NEW CARDS TO ADD TO CFLS EXAM Flashcards
Bankruptcy - Types and Results
Ch 7 - discharge
Ch 13 - payment plan
Bankruptcy - Automatic Stay
- describe
- excs
Enjoins all actions against the debt until discharged; EXC – doesn’t stop or preclude paternity, enf of “dom support obligation,” visitation, disso (all but property), withholding of incomes for domestic support order
Bankruptcy - Property of Estate
All legal and equitable interests of the debtor in property, including their spouse that is under their sole or equal/joint management or control. Property given to “trustee” appointed by Ct to be liquidated to pay debts, etc.
Bankruptcy - Domestic Support Obligation
debt (+int) owed to spouse/former/C in form of support order (CS, SS, other)
o Look @ the purpose of the obligation in light of circumstances at time made
o Can include attys fees and expert fees if incurred in litigating support
REQUIREMENTS: written and not assigned to a gov agency for collection
TREATMENT: high priority when liquidated assets distributed by trustee
o ∆ file a proof of claim in a timely manner
• DISCHARGE? Not under Ch. 7, special issues with Ch 13 bankruptcy
Bankruptcy - Asset Exemptions
- explain
- CA tx of alimony?
Certain assets can be made exempt from bankruptcy proceeding, such that they do not become “property of the estate”. What is exempt is up each state.
CA state law provides alimony, support, separate maintenance as “reasonable necessary for the support of debtor” or their C is exempt.
Bankruptcy - Trustee Powers
- Liquidate assets, pay debts
- Avoid or unwind pre-petition payments
o “preference pymt” = made w/in 90 days of filing while the debtor was insolvent; up to 1 year if transfer to insider; can get judgment against creditor who got the $ (EXC: DSO ≠ preferential payment) - Reverse fraudulent conveyance
Bankruptcy - Preferential Payment
“preference pymt” = made w/in 90 days of filing while the debtor was insolvent; up to 1 year if transfer to insider; can get judgment against creditor who got the $ (EXC: DSO ≠ preferential payment)
Bankruptcy - Fraudulent conveyance
- definition
- MSA and FC
Defined: transfers of property done with intent of hindering, delaying or defrauding creditors; transfers where there is inadequate compensation
Can result in denial of Ch 7 bankruptcy discharge
MSA can be a FC if done with intention to hinder, delay or defraud creditors
Bankruptcy - Chapter 13 Issues
- who can get one?
- what is it?
- DSO treatment
- Only individuals with certain amount of debt, discharge upon completion
- Get payment plan, pay to trustee who pays debtors
Ch 13 and DSOs
o plan ≠ approved if debtor is delinquent on a DSO that is payable after petition date; MUST be current to be confirmation of the plan by B Ct.
o Must pay in full the DSO, waivable by creditor
o Discharge given only if current on his/her post-petition DSOs
• Can discharge non-DSO family law obligations
Bankruptcy - Chapter 13 and DSOs
Ch 13 and DSOs
o plan ≠ approved if debtor is delinquent on a DSO that is payable after petition date; MUST be current to be confirmation of the plan by B Ct.
o Must pay in full the DSO, waivable by creditor
o Discharge given only if current on his/her post-petition DSOs
• Can discharge non-DSO family law obligations
Contempt
- what kind of proceeding is it?
FL Contempt – Criminal proceeding but JC forms can be altered to seek civil only; crim standards and rights and laws apply, must inform of rights, waiver in writing
o Civil – contemner can end sentence by doing what previously refused to do
o Criminal – cannot undo or remedy or shorten the term w/ promise to not do
Contempt
- what is enforceable pursuant to contempt?
any order commanding conduct – like non-support and non-atty fee contempts, newer support and atty fees contempt, family support orders, spousal support and visitation orders, discovery orders, impugning ct integrity
o SS orders – can annul contempt if able to show inability to comply
o Visitation - >14 yo hard to force (Coursey v. Sup Ct), no help with < 14 yos
o CS/Family Support orders – enforced the same under FC 4501
o Felony to remove C and hide them
o In-kind division of property (rather than equalizing payment) = contemptable
o Atty fees if related to CS/SS = ok; if arises out of K/MSA ≠ contempt
Contempt
- elements
(1) existence of a lawful order
(2) knowledge of order [questions about whether order must be written or not]
(3) ability to comply with the order [assumed w/ recent order; affirmative defense]
(4) willful disobedience of the order [free will of ∆, not necessarily “evil intent’]
Contempt
- Statute of Limitations
CS, SS, FS – 3 years EXC CS collectable for up to 10 years; All other cases – 2 years
Contempt
- service of motion
- what if P is receiving welfare
Personal service upon citee, ≠ atty [unless P concealing self]; NAR is okay
If P receiving welfare, notice must be given to DA’s office of contempt
Contempt
- amendment of pleadings
Amend pleadings @ any time EXC if →prejudice; give early notice; may wish to consider seeking or agreeing to a continuance if amendment comes near the time of the hearing
Contempt
- proceedings
- what should be done
- rights?
Criminal ∆ arraignment required – rights, charges, burden of proof, etc.
- Advise rights: counsel, silence, speedy trial, stay of criminal proceedings, subpoena power, BOP (beyond a reasonable doubt), deportation possibility, cannot be called as an adverse witness, possibility of needing to reimb co if found guilty.
- 5A able to be triggered EXC if Pet makes it a civil contempt (then not 5A)
Contempt
- right to jury trial?
Yes, if potential punishment is 180+ days; some think anytime jail is possible
• CCP1209 – up to 5 days/ct AND/OR $1k per count fine; EXC: 3rd contempt = 10 days
• Multiple counts can → jury trial (36+ counts or state on pleadings “civil” contempt or don’t want to seek jail time of 180+ days)
Contempt
- potential punishment
CCP1209 – up to 5 days/ct AND/OR $1k per count fine; EXC: 3rd contempt = 10 days
Contempt
- defenses
- mitigating factors
- non-defenses
Defenses:
o Ct can dismiss on own motion – request @ arraignment, @ beginning of hrg
o Discharge of invalid orders
• Must be clear so that a reas person of common intelligence knows what to do; Cannot be “don’t disparage” vague orders
o Paternity – DA + unrep’d P agreement is voidable if not advised of rts to trial and, if they had known re rights, they would not have executed the agreement
o Double Jeopardy – failure to pay on diff dates may be okay despite double jeopardy if able to show that able to pay on dates subsequent
Not Defenses
o Double jeopardy when able to pay later
o Offsets due to citee
Mitigating Factors/Arguments
o Unemp in SS (not in CS) EXC willful refusal to be employed / underperf.
o Credits due for retirement, disability payment directly to claimant (unless pymt were taken into consideration when making the underlying order)
Contempt
- considerations re: contempt orders
- People present boxes checked → presumption present and knew order for contempt
- CS cannot be contemptable unless written order, even if a detailed minute order
- Order must state affirmative action [someone must do something]
Contempt
- appeal v. writ
- standard of review
Writ of Habeus Corpus or Certioriari ONLY!
Not appealable as adjudication is fine and conclusive
Standard of Review = did court exceed its jx? If yes, sent back. Otherwise, upheld
o TC should make finding with particularity and specificity for review purposes
Contempt
- what do you do if someone violates their probation?
If P fails to comply with probation – file new RFO re contempt + file RFO to have probation revoked + ask both be heard concurrently; Revocation = jail time
Contempt
- penalties for contempt
- stay of execution of contempt?
1st Offense – 120 hours OR prison time / count
2nd Offense – 120 hours + prison time / count
3rd Offense – 240 hours + 240 hours prison / count
• Sentences may be concurrent or consecutive
Civil – incarceration can be forever (EXC where court finds ongoing jail is futile)
3 day stay for any atty contempt orders (to file a writ; cannot file an appeal)
Contempt
- tips for representing moving party
Tips for Representing MOVING party
Don’t let counts accumulate, promptly file, clear up ambiguities early, number each count, identify civ/crim, subpoena bank records, etc.
Contempt
- tips for representing citee
Tips for Representing Citee
Make motion to dismiss, always ask for jury trial, be wary of stips, consider a wage assignment, affirmative defs (but testifying will be needed), when OP rests, make a 1118 motion and then call them as W
Custody to Non-P
OK if C has been living in a “wholesome and stable” environment, person giving adequate and proper guidance may be able to get custody (FC 3040(a)(2)); stability, continuity, BIC, access to ongoing medical treatment from guardian, etc.
Findings needed to give Custody to Non-Parent
Findings Needed w/ BOP (C+C evidence)
o Detriment to C to be removed from wholesome and stable envir; AND
o BIC is met by placement with non-P
Upon showing of above, BOP shifts to P to show facts otherwise, based upon the preponderance of the evidence.
• REMEMBER ICWA if P is an Indian in a federally recognized tribe
Standards for Terminating Guardianship
Guardianship of Kassandra H
o whether or not the need for guardianship has ended AND
o demonstrated parental fitness to resume custody of the C.
De Facto Parent Status
5.502
person who assumes parental role on day-to-day basis for long time and fulfills C’s px and psychological needs; bonded, unique info re kids and acting as a caregiver
o Access or right to visitation with C ≠ give you de factor parent status
NonParent Visitation
- types (list)
- stepP
- GP (Ps alive v. Ps dead)
- SS couple
- prior guardian
Step Parent Visitation
o order cannot conflict with Ps visitation/timeshare
o defer to parental concerns (special wt given)
o preponderance of the evidence
Grandparent Visitation
Two ways to look @ - (1) GP visits when Ps alive, v. (2) GP visits when Ps dead
GP visitation with P’s alive
GP visits when Ps alive
• Find: Preexisting GP-C relationship
• GPs get visits if in BIC but if Ps disagree, GPs have a rebuttable presumption, but visits cannot conflict with rights of birth Ps not a party to the action
• No visits if Ps married EXC Ps living sep on perm basis, 1 P is absent 1+ months, C doesn’t live with either P, C has been adopted by step-P
• GP termination of Parental Rights? Possible but not where 1P is living w/ the GP; GP couldn’t claim de facto status b/c 1 P was living w/ GP
GP visitation with P’s dead
- Qualifying relationship needed and must consider nature and extent of the visits before application
- Surviving P can thwart request by chiming in as to thoughts on BIC, especially those of a fit parent
- Adoption by someone other than StepP or GP terminates visits
No GP visitation if Ps alive and married EXC ….
Ps living sep on perm basis, 1 P is absent 1+ months, C doesn’t live with either P, C has been adopted by step-P
Parentage Proceeding - JX
- sex in state
- assisted reproduction in state
Parentage Proceeding - Venue
- C in Co or is found there
- adoption agency located in Co.
- Co where probate proceeding held
Time to Bring Parentage Proceeding?
o ANY TIME to ESTABLISH a relationship on marital parentage presumption or putative marriage presumption
o WITHIN REAS TIME to establish NON-EXISTENCE of relationship under presumptions. Generally 2 years if F think not the father of C
SSC + Parentage
SS couples: paternity OK where holds C out as own (“presumptive parent”) ; If a PRESUMPTIVE PARENT – C+C evidence needed to divest parental rights
Parentage + Name Changes
Judgment can require name change for C (consider time using name, effect on relationship, ID of C based upon name, BIC in changing it)
Parentage + Blood Testing
BLOOD TESTS - w/in 2 years of trying to disprove) ct can order upon motion of any party or its own motion; refusal to test is admissible fact against P; rt to privacy ∆ can choose own testing expert
Paternity and Vol Dec of Paternity
Effect of entry of judgment of paternity; can set aside within 60 days and results in conclusive presumption of paternity, suff for c/v/support orders
• Conflict between VDOP and presumptive P – weigh issues
• DVPA – get Judgment under DV-190 for unM’d parties
Presumptions of Paternity
Marital Parentage Presumption – H+W, born during M or w/in 300 days of M terminated → conclusively presumed C of M
• Genetic material used post-mortem ≠ presumption where not born within 300 days and no consent to use of genetic material was given
Putative Marriage Presumption - M-F make colorable attempt, C born during attempted M or w/in 300 days → conclusively presumed C of putative M
• Applied to SS F-F couples – presume non-bio M = parent. Elisa B.
Not Presumptions of Paternity
C of rape
C product of statutory rape (F>21; M<15) and F is convicted of statutory rape
Conflicts in Paternity Presumptions?
Ct must weigh conflicts and use common sense approach and arrive at 2 parents; laws might change.
Biological presumption ≠ always trump presume parentage presumption
Post-mortem Paternity issues
Use of frozen semen ≠ parentage presumption where not born w/in 300 days of death + no consent to use sperm
C must show by C+C evidence held out by deceased F as C to get parentage and money; evidence must be SO clear as to not leave substantial doubt
Setting Aside Paternity Judgments
2 years required for filing, including proper information as to why previously determined to be F but it was in wrong. Set Aside can be denied if not in BIC (relationship with C – possible denial)
Work Product Privilege Protects?
protects any writing that reflect atty impressions, conclusions, opinions, legal research or theories and is ∆ not discoverable in any circumstance. Rationale: protect trial preparation and allow it to be thorough.
o Atty Writings
o Witness statements obtained through atty-directed interview
What can you get through discovery?
anything reasonably calculated to lead to admissible evi.” Which are relevant to subject matter, fishing is okay, can get contentions outlined and docs to support.
Types of Discovery
ROGS, DEPOS, RFAS, PRODUCTION, EXAMINATION, EXPERT EXCHANGE
Interrogatories
- types
- response
- objections and non-objections
Form, Special
Response due in 30 days or objections waived, must be verified (unverified are admissions, but not considered a response per se); may be amended but prior version okay for impeachment.
Objections: Priv (WPP or privacy), exceeds permissible scope, seeks contents of documents, info equally available, over 35, oppressive, improper form.
• Not Obj: HS, opinion, asked/answers, assumed facts not in evi., fishing, compound, unintelligible, confidential, burdensome, “IDK”
Depositions
- notice requirements
- deposition rules
- obtaining documents
- obtaining medical records
- obtaining consumer records
Notice or subpoena – 10 days notice but cannot be w/in 20 days of lit start; Notice must include intention to audio, video or instant display depo
• 20 days notice to get consumer protected records or appear w/ docs
• Objs to notice waived if not raised @ least 3 days before
1 depo only w/o leave of court; 7 hour limit unless expert
Private Docs – in camera review of new spouse’s income is okay, not providing other firm partner’s financial records is okay (right to privacy)
• TC has broad discretion to balance privacy v. need for information and give safeguards to protect confidential docs disclosed.
Medical records – privileged, not waived by denial of med problems.
• Priv balanced – Need for Info v. Privilege IRMO Carney
Consumer Recs = health care, financial inst., atty, insurers, accountants, edu.
• Notice to consumer @ least 10 days before return date on SDT
• Mtn to Quash precludes disclosure of docs until ruling made
Requests for Admissions
- what do you get
- how many can you ask?
- what should accompany and why?
- responses
Get YES/NO re: facts, docs, opinions, application of law
No more than 35 EXC if you do a dec re necessity
Do w/ docs or Interrogatories
• ROGs will say “If your answer to RFA #X is anything other than an unequivocal NO, please ID each fact, person, doc that supports that fact.” Then demand for production will say “Give all documents in RFA #X.”
Response: ask for protective order, partially admit, deny, must try to answer
• Failure of timely response – waives objections
• Admitted matters = conclusively established
• Wrong deny something can → fees
Demand for Inspection/Copying of Documents
- response
- M&C requirement
- MTC
Demand, not a Request
Response under oath and may deliver as kept “in ordering course”
• Must make diligent and reas. Inquiry
• Magic language: “Never existed,” “destroyed/lost/stolen,” “never or not now in possession,” + list who might have.
o No response → No M+C requirement
o Further response Mtn – w/in 45 days, M+C required, sep stmt required
PX/Mental Examinations
Seek by motion based on showing of good cause w/ specific facts
Examinee’s atty and report may be present, okay audio rec mental exam
Kinds include:
• Vocational Evaluator – FC 4331
• CCE, Paternity DNA tests, drug tests [based upon HHS protocols]
Motion to Compel
- grounds
- fees
• Grounds for MTC - inadequate or missing responses, objections based upon privilege, oppression or available to others;
o fees generally awarded to prevailing P; sanctions for willful misbehavior
o Filed where the action is filed, not where the W is located
What is “EVIDENCE?”
EVI = TESTIMONY; TESTIMONY = SWORN STATEMENT
o Atty statements, opening, closing ≠ testimony ∆ not evidence
Marital Privileges
Spousal Privilege AND Confidential Marital Communication
• Spousal P = cannot be called v current spouse unless def-spouse agreed
• CMC P = cannot be called to testify about stmts made during M
Suspended – (1) actions btw spouses, (2) actions btw former spouses to set support or if property/debts not adjudicated; Demanding P cannot claim privileges themselves (they waive them)
Common HS exceptions
- Admission of P
- Dec against Int
- Prior Inconsistent Stmt
- Prior Consistent Stmt
- Past Recollection Recorded
- Business Record
- Former Testimony
- Family Hx
- Character Reputation
Marital Agreements
- presumptions
- types
PRESUMPTION THAT ALL PROP ACQUIRED DURING M IS CP; PRESUMPTION ONLY OVERCOME BY CLEAR STATEMENT IN THE DEED OR WRITTEN AGREEMENT OF PS
• Ps may agree to change the status of their property rights (owed or future), income
• MAs modify application of the law or change the character of their property
Types: PMA, PostNup, Transmutation
Transmutation Agreements
- what are they?
- requirements?
- examples
Interspousal txn or agreement changing the character of the property; FC 852
Requirements: WRITING + EXPRESS DEC + JOINED/CONSENTED/ACCEPTED
o Writing requirement
Grant Deed = express writing because affirmatively does something (conveyance of prop.)
“adoption/beneficiary form” for 401k ≠ express dec for transmutation
DMV forms ≠ ok as a writing for transmutation.
o Acceptance/consent must be by the P whose rights are adversely effected
o EXC: “Tangible articles of personal nature” ≠ writing, SP if bought during M; NOTE: Car does not qualify.
Marital Agreements + Public Policy
- what can they not do?
Promote divorce
Limit CC or CS
Provides “fault” penalties
Limits/waives SS (if unrep’d +/- unconscionable @ time of enf – after 2002)
Defenses to Marital Agreements
Voidable based upon fraud, UI, duress or lack of consent
Undue Influence
P uses confidences/auth over another to get unfair advantage or take unfair advantage of their weakness of mind or distress
o K that gives unfair advantage is presumptively product of UI
o Overcome with independent atty + acknowledgment neither got unfair adv.
• Show: Unfair advantage; BOP shifts to advantaged to show no UI, freely done, etc.
Premarital Agreements
- when not enforced?
- factors re: voluntariness?
Not enf if
o (1) not executed voluntarily
o (2) agreement was unconscionable @ execution and no fair/full disclosures by OP + no voluntary or express waiver + P did not have or could not have had adequate knowledge of OPs finances.
Voluntariness Factors: (1) indep counsel @ signing or express waiver of indep counsel, (2) not 7 days to review
Marital Agreements
- what are they?
- requirements
- change of prop character through trust?
Spouses may agree to change status of any or all prop currently owned or future by way of a TRANSMUTATION (FC 850 subject to FC 721 fiduciary duties)
Requirements:
• MUST be adequate disclosure
• Valid only if made “in writing by an express declaration that is made, joined in, consented to or accepted by spouse whose interest is adversely affected.”
TRANSMUTATING SP THROUGH TRUST INSTRUMENTS DURING M
o Property in Trust during M – must specifically ID property as SP to be a transmutation ∆ CP, even if expressly conditioned upon the M (“..so long as we are married”) – once specific property goes into trust – transmutated!. General “all my property” ≠ change.
Property - Analysis
WHEN WAS THE ASSET ACQUIRED?
o Pre-DOM or Post-DOS – presume SP
o During M – presume CP
VALUE
APPLY CREDITS
DIVIDE THE ASSET
Property - Burdens of Proofs
Overcoming CP presumption – BOP on SP-claimant (generally tracing, re-char)
Overcoming SP presumption – BOP on CP-claimant
Property - Standards of Evidence
STANDARDS OF PROOF – mostly preponderance of evidence, some are C+C (evi so clear that it leaves no doubt, ascension of all reas minds); Ev 662 title presumptions. Generally you will see C+C evidence required when there is a societal interest in protecting someone or something.
C+C Standards
• If 1P is trying to claim title changes to benefit them – C+C
• Termination of parental rights to dependent C
• Presumption in favor of title + presumption of UI not in txn
• Where 1P seeks to show OP waived signif prop rights
• 1P seeks to stop the OP from asseting a right
• 1P seeks 100% of an asset txfr’d or undisclosed in viol of FD
• 1P consent to title being wholly in the name of OP @ buying; IRMO Brooks and Robinson – bought prop and H let W take in her name alone ∆ SP. Irrelevant CP $ used to pay down the mortgage. Cannot trace, can only overcome with C+C evi title not reflective of Ps agmt; Defense: UI, Doctrine of Waiver, Moore/Marsden
Property - Asset Divisible?
- considerations
- when acquired - explain
- treatment of PERS annuities and retirements
You must first determine if something is an “asset” and therefore divisible.
Consider:
o nonvested prop rights (such as non-vested retirement) ≠ asset ∆ not divisible
o person-business (he was the bus.) ≠ asset ∆ not divisible
o social security benefits = asset but divisible as SP
Time of Acquisition is Important
o PreM equitable right, perfect after M = SP
o Marital equitable right, perfected after DOS = CP
o Anything acquired + perfected during M = presumed CP, even inheritance (you simply then have to overcome the presumption)
• Options = K that can be unilaterally exercised by P holding option ∆ becomes “asset” as soon as the option is acquired, even if it mature later
Sonne – PERS annuity. Held it was a contingent future interest but, as an annuity (sum to be paid regularly), it was an asset ∆ divisible. But because it was preM, but paid during M, SP but with a CP reimbursement to the extent of the CP $ paid.
Retirement (Green) – Service credit benefit depends on marital status when svcs rendered. If preM or postDOS, SP, if during M, CP
Property - Date of Separation
- define
- implications
- test
Parting ways with no present intention of resuming marital relations
Implications: No CP, earnings taxed solely to earner, various codes spring to life
Test: (1) subjective (did someone call it quits?), (2) objective (would someone have heard that and known it was over”)
Property - Rebuttable Presumptions in Property Law
- Community property
- Joint Title / Lucas (pub policy of joint title cannot be overcome by tracing)
- FC 2640 reimbursements upon dissolution
- Separate property
- Family Expense
- Presumption SP is used to pay SP debt
- Presumption of UI when 1P got a better deal
- Confidential Relationship
- Lender Intent Doctrine - Loan proceeds during M = CP
Property - Lender Intent Doctrine
Lender Intent Doctrine
Generally Loan proceeds during M = CP
• Unsec loan = presumptively CP b/c lent on ‘strength of M’ so, if you want it to be SP, must show lender reliaed upon SP to make it SP
• Secured loan = CP or SP depending upon the security for the loan
Property - Interest v. Ownership
- importance of distinction
- way interest are gained
distinction is important (ownership poss. more $ and force sale)
Interests can be reached in the following way …
o SP interest in CP via transmutation or 2640 reimb rights ONLY
o CP interest in SP via commingling (unable to segregate), transmutation, contribution of $, contribution of efforts
Property - Fiduciary Duty Areas
PMAs [no confid relationship ∆ no UI presumption; possible “de facto M” when living together a long time, have kids together, etc.
General presumption of confid relation @ DOM [pre-sep disclosure of opportunities, duty of loyalty, duty of case in mgmt/control of CP]
Mgmt and control of CP under FC 1100*
Interspousal interactions
Post-sep fiduciary duties
Property - Two Duties
(1) Confidential Relationship and (2) Fiduciary Duty
Confid Relationship – de factor (trust in another), presumption H+W
Fid Duty – 1P mgmt/control over prop/affairs of another, H+W
• IRMO Bonds – fid duty implicated when 1P gets advantage over OP, if gotten – UI presumption. After 1992, must be a “big” advantage to P
Both CR/FD = confid reltnship ends, but FD continues while property retained
Property - BOFD and UI
- what is it?
- UI
- Remedies for BOFD
WHERE THERE IS A BOFD, YOU PRESUME THERE IS UNDUE INFLUENCE. this shifts the BOP to the benefited P to rebut the presumption of UI.
o BOFD w/o intent – constructive fraud; fraudulent intent = actual fraud
• Failure to disclose asset or value + advantaged = BOFD
UI = taking advantage of (1) weakness of mind or (2) another’s distress or (3) use of CR or FD to get unfair advantage over other (fid relationship ∆ you can’t get a unfair advantage)
Remedies for BOFD/Fraud: finding of fraud, restitution (make CP whole and disgorge profits from SP estate). Example: CP used to pay SP mortgage – dollar-for-dollar reimb, but take “unjust profits” (pro tanto increase in value), possibly get prejudgment interest
FC 1101
Duty re Mgmt and Control of CP
Property - Duty re Mgmt and Control of Property
- code section?
- what can 1P do re: property
- timeframe for bringing an action
- remedies
FC 1101
Can manage and control CP as though SP subject to fid duties
o ≠ dispose of CP under FMV w/o consent (set aside gift if you do)
o ≠ dispose, encumber home, furniture, etc. or clothing of OP w/o prior consent
o ≠ dispose of substantially all CP business assets
• Must disclose assets upon request (∆ non-managing spouse should be requesting)
Action must be brought w/in 3 years of actual knowledge re: transaction/event OR upon death of the spouse OR legal sep/disso/nullity (no 3 year requirement)
Remedies: reimbursement, disgorgement of UI (up to 100%), etc.
o Stocks sold in viol ATROs – disgorge profit; lottery winning taken where W refused to disclose source of the $1, judgment set aside for failure to disclose pension information, required accounting for $ received before DOS
Property - Transmutation
- code section
- generally
- consideration needed
- transmutation analysis
FC 850
Generally: change of ownership of property during M (SP to SP, CP to SP, SP to CP)
No consideration is needed (but watch for UI), gift can be considered transmutation
Analysis: (1) valid as to form? (no writing pre-85, after, writing needed) (2) obtained free from fraud?; and (3) was there was a waiver of 2640 reimbursement?
Property - Transmutation
- UI analysis
Analysis for UI + Transmutation - was there a confidential Relationship? Was it opted out of or resurrected?
• Did transmutation arise out of the CR?
• Did 1P benefit from the transaction?
• If so – adequate consideration? Value on date of transaction
• Does the advantage trigger the presumption of UI?
• Overcome the Presumption?
o Free/vol made transaction
o Full knowledge of facts
o Complete understanding of effect
o Txn fair and just?
o Adequate consideration given?
Property - Tracing
- definition
- presumptions
- tracing methods
DEFINITION: tracking of $ through particular account where they were commingled
o Not applied to uncommingled accounts
o Direct tracing required only when $ taken from commingled acct (IRMO Ficke)
PRESUMPTIONS
o 770 – preM property, inheritence, rents, issues, profits of SP = SP; rents/issues, etc. from SP business are SP until reapportioned by Ct but W2 income is definitely CP
o Presumption acquisitions during M = CP (weaker presumption @ start of M)
o Presume family expenses are 1st paid with CP
o Loan proceeds / “Lender Intent Doctrine”
METHODS OF TRACING – direct; equitable apportionment tracing; family expense tracing (exhaustion of CP $, don’t do if tracing entire M, look @ point in time when asset was acquired to determine if CP/SP).
• BOP is on the commingler to keep good records
Property - General Property Presumptions
PRESUMPTIONS
o 770 – preM property, inheritence, rents, issues, profits of SP = SP; rents/issues, etc. from SP business are SP until reapportioned by Ct but W2 income is definitely CP
o Presumption acquisitions during M = CP (weaker presumption @ start of M)
o Presume family expenses are 1st paid with CP
o Loan proceeds / “Lender Intent Doctrine”
Property - Roadblocks to Obtaining a Tracing
- counterarguments?
• ROADBLOCK TO TRACING: Remember jointly titled assets presumed to be CP but entitled to 2640 reimb (∆ joint accounts w/ 2640 reimb could block a tracing)
o COUNTERARGUE: USSC allowed tracing through 2640 claim (Walrath)
Property - Moore-Marsden
- what is MM?
- what do you include in the formula?
- calculations generally?
SP in which the CP has a pro tanto interest in the SP asset.
Include in the formula:
o Principal reducing mortgage payments made with CP
o SP property improvements paid for with CP
• Carrying costs for prop tax + interest = reimbursed, but not under MM
• Case law is differing on prop tax but most cases say reimb.
CALCULATIONS: Generally you look at the purchase price, downpayment, preM paydown. Also look at CP payments of principal payments, etc. FMV of asset at DOM and DOS, etc. to figure out ownership percentages. Whatever the CP interest is gets ½ between both parties.
Property - Constructive Fraud
- what is it and what are the remedies?
- effect of consent
- waiver and BOP re waiver
BOFD, actual / constructive fraud → remedies restitution and accounting, reimbursement, pro tanto interest or reimbursement with interest
Consent + CF – if you consent to the fraud, you are not wronged by it. Any use of CP to benefit of OP’s SP is, at a minimum, subject to reimb., regardless of intent
• WAIVER of prop rt rests on consent. Did someone consent w/ knowledge of facts?
o BOP on P claiming waiver to provide it by C+C evidence
Property - SP Business
- goals
- methods (2)
- “reasonable compensation” and BOP
Goal with Pereira and VC is to create substantial justice for both Ps for the CP labor that was used towards the SP business. Was the comm reasonably compensated? The way in which you get ‘substantial justice’ is by making sure that the comm. received “adequate compensation” for CP efforts expended for a SP business.
PEREIRA – personal services are the primary source of increased value; Personal service businesses such as hardware store, or where 1P makes all decisions about buying/selling stock, etc. (IRMO Duncan)
VAN CAMP ¬– capital intensive business, not based upon personal kills.
BOP on P claiming CP interest to show direct relationship btw OP’s efforts and success of the business
REASONABLE COMPENSATION ≠ same as salary; what should CP have received as compensation? Did the community receive such compensation?
Property - FMV?
the highest price on the date of valuation that would be agreed to by a seller being willing to sell without urgency to sell. This only works if there is a market for the asset being sold; if there is no market, how do you value? INVESTMENT VALUE STANDARD (used in FL and oftentimes when buying out a ‘silent partner’ spouse)
Property - Unequal Division by Ct?
not able to order
EXC parties agree in court or in paperwork
FC 721
Fiduciary duty requires providing access to books, full information upon request, accounting to spouse
FC 1100
Not able to gift or dispose of CP for less than FMV and Ps must atc with respect towards OP in mgmt and control of property under FC 721
FC 2100, et seq.
FD continues from DOS through division of assets, provide full and accurate disclosure of assets, etc.
o Timeframes for PDDs – 60 days of petition; 60 days of filing response
o Timeframe for FDDs – before resolution of 45 days before 1st trial date
o PDDs needed for summary dissolution
Ethics - Advertising
- issues with social media and ethics
- examples of what is and is not advertising
Social Media posted by atty will be advertising where it is a solicitation or where it is an electronic media advertisement; more difficult b/c of social media, but still reg’d
Examples:
• If there is no personal information – not an advertisement as it doesn’t put forth availability for services for pecuniary gain
• Inviting more clients may be advertising
• “tell your friends and family to check out HN.com = advertising
• “free consultation” = advertising because consult would → pecuniary gain
• offering literature without soliciting ≠ advertising
Ethics - Fee Agreement Requirements
Must be in writing when reasonably foreseeable fees will exceed $1k. Agreement must give general nature of services to be provided, basis of compensation (hours rates, flat fees, other charges), responsibilities of P/atty relative to K; give copy to C
Ethics - Interest in Property for Fees
- requirements
- code
CRPC 3.300 – Getting interest in something of the C’s for fees
o Txn or acquisition must be fair and reasonable to C
o Fully disclose in a way that the C can understand
o Advised in writing to seek indep legal advice
o Give C time to seek independent legal advice
o C then can consent in writing to terms of txn or acquisition
Ethics - Contingency Fees in FL
- concerns re: CFs in FL
- requirements for CFs
public policy v. cont. fees b/c ‘promoting divorce’ – but may be ok if responding to dissolution. OK w/ securing arrears of CS (possibly not b/c of feeling that P entitled to CS arrears = child ∆ P cannot contract for them to get less than entitled to)
Requirements - % agreed upon, disbursement ways/costs incurred, if C has to pay things not covered by CFA, “fee not set by law but is negotiable”
• Hybrids of hourly and contingency – must meet requirements for both
Ethics - Liens
No liens against CS payments or arrears [public policy – make sure kids get $]
FLARPL – Family Law Atty Real Property Lien – OK to get promise secured by real property IF there is a CP interest pursuant to FC 2033.
o Either P can encumber their ½ int in CP to pay “reas atty fees”
o Liens can only attach to that P’s CP interest
o Notice of lien must be personally served on OP / OPC 15 days before recordation of the lien and be accompanied by a Dec outlining description of prop, belief as to FMV of property (with docs to support), encumbrances on prop @ date of Dec, list of comm. assets/liab and estimated values, amt of FL atty lien.
• Non-encumbering spouse can file ex parte objection to lien.
• Ct can deny the FLARPL if Ct believes it would → unequal division
o Lien ≠ extinguished by lien’s property being given to OP but Ct can expunge for other reasons (problematic to the atty with the lien)
Ethics - IRMO Davenport
overlitigated + ordered to pay fees of OP despite OP having assets and property.
Ethics: COIs
- list
fees from 3rd parties former client prospective client consultations joint representation mediator atty duty of loyalty successive rep relationship with opc
Ethics - COI - Fees from 3P
not allowed unless not interference w/ attys prof judgment and no breach of confidentiality; should get another waiver signed by C
o Fees remaining go to 3P; if conflict with client, keep in trust until resolved.
Ethics - COI - Former Client
3rd P (not current client) has standing to disqualify you if you gained confidential information during the course of the prior representation
Ethics - COI - Prospective Client Consult
determine at earliest stage of contact with atty because you get confid info in consults; ultimate retention doesn’t matter
Ethics - COI - Joint Representation
shouldn’t happen, but if you do – full disclosure and waiver, explain agreement clearly re: dual rep. If you are going to do it, suggest separate counsel, verify Ps agree on all material issues, understand/disclose all possible areas of conflict between parties, narrowly define scope of rep in writing (and don’t deviate), written disclosure of adverse consequences of jt rep., encourage independent legal advise before execution, ID named client (petitioner only), obtain informed written consent.
o If actual conflict in joint rep arises – you must cease dual representation
Ethics - COI - Duty of Loyalty
owed to current client, can’t take another, adverse client; where potential witness is a COI, must get written consent from both clients as to any actual and foreseeable adverse consequences as to the client.
Ethics - Vicarious Disqualification and Conflict
(“imputed disqual.”) – attys working together = one atty for COI EXC Chinese wall/similar.
• Former Judge who participated as judge in the matter + received ex parte confidential information– screening doesn’t help; screen will be okay if the judge didn’t get ex parte confidential information
• SCREEN REQUIREMENTS – timely (immed upon learning of COI), impose mechanisms to ensure information not conveyed within firm
Ethics - COI - Successive Representation
rep’d C1 v. OP; then rep C2 v. C1. If you have received confidential info during rep of C1, then you can’t rep C2 in an adverse proceeding that may be “material” to the new representation.
• Analysis: (1) was confidential information material to current dispute? And (2) Ct evaluate the similarity between the compared cases.
• Family representation then asked to rep 1P of the family – can be disqualified.
Ethics - COI - Relationship with OPC
cannot rep without written disclosure to C, C doesn’t need to agree to ongoing representation in writing – just need to provide them with notice.
Ethics - Fees and Trust Funds
- Advances of fees risky, refund request means funds must stay in trust account until dispute resolved, must give client a proposed distribution of fees, what taken already
- Right to fees when earned – but when are they fixed – generally client approval after receiving an accounting
Ethics - Errors
No oblgtn to disclose OPC’s mistake so long as our conduct did not cause or induce it
Ethics - Threats in Negos.
Refrain from tx crim., administrative or disciplinary charges to get advantage in negos
Ethics - Access to OP/OPC emails
No oblgtn to tell OP/OPC that C accessed OP’s email so long as C not telling atty of contents (may not disclose it unless C committing crime or fraud).
Receipt of OP/OPC email by atty, do not read, destroy and notify OPC of transmission and attys should try to resolve the privilege issue asap.
Writs and Appeals - Fundamentals of Appellate Law
TC judgment presumed correct, all presumptions in favor of correctness and the appellant bears the burden of making an adeq. record that affirmatively shows prejudicial error (prove error + but for error, would be diff outcome)
• Always give TC opp to correct error (through objections, rqst stmt of decision, etc.)
o MUST be on the record; if not on record, it didn’t happen
Appeals - 4 Standards of Review
- DE NOVO – COA looks @ the matter with fresh eyes (brand new case tried) w/o deference to TC ruling. Rare but happens with interpretation of agreement/statute; most likely for appellant success b/c of lack of deference to TC ruling
- SUBSTANTATIVE EVI TEST – Upheld if any evi support the TC decision
- ABUSE OF DISCRETION – Upheld if any facts support the TC decision
- PREJUDICIAL ERROR TEST – Algo hecho por TC was prejudicial to the outcome, like not letting someone testify @ ct + offer of proof was made on record
Appeals - 2 types of appellate filings
Writs
Appeals
Appeals - Appeal, explain
- availability
- timeline
- speed?
- who prepares the record?
- Matter of right (so long as timely)
- Fixed time to file
- 60/180 day time rule
- Slow track, even if expedited – panel doesn’t get docs/info until all is done, decision is generally 120 days after everything is filed, oral argument adds 30 days
- Clerk/reporter prepare record, counsel may move to add to the record
Writs - explained
- what is a writ?
- how successful?
- Asking to be moved to top of line, ahead of everyone who has appealed
- Discretionary w/ ct (ct can deny writ, whereas appeal is matter of right), few are granted (80% denied)
- Atty prepares the record; if rec doesn’t support writ, it will be denied
- If you are responding – DON’T unless the COA tells you to b/c likely denial.
- Timeframe: w/in 60 days of event but really should be done immediately
- Because of denial rate and timeframes, you should file WRIT & APPEAL so if the writ is denied, your appeal is still there.
Doctrine of Implied Findings
If noone requests a statement of decision, the COA will apply the Doc of Implied Findings which hold that the Judgment is presumed correct and will use any facts or evi to support that presumption (so any fact that supports the decision of the ct will be enough under the doc of implied findings)
• ≠ applied if a Stmt of Decision was timely requested + Ct did not issue one
o If get a badly done Stmt of Dec., to try to get the court to change by filing obj.
o SOD w/o request = “tentative decision,” not a SOD, ∆ you will be facing the Doc of Implied Findings
Get SOD by filing request w/in 10 days of tentative dec., or ruling, whichever sooner EXC if matter is less than 8 hours long, must do before the matter is submitted.
How do you get a STATEMENT OF DECISION
Get SOD by filing request w/in 10 days of tentative dec., or ruling, whichever sooner EXC if matter is less than 8 hours long, must do before the matter is submitted.
Tips to Preserve your Record
- File trial brief – include anticipated controverted issues, outlining where a finding on the rec is required by statute, focus ct on what it needs to do.
- Make evi objections and get rulings
- Make sure any sidebars/conferences are on the record
- Offers of proof for excluded evi
- Contest adverse rulings and suggest alternatives
- Request SOD
- Consult with appellate specialists
Appeals - Pendente/Collateral Orders
Include: injunctive orders (move, sell, etc.), PL atty fees, PL SS, child support (maybe)
Appeals - Stays
- auto stays
- custody
- support
automatic stays in place for certain matters, such as moveaways
• No auto for orders directing execution of instruction, conveyance/delivery of reap property, money orders or appointment of receiver for property
• Custody – not able to be stayed by TC, but COA can stay – 30 days by COA for moveway, 7 days for removal of C
• Support – Have TC fix “reas amount” and file appeal; advise clt pay in meantime as a bond would be required and bonds = expensive
• Atty Fees
• Mod of Support – cannot term jx but can modify moving forward
Appeals - Appeals of Bifurcated Issues
since appeal must be from a final order, you can request the appeal of a bifurcated issue
• Reasons: judicial economy, lead to settlement, simplify the matter, benefit C if any
• Steps: (1) ask to have matter certified, (2) once cert’d, move COA for perm to appeal
• ATTY will prepare the record, even though tx’d like an appeal
• Only appealed issue is stayed, not the entire case
• Ct will establish briefing schedule
Procedures for Appeals
- 10 days after notice, designate record w/ clerk’s transcript, appendix, reporter’s transcript, etc.
- Briefing schedule will be triggered by reporter’s transcript - Generally 40 before for brief, 30 for responsive brief, 20 reply brief (quick turn around); 60 day ext by stipulation of Ps
- Wrtn brief important – do not wait for oral argument; factual intro, lead w/ best issue, deal with bad evi/law, bear in mind standard of review
Procedures for Writs
- File verified + complete petition
* Do not file response unless requested
Appeals - Disentitlement Doctrine
if you behave badly, you may be precluded from making certain arguments.
• IRMO Hofer where H refused to do disclosures and was ordered to pay W’s fees, despite W having tons of assets. Not able to appeal a matter where you were obstructive and refused to comply. Essentially you precluded the court from having information to make a logical order ∆ you are disentitled from being able to appeal.
• In Re EM – M flees with C after F gets order in his favor. M is precluded from appeal because she acted in an “attitude of contempt” so she is disentitled from appeal rt.
Appeals - IRMO Hofer
H refused to do disclosures and was ordered to pay W’s fees, despite W having tons of assets. Not able to appeal a matter where you were obstructive and refused to comply. Essentially you precluded the court from having information to make a logical order ∆ you are disentitled from being able to appeal.
Appeals - In re RE
M flees with C after F gets order in his favor. M is precluded from appeal because she acted in an “attitude of contempt” so she is disentitled from appeal rt.
Enforcement - generally
broad discretion to order execution, receiver, contempt or other order EXC may not bypass other statutory requirements/limitations.
Enforcement - What orders can be enforced?
Written orders only.
Enforcement after Death?
Can enf against deceased if timely file claim against estate
Limits on Retroactivity of Support Enf?
No limits re retroactivity on unpaid support EXC def of laches as to part owed to state
Offsetting of Arrears (enforcement)
No ability to offset CS arrears against $ owed by supported P, but overpymt = ok
BUT - P1 CS arrears offset by P2 CS arrears = OK [apples to apples]
Enforcement of Childcare Expenses
Enforceable but can’t try to reduce by claiming the expenses were not as ordered. No ability to retroactively decree. Need to bring a motion if the court sets childcare expenses and you think they are less than what was ordered.
Enforcement
- governed by?
- form which outlines what prop is exempt?
- examples of exempt property?
ENFORCEMENT – Governed by Enforcement of Judgment Law (EJL) in the CCP which permits enforcement of support, fees, property sale, delivery of property or assets.
• Any P w/ standing can seek enforcement (parent rts to support, DCSS, estate if dead)
• Exempt assets on EJ-155 include appliances, art/heirlooms, autos, benefit pymts, boats, books, cemetery plots, some IRAs, 1 shot gun, fin. assistance, health benefits, welfare payments, worker comp claims/benefits, wrongful death actions, etc.
Retirement – generally not enforceable against retirement benefits unless for support, join the plan.
Trusts – most are spendthrift trusts (so debtors can get it) EXC for CS oblgtns
Enforcement - Homestead Exemption
Homestead Exemption – 75k for individual, 100k for family, $175k if disabled or 55+ years old with income <$20k (married)
Trusts and Enforcement
Trusts – most are spendthrift trusts (so debtors can get it) EXC for CS oblgtns
Enf - Earnings Withholding Orders
used to collect CS/SS arrears with priority order over other earnings withholding order. s/b on federally standardized forms for enf’mt in any state. Can take up to 50% of the disposable earnings
Enf - Earnings Assignment Orders
support orders must include, even if Ps stip to it being stayed.
Quash motion reasons include incorrect amount, ‘ee not obligor, amt exceeds fed guidelines, and must be filed within 10 days of receipt of notice
Enf - Health Ins Coverage Assignment Order
purpose to notice ‘er of prohibition against taking kids off health insurance or coverage changes. LOCSA or obligee can get order and get reimbursement orders to make sure ins reimbursements are given to the right party.
Worker Comp Benefits and Enforcement
can get enforcement against WC benefits if you file a notice of enforcement against temp disability [find out P is temp’d disabled, getting benefits paid]
Mechanisms for Enforcement (list)
Earnings Withholding Orders Earnings Assignment Orders Health Ins. Coverage Assignment Order Worker Comp Benefit Orders Lottery Winnings Lien Levies/Garnishments Child Security Deposit Child Support Penalties Receivership Debtor examination and seizure
Enf against Military Retirement Pay
subject to division and enf for support; ≠ req’d to be spouse if for support, but must be a spouse if you are trying to get it as property division.
• BUT: Disabled Vet $ EXEMPT when w/ the Gov.; when given to the Vet – ok to get’
• Active Duty Mil. Pay – take it for current or back support (use earning assignment order and serve it upon the fed gov and office of personnel will work with you on it)
Child Support Security Deposit
- order
- show
- termination
Ct can order 1 year of support to be deposited OR “reasonable security”
Show: good cause for order (obligor has not complied with CS order), who should manage the account, self-executing (missed payment, auto w/d w/o notice).
• Can use funds on deposit with atty for security for CS
Terminate: 1 year w/ showing of payments (obligor must ask for $ to be released)
Child Support Penalties
filed if CS is not paid for a long time, motion indicates intention to seek 6% per month, up to 72% of the original amount + interest. Serious $.
Enf by Receiver
Ct can appoint, even sua sponte, to collect support, enf judgment, prevent dissipation of assets. Receiver has broad discretion to enforce. If ct does on own motion, you should ask for adequate notice (16 days). Receivers have same fid duty as client so their inclusion can result in increased expense, etc. ∆ it’s a remedy of last resort.
Enf by Debtor Examination
on-the-spot examination of debtor to know where the $ is located. Last resort mechanism (after liens, etc.); can ask court to order production of tax returns, relinquishment of property, including jewelry wearing @ the time.
UIFSA
- what is it?
- treatment of orders
- extent of possible ramifications
- what do you need to do
UNIFORM INTERSTATE FAMILY SUPPORT ACT (UIFSA) – federally created law for interstate enforcement of CS/SS obligations, including attys fees and costs. Support orders should be registered to help enforcement, although not required. Applies only to interstate enforcement, not inter-county.
• Foreign orders may be enf’d if there is receiprocal tx by foreign state
• Allows for jx over non-residence to est., enf., modify support order
o Arrest + extradiction to state is possible for crim prosecution for failure to pay
o Ct must exercise jx if it has it, cannot rtn jx to originating state if they have jx
• Originating St has jx if 1P still lives there
• If new state adjudicating, their guideline controls
• Register OOS order, nonreg’ing P can object [can get prevailing P fees possibly]
Enf of CC Orders
- governing law
- registration requirements
- objections to registration
- possible orders
governed by UCCJEA (also in Hague cases)
• Foreign CC order will be enf’d in CA so long as no evi decree viol fund human rights
• Filing + Registration required before enf., FL580 + 2 copies of order (1 certified), Dec that order has not been modified. Clerk will issue notice of registration
o Can object to filing (grounds: vacated, stayed, modified, order made on defective notice); failure to object precludes contesting registration
• Concurrent Mod hearing – Cts must communicate, may make temp orders
• Enf Hearing: order C present, warrant for C or P to appear, interim custody; Ct can draw inference from P being silent, no spousal immunity privilege
Enf and Bankruptcy Proceedings
due to bankruptcy stay (exc as to support), may have to go to bankruptcy court to deal with property as it is part of the trustee’s estate, including wages – so your garnishment would need to come from the bankruptcy court.
Enf of Foreign Judgments
final judgments of a state w/ competent jx must be recognized in other states, FF&C even if contrary to CA law or policy, EXC where there was no SMJX. Undivided/unadjudicated assets may be divided by CA ct.
• Foreign country orders recognized as matter of COMMITY
Defenses to Enforcement
Estoppel
• Estoppel = def with action for CS arrears during period active concealment
o Cannot retroactively modify support to forgive the arrears
o Not a defense where the gov is seeking enforcement
Doctrine of Accord / Satisfaction
o Only with a bona fide dispute concern debt amount
o OK if expressly conditioned as acceptance of pymt in full with obligee having full knowledge that it is a complete discharge of the amount owed.
Public Policy (raise C as a jew
