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.
Friday, December 4, 2009
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.
==========
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.
==========
Those things enable me to handle my work responsibilities AND take vacations.
==========
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.
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.
==========
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.
==========
Those things enable me to handle my work responsibilities AND take vacations.
==========
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.
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