Ca Fam Law Specialist

Front 1

What is the UDRA?

Back 1

Uniform Divorce Recognition Act FC section 2090-2093

Front 2

What are the initial questions you ask when determining if court has power?

Back 2

1. SMJ? From what source?
a. Granted conditionally?
b. Specific jxn? FC 2650:

Limitations/restrictions?
2. Pers Jxn?
3.

Front 3

What statute gives CA courts jxn over disso matters?

Back 3

FC 2010 -
1. status of marr
2. custody of mc from marr
3. support of kids
4. property rts
5. AF

Front 4

What is the difference between subject matter jxn and personal jxn?

Back 4

SMJ: power to hear a case
Pers Jxn - power of the court to render money jgmt over a person

Front 5

Guardianship of Kassandra H.

Back 5

Fill this in when the case is analyzed

Voluntary versus Involuntary

Front 6

What is the difference between gaining a grandparent's custody versus guardianship?

Back 6

1. Rebut presump in FC 3104 = against GP. But in guardianship, prove detriment to place child with natural parent, bic to keep with guardian

Front 7

What case supports a non parent de facto parent in gaining visitation with a step child?

Back 7

Marr of Gayden;

Front 8

What advice to give grandparents that want to be clients for visitation

Back 8

1. Attorney fees
2. Generalized expense (may have to have separate living accomodations - restrictions)
3. Mediation
4. Conditions
5. Have good pre existing bond

Front 9

Has FC 3104 survived the Troxel test?

Back 9

barely.

Parent may have to do a bit more than stand on Troxel. Need more evidence of relationship needs of children.

Front 10

What was COA ruling on Harris (grandparents visitation)

Back 10

1. FC 3104 not facially unconsxl
2. FC 3104 controls for post disso (FC 3103 is more general)
3. Facial challenge that mother made of per se denial, 3104 barely survives (7-0)
4. As applied, (4-3) survives
5. Separate consxl right of privacy squeeked by at 4-3.
6. Rebuttable presumption is absolutely essential (5-2)
7. "Special Weight" is probably important. Ct must make findings of why the GP relationship is in BIC.

Front 11

Marr of Harris: What was outcome of this case re grandparents access?

Back 11

Case was pre Troxel.

M said she would offer some time

M said it was a "per se Troxel" violation if you say it is in BIC to maintain GP relationship

USSCT:

Front 12

What does Punsley v. Ho?

Back 12

Same as Kyle O - as long as parent offers some contact -

Front 13

What is the ruling in Kyle O re grandparent visitation?

Back 13

Where parents offer visitation, grandparents cannot overcome presumption just by showing hostility alone.

Must be affirmative best interests

Front 14

What Family Values have emerged from Troxel?

Back 14

1. Family values
2. Relatives v.s psych parent
3. Estoppel
4. Harm?
5. Sexual orientation

Front 15

What Troxel rights have emerged?

Back 15

1. Troxel is a parent's right's case, not grandparent's rights case - keeps others out of parent's life

2. CA case 15 yr old sibiling wanted to have access to half sibling.

Front 16

What was plurality opinion offered by Justice O'Conner in Troxel?

Back 16

1. Parent has 14th A right parental liberty interest.
2. WA statute was breath takingly overbroad - no special weight to parent's views
3. Did not req ct to any special weight to fact that parent offered some time to GP
4. Parent offering some time should be a factor that favors parent

If statute had been better drafted, might have survived.

Analyze statute for over breadth, and special weight pattern.

Front 17

Troxel v. Granville:
How did the statute read?

Back 17

1. No custody proceeding
2. Non parents req access
3. WA state statute broad to order access to any person based upon BIC (not limited to certain classes)
4. Parent claimed conxl rt to liberty privacy

Not majority agreement on reasoning. But did agree was overbroad.

Front 18

What are Troxel problems?

Back 18

Statutory requirement:
1. Pre existing bond
2. Bad mouth history
3. Can grandparent work with limited conditions? Small amt of time?
4. If lose, what?
5. Mediation?
6. Ready to travel and pay expense and stifle?
7. May make relationship with child-in law worse
8. AF?

Front 19

Can attorney fees be awarded in GP visitation proceedings?

Back 19

Yes whether or not there is a Troxel problem:

Front 20

What are the Troxel limitations that are in place in FC 3104?

Back 20

1. 3rd party access allowd under very specific conditions
2. disppears
3. weigh parental concerns
4. Rebutable presumpt that BIC = no GP

Make sure that answer is structured to look at statutory issue first. Don't address conxl issue until the stat issue first. Would a statute even permit a judge would make an order. Don't talk about Troxel first.

Front 21

What is the special grandparent statute for visitation?

Back 21

FC 3104:
1. BIC due to pre existing bond and relationship with GP
2. weigh c's interest with M & F's parental authority
3. Petition ok only if:
parents separated or 1 absent for > month, or a parent joins, or c does not live w/either parent.
4. Cannot be used to grant long term if conditions no longer exist - self-destructs if factual circs dissolve
5. Rebuttable Presump - GP access is not in BIC if parents don't want or if 1 parent w/sole physical custody objects

Front 22

What is the basis for approaching a question?

Back 22

1. Is there subject matter jxn?

Front 23

Grandparent's visitation rights:
What is the basis for SMJ?

Back 23

1. 3102 - relatives of deceased parent
2. 3103 - GP if custody pending
3. 3104(a) - GP is no custody pending and intact marr

Front 24

What does Williams say about whether trial judge should say about BIC or Best Interest of Group?

Back 24

Expert should consider both individual and group best interest - major factor.

Millmower case states that older the child, the more likely court should take child's opinion - does this drive the younger child's circs?

Front 25

Why is IRMO Williams (move away) not limited to move aways?

Back 25

Cannot do individualized analysis of individualized of child to a parent. Must do the final step and factor sibling relationship. Should not be limited to long distance move away cases.

Front 26

What was the legal error in the IRMO Williams?

Back 26

Court failed to recognize relationship between children. Entitled to companionship of siblings unless compelling circs.

Tr Ct s/have used Burgess and trial de novo.

they are not community property to be divided equally for the benefit of their parents.

Front 27

What does IRMO Williams stand for (parents separate siblings)?

Back 27

1. Parents have week on week off custody
2. M wants to move away
3. Does the judge look at the individual interests of each child versus the group

Tr Ct has broad discretion; used individual bonding w/each child and ea/ parent. COA reversed b/c kids have right to have society

Front 28

Freedom of speech to adress the child: What are the limits of communication between a parent and child about this? Can parents criticize the coparent's religion?

Back 28

No CA cases. FL court decision that held parent not disparage other parent (their religion).

See Judicial Council forms (not to disparage other party)

Front 29

What was the outcome of the Weiss matter (parent's right to choose religion for child)

Back 29

Cannot apply ordinary best interests in parent's competition about religion

Cannot take expert opinion.

Murga: Parent objecting must show a present showing of substantial threat or emotional harm to a particular child. Can probably never be met. (Child would "probably" be harmed is not good enough)

Front 30

May a court get into situation where parties disagree about religious introduction to a child?

Back 30

Marr of Weiss: M converted to F's religion and promised to raise kids in F's religion. After disso, changes plans and goes back to her church. F challenges her ability to select a religion.

F wants restraining order re M's religion, 2 faiths are harmful, written agreement;

M opposes b/c 1st Amendment, chg mind, take kid;

Tr ct gave priority to F's religion b/c of agreement but did not make orders about where M could take children to church.

Front 31

How does Palmore affect us today?

Back 31

1. sexual orientation
2. illegal immigration status
3. disability
4. mental illness
5. religion

Argue under the theory that best interests must be modified by the recognition of conxl rights and public policies that supervene, not only allow us but require us to apply that policy rather than narrow view of that moment.

Other cases: Wellman - ct cannot disallow you to parent if you have someone of same sex spend the night, have illegal alien, cannot disability as a major operating fact (Carney). Mental illness;



These cases follow this case.

Front 32

What does the case Palmore v. Sidoti stand for?

Back 32

1. Ct may have to hold back on a certain holding b/c of social policy

(Mother chose to remarry different racial person in small southern state city - Bio father moved for chg of custody b/c of racial strife that would cause problems for child)

Would child be subject to social opprobrium (reproach) b/c of interracial home.

Reality of private bias is not basis to remove a child from parent - cannot perpetuate social prejudice as external policy

Conxl cannot control such prejudices but cannot tolerate them.

Front 33

Do courts have ability to appt guardian ad litem?

Back 33

No, Irmo Lloyd.
GAL appt per local rule. Reversed. Not allowed.

Front 34

What does the Akkiko M. stand for?

Back 34

A child in dependency case if competent must be allowed atty of choice. Maybe same for fam law setting.

Front 35

What court of appeals case might help a parent challenge the fact that minor's counsel can not be cross examined?

Back 35

Marr of McLaughlin - mediator was not subj to cross exam.

Front 36

What can minor's counsel do with court order?

Back 36

1. access to kid and records
2. veto examinations unless ordered

Front 37

What are the duties of minor's counsel?

Back 37

1. interview kid
2. files and records of parties
3. other investigation
4. own witnesses
5. arguments
6. adequate representation

a mouth piece for child's views AND independent coherent presentation of child's best interest. - built in conflict.

Front 38

What findings must a court make to order counseling per FC 3190?

Back 38

1. dispute poses substl danger to kid
2. best interests
3. not undue financial burden

Front 39

Court ordered counseling: What code provides authority?

Back 39

FC 3190
1. FC proceeding
2. party or kid
3. outpatient counseling w/mhp or subst abuse counseling
4. 1 yr limit
5. renewable on showing need
6. dv - sep counseling\

Front 40

In re Marr Camacho: May a fam law court order that no visits occur until after F achieves emotional maturity?

Back 40

No one would ever be able to see child. Absolute right to access. Limitations m/b on something very specific.

Front 41

In re Marr of Douglass - what was the outcome of req to name child before birth?

Back 41

1. Prebirth surname order ok
2. prebirth custody order not ok
3. t/ct ruled hyphenated name
4. first namer has leg up
5. can be mediated issue

Front 42

What is the general rule regarding changing a child's surname?

Back 42

Schiffman case is leading case (CASCT)
1. Best interest test
2. Burden on person wishing to change surname - what name has the child been using - puts premium on whoever starts using a name first.
3. Not tied to the traditional patronimic pattern in US

Factors:
1. How long has child used name
2. symbolic role of name
3. embarrassment

Front 43

What is relationship between UCCJEA and FPKPA

Back 43

UCCJEA conforms to FPKPA, beefs up enforcement of custody and visitation on interstate basis.

Front 44

Difference b/t UCCJA AND UCCJEA?

Back 44

UCCJEA replaces UCCJA
UCCJA did not give priority to home state., did not provide for continuing exclusive jxn for state that entered decree for as long as someone/child or party stayed there

Front 45

Is UCCJEA reciprocal? If a child comes here from Mexico (non Uccjea state) and DHS wants to claim child should stay here, how does uccjea apply?

Back 45

Applies in all situations whether reciprocal or not. Whether adopted or not. Whether in US or non-US. Petitioner has right to choose uccjea or hague in international matters.

Front 46

UCCJEA SECTIONS 3400 TO 3465: What is the purpose of these sections?

Back 46

Uniform agreement adopted by states, each state adopts slightly differently; establishes restrictions on SMJ on court.

Front 47

Re: CCP 397.5: If both parties have moved out of county, what can court do?

Back 47

If both moved, court can exercise jxn to transfer case to either county where party lives

Issue temporary orders until receiving county takes jxn of matter

If transfer for enforcement of c/s obligations, generally to county where child resides

Front 48

Re: CCP 395 - where does venue lie for nullity or legal sep?

Back 48

The party where either party lived when petition filed. No time reqmt.

Front 49

Re CCP 395 - where does Venue lie for disso?

Back 49

In county where petitioner or respondent has resided for 3 months before filing petition. Only one party needs to qualify.

Front 50

Explain the analysis briefly for SMJ in the following cases:
1. Irmo Dick
2. Irmo Gray
3. Purnel
4. Irmo Jacobsen
5. Irmo Zaragoza

Back 50

1. Resident does not rely on federal immigration rules. If H establishes residence in CA = SMJ
2. Divisible Disso - split case into different pieces
3. Preemption - c/s -look to source: Fed law preempts somethings (Military pay) but not c/s even if from Indian trust money
4. Preemption s/s: State law & public policy trump tribal traditions of no pay to non-Indian
5. Zaragoza: Waiver -- parties cannot submnit to jxn and then try to object to SMJ - H did not object w/mot to quash

Front 51

What is the doctrine of divisible disso?

Back 51

One spouse obtains ex parte disso in different state and then CA can have jxn over the remaining spouse here as to property and support

Front 52

What is a bilateral decree of disso and why does it prevent collateral attack?

Back 52

Sherrer Doctrine: If both parties have notice and opportunity and participate in process, neither can complain later and raise jxnl issues.

Front 53

What is prima facie evidence that a person was domiciled in CA and therefore out of state disso s/not be recognized?

Back 53

1. domicile in CA 12 mo. before disso and resumed residence in CA 18 mo after date of departure (were in CA 12 mo, left for 6 mo, and came back)

2. During entire time of absence from state until return, retained residence in CA

Front 54

What does the UDRA provide?

Back 54

CA residents who go out of state for a disso and do not otherwise meet reqmts, disso will not be recognized in CA.

Front 55

What is the UDRA?

Back 55

Uniform Divorce Recognition Act FC section 2090-2093

Front 56

What are the initial questions you ask when determining if court has power?

Back 56

1. SMJ? From what source?
a. Granted conditionally?
b. Specific jxn? FC 2650:

Limitations/restrictions?
2. Pers Jxn?
3.

Front 57

What statute gives CA courts jxn over disso matters?

Back 57

FC 2010 -
1. status of marr
2. custody of mc from marr
3. support of kids
4. property rts
5. AF

Front 58

What is the difference between subject matter jxn and personal jxn?

Back 58

SMJ: power to hear a case
Pers Jxn - power of the court to render money jgmt over a person

Front 59

Would testimony from a spouse that property purchased durr marr but taken in only one spouse's name in order to secure better loan rebut the title presumption that it is spouse's sep property?

Back 59

No. See Marr of Kahan

Front 60

If, durring marr, a couple purchases a home with comm $$ and only one spouse takes title, how can the other spouse in a disso proceeding prove that the property was intended to be community?

Back 60

Must rebut title not with acquisition durr marr argument, not tracing, but with CCE that title intended to be community. Use evidence of an agreement or understanding. One party's belief in jt ownership not sufficient.

Front 61

If during marr, a couple purchase real property w/comm $$ but one spouse takes the title in their name alone, is the property community by virtue of its acquisition date (durr marr)?

Back 61

No. See Marr of Lucas. "it is the affirmative act of specifying a form of ownership in the conveyance of title taht removes such property from the more general community property assumption. The mere fact that property is acquired during marr does not rebut the form of title presumption.

Front 62

According to the Marr of Berger, if a spouse voluntarily elects to defer income and live off of savings while maintaining a high life style, what should the court do in determining income available for c/s

Back 62

Court should
1. use the actual earnings spouse c/have rec'd if they had not deferred the income

or

2. Deviate from GDS using "special circs" being that H deferred income.

Ct should use the amt of support H would pay if he had not deferred his income as the deviation.

Front 63

May a non parent attempt to join herself into a UPA action that was settled previously in order to obtain custody over a child that lived in her home for 7 years?

Back 63

No. Nonparent has no standing in dormant UPA action where no proceeding pending. Must initiate guardianship proceeding. Scott v. Superior Ct. 2009

Front 64

When can a former legal guardian bring an action to have visitation with a child?

Back 64

1. During fam law proceedings or

2. If none, can maintain an independent action.

If one parent alive - in fam court
If no parents alive - in guardianship matter
BIC standard

Front 65

What type of proceedings specifically allows grandparents to petition for visitation?

Back 65

FC 3102 if their adult child is deceased, even if a step parent adopted the grandchild. Can be brought anytime whether custody before court or not. Independent action.

FC 3103: if custody issue before court

FC 3104 if custody issue not before court - natural parents are not living together or if they are and one agrees

Front 66

What "special statutory jxns" exist to permit non-parent visitation when there is no family law hearing pending?

Back 66

1. FC 3104 - grandparents can petition court for visiation if no hearing pending but only under limited conditions

2. FC 3102 - deceased parent's relatives can request visitation if conditions are met

Front 67

When does a non parent (non party)have standing to request custody of a child according to the FC?

Back 67

1. Anytime there is a Disso/nullity/legal sep; excl custody; dvpa, or upa proceeding - any non parent. But if no proceeding pending, deceased parent relative by 3102, grandparents by 3104 and former guardian by 3105. Step parent can use 3101 but only if proceeding is pending.

Front 68

What is the traditional meaning of income according to Marr of Alter?

Back 68

Recurring monetary benefit

Front 69

Is federal tax law conclusive as to the definition of income for purposes of child support?

Back 69

No - not conclusive (Marr of Rothrock). Marr of Alter decides to include recurring gifts b/c rzbly related to traditional meaning of income as a recurring monetary benefit

Front 70

When can gifts of money from a parent be considered income for purposes of child support?

Back 70

Marr of Alter:

regularly recurring gifts s/b income if they bear a reasonable relationship to the traditional meaning of income as a "recurring monetary benefit."

Front 71

Which case determined that reducing child support may sometimes be in the best interest of the children?

Back 71

Mar of Mosley:
if hard times happen, not in BIC to force parent into a level of debt they have no ability to pay

reduction in c/s may be in bic if it permits a parent to devote more time to children tan to working ore or less constantly simply to keep up with an onerous support order

Front 72

What does FC 3651 expressly provide about modifications about c/s and s/s?

Back 72

C/s can always be modified or terminated.

S/s can not be modified or terminated if the parties agreed in open court or if by written agreement.

Front 73

What does transmutation require?

Back 73

1. Writing
2. Express declaration
3. Changing nature
4. Signed by party whose interest is adversely affected

Precludes extrinsic evidence

Front 74

What are the three factors that generally determine property characterization? (Irmo Rossin Private Disability benefits)

Back 74

1. time of acquisition

2. operation of various presumptions, particularly those concerning title

3. determination whether spouses have "transmuted" property, changing character

Front 75

In Re E.S. (2009) held what regarding FC 3041?

Back 75

FC 3041 not unconsxl where child placed w/non parent even though no unfitness needed b/c
1. detriment to child (by CCE) is focus (child's interest) rather than parental unfitness and
2. Best interest of child (by PPE) to be placed w/non parent
= proper balancing of competing interests

Front 76

In Kevin Q. V. Lauren W. what should Kevin have done to disprove Brent's biological paternity or tried to rebut the presumption of Brent's paternity?

Back 76

1. S/have moved for genetic tests under FC 7575 to disprove Brent's paternity
2. C/have challenged Brent's VDP on equitqble grounds such as extrinsic fraud
3. Any other statutory options for challenge

Front 77

What priority does a judgment of paternity (by Vol Decl of Pater) have over a 7611 parent presumption?

Back 77

Superiority

Front 78

What are the policy considerations for rebutting the presumed parent status in FC 7611?

Back 78

The mere fact that a parent is a presumed parent and that the evidence is then rebutted by CCE (not genetic dad) may not be appropriate to apply the rebuttal to the case if child does not have two parents.

Front 79

Regarding presumptions in FC 7611 (status of natural parent, presumptions, conditions) - if two ore moe presumptions arise under 7611 and are conflicting, how does the court decide which to choose?

Back 79

The court must choose the presumption founded on the weightier considerations of policy and logic.

Front 80

What is the burden of proof for an alleged parent to prove she is a "presumed parent?" and what is the burden of proof to rebutt that evidence?

Back 80

Proof by a preponderance that alleged parent is presumed. Once found, other parent must rebut by clear and convincing evidence.

Front 81

If an alleged father fails to submit to paternity testing after having been ordered and fails to bring motion seeking relief - what is possible consequence

Back 81

court may resolve paternity against alleged father

Front 82

Who can request blood DNA test for paternity under FC 7558?

Back 82

DCSS uf
1. paternity is issue
2. support is issue
3. person alleging paternity gives smt under penalty of perjury establ req sexual conduct
4. person denying gives stmt w/rzbl non exist of paternity
5. alleged father requests in response
6. M and alleged F agree in writing to test

Front 83

Who can request a blood DNA test for paternity under FC 7551?

Back 83

Who can request a blood DNA test for paternity under FC 7551? 1. Court on its own initiative
2. any person who is involved
3. dependency ct father if paternity is issue (not if he is claiming presumed status)
4. grandparents when putative F is deceased
5. putative father

Front 84

When may blood tests for paternity not be used to challenge paternity

Back 84

a case that reached final judgment or paternity on or before 9/30/1980

or

A case coming within FC 7613 (artificial insemination)

or

Case in which wife w/consent of H conceived with surgical procedure

Front 85

Who can file for a blood (DNA) test for paternity under FC 7541?

Back 85

UNDER FC 7541
1. Not later than 2 yrs from dob
2. husband
3. presumed father
4. child through GAL
5. mother if the child's bio father has filed an affidavit w/ct acknowing paternity

6. NOT AN ALLEGED BIO FATHER
7. NOT AN ADJUDICATED FATHER (DEFAULT OR VDP FATHER)

Front 86

In the case Kevin Q v. Lauren W (2009) F lived with M before child and after child was born. Why did COA reverse the tr ct's finding Kevin was presumed F?

Back 86

FC 7611 states man is presumed to be natural F of child if he
1. meets paternity judgment or conclusive presumption by filing vol decl of paternity or
2. conclusive presump of paternity over child of the marr or
3. for a rebuttable presumption of fatherhood under any of 7611's subdiviions

M and Brent signed Vol Decl of Pat and under FC 7574, id'd B as the child's nat F. Can be filed with DCSS any time. Serves as paternity judgment and trumps presumed F status claim.

Front 87

What are the 6 WAYS a man is REBUTTABLY presumed to be a natural parent?

Back 87

1. Man and child's natural mother are or have been married to ea other and C is born during marr OR w/in 300 days after marr is terminated by death, annul, decl of invalidity or divorce, or after a judgment of sep is entered by court

5. Before C's birth, M and child's natural mother have attempted to marry by a arr solemnized in apparent compliance w/law, although marr could be deemed invalid if either is true:
a. if attempted marr could be invalidated by ct, C is born during attempted marr or w/in 300 days after its term

b. If attempt marr is invalid w/o court order, C is born w/in 300 days after of cohabitation

6. Aft C's birth, he and child's natural M have married or attmpt to marry and either is true:
a. F consent's to his name on birth cert
b. He is obligated to support child by written voluntary promise or by ct order

7. He receives C into is home AND openly holds out C as his own

Front 88

Why was the sanction in Elkins inconsistent with the policy favoring determining cases on their merits?

Back 88

Local rules cannot trump state court rules.

Front 89

What is the preference when a local rule and a state court rule conflict?

Back 89

State rule trumps
Elkins

Front 90

What was the status of custody in Brown and Yana?

Back 90

the custody issue had already been decided, fully litigated, and the resulting judgment was entitled substantial deference in the absence of a showing of a significant change of circs.

Front 91

What did Brown & Yana not do?

Back 91

It did not suggest that litigants must make a prima facie showing of some kind in order to be entitled to proceed to trial.

Front 92

What did Brown v. Yana stand for?

Back 92

Once a judgment has been entered in a custody matter, a postjudgment motiohn or request for OSC for a change in custody based upon an objection to the cp's plan to move away requires an evidentiary hearing only if necesssary - only if moving party is able to make a prima facie case showing that move will be detrimental to child or has identified a "material but contested factual issue that should be resolved through the taking of oral testimony."

Front 93

FC 3185: What must the court to if parties fail to reach agreement in mediation?

Back 93

Set the matter for a hearing for unresolved matters

Front 94

Regarding Elkins, why was the Reifler reasoning not acceptable/

Back 94

1. Reifler involved post judgment modification, not trial on marital disso

2. Reifler was for motions, not trials.

3. Controverted facts could exist but not if they required factfinding resulting in a judgment

4. CCP 2009 reasoned to allow affidavits

5. CCP 2009 weakened by post Reifler cases, People v. Johnson 2006

6. Affidavits in 2009 intended to be on procedural matter not on contested facts that form cause of action

7. CCP 2009 does not authorize intro of hearsay evid at a contested dtrial

8. Local ct may not adopt hearsay exception appl solely to divorce trials despite state law making disso trials conducted in accordance w/other civil proceedings.

Front 95

What was Marilyn Elkin's main argument regarding the effectiveness of a "declaration" as testimony?

Back 95

Marilyn argued that an affidavit is "testimony". The court rejected this as every written declaration including depositions, transcripts and so forth would be given the same accord as an oral examination.

Front 96

What are the concerns regarding efficiency and conservation of judicial resources in Elkins?

Back 96

The CASCT stated that you cannot advance those goals at the expense of impairing the public interest in being afforded access to justice, resolution of controversy on the merits and a fair proceeding

Front 97

What did the trial court in Elkins allow?

Back 97

Ct had a rule and order allowing for the admission and use of written declarations admissible as a basis for decision making in contested disso trial

Front 98

Are the rules of evidence applied in F.Law?

Back 98

Even though some informality and flexibility is applied in marital dissolutions, the proceedings are governed by the same statutory rules of evidence and procedures that apply to all other civil actions.

Front 99

What was the holding in Elkins regarding a court adopting local rules?

Back 99

A trial court is without authority to adopt local rules or procedures that conflict with
statues or with
rules of court adopted by the Judicial Council,
or that are inconsistent with the Consx or with
case law.

Local courts may not create their own rules of evidence and procedure in conflict with statewide statues.

Front 100

I see Cal Rules of court 3.1203 says exparte notice must be given 10:00 a.m. prior to the day of the hearing.
I thought this was usurped by a local rule that requires 24 hours notice.

Back 100

Ca State Rules trump all local rules

See Elkins

Front 101

Remedies for threat of abduction re FC 3048

Back 101

1. supervised parenting
2. cash bond
3. removal restrictions
4. relocation restrictions
5. get passport
6. notify counselate of US or other country
7. Register CA order in other jxn
8. Control issuance of transport tickets
9. Adopt add'l lang under Hague or Uccjea to help enforcement

Front 102

Does a parent have to have direct evidence that the other parent tried to abduct a child?

Back 102

No direct evidence. Up stream info that shows certain factors that are part of analysis.

Factors may be completely innocent behavior. No bad faith behavior required.

Low threshold
Stereotyping foreigners/countries

Keep in mind advice about backfiring of this strategy

Front 103

List the factors the court must consider in a FC 3048 abduction prevention analysis:

Back 103

1. Previous abduction
2. Threats
3. No strong ties here
4. Ties elsewhere (ct cannot consider this unless evidence exists in support of another factor in the 3048 section) - many people have substl ties to other jxn.
5. Financially footloose (can go anywhere in world)
6. Planning activities
7. DV or criminal acts

Front 104

What must the FC 3048 findings contain?

Back 104

1. All custody orders (any c/v prodceeding)
a. juris basis
b. Notice
c. Rights
d. Penalties
e. Habitual residence of child
2. factors re danger of abduction
3. need for preventative measurese
4. conditions if necessary
5. Give DA child abduction unit info

Front 105

What is CA's mini child abduction act?

Back 105

FC 3048 - lays out circumstances and remedies ct must consider as to whether child may be removed from a jxn in ca.

Front 106

What are the differences in enforcement between Hague and UCCJEA application?

Back 106

What are the differences in enforcement between Hague and UCCJEA application? UCCJEA:
1. Not reciprocal. CA will use with other state or foreign jxn even if other jxn doesn't accept UCCJEA as long as they have similiar rules
2. Applies to custody and visitation (access)

Hague:
1. Enforceable only with custody, not access
2. Only applies to to other jxns (countries who agree to follow rules) signatories
3.

Front 107

Does UCCJEA permit subject matter jxn waiver?

Back 107

No. It may be considered by the court but is not controlling as in child support situations

Front 108

What are the differences between UCCJA AND UCCJEA

Back 108

UCCJA:
1. Homestate:
2. significant connectsd + substl evidence = best interests
3. Emergency (neglect/abuse)
4. no other state

UCCJEA:
1. Homestate has priority
2. significant connection + substl evid only if
a. no home state
b. home state declined, or
c. all home states and signfc
states declined
3. Emergency basis (temp)
4. No other state
5. All home state and sig. conn. states have declined

Front 109

What is the definition of CEJ?

Back 109

Once a state acquires subject matter jxn (using home state rule, emergency jxn, vacuum or significant contacts rule), it remains the CEJ until in CA

1. issuing state decides no significant contact and no substl evidence
or
2. issuing state decides child and one parent/custodial all moved away

Front 110

What is a uniform act?

Back 110

It is a statute that many states agree to adopt in whole or part, example UCCJEA

Front 111

What is the definition of home state according to UCCJEA:

Back 111

The state where the child lived immediately preceeding the commencment of the matter

Front 112

As between the gestational mother whose womb bears the egg and the ovum donor who donates the egg, which is considered the "natural mother" and under what authority?

Back 112

Johnson v. Calvert: 1993

CA law recognizes only one "natural mother." When gestation provided by one and genetic material provided by other, natural mother is woman who intended to bring about the birth of the child and to raise the child. the social mother.

Front 113

What is the difference between gestational surrogacy and traditional surrogacy?

Back 113

Gestational: Ovum donor donates fertilized egg into infertile mother's womb for gestation only.

Traditional: Surrogate mother provides both the egg and womb.

Front 114

Does UPA grant authority for court to decide parentage for two same sex women?

Back 114

Yes per 2005 CASCT trilogy of cases:

In re Elisa B.
K.M. v. E.G. and
Kristine H. v. Lisa R.

Front 115

How may a mother and child relationship be established?

Back 115

a. Mom and child - mom gave birth (FC 7610)
b.Adoptive Mopm parent and child - proof of adoption
c. Contribute genetic material to other Mom's child (K.M. v. E.G.)
d. Received their partners' children into their homes (same sex partners) Elisa B.
e. Parentage by estoppel (Pedragon, Buzcanna, Cleveland by extension)

Front 116

What type of evidence is automatically admitted in UPA hearings w/o foundation?

Back 116

bills for pregnancy, childbirth and genetic testing are admissible

Front 117

If a party brings an action under the UPA and submits a DNA test, what must the court first do before making even pendente lite custody orders?

Back 117

1. Find that DNA test proves parentage
2. Find that custody or visitation is in BIC

Front 118

What is the definition of "parent and child relationship" ?

Back 118

per FC 7601 means "legal relationship existing between child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. Term includes mother and child relationship and father and child relationship."

Front 119

What circumstances is UPA appropriate in deciding custody/visitation?

Back 119

Unmarried parents

Front 120

What is the difference in jxn to decide custody/visitation issues between the UPA and the DVPA?

Back 120

DVPA allows limited jxn to court to make custody/visitation orders only where marital relationship occurred between parties and child is result of marr or persons are legal parents by previous court order, POP, adoption etc.

Ct cannot decide paternity/maternity in DV case

Front 121

What is the definition of Assisted reproduction agreement per FC 7606?

Back 121

A written contract that includes

1. who is the legal parent of child

2. what is the relationship between the parties (donor and donee)

Front 122

What is the definition of Assisted Reproduction per FC 7606?

Back 122

Conception by any means other than sexual intercourse

Front 123

What is the definition of a pension?

Back 123

A pension is an "annuity" meaning payments made to the employee from the employer upon his/her retirement for their remaining life.

Front 124

What orders can the court make regarding an Action for Exclusive Custody?

Back 124

1. No petition for disso or legal sep needs to be filed

2. Ct can make any orders for BIC in accordance with rights of natural parents

3. Orders can be made during pendency of petition, at final hearing on petition and modification later.

Front 125

What factors are used to determine whether a guardianship should be terminated?

Back 125

1. Public policy favors stability

2. Parents must prove "overall fitness" and that it would be in the BIC to return her to parents.

Front 126

What rights to former legal guardians have pursuant to FC 3105

Back 126

1. Legis policy that children's rt to have companionship w/previously judicially approved guardian outweighs parents's right to control and custody - may grant rzbl visitation rights if in BIC

Front 127

What is the definition of Clear and Convincing Evidence?

Back 127

80 yers ago CASCT defined CCE = finding based upon "high probability", greater than preponderance. Later defined as to be "so clear as to leave no substantial doubt; sufficiently strong to command an unhesitating assent of every reasonable mind." In re Angelia (1981)

Front 128

What is the definition of Forum Non Conveniens?

Back 128

--Forum non conveniens requires that in the interests of fairness and convenience a court with personal jurisdiction over a party nonetheless yield its power in favor of a more appropriate forum

Front 129

What is the difference between residence and domicile?

Back 129

What is the difference between residence and domicile? While a person may, at any given time, have more than one residence, he or she may have only one domicile at a time. Moreover, once a domicile has been established, it is presumed to continue until a new one has been acquired. In order to establish a new domicile, a person must show (1) physical presence at the new location with (2) an intention to remain there indefinitely

Front 130

What does the statement "frequent and continuing contact" refer to?

Back 130

It is the public policy of CA through the legislature as follows:

to assure children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child-rearing, unless contact would not be in the best interests of the child.

Therefore, in making an order for custody to either parent, the court must consider which parent is more likely to allow the children frequent and continuing contact with the noncustodial parent.

Front 131

Marr of Lester stands for?

Back 131

A court may not prefer a parent as custodial parent because of the parent's gender.

Front 132

What is the definition of Family Support?

Back 132

Family support is an income-tax shifting device designed to receive alimony tax treatment under Internal Revenue Code Sections 71 and 215 (deductible to payor; income to payee) for payments that might otherwise be treated as child support.

Can never refer to c/s calculations or factors. Query whether it comports with findings required to deviate from guideline in FC 4065.

Front 133

What authority allows a trial court to "judicially shift the dependency exemption" in the calculation of child support?

Back 133

County of Monterey v. Cornejo (1991) CASCT held that IRC does not preclude state court from doing so. Public policy is to maximize after tax income available for paying c/s.

Front 134

Does the court consider a "tie" between the number of years of service and the amount of severance as a factor in characterizing the asset?

Back 134

Cts look at a number of factors:

an appellate court found that, although the severance pay at issue was partially based on years of employment it should be characterized as separate property, when
(1) the entitlement to the pay was derived from a court order, rather than being based on a contract right,

(2) it represented an employee's option between returning to work and accepting payment for giving up the right to return to work, and

(3) it was only incidentally based on the number of years of service. The employee spouse had no absolute right to payment because he would not have received the pay if he had returned to work. The appellate court found that the severance pay was present compensation for loss of future earnings, not deferred compensation for prior services

See Marr of Frahm

Front 135

What is the characterization of severance pay?

Back 135

If received after separation and if intended for loss of future earnings, is considered sp property of ee spouse.

Front 136

Describe non retirement plans that employers may also offer that are not considered "qualified" plans

Back 136

any nonretirement benefit such as severance, bonus, life, health and accident plans, fringe benefits

Front 137

What is the difference between qualified and nonqualified plans?

Back 137

Nonquals are almost never funded.

Top Hat plans, Supplemental Executive Retirement Plan to name a few

Front 138

What procedure is required to divide a qualified retirement plan upon dissolution?

Back 138

All qualified plans and all funded ERISA covered retirement plans can only be divided between a participant and non participant spouse (or used to pay support) by a court order QDRO

Front 139

Are all qualified private employer retirement plans covered by ERISA?

Back 139

Some are not

Front 140

What does the term "qualified" mean with respect to retirement plans?

Back 140

"Qualified" refers to having met the requirements for tax qualification unter IRC section 401(a) et seq.

Front 141

What is a profit sharing plan?

Back 141

form of defined contribution plan.

Front 142

What is the character of disability benefits received after DOS?

Back 142

Marr of Donnelly: Although related to employment during marr, generally belong to disabled spouse's sep property.

But if disability pmts substitute for longevity or retirement pension benefits, community may have interest.

Front 143

How should the effect of taxes be considered in assigning a home to one spouse and a retirement plan to another spouse?

Back 143

House - if the house is going to be sold immediately, the court must consider the immediate and specific consequences of the sale - capital gains taxes if they exist.

For retirement, unless it is ripe for maturity, the court should not consider future taxes

Front 144

Describe the formula for actuarial valuation of a defined benefit plan

Back 144

1. EE's amount of monthly retirement pension benefit promised at future retirement
2. Discounted back to valuation date to yield present day value

3. Discounting includes 1) interest, mortality rate and vesting if an issue

Front 145

If a pension plan is a defined benefit plan and must be divided, what must the court consider?

Back 145

1. Present day value
2. factors (economic, health or otherwise) used in rendering opinion as to value
3. discounted down to date of trial - thus establishing a present value of the stream of payments ove the ee spouse's life expectancy, or over the jt lives of the ee and the non ee.

Front 146

What is the definition of a defined benefit retiremente plan?

Back 146

Broadly defined for tax purposes is any plan that is not a defined contribution plan. Usually a formule based upon service credits and salary. Actuarial must determine present day value

Front 147

What describes a defined contribution retirement plan?

Back 147

provides for an individual account for each participant and benefits solely bgased upon contributions to account either by employer or in conjunction with employee; Amt of contribution is defined by plan as a specific amt or formula of pay

Front 148

Give examples of defined contribution retirement plans

Back 148

Profit sharing, stock bonus, money purchse, target benefit, tax sheltered annuity, 401K

Front 149

Gives example of cash out order for profit sharing plan where dot value is higher than dos value

Back 149

Value community baseline at dos plus any post separation increases attributable to that baseline amount up to the date of trial.

2. Consider alternative date if changes in baseline due to ee spouse's actions

3. consider ct to reserve jxn if division of benefits postponed until time of distribution

Front 150

When is the time rule not appropriate for approtioning retirement benefits?

Back 150

1. when the retirement benefits are not substantially related to the number of years of service of employment

2. Further years of marriage were not necessary after the maximum years of employment were reached during the marr (marr was 10 years long but max vesting occurred at year 8 (seen in military pay)

Front 151

What is a cash-out order for a deferred compensation plan?

Back 151

1. Method requires the entire comm interest in plan be awarded to ee spouse at present value with assets of equal value awarded as offset to other sp = overall equal division of cp

Front 152

What is the benefit of using the "Time Rule" to value community retirement benefits?

Back 152

1. Use to divide retirement benefits in kind when "cash out" not feasible or will not result in equal division.

2. No actuary needed

3. Must consider actual years used as opposed to extra years not needed to qualify for plan

4. Must consider immed and specific tax consequences

Front 153

What is Reverse Van Camp theory

Back 153

To be used when sep efforts improve value of community asset

1. Establish value of community bus at DOS, and increase between DOS and DOT

2. Apply rzbl earnings against increase as paid to SP employee

3. Remainder of growth is awarded to community.

Front 154

What is the Reverse Pereira theory?

Back 154

In situations where Sep efforts increase value of community asseet post separation, there are several methods:
1. Establish value at DOS, add growth in value due to non-spouse factors = commu interst at trial.

2. Or reverse Pereira where investment return is attributed subtracted from total increase and attributed to community (rather than to sep as in normal approach) and then remainder of increase value is CP

Front 155

What is the proper way to analyze the facts of a case under both Pereira and Van Camp?

Back 155

1. Value of sep prop at DOM
2. Value of Sep prob at DOS (tracing if necessary
3. Proportion of increase to sep prop under Pereira and Van Camp and
4. Proportion of increase to CP under Pereira and Van Camp

Front 156

What is the Van Camp formula?

Back 156

A reasonable value (less any salary taken) is attributed to the services performed by the owner-spouse and that amount is valued as community property.

Increases in the value of the sep property are allocated as sep property to the owner spouse.

Front 157

When should the Van Camp formula be used in valuing sp prop asset/business?

Back 157

It should be applied to value community and separate interests accruing in a sp business interest dur marr when the increase and value were due to other factors than the sep sp's efforts and skills.

Front 158

How do you compute community interest under Pereira?

Back 158

1. Calculate the original amt of sp investment or the value of bus at DOM

2. Subtract the initial investment or DOM value from the DOS value.

3. Difference equals excess

4. Multiply the investment by rzbl return rate over the period of marr

5. Subtract investment return from excess earnings.

6. Remaining amt owed to community.

Front 159

Formulaic Pereira

Back 159

fair return on spouse's sp investment to that spouse as sp

allocate any excess to the community estate as arising from spouse's effort

Front 160

What role does the skills of the spouse have to do with which formula (pereira or Van Camp) are used in valuation of a sep prop asset at dissolution?

Back 160

1. Applies to business or asset that increases in value

2. If spouse's efforts/skills caused increase in value and profits of SP asset - Pereira used.

3. If increase occurred from other factors than spouse's skill/efforts - use Van Camp

Front 161

What types of scenarios in a Pereira and Van Camp apportionment are possible?

Back 161

1. H owns sep prop business before marr (restaurant) and continues to operate it through marr, increasing the business value as well as paying income to community

2. H and W own bus started durr marr. After DOS H continues to work in business increasing value, receiving income and paying W out of the proceeds

3. A movie producer writes a movie before and after DOS. Movie produced after and receives profits. Profits s/b apportioned between pre sep and post sep.

4. H runs a dental practice that he owned prior to marr. W is bookkeeper for bus. After DOS, W continues to work for H as bookkeeper, pays herself salary out of H's income.

5. Same example except W is not paid a salary and works for free for many years organizing and running H's business. H takes a salary but W does not.

Front 162

What is the purpose of both Pereira and Van Camp formulas?

Back 162

In general, it is an apportionment between sep prop and community property of profits on an asset or business that occur either during the marr or after separation.

Front 163

How should a court determine which formula to use (Pereira or Van Camp)?

Back 163

Beam v. Bank of America,

"'In making such apportionment between separate and community property our courts have developed no precise criterion or fixed standard, but have endeavored to adopt that yardstick which is most appropriate and equitable in a particular situation . . . depending on whether the character of the capital investment in the separate property or the personal activity, ability, and capacity of the spouse is the chief contributing factor in the realization of income and profits [citations] . . . [Par.] In applying this [***13] principle of apportionment the court is not bound either to adopt a predetermined percentage as a fair return on business capital which is separate property [the Pereira approach] nor need it limit the community interest only to [a] salary fixed as the reward for a spouse's service [the Van Camp method] but may select [whichever] formula will achieve substantial justice between the parties

Front 164

Describe the Van Camp Approach

Back 164

The Van Camp formula would determine the reasonable value of husband's services (less the draws or salary taken) and allocate this additional sum, if any, to husband as his separate property and the balance of the increase to community property.

Front 165

Describe the Pereira Approach

Back 165

the Pereira approach would allocate a fair return of the increase to the community property and the excess would be husband's separate property.

the Pereira approach, "is to allocate a fair return on the [husband's separate property] investment [as separate income] and to allocate any excess to the community property as arising from the husband's efforts."

Front 166

Re: FC 2552 Valuation of Community Assets and Liabilities

What are the exceptions to valuing property at date of trial?

Back 166

Marr of Duncan: pension fund company increased value solely due to H's efforts, reputation and skill

Marr of Stevenson: small contracting business dep on H's sole skill

Marr of Sherman: Ct cannot value Moore/Marsden at DOS rather than DOT b/c appreciation due to market factors, not to parties' efforts

Marr of Nelson: Used DOS b/c W's poor record keeping post sep

Bono v. Clark - used time of sep in probate proceeding (exception)

Marr of Imperato: Exception - proper to to apportion increase in value of bus b/t DOS and DOT b/t CE and SP of H; Pereira and VanCamp s/b used to apport value

Marr of Cream: Ct may not value property by means of interspousal auction when one spouse disapproves

Front 167

Fe: FC 2552 Valuation of Assets and Liabilities

How does one seek a different valuation date of community estate?

Back 167

Upon 30 days notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities


AT A DATE AFTER SEPARATION AND BEFORE TRIAL

to accomplish an equal division of the CE of the parties in an equitable manner

Front 168

Re: FC 2552 Valuation of Assets and Liabilities

When are assets valued?

Back 168

As near as practible to the time of trial with certain exceptions

Front 169

RE: FC 2552 Valuation of Assets and Liabilities

What time period is this section applicable to?

Back 169

Division of the community estate
Upon disso of marr or legal sep

Front 170

Definition of TANF

Back 170

Temporary Assistance for Needy Families

A federally funded program where blocks of federal funds are granted to states to help families go back to work and provides temp $$

Front 171

What are the differences between Family Law goals and Dependency Proceeding Goals?

Back 171

1. Fam Law specifically prohibits "reunification services" between the children removed from and the parent.

2. Dependency proceeding requires it because the state is involved in taking a child from a parent. Ct required to give unless good cause shown otherwise.

3. Dependency proceeding, the child is a ward of the court, FL proceeding, the child is usually placed with the other parent or relative placement which has priority.

Front 172

Define Dependency Proceeding

Back 172

Where a nonparent seeks the involuntary removal of a child from parental custody because of alleged parental misconduct. Non parent requests county or county will file a petition to bring the child within the dependency jurisdiction of the juvenile court under Welfare and Institutions Code Section 300 et seq.

Front 173

What is the mathematical calculation for child support?

Back 173

1. Figure the total net monthly income of each parent under the standards set forth in Family Code Sections 4058 (annual gross income) subtract deductions listed in 4059 and add both parents's net incomes together;

2. Multiply that figure by the percentage of time that the higher earner has primary physical responsibility for the children



3. Subtract the result from the higher earner's net monthly disposable income. That yields the part of the higher earner's monthly income on which child support is computed.



4. Find the appropriate value of K as set forth in Family Code Section 4055(b)(3), and take K percent of the result of step 3.

Front 174

Re: FC 4055

What is the K factor in calculating child support?

Back 174

K = Amount of both parent's net income (expressed as percentage) to be allocated for child support

Front 175

Does the Hague always require the child to be returned to the country of their habitual residence?

Back 175

If petitioner stays in same country - yes

If petitioner moves to new country where child is - no. Convention will not intervene.

Front 176

What is the difference between the administrative and judicial remedies set forth by the Convention?

Back 176

Judicial: means bringing an action in the country in which the child is physically present



Administrative: allows a central authority in the country where the child was removed to gather info about the child, secure return, and provide information to parties/court.

Front 177

What is the definition of "habitual residence" of a child?

Back 177

Not the domicile of a parent.

The place where the child actually lives.

Front 178

What is the consequence if a complaining parent agreed to or acquiesced to the child being removed to a new country?

Back 178

The Convention will not consider the removal a "wrongful removal". No intervention.

Front 179

What are the consequences of a "ne exeat" clause in a Hague Convention matter?

Back 179

A ''ne exeat'' clause that prohibits one parent from taking the children out of the country without the other parent's permission does not provide rights of custody to a parent who otherwise possesses only access rights.

A parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live. By contrast, a ne exeat clause serves only to allow a parent with access rights to impose a limitation on the custodial parent's right to expatriate the child.

Front 180

How does the Hague Convention view custodial rights versus access rights?

Back 180

1. A parent possessing only access rights is not entitled to the remedy of return of the child.

2. A parent with access rights may submit an application to make arrangements for organizing or securing the effective exercise of access rights to the Central Authority of the country to which the child has been removed.

Front 181

If a parent is accused of wrongfully removing a child from or retaining a child in another country, what are the four defenses/exceptions that a court could find to rebut returning the child?

Back 181

1. Whether the complaining parent was exercising custody rights at the time of the removal.

2. Whether the return will cause physical or psycholoical harm to the child

3. Whether the complainint parent consented to the removal and
4. Whether the child objects to being returned

Front 182

What is the most important concern of the Hague Convention?

Back 182

dual objectives -
secure the prompt return of children who are wrongfully removed or retained,

-- and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states.

One of the paramount purposes --to restore the statue quo and deter parents from crossing international borders to search for a more sympathetic court.

Front 183

What are the key facts that must be considered by the Hague Convention?

Back 183

1. What was the habitual residence of the child before they were moved to or kept in another country from the one where their custodial parent had custody

Front 184

What are the threshhold questions asked by the Hague Convention

Back 184

1. Was the subject child taken (wrongfully removed) from the country of their habitual residence without consent of both parents?

If yes, convention calls for prompt return of the child to its initial country.

IF not, the analysis looks to the moment after moving the child to the second country

Front 185

What is the purpose of the Hague Convention concept?

Back 185

1, to settle jurisdiction in custody disputes, not custody on the merits

2. to decide which between two competing forums (countries) should use its courts to adjudicate custody in a particular case

Front 186

What did the Hague Convention establish?

Back 186

legal rights and procedures for the return of a child wrongfully removed to,

or retained in, a country other than the child's habitual place of residence.

it applies only to children under age 16

Front 187

How long may a custodial parent remain in the deferred sale home?

Back 187

1. CP remaries
2. facts court originally used changed
3. no more economic feasibility

Rebuttable presumption for termination

Front 188

What language must a deferred home sale order contain?

Back 188

Must state:
duration of the order a

May state:
the legal description and assessor's parcel number of the real property that is subject to the order.

specify the parties' respective responsibilities for the payment of costs of routine maintenance and capital improvements.

Front 189

How would a deferred home order be applied if payor father owned the home as his SP?

Back 189

FC does not distinguish b/t community or sp of either spouse in "family home"

Factor is economic feasibility and need for child's stability. Out parent must be paying support.

Front 190

WHAT ARE THE FACTORS COURT USES TO DETERMINE OF DUKE ORDER APPROPRIATE?

Back 190

First Economic Feasibility and Just

If yes, then impact on child based upon:
1. The length of time the child has resided in the home;

2. The child's placement or grade in school;

3. The accessibility and convenience of the home to the child's school and other mservices or facilities used by and available to the child, including child care;

4. Whether or not the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner such that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child;

5. The emotional detriment to the child associated with a change in residence;

6. The extent to which the location of the home permits the resident parent to continue his or her employment;

7. The financial ability of each parent to obtain suitable housing;

8. The tax consequences to the parents;

9. The economic detriment to the nonresident parent in the event of a deferred sale of home order; and

10. Any other factors the court deems just and equitable.

Front 191

WHAT IS THE PURPOSE OF DUKE ORDER

Back 191

To minimize the impact of dissolution and relocation upon minor children

Front 192

WHAT IS A DEFERRED SALE OF HOME ORDER

Back 192

Duke order from Marr of Duke where ct can defer sale of home and allow custodial parent to stay there w/ mc.

Front 193

What is a Stay Away Order and what are its implications?

Back 193

It is a personal conduct restraint order that prevents one person from having specifically described contact with another person.

Once signed by the judge, a file endorsed copy should be lodged with law enforcement. Could be entered into CLETS even though technially not a CLETS order. Thus, should not agree to non-
Clets order as there is no such thing

Front 194

Re: FC 6321
What 3 things must a person show before the court can issue a "kick out order"?

Back 194

only if the affidavit (or declaration) in support of the application for the order affirmatively shows all of the following:

1. party who stays has right under color of law to possess premises

2. party to be excluded has assaulted or threatens to assault other party or child

3. physical/emotional harm would otherwise result to other party or child of dwelling

Front 195

WHAT MUST OCCUR FOR DVPA TO BE VALID?

Back 195

1. Must state the date of expiration of the order'
2. Must identify the protected person and enjoined person
3. Must be personally served
4. must allow restrained person access to court within
5. Must state on its face that it is effective when made, cops enforce on receipt, any place in CA, if no POS on resrained, cops may serve and advise

Front 196

WHAT IS DVPA

Back 196

Domestic Violence Prevention Act
Section 6220 et seq applies to
1. Disso action
2. UPA action
3. Nullity
4. Legal sep
5. non marital custody acts

Front 197

Re: FC 4073

What must the court take into consideration when deciding whether or not to allow hardship deduction?

Back 197

1. Shall be guided by goals set forth in this section of child support FC 4055

Front 198

RE: FC 4072



If court allows hardship expense deductions, what must court state on record regarding nonguideline support?

Back 198

COURT SHALL

1. state the reasons supporting deduction on record

2. document amount of deductions and underlying facts/circs

3. specify duration

Front 199

RE: FC 4071

What do the deductions for minimim basic living expenses refer to?

Back 199

1. either parent's natural or adopted children

2. obligation to support

3. living with parent

Front 200

Definition of Financial Hardship in FC 4070?

Back 200

Extreme financial hardship
justifiable expenses
circumstances in FC 4071

Front 201

Re: FC 4071

GDS = $2000 per month for 5 children. Payor parent seeks hardship for his two other children from new relationship. Calculate the hardship deduction.

Back 201

Payor has two children, can receive no more than 1/2 of $400 for each of his children or $200 per child, total $400 for deduction.

Front 202

Re: FC 4071

What is the formula for calculating hardship deduction?

Back 202

Maximum hardship = for each child who lives with payor parent, no more than 1/2 the support allocated to each child sub to the order.

For this deduction: total GDS ordered / number of children subject to order

Front 203

Re: FC 4071
What circumstances may constitute evidence of hardship to qualify for hadship deduction?

Back 203

1. Extraordinary health expenses, parent financial responsible,
2. Uninsured catastrophic losses
3. Min basic living expenses of either parent's natural or adopted children (oblig to support - live with parent)

Front 204

Re: FC 4070 What qualifies as a hardship deduction consideration?

Back 204

if a parent is experiencing extreme financial hardship

due to justifiable expenses listed in FC 4071, ct may allow deductions under FC 4059

Front 205

Re: FC 4059
What deductions are permitted to be deducted from a parent's annual gross income for c/s?

Back 205

1. state/fed taxes payable (not just withholding) w/prop filing status

2. FICA

3. Mandatory union dues

4. Health ins prem for parent and children obligated to support; SDI

5. Proof of ct ordered cs/s/s paid; w/o order: cs actually paid but can't be more than guideline (kids not with payor) NO PROOF NO DEDUCTION

6. Job related expenses if allowed by court after consid if necessary

7. Hardship deductions defined by FC 4070-73 and appel law;
a. deduct from income, not c/s
b. equity b/t 2 c/s orders
c.

Front 206

Re: FC 4062
What are "additional child support" add-on authorized by statute?

Back 206

Court shall order:
1. child care costs
2. rzbl uninsured health care exp reimbfor kids

Court may order:
1. educa or special need costs
2. travel expenses for visitation

Front 207

If court deviates from guideline support what may a party request? (4 things)

Back 207

Court must describe the factors used in calculating off guideline support as follows:
1. net monthly disp income of ea parent
2. actual fed income filin status of ea parent
3. deductions from gross income for ea parent
4. approx % of parenting time

Front 208

Re: FC 4056 What must a court state on the record in order to deviate from guideline? (three things)

Back 208

fed law requires:
1. guideline support
2. reasons for different from GDS
3. why consist with BIC

Front 209

Re: FC 4057:
The presumption of guideline formula being correct amount is rebuttable by:

Back 209

1. is a rebuttable presumption affecting burden of proof
2. admissible evid - appl of formula w/b unjust or inapprop in particular case
3. consistent with FC 4053 (policy)
4. preponderance of evid
5. must state rasons in writing or on record
a. stip to diff amt
b. deferred sale of residence (rental value/prop/tax > mort pmt)
c. high earner, exceeds need of kid
d. parent not paying enogh $ per custodial time
e. unjust/inapprop/special circs
(1) different time share for diff kids
(2) subst = share but higher or lower house costs
(3) special med needs $$ for kids
c.
6.

Front 210

WHAT IS THE RESIDENCY TEST FOR QUALIFYING CHILD?

Back 210

1. lived with you more than 1/2 year
excepetions (temp absence, kids born/died dur year, kidnapped children, children of divorced/separated parents)

Front 211

WHAT IS THE AGE TEST FOR QUALIFYING CHILD?

Back 211

1. under 19 at end of year

2. full-time student (5 mo of year)and under 24 at end of year or

3., permanent and total blindness or disability regardless of any age

Front 212

WHO MEETS THE CRITERIA FOR THE RELATIONSHIP TEST TO BE A QUALIFYING CHILD?

Back 212

1. your son, daughter, stepchild, foster child, adopted child, or descendant of any of them
2. your brother, sister, half brother, half sister, step brother/sister, or a descendant of any of them

Front 213

WHAT ARE THE FIVE TESTS THAT MUST BE MET FOR A QUALIFYING CHILD?

Back 213

1. relationship
2. age
3. residency
4. support
5. special test for qc of more than one person

Front 214

TESTS TO BE QUALIFYING RELATIVE

Back 214

1. cannot be your qualifying chyild or the qualifyihg child of any other taxpayer
2. must be related to you (per rules) under Relatives who do not have to live with your or
3. must live w/you all year as a memnber of your household (your relationship not violate local law)
4.person gross income < $3500 for year
4. you provide > 1/2 of person's total support for year

Front 215

TESTS TO BE A QUALIFYING CHILD

R
A
R
S
E

Back 215

1. son, daughter, stepchild foster child, brother, sister, half brother, half sister, step brother, step sister a descendant of any of them.

2. under 19 at end of year or under 24 and full-time student or any age if permanently and totally disabled\

3. live with you for more than 1/2 yr

4. not provided more than 50% of their own support for year

5. If child meets rules to be qc to more than one person, you must be person entitled to claim

Front 216

What is a qualifying relative for you to file as H of Household?

Back 216

1. qualifying relative (brother, sister, mother, grandparent, meet certain tests
2. lives w/you > 1/2 yr
3. you can claim exemption for them
4. no one else claims them for qualifying relative

Front 217

If person living in your home is:
1. Qualifying child, grandchild etc and single
2. qual relative your mother or father and you can claim exemption for them
3. If no exemption allowed for them

Back 217

Then that person is
1. a qualifying person (19, or 24)
2. they are qualified persons
3. They are not qualified persons

Front 218

WHAT IS TIME LIMIT FOR AMENDING FROM SINGLE TO JT RETURN?

Back 218

3 years from due date of separate returns - does not include extension time

Front 219

RULES FOR MFS (PENALTIES)

Back 219

1. higher tax rate
2. 1/2 of alt min tax (opposed to jt ret)
3. cannot take credit for child and dependent care expenses in most cases
4. cannot taike earned income credit
5. cannot take edu credits
6. cannot exclude int income for qual u.s. savings bonds used for higher edu exp
7. you have to incluede in income more (up to 85%) of any social security benefits rec'd
8. cannot roll over trad IRA to Roth IRA
9. Reduced credits and deductions: child tax creditr, retirements savings contrib credit, itemized deductions, deductions for personal exemp
10. 1/2 of capital gains loss
11. must itemize if sp itemizes on mfs

Front 220

MARRIED FILING SEPARATE STATUS

Back 220

1. married
2. no agmt to jt return
3. file MFS unless qualify for HOH status
4. can claim exemption for spouse if he/she had no income and not dep of someone else
5. spouse cannot file return

Front 221

WHEN IS A DIVORCED PERSON RESPONSIBLE FOR THEIR SPOUSES TAXES?

Back 221

May have joint and individual responsibility for taxes, int, and penalties on jt return filed before disso.

Front 222

MARRIED FILING JOINT STATUS

Back 222

1. married
2. agree to file jt return
3. report combined income, report combined deductible expenses
4. use same accounting period, may use diff accounting methods
5. jt resp for taxes, interest, penalty

Front 223

DEFINITION OF SINGLE STATUS FOR TAXES

Back 223

1. last day of year single, unmarried, legally separated from sp under divorce decree

Front 224

DEFINITION OF MARRIED STATUS FOR TAXES

Back 224

1. Married and living together as H and W
2. Living together in common law marr that is recog'd in the state you now live or where common law marr began
3. Married and living apart but not legally separated under a decree of divorce or separate maintenance
4. Separated under interlocutory disso (no longer in CA)
5. Even if spouse died during the year, considered marr for whole year for filing

Front 225

WHAT IS HEAD OF HOUSEHOLD TAX DESIGNATION?

Back 225

1. Unmarried on last dayy of year
2. paid more than 1/2 cost of keeping up home for the year
3. a qualifying person lived w/you in the home for more than 1/2 year as their main home (unless qual person is parent, no need to live w/you)
3a. Must be able to claim exemption for the qual child
4. spouse cannot live in home during last 6 mo of tax year

Front 226

Consequence of anullment of marriage when having filed jt returns?

Back 226

IRS considers you unmarried. You must file amended returns for every jt return filed.

Front 227

What is the definition of unmarried person?

Back 227

Unmarried or legally separated (under a divorce or separate maintenance decree) on the last day of the taxable year, 12/31

Front 228

For federal tax purposes what is the definition of marriage?

Back 228

Legal union between husband and wife

Front 229

What are the five filing statuses?

Back 229

1. Single

2. MFJ

3. JFS

4. HOH

5. Qualifying Widower) with dependent child

Front 230

DEFINITION OF EARNED INCOME

Back 230

wages
tips
professional fees
taxable scholarships and fellowship grants

Front 231

DEFINITION OF UNEARNED INCOME

Back 231

axable interest
ordinary dividends
capital gain distributions
unemploymente compensation
taxable social security benefits
pensions
annuities
distributions of unearned income from a trust

Front 232

DEFINITION OF GROSS INCOME

Back 232

all income you receive in the form of money, goods, property, and services that is not exempt from tax. 1/2 of your spouse's income is your gross income.

Unearned plus earned income = gross income

Front 233

HOW DOES THE IRS CONSIDER TAXES IN REGARDS TO COMMUNITY PROP LAW OF CALIF?

Back 233

Federal law follows state law of community property recognition

Front 234

WHAT IS THE THEORY OF THE VAN CAMP RULE?

Back 234

Under the Van Camp rule, an amount determined to be the reasonable value of the owner-spouse's services is treated as community property, and the balance of the business income is separate property.

Front 235

WHAT IS THE THEORY OF PEREIRA?

Back 235

a fair return on the separate property investment is treated as separate property, and the balance of the business income is treated as community property

Front 236

HOW DOES THE IRS DEFINE COMMUNITY/SEPARATE PROPERTY?

Back 236

The presumption under California law that commingled property is to be treated as community property is generally followed for tax purposes.

However, this presumption does not, by itself, overcome the presumption of correctness of an I.R.S. deficiency determination

Front 237

Slow Death Order

Back 237

Ordering a paying parent to pay c/s or s/s when CP stays in family residence and there is no rzbl possibility that parent will be able to pay mortgage and support

Front 238

Substantive Step-Down or Step-Up in Amount

Back 238

may be used as either a step-down or step-up spousal support order; that is, payment of a specified amount for a fixed period and specified lesser or greater amounts thereafter for an additional period or periods.

Such an order must address the question of jurisdiction at the end of the last term specified in the order. Jurisdiction may either be terminated without further recourse on that date or retained indefinitely after the date passes, or terminated on that date unless the supported spouse moves to extend duration before that date

Front 239

TERMNINABLE INTEREST RULE

Back 239

A rule abolished by CC 4800.8 which terminated pension benefits to a surviving spouse

Front 240

No entitlement to Innocent Spouse Relief if:

Back 240

. You are not entitled to innocent spouse relief for any tax year to which the following situations apply.
1. In a final decision dated after July 22, 1998, a court considered whether to grant you relief from joint liability and decided not to do so.
2. In a final decision dated after July 22, 1998, a court did not consider whether to grant you relief from joint liability, but you meaningfully participated in the proceeding and could have asked for relief.
3. You entered into an offer in compromise with the IRS.
4. You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief.

Front 241

What is an injured spouse claim for tax purposes?

Back 241

You are an "injured spouse" if you file a joint return and all or part of your share of the refund was, or will be, applied against the separate past-due Federal tax, state tax, child support, or Federal non-tax debt (such as a student loan) of your spouse with whom you filed the joint return. If you are an injured spouse, you may be entitled to recoup your share of the refund.

Front 242

Requirement for "equitable relief"

Back 242

if you do not qualify for innocent spouse relief or relief by separation of liability. Equitable relief is available for additional tax owed because of a reporting error (an understatement) or you properly reported the tax on your return, but you did not pay it (an underpayment). To qualify for equitable relief you must establish, under all the facts and circumstances, that it would be unfair to hold you liable for the tax on your joint return. In addition, you must meet other requirements listed in Publication 971, Innocent Spouse Relief.

Front 243

Requirements for "relief by separation of liability"

Back 243

you must have filed a joint return and must meet one of the following requirements at the time you request relief:
1. You are divorced or legally separated from the spouse with whom you filed the joint return for which you are requesting relief; or
2. You are widowed; or
3. You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month period ending on the date you file Form 8857 (PDF), Request for Innocent Spouse Relief.

If you have actual knowledge of the item that gave rise to the understatement of tax, you may not qualify for relief by separation of liability.

Front 244

Requirements for filing for Innocent Spouse Relief?

Back 244

You must request relief no later than 2 years after the date the IRS first attempted to collect the tax from you, regardless of the type of relief you are seeking.
You must meet all of the following conditions to qualify for "innocent spouse relief":


1. You filed a joint return, which has an understatement of tax, directly related to your spouse's erroneous items. Any income omitted from the joint return is an erroneous item. Deductions, credits, and property bases are erroneous items if they are incorrectly reported on the joint return.
2. You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax.
3. Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax.

Front 245

Equitable Relief

Back 245

liability relief for something not reported properly on a joint return. You may also qualify for equitable relief if the correct amount of tax was reported on your joint return but the tax remains unpaid

Front 246

Relief by Separation of Liability

Back 246

provides for the allocation of additional tax owed between you and your spouse or former spouse because an item was not reported properly on a joint return. The tax allocated to you is the amount you are responsible for.

Front 247

Innocent Spouse Relief

Back 247

for additional tax you owe because your spouse or former spouse failed to report income, reported income improperly or claimed improper deductions or credits.

Front 248

What is Joint and Several Liability on tax returns?

Back 248

Joint and several liability means that each taxpayer is legally responsible for the entire liability. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. One spouse may be held responsible for all the tax due even if the other spouse earned all the income or claimed improper deductions or credits. In some cases, a spouse can get relief from joint and several liability.

Front 249

Federal preemption

Back 249

SP:

Armed Forces Life Insurance

Disability benefits

Social Security

U.S. Savings Bonds

CP:

Foreign service pension

Military retirement benefits

Civil service pension

Front 250

Property insurance proceeds

Back 250

Same character as the property they replaced.

Front 251

Setting aside judgment / MSA

Back 251

Within 6 months for mistake, inadvertence, surprise, neglect.

After 6 months only for extrinsic fraud.

Front 252

Property acquisition outside of marriage

Back 252

No CL marriage. K law applies, maybe partnership, joint venture, quantum meruit.

Putative spouse: Good faith belief that she was lawfully married. Property characterized as quasi-marital property.

Front 253

Quasi-CP

Back 253

Property acquired while couple was domiciled in a common law state, which would have been classified as CP had it been acquired under the same circumstances in CA.

Treated the same as CP for divorce: Real property in another state (no jurisdiction): Award non-titled spouse other assets of same value; or if court has personal jurisdiction over titled spouse, court can order that spouse to sign the deed. Same result for out-of-state land purchased with CP.

At death, personal property treated as CP, but foreign real property distributed per law of the situs (i.e. SP), but non-titled spouse can get a resulting trust or constructive trust. Non-titled spouse has no power of disposition over foreign real property that is quasi-CP and CP.

Front 254

Equal management and control

Back 254

Each spouse has equal management and control of CP, and either spouse acting alone may buy, sell, spend or encumber all CP.

Exceptions:

* CP business interest substantially run by one spouse. Spouse can act alone, but must give written notice to other spouse before sale or encumbrance of all or substantially al personal property used in business. Innocent spouse has remedy against managing spouse.

* Personal belongings: Voidable by other spouse at any time.

* Conveyances of CP real property: Joinder of both spouses required. Innocent spouse can set aside the deed and void the transaction, even against BFP. 1 year SOL from date of conveyance. Innocent spouse has burden of proof.

* Neither spouse can encumber "my ½ interest" in CP real property, except for a lien to family law attorney in divorce action.

Front 255

Tort and K liability

Back 255

If tort was between spouses, recovery is SP.

If tort by TP, recovery is CP but upon divorce the award goes to injured spouse, unless interest of justice requires otherwise (no other assets).

Tortfeasor-spouse liability: If act to benefit community, first CP then tortfeasor's SP. If not to benefit of community, first tortfeasor's SP then CP.

Judgment creditor can't reach innocent spouse's SP, except for K's for necessaries (subject to reimbursement if CP funds available).

CP can even be reached for pre-marital debt, except earnings of nondebtor spouse cannot be reached if held in separate account, uncommingled, and debtor spouse has no right of withdrawal.

After divorce, creditor can't reach CP awarded to nondebtor spouse, unless that spouse was assigned the debt by the court.

Front 256

Education

Back 256

Not property, but entitled to reimbursement of half of contributions if education enhanced earning capacity.

Defenses: Community already substantially benefited (10 yrs); other spouse received CP-funded education; or education was obtained by spouse seeking spousal support (reduced need).

School loans are assigned to party who encurred them.

Front 257

Goodwill of a professional practice

Back 257

Valued by expert witness; or

capitalization of excess earnings attributed to good will (net annual return,
minus value of services,

minus return on capital;

multiplied by number of years).

Divide by 2 to determine spouse's CP interest.



Not capped by buy-out agreement.

Front 258

How is the value of community interest in Stock options calculated?

Back 258

Stock options awarded during marriage are CP.



Time formula: Months from date of award to date of separation / Months from date of award to date of exercise.

Front 259

What are disability payments in terms of property characterization?

Back 259

Treated as wage replacement - characterized at time received.



Same for worker's comp and severance pay.



Spouse's election to take disability payments in lieu of retirement benefit doesn't avoid spouse's right to the retirement benefits.

Front 260

What are Pension benefits, what portion in general belongs to the community and how is that determined?

How are the benefits paid out?

Back 260

Employee retirement benefits accumulated during marriage are CP.



Time formula: # years employed while married / total years employed.



If spouse is still employed, judge will issue a "when and if received" decree. Other approach is to cash out wife with assets of equal value.



If spouse can retire, other spouse has right to receive her ½ of the pension, and spouse's desire to continue working past retirement cannot defeat spouse's right to receive pension.



Wife's interest in the QDRO is not devisable.

Front 261

Which theory should a court use to calculate the increase in value of separate property business mannaged by the community?

Back 261

Discuss both theories, use the one that results in substantial justice.



VanCamp: Valuable Company - use when SP capital investment was primary factor in business' growth. Value the Community labor, rest is SP. Start with value of spouse's services at market rate, minus family expenses paid from CP, equals CP value; rest is SP.



Pereira: Personal skills/effort. Add interest to SP investment; remainder is CP.

Front 262

Explain the three formulas for tracing separate funds in commingled bank accounts

E
D
F

Back 262

Recapitulation accounting not allowed (total expenses exceeded total CP income).



Burden of proof on SP proponent to show that each asset was acquired with SP funds.



1. Exhaustion method: All CP was gone, any subsequent purchase is from SP.



2. Direct tracing: Quick-in, quick-out. Must have sufficient separate funds available, and intent to use SP and not CP to buy asset.



3. Family expense presumption: Expenditures for family expenses were made with CP, even if SP was available, unless agreement exists.

Front 263

Life insurance

Back 263

Whole: CP in proportion to payments made from CP.

Term: Determined by last payment.

Front 264

Mortgage or installment purchase paid partly from SP and CP

Back 264

SP house, mortgage paid party with CP: The equity is CP in proportion to amount of principal paid (buy-in rule)

Front 265

Mortgage or installment purchase paid partly from SP and CP

Back 265

Only applies when there is a title document (real estate, stock) - if no title, use direct tracing.

Before 1980, tracing was allowed to establish character.

After 1980, Lucas said that taking title in joint & equal form made any SP contributed as a gift, absent proof of intent to keep SP separate.

For purposes of death, joint title is presumptively CP. JTWROS is presumptively JT. At death, surviving spouse would prefer CP rather than JT for 100% stepped-up basis; but CP allows decedent to dispose of ½ CP, JT does not.

For purposes of divorce, after 1/1984, property acquired during marriage in joint and equal form is presumptively CP, and can be rebutted only by express statement in deed that property is SP, or written agreement that property is SP. Spouse who made post-1984 SP contribution to CP for Downpayment, Improvements or Principal payments on mortgage can get reimbursement, capped at net value of property

Front 266

Taking title in joint and equal form

Back 266

Only applies when there is a title document (real estate, stock) - if no title, use direct tracing.

Before 1980, tracing was allowed to establish character.

After 1980, Lucas said that taking title in joint & equal form made any SP contributed as a gift, absent proof of intent to keep SP separate.

For purposes of death, joint title is presumptively CP. JTWROS is presumptively JT. At death, surviving spouse would prefer CP rather than JT for 100% stepped-up basis; but CP allows decedent to dispose of ½ CP, JT does not.

For purposes of divorce, after 1/1984, property acquired during marriage in joint and equal form is presumptively CP, and can be rebutted only by express statement in deed that property is SP, or written agreement that property is SP. Spouse who made post-1984 SP contribution to CP for Downpayment, Improvements or Principal payments on mortgage can get reimbursement, capped at net value of property.

Front 267

Married Woman's Special Presumption

Back 267

Applies to property (real and personal) acquired before 1975.

When CP is used to take written title in married woman's name before 1975, property presumptively wife's SP. Rebuttable between the parties (showing intent of other purpose), but irrebutable against BFP's.

Doesn't apply if title taken as "Mr & Mrs name name", "name name, Husband and Wife", or J/T. If H is on title but not as these exceptions (i.e. title is in T/C), W owns ¾ (her SP plus ½ of CP), H owns ¼.

Front 268

Transmutation by postmarital agreement

Back 268

No consideration needed.

Oral transmutation ok before '85, required in writing after '85, signed by spouse whose interests is adversely affected, and must expressly state that a change in ownership is being made.

Exceptions: Gifts of tangible property (not investments/cash) of a personal nature from one spouse to another, as long as not substantial in value.

A will is not satisfactory as a writing when used as evidence at divorce.

Front 269

Transmutation by premarital agreement requires what?

Back 269

No consideration needed. But requires writing, and signed by both parties. Exceptions to SOF:



* Oral agreement is fully performed; or



* Reliance on oral promise to change will, or not to change will.



Parties can agree on anything they want, but cannot limit obligation to furnish child support or spousal support because against public policy.



Defenses:



* Not signed voluntarily



* Unconscionable when made, no fair disclosure of assets, and right to disclosure not waived in writing and no independent knowledge of assets.

Front 270

What governs assets acquired on credit during marriage

Back 270

When title hasn't been taken in joint and equal form:

Funds borrowed during marriage and goods purchased on credit are presumptively CP. But classified according to primary intent of lender - if the lender was primarily looking to SP in satisfaction of the debt, then the asset is SP.

If CP cash is contributed (i.e. mortgage payment), then the asset is proportionally CP (buy-in).

Front 271

Testamentary power over CP

Back 271

Each spouse has the power of testamentary disposition over all of his SP, and ½ CP. If intestate, all CP goes to surviving spouse, and between 1/3 to 100% of SP depending on how many survivors there are.

Widow's election is required if the will devises CP to a TP, and gives spouse the residuary. Surviving spouse can either take residuary clause (relinquishing gifts), or elect against the will and take the gift.

Front 272

CP life insurance policy naming TP as beneficiary

Back 272

Same rule applies if decedent named a TP on a CP life insurance policy. Surviving spouse can recover ½ interest from beneficiary or estate.

Front 273

What are spouse's options when other spouse makes a lifetime gift of CP?

Back 273

* Set aside gift (transfer for less than FMV) in entirety because neither spouse can make a gift of CP without other spouse's written consent.

* Or, on divorce, spouse can take offsetting CP assets to recover ½ value.

If spouse doesn't learn about gift until after other spouse dies, spouse can set aside ½ of the gift, either from the donee

Front 274

Statutory exceptions to equal division on divorce

Back 274

* One spouse misappropriates CP

* Student loans

* Tort liability not based on activity for benefit of community

* PI award is given to injured spouse (unless interests of justice require otherwise)

* Community liabilities exceed assets: Relative ability of spouses to pay debt considered (to protect creditors).

Front 275

How is CP handled on divorce?

Back 275

All CP must be divided 50/50, unless parties have agreed to a property settlement.

Disparity in earning power can only be considered for spousal support.

If economic circumstances warrant, certain assets can be awarded wholly to one spouse, if each spouse ends up with 50% of all CP in terms of total economic value. Example: Family residence awarded to spouse with custody of minor children; closely held corporation; offsetting pension with other assets.

Front 276

How are earnings classified?

Back 276

Earnings are classified on the basis of when they were earned (effort/labor during marriage), not when they were received.

Front 277

When does economic community begin and end?

Back 277

Begins: Marriage

Ends: Permanent physical separation with intent not to resume marital relations, communicated to other spouse. Not a trial separation, even if trial separation turns in to permanent separation (because intent lacking during trial separation).

Front 278

Separate property

Back 278

* Property owned by either spouse before marriage

* Property acquired during marriage by gift, will, or inheritance

* Property acquired during marriage by expenditure of separate funds (tracing)

* Rents, issues and profits from SP

Front 279

Community property

Back 279

Property, other than SP, acquired by either spouse during valid marriage.

Presumption: All assets acquired during marraiage are CP, absent showing of transmutation. Burden of proof on party contending SP.

Front 280

IN RICHMOND ORDER, WHAT FACTS COULD TRIGGER CHANGE IN CT'S ORDER?

Back 280

Failure to achieve self-sufficiency by expected date can cause extension of support. Jxn only reserved until term date

Front 281

RICHMOND ORDER

Back 281

Substantive step-down s/s order:
1. s/s for fixed period
2. evid that spouse w/b self-supporting by end of period
3. Ct retains jxn to modify amt and term if
4. spouse acts b/4 term date
5. Shifts burden to supported spouse to show cause to extend order

Front 282

DUKE ORDER

Back 282

Deffered sale of home order - temporarily delays sale of home & grants excl use/poss to in spouse. May have effect of lowering NCP's c/s order

Front 283

How is language regarding s/s presumed in MSA?

Back 283

Presumed to favor retaining jxn unless specifically expressed otherwise.

Front 284

VOMACKA

Back 284

LANGUAGE SUFFICIENT TO TERMINATE S/S JXN

Front 285

BROWN FORMULA

Back 285

Apportions retirement benefits (not same as Time Rule)
1. Pension rts accrued durr marr whether or not vested;
2. In-kind division may be accompl by ct retaining jxn & later implementing division as pension becomes payable

Front 286

MSA

Back 286

Refers to an agreement made between spouses in contemplation of their indefinite sepaeration, disso, or LS

Front 287

What years are not included in the Time Rule calculation?

Back 287

Any extra years that were not necessary to earn benefits (enhancements that have no affect on retirement) - dilutes comm prop

Front 288

When is Time Rule not appropriate means for dividing pensions?

Back 288

Where there is a point system (depending on nature & frequency of service) used rather than years of service

Front 289

TIME RULE

Back 289

Dividing Pension benefits

Employee/s length of service durr marr and before sep divided by employee's total service
Divided by two.

Front 290

What were the issues in the Marvin case?

Back 290

Court looked to conduct to see implied agreement, some lawful expectation; not same as meretricious relations

Front 291

What is the purpose of a Marvin Action?

Back 291

Allows non marital partners to use theories of implied Kr and equitable remedies to establ prop rts

Front 292

What is a MARVIN AGREEMENT/ACTION

Back 292

Non marital partner agreement remedy:

1. action on implied Kr

2. action to enforce an implied partnership/ventuare

3. action to enforce implied agmt to own prop jtly

4. action in quantum meruit for rzbl value of services

5. action seeking impo of consx/resulting trust or equitable lien

Front 293

How must spouse establish st ct has pers jxn in FUSFSPA?

Back 293

St Ct must have pers jxn over member
1) residence other than by military assign
2) domicile, or
3) consent to jxn

Front 294

How far back does FUSFSPA apply?

Back 294

Cannot apply FUSFSPA to a disso pre 6/25/1981 and
decree must not have reserv' jxn to treat memb pay as CP

Front 295

May a service member delay division of his retirement pay and enlist in "active duty??

Back 295

Member cannot delay division of CP or dilute Comm int by remaining in reserve status after qualifying period of active duty met

Front 296

What are the limitations of FUSFSPA

Back 296

1. Must use military defined division 1. Must use military defined division rules
2. Military retired pay incl "retainer pay"
3. Retainer pay divisible in st ct.

Front 297

Explain theory of FUSFSPA regarding dissolution and division of cp property

Back 297

Subj to limitations of 10 USC 1408, ct may treat disposable retired pay (to service memb) for pay periods > 6/25/1981 either as sp of member or cp per state law

Front 298

What does FUSFSPA stand for?

Back 298

Federal Uniformed Services Former Spouses' Protection Act

Front 299

COHABITATION

Back 299

More than living together and engaging intimate relations -
1. supported spouse and comp combine financial resources in a way resembling couple

Front 300

What is Judicial Allocation of Dependency Exemption?

Back 300

CASCT held Tr Ct may order custodial parent to execute 8332 to release dependency exempt to obtain max tax savings to parent earning more $; Makes more $ avail for cs

Front 301

DEPENDENCY EXEMPTION

Back 301

1. Taxpayer entitled to DE for each individual who is qualifying child or relative
a. qual child:
b. child, sibling, stepsibling of taxpayer or descendant of a child, sibling, steps of taxpayer
2. QC m/h same principal res as taxpayer for >50% of tax year
3. QC must not provide for >50% his/her support
4. QC is usually child, step/adopted/foster child of taxpayer
5. Student = fulltime 5 mo/year
6. Qualifying relative QR m/be ch of taxpayer not dependent of any other taxpayer
7. grandparents, parents, aunt/uncle, stepparents, house members
8. QR - no reqmt for common abode
9. QR-no taxable income > exemption amt
10. TP provides >50% support for QR for taxable year

Front 302

EARNING CAPACITY
(re spousal support)
= 5 factors

Back 302

1. Marketable skills of supported sp
2. Job market for those skills
3. Time/expense/edu to obtain skills
4. Retraining
5. Impairment b/c domestic duties

Front 303

What cases regarding the change of circumstances doctrine estblished the historical perspective of the courts?

Back 303

1. 1974 B-G case
2. 1979 Carney
3. 1986 Burchard v. Garay
4. 1996 Burgess

Pick a parent, stay with the parent once determination made

Front 304

Explain briefly what each case stood for:
1. 1974 B-G case
2. 1979 Carney
3. 1986 Burchard v. Garay
4. 1996 Burgess

Back 304

1. non parent case where psychological parent was awarded c/c
2. Carney: cannot use disability of parent against them for c/c; (dictum - regardless of how initial custody is established, don't change w/o strong showing that demands change
3. Burchard: cannot use wealth to consider BIC; Correct std was BIC, not COC b/c no prev order; But still must consider stability factor.
4. Burgess: consistent with others

Front 305

What does the Changed Circumstances Rule foster?

Back 305

Judicial economy and protecting stable custody arrangements

Front 306

When does Changed Circumstances Rule apply?

Back 306

When custody is ordered by judicial decree and when parties stipulate to make it a final order with words that express an intention to make it a final order.

Front 307

An order of joint legal custody shall not be construed to permit an action that is ------

Back 307

inconsistent with the physical custody order unless the action is expressly authorized by the court. Cal. Fam. Code § 3083.

Front 308

What are the specific factors that the court must consider as part of the Best Interests of the child in granting custody to parents?

Back 308

the trial court must consider in determining the best interest of the child in a proceeding to determine custody and visitation:
(a) The health, safety, and welfare of the child;
(b) Any history of abuse by one parent against the child or against the other parent;
(c) The nature and amount of contact with both parents

Front 309

Quote from Burgess:

The paramount need for continuity and stability in custody arrangements and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker - - - -

Back 309

weigh heavily in favor of maintaining ongoing custody arrangements.

Front 310

According to Burgess:

It has long been established that, under § 7501, the general rule is that - - -

Back 310

a parent having child custody is entitled to change residence unless the move is detrimental to the child. In absence of a showing that the removal of the child's place of residence is inconsistent with the child's welfare, such removal per se does not warrant a change of custody.

Front 311

According to Burgess:

Once the trial court determines that custodial parent did not relocate in order to frustrate the other parent's contact with the minor children, but did so for sound "good faith" reasons - - -

Back 311

it was not required to inquire further into the wisdom of her inherently subjective decisionmaking.

Front 312

Conduct by a custodial parent designed to frustrate visitation and communication may be grounds for changing custody. A custodial parent's attempt to frustrate the court's order has a bearing upon

Back 312

the fitness of that parent. Even if the custodial parent is otherwise fit, such bad faith conduct may be relevant to a determination of what permanent custody arrangement is in the minor children's best interest. Cal. Fam. Code § 3040(a)(1)

Front 313

In Burgess, what did the CASCT state about our society and mobility?

Back 313

We are an increasing mobile society, people changing jobs, careers--because of the ordinary needs for both parents after a marital dissolution to secure or retain employment, pursue educational or career opportunities, or reside in the same location as a new spouse or other family or friends, it is unrealistic to assume that divorced parents will permanently remain in the same location after dissolution or to exert pressure on them to do so.

It would also undermine the interest in minimizing costly litigation over custody and require the trial courts to "micromanage" family decisionmaking by second-guessing reasons for everyday decisions about career and family.

Front 314

How should the trial court factor in a move and its impact upon the non-moving parent's relationship with the children?

Back 314

A trial court may consider the extent --as to the impairment of the relationship by relocating. In so doing, however, it is not restricted to any particular formula for contact or visitation; nor is it required to make a custody determination that preserves the predissolution status quo

Front 315

What are the three types of final custody orders possible? (re Montenegro issue)

Back 315

1. Stip with finality expressed

2. Exit order from JC
3. Contested hearing decision

Front 316

What statutory law should be considered

Back 316

1. FC 3020 Freq and cont contact
2. FC 3087 Jt Custody
3. FC 3022 pwr of ct to make any order of custody necessary
4. FC 3024 notice to nonmoving parent
5. FC 7501 presumptive rt of cp to move subj to ct to retain
6. ATRO's no moving kids out of state
Frustration of access/visitation or violation of FC 3020
7. FC 3011 HEW:nature and amt of contact b/t parent and kids, DV history, Sub abuse

Front 317

What is the net fall out of Montenegro re changing custody of child?

Back 317

1. Labels are important (sole custody - Burgess)
2. M/b clear affirm intent expressed in finality of order - If not, no COC req'd to change custody, BI hearing
3. Retro of orders before Montenegro
4. Downstream effect on moveaways in future

Front 318

What were the three significant holdings in Burchard v. Garay?

Back 318

1. Cannot consider finances/working parent
2. No COC req'd unless previous order exists
3. BIC hearing, movant bears burden to show why chg needed (must overcome the stability factor)

Front 319

What are the factors a court cannot use to change custody of a child?

Back 319

1. Sudden disability of a parent w/o proof that it affects parenting (Carney)
2. Returning children to prev parent stability (Lloyd)
3. Whether a parent can stay home w/child versus work (Lloyd)
4. Finances (Burchard)
5. Any economic disparity between parties, b/c one party is poor (Burchard)
6. Parent's recreational activities w/child unless conduct irresponsible, interferes w/basic decisions of CP, danger of safety to wellbeing of child.

Front 320

What child custody case supports the position that a parent can object to the other parent's extended family watching child if complaining parent is available?

Back 320

Lloyd - grandparents watched child. Court said Mom could watch child while dad was working but this did not equal COC, was mere adjustment to visitation

Front 321

What does the Rosson case stand for?

Back 321

Rosson was the footnote 12 description in Burgess that stated if the parties share jt custody with both parents having high contact in an existing familial arrangement in the same community = BIC standard, de novo review

Front 322

What is the legal standard of reviewing a trial court's decision regarding custody and moveaway matters?f

Back 322

Deferential abuse of discretion: Could the trial court have rzbly concluded the order advanced the BIC? Reviewing ct req'd to uphold ruliong if it correct on any basis, regardless of whether such basis was actually invoked.

Front 323

What is a footnote 12 case for custody?

Back 323

According to Burgess referring to Rosson, truly shared parenting of about 35%. Many courts agree it is from about 28% - 35% minimum

Front 324

What is the law of move away in CA?

Back 324

Burgess application as interpreted by La Musga in conjunction with Montenegro.

Front 325

What are the LaMusga factors for the court to consider?

Back 325

1. Stability and continuity in child's present cust arrangment
2. Distance of move
3. Age of children
4. Kid relationship with parents
5. Parent relations
6. Wishes of child
7. Reasons for move
8. Current time share

ALSO:
1. Economic stability of child's home in proposed location
2. Relations w/extended family
3. Duration and importance of child's base in present community
4. Impact of parental conflict and stress on children
5. Primary attachment to one parent
6. Kid's interest in stable custodial and emotional tie with primary caregiver
7. Impact on child of radical shift of primary parent
8. Degree of involvment of parent in kid's life
9. Ability to travel to kid's new home
10. Impact of splitting siblings

Front 326

What are the rights of the remaining parent when presented with a request to move?

Back 326

1. Notice of the anticipated move
2. Meaningful mediation
3. Opportunity for full evaluation
4. Live testimony on subject (witness evidence as to BIC) but witness has been rejected unless fn12 case.

Front 327

What did the La Musga specifically find in its interpretation of Burgess?

Back 327

1. CP does not need to prove need to move (Burges)
2. NCP does not have to prove chg of custody is essential to prevent detriment to kids b/c of planned move
3. NCP must prove proposed relocation would likely cause detriment to kids, req reevaluation of custody
-likely impact of move on kids and relationship with stay behind parent
-consider this with all other factors
4. If #3 met, ct must determine if Chg of Cust = BIC

Front 328

What must a nonmoving parent establish in order to prevent the children from being relocated?

Back 328

1. The move will cause a detriment to the children significant enough that re-evaluation of the custody is warranged.
2. Ct must weigh relocation factors, relationship factors to determine if detriment is sufficient to trigger chg of custody

Front 329

What are Condon custody orders?

Back 329

Condon orders ensure that the international chg in custody will not break the child/nonmoving parent bond:
1. Post bond
2. Register CA order in other country
3. CA JXN consent
4. No move until all conditions met
5. Consider cultural conditions etc adversely impact on kid
6. Consider cost to visit/poor parent problem
7. Consider Jxnl problems of enforcing CA order in other country.

Front 330

Does Burgess apply to international move away cases?

Back 330

Yes, but not in the classic sense. It is not a "classic Burgess." Burgess will likely allow move but other conditions will be imposed on moving parent as well as three factors not present in Burgess case:
1. Culture
2. Jxn
3. Distance (ability to visit)

Front 331

How has the Best Interests Paradigm shifted?

Back 331

Was: BI = preserve continuity of relationship with primary parent.

Is: BI = Individualized and multivariable; includes kid relationships w/ eac parent

Front 332

How has the changed circumstance doctrine changed regarding custody?

Back 332

Old: Expanded to bar consideration of BI unless dramatic change in circs;



New: Chg of Circs is subordinated to BI, threshold test;

Relocation is Chg of Circs;

Relocation + prelim showing of detriment = chg of circs

Front 333

How has FC 7501 traditional presumption of a primary parent's right to move been changed by La Musga move away analysis?

Back 333

Old analysis: objecting parent had to show detriment (unrelated to the move/distance/reduction in or frequence/duration of contact) of the other parent rendered change of custody essential.

New: Prelim showing of detriment including natural consequences of move triggers best interest hearing;

Conditional orders w/in broad discretion of ct.

Front 334

What is the traditional and newer definitions of the primary custodial parent?

Back 334

Old: Count the days, bright line distinction b/t joint and sole custody.

New: Significant periods of physical custody per FC 3400

Front 335

How did the pre-La Musga court opinions consider the real world impact of the move upon the child/parent?

Back 335

Old: Did not
New, does consider

Front 336

What is the trigger for invoking a changed circumstances doctrine in general?

Back 336

Montenegro: Prior order contains unequivocal indicia of intended finality.

Post Montenegro: Adjudication or prior order contains unequivocal indicia of intended finality

Front 337

What part did the role of the facts in a move away play pre and post La Musga?

Back 337

Pre: Pretended jt custody family was primary cust family - ignored actual schedule in favor of labels; no custody evaluation

Post: Detailed summary of findings, custody evaluation

Front 338

Pre and Post La Musga, what was the role of social science in affecting higher court review orders on Move aways?

Back 338

Pre: Primary parent theory by Wallerstein/Bruch; No briefs submitted from other side to rebut this doctrine

Post: Ct adopts views advocated by Warshak and Shear briefs, allows Stahl reports that shaped trial ct decision to illustrate focus on individual cases rather than bright line tests

Front 339

What are some possible interventions for alienation of a parent?

Back 339

1. limit increments of custody with problematic parent
2. Teach parent with problem about insight, understanding of their role
3. Develop recognition of multiple alternative responses rather than black and white thinking
4. Don't allow children to act as spies or reporters, take them out of the middle
5. Don't report info to children
6. Individualized therapy with children so they they are not blended into the adult's issues (Mom and Dad are taking "us" to court again).
7. Reunification with one-way mirror desensitization

Front 340

According to Kelly and Lamb (2002) when do children form meaningful attachments to both parents with preference to a primary parent?

Back 340

1. By 6 - 7 months

Front 341

According to Kelly and Lamb (2002), When does the preferance for a primary parent diminish?

Back 341

By 18 months

Front 342

Is there any hard and fast rule about whether overnight visits are recommended for young children?

Back 342

Extended separation from primary parent 6-7 months not advisable. Extended sep from either parent not adviseable. Frequent contact more important than amt of time. No evid overnights are per se harmful. Depends upon facts of case/relationship

Front 343

Do psychotherapists have a duty to warn others if their client's make a credible threat to harm another person?

Back 343

Yes, duty to warn, actually expanded to the family members communicating the threat of the patient (per Goldstein)

Front 344

What are some of the potential psychological best-interest concepts that deserve consideration in a CCE?

Back 344

1. The degree to which a parent can share the child
2. DV or abuse in family
3. Quality or style of parenting
4. Ability to shield child from conflict
5. Presence or absence of psychological disturbances
6. Child's wishes

Front 345

What is the Conflict Tactics Scale used for?

Back 345

self report to measure DV among intimate partners or for children in home (family aggression)

Front 346

Describe the Child Sexual Behavior Inventory

Back 346

Filled out by primary caregiver, kids 2-12 yrs, used to Id sexually abused kids

Front 347

Describe Child Abuse Potential Inventory

Back 347

self-admin questionnaire use as screening tool for protective service workers, s/ not use raw scores to remove child

Front 348

What is Child Behavior Checklist and Profile?

Back 348

parent-report questionnaire on which the child was rated on various behavioral and emotional problems. It was first developed by Thomas M. Achenbach and has been one of the most widely-used standardized measures in child psychology for evaluating maladaptive behavioral and emotional problems in preschool subjects aged 2 to 3 or in subjects between the ages of 4 and 18. It assessed internalizing (i.e., anxious, depressive, and overcontrolled) and externalizing (i.e., aggressive, hyperactive, noncompliant, and undercontrolled) behaviors.

Front 349

What is the Child Dissociative Checklist?

Back 349

Behavior rating scale for kids 6-12 yrs old. Not diagnostic and does not use DSM criteria

Front 350

What is the Children's Impact of Traumatic Events Scale - Revised?

Back 350

clinician-administered scale developed to assess the effects of sexual abuse on youths between the ages of 8 and 16 years old. It is designed as a continuous measure to assess but can be used to determine diagnostic status. Items are rated on a 3 point Likert scale (“not true”, “somewhat true”, “very true”). The CITES-R is comprised of 4 main scales and 11 subscales: (1) PTSD (Intrusive Thoughts, Avoidance, Hyperarousal, and Sexual Anxiety); (2) Social Reactions (Negative Reactions from Others and Social Support); (3) Abuse Attributions (Self-Blame and Guilt, Empowerment, Personal Vulnerability, and Dangerous World); and (4) Eroticism.

Front 351

What is the Life Stressors and Social Resources Inventory -Youth?

Back 351

“allows an interviewer to use the inventory with youths whose reading and comprehension skills are below a sixth-grade level.”



B. Ages: 12-18; can be used with healthy youth and also with those experiencing psychological problems or medical disorders



C. Purpose: “provides an integrated picture of a youth’s current life context. The measure assesses stable life stressors and social resources as well as changes in them over time.”

Front 352

What is the Parenting Stress Index?

Back 352

The PSI is a parent self-report, 101-item questionnaire, designed to identify potentially dysfunctional parent-child systems. An optional 19-item Life Events stress scale is also provided. The PSI focuses intervention into high stress areas and predicts children's future psychosocial adjustment. There exists a substantial body of published research linking PSI scores to observed parent and child behaviors and to child's attachment style and social skills.

Front 353

Parent-Child Relationship Inventory? Describe

Back 353

self report by parents about their view on parental tasks and their expectation about relationships with children. Used for kids 3-15 yrs. Includes questions about

Parent support
Involvement
Limit setting
Role Orientation
Satisfaction with Parenting
Communication
Automony

Front 354

What is the PTSD Reaction Index?

Back 354

self report measured developed according to DSV IV criteria;
Purpose: ***** impact of trauma after trauma has already been noted.
Questions can include references to past experiences. Not specific focus on child sexual abuse.

Front 355

What is the Trauma Symptom Checklist for Children?

Back 355

self report for kids 8-16 who have experienced trauma like natural disasters, major loss, witness violence, sexual abuse assault.

Front 356

What are the four ways a court can find it has UCCJEA continuing exclusive jxn?f

Back 356

1. It is the home state b/c child has lived in CA 6 months prior to filing of action
2. Child has significant contact with the state and substantial evidence exists here and no other homestate has CEJ or all other home states have declines
3. Emergency Jxn - for temp orders only
4. Forum nonconvens (other state is inconvenient)

Front 357

What act created the first CA state guideline for child support?

Back 357

Agnos Act

Front 358

Child Support:

F claims that he was drunk and unconscious and did not consent to intercourse. Will F be required to pay cs?

Back 358

Yes b/c the only remedy is criminal charges - not denial of c/s as the child deserves support. -- biology makes a difference

Front 359

If County pays Welfare and DCSS does not file motion for several years, how far back can DCSS go for arrears assuming the motion for support is filed 3 years later?

Back 359

DCSS can collect for welfare enforcement no more than 1 year back before filing of complaint. The amount calculated is not actually payment of aid but guideline support.

Front 360

What are the factors the court uses to determine if parentage by estoppel will support finding child support?

Back 360

1. Long duration relationship
2. Encouraged to believe (implicit)
3. Allowed lapse re biodad (for c/s from biodad)

Ct is trying to reach out and find responsible party. Abuse of discretion not to find parent by estoppel.

Front 361

May a father be responsible for the AFDC benefits given to his minor child who rec'd benefits for her child?

Back 361

Yes, the parent is responsible for aid rec'd by his minor child regardless of whether she was living at home with her father or not. FC 3951

Front 362

What other cases support Pedregon regarding parentage by estoppel?

Back 362

Clevenger, Johnson, Valle;

Cts are applying more and more estoppel, being used where ever a person takes position and then wants to change it.

Front 363

For non government aid c/s case, if paternity is established on 1-1-2000 but a motion for cs is not filed until 1-1-2009, how far back may the mother seek c/s arrears?

Back 363

For non govt case, a paternity action back to the date of the filing of the petition or complaint but only if the person was served w/the complaint w/in 90 days of its filing (court must make finding that person was not evading service). If not within 90 days, only effective upon actual date of service. For regular motions, upon filing date of motion. If it is a welfare case, the statute of limitations is 1 year prior to the date of the filing of the complaint.

Front 364

For govt case aid w/ cs case, if paternity is established by pop form on 1-1-2000, mother receives aid from that day forward but DCSS files motion for paternity and support on 1-1-2008, how far back may the county go for arrears on the support?

Back 364

County can now only go back one year for arrears prior to the filing of complaint. Used to be three years.

Front 365

What are the leading principles of guideline support as established by the legislature?

Back 365

1. children are parent's first priority
2. top priority of state
3. have right to share in parent's std of living
4. CS may improve a CP's standard of living

Front 366

What things constitute the K factor for child support?

Does the K factor change with the time share?

Back 366

the net income combined of both parents

No change of K factor with change of time share but time share will affect how much of K factor is paid

Front 367

What are the four taxes that are considered in child support calculations?

Back 367

CA SIT
FIT
FICA
CASDI

Front 368

What is FC 4059 income for cs?

Back 368

Gross income subtract
four taxes:
CASIT
FIT
FICA
SDI
These factors have an annualized cap basis

Front 369

What is annualizing a paycheck and the taxes that are taken out?

Back 369

The deductions are higher at the beginning of the year which makes the net pay lower. After each tax caps out, more money is available to the employee

Front 370

What is the analysis for deductions before calculating c/s?

Back 370

Gross income subtract taxes = Net income per FC 4059
Actual filing status

Front 371

What filing status are we supposed to use for cs calculation?

Back 371

the most likely filing status

Front 372

What factors go into net income:

Back 372

Gross income
Mandatory:
subtract taxes
deduction of union dues
deduction of mandatory retirement as condition of retirement
insurance for self and child
c/s or s/s for other relations ordered to pay and actually do pay
Discretionary:
Job expenses
Hardship

Front 373

If father is paying $1000 for child number one from marriage 1 and then has child no. 2 with another wife, is ordered to pay c/s, which child will have more support if everything is exactly equal in both relationships (Income of other mothers and visitation)?

Back 373

First child will receive more. First in first out principle.

Front 374

How can the court treat payor's income for child support if it fluctuates?

Back 374

Most rzbl income -
Current/actual
Seasonal variations/fluctuating income;
Prospective- historical going forward

Front 375

Filing status cases:
Carlton case stands for what?

Back 375

H-payor new spouse wouldnt file MFJ and allow H the income tax deduction for the mortgage.

Tax payor has absolute right not to sign a joint tax return.

Support follows the tax return

Front 376

What is a SHUPE agreement?

Back 376

Each spouse agrees that what they earn is their own separate property

Front 377

Length of cs obligation?

Back 377

18 yrs old or if not graduated, when graduated up until age 19;
Emancipated
In service
Married
Death
Adoption
Termination of parent status (cs continues after time when bio parent can no longer object to adoption but before adoption takes place)

Front 378

Pre GDL Support cases that have impact: (pre 1992 case)
1. Lemon
2. Ostler/Smith
3. Kirk

Back 378

1. 1983 Lemon treats lottery winnings as income in the context of public assistance for AFDC. Rule: all came in as income for that year.

2. Ostler/Smith was a percentage order for both ss and cs. OK for ss bonuses and bonuses for cs

3. Kirk: H took bus loan and paid back loan w/bus profit. Reduced his salary to pay back loan. Rule: voluntary assumption of debt cannot be basis for discretionary finding of reduced net re CS (See Riddle case re Atty F gone landscaper)

2.

Front 379

What should be answered if a guideline question is posed when there was no CA case on point?

Back 379

Go to other states if no CA definitive case, research decisions from other states to support my position.

Front 380

Does CA require the court to use the last 12 months for computing income?

The most recent paycheck?

The current calender year?

The two most recent paychecks in this calender year?

Back 380

No

It is discretionary.

Look for trend. Most have predictor of the most rzbl income that will occur over the next 12 months.

Front 381

Why the court in IRMO Riddle abuse its discretion in using only two most recent months for father's income?

Back 381

Too short a time period. Not representative of true income over last 12 months in light of trends. Tr Ct cannot pick a number. Must choose among the theories offered by attorney and give reason for choosing one over the other.

- why is this most recent paycheck the best to use?
-what stands out in the paycheck?

For exam- present complete information with good argument.

Front 382

What was the holding in the Chakko case? (non welfare role)

Back 382

The ct correctly used a loan application as inference of F's true income. Not an issue sanction. It was a legitimate basis for finding of what F made.

Front 383

What is rule of Stewart v. Gomez?

Back 383

Decided under guideline. More weight.

F's earning capacity
F's disability benefits
plus value of his free house.
free meal allowance
food stamps

all allowed as benefits for cs calcs

Front 384

What is the impact of receiving SS from a different marr upon the CS in the present matter?

Back 384

SS is not considered income. Corman case. If SS was modifiable, could have been changed by the court.

Front 385

May attorney fees be ordered as extra child support?

Back 385

Boutte case out of Sacramento County not allowed b/c AF is a rebuttal of guideline number. Could use AF in the nature of CS but not AF as child support.

Front 386

What does the Schulze case re child support stand for?

Back 386

Employment based benefits are considered for c/s calcs

Front 387

What is the difference in the Scheppers analysis and the Lemon analysis

Back 387

Lemon was pre GDS and treated the entire $106k into one year of income. Scheppers was pos GDS and used the corpus body with imputed rate of return.

For Scheppers, Insurance benefit IRS does not tax although not controlling - as one of the factors when statute is ambiguous

Front 388

What is the analysis if 4058 is ambiguous on a particular fund as to its use for child support?

Back 388

If statue is vague, use other factors such as IRS code for taxability as factor, is it recurring income? Is it all taken into account. Scheppers held it was a rzbl return. Lemon can be treated that welfare cases different b/c of public taxes. Lemon case does not solve the year to year rate of return so tht there is a benefit every year unless it is spent.

Front 389

What is the Regnery Doctrine?

Back 389

Earning capacity - imputed income

Court has authority to impute higher income than current earning if:
1. opportunity to earn
2. ability to earn the amount

Front 390

Regarding FC 4058 (b) earning capacity - what factors may the court consider on this?

Back 390

Earning capacity - court has discretion to consider it. Court may consider it relative to the best interests of the children including the emotional health of the payor for the children interests

Front 391

What did the Simpson case establish with regard to working a rzbl work regimen?l

Back 391

Cannot impute income based upon past history w/o considering
- rzbl work regimen
-establ by industry standards
-may be over or under 40 hrs per week, dep on expert opinion
-party seeking

Front 392

What is the analysis in Placer Co. Andrade for determining if the court should use historical overtime?

Back 392

5 part test:
1. Calculate Earning Capacity (past gross income including overtime and bonuses rec'd
2. Exercise discretion on whether to substitute prospective gross (consider any evid that payor won't work b/c not available - worker'w own stmt) does opportunity still exist
3. Then consider Earning Capacity
4. Then apply Simpson Limitation (not a 1 job, 1 shift 40 hr rule) Rzbl limitation - what re industry standards

Practice pointers:
-doesn't have to be last 12 months
-bonuses - use percentages if run with GDL (may be basis for appellate reversal) no case law on Ostler Smith for c/s. Public policy is to encourage more support.

Consider negotiation to give discount to payor.

Front 393

IRMO Bardzik: What was the problem with Father's argument to impute income to Mother?

Back 393

Mother filed OSC seeking GDS. However there was already a zero order in place. She retired. H should have proved that she could go back and earn her pre-retirement income or something close to it. He only pointed at what she was making and didn't prove his burden. If Mother had filed an OSC seeking a downward pmt of cs, she would have had the burden of proving no opportunity and no ability to work

Front 394

What does FC 4057.5 provide about NMI for cs?

Back 394

Cannot consider it unless excluding it would lead to extreme severe hardship to child sub to order. If ct considers it, must also consider effect upon children of N mate parent.

Front 395

Per Simpson, is a second job required?

Back 395

No, second job is not required since not part of rzbl work regimen

Front 396

IRMO Serna - may a spouse use her spousal support as indirect reason for supporting an adult child?

Back 396

No, cannot base SS on factor including support of adult child;
However, if disabled child, CS can be ordered.

Front 397

If parent brought an Oregon child support to CA allowing child support of child in majority - will CA enforce the order?

Back 397

Yes, pe UIFSA,

Front 398

IRMO Sinks: May a parent retire at age 62 and then seek a modification of CS?

Back 398

In Sinks, Company asked F to retire. F retired 3 years early

Front 399

WHAT IS A CHANDLER TRUST?

Back 399

Arrangement where parents look at the fact that child might not need CS now, pay less than GDL and put the difference into a trust account for later use in college account. Court cannot order it but parents can agree. Court cannot order it b/c child is entitled to the money now, not as an adult; Second reason, if you force someone into a trust, you are forcing someone to pay adult cs when CA does not allow this.

Front 400

How do parties set up a Chandler Trust?

Back 400

1. Parties decide GDL and then agree that less than GDL is paid (only can do if no AFDC
2. Sign voluntary trust

Risk: Is that Payee can modify below GDL order and then parent will be subject to paying both the higher support as well as the trust contribution. Any stip below guideline allows party to move for guideline. No chg of circs req'd.

If parent stips to higher than, must have chg of circs to modify downward

Front 401

What does the case of Schulze in child support stand for?

Back 401

H worked in family business, rec'd rent subsidy and car subsidy from employment. Benefit was added as taxable income.

Note: If virtual income is imputed, then virtual child care costs should be added.

Front 402

What statute allows the court to order parties to get a vocational training/rehabilitation?

Back 402

FC 3558

Front 403

What does the case of Dacumos stand for?

Back 403

Court may impute earning capacity to an asset for child support - fair return on capital.

Front 404

What may a court consider in imputation of income for an inheritance or one time lump sum gift for child support according to IRMO Castle?

Back 404

1. Consider the reduction in living expenses if used to pay off mortgage
2. Consider investment interest at rzbl rate of return

Ct has broad discretion to impute

Front 405

Marr of Destein - F held investment for growth, not income. What did court find?

Back 405

F can not shift income to the future. Ct agreed that F could receive a higher rate of return. No bad faith investment need be proved. This supports lifestyle sharing for child.

Front 406

IRMO Cheriton Case: What was the difference in the stock options that H and W had for c/s calculation?

Back 406

H's stock options was a benefit for employment = goes straight into c/s calculation. W's stock options was her ownership of an asset of the company. Use Destein analysis, rzble rate of return.

Front 407

IRMO De Guigne: May a court attribute to assets even though it spends down the community or sep property and lived by spending down assets for MSOL?

Back 407

parties had no income. They lived off trusts and liquidating property.

MSOL can be used to establish the lifestyle of the children and their station of life. Ct did not use a rate of return theory as in the Destein case. Unusual case

Front 408

IRMO Henry: What is the holding of this case?

Back 408

Increased equity in a home is not income per FC 4058.

Front 409

IRMO Schafley: What is the holding of this case?

Back 409

1. Imputing a higher rate of return than F's conservative investment portfolio percent ok if supported by evidence that it is possible and would not risk corpus

2. Cannot impute income for rent free housing when F owns home. Proper to consider benefit of rent free home as special circs and then deviate downward b/c decrease in living expenses per 4057 (b) (5)

Front 410

What family law cases deal with the issue of reduced or free housing in c/s calculation?

Back 410

1. Stewart v. Gomez: employment benefit used as income

2. Henry: equity in home does not equal income for c/s

3. Williams: Cannot attribute rzbl rate of return to equity in home (must deviate from GDS after showing of special circs)

4. Schlafly: Cannot use rental value of mortgage free home as imputing income($3K non taxable income). Must do a std of living, special circums analys and deviate from GDL

Front 411

What is the standard of evidence a trial court must have in order to impute income on a self employed person?

Back 411

Per Cohn - Substantial Evidence

Front 412

On what basis may the trial court impute earnings when a parent loses a job?

Back 412

If the parent is terminated b/c of misconduct - the court may find as in Eggers, that the misconduct was poor judgment and not necessarily voluntarily conduct to lose job. If parent conduct ends up looking more like voluntary conduct, court can treat it like voluntary termination and use last job income as IE.

Front 413

What does the IRMO Pearlstein case hold?

Back 413

Unrealized value of divorced father's stock which he obtained as part of payment upon sale of business - c/not be included as income because it was a liquidation of an asset not income.

Child support is not paid from liqidation of assets; can be attributed rzbl rate of return

Front 414

What does Rothrock hold?

Back 414

Re child support: personal injury award was undifferentiated and not shown to be for lost wages. Represented father's loss of capital.

Front 415

What does the Scheppers case hold?

Back 415

Death benefits/life insurance not income for c/s but an impute rzbl return

Front 416

What does case of Asfaw hold?

Back 416

depreciation of father's rental properties not properly deducted from AGI for c/s calcs.

Front 417

What type of depreciation is permitted to consider for c/s calcs?

Back 417

Legitimate cash outlay for business expenditures

Front 418

What allowed the COA to affirm the results in the Meegan case (S/S)?

Back 418

This was a s/s case only - no c/s at issue. H waited until kids grown, wanted to enter monastery, wife had sufficient assets to meet her needs previously determined. Not rule for c/s

Front 419

What does Marr of Ilas stand for?

Back 419

Dr. Ilas was a pharmacist who wanted to go to medical school. Court imputed his last income b/c voluntary refused to use the opportunity he gave up, was deferring his income until he graduated medical school. Had ability to earn, had oppoortunity.

Front 420

Statutes for Earning Capacity:

Back 420

FC 3558 - Ct may require parent to attend job training/work program/vocational training

Front 421

How do you analyze stock options for child support purposes?

Back 421

If stock options were rec'd as result of employment compensation, they go directly into c/s calculation. If stock options rec'd as property due to trade of business or sale of business or division of business, use the Destein analysis and find rzbl rate of return

Front 422

What child support cases deal with housing/free housing/rental value of houses and how they factor into cs calculations?

Back 422

1. Henry - cannot use increase in equity home
2. Williams - substantial equity in home - argue F's wealth a factor in deviation upward in c/s/ use as 4057 factor
3. Stewart v. Gomez: rental value of free home
4. Schulze: empl benefit - use as taxed
5. Alter, recurring gifts in free rental value of home

Front 423

How does the court determine what is the true timeshare between parents?

Back 423

Responsibility, decision making, throw up test, if boarding school - who is paying; Usually assign all of the rest of the school time to high time parent when child is in school


Katzberg - Ct has broad discretion;

Front 424

What do hardship deductions ffor child support include?

Back 424

hardships are discretionary

Includes:
1. extraordinary health expenses when parent is financ responsible
2. uninsured catastrophic losses
3. living expenses of other natural/adopted kids living with parent

Hardships must be limited in time.
ct should state when it expires

Front 425

When is hardship deduction limited?

Back 425

Limited for children living with the parent who is financially responsible to take care of them.

No legal obligation to support step child

Front 426

How are maximum hardships cap calculated?

Back 426

Fixed by statute -
Total amt of support ia $2000 for children of marr, hardship for one child is $1000 (1/2 of regular support). Is discretionary with court. Cannot award more than this but can award less.

COA rules - don't award unless requested and give specific reasons for asking for it. Ct must state reasons for granting.

Front 427

What are the five statutory reasons for rebutting GDL CS?

Back 427

1. Parties tip to different amt
2. Sale of fam residence is deferred and rental value of home exceeds mortg pmts
3. extraordinarily high income -payor
4. parent not contributing to needs of child equal to their parenting time
5. unjust or inapprop to use GDL b/c of special circs, including but not limited to:
a. diff time sharing arrangements
b. subst equal sharing time and one parent has higher or lower housing cost
c. special medical needs that could require c/s to be higher than GDL

Ct must make special findings that chg is in BIC and that GDL is unjust

Front 428

What are the rules regarding discovery of no marital partners with regarding to child support calculations?

Back 428

High earner is entitled to privacy as long as there is other information available to show what his/her true income is. But if not available issue protective orders.

Front 429

What are the rules regarding discovery for child support for post disso marriage partners?

Back 429

High earner cannot simply refuse to provide discovery and claim he is high earner. Must first provide info to court who runs numbers for stat GDL and then Father must rebutt and show that CS exceeds child's needs. The court can make least beneficial income assumptions against high earner parent when they dispute his income and cannot agree on cs as long as their is a legitimate basis for information on income.

Front 430

Assuming a parent is established as a high earner parent, what would the custodial parent argue for additional child support to be paid on a percentage of stock options that would be exercised from time to time?

Back 430

If H asserts that percentage of stock options is deviation from guideline and that the add'l support is more than children need, court must make a finding that
1. children's needs
2. the add'l support does not exceed kid's needs.
3. put a max cap

Evidence - not merely MSOL which is used for S/S but the current station in the parent's life at the time cs is being considered. Children are entitled to share in CURRENT station in life.

Front 431

H loses his job on 1-1-2009. He files OSC asking for modification on same day. However, the hearing date is set for Feb 1 and Father does not serve Mom in time. He asks for a continuance and then gets another date in March. He then serves Mom on February in time for the March date. What is the retro date for cs modification?

Back 431

F lost job on 1-1-2009 but did not serve mom until Feb 28. FC 3650 says the later date of either date of unemployment or date of service. (unless ct finds good cause otherwise). This motivates F to serve other side right away because delay of service means delay of modification and accumulation of arrears. If F knew in advance he was going to be laid off and filed his motion in advance of 1-1-2009 (Dec 1, 2009) and then served M on the next day, he would acquire less arrears. Balancing act between not coming into court too soon and not waiting too long on arrears.

Front 432

What is the difference between Alameda and Santa Clara SS calculation?

Back 432

Alameda 35% of payor less 40% of recipient's income

Santa Clara is take 40% of payor's income less 50% of recipient's income

Front 433

What is temp spousal support assuming H's gross income is 10K per month, cs is $2000 and W's income is $3000?

Back 433

Santa Clara is 40% - 50%
Alameda is 35% - 40%

Santa Clara is 10K minus $2000 = $8K x .40 = $3200 minus $1000 = $2200.

Alameda is 10K minus $2000 = $8K x .35 = $2800 minus 1/2 W's income = $2800 - $1500 = $1300.

Front 434

What are the four components that go into long term ss order

Back 434

1. amt
2. duration
3. substantive step up/down (Burlini case - cannot have unless current evid today that when chg occurs, a significant chg of facts justifying chg - employment, law school - some condition will occur)
4. jxn step down/term date

Front 435

What plan justifies a step down order?

Back 435

Substantive step down is not justified by planning that W will go to work. there has to be some evidence that there is an event that is likely to occur that will likely produce that evidence.

Front 436

What is jxn step down?

Back 436

Ct sets date for jxn to terminate unless a condition occurs. No specific evidence needed for marr of not long duration. Can use presumption of 1/2 the length of marr. Date of marr to DOS.

Front 437

Does the policy of self support in spousal support apply on to short term marriages?

Back 437

No, applies to all marriages. Only 1/2 length of marr presumption applies to short term marriages

Front 438

May a marr of long term have a termination date at the original trial at the end of a disso?

Back 438

no, only down stream after judgment. Must leave jxn open. May be substantive step down but not subst jxn step down at trial

Front 439

What are the Earning capacity factors according to FC 4320?

Back 439

1. Earning capacity sufficient to meet MSOL taking into acct:
a. market skills of ea party; job market, education, retraining
b. impairement of support party b.c of unemployment/domestic duty
2. contribution to payor's education/training
3. ability of payor to pay ss (earning capacity, earned, unearned income, assets, std of living)
4. Needs of ea party based on MSOL
5. Obligations & assets incl sep property (ok to consider debt unless it is part of division of CP itself)
6/ Duration of marr
7. ability of supported party to work w/o interfere with kids int
8. age and health
9. DV history
10. Immediate and specific tax consequences
11. Hardships to ea party
12. Goal to be self supporting
13. Criminal conviction of abusive spouse (rebuttable presumption against ss per FC 4325 unless PPE rebutted)
14. Justice

Needs of each party

Front 440

Can you tack two marriages of the same couple together for spousal support?

Back 440

yes, if ss was open from the first marr to the second. Chapman: tacking is ok; Bukaty, tacking is ok.

Front 441

Re spousal support 4320 factors, how might a person unsuccessfully argue that they took debts in the CP division and then post judgment cannot pay ss?

Back 441

Marr of Martin - Mr. Martin took all debt in Cp and then complained he could not pay ss

If there is enough cash in CE, court should first pay all debts and then divide the remaining before making ss orders

Front 442

What is the contribution code in FC 2641?

Back 442

Education for one spouse paid for by community that substntially enhances earning capacity - reimb to community. Covers loans acquired pre marr and paid with CP. No living expenses, just education expenses. 10 yr presumption-rebuttable

Front 443

Is the FC 4320 factor re DV conviction invokable for a non modiafiable ss order?

Back 443

yes, marr of Cauley b/c of public policy

Front 444

What is a West warning with regard to property division?

Back 444

It warns the parties that they have a duty to wisely manage their assets so as not to claim a need for more support or to pay less support.

Front 445

What is the analysis a court must perform of one party claims the other party has a separate estate and does not need support?

Back 445

1. Determine if threshold of sufficiency is met by:
a. look at both actual and rzbl potential income; rates of return, investment management
b. establish history of spouse's assets, management and needs
c. determine if sp is meeting their needs with their own estate
d. assets from division of cp should be considered in assessing sufficiency of payee for proper support

Front 446

Is a Gavron order mandatory?

Back 446

No, 4320 requires parties to become self-supporting in rzble time but Gavron order is discretionary. Rzble time = 1/2 length of marr.

Front 447

When may a court make a Richmond order?

Back 447

Only if it has evidence at the present that in the future, certain conditions are likely to exist, such as the self sufficiency of the supported spouse. Court cannot merely, at trial, make a step down order w/o proof that payee can achieve status ready for step down.

Front 448

What was the holding in Asfaw re child support?

Back 448

The trial court, in calculating child support, allowed the father a deduction from income for depreciation of rental property. The court held that the trial court erred because depreciation of rental property was not deductible in calculating child support under Fam. Code, §§ 4058, 4059. In determining the annual gross income of a parent, "operation of the business," in Fam. Code, § 4058, meant ordinary and necessary business expenditures directly related to or associated with the active, day-to-day conduct of a business. Depreciation of a business asset was not essential to the day to day running of the business but was intended to promote the continuity of the business over a longer term. The court also observed that the overriding policy of the statutory child support formula was to place the interests of children as the state's top priority, as set forth in Fam. Code, § 4053, subd. (e). Thus, a child should not receive less financial support from a parent who was permitted under tax laws and accounting principles to take a deduction that did not reduce funds available for support.

Front 449

What does FC 4332

Back 449

1. applies to original or mod proceedings
2. no children
3. party has or acquires sep estate (incl employment) suff for person's proper support,
4. no SS shall be ordered or cont'd against other party

Denial of SS is mandatory if sufficiency threshold is met.

Front 450

What is concept of "separate estate" in FC 4332 mean?

Back 450

Separate estate means employment, assets and their investment return or what they could return if managed properly at rzbl rate of return; includes assets rec'd from division of cp. Doesn't mean sep estate exists before marr or after marr. Only refers to what person has at a given time

Front 451

In marriages of any duration (long or short) how long does a person have to become self-supporting?

Back 451

In short term, presumption to be 1/2 of length of marr. In long term marr- no specific presumption

Known as Gavron warning

Front 452

What is a Richmond Order?

Back 452

Directs termination of SS on a specified date unless an application for extension is made before that date. This is extension of Gavron warning

Front 453

What are the conditions that must exist before a Richmond Order issues?

Back 453

1. Cannot be a original trial for disso
2. Evidence at time of hearing to justify assumption that supported spouse will no longer need or will need less by a certain date

Front 454

What is the Doctrine of Unrealized Expectation?

Back 454

This is the doctrine where the failure of a party to achieve a certain goal allows the court to extend the Richmond Order deadline. But court looks to see if spouse made good faith effort to achieve result. Important to get expectations set out at time of trial.

Front 455

What does the Marr of Ostrander stand for?

Back 455

Uncontested default disso for parties where W asked for Ct to reserve jxn over SS. Asked for it 5 years later. H argued that since the language did not specifically "allow the court to retain Jxn" the ct didn't have authority to order. W prevailed. Termination of ss jxn in long term marr must be affirmative by either court order or by agreement of parties in writing.

Front 456

What is the difference between the principles in Ostrande and Vomacka?

Back 456

Ostrander dealt with the court retaining jxn over long term ss unless specific order otherwise. Vomacka dealt with ambiguity in agreement or order which will be resolved in favor of ct retaining jxn.

Front 457

What factors does a vocational evaluation use under FC 4332?

Back 457

age
health
education
marketable skills
experience and employment history
current opportunities

Front 458

What does the case of Reynolds stand for regarding spousal support being paid when payor reaches 67 and retires?

Back 458

Age 65 is the limit for imputing earning capacity when a person retires. The payor may still have to pay ss on his actual earnings, his investment income, and social security but should take into account needs and expenses of both parties

Front 459

What reversible error did the court commit in the SS Geraci case?

Back 459

Ct abused its discretion by failing to consider every single factor in 4320. Ct can give weight to each factor as it deems but must at least weigh each factor, especially needs and ability to pay - most important factors

Front 460

What does Ostler/Smith order stand for?

Back 460

percentage of bonus for additional ss. Has also been used for c/s although not certain if it will survive the GDL analysis.

Front 461

What is the best factor for determining MSOL?

Back 461

Tax returns. If MSOL was not supported by the support order, may be able to get a Hoffmeister increase if spouse gets more money later but need findings about MSOL in msa or trial court ruling.

Front 462

What is the definition of MSOL?

Back 462

The needs of the parties based upon the marital station in life, including their income and expenses. If paying party doesn't have enough money to maintain both parties at MSOL, it is a needs based analysis for both. It is not the actual needs but a basis or reference point.

Front 463

What does the court use to determine if an employer gives an enhancement to an employee's retirement benefits?

Back 463

1. When did right for enhancement occur? durr marr?
2. is the enhancement considered deferred income
3. Is enhancement considered compensation for lost future wages?

Front 464

What does Drapeau stand for regarding MSOL?

Back 464

It can include a history of savings if there is enough money for MSOL factors. Parties savings durr marr was for early retirement. They lived prudently to be able to do this. Should be able to continue to do same.

Front 465

What did de Guigne use as factors for MSOL?

Back 465

Wife's needs not limited to income of H because they had history of liquidating assets. Ct found W's needs matched H's current needs of $150K per year. Strange case. H's liquidating of wealth can be a factor for setting c/s and s/s

Front 466

What does Ackerman stnd for regarding ss?

Back 466

Ct properly found MSOL to be average income and expenses rather than W's actual needs stated to be $50k per month. parties were living beyond means.

Front 467

Re modification of SS, what factors are needed to qualify?

Back 467

1. mere passage of time
2. 4320 factors
3. Gavron warning
4. Richmond order expectations
5. cohabitation
6. MSOL not met at final order but findings in order/MSA and increase in payor's income
7. termination of c/s order if in effect w/ ss order

Front 468

Describe the factors in FC 4323 re cohabitation and ss

Back 468

1. Except as agreed to in writing by both parties
2. cohabitation (opp sex) (need to read gender neutral) =rebuttable presump of decreased need for ss
3. no need to hold out as H/W
4. NMI not used
5. Can be modified again if circs change

Reason: scale of economies - presumed that both parties pool income and more $ available to payee spouse

Front 469

What kind of chg of circs warrants a modification of ss in general?

Back 469

substantial evidence of material chg of circs

Front 470

Re Mod of SS order:
1. Irmo Lynn - bankruptcy of payor
2. Schmir - rt to access IRA acct w/o penalty
3. McCann - payor's CS goes up (due to GDL enactment)
4. Lautsbaugh - CS goes away b/c of emancipation
5. West (Till and Sylvia real estate agent)

Back 470

1. Lynn - if payor is granted relief by BK, has more income to pay ss
2. Schmir - rt to w/d is chg of circs even tho no w/d are made - money not there to transfer wealth to next generation
3. MCCann - cs goes up - chg of circs for ss to go down because not forseeable that GDL would come into affect
4. Lautsbaugh - it was forseeable that children would leave and would allow less money to W. However, anti Lautsbaugh FC 4326 now as a matter of law defines term of cs as a chg of circs for ss.
5. changed expectations regarding a supported spouse's ability to become self-supporting may constitute a change of circumstances warranting a modification of spousal support

Purpose of COC standard is to avoid repeated attempts to come back to court

Front 471

Termination of SS:
If a long term marr, may court
1. terminate jxn at trial?
2. terminate jxn later?

Back 471

1. at trial - no. but may set support at zero maintaining jxn indefinitly unless agreed.
2. later? yes by Richmond order or by showing of chg'd circs per FC 4322 sep estate circs or other COC

Front 472

Hypo:
H and W have 10 year marriage exactly. Uncontested default w/ss to wife. No children of marr. SS is set amt for 5 years and then set to zero. W receives ss for 5 years, then zero for 2 years, then loses her job and wants ss again. Does ct have jxn?

Would this change if ss order was made on in 1987?

Back 472

If uncontested disso, H may claim that marr was not long term. He has burden of producing evidence that it was less. Ct looks at time period and other factors such as health and equity.

Once ct determines - it is long durr mar, ct still has jxn to mod support from zero to her needs based upon 4320 factors.

If ct determines not long term marr, no affirmative language was needed to terminate jxn.

If order made in 1987 - it was made before 1-1-1988 cutoff date and court would be w/o statutory authority retain jxn (Marr of Beck)

Front 473

Pursuant to FC 4336 - How long does ct have jxn over ss?

Back 473

1. Unless written and agreed upon otherwise
2. Indefinite
3. Disso or LS
4. Long duration
5. Presumption affecting burden of producing evidence that 10 yrs from DOM to DOS = long duration
6. Periods of separation may be considered
7. Ct can find less than 10 yrs = long duration
8. applies to proceedings started on 1-1-1988 or
9. pending on 1-1-1988
10. Pending on 1-1-1988 where no perm ss order made or where order subj to modification

Perm ss order pre 1-1-1988 = no more jxn to modify or reinstate but if perm order pre 1-1-1988 and sub to modification any time after 1-1-1988 > = 4336 retention of jxn.

Front 474

On a short term marr, must the court set a termination date?

Back 474

yes, per Hebbring - which may be limited to its facts, is error as a matter of law to not set termination date after short term marr but limited to those facts

Front 475

Re termination of SS, what do the following cases hold?
1. Hebbring -
2. Wilson
3. Schaffer
4. Shaughnessy

Back 475

1. Hebbring - error not to set term date in short term marr (but limited to facts of case)
2. Wilson - ok to term ss in short childless marr as long as ct considers each 4320 factor and carefully weighs
3. Schaffer - ok to modify zero to maintain jxn as long as findings are supported by 4320 analysis; ok to look at parties' conduct after first initial order to see if lack of affirmtive action = chg in circs

Failure to follow through on diligently finding job and using poor judgment can be grounds for COC in modifying support to zero in long term marr

Front 476

What does the term "either party may seek a judicial review of ____ at any time" potentially mean?

Back 476

The appellate court in Marr of West reasoned that it meant no change of circs needed to review ss. This could mean for child custody or any other matter, no threshold showing of chg circs need to be shown. Dangerous language

Front 477

When are step down orders proper in ss?

Back 477

Must be based upon reasonable inferences rather than mere hopes or speculation but a showing that a payee spouse will "certainly" be earning is not req'd. Marr of West

Front 478

Marr of West and Shaughnessy of more recent have made what rulings regarding long term marr of 10 yrs or more in CA?

Back 478

>a reasonable change in career paths by the supported spouse is acceptable and may well be considered the requisite change of circumstances to support a modification,

> and a reasonable change of career will not bring a penalty in computing the amount of support,

>step-down orders are still fine so long as they are not based on unreasonable expectations of the recipient's income or needs, and

>Family Code Section 4320 requires that the half-the-length-of-the-marriage rule not apply to marriages of more than 10 years.

Other points to consider from West:
stepping down a support award to zero does not terminate support. To do that the judge must use the magic ''termination'' word. Not making his intentions clear on that point earned this trial judge a bit of an admonition.

>simply spending down money received from a division of the community property when one is not basing a request for an increase in support on the exhaustion of that community source should not be equated with what Ms. McElwee did. Disposing of income-earning property or investing unwisely may still bring a penalty if one is asking for an increase in support, but Ms. West was not doing that here.

Front 479

Re taxation: H works and earns $100K per year. W stays home and earns 0. They file MFS. How much income tax does W owe on H's income?

Back 479

W owes income tax on $50K b/c CA is community prop state and Fed tax rules follow state rules about CP. Income tax tracks ownership of income. CA says it is comm prop state = both parties own 1/2 of the total income.

Front 480

Explain Innocent Spouse Relief rules

Back 480

1. applies to disso people only
2. Innocent spouse shows by PPE they did not know about spouse worker's undersmt of income or oversmt of deductions
3. No reason to know of this

May be granted

Remedy =
1. wages of income tax return assigned to worker
2. Income from invstmts follow owenrship of property
3. deductions personal to eah prty will be assigne equally
4. IRS must show innocent sp had actual knowledge to defeat

Front 481

What is the result if a spouse w/d their IRA before proper age and the other spouse files MFS, who pays the tax on the w/d?

Back 481

Usually, it would be joint as if this is CP, both are jointly and severally liable but special rules for IRA w/d - if separate tax filing status - H pays if he w/d. If they file jt return, they share the tax.

Front 482

If one spouse claims innocent spouse relief and the other spouse is concerned that they will be held responsible, may they be heard by the tax court on their spouse's claim?

Back 482

no standing. Non-innocent spouse has no standing to challenge the innocent spouse to be.

Remedy may be in state court since MSA agreed to equally divide taxes. (Hargrave COA ruled H could get indemnification from W)

Front 483

May an innocent spouse who paid unreported income from other spouse receive a refund from IRS?

Back 483

yes, per Ordlock because state community property law does govern availability of refunds per innocent spouse relief

Front 484

When does the recapture rule begin for ss?

Back 484

May start with MFS filing

Front 485

What does a MFS filer lose in credits?

Back 485

child care credits and earned income credits but still may claim alimony deduction; may amend to MFJ within 3 years

Front 486

Regarding tax dependency exemptions if both parties share exactly equal 50% of 1 child, who gets to claim the exemption?

Back 486

Which ever parent provides most of support. Also child tax credit always goes with dependency exemption

Front 487

If the parties renegotiate the dependency exemption, who keeps the child tax credit?

Back 487

CTC always goes with the dependency exemption

Front 488

What is the difference between the child tax credit and the child care credit?

Back 488

Child care credit only goes to person who actually pays child care but is only available to person who has child more than 50% of time.

Child tax credit follows dependency exemption.

Front 489

Parties disso. M files HoH. M has child 80 % of time. F pays all child care expenses and has dependency exemption by agreement. Who gets the child tax credit and the child care credit (CCC)

Back 489

F gets dependency exemption and child tax credit but no child care care credit b/c he doesn't have child more than 50% of time.

Front 490

May a parent file HoH if they have child more than 50% of time but have released dependency exemption to other parent?

Back 490

Yes, can release DE and still file HOH. Has nothing to do with dependency exemption

Front 491

What is Earned Income Credit on tax return?

Back 491

Credit for minimum wage earners. In situation of 50/50 - neither parent gts. EIC only available to person who has child more than 50% in house.

Front 492

Chart:
1. Dependency exemption

2. Child Tax Credit

3. Child Care Credit

4. Earned Income Credit

Back 492

Which of these credits are assigned to the parent with a child over 50% of the time or when to a parent with less than 50% of time

Front 493

What is the Kiddie Tax/

Back 493

If child has an asset that generates income, it is taxed at parent's income bracket and will be given to the parent with the higher income bracket.

Front 494

H is remarried to W2 who has 5 children in home. They file MFJ return. W1 has one child with H and she receives support from him. How many dependency exemptions may H claim if child with W1 lives with her?

Back 494

H has dependency for himself, new spouse, all five children from W2, any other relatives in his are in the home and any other children in the home but not the child with W1 unless he gives it to him.

Front 495

What is the difference between withholding allowances and dependency exemptions?

Back 495

Dependency exemptions are for people. Witholding allowances are for both people and for tax deductions. You get one withholding allowance for every dependency exemption but also about one withholding allowance for about every $200 in paid in deductible amounts paid per month (includes spousal support and mortgage interest)

Front 496

What are the rules of DRTRA?

Back 496

Domestic Relations Tax Reform Act 1984
1. No pmt deductible unless ends on death of payor either on instrument creating it or by state law governing it
2. State law determines
3. Must be a court order or
4. An agreement signed by parties
5. No voluntary informal verbal ss
6. No deductibility if MFJ filed
7. Pmt made in cash or equivalent
8. Covers pmts made to third parties for benefit of payee but not value of an asset

9. Cannot later call it Epstein Credits
10. parties cannot be members of same household after disso but before disso ok
11. No deductible if labeled cs
12. Unallocated payment that does not label itself CS will be deductible
13. Pmt reduction or termination cannot be linked within 6 months to an event of a child's life (turning 18, graduating from college)

Front 497

When is the safe harbor for ss payments terminating or reducing as relates to a child's life?

Back 497

For emancipation, should be before child is 17 1/2 and after child is 18 1/2.

Front 498

For spousal support orders regarding DRTRA rules, will a letter between attorneys suffice?

Back 498

No deduction for support made prior to a written agreement between parties or a court order. Court order must specify how much is ss or no deduction.

Front 499

Why doesn't a Richmond order violate the indefinite jxn rule?

Back 499

Because there is opportunity to come back in and ask to extend if failed expectation occurs

Front 500

In re Shaughnessy - why were gifts considered as part of the factors for ss termination?

Back 500

Ct held that there is no bar to considering gifts because they were rec'd on a regular basis $20K

This is the opposite of the Serna - that if your families support you, that money comes in first to you in consideration of your decreased need for ss


Get full gift history including gift tax returns and set tickler for 59 1/2.
This was the floral lady who got 10 yrs of support for 15 yr marr

Rzbl time to become self reliant applies to all marriages

Front 501

What were the factors in Ackerman's step down support order:

Back 501

Ct made stp down order, set support at zero for three yrs and then set another deadline for support to end. Considered ok bc she was going to take the bar exam again.

No MSOL b/c couldn't afford it

Front 502

What are the theories of finding MSOL?

Back 502

1. Look at income tax returns
2. If expenses are greater than income is needs based
3. If payor has ability to pay MSOL, ok to take their average income and expenses and split them (Smith)
4. Add up c/s, s/s, and rzbl rate of return on assets to see if they meet needs of support spouse

Front 503

Describe recapture rules for spousal support

Back 503

1. anti-front loading rules operate on a 3 year calender year basis

2. The three year period begins when the payor spouse begins to pay permanent ss to the payor spouse

3. First year = "first post separation year"

4. Only excess pmts made in first and second post separation yrs are recaptured.

Front 504

What are the three trilogy CASCT cases re parentage from 2005?

Back 504

Kristin H. v. Lisa R. (ESTOPPEL TO INVALIDATE FORMER JUDGMENT OF JOINT RESPONSIBILITY FOR CHILD) Parents stipulated in judgment (for hospital) that they were both parents. One parent tried to invalidate the stipulation later. Court prevented.

Elisa B. v. Superior Ct -(INTENT) c/s ordered to a Lesbian mom who support her spouse's artificial insemination, held out child as her own. 7611 (d) case

Charisma R. v. Kristina S. (LESBIAN MOM HAS STANDING UNDER UPA TO BRING PARENTAGE ACTION)

K.M. vs. E.G. (Ovum donor is genetic mother)

Front 505

What are the three public factors tht were considered in the trilogy of parentage cases in 2005?

Back 505

1. Intention to create a family
2. existing family unit - social ties to children
3. public policy to make 2 parents responsible for financial welfare of children

Front 506

If a presumed mother has held out a child as her own and the bio mother wants to establish maternity for custody and "presumed mother" candidate has had the child for 6 months, how will the court determine maternity? (There is a bio father)

Back 506

The two presumptions collide and when they conflict - the presumption with the more reasoned public policy and logic prevails. Here a woman cannot be a presumed mother is there is a bio mother who is willing to be mother.

Front 507

What standard of evidence does a man have to provide to prove he is a presumed father under 7611 d?

Back 507

Preponderance of evidence - then rebutted by CCE of the opposite

Front 508

Hypo: W and H have child while married. However, W had affair with bio-dad dur marriage. W and H allow bio dad to receive child into his home and hold him out as his own. Child is less than 2 yrs old. May bio-day assert his parentage and seek dna test per 7541?

Back 508

Court must first analyze two presumptions:
1. H was living with W when child was born but is not conclusive dad under 7540. He is a 7611(a) father b/c living with Mom when child was born.
2. Dad was permitted to act like a presumed father under 7611 (d).
3. According to 7612 - court must weigh which presumption has more weightier logic and concern in public policy. If ct decides 7611 (d) father's position is - court allows dna test to confirm he is bio dad.

Here two fathers are competing for paternity

Front 509

What did the COA hold in Craig L. v. Sandy S. regarding the competition between a 7611 a father and 7611 d father?

Back 509

The court of appeal held that when a mother and her husband permit an alleged biological father to receive her child into his home and hold the child out as his child, the father may assert the rebuttable presumption of Fam. Code § 7611(d) in order to establish his parental rights. The court of appeal further held that when competing paternity presumptions favor a husband and a second presumed father under Fam. Code § 7611(a) and Fam. Code § 7611(d), respectively, a trial court must determine which presumption is weightier on the facts and decide a child's paternity in accordance with the goal of protecting the child's well-being.

Front 510

Per FC 7541 who may request a blood test to determine paternity?

Back 510

1. Husband
2. Presumed father (must be court determined)
3. child through GAL
4. Mother only if bio father has submitted affidvit of paternity to court in declaration
5. Child must be less than 2 years old

Front 511

Does biology defeat presumption of paternity?

Back 511

No. is important but not determinative factor. The court will only allow rebuttal of 7611 presumptions in an appropriate case where it benefits the child.

The factors include which presumed father provides the permanence, stability, family ties, financial stability, emotional stability

Front 512

If artificial insemination is performed but not by doctor, will donor have rights of paternity

Back 512

Yes, per In re Jhordan C

Front 513

If a child comes to CA to visit Mother and child complains she is sexually mollested by her father in NY where jxn continues, how may the dependency court proceed assuming that DHS filed petition for dependency?

Back 513

Juvenile Ct must follow UCCJEA which only decides jxn for custody disputes. Does not grant authority for JC to grant a petition under WIC 300 series to find a child a dependent. Ct may grant emergency orders only to protect child for as long as needed until original CEJ asserts its jxn and then takes over. UCCJEA does not authorize dependency jxnl order of WI 300

Front 514

When there is a dispute about whether there is a 7611 presumption parent, what second step must the court always do?

Back 514

Re 7611 presumption, court must always determine whether this was an appropriate case or situation to rebut the presumption

Not appropriate cases to rebut:
child support issues
no other parent stepping forward

Front 515

If there is a 7540 conclusive presumption but another alleged bio dad comes forward, what factors will the court use to determine if alleged bio dad is presumed father and allow blood test to rebut 7450 presumption?

Back 515

Court must consider
1. Age of child
2. which result will provide a support obligor
3. intact family with siblings, support of mother's choice
4. bonding between child and conclusive father or presumed father
5. nature of marriage of W and H

Front 516

When is an alleged father treated as a presumed father?

Back 516

When unwed alleged father comes forward after learning about baby's existence to stop termination of parental rights/adoption, wants reunification. Court must treat as presumed father, order dna test and if father is stable, non offending good guy, provide reunification services.

Front 517

If a man agrees to put his name on a child's birth certificate, knowing he is not the father, moves into the mother's home and holds the child out as his own, is he a presumed father?

Back 517

Technically not because he did not receive the child into his home. He moved in with mother. However, Juv Ct is permitted to find that social father is presumed father if no one else is willing to be father.

Front 518

What persons may bring actions to determine paternity under FC 7630?

Back 518

1. Child, natural mom or presumed dad to determine existence existence under 7611 a,b,c

2. if non existence - brought w/in rzble time after obtaining knowledge of relevant facts

3. Any interested party at any time for purpose of determining existence or non existence of father/child relationship presumed under 7611 d or (f).

4. to determine existence of father an child relationship where no 7611 presumed father or where presumed father is deceased - action may be brought by
- child
-DCSS
-mother or rep if mother died
-man alleging himself or alleged to be father
-personal rep or paternal GP if alleged father died or is minor

Front 519

Is a bio-dad's Kelsey S. presumed father status sufficient to overcome a presumed father's VDP?

Back 519

No - Kelsey S father's presumption is overcome by VDP and presumption of 7611.

Front 520

What parties should be joined in a action under the following circumstances:
Mom and man living together. Mom gives birth to child. Man signs VDP. M does not tell boyfriend bio dad about the birth and tries to cover it up. Bio-dad seeks standing to assert parental rights. Mom wants to assert a claim that Man should be the presumed father b/c held child out and signed vdp.

Back 520

If mom hid info from Bio dad and he came forward asap to assert parental rights with legal custody, responsibility, financial help, he should be found to be a Kelsey S. father and has standing.

Front 521

Under Johnson v. Calvert, how did the court decide who was the natural and lawful mother of the surrogate begotten child?

Back 521

Mother was the person who was intended to be the mom. She gave consent and initiated the medical procedure by donating her egg. If she had not donated the egg, no birth would have insued. The surrogate mother agreed from the start to rent her womb.

Front 522

If a couple is married but separated and W has affair and gives birth to child within 300 days of disso, may the bio dad bring a paternity action?

Back 522

No because the divorced dad is a presumed father under 7611. ''a biological father's mere desire to establish a personal relationship with the child is not a fundamental liberty interest protected by the due process clause.'

Front 523

What types of things cannot be handled in DV case?

Back 523

1. long term ss
2. ultimate division of property (can do use and possession of assets)
3. securing custody orders if no parentage established

Front 524

May the court grant mutual restraining orders?

Back 524

The court may not issue mutual restraining orders it must make a finding that both parties were primary aggressors based upon written declarations from both parties and that neither party acted in self defense.

Parties cannot waive proof requirements

FC 3044 goes both ways.

Front 525

Explain the following forays into DV:
1. VAWA
2. CA tort action
3. Possession of Firearms

Back 525

1. Vawa, violence against women act 1994 - felony to cross state line w/intent to commit domestic violence

Front 526

What is the potential impact of DV allegation?

Back 526

1. custody fc 3044
2. no visitation
3. kickout
4. stay away
5. keep address secret
6. federal registry for dv perps
7. firearms surrender
8. effect upon police officer's job
9. CLETS or in DOJ records - effects job
10. child support consequences
11. interstate rules bypassed
12. criminal charges affected (+3 strikes)
13. expedited unlawful detainer process
14. possibly free disso?
15. deportation
16. welfare consequences

Front 527

How long can DV cases continue?

Back 527

If nothing is stated, 3 yrs. Can be renewed 5 years or forever w/o evidence of further showing of abuse.
MUST SHOW RZBL APPREHENSION OF FUTURE ABUSE (Ritchie case there was no actual physical violence)

Negotiate out of DV by paying for therapy for family, voluntarily giving up firearms, staying away w/o dv;

Front 528

What is required to find a putative marriage?

Back 528

1. Good faith subjective belief that properly married or that previously divorced before marr - viewed with objective rzbl perspective

I.E. Vryonis: proper assertion of putative spouse status must rest on facts that would cause a rzbl person to have a good faith belief they were married - there must be attempted compliance with procedural reqmts of marr and indicia of normal marriage
Must have some type of solemenization ceremony and license.

Front 529

May RDP's have putative spouse status?

Back 529

Yes, if truly putative, good faith compliance with procedural reqmts for registration with state only (Arriaga) but does not work for non RDP's who failed to register themselves with state (Velez v. Smith)

Front 530

does a nullity survive death

Back 530

yes, because it is important to find out if there was a disso as it affects estate and probate matters

Front 531

How are ATROS enforceable?

Back 531

By contempt
By law enforcement
By criminal action - removal of child out of state

Front 532

What are the ATROs?

Back 532

Three parts:
1. Removing child from state
2. Transfering property, selling, lending agtainst, includes sep prop and CP except for necessary expenses in ordinary course of business - if extraordinary expenses - give 5 days notice
Attorney Fees exemption
3. Changing or cashing in life or health insurance policy
3.

Front 533

What is required to find a putative marriage?

Back 533

1. Good faith subjective belief that properly married or that previously divorced before marr - viewed with objective rzbl perspective

I.E. Vryonis: proper assertion of putative spouse status must rest on facts that would cause a rzbl person to have a good faith belief they were married - there must be attempted compliance with procedural reqmts of marr and indicia of normal marriage
Must have some type of solemenization ceremony and license.

Front 534

May RDP's have putative spouse status?

Back 534

Yes, if truly putative, good faith compliance with procedural reqmts for registration with state only (Arriaga) but does not work for non RDP's who failed to register themselves with state (Velez v. Smith)

Front 535

does a nullity survive death

Back 535

yes, because it is important to find out if there was a disso as it affects estate and probate matters

Front 536

How are ATROS enforceable?

Back 536

By contempt
By law enforcement
By criminal action - removal of child out of state

Front 537

What are the ATROs?

Back 537

Three parts:
1. Removing child from state
2. Transfering property, selling, lending agtainst, includes sep prop and CP except for necessary expenses in ordinary course of business - if extraordinary expenses - give 5 days notice
Attorney Fees exemption
3. Changing or cashing in life or health insurance policy
3.

Front 538

What does the code provide regarding whether a family court judge should make ex parte orders changing custody?

Back 538

FC 3064:
Court should refrain unless
1. showing of immediate harm to child
a. including but not limited to recent DV acts by a parent
b. including but not limtied to recent sexual abuse of child or part of continuing conduct
2. immediate risk that child will be removed from state

Front 539

What provisions apply to ex parte/ restraining orders:

Back 539

1. 240 - ex parte in general
2. 247 - notice
2. 2045 - protective orders after noticed hearing
3. 3064 - changing custody orders ex parte
4. 6320 - DV
5. 6321-exlusive use of home
7. 6322 - enjoined specific behavior to effectuate 6320 orders
8. 6323 custody orders

Front 540

What are the restrictions of 6323 custody orders?

Back 540

Under DV - Ct may make ex parte orders determining temporary c/c and c/v on condition that court determines protected parent and child have relationship- may make orders of no visitation to other person until they establish their parentage

Front 541

How can a person establish their parentage for 6323 custody orders?

Back 541

1. gave birth
2. conclusive presumption b/c of marriage
3. legal adoption or pending legal adoption
4 valid VDP signed in effect more than 60 days (past recission period)
5 juvy ct determination
6. Child support parentage adjudication
7. UPA judgment of parenthood
8. Both parties stipulate on record

Front 542

What are the conditions generally req'd for 2337 bifurcation?

Back 542

1. PDDs must be served unless both parties stipulate to serve it later after bifurcation
2. indemnifications re taxes, assessments, interest, penalties re CP
3. existing health ins to stay in place, if not moving party to pay other's
4. indemnify other sp for rt to probate homestead
5. indemnify other sp for rt to probate family allowance
6. indemnify other sp rt to retirement, survivorship or deferred comp benefits
7. indemnify against losing social rights
8. Ct may order that beneficiary designation of up to 1/2 or all CP asset for good cause until
distribution
9. order trx of 1/2 of IRA
10. order security int to cover questionable asset distribution
- qdro
- trust
bond for survivor benefit

A. Pension must be joined
B. Ct must make interim provisional orders awarding ea party 1/2 of undivided pension/retirement and order plan to treat them as married until distribution

Front 543

What does the derivative benefit of social security serve as evidence of?

Back 543

Congressional intent that social security benefits are not divisible as CP

Front 544

What are mandatory bifurcation issues that are disputed?

Back 544

1. CC 3023
2. CS 4003

Front 545

What is the five year rule?

Back 545

CCP 583.310: an action shall be dismissed by the court on its own mition or on motion of defendant, after notice to parties if not brought to trial within time described. Also time limit of 3 years to serve applies.

Front 546

Who may request a change of venue based upon good cause in a disso?

Back 546

Either party no matter who chose the venue.

Front 547

What are the exceptions to no oral testimony at a law and motion hearing?

Back 547

1. Contempt
2. If issue is crucial in case on which entire case will turn or if is critical pre trial matter that wil (a case that can be ruled upon by appellate court)l determine outcome of trial
3. change of custody cases
4. move away cases

Front 548

If the court wants to Reiflerize the issue, what arguments should be made?

Back 548

Argument against Refleizer is that the issue at hand is critical (custody) and thus requires a hearing. Litigants deserve their day in court. The court must consider the facts and not just apply a policy

Front 549

What was the outcome of Elkins?

Back 549

State court cannot adopt local rules that contravene state rules of court, statutory law or consxl law that guarantees due process in that a litigant has right to present all relevant testimony with both oral and documentary evidence and to have their day in court. Judicial economy is not enough to override this public interest. Per Carrlson - judge's refusal to finish a case and allow live testimony is reversable per se.

Front 550

Describe off limits orders:

Back 550

1. Mathews: court cannot order a particular case return to that judge for all matters
2. cannot order parties to follow recommendations of court staff
3. cannot order spouse to go to therapy unless 3190 case where dispute between parents/child poses a substantial threat of danger to child
4. Bias from the bench
5. Using religious sources to make judicial rulings
6. Orders restraining an adult's yet to be made speech without finding that the constraint met a narrow exception.

Bias is analyzed objectively as it would be viewed from an outsider

Front 551

What must a litigant do to avoid having their request for ADA accomodation denied by the court?

Back 551

1. Make sure they are ADA qualified
2. request cannot create undue admin or financial burden
3. cannot fundmentally alter type of service/activity

Front 552

What is a prove up hearing per FC 2336?

Back 552

The court may only grant a default order for disso if either affidavits are properly filed and certain information is included or the party seeking to take the default appears before the court.

Front 553

What must be alleged in a FC 2336 hearing and how can the court require someone to attend court anyway?

Back 553

The moving party must allege the grounds to grant the disso by default. If there are children, the paperwork must include proof by estimate of income of both parties if known of why they have no knowledge of the income, if there is a CE, must give estimate of assets and debts and the proposed distribution.

Front 554

When is affidavit prove up with FC 2336 not appropriate?

Back 554

1. long term marr and waiver of ss
2. change in custody especially with pro per
3. could be for large estates or debts

Front 555

What would likely be the outcome if a petition for disso did not ask for ss in a long term marr and then a default judgment was granted?

Back 555

No loss of jxn b/c waiver must be by express written stipulation or order of court.

Front 556

What are the limitations on a court for granting a nunc pro tunc order for disso?

Back 556

Only that it must have been possible at the retro date. Court has absolute authority to grant disso even to time before death.

Front 557

What was the CASCT's definition of a confidential communication as a result of the Flannagan case?

Back 557

A confidential communication is one where a person has an objectively reasonable expectation of privacy that conversation is not being overheard or recorded. If there is a history of recording and eavesdropping, the party cannot claim they thought it would be confidential.

Front 558

What are the options for one spouse to sue another for tort or related actions arising out of the divorce?

Back 558

1st priority is to use FL case but if there are new facts or circumstances not arising out of the disso itself, then the civil suit and disso case should be consolidated and probably heard in FL court.

Front 559

How would one obtain tax returns of a new mate?

Back 559

Cannot do. but can get W-2 to confirm the income to be used for tax purposes of setting support

Front 560

What is the work product protection?

Back 560

Is not a privilege. Can be invaded by courts if necessary. Is the sole product of the attorney's own impressions.

Front 561

What evidence code provisions allow in testinony of a child under the age or 12 to a medical provider re sexual abuse?

Back 561

EC 1253 - Hearsay can come in if made to a medical prof

Front 562

When is an agreement under CCP 664.6 enforceable?

Back 562

If recited orally before the court or if written and signed by both parties to the matter outside presence of court regarding a proceeding. Can be brought in and requested be made a judgment per 664.6

Front 563

Regarding the claim of unfair advantage and mediation, if a couple enters into mediation and this results in an MSA, may the W later challenge it and req that H prove that the MSA was not the result of fraud, duress, etc b/c of unfair advantage?

Back 563

No, Kieturakis - in mediation, the burden flip flops to the other party who claims that there was a disadvantage to show that it occurred because of the public policy favoring mediation and settlement. Otherwise, mediation could be used as shield/sword and would never settle cases. Public policy overrides the presumption of unfair advantage against the one who rec'd the "unfair advantage"

Front 564

What is an offer of proof?

Back 564

It is an offer that if a person testified or if certain evidence were presented, it would present certain facts. Offer or proof not good enough - must either submit stip or have live testimony. Opening stmts are not evidence, neither is argument.

Front 565

What is the difference between referring and nonreferring FCS mediation in CA

Back 565

Referring mediation: the mediator makes a recommendation back to the court if the parties don't agree.

Nonreferring mediation: are confidential and the court holds the privilege - decides what may come in as evidence.

Front 566

What aspects of private mediation are confidential?

Back 566

1. EC 1119 substance of mediation
2. EC 1121 mediator cannot reveal conduct by anyone during mediation

Front 567

May parties waive confidentiality in mediation?

Back 567

Yes, they may waive but it must be in writing, signed by all parties. Mediator is still incompetent to testify. Docs that were prepared specifically for mediation (and not req'd to be provided outside of mediation) cannot be disclosed out of mediation

Front 568

When is the marital privilege not to testify against the other no longer valid?

Back 568

1. if they are no longer living together
2. in litigation between them
3. Marital privilege is never valid for RDPs or long time cohabitants

Front 569

Assuming a social worker's report is presented as evidence by W, does W need to subpoena the worker to lay a foundation and bring in the evidence?

Back 569

Usually SW reports always come in subject to cross exam and to the weight the court accords.

Front 570

What are the general methods of setting aside a judgment in FL

Back 570

1. Clerical error
2. Motion for Reconsideration CCP 1008
3. CCP 473 - most liberal of the set aside statutes

Front 571

What are the two types of 473 motions for set aside?

Back 571

1. attorney mistake - relief is mandatory if atty takes blame
2. mistake, surprise, excusable neglect, inadvertence

Front 572

What is the definition of extrinsic fraud?

Back 572

Keeping someone away or "out" "ex" out of the legal proceedings - denying them the right to be present as in lying and telling them there was no court hearing.

Front 573

In order for the court to set aside a judgment under the statutes 2120 through 2129 - what must exist?

Back 573

1. Facts that if applied would have materially affected the outcome
2. The outcome must materially benefit the moving party

Front 574

Regarding filing an appeal, what factors would work against a party prevailing?

Back 574

1. If they are not aggrieved party
2. If order is not appealable
3. If the party invited error
4. If party accepted benefits of the judgment they are trying to appeal
5. Unclean hands

Front 575

What is the consequence of an appeal taken in a case of a moveway?

Back 575

The moving parent is restrained from moving out of state automatically for 30 days until the appeal period is over

Front 576

What property is exempt even if rights acquired durr marr?

Back 576

Social security and old age survivor benefits due to federal preemptio

Front 577

What does the Rossin case stand for regarding time of acquisition of property?

Back 577

Rossin Wife obtained disability insurance pre marr, made payments pre marr, became disabled after marr. Ct held that she acquired those rights prior to marr, no community fund used to purchase. Even if cp had been used to purchase, would be sp with cp reimbursement. B/c the wife purchased the policy pre marr, benefits were sp regardless of their function (replacing lost income) or the parties' intent

Front 578

Re Rossin case - what are the most important circs to consider on characterization of asset?

Back 578

1. Time of acquisition
2. Source of funds used

Front 579

What happens if the 2640 eats up all of the equity in a home and there is no community equity?

Back 579

The party is awarded to the spouse who owned the sp reimbursement. Is it truly sp? or is it cp with a 50K credit? If no cp equity, propert is awarded to party contributing sp

Front 580

What does FC 2640 (c) provide?

Back 580

Enacted 1-1-2005 - a party shall be reimb for sp of acquisiion of other sp's sp dur m,arr umnless transmuation in writintg 852 or writtenwaiver of reimb. Same cap and limitation as 2640.

Key language - unless there is a transm in writing. - rt of reimb.

Is it effect pre 1-1-2005? 2640 (b) was not. Retro? not addressed in bill. Remember FC 4 and Fellows. State intended to be retro.

Front 581

If parties die before disso is finalized w/o bifurcation, what happens to the 2561 presumption?

Back 581

It no longer applies. Lucas applies. If the parties had property prior to Lucas law, for example in 1980, and then in middle of disso in 2009 one dies after having made a claim

Front 582

If sep prop monies are used to pay off credit card debt or other living expenses, must the community pay back the separate property holder?

Back 582

no unless an agreement or understanding was had - otherwise a gift

Front 583

If a party pays off bills so as to qualify for a loan on a mortgage is there a 2640 reimb right?

Back 583

2640 talks about direct contributions, Paying off credit card debt to qualify for a loan is not directly related to acquiring the land or the home. There is a difference between acquisition and financing - debt was owed regardless of whether they bought the house or not. The acquisition is with the loan money. This is different than the school tax problem - paying school taxes was a condition precedent to building the home. Here it was the way they got the money to acquire the property.

Front 584

Marr of Cross - H contributes $30K money to W's sep property. H asks for 2640 reimb. What result?

Back 584

At that time, 2640 did not allow reimbursement as (c) does now. Ct held there was no transmutation to W's sep property b/c the improvements stick to the property. Wagner states that COA got it wrong. It is not the improvements that matter, it is the cash that was used. Ct missed the concept that alleged transmutation of putting separate funds into wife's asset and than not having a right to get it back

Front 585

Marr of Neil - estblished what regarding the date of the transfered or transmuted?

Back 585

The value of the property which identifies the sp value. 2640 is intent irrelevant. Get out of the Lucas business with intent

Front 586

What is the difference between a fiduciary relationship and a confidential relationship?

Back 586

A fiduciary relationship is such that one holds control and management over another person's property.

A confidential relationship arises when one reposes trust and confidence in another due to their close relationship. It ceases when that trust and confidence is lost.

A fiduciary relationship may or may not encompass a confidential relationship.

Front 587

What is the burden of proof on the party seeking to challenge beneficial title?

Back 587

Clear and convincing evidence

Front 588

Why is intellectual property, good will and creditworthiness not property?

Back 588

Because they cannot be divided or transferred.

Front 589

What case decided that non vested pension rights are property?

Back 589

CASCT in Marr of Brown decided to disavow the previous French rule b/c non vested retirement is a contingent interest in property. Pension rights, vested or not, represent a property interest.

Front 590

What does the case of McTiernan stand for regarding someone's "elite professional standing"?

Back 590

1. It is not property b/c it cannot be divided.

Front 591

What is a general definition of the "excess earnings" definition?

Back 591

Good will is decided by one of several formulas, one being excess earnings. Broadly put, it is a comparison of a professional's earnings with that of a peer of average earnings.

Front 592

What is the specific formula of determining good will value of business?

Back 592

1. Determine avg annual net income (pre tax) of the bus
2. Determine annual salary of typical situated salaried employee
3. From #1 subtract fair return on net tangible assets used by bus
4. Result is adjusted average pre tax earning of business
5. Subtract annual salary of the average person
6. Result is excess earnings
7. Multiply by proper factor
8. Discount to present day value
= excess earnings or good will

Front 593

Why in the case of McTiernan did the COA find that move producer husband's business did not have good will?

Back 593

Goodwill attaches to the traditional meaning of a business entity with assets, not a person who has an elite professional reputation like an actor, musician, artist, movie producer. It is personal to them and cannot be sold or bought.

Some aspects of good will:
1. future patronage
2. transferable with business ownershp
3. usually part of a business enterprise with assets and clientelle

Not goodwill:
1. Not mere future earnings
2. Not based upon a sole person's reputation or skills
3. public policy offended b/c of definition in B & P regarding what property is
4., Masses of population work for themselves and cannot be a business
5. creates a liability when there is no security except potential prediction of future incone

Front 594

What are some examples of property?

Back 594

1. The goodwill of a business (entity)
2. Copyright on books, royalties (expended efforts durr marr) even though underlying artistic creation is personal itself
3. a lawsuit - contingent money
4.

Front 595

What are the legislature's policies in enacting FC 2100 et seq?

Back 595

1. To protect and preserve the community estate's assets and prevent disappation upon divorce
2. To ensure full and fair child and spousal support
3. To achieve a division of cp contemplated by CA law on disso, nullity or legal sep
4. To reduce the adversarial nature of the proceedings and the attendant costs because of disclosure

Creates an affirmative duty to disclose all MFI re assets and obligations immediately upon separation

Front 596

What may be the subject matter of a premarital agreement?

Back 596

FC 1612: Parties may contract to:
1. rights and obligations re property
2. buy, sell, lease etc
3. dispo of property upon disso, death or other conditin
4. making of a will or trust
ownership rts in and dispo of death benefits from ins policy
5. choice of law
6. any other matter including personal rights and obligations not in violation of public policy or a statute imposing criminal penalty

Can not adversely affect cs order

Cannot waive ss if adversely affected party not rep'd by counsel or would be unconscionable at time of enforcement. Rep- of counsel not by itself auto reason for enforcement if unconscionable.

Front 597

According to FC 1615 - how is a premarital agreement not enforceable?

Back 597

Person attacking the validity of the agreement must show:
1. not voluntary (special definition)
or
2. unconscionable when executed and before signing, all the following applied:
a. not provided fair rzbl full disclosure of assets/debts of OP
b. no waiver of full disclosure to OP's info
c. did not have or rzbly could not have had adeq knowl of OP's assets/debts

Definition of voluntariness: rebuttable presumption that made voluntary unless ct finds (party against whom enforcement sought):
a. person had legal counsel or after being told to get counsel, expressly waives in sep writing
b. not less than 7 calender days between time first presented w/agmt and advised to seek atty and time agmt was signed
c. if no atty, fully informed of terms and basic effect, rts and oblg giving up, proficient in language of agmt
d. explanation of rts given up is written in a sep doc from agmt, delivered to party before signing agmt
e. pro per on or before signing agmt, sign doc stating he/she rec'd info and from who
f. no fraud, duress, coercion, capacity to agree existed

Front 598

What is the definition of voluntarily as related to statutes?

Back 598

intentionally, w/o coercion, an act of choice, free and restrained, based upon their own will rather than someone else's, w/o compulsion, implies knowledge of the essential facts

Front 599

What must a person prove to invalidate a premarital agreement?

Back 599

Proves either of the following:
a. not voluntarily - subsection c describes the 4 things the court must find or it is presumptively invalid

or

b. agmt unconscionable at time of execution and three conditions existed before signing (no disclosures, no waiver to rec'ing disclosures, no ability to otherwise know same info)

Front 600

If community property is unadjudicated, what is the nature of its ownership?

Back 600

tenants in common
(Marr of Brown)

Front 601

According to the Estate of McDonald, how does a writing satisfy the "express declaration" requirement of a transmutation?

Back 601

Must state on its face that a change in character or ownership of the subject property is being made. Cannot use extrinsic evidence to prove that the writing effected a transmutation. But if the writing is ambiguous, the court can look to extrinsic evidence as to the meaning of the words.

Front 602

What is the guiding policy for a court to follow when trying to determine whether to use the Pereira or VanCamp formula in valuing the sep prop business of a spouse?

Back 602

The court is not limited to using either formula or a percentage but must seek to use the one that achieves substantial justice as between the parties.

Front 603

May a spouse be reimbursed for using her sep property to pay for community living expenses when cp existed?

Back 603

No, it is presumed a gift.

Front 604

Define Pereira income

Back 604

From Pereira, the community income is defined as the amount by which the actual income of the separate estate exceeds the return which the intital capital investment could have been expected to make absent the spouse's personal management

Front 605

What are the three ways that undue influence can arise?

Back 605

1. Breach of fiduciary duty
2. taking advantage of one's necessities
3. taking advantage of one's weakness of mind or overcoming their will

Front 606

What are the four steps for Family law direct tracing that must be used to trace a sp asset from commingled funds?

Back 606

1. Reconstitute every transaction from account showing deposits of cp and sp money and show how much sp was available when acquisition was made
2. Knowingly and intentionally w/d sp $ as part of acquisition plan
3. Intendion to acquire sp with that $ (as opposed to cp)
4. Disclosed to other spouse intent to acquire sp

Front 607

What purposes is direct tracing used for?

Back 607

To trace the character of an asset or to trace reimbursement when cp or sp is used to purchase or expended on behalf of other property.

Front 608

What are the remedies for reinmbursement when using sp or cp for other's benefit?

Back 608

1. dollar for dollar reimbursement with judicial discretion to order interest per CC 3288
2. Pro tanto interest in underlying asset increase in value > equitable apportionment
3. 2640 reimbursement
4. Epstein credit

Front 609

Under direct tracing (not family law direct tracing) but the tracing itself, what is required?

Back 609

1. adequate records
2. chronological records showing every deposit and every expenditure
3. if periodic pmts made, evidence must show that each payment was made when sep prop funds were present in the account and ea w/d was accompanied by an intent to use sep funds
4. Perhaps also that the spouse communicated their intent to use sp $ for sp purchase

Front 610

What is not permitted in direct tracing?

Back 610

1. a party's oral testimony of intent combined with evidence that separate property expenditures did not exceed sep property deposits during a particular time

2. cannot present specific excerpts from accounts, summaries of the accts or evid that were both community and sep acounts and that sep funds were availb in sep acct when purchase made.

Front 611

What is family expense tracing?

Back 611

It is a subset of family law tracing.
Per Marr of See,:
1. charac of prop is determined at time of acquisition.
2. prop acquired durr marr is presum to be cp, including prop acquired from funds in acct in which sep prop funds are commingled with cp funds
3. sp prop claimant permitted to demonstrate tha sp funds were available at time of acquisition
4. sp prop claimant may show that sp prop $ were available by showing that at time of acquisition, cp $ was exhausted by comm expenses
5. annual recapitulation ok
6. total recapitulation over entire marr not usually ok unless records are not available thru no fault of tracer
7. sp who commingles sp with cp has duty of record keeping
8. No rt of reimb from comm if sep prop funds are used to pay fam living expenses or improve marital living, without agreement or understanding, whether such funds are used when comm funds are available or when they were exhausted
9. evid must be suff to establ actual amts of comm income and expenses over course of marr. Only showing sp available at certain times not enough unless can show disposition of funds. Will not overcome presump in favor of cp

Front 612

When do the special rules for FC 2640 apply?

Back 612

For 2640 a and b, for property acquired on 1/1/84 and after and the fam law proceeding commenced after that date - applies.

Front 613

Which moveaway cases suggest which timeshares are appropriately as sole physical or joint physical custody?

Back 613

Lasich: F had 20% of time - sole phys custody to Mom
Biallas: similiar to Whealon
Whealon: F had long alternative weekends with one midweek every week
Brody; McGinnis: F had kids 3 days per week

Front 614

When one parent wants to move away and the parents share a true joint physical custoday arrangement, how will the court analyze it?

Back 614

Will use de novo review if true joint custody

Front 615

Since a custodial parent's right to move is presumptive subject to the power of the ct to restrain per FC 7501, what must the non moving parent prove to stop the move?

Back 615

detriment to the children from the move and detriment to the children after they move

Front 616

What is a fn 12 case?

Back 616

Where the custody agreement may say joint physical custody and may state that one parent's visitation times are a certain percent but in reality, that parent has much greater contact with the children

Front 617

May parties in a UIFSA or a UCCJEA waive jxn?

Back 617

UIFSA the parties may waive personal jxn but in UCCJEA, cannot waive sub mat jxn. Only a court can decline SMJ in uccjea

Front 618

In case of mutiple filings, which state does Uifsa give priority to?

Back 618

The child's home state per uccjea but that state must still be able to exercise pers jxn over the respondent

Front 619

What is the difference in what parties may do to waive jxn in uifsa and uccjea cases?

Back 619

Parties may provide written consent to transfer CEJ of the child support jxn to a new state. Parties cannot do this for uccjea. Only a home state may decline and thereby transfer to a new state

Front 620

M, F and child all live in state A. Father and child move to state B. M stays in state A. Explain how custody and support jxn are affected:

Back 620

State A has CEJ over the custody issue as long as mother continues to live there unless the issuing state declines to keep jxn and at some point decides that their are no longer substantial contacts and evidence about the child in state A. At that point state A can decline custody and transfer to state B w/o mother's consent.

For c/s state A must keep it as long as mother lives there and must retain jxn unless M consents to transfer. Even if she consents to transfer support to CA, state A can decide independent of that whether it wants to keep jxn of the custody matter.

Front 621

What is required for one state to give full force and effect to another state's child support order?

Back 621

1. The issuing court had both SMJ and PJX over the parties
2. Rzbl note and oppor to be heard were given to contestants

Front 622

Modification of a uifsa order means what?

Back 622

Change in c/s order that affects
1. amount
2. scope
3. duration

and

1. modifies
2. replaces
3. supercedes
4. or otherwise is made subsequent to the original cs order.

Front 623

How may CA modify AZ's child support order?

Back 623

Only if the following occurs:
1. CA has jxn b/c party seeking modification has registered the AZ order in CA and EITHER

a. AZ is no longer has CEJ b/c the state is no longer the homestate or the residence of any contestant OR
b. each contestant has filed written consent to CA making modification and assuming CEJ

Front 624

If the issuing state no longer has CEJ for support and the child now lives with M in CA and mom registers the support order and then seeks modification to increase support even though the child is 19 (per other state rule, child is minor until 21), may the CA court refuse to modify or even terminate?

Back 624

Per the In re Lurie case, once the original state has lost CEJ for c/s, and the CA parent has registered the order in CA, CA uses its law to decide on modifications including the age of minority

Front 625

When is CEJ for support lost from the original decree state?

Back 625

When all of parties and the child no longer reside in the state or the parties both sign a writing consenting to a new state to have jxn

Front 626

Why was the appellate case of Rosendale dismissed regarding retroactivity of FC 1612 (c)?

Back 626

B/c court ruled that Fellows meant fC 4 is retro for all code sections unless otherwise stated in code or violative of (h) or due process issues (vested rights)

Front 627

In the case of Lopez defining good will, the court said that "the expectancy of future earnings . . .

Back 627

is not synonymous with, nor should it be the basis for determining the value of good will - but is simply a factor to be considered. A cp interest can only be acquired during the comnmunity. It would be inconsistent to assign a value to the postmarital efforts of either spouse.

Front 628

In Marr of Lopez, the court cautioned the trial court must make a specific finding of good will using the following factors:

Back 628

1. Practioner's age
2. health
3. past demonstrated earning power
4. profesional reputation in community as to his judgment and skill
5. knowledge
6. his comparative professional success
7. nature and duration of his business as sole practice or as part of partnership
8. his contribution to the partnership
9. value of fixed assets (property, properly aged accounts, a/r, collections, work in progress, work done but not billed, costs, liabilities owed)
10. other assets

Front 629

What are the most common valuation methods?

Back 629

1. sales proceeds
2. comparables
3. liquidation value
4. book value
5. adjusted book value
6. going concern value

Front 630

What does sales proceeds mean regarding valuation?

Back 630

What the value of the sales proceeds are

Front 631

What does "comparables" mean with regard to business valuation?

Back 631

Comparing one business to another

Front 632

What is "liquidation value" with regard to business valuation?

Back 632

Cutting up the business into pieces and liquidating it.

Front 633

What does book value mean with regard to valuing businesses?

Back 633

What do the books say about the retained value after all of the bills have been paid at the end of the tax year? however, it may show tax writeoffs and deductions

Front 634

What is the adjusted book value with regard to business valuation?

Back 634

This requires a forensic analysis. Usually performed on a cash basis. Analyze accts receivable, value of all assets

Front 635

What is going concern for business valuation?

Back 635

This means the whole is worth more than its parts.

Front 636

What is capitalized earnings for business valuation?

Back 636

To capitalize excess earnings means to apply an investment rate of return

Front 637

What is the Stevenson rule regarding business valuation?

Back 637

If one key person is in charge of the business or manages it and thus controls its value, the date of valuation should be at date of separation

Front 638

What are the elements of a business valuation that should be considered?

Back 638

real property
personal proeprty
work in progress
accounts receivable
debts
notes/liabilities
salaries
good will
inventory
depreciation

Front 639

What is the impact of a shareholder agreement limiting good will?

Back 639

The COA did not have a problem with it because it was not created to defeat a divorce. There were other benefits from the firm, pensions, savings etc

Front 640

What are the factors that should be considered in valuing a closely held corporation?

Back 640

1. nature of the business and history of the enterprise
2. economic outlook in general and for the specific industry of this business
3. book value of the stock and financial condition of the business
4. dividend paying capacity
5. good will or intangible value present
6. sales of stock and size of blocks of stock to be valued
7. market price of stock of corporations engaged in the same business that sell on the open market

Front 641

Why is the use of price earnings inappropriate to value a privately held corporation?

Back 641

Although the price-earnings method may be used to determine the value of closely held shares, it may not be the sole method relied upon for such valuation. Unlike publicly held stock which has a readily determined market value, closely held stock is not actively traded, and therefore has no established market value. If an active market exists for the stock, its market value could be determined, but if none exists then its investment value should be determined. This will satisfy the standard of "fair value" as defined and used in

Front 642

What does the concept of using a multiplier when capitalizing earnings?

Back 642

The lower the multiplier, the riskier the business, the less likely to get money back. The higher the multiplier, the more secure the investment is and the sooner investor will get back money. High multiplier means better investment.

High risk = low multiplier
Low risk - high multiplier

Front 643

When doing capitalization, do we use both the capitalization investment rate and the multiplier?

Back 643

No, one of the other Cap rate and multiplier are two different ways of looking at the same number

Front 644

What are the three basic approaches or their variations to determine INVESTMENT VALUE of closely held shares?

Back 644

1. Capitalized earnings approach
2. Dividend paying approach
3. Book value or net asset value

Front 645

How is the capitalization of earnings approached?

Back 645

Used to calculate earnings value. Requires multiplication of the normal earnings by a capitalizer (multiplier) rate which is supposed to reflect the past earnings and future expected earnings.

Front 646

How is capitalization of dividends obtained:

Back 646

seeks to determine the dividend paying capacity as a measure of value for closely held corps. should only be given minimal consideration

Front 647

Book value is determined how?

Back 647

determine the value of the stock by taking the value of underlying assets (look at the company balance sheet) and prorate the value to the number of shares.

Front 648

How is the market value of a public held stock determined?

Back 648

By the price at which it was sold on a certain day.

Front 649

How does one establish a hypothetical market value for a closely held corporation with shares?

Back 649

1. recent sales of unlisted stock (arms length made in good faith) or
2. price earnings ratio approach

Front 650

According to the marriage of Cream, what are methods of division of community property other than by judicial division?

Back 650

1. In-kind division: Each party takes one half of the fungible assets such as bank accts, stock in a corporation etc.

2. Trade off division: parties stipulate to settle prop disputes w/o regard to value by agreeing one will take certain items of value etc

3. Piece of cake division: One gets to cut the cake and the other one gets to decide which half to take. One party makes up two lists of the property which they believe are equal. The other party chooses which list they will take. Things that function as a whole cannot be divided up. (dining room furniture etc)

4. One Values - the other chooses: one values and the other chooses which one they will take at the stated value up to 1/2 the total value. An equalization pmt may be req'd.

5. you take it or I will take it: One party places a value on an asset at which that party is willing to let the other party be awarded that asset, or else the former will be awarded the asset at that value

6. appraisal and alternate selection: appraiser decides values

7. sale and divide

8. sealed bid:

9. interspousal auction -

10. arbitration

11. mediation

12. real property listed and reduced until sold or purchased by a spouse

13. combination