Presentation on theme: “CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Eleven Selected Issues.”— Presentation transcript:

1 CALIFORNIA FAMILY LAW FOR PARALEGALS, 5 th Ed. Chapter Eleven Selected Issues

2 2 A. ATTORNEY’S FEES AND COSTS An additional aspect of family law litigation is the rather interesting concept that each party to the litigation should be able to afford capable counsel regardless of their economic position. An additional aspect of family law litigation is the rather interesting concept that each party to the litigation should be able to afford capable counsel regardless of their economic position. In other words, if one of the spouses cannot afford a lawyer, the other spouse may find himself in the position of paying for both attorneys. In other words, if one of the spouses cannot afford a lawyer, the other spouse may find himself in the position of paying for both attorneys. Family Code section 2030 authorizes the court in a family law proceeding to order “any party… Except a governmental entity, to pay the amount reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding.” Family Code section 2030 authorizes the court in a family law proceeding to order “any party… Except a governmental entity, to pay the amount reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding.”

3 3 A. ATTORNEY’S FEES AND COSTS The basic criteria for determining the necessity and the amount of attorney’s fees and costs is based on “(1) determining an ability [of the paying party] to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights….” The basic criteria for determining the necessity and the amount of attorney’s fees and costs is based on “(1) determining an ability [of the paying party] to pay and (2) consideration of the respective incomes and needs of the parties in order to ensure that each party has access to legal representation to preserve all of the party’s rights….”

4 4 A. ATTORNEY’S FEES AND COSTS Some factors the court considers when determining fees are as follows: assets of the supported and paying spouse, the difficulties encountered during discovery, the comparative wealth of the parties, their conduct throughout the litigation, the results obtained, and the reasonable value of the services. Some factors the court considers when determining fees are as follows: assets of the supported and paying spouse, the difficulties encountered during discovery, the comparative wealth of the parties, their conduct throughout the litigation, the results obtained, and the reasonable value of the services.

5 5 A. ATTORNEY’S FEES AND COSTS The request for fees can be made either pending the trial, after the trial, or even after judgment has been entered, by the spouse who desires the award. The request for fees can be made either pending the trial, after the trial, or even after judgment has been entered, by the spouse who desires the award. All awards are primarily left to the discretion of the court, which means that they will usually not be reversed on appeal. All awards are primarily left to the discretion of the court, which means that they will usually not be reversed on appeal. Finally, this statutory scheme provides authority for an award of attorney’s fees in a proceeding for “dissolution of marriage, for nullity of marriage, or for legal separation of the parties” or any proceeding “related thereto.” Finally, this statutory scheme provides authority for an award of attorney’s fees in a proceeding for “dissolution of marriage, for nullity of marriage, or for legal separation of the parties” or any proceeding “related thereto.”

6 6 A. ATTORNEY’S FEES AND COSTS The request for attorney’s fees must be made by noticed motion. The request for attorney’s fees must be made by noticed motion. A hearing will be held by the court with respect to this request, and at that time the court will consider the relevant factors and criteria discussed above and entertain an award that it feels, in its discretion, is appropriate under the circumstances. A hearing will be held by the court with respect to this request, and at that time the court will consider the relevant factors and criteria discussed above and entertain an award that it feels, in its discretion, is appropriate under the circumstances. In addition to an award of attorney’s fees, the referenced code sections also provide for the recovery of costs in an amount necessary to provide parity with the other spouse with respect to maintaining the litigation. In addition to an award of attorney’s fees, the referenced code sections also provide for the recovery of costs in an amount necessary to provide parity with the other spouse with respect to maintaining the litigation.

7 7 A. ATTORNEY’S FEES AND COSTS In addition to the section 2030 attorney’s fees award, section 271 gives the court rather broad authority to assess attorney’s fees and costs against a party to a family law matter as a sanction. In addition to the section 2030 attorney’s fees award, section 271 gives the court rather broad authority to assess attorney’s fees and costs against a party to a family law matter as a sanction. Under this Code section the court has the authority to make a finding that one of the litigants to the family law action is engaging in tactics that frustrate, rather than further, the policy of the law to promote settlement of the litigation or is undertaking some other tactic designed to discourage settlement and simply run up fees. Under this Code section the court has the authority to make a finding that one of the litigants to the family law action is engaging in tactics that frustrate, rather than further, the policy of the law to promote settlement of the litigation or is undertaking some other tactic designed to discourage settlement and simply run up fees.

8 8 A. ATTORNEY’S FEES AND COSTS It is noteworthy that, in the context of section 271 sanctions, the concept of need is irrelevant. It is noteworthy that, in the context of section 271 sanctions, the concept of need is irrelevant. In addition to Family Code section 271, Code of Civil Procedure section 128.5 provides an additional avenue under which the courts can award monetary sanctions against a party or her attorney who is engaged in bad faith or frivolous actions or tactics. In addition to Family Code section 271, Code of Civil Procedure section 128.5 provides an additional avenue under which the courts can award monetary sanctions against a party or her attorney who is engaged in bad faith or frivolous actions or tactics.

9 9 A. ATTORNEY’S FEES AND COSTS Perhaps the only consistency about the cases that have interpreted Family Code section 271 is that they confirm that the court has a tremendous amount of discretion in making these awards. Perhaps the only consistency about the cases that have interpreted Family Code section 271 is that they confirm that the court has a tremendous amount of discretion in making these awards. An award of attorney’s fees and costs may also be enforced through use of contempt procedures. An award of attorney’s fees and costs may also be enforced through use of contempt procedures.

10 10 B. PREVENTION OF DOMESTIC VIOLENCE Family Code sections 6200 et seq. provide the statutory structure of the Domestic Violence Prevention Act. Family Code sections 6200 et seq. provide the statutory structure of the Domestic Violence Prevention Act. The purpose of this Act is just as its title implies: “to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to seek a resolution of the causes of the violence” (section 6220). The purpose of this Act is just as its title implies: “to prevent the recurrence of acts of violence and sexual abuse and to provide for a separation of the persons involved in the domestic violence for a period sufficient to seek a resolution of the causes of the violence” (section 6220). There are no fees for filing a petition, a response, or a modification of the protective order in a DVPA proceeding. There are no fees for filing a petition, a response, or a modification of the protective order in a DVPA proceeding.

11 11 C. INJUNCTIONS PROHIBITING HARASSMENT The Family Code is not the only source of laws seeking to regulate an individual’s conduct under inappropriate or dangerous circumstances. The Family Code is not the only source of laws seeking to regulate an individual’s conduct under inappropriate or dangerous circumstances. One example of such a provision is found at section 527.6 of the Code of Civil Procedure. One example of such a provision is found at section 527.6 of the Code of Civil Procedure. This Code section defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose. This Code section defines harassment as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.

12 12 C. INJUNCTIONS PROHIBITING HARASSMENT The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.” Having defined “harassment,” this Code section then goes on to provide that an individual who is the victim of such harassment may file a petition under this section seeking injunctive relief by way of a temporary restraining order. Having defined “harassment,” this Code section then goes on to provide that an individual who is the victim of such harassment may file a petition under this section seeking injunctive relief by way of a temporary restraining order.

13 13 C. INJUNCTIONS PROHIBITING HARASSMENT An injunction issued pursuant to this section will stay in effect for no more than three years; however, at any time within the three month period immediately preceding the expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing a new petition and demonstrating good cause for such renewal. An injunction issued pursuant to this section will stay in effect for no more than three years; however, at any time within the three month period immediately preceding the expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing a new petition and demonstrating good cause for such renewal. This code section also provides for the recovery of attorney’s fees and costs to the prevailing party. This code section also provides for the recovery of attorney’s fees and costs to the prevailing party.

14 14 D. DISCLOSURE OF ASSETS AND LIABILITIES Family Code section 2100 declares the legislative intent in its enactment of Chapter 9 of Division 6, “Disclosure of Assets and Liabilities,” as follows: see page 488. Family Code section 2100 declares the legislative intent in its enactment of Chapter 9 of Division 6, “Disclosure of Assets and Liabilities,” as follows: see page 488. Continuing on in this chapter, Family Code section 2102, through its cross-reference to section 721, establishes and recognizes the existence of a fiduciary relationship between the husband and wife (at least) from the date of separation to the date of the distribution of the community asset or liability in question. Continuing on in this chapter, Family Code section 2102, through its cross-reference to section 721, establishes and recognizes the existence of a fiduciary relationship between the husband and wife (at least) from the date of separation to the date of the distribution of the community asset or liability in question.

15 15 D. DISCLOSURE OF ASSETS AND LIABILITIES This statutory scheme requires that a preliminary and a final disclosure declaration, each coupled with an income and expense declaration, be prepared and served upon the opposing party. This statutory scheme requires that a preliminary and a final disclosure declaration, each coupled with an income and expense declaration, be prepared and served upon the opposing party. Family Code section 2106 provides that no judgment will be entered with regard to the party’s property rights until and unless each party has prepared and served a copy of the final declaration of disclosure, together with a current income and expense declaration, on the other. Family Code section 2106 provides that no judgment will be entered with regard to the party’s property rights until and unless each party has prepared and served a copy of the final declaration of disclosure, together with a current income and expense declaration, on the other.

16 16 D. DISCLOSURE OF ASSETS AND LIABILITIES Although the parties do not need to file the actual disclosure document with the court, they are required to file with the court a declaration signed under penalty of perjury to the effect that they have served the final declaration of disclosure and current income and expense declaration on the other party. Although the parties do not need to file the actual disclosure document with the court, they are required to file with the court a declaration signed under penalty of perjury to the effect that they have served the final declaration of disclosure and current income and expense declaration on the other party.

17 17 E. JOINDER Joinder refers simply to the act of a party “joining in” to ongoing litigation or a party being “joined in” to ongoing litigation by the litigants themselves. Joinder refers simply to the act of a party “joining in” to ongoing litigation or a party being “joined in” to ongoing litigation by the litigants themselves. In the family law context, issues of joinder typically arise in custody and visitation disputes and disputes relating to the division of community property, more specifically, disputes arising out of and pertaining to employee benefit pension plans. In the family law context, issues of joinder typically arise in custody and visitation disputes and disputes relating to the division of community property, more specifically, disputes arising out of and pertaining to employee benefit pension plans. Cal. Rule of Court 5.158 states that the court must join any party whom the court discovers has physical custody or claims custody or visitation rights of any minor children of the marriage into the proceedings. Cal. Rule of Court 5.158 states that the court must join any party whom the court discovers has physical custody or claims custody or visitation rights of any minor children of the marriage into the proceedings.

18 18 F. EMPLOYMENT BENEFITS Perhaps the most common area in which the subject of joinder arises is that involving division of community property, more specifically, issues related to the joinder of a pension plan in the litigation. Perhaps the most common area in which the subject of joinder arises is that involving division of community property, more specifically, issues related to the joinder of a pension plan in the litigation. One of the more common benefits of employment today is an employee’s retirement plan, sometimes called a pension plan (the Plan). One of the more common benefits of employment today is an employee’s retirement plan, sometimes called a pension plan (the Plan). Because the nonemployee spouse is not a direct participant in the plan, the pension plan does not owe the same level of duties to that person as it does to the employee spouse. Because the nonemployee spouse is not a direct participant in the plan, the pension plan does not owe the same level of duties to that person as it does to the employee spouse.

19 19 F. EMPLOYMENT BENEFITS Over time circumstances have developed, especially in divorce litigation, where, either by manipulative scheming by the employed spouse or sometimes by sheer coincidence, the pension plan starts paying out the monies that it is holding for the benefit of the employee spouse to the employee without regard to the interest the nonemployee spouse may have in the plan funds. Over time circumstances have developed, especially in divorce litigation, where, either by manipulative scheming by the employed spouse or sometimes by sheer coincidence, the pension plan starts paying out the monies that it is holding for the benefit of the employee spouse to the employee without regard to the interest the nonemployee spouse may have in the plan funds. This obviously creates a problem for the nonemployee spouse in a marital dissolution proceeding. This obviously creates a problem for the nonemployee spouse in a marital dissolution proceeding.

20 20 F. EMPLOYMENT BENEFITS The nonemployee spouse seeks to protect his interest in these plan funds and to ensure that he obtains his appropriate share. The nonemployee spouse seeks to protect his interest in these plan funds and to ensure that he obtains his appropriate share. In order to deal with this situation, the law has developed to provide that under appropriate circumstances the pension plan can be put on notice or actually joined into the dissolution litigation in order to protect the interest of the nonemployee spouse in the retirement benefits. In order to deal with this situation, the law has developed to provide that under appropriate circumstances the pension plan can be put on notice or actually joined into the dissolution litigation in order to protect the interest of the nonemployee spouse in the retirement benefits.

21 21 F. EMPLOYMENT BENEFITS Joinder of an employee’s pension benefit plan becomes absolutely essential when one examines the provisions of Family Code section 2060(b), which provide that “an order or judgment in the proceeding is not enforceable against an employee pension benefit plan unless the plan has been joined as a party to the proceeding.” Joinder of an employee’s pension benefit plan becomes absolutely essential when one examines the provisions of Family Code section 2060(b), which provide that “an order or judgment in the proceeding is not enforceable against an employee pension benefit plan unless the plan has been joined as a party to the proceeding.” Accordingly, if a party does not join the employee pension benefit plan as a party, that Plan is not required to comply with any court order that may come out of the family law proceeding compelling it to pay or not pay monies to particular individuals. Accordingly, if a party does not join the employee pension benefit plan as a party, that Plan is not required to comply with any court order that may come out of the family law proceeding compelling it to pay or not pay monies to particular individuals.

22 22 F. EMPLOYMENT BENEFITS The Plan generally will not be interested in participating in the hearing because it typically does not have an interest one way or the other in the outcome of the dissolution proceedings. The Plan generally will not be interested in participating in the hearing because it typically does not have an interest one way or the other in the outcome of the dissolution proceedings. Its sole concern is that the money is ultimately paid out in accordance with the court’s order so it does not become liable for payment of these funds. Its sole concern is that the money is ultimately paid out in accordance with the court’s order so it does not become liable for payment of these funds.

23 23 G. DISCOVERY This term discovery is used in litigation practice to describe the various procedures utilized by parties to litigation that are designed to help them learn as much as they can about the other side. This term discovery is used in litigation practice to describe the various procedures utilized by parties to litigation that are designed to help them learn as much as they can about the other side. Generally speaking, the most basic and common forms of discovery in the area of family law practice include interrogatories, document production requests, depositions, and request for admissions (although this latter discovery device does not find much use in family law matters). Generally speaking, the most basic and common forms of discovery in the area of family law practice include interrogatories, document production requests, depositions, and request for admissions (although this latter discovery device does not find much use in family law matters).

24 24 G. DISCOVERY 1. Interrogatories 1. Interrogatories The term interrogatories describes a set of written questions that are mailed by one party to the other and that must be answered by the other party under penalty of perjury. The term interrogatories describes a set of written questions that are mailed by one party to the other and that must be answered by the other party under penalty of perjury. This last clause is very important because it requires that the answers to these interrogatories, once given, will have that same effect as testimony given in court. This last clause is very important because it requires that the answers to these interrogatories, once given, will have that same effect as testimony given in court. These responses will constitute admissions that can be used as evidence against them when the matter goes to trial. These responses will constitute admissions that can be used as evidence against them when the matter goes to trial.

25 25 G. DISCOVERY In the context of a family law proceeding, the judicial council has promulgated official form interrogatories and requests for admissions, which are quite complete and succinct. In the context of a family law proceeding, the judicial council has promulgated official form interrogatories and requests for admissions, which are quite complete and succinct. They are divided into 21 specific categories of inquiry as follows: see page 522. They are divided into 21 specific categories of inquiry as follows: see page 522. See Figure 11-1 on pages 523-524. See Figure 11-1 on pages 523-524. The party to whom the interrogatories have been served has 30 days (plus five if they have been served by mail) to respond. The party to whom the interrogatories have been served has 30 days (plus five if they have been served by mail) to respond.

26 26 G. DISCOVERY 2. Document Inspection Demands 2. Document Inspection Demands Code of Civil Procedure sections 2031.010 et. seq. establish the statutory framework for a demand that the parties exchange and allow the inspection of documents. Code of Civil Procedure sections 2031.010 et. seq. establish the statutory framework for a demand that the parties exchange and allow the inspection of documents. In essence, the propounding party will serve a demand for the inspection and copying of records pursuant to this code section on the responding party. In essence, the propounding party will serve a demand for the inspection and copying of records pursuant to this code section on the responding party.

27 27 G. DISCOVERY This demand will require a verified response (that is, one made under penalty of perjury) within 30 days of service of the demand (35 days if the demand has been served by mail) that identifies the documents in the responding party’s possession falling under one or more of the categories of documents requested and also indicating whether the responding party will make these documents available for inspection and copying. This demand will require a verified response (that is, one made under penalty of perjury) within 30 days of service of the demand (35 days if the demand has been served by mail) that identifies the documents in the responding party’s possession falling under one or more of the categories of documents requested and also indicating whether the responding party will make these documents available for inspection and copying. Set forth below are two examples of some of the basic categories in which a document request is very often made in the context of a family law proceeding. Set forth below are two examples of some of the basic categories in which a document request is very often made in the context of a family law proceeding. See Examples 1 and 2 on pages 525-533. See Examples 1 and 2 on pages 525-533.

28 28 G. DISCOVERY 3. Depositions 3. Depositions Code of Civil Procedure section 2025.010 establishes the framework for the conduct of oral depositions. Code of Civil Procedure section 2025.010 establishes the framework for the conduct of oral depositions. A deposition is a proceeding whereby one party is allowed to examine the other party under oath, in front of a court reporter, in a proceeding that is not entirely dissimilar to the question and answer “give and take” found at trial. A deposition is a proceeding whereby one party is allowed to examine the other party under oath, in front of a court reporter, in a proceeding that is not entirely dissimilar to the question and answer “give and take” found at trial. At the conclusion of the deposition, everything that everyone said in the room will be transcribed by the court reporter and printed up in booklet form. At the conclusion of the deposition, everything that everyone said in the room will be transcribed by the court reporter and printed up in booklet form.

29 29 G. DISCOVERY This deposition testimony has the same effect as testimony made in court and can be used at court either to refresh the witness’s recollection, to preserve his testimony in the event something should happen to him between the time the deposition is taken and the time of trial, and to impeach his testimony (in other words show that his testimony is untrustworthy) if it can be demonstrated that he has changed his story between the time of the deposition and the time of testifying at trial. This deposition testimony has the same effect as testimony made in court and can be used at court either to refresh the witness’s recollection, to preserve his testimony in the event something should happen to him between the time the deposition is taken and the time of trial, and to impeach his testimony (in other words show that his testimony is untrustworthy) if it can be demonstrated that he has changed his story between the time of the deposition and the time of testifying at trial.

30 30 G. DISCOVERY In addition to requesting that a party appear at the attorney’s office and give oral testimony under oath, the party may be requested to bring to the deposition various documents for review and use. In addition to requesting that a party appear at the attorney’s office and give oral testimony under oath, the party may be requested to bring to the deposition various documents for review and use. By so doing, the attorney taking the deposition can orally question the witness (or party) with respect to these documents at that time. By so doing, the attorney taking the deposition can orally question the witness (or party) with respect to these documents at that time.

31 31 G. DISCOVERY 4. Request for Admissions 4. Request for Admissions Requests for Admissions are discussed in Code of Civil Procedure section 2033.010. Requests for Admissions are discussed in Code of Civil Procedure section 2033.010. The procedure is for serving requests for admissions is basically the same as for interrogatories. The procedure is for serving requests for admissions is basically the same as for interrogatories. In fact, it can be said that the request for admission is simply a special type of interrogatory, specifically, one that asks the responding party to admit that a particular fact as stated in the request is admitted as being true. In fact, it can be said that the request for admission is simply a special type of interrogatory, specifically, one that asks the responding party to admit that a particular fact as stated in the request is admitted as being true. Additionally, the request can ask the responding party to admit the genuineness of certain documents. Additionally, the request can ask the responding party to admit the genuineness of certain documents.

32 32 H. BANKRUPTCY 1. Generally 1. Generally The concept of bankruptcy involves the use of those sections of the United States Code (U.S.C.) that establish the various forms of protection available to debtors in the bankruptcy court. The concept of bankruptcy involves the use of those sections of the United States Code (U.S.C.) that establish the various forms of protection available to debtors in the bankruptcy court. At its most basic, bankruptcy is a procedure by which a debtor (one who owes money) is given the opportunity to pay off his creditors (to the extent that is possible), and then obtain an economic “fresh start.” At its most basic, bankruptcy is a procedure by which a debtor (one who owes money) is given the opportunity to pay off his creditors (to the extent that is possible), and then obtain an economic “fresh start.” There are three different forms of bankruptcy available to a debtor. There are three different forms of bankruptcy available to a debtor.

33 33 H. BANKRUPTCY The first of these choices is known as Chapter 7 bankruptcy. The first of these choices is known as Chapter 7 bankruptcy. In this type of bankruptcy proceeding, the debtor’s property is completely liquidated (sold) and his or her debts are then paid off to the extent available by virtue of the proceeds of the liquidation. In this type of bankruptcy proceeding, the debtor’s property is completely liquidated (sold) and his or her debts are then paid off to the extent available by virtue of the proceeds of the liquidation. The second type of bankruptcy proceeding is called a Chapter 13 filing. The second type of bankruptcy proceeding is called a Chapter 13 filing. A Chapter 13 proceeding does not involve liquidating the entire bankrupt debtor’s estate. A Chapter 13 proceeding does not involve liquidating the entire bankrupt debtor’s estate.

34 34 H. BANKRUPTCY Rather, it contemplates a plan of paying off the creditors over an extended period of time. Rather, it contemplates a plan of paying off the creditors over an extended period of time. The third type of bankruptcy proceeding is found in Chapter 11 of the Bankruptcy Act. The third type of bankruptcy proceeding is found in Chapter 11 of the Bankruptcy Act. A Chapter 11 reorganization is fundamentally the same as a Chapter 13 proceeding, except that Chapter 11 is primarily designed for business entities (partnerships and corporations) rather than for individuals. A Chapter 11 reorganization is fundamentally the same as a Chapter 13 proceeding, except that Chapter 11 is primarily designed for business entities (partnerships and corporations) rather than for individuals.

35 35 H. BANKRUPTCY 2. Family Law Context 2. Family Law Context Once a bankruptcy has been filed by one of the parties to a marital termination (or legal separation) proceeding, the subject of initial concern is “what happens to my divorce case?” Once a bankruptcy has been filed by one of the parties to a marital termination (or legal separation) proceeding, the subject of initial concern is “what happens to my divorce case?” Initially, the operation of the automatic stay contained in 11 U.S.C. §362(a) will stay all legal proceedings brought against the debtor. Initially, the operation of the automatic stay contained in 11 U.S.C. §362(a) will stay all legal proceedings brought against the debtor. Thus, to the extent that the dissolution or legal separation proceeding is seen as an “action against the debtor” (which it is), that action will be stayed by operation of law. Thus, to the extent that the dissolution or legal separation proceeding is seen as an “action against the debtor” (which it is), that action will be stayed by operation of law.

36 36 H. BANKRUPTCY The stay simply temporarily “freezes” the underlying state action until such time as the bankruptcy matter has run its course. The stay simply temporarily “freezes” the underlying state action until such time as the bankruptcy matter has run its course. Fortunately for recipients of support, as a general rule support obligations are not affected by bankruptcy. Fortunately for recipients of support, as a general rule support obligations are not affected by bankruptcy. Accordingly, support obligations, whether spousal or child, will not be discharged in bankruptcy. Accordingly, support obligations, whether spousal or child, will not be discharged in bankruptcy.

37 37 H. BANKRUPTCY Finally, of significant concern in the family law context is the extent to which a bankrupt spouse can be discharged from payment of debts that are assigned to that party by the state court. Finally, of significant concern in the family law context is the extent to which a bankrupt spouse can be discharged from payment of debts that are assigned to that party by the state court. Generally speaking, under circumstances where a debtor spouse is discharged in bankruptcy from the payment of certain debts, that is the end of the discussion on that subject. Generally speaking, under circumstances where a debtor spouse is discharged in bankruptcy from the payment of certain debts, that is the end of the discussion on that subject.

38 38 I. TAXATION There are significant potential tax consequences involving the division of property as well as the payment of support and maintenance. There are significant potential tax consequences involving the division of property as well as the payment of support and maintenance. All payments made as spousal support constituted deductions to the payor and must be included in income (and taxes must be paid on it) by the recipient. All payments made as spousal support constituted deductions to the payor and must be included in income (and taxes must be paid on it) by the recipient. In contrast to this treatment is the fact that payments made as and for child support cannot be deducted by the payor and are not included in the income of the recipient. In contrast to this treatment is the fact that payments made as and for child support cannot be deducted by the payor and are not included in the income of the recipient.

39 39 I. TAXATION Another facet of this tax discussion that is the source of rather frequent controversy in a divorce proceeding concerns the dependency exemption that is allowed to parents pertinent to their children. Another facet of this tax discussion that is the source of rather frequent controversy in a divorce proceeding concerns the dependency exemption that is allowed to parents pertinent to their children. As a general rule, the parent having custody of the child for the greater portion of time during the calendar year in question will be entitled to claim that child as a dependent unless that parent signs a written waiver giving up the right to make that claim. As a general rule, the parent having custody of the child for the greater portion of time during the calendar year in question will be entitled to claim that child as a dependent unless that parent signs a written waiver giving up the right to make that claim.

40 40 J. MARITAL SETTLEMENT AGREEMENT A Marital Settlement Agreement can take several forms: a premarital agreement, a postnuptial agreement, or a marital settlement agreement. A Marital Settlement Agreement can take several forms: a premarital agreement, a postnuptial agreement, or a marital settlement agreement. All three essentially effect the same thing: the contractual recitation of the rights and remedies of parties to a marital union, the fundamental difference between the three being the timing of the creation of the contract. All three essentially effect the same thing: the contractual recitation of the rights and remedies of parties to a marital union, the fundamental difference between the three being the timing of the creation of the contract.

41 41 J. MARITAL SETTLEMENT AGREEMENT Generally speaking, these agreements are nothing more than contracts, and they are typically governed by many of the same rules and regulations as “normal” contracts. Generally speaking, these agreements are nothing more than contracts, and they are typically governed by many of the same rules and regulations as “normal” contracts. A premarital agreement is generally thought of as a contract entered into by parties to a prospective marriage. A premarital agreement is generally thought of as a contract entered into by parties to a prospective marriage. The basic purpose of an agreement of this type is to protect the current property position of the potential spouses and to limit the effects of the laws of community property on that property which, of course, will come into operation at the commencement of the marriage. The basic purpose of an agreement of this type is to protect the current property position of the potential spouses and to limit the effects of the laws of community property on that property which, of course, will come into operation at the commencement of the marriage.

42 42 J. MARITAL SETTLEMENT AGREEMENT The second type of agreement in this area is the marital or postnuptial agreement. The second type of agreement in this area is the marital or postnuptial agreement. As its name implies, this is an agreement entered into by the parties after they have married. As its name implies, this is an agreement entered into by the parties after they have married. Perhaps the most common type of postnuptial agreement is one that changes the status of community property or separate property. Perhaps the most common type of postnuptial agreement is one that changes the status of community property or separate property.

43 43 J. MARITAL SETTLEMENT AGREEMENT The third category of these agreements, and by far the most common, is the marital settlement agreement. The third category of these agreements, and by far the most common, is the marital settlement agreement. These agreements are, in fact, in contemplation of dissolution or legal separation and are by far the type of agreement with which the typical reader will have day- to-day contact. These agreements are, in fact, in contemplation of dissolution or legal separation and are by far the type of agreement with which the typical reader will have day- to-day contact. Since most of these cases ultimately settle, most will use the marital settlement agreement to memorialize the provisions of that settlement. Since most of these cases ultimately settle, most will use the marital settlement agreement to memorialize the provisions of that settlement.

44 44 J. MARITAL SETTLEMENT AGREEMENT Once the agreement is entered into by both of the parties, its provisions will generally constitute the basis for preparation of the judgment, which, if it is a stipulated judgment, will simply incorporate the executory provisions of the marital settlement agreement and carry the signatures of both parties. Once the agreement is entered into by both of the parties, its provisions will generally constitute the basis for preparation of the judgment, which, if it is a stipulated judgment, will simply incorporate the executory provisions of the marital settlement agreement and carry the signatures of both parties. See Sample Premarital Agreement on pages 550-565. See Sample Premarital Agreement on pages 550-565. See Sample Marital Agreement on pages 567-587. See Sample Marital Agreement on pages 567-587.

45 45 K. COLLABORATIVE DIVORCE Collaborative Family Law is the newest approach to family law matters, including divorces. Collaborative Family Law is the newest approach to family law matters, including divorces. It is a method in which attorneys for both divorcing parties agree to assist to resolve the dispute using cooperation and problem solving strategies rather than adversarial approaches and litigation. It is a method in which attorneys for both divorcing parties agree to assist to resolve the dispute using cooperation and problem solving strategies rather than adversarial approaches and litigation.

46 46 K. COLLABORATIVE DIVORCE A major difference between collaborative family law and other approaches is that clients themselves craft the terms of their divorce and final outcome. A major difference between collaborative family law and other approaches is that clients themselves craft the terms of their divorce and final outcome. No third party (such as a judge) decides the outcome for them. No third party (such as a judge) decides the outcome for them. This process only works when both parties agree to use it. This process only works when both parties agree to use it.

47 47 L. SAME-SEX MARRIAGE In 2008 California weighed in when the Supreme Court essentially cleared the way for same-sex marriage, finding the denial of that opportunity essentially treated one class of Californians different than one other class of people and thus contrary to the Equal Protection Clause of California State Constitution. In 2008 California weighed in when the Supreme Court essentially cleared the way for same-sex marriage, finding the denial of that opportunity essentially treated one class of Californians different than one other class of people and thus contrary to the Equal Protection Clause of California State Constitution.

48 48 L. SAME-SEX MARRIAGE It is also noteworthy that, as this book goes to print, we await the November 2008 general election, at which time Californians will vote on Proposition 8, a provision that has been placed on the ballot that would, if it passes, essentially change California’s constitution to limit the definition (and application) of marriage to person’s of the opposite sex. It is also noteworthy that, as this book goes to print, we await the November 2008 general election, at which time Californians will vote on Proposition 8, a provision that has been placed on the ballot that would, if it passes, essentially change California’s constitution to limit the definition (and application) of marriage to person’s of the opposite sex.

49 49 M. LIMITED SCOPE REPRESENTATION Limited Scope Representation allows a party going through dissolution proceedings to seek an attorney’s services for certain aspects of their dissolution, and to be represented by that attorney in court, without requiring either the attorney or the client to commit to full representation of the client for all issues in the divorce. Limited Scope Representation allows a party going through dissolution proceedings to seek an attorney’s services for certain aspects of their dissolution, and to be represented by that attorney in court, without requiring either the attorney or the client to commit to full representation of the client for all issues in the divorce. This allows the client to use the attorney’s services only for these items that they believe they need an attorney, without incurring the fees for full representation, and without being forced to forego representation in an area where they may truly need it. This allows the client to use the attorney’s services only for these items that they believe they need an attorney, without incurring the fees for full representation, and without being forced to forego representation in an area where they may truly need it.

50 50 M. LIMITED SCOPE REPRESENTATION See Figure 11-2 on pages 606-608. See Figure 11-2 on pages 606-608. Upon filing the Notice of Limited Scope Representation, the attorney is now the attorney of record in the dissolution for those areas and/or proceedings identified in the Notice. Upon filing the Notice of Limited Scope Representation, the attorney is now the attorney of record in the dissolution for those areas and/or proceedings identified in the Notice. At the end of the representation, the attorney must simply prepare and present a Substitution of Attorney to the client, ask them to execute it where indicated on the form, and then file the form with the Court, serving it on all interested parties in the dissolution proceedings. At the end of the representation, the attorney must simply prepare and present a Substitution of Attorney to the client, ask them to execute it where indicated on the form, and then file the form with the Court, serving it on all interested parties in the dissolution proceedings.

51 51 M. LIMITED SCOPE REPRESENTATION If the client refuses to sign the Substitution of Attorney, the attorney must file with the Court a Judicial Council of California form FL-955, “Application to be Relieved as Counsel Upon Completion of Limited Scope Representation.” If the client refuses to sign the Substitution of Attorney, the attorney must file with the Court a Judicial Council of California form FL-955, “Application to be Relieved as Counsel Upon Completion of Limited Scope Representation.” See Figure 11-3 on pages 611-612. See Figure 11-3 on pages 611-612.

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