New New

Question 1

Motion for Sanctions under 271 requires …. (3)

Answer 1

1. notice
2. opp to be heard
3. finding of evi supports propriety of fees as sanctions

Question 2

what is a preferential payment?

Answer 2

made within 90 days of filing while debtor was insolvent (or 1 year if an ‘insider trade’) - can get judgment against creditor. exc: DSO

Question 3

what is the diff between a preferential payment and a fraudulent conveyance?

Answer 3

fraud. convey is a txfr of property done with intent to hinder, delay or defraud credit. preferential payment is generally a distribution of income.

Question 4

Imparto Credit

Answer 4

reverse pereira credit for post-sep efforts of 1P which increased the value of the SP business.

Question 5

how to show that someone knew of motion of which you are trying to hold them in contempt?

Answer 5

• present when order was made
• personally served with the OAH
  be ready to have the person who served @ hearing in the event OP says they weren’t served. Only exc is where it was a reg’d process server

Question 6

MA and 2 C

Answer 6

BIC to remain together (Williams) b/c right to continued companionship of sibligns.

Question 7

Seagondollar

Answer 7

CCE to determine BIC of event 1P moves

Question 8

Lasich

Answer 8

80% TS = de factor sole px custody

Question 9

Allocation of C expenses

Answer 9

FC 4062
authority to make orders re education of C through 4061 which provides 50/50 share OR proportional to each Ps respective adjusted income

Question 10

Gilmore election

Answer 10

if 1P take gilmore election to retirement, not entitled to increases except for COLA

Question 11

DRO –> QDRO

Answer 11

become QDRO when they are approved by the plan administrator.

Question 12

What happens if a P dies before it becomes a QDRO

Answer 12

Ct retains jx to cause DRO to become a QDRO after death

Question 13

Carmona v. Carmona

Answer 13

If you retire, you can’t change the beneficiary to post-retirement and annuity benefits because they are now payable. Doesn’t matter if there is a court order which permit the change to to occur. You are locked in.

Question 14

Kennedy v. Plan Admin of Dupont

Answer 14

If P waives rights to def’d comp through MSA, they must sign any plan docs to effectuate that. Otherwise, the plan docs control and a distribution to that P despite the waiver is still okay. PLAN DOCS CONTROL THE PLANS ACTIONS. Pymt is not a violation of ERISA

Question 15

DVPA Relationship

Answer 15

• romantic
• living together
• family 2nd degree (uncle, aunt, 1st cousins, neice, nephew, siblings, parents, children)

Question 16

Timeframes for commencing discovery after petition?

Answer 16

• 10 days from service of summons for ROGS

- 20 days from service of summons for Demand or deposition

Question 17

Expert Witness

Answer 17

May be limited by Ct under CEC 723
- special knowledge, training, education on area
Q: did you rely on publication?
Q: was publication reliable? normally relied upon?
Q: Compensation paid to expert?

Question 18

Authentication of Docs

Answer 18

CEC 1400-1421

• Writing doesn’t need to be authenticated by writer, can be done by anyone who saw it written or knows the handwriting (laywit okay)
• no auth needed for docs 30+ years old
• no auth needed for docs rec’d in response to a communication
• no auth needed for doc relating to algo unlikely to be known by anyone other than the claimed author of the writing

Question 19

FL Privileges - list

Answer 19

• atty-client
• spousal privilege
• confidential m’l comm
• doctor
• psychot
• priest

Question 20

BOP to Term Parental Rights

Answer 20

C+C of unfitness; doesn’t need to be current unfitness

Question 21

BOPs for Custody to NonParents

Answer 21

Non-custodial P must show with C+C that detriment to the C to be removed from their care
THEN
BOP shifts to Ps to show, prep of evi, that in BIC to be returned to them.

Question 22

Test: Undue Influence

Answer 22

1. Confidential Relationship btw Ps?
2. Did Benefitted P ….
   
   • rely upon confidential relationship?
   • participate in the transaction?
   • get an advantange (pre-92) or unfair advantage (post-1992)?

IF YES - BOP shifts to benefited party to show that there was no UI

• adeq consideration
• OP knew of all the facts
• voluntarily agreed, etc.

Question 23

Caldwell-Faso

Answer 23

No need to wait 7 days for signing of PMA where both parties were presented from the outset by independent counsel

Question 24

SSM in CA prior to WINDSOR decision

Answer 24

CA would give RDPS same rights are married couples, but they couldn’t call themselves M’d

CA would recognize SSM entered into in any jx where validly entered into before 11/4/08; after 11/5/08, could not recognize SSM

Question 25

Biological Bond and parentage

Answer 25

Bio-bond is not determinative in parentage, especially where there is already a bond between someone else, such as SSC or non-bio dad.

Question 26

in re NICHOLAS H

Answer 26

Non-bio dad was given legal status as father because he was a de facto father

Question 27

HINMAN

Answer 27

W listing her C from a prior marriage in her petition was sufficient to allow court to make orders with step-father. JX appropriate b/c W gave the jx to the court.

Question 28

SB274

Answer 28

C has have 2+ parents if it would be detrimental to the C not to order. Must be a qualifying P. Effective 1/1/14.

Question 29

Grounds for Motion to Set Aside (2)

Answer 29

473(b) + 2120

Question 30

473 Reasons

Answer 30

Mistake of fact or honest mistake of law Inadvertence Surprise Neglect

Question 31

2120 Reasons and SOL

Answer 31

``` Actual fraud (1) Perjury (1) Mistake (1) Failure to comply with disclosure rqmts (1) Duress (2) Mental incapacity (2) ```

Question 32

ATROS effective?

Answer 32

upon service; but upon petitioner? unclear. | FC 233 - atros upon issuance of summons + svc

Question 33

CCP 1005 timeframes

Answer 33

Motion - 16 court days Response - 9 court days Reply - 5 court days ``` Extensions + 5 service by mail in CA +10 service by mail in US + 20 service outside of the USA + 2 service by fax ```

Question 34

Void Marriages

Answer 34

Bigamy Incest Force (significant) 2 year SOL

Question 35

Voidable Marriages

Answer 35

Age Unsound Mind Fraud - EXC learned of fraud and continued cohabitating with them. 2 year SOL

Question 36

Valid M outside of CA?

Answer 36

CA will recognize it as valid if it was valid under the laws of the jx where the M was entered into.

Question 37

Divisible Divorce

Answer 37

Doctrine of Divis. Divorce Disso issues may be heard in diff jxs based upon jx'al considerations such as facts, evidence, convenience and location of parties/witnesses.

Question 38

FC 4058

Answer 38

Income Defined

Question 39

Income in FL?

Answer 39

FC 4058 BROADLY defined to include from any source, including pensions, annuities, WC, unemp benefits, disability ins $, soc sec benefits ACTUALLY RECEIVED by P. BUT CANNOT BE LIMITLESS (Alter). Can include mandatory 401k contributions, pre-tax cafeterial plans, value of options (market price, less option price = income) Adjust income with ... - health insurance cost - retirement - union dues - mortgage int - property tax - hardships

Question 40

4320 Factors

Answer 40

- marketable skills - earning capacity (now + future) - supported Ps contrib to edu, training, of payor - obligations and assets - length of M - employment and needs of C - age - health - tax conseq - goal of Ps to become self-supporting

Question 41

De Guigne

Answer 41

SS/MSOL can consider savings, investments, expenses and lifestyle. EXCESSIVE spending beyond income should not be considered (Smith), and should be capped if the Ps financed their lifestyle with loans (Weinstein)

Question 42

Deferred Sale of Home

Answer 42

Ct can order deferred sale of family home (FC 3800) where C is benefited by the deferral + maintenance of the home is financially feasible. Can be done even if the property division is unequal. C- C, disabled adult C

Question 43

Earning Capacity + BOP

Answer 43

BOP is on the P claiming there is an earning capacity

Question 44

Hebbring

Answer 44

SS reservation in a STM = abuse of discretion

Question 45

Factors to Consider in DEVIATING from Guideline

Answer 45

- stipulation of the Ps to non-guideline - extraord. high income --> CS that exceed needs - 1P not contrib'ing to need inline with their TS - mortgage free residence

Question 46

Modification of OOS CS Order

Answer 46

FF+C given to out of state orders. Should register orders, including custody order MODIFY ONLY IF - CA has jx AND - neither P or C is living in the state that made the original order

Question 47

UIFSA and Modification

Answer 47

Modify OOS CS order if ... 1. neither P or C in original state 2. P seeking mod is not resident of CA 3. P not seeking mod is a CA resident

Question 48

Reasonable Rate of Return for Investment?

Answer 48

3% (Pearlstein) | Can give time to make sure investment is can be income producing.

Question 49

Richmond Order - explain

Answer 49

1+ steps down in SS. Effectively switches the BOP to the supported spouse to explain why they have not reached the 'employment goal' set by the court.