Section 2310 provides two grounds for dissolving a marriage: a) Irreconcilable differences which have caused the irremediable breakdown of the marriage; and b) Incurable insanity.
FAMILY CODE Section 2335 provides that in a pleading or proceeding for dissolution of marriage or legal separation, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible. In Marriage of WALTON, the Court stated that with certain exceptions (such as child custody matters or restraining orders), evidence of specific acts of misconduct is improper and inadmissible.
In DIOSDADO, the appellate court stated: "The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce."
In DIOSDADO, the appellate court stated that contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium [the agreed $50,000 liquidated damages consideration] for the emotional angst caused by huband's breach of his promise of sexual fidelity.
This writer disagrees with the DIOSDADO appellate court. Whereas this writer agrees that no fault need be shown to dissolve a marriage, he notes that a spouse's fault has been the basis of awards to the other spouse in many cases. This writer proposes that the court should distinguish between the no-fault ground to dissolve a marriage and fault (or contractual) grounds and evidence to justify awards to the other spouse in appropriate circumstances.
In DIOSDADO, the appellate court stated: "To be enforceable, a contract must have a lawful object [Civil Code Section 1550(3)]. A contract is unlawful if it is contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. Here, where the agreement attempts to impose a penalty on one of the parties as a result of that party's 'fault' during the marriage, it is contrary to the public policy underlying the no-fault provisions for dissolution of marriage [See FAMILY CODE Sections 2310 & 2315]. For that reason, the agreement is unenforceable."
In yesterday's blog post, this writer addressed Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, which held that the intent not to observe an obligation for sexual fidelity will support a finding of nullity based on fraud. The Court in that case addressed FAMILY CODE Section 720, which reads: Husband and Wife contract toward each other obligations of mutual respect, fidelity, and support.
Is that not, per language quoted in DIOSDADO, a contract which has a lawful object? [Civil Code Section 1550(3)]. Is that contract contrary to an express provision of the law, contrary to the policy of express law, or otherwise contrary to good morals [Civil Code Section 1667]. No - it is an express provision of the law, it clearly expresses its policy, and it endeavors to enforce good morals.
In RAMIREZ, the appellate court annulled a marriage based on violation of that very contract. The DIOSDADO appellate court overlooked the significance of Civil Code Section 1550(3), and the fact that the parties had entered into a contract which had a lawful object.
The DIOSDADO opinion addressed Marriage of ASKEW (1994) 22 Cal.App.4th 942, 960, when it stated that fault is not a relevent consideration in the legal process by which a marriage is dissolved.
In ASKEW, husband sued wife in civil court based on wife's pre-marriage representations that she felt sexual attraction for him, and in reliance on her statement, he had married her and put certain parcels of real property in both of their names as Joint Tenants. 13 years and 2 children later, he sued her for fraud, negligent misrepresentation, breach of fiduciary duty, constructive trust, constructive fraud, accounting, cancellation of deeds, and intentional infliction of emotional distress, claiming that she never felt sexual attraction for him, and that her fraud justified imposing a constructive trust on her share of those properties.
The appellate court in ASKEW rightly denied relief to the husband, holding that his suit was essentially a breach of promise suit, precluded by the Anti Heart Balm statute, CIVIL CODE Section 43.5 [No cause of action arises for alienation of affection, criminal conversation, seduction of a person of the age of legal consent, and breach of promise of marriage].
ASKEW isn't relevant to the issue as to whether or not a contract providing for liquidated damages for violation of the marriage contract of fidelity should be enforced. ASKEW's statement as to fault was mere dicta, and needn't be followed.
The DIOSDADO contract had a legitimate purpose founded in a California Statute - to enforce the statutory marital contract obligation of fidelity, and consideration - $50,000 for violation.
Although fault has been eliminated as a basis for granting a dissolution of marriage, fault and consideration have not been eliminated as the basis for certain relief in divorce cases.
For instance, Prenuptial Agreements have been upheld by the Court.
If a spouse makes a gift of community property to his/her girlfriend, that could form a basis for an award to the other spouse pursuant to FAMILY CODE Section 721 [Fiduciary relationship of husband and wife, imposing a duty of the highest good faith and fair dealing on each spouse] and/or FAMILY CODE Section 1101 [Remedies for breach of fiduciary duty between spouses - a spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, and the remedy could be 50% of the highest value at the date of the breach, the date of the sale/disposition, or the date of the award by the court, or, if the breach qualifies for punitive damages, 100% of such value(s)].
Fault provisions of the law which have supported awards or denials of awards in family cases include:
CIVIL CODE Section 1550(3), as recognized and used as the basis for relief awarding an annulment in Marriage of RAMIREZ & LLAMAS, supra.
FAMILY CODE Section 782: Injuries to a married person by his/her spouse, caused in whole or in part by the negligent or wrongful act or omission of the spouse - the Community Property may not be used to discharge the liability to make contribution to a joint tortfeasor until the tortfeasor's nonexempt separate property is exhausted.
FAMILY CODE Section 782.55, authorizing award to the injured spouse of the entire community property interest in retirement/pension benefits of the injured spouse when the other spouse is convicted of attempting to murder the injured spouse.
FAMILY CODE Section 721 - as addressed above, imposing the highest duty of good faith and fair dealing on spouses, that neither spouse shall take unfair advantage of the other.
FAMILY CODE Section 1100 and 1101 - as addressed above - Fiduciary Duties and Remedies for breach.
FAMILY CODE Section 4324: Award of support or benefits prohibited to a spouse convicted of attempted murder of the other spouse, whether or not actual physical injury occurred.
FAMILY CODE Section 4325: Rebuttable presumption affecting the burden of proof, that any award of temporary or permanent support shall not be made to an abusive spouse convicted of Domestic Violence against the other spouse.
And consider the punitive effects of a BIFURCATION OF MARITAL STATUS, addressed in my April 28, 2009 blog entitled THE POUND OF FLESH REQUIRED FOR BIFURCATION.
Whereas this writer takes no issue with the proposition that fault not be a basis for granting a divorce, fault and/or legitimate objects of contracts beween the parties should form the basis of relief in Family Law Court.
This writer would hope that the next appellate court to address enforcement of a contract between spouses providing for liquidated damages for sexual infidelity in a marriage will consider the facts, authorities and arguments addressed in this post, and welcomes inquiries and comments regarding this post.
Saturday, December 5, 2009
LEGAL CONSEQUENCES OF INFIDELITY IN A MARRIAGE
With the news of Tiger Woods' alleged infidelity, people are speculating about the possible consequences. In this article, DONALD F. CONVISER, a Certified Family Law Specialist, owner of WARNER CENTER LAW OFFICES in Woodland Hills, California, in the San Fernando Valley, serving divorce and family law clients in the courts of Los Angeles and Ventura counties for over 35 years, explores California case law and statutory law relating to to infidelity in a marriage.
In Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, the appellate court held that a party's intent not to observe the obligation of sexual fidelity can support a finding of nullity based on fraud, and held that an innocent party to an invalid marriage may obtain relief as a putative spouse [including division of property acquired during the "union" as community or quasi-community property] if that party believed in good faith that the marriage was valid.
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud [FAMILY CODE Section 2210(d)].
A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relationship [Marriage of MEAGHER & MALEKI (2005) 131 Cal.App.4th 1, 3].
The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract [Marriage of HANDLEY (1960) 179 Cal.App.2d 742].
The fraud relied upon must be such as directly defeats the marriage relationship (and not merely such fraud as would be sufficient to rescind an ordinary civil contract) [Marriage of MEAGHER & MALEKI, supra, at 6-7].
Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made [Marriage of BRUCE (1945) 71 Cal.App.2d 641, 644].
Annulments based on fraud have historically only been granted in cases where the fraud relates in some way to the sexual, procreative or child rearing aspects of marriage.
Where the offending party does not have the intent (or conduct) to be unfaithful at the time of the wedding, that marriage cannot be anulled on the basis of subsequent infidelity.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between the husband and wife providing for the payment of liquidated damages [in that case, $50,000] in the event that one of them is sexually unfaithful to the other is unenforceable.
FAMILY CODE Section 2310 provides for dissolution of marriage based on irreconcilable differences which have led to an irremediable breakdown of the marriage. The Appellate Court in DIOSDADO addressed Marriage of WALTON (1972) 28 Cal.App.3d 108, 119, in which the trial court granted a dissolution of marriage at husband's request, over wife's objections - wife sought but was not granted a Legal Separation. In WALTON, the Appellate Court stated: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for the termination of marriage from a fault basis to a marriage breakdown basis."
In DIOSDADO, the appellate court stated: "Contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium for the emotional angst caused by husband's breach of his promise of sexual fidelity. The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.
This writer takes issue with the DIOSDADO opinion, and will address his arguments and examples supporting his position in a subsequent blog.
In Marriage of RAMIREZ & LLAMAS (2008) 165 Cal.App.4th 751, the appellate court held that a party's intent not to observe the obligation of sexual fidelity can support a finding of nullity based on fraud, and held that an innocent party to an invalid marriage may obtain relief as a putative spouse [including division of property acquired during the "union" as community or quasi-community property] if that party believed in good faith that the marriage was valid.
A marriage is voidable and may be adjudged a nullity if the consent of either party was obtained by fraud [FAMILY CODE Section 2210(d)].
A marriage may be annulled for fraud only in an extreme case where the particular fraud goes to the very essence of the marriage relationship [Marriage of MEAGHER & MALEKI (2005) 131 Cal.App.4th 1, 3].
The fact represented or suppressed to induce consent to marriage will be deemed material if it relates to a matter of substance and directly affects the purpose of the party deceived in entering the marital contract [Marriage of HANDLEY (1960) 179 Cal.App.2d 742].
The fraud relied upon must be such as directly defeats the marriage relationship (and not merely such fraud as would be sufficient to rescind an ordinary civil contract) [Marriage of MEAGHER & MALEKI, supra, at 6-7].
Fraudulent intent not to perform a duty vital to the marriage state must exist in the offending spouse's mind at the moment the marriage contract is made [Marriage of BRUCE (1945) 71 Cal.App.2d 641, 644].
Annulments based on fraud have historically only been granted in cases where the fraud relates in some way to the sexual, procreative or child rearing aspects of marriage.
Where the offending party does not have the intent (or conduct) to be unfaithful at the time of the wedding, that marriage cannot be anulled on the basis of subsequent infidelity.
In Marriage of DIOSDADO (2002) 97 Cal.App.4th 470, the appellate court held that a contract between the husband and wife providing for the payment of liquidated damages [in that case, $50,000] in the event that one of them is sexually unfaithful to the other is unenforceable.
FAMILY CODE Section 2310 provides for dissolution of marriage based on irreconcilable differences which have led to an irremediable breakdown of the marriage. The Appellate Court in DIOSDADO addressed Marriage of WALTON (1972) 28 Cal.App.3d 108, 119, in which the trial court granted a dissolution of marriage at husband's request, over wife's objections - wife sought but was not granted a Legal Separation. In WALTON, the Appellate Court stated: "After thorough study, the Legislature, for reasons of social policy deemed compelling, has seen fit to change the grounds for the termination of marriage from a fault basis to a marriage breakdown basis."
In DIOSDADO, the appellate court stated: "Contrary to the public policy underlying California's no-fault divorce laws, the agreement between wife and husband attempts to impose a premium for the emotional angst caused by husband's breach of his promise of sexual fidelity. The Family Law court may not look to fault in dissolving the marriage, dividing property, or ordering support. Yet this agreement attempts to penalize the party who is at fault for having breached the obligation of sexual fidelity, and whose breach provided the basis for terminating the marriage. This penalty is in direct contravention of the public policy underlying no-fault divorce.
This writer takes issue with the DIOSDADO opinion, and will address his arguments and examples supporting his position in a subsequent blog.
Friday, December 4, 2009
A GIFT TO A SPOUSE MIGHT NOT BE HELD TO BE A GIFT, AFTER ALL.
Donald F. Conviser, a Certified Family Law Specialist in Woodland Hills in the San Fernando Valley, serving Divorce and Family Law Clients in the Courts of Los Angeles and Ventura Counties for over 35 years, writes this article to bring the reader's attention to a property division issue in divorce cases relating to gifts between spouses.
When you are given a gift of substantial value by your spouse, delicately request a writing from your spouse, to ensure that the gift becomes and remains your separate property, that it does not become community property, and that your spouse won't be entitled to reimbursement for the gift in case your marriage does not work out.
On December 1, 2009, in Marriage of BUIE and NEIGHBORS, the appellate court held that a $60,000 Porsche purchased by wife with her separate property funds and gifted to husband was community property, subject to a right of reimbursement to the wife of her separate property funds used to purchase the car, absent a written waiver by wife of her right to reimbursement.
Husband expected that the gift was his separate property, and the trial court ruled that the Porsche was a gift from wife to husband.
Marriage of BUIE and NEIGHBORS reflects that the law regarding gifts between spouses is more complicated than what most people expect.
FAMILY CODE Section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Since the Porsche was acquired during the marriage, the Porsche would be community property unless otherwise provided by statute.
FAMILY CODE Section 850 provides that married persons may transmute separate or community property to the separate property of the other spouse, subject to specific requirements for a valid transmutation.
FAMILY CODE Section 852(a) provides that a transmutation is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
FAMILY CODE Section 852(c) provides that the specific transmutation requirements of Section 852 do not apply to a gift between the spouses of tangible articles of a personal nature used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.
In Marriage of BUIE and NEIGHBORS, the trial court ruled that the Porche had been transmuted to husband's separate property, under the exception set forth in Section 852(c) for gifts of tangible articles of a personal nature that are not substantial, taking into account the circumstances of the marriage.
The Appellate Court held the trial court's ruling to be erroneous, and instead, held that the Porsche was community property under Section 760; furthermore,lacking any writing from wife stating that she intended to transmute the Porsche to husband's separate property, the Appellate Court held that the Porsche would be community property unless it is a tangible article of a personal nature, not substantial in value taking into account the circumstances of the marriage, under Section 852(c).
The Appellate Court examined the legislative history of Section 852(c) and observed the Law Revision Commission Report relating to that section stated that interspousal gifts are presumed to be separate or community depending on the nature of the property given, noting that the gift of an automobile would NOT create a presumption that the property is separate, since an automobile is not an article of a personal nature within the meaning of the applicable section. The Appellate Court concluded that the gift of the Porsche did not fall within the exception set forth in Section 852(c).
Furthermore, the Appellate Court found that the wife is entitled to reimbursement for the contribution of her separate funds to buy the Porsche, as is discussed hereinafter:
FAMILY CODE Section 2640(b) provides that in the division of community property, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, that party shall be reimbursed for his/her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. Citing Marriage of CARPENTER (2002), 100 Cal.App.4th 424, 427, the Appellate Court held that in the absence of such a written waiver, the donative intent of the contributing spouse (the wife in this case) does not bar reimbursement.
Because the $60,000 in funds used to purchase the Porsche for husband were traced entirely to wife's separate property funds, the Appellate Court held that wife has a substantive right to reimbursement of her separate property funds under Section 2640(b).
What lesson does this teach? Save gift cards. If you receive a gift of value from your spouse, delicately request a memo, card or letter reflecting that it is a gift and that he/she shall not be entitled to any reimbursement, and put it into safekeeping. Given the fact that well over 50% of marriages in California do not last, an ounce of prevention is worth a pound of cure.
When you are given a gift of substantial value by your spouse, delicately request a writing from your spouse, to ensure that the gift becomes and remains your separate property, that it does not become community property, and that your spouse won't be entitled to reimbursement for the gift in case your marriage does not work out.
On December 1, 2009, in Marriage of BUIE and NEIGHBORS, the appellate court held that a $60,000 Porsche purchased by wife with her separate property funds and gifted to husband was community property, subject to a right of reimbursement to the wife of her separate property funds used to purchase the car, absent a written waiver by wife of her right to reimbursement.
Husband expected that the gift was his separate property, and the trial court ruled that the Porsche was a gift from wife to husband.
Marriage of BUIE and NEIGHBORS reflects that the law regarding gifts between spouses is more complicated than what most people expect.
FAMILY CODE Section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Since the Porsche was acquired during the marriage, the Porsche would be community property unless otherwise provided by statute.
FAMILY CODE Section 850 provides that married persons may transmute separate or community property to the separate property of the other spouse, subject to specific requirements for a valid transmutation.
FAMILY CODE Section 852(a) provides that a transmutation is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.
FAMILY CODE Section 852(c) provides that the specific transmutation requirements of Section 852 do not apply to a gift between the spouses of tangible articles of a personal nature used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.
In Marriage of BUIE and NEIGHBORS, the trial court ruled that the Porche had been transmuted to husband's separate property, under the exception set forth in Section 852(c) for gifts of tangible articles of a personal nature that are not substantial, taking into account the circumstances of the marriage.
The Appellate Court held the trial court's ruling to be erroneous, and instead, held that the Porsche was community property under Section 760; furthermore,lacking any writing from wife stating that she intended to transmute the Porsche to husband's separate property, the Appellate Court held that the Porsche would be community property unless it is a tangible article of a personal nature, not substantial in value taking into account the circumstances of the marriage, under Section 852(c).
The Appellate Court examined the legislative history of Section 852(c) and observed the Law Revision Commission Report relating to that section stated that interspousal gifts are presumed to be separate or community depending on the nature of the property given, noting that the gift of an automobile would NOT create a presumption that the property is separate, since an automobile is not an article of a personal nature within the meaning of the applicable section. The Appellate Court concluded that the gift of the Porsche did not fall within the exception set forth in Section 852(c).
Furthermore, the Appellate Court found that the wife is entitled to reimbursement for the contribution of her separate funds to buy the Porsche, as is discussed hereinafter:
FAMILY CODE Section 2640(b) provides that in the division of community property, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, that party shall be reimbursed for his/her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. Citing Marriage of CARPENTER (2002), 100 Cal.App.4th 424, 427, the Appellate Court held that in the absence of such a written waiver, the donative intent of the contributing spouse (the wife in this case) does not bar reimbursement.
Because the $60,000 in funds used to purchase the Porsche for husband were traced entirely to wife's separate property funds, the Appellate Court held that wife has a substantive right to reimbursement of her separate property funds under Section 2640(b).
What lesson does this teach? Save gift cards. If you receive a gift of value from your spouse, delicately request a memo, card or letter reflecting that it is a gift and that he/she shall not be entitled to any reimbursement, and put it into safekeeping. Given the fact that well over 50% of marriages in California do not last, an ounce of prevention is worth a pound of cure.
Wednesday, December 2, 2009
THE BURDEN OF PROOF IN IMPUTATION OF EARNING CAPACITY IN CHILD OR SPOUSAL SUPPORT CASES
DONALD F. CONVISER, Certified Family Specialist, owner of WARNER CENTER LAW OFFICES in the WARNER CENTER area of the San Fernando Valley, serving Divorce and Family Law clients in the Courts of Los Angeles and Ventura County, offers this article relating to the burden of proof on imputation of earning capacity in child or spousal support cases.
Imputation of earning capacity is the Court's way of treating a party as earning a living pursuant to the introduction of evidence of ability to earn and opportunity to earn [even though that party may not be earning a living and that he/she might not be able to land a job], for the purpose of considering imputed income in determining chid support or spousal support.
When a party in a child support or spousal support case is unemployed or underemployed, that factor can have a significant influence on the Court in its determination of Guideline support.
Without more, the Court is likely to treat an unemployed party as having zero ($0) income and utilize that figure in its Guideline support calculations. If the unemployed party is the supported party, zero income would ordinarily result in a high support figure - unless income is imputed to that party.
If the unemployed party's Income and Expense Declaration reflects that he/she is receiving unemployment [or if the other party provides evidence of such fact], the Court will ordinarily utilize those unemployment benefits in its Guideline Support calculations, but it may be possible, as addressed hereinafter, for income to be imputed to that party.
It would be prudent for the employed party to seek to have income imputed to the unemployed or underemployed party. If the employed party is the supporting party, imputation of income to the unemployed or underemployed party would result in lower support. If the employed party is the supported party, imputation of income to the unemployed or underemployed party would result in higher support.
Initially, imputation of income was a 3-prong test, under the holding of Marriage of REGNERY (1989) 214 Cal.App.3d 1367, the three prongs being 1) ability to work, 2) willingness to work, and 3) opportunity to work.
In Marriage of PADILLA (1995) 38 Cal.App.4th 1212, the Court did away with the willingness to work prong, stating "Statutory commands and the inherent responsibility parents owe their children lead us to conclude the bad faith rule, as applied to child support, can no longer be supported. Once persons become parents, their desires for self-realization, self-fulfullment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens' needs. If they decide they wish to lead a simpler life, change professions or start a business, they may do so, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs fo their children."
So long as a parent has an earning capacity, i.e., the ability and opportunity to earn income, the trial court may attribute income.
In Marriage of LABASS & MUNSEE (1997) 56 Cal.App.4th 1331, the Court rejected the supported party's argument that "for policy reasons, women who have primary custody of the children should never be subject to the income imputation of Family Code Section 4058(b). In Marriage of HINMAN (1997) 55 Cal.App.4th 988, the court refused to adopt "a per se rule prohibiting the imputation of income to parents who refrain from employment to care for preschool-age children." The 2-pronged test now is simply ability and opportunity to work.
In Marriage of BARDZIK (2008) 165 Cal.App.4th 1291, the Court held that the moving party (whether payor or payee) in an imputation of income case has the burden of proof on the issues of ability and opportunity to work. To meet the burden of proof, evidence must be adduced as to both prongs of the test.
Evidence of ability to work could comprise the unemployed or underemployed party's resume, documents reflecting past earnings, letters of commendation, a vocational evaluation, either party' testimony, responses to specially-drafted discovery, a deposition, etc.
Evidence of opportunity to work could comprise wanted ads [as were used in Marriage of LABASS & MUNSIE, supra - to demonstrate that "opportunities to bargain existed", an interesting way of circumventing the hearsay rule], testimony from a principal at an employment agency, witness testimony, letters from prior employers, pay scales of available jobs, etc.
In BARDZIK, the Court of appeal stressed that it is not the moving party's burden to prove that the other party can actually get a job - only that he/she has the ability and that work is available, for income to be imputed to the other party. The Court stated: "This rule is grounded in the common sense proposition that you can lead someone to a want ad but you can't make them apply for the job."
If you are involved in a child support (or spousal support) matter where one party is unemployed or underemployed, you would be wise to engage the services of a competent Certified Family Law Specialist to advise and assist you in seeking the best possible result.
Imputation of earning capacity is the Court's way of treating a party as earning a living pursuant to the introduction of evidence of ability to earn and opportunity to earn [even though that party may not be earning a living and that he/she might not be able to land a job], for the purpose of considering imputed income in determining chid support or spousal support.
When a party in a child support or spousal support case is unemployed or underemployed, that factor can have a significant influence on the Court in its determination of Guideline support.
Without more, the Court is likely to treat an unemployed party as having zero ($0) income and utilize that figure in its Guideline support calculations. If the unemployed party is the supported party, zero income would ordinarily result in a high support figure - unless income is imputed to that party.
If the unemployed party's Income and Expense Declaration reflects that he/she is receiving unemployment [or if the other party provides evidence of such fact], the Court will ordinarily utilize those unemployment benefits in its Guideline Support calculations, but it may be possible, as addressed hereinafter, for income to be imputed to that party.
It would be prudent for the employed party to seek to have income imputed to the unemployed or underemployed party. If the employed party is the supporting party, imputation of income to the unemployed or underemployed party would result in lower support. If the employed party is the supported party, imputation of income to the unemployed or underemployed party would result in higher support.
Initially, imputation of income was a 3-prong test, under the holding of Marriage of REGNERY (1989) 214 Cal.App.3d 1367, the three prongs being 1) ability to work, 2) willingness to work, and 3) opportunity to work.
In Marriage of PADILLA (1995) 38 Cal.App.4th 1212, the Court did away with the willingness to work prong, stating "Statutory commands and the inherent responsibility parents owe their children lead us to conclude the bad faith rule, as applied to child support, can no longer be supported. Once persons become parents, their desires for self-realization, self-fulfullment, personal job satisfaction, and other commendable goals must be considered in context of their responsibilities to provide for their childrens' needs. If they decide they wish to lead a simpler life, change professions or start a business, they may do so, but only when they satisfy their primary responsibility: providing for the adequate and reasonable needs fo their children."
So long as a parent has an earning capacity, i.e., the ability and opportunity to earn income, the trial court may attribute income.
In Marriage of LABASS & MUNSEE (1997) 56 Cal.App.4th 1331, the Court rejected the supported party's argument that "for policy reasons, women who have primary custody of the children should never be subject to the income imputation of Family Code Section 4058(b). In Marriage of HINMAN (1997) 55 Cal.App.4th 988, the court refused to adopt "a per se rule prohibiting the imputation of income to parents who refrain from employment to care for preschool-age children." The 2-pronged test now is simply ability and opportunity to work.
In Marriage of BARDZIK (2008) 165 Cal.App.4th 1291, the Court held that the moving party (whether payor or payee) in an imputation of income case has the burden of proof on the issues of ability and opportunity to work. To meet the burden of proof, evidence must be adduced as to both prongs of the test.
Evidence of ability to work could comprise the unemployed or underemployed party's resume, documents reflecting past earnings, letters of commendation, a vocational evaluation, either party' testimony, responses to specially-drafted discovery, a deposition, etc.
Evidence of opportunity to work could comprise wanted ads [as were used in Marriage of LABASS & MUNSIE, supra - to demonstrate that "opportunities to bargain existed", an interesting way of circumventing the hearsay rule], testimony from a principal at an employment agency, witness testimony, letters from prior employers, pay scales of available jobs, etc.
In BARDZIK, the Court of appeal stressed that it is not the moving party's burden to prove that the other party can actually get a job - only that he/she has the ability and that work is available, for income to be imputed to the other party. The Court stated: "This rule is grounded in the common sense proposition that you can lead someone to a want ad but you can't make them apply for the job."
If you are involved in a child support (or spousal support) matter where one party is unemployed or underemployed, you would be wise to engage the services of a competent Certified Family Law Specialist to advise and assist you in seeking the best possible result.
Tuesday, December 1, 2009
TREATMENT OF GIFTS IN CHILD SUPPORT CALCULATIONS
DONALD F. CONVISER, a Certified Family Law Specialist, owner of Warner Center Law Offices in Woodland Hills in the San Fernando Valley, an effective and aggressive Family Law and Divorce attorney serving clients in the courts of Los Angeles and Ventura County for over 35 years, offering a free confidential consultation regarding your divorce or family law issues, 818/880-8990, brings you another informative blog, addressing the treatment of gifts in Child Support calculations, in a series of blogs designed to inform and educate readers about various areas of Family Law and Divorce.
In Marriage of ALTER (2009) 171 Cal.App.4th 718, 736-737, the Appellate Court held that where a party receives recurring gifts of money, the Trial Court has discretion to consider that money as income for purposes of the Statewide Uniform Child Support Guideline.
In Marriage of SCHLAFLY (2007) 149 Cal.App.4th 747, 754-755, the Appellate Court approved the approach previously used in Marriage of LOH (2001) 93 Cal.App.4th, 325, 333-336, and allowed deviation from the Statewide Uniform Child Support Guidelines where regular non-cash gifts (such as free housing) are provided to a party. The LOH court concluded that if a Trial Court determines that a parent's housing situation (or other lifestyle factors) renders application of the Guideline amount inappropriate or unjust, such a fact may be considered by the Court in a deviation from the Guideline.
The authorities addressed above demonstrate how the Court handles cash gifts to a parent and non-cash gifts to a parent in different ways, cash as income (if regularly recurring), and free rent or other non-cash gifts as justification to deviate from the Guideline Child Support figures.
If your former spouse or the other parent of your child receives regular gifts of cash, housing, or payment of expenses from his/her parents or relatives, those gifts should be brought to the Court's attention by appropriate legal means, so that the Court may consider that evidence in either its Guideline Child Support calculations, or as justification to deviate from Guideline figures.
Posted by DONALD F. CONVISER, CFLS, owner of Warner Center Law Office, representing people in divorce and family law cases before the Superior Courts in Los Angeles, Ventura, Van Nuys, San Fernando, Simi Valley, Santa Monica, Torrance, Burbank, Glendale, Pasadena, and Pomona (among others) involving Child Support, Child Custody, Visitation, Premarital Agreements (aka Prenuptial Agreements), Divorces, Paternity, Stepparent Adoptions, Nonmarital Dissolutions, and all other areas of family law and divorce law practice. If you have any question or concern regarding Child Support, call DONALD F. CONVISER at 818/880-8990 for a free, confidential consultation.
In Marriage of ALTER (2009) 171 Cal.App.4th 718, 736-737, the Appellate Court held that where a party receives recurring gifts of money, the Trial Court has discretion to consider that money as income for purposes of the Statewide Uniform Child Support Guideline.
In Marriage of SCHLAFLY (2007) 149 Cal.App.4th 747, 754-755, the Appellate Court approved the approach previously used in Marriage of LOH (2001) 93 Cal.App.4th, 325, 333-336, and allowed deviation from the Statewide Uniform Child Support Guidelines where regular non-cash gifts (such as free housing) are provided to a party. The LOH court concluded that if a Trial Court determines that a parent's housing situation (or other lifestyle factors) renders application of the Guideline amount inappropriate or unjust, such a fact may be considered by the Court in a deviation from the Guideline.
The authorities addressed above demonstrate how the Court handles cash gifts to a parent and non-cash gifts to a parent in different ways, cash as income (if regularly recurring), and free rent or other non-cash gifts as justification to deviate from the Guideline Child Support figures.
If your former spouse or the other parent of your child receives regular gifts of cash, housing, or payment of expenses from his/her parents or relatives, those gifts should be brought to the Court's attention by appropriate legal means, so that the Court may consider that evidence in either its Guideline Child Support calculations, or as justification to deviate from Guideline figures.
Posted by DONALD F. CONVISER, CFLS, owner of Warner Center Law Office, representing people in divorce and family law cases before the Superior Courts in Los Angeles, Ventura, Van Nuys, San Fernando, Simi Valley, Santa Monica, Torrance, Burbank, Glendale, Pasadena, and Pomona (among others) involving Child Support, Child Custody, Visitation, Premarital Agreements (aka Prenuptial Agreements), Divorces, Paternity, Stepparent Adoptions, Nonmarital Dissolutions, and all other areas of family law and divorce law practice. If you have any question or concern regarding Child Support, call DONALD F. CONVISER at 818/880-8990 for a free, confidential consultation.
Tuesday, November 24, 2009
CONCILIATION COURT CAN BE USED FOR RECONCILIATION AND/OR TO DELAY FILING OF A DIVORCE
Divorce and Family Law attorney Donald F. Conviser, a Certified Family Law Specialist, the principal of Warner Center Law Offices in Woodland Hills, California, with over 35 years of experience serving Divorce and Family Law clients in the Los Angeles and Ventura County courts, writes about FAMILY CONCILIATION PROCEEDINGS, a little known, little used conflict-resolution process available to people having problems with their spouses or the other parent of their child/children.
California Family Code Section 1800 and its succeeding sections address Family Conciliation Proceedings available in certain (but not all) counties, whose purpose is to protect the rights of children and to promote the public welfare by preserving, promoting, and protecting family life and the institution of spouses and the amicable settlement of domestic and family controversies. This article addresses such proceedings in the counties where Family Conciliation Courts are available for such purposes.
The Court appoints a Supervising Counselor of Conciliation to hold conciliation conferences with parties to those proceedings, to make recommendations to the judge of the Family Conciliation Court, supervise the parties as the judge may direct, hold hearings as directed by the judge, make investigations to carry out that intent, make investigations, reports and recommendations, and mediate child custody and visitation disputes (among other things). The code sets forth the required qualifications for the Supervising and Associate Counselor(s) of Conciliation. The Family Conciliation hearings and conferences are private matters from which the public is excluded, and the files of the Family Conciliation Court are closed and not open to public inspection.
When a controversy exists between spouses, or when a controversy relating to child custody or visitation exists between parents (regardless of their marital status), and the controversy might otherwise result in divorce, annulment, legal separation, or the disruption of the household, and there is a minor child of the spouses or parents whose welfare might be affected thereby, the Family Conciliation Court has jurisdiction over the controversy, the parties to the controversy, and all persons having any relation to the controversy. Where the controversy involves domestic violence, the Family Conciliation Court has jurisdiction over the controversy, whether or not the parties have a minor child.
The purpose of filing a Petition for Conciliation is to invoke the Court's jurisdiction to preserve the marriage, to effect a reconciliation of the parties, or to amicably settle the controversy to avoid further litigation over the issue.
There is no filing fee for a Petition for Reconcilation. Following the filing of the Petition, the Court will set a hearing date, and provide notice to the Respondent of the filing of the Petition and the Hearing date, time and place. The hearing(s) are conducted informally as a conference or series of conferences to effect a reconciliation or an amicable adjustment or settlement of the issues in controversy.
The Family Conciliation Court may, with the consent of the parties, recommend or invoke the aid of medical or other specialists or experts, or of the pastor of the parties' religious determination. The Court may make orders at or after the hearing in respect to the conduct of the spouses or parents and the subject matter of the controversy that the Court deems necessary to preserve the marriage or implement the reconciliation of the spouses. No such order shall be effective for over 30 days after the hearing, unless the parties mutually agree to extend that time. A reconciliation agreement may be reduced to a stipulation and order of the court, which is enforceable. During such a proceeding, the Court may make support orders, taking into consideration the recommendations of a financial referee if one is available to the court. Any such support order shall not prejudice the rights of the parties or children with respect to any subsequent order. Any support order made pursuant to Conciliation proceedings may be modified or terminated at any time except as to amounts accrued before the filing of proceedings to modify or terminated.
Beginning on the filing f the Petition for Conciliation and continuing until 30 days after the hearing on the Petition, both spouses are prohibited from filing a Petition for Dissolution or Nullity of their marriage or Legal Separation. After the expiration of that period, if the controversy has not terminated, either spouse may institute a proceeding for Dissolution of Marriage, Nullity, or Legal Separation.
Even if a Petition for Dissolution, Nullity or Legal Separation proceeding has already been filed, such proceeding does not operate as a bar to the instituting of proceedings for Family Conciliation. Such proceedings involving minor children may be transferred to the Family Conciliation Court for proceedings for reconcilation, if there is a minor child of the spouses whose welfare may be adversely affected by the dissolution of the marriage or the disruption of the household or a controversy involving custody, AND there is some reasonable possiblity of a reconciliation being effected.
If there are no children, if an application is made to the Family Conciliation Court for conciliation proceedings in respect to a controversy between spouses, or a contested proceeding for dissolution of marriage, annulment, or legal separation, if it appears to the Court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, the Court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed of.
In a county in which a FAMILY CONCILIATION COURT exists, a person anticipating the imminent filing of a Divorce (Dissolution of Marriage), an Annulment, or a Legal Separation case, can put at least a temporary hold on such proceedings by filing a Petition for Conciliation, to obtain the assistance of the FAMILY CONCILIATION COURT in working towards a resolution of the controversy and hopefully avoid the tragic consequences of Divorce, Annulment or Legal Separation proceedings.
California Family Code Section 1800 and its succeeding sections address Family Conciliation Proceedings available in certain (but not all) counties, whose purpose is to protect the rights of children and to promote the public welfare by preserving, promoting, and protecting family life and the institution of spouses and the amicable settlement of domestic and family controversies. This article addresses such proceedings in the counties where Family Conciliation Courts are available for such purposes.
The Court appoints a Supervising Counselor of Conciliation to hold conciliation conferences with parties to those proceedings, to make recommendations to the judge of the Family Conciliation Court, supervise the parties as the judge may direct, hold hearings as directed by the judge, make investigations to carry out that intent, make investigations, reports and recommendations, and mediate child custody and visitation disputes (among other things). The code sets forth the required qualifications for the Supervising and Associate Counselor(s) of Conciliation. The Family Conciliation hearings and conferences are private matters from which the public is excluded, and the files of the Family Conciliation Court are closed and not open to public inspection.
When a controversy exists between spouses, or when a controversy relating to child custody or visitation exists between parents (regardless of their marital status), and the controversy might otherwise result in divorce, annulment, legal separation, or the disruption of the household, and there is a minor child of the spouses or parents whose welfare might be affected thereby, the Family Conciliation Court has jurisdiction over the controversy, the parties to the controversy, and all persons having any relation to the controversy. Where the controversy involves domestic violence, the Family Conciliation Court has jurisdiction over the controversy, whether or not the parties have a minor child.
The purpose of filing a Petition for Conciliation is to invoke the Court's jurisdiction to preserve the marriage, to effect a reconciliation of the parties, or to amicably settle the controversy to avoid further litigation over the issue.
There is no filing fee for a Petition for Reconcilation. Following the filing of the Petition, the Court will set a hearing date, and provide notice to the Respondent of the filing of the Petition and the Hearing date, time and place. The hearing(s) are conducted informally as a conference or series of conferences to effect a reconciliation or an amicable adjustment or settlement of the issues in controversy.
The Family Conciliation Court may, with the consent of the parties, recommend or invoke the aid of medical or other specialists or experts, or of the pastor of the parties' religious determination. The Court may make orders at or after the hearing in respect to the conduct of the spouses or parents and the subject matter of the controversy that the Court deems necessary to preserve the marriage or implement the reconciliation of the spouses. No such order shall be effective for over 30 days after the hearing, unless the parties mutually agree to extend that time. A reconciliation agreement may be reduced to a stipulation and order of the court, which is enforceable. During such a proceeding, the Court may make support orders, taking into consideration the recommendations of a financial referee if one is available to the court. Any such support order shall not prejudice the rights of the parties or children with respect to any subsequent order. Any support order made pursuant to Conciliation proceedings may be modified or terminated at any time except as to amounts accrued before the filing of proceedings to modify or terminated.
Beginning on the filing f the Petition for Conciliation and continuing until 30 days after the hearing on the Petition, both spouses are prohibited from filing a Petition for Dissolution or Nullity of their marriage or Legal Separation. After the expiration of that period, if the controversy has not terminated, either spouse may institute a proceeding for Dissolution of Marriage, Nullity, or Legal Separation.
Even if a Petition for Dissolution, Nullity or Legal Separation proceeding has already been filed, such proceeding does not operate as a bar to the instituting of proceedings for Family Conciliation. Such proceedings involving minor children may be transferred to the Family Conciliation Court for proceedings for reconcilation, if there is a minor child of the spouses whose welfare may be adversely affected by the dissolution of the marriage or the disruption of the household or a controversy involving custody, AND there is some reasonable possiblity of a reconciliation being effected.
If there are no children, if an application is made to the Family Conciliation Court for conciliation proceedings in respect to a controversy between spouses, or a contested proceeding for dissolution of marriage, annulment, or legal separation, if it appears to the Court that reconciliation of the spouses or amicable adjustment of the controversy can probably be achieved, the Court may accept and dispose of the case in the same manner as similar cases involving the welfare of children are disposed of.
In a county in which a FAMILY CONCILIATION COURT exists, a person anticipating the imminent filing of a Divorce (Dissolution of Marriage), an Annulment, or a Legal Separation case, can put at least a temporary hold on such proceedings by filing a Petition for Conciliation, to obtain the assistance of the FAMILY CONCILIATION COURT in working towards a resolution of the controversy and hopefully avoid the tragic consequences of Divorce, Annulment or Legal Separation proceedings.
Thursday, October 29, 2009
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.
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.
Friday, July 10, 2009
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.
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.
=====
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.
Monday, June 1, 2009
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.
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.
Sunday, May 17, 2009
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.
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.
Saturday, May 16, 2009
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.
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.
Tuesday, May 5, 2009
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.
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.
Sunday, May 3, 2009
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.
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