california family law for paralegals, 5 th ed. chapter eleven selected issues

CALIFORNIA CALIFORNIA FAMILY LAW FAMILY LAW

FOR FOR PARALEGALS, 5PARALEGALS, 5thth

Ed.Ed.Chapter ElevenChapter ElevenSelected IssuesSelected Issues

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A. ATTORNEY’S FEES AND A. ATTORNEY’S FEES AND COSTSCOSTS

An additional aspect of family law litigation is An additional aspect of family law litigation is the rather interesting concept that each party the rather interesting concept that each party to the litigation should be able to afford capable to the litigation should be able to afford capable counsel regardless of their economic position.counsel regardless of their economic position.

In other words, if one of the spouses cannot In other words, if one of the spouses cannot afford a lawyer, the other spouse may find afford a lawyer, the other spouse may find himself in the position of paying for both himself in the position of paying for both attorneys.attorneys.

Family Code section 2030 authorizes the court Family Code section 2030 authorizes the court in a family law proceeding to order “any in a family law proceeding to order “any party . . . Except a governmental entity, to pay party . . . Except a governmental entity, to pay the amount reasonably necessary for attorney’s the amount reasonably necessary for attorney’s fees and for the cost of maintaining or fees and for the cost of maintaining or defending the proceeding.”defending the proceeding.”

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

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

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The request for fees can be made either The request for fees can be made either pending the trial, after the trial, or even after pending the trial, after the trial, or even after judgment has been entered, by the spouse who judgment has been entered, by the spouse who desires the award.desires the award.

All awards are primarily left to the discretion of All awards are primarily left to the discretion of the court, which means that they will usually the court, which means that they will usually not be reversed on appeal.not be reversed on appeal.

Finally, this statutory scheme provides Finally, this statutory scheme provides authority for an award of attorney’s fees in a authority for an award of attorney’s fees in a proceeding for “dissolution of marriage, for proceeding for “dissolution of marriage, for nullity of marriage, or for legal separation of nullity of marriage, or for legal separation of the parties” or any proceeding “related the parties” or any proceeding “related thereto.”thereto.”

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The request for attorney’s fees must be The request for attorney’s fees must be made by noticed motion.made by noticed motion.

A hearing will be held by the court with A hearing will be held by the court with respect to this request, and at that time the respect to this request, and at that time the court will consider the relevant factors and court will consider the relevant factors and criteria discussed above and entertain an criteria discussed above and entertain an award that it feels, in its discretion, is award that it feels, in its discretion, is appropriate under the circumstances.appropriate under the circumstances.

In addition to an award of attorney’s fees, In addition to an award of attorney’s fees, the referenced code sections also provide for the referenced code sections also provide for the recovery of costs in an amount necessary the recovery of costs in an amount necessary to provide parity with the other spouse with to provide parity with the other spouse with respect to maintaining the litigation.respect to maintaining the litigation.

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In addition to the section 2030 attorney’s fees In addition to the section 2030 attorney’s fees award, section 271 gives the court rather award, section 271 gives the court rather broad authority to assess attorney’s fees and broad authority to assess attorney’s fees and costs against a party to a family law matter as costs against a party to a family law matter as a a sanctionsanction..

Under this Code section the court has the Under this Code section the court has the authority to make a finding that one of the authority to make a finding that one of the litigants to the family law action is engaging in litigants to the family law action is engaging in tactics that frustrate, rather than further, the tactics that frustrate, rather than further, the policy of the law to promote settlement of the policy of the law to promote settlement of the litigation or is undertaking some other tactic litigation or is undertaking some other tactic designed to discourage settlement and simply designed to discourage settlement and simply run up fees.run up fees.

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It is noteworthy that, in the context of It is noteworthy that, in the context of section 271 sanctions, the concept of section 271 sanctions, the concept of needneed is irrelevant. is irrelevant.

In addition to Family Code section 271, In addition to Family Code section 271, Code of Civil Procedure section 128.5 Code of Civil Procedure section 128.5 provides an additional avenue under provides an additional avenue under which the courts can award monetary which the courts can award monetary sanctions against a party or her attorney sanctions against a party or her attorney who is engaged in who is engaged in bad faithbad faith or or frivolousfrivolous actions or tactics.actions or tactics.

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Perhaps the only consistency about Perhaps the only consistency about the cases that have interpreted the cases that have interpreted Family Code section 271 is that they Family Code section 271 is that they confirm that the court has a confirm that the court has a tremendous amount of discretion in tremendous amount of discretion in making these awards.making these awards.

An award of attorney’s fees and An award of attorney’s fees and costs may also be enforced through costs may also be enforced through use of contempt procedures.use of contempt procedures.

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B. PREVENTION OF B. PREVENTION OF DOMESTIC VIOLENCEDOMESTIC VIOLENCE

Family Code sections 6200 et seq. provide the Family Code sections 6200 et seq. provide the statutory structure of the Domestic Violence statutory structure of the Domestic Violence Prevention Act.Prevention Act.

The purpose of this Act is just as its title The purpose of this Act is just as its title implies: “to prevent the recurrence of acts of implies: “to prevent the recurrence of acts of violence and sexual abuse and to provide for a violence and sexual abuse and to provide for a separation of the persons involved in the separation of the persons involved in the domestic violence for a period sufficient to seek domestic violence for a period sufficient to seek a resolution of the causes of the violence” a resolution of the causes of the violence” (section 6220).(section 6220).

There are no fees for filing a petition, a There are no fees for filing a petition, a response, or a modification of the protective response, or a modification of the protective order in a DVPA proceeding.order in a DVPA proceeding.

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C. INJUNCTIONS C. INJUNCTIONS PROHIBITING PROHIBITING HARASSMENTHARASSMENT

The Family Code is not the only source of laws The Family Code is not the only source of laws seeking to regulate an individual’s conduct seeking to regulate an individual’s conduct under inappropriate or dangerous under inappropriate or dangerous circumstances.circumstances.

One example of such a provision is found at One example of such a provision is found at section 527.6 of the Code of Civil Procedure.section 527.6 of the Code of Civil Procedure.

This Code section defines harassment as This Code section defines harassment as “unlawful violence, a credible threat of “unlawful violence, a credible threat of violence, or a knowing and willful course of violence, or a knowing and willful course of conduct directed at a specific person which conduct directed at a specific person which seriously alarms, annoys, or harasses the seriously alarms, annoys, or harasses the person, and which serves no legitimate person, and which serves no legitimate purpose.purpose.

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The course of conduct must be such as The course of conduct must be such as would cause a reasonable person to would cause a reasonable person to suffer substantial emotional distress, and suffer substantial emotional distress, and must actually cause substantial must actually cause substantial emotional distress to the plaintiff.”emotional distress to the plaintiff.”

Having defined “harassment,” this Code Having defined “harassment,” this Code section then goes on to provide that an section then goes on to provide that an individual who is the victim of such individual who is the victim of such harassment may file a petition under this harassment may file a petition under this section seeking injunctive relief by way section seeking injunctive relief by way of a temporary restraining order.of a temporary restraining order.

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An injunction issued pursuant to this section An injunction issued pursuant to this section will stay in effect for no more than three will stay in effect for no more than three years; however, at any time within the three years; however, at any time within the three month period immediately preceding the month period immediately preceding the expiration of the injunction, the plaintiff may expiration of the injunction, the plaintiff may apply for a renewal of the injunction by filing apply for a renewal of the injunction by filing a new petition and demonstrating good cause a new petition and demonstrating good cause for such renewal.for such renewal.

This code section also provides for the This code section also provides for the recovery of attorney’s fees and costs to the recovery of attorney’s fees and costs to the prevailing party.prevailing party.

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D. DISCLOSURE OF D. DISCLOSURE OF ASSETS AND LIABILITIESASSETS AND LIABILITIES

Family Code section 2100 declares the Family Code section 2100 declares the legislative intent in its enactment of Chapter legislative intent in its enactment of Chapter 9 of Division 6, “Disclosure of Assets and 9 of Division 6, “Disclosure of Assets and Liabilities,” as follows: see page 488.Liabilities,” as follows: see page 488.

Continuing on in this chapter, Family Code Continuing on in this chapter, Family Code section 2102, through its cross-reference to section 2102, through its cross-reference to section 721, establishes and recognizes the section 721, establishes and recognizes the existence of a fiduciary relationship between existence of a fiduciary relationship between the husband and wife (at least) from the date the husband and wife (at least) from the date of separation to the date of the distribution of separation to the date of the distribution of the community asset or liability in of the community asset or liability in question.question.

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This statutory scheme requires that a This statutory scheme requires that a preliminary and a final disclosure declaration, preliminary and a final disclosure declaration, each coupled with an income and expense each coupled with an income and expense declaration, be prepared and served upon the declaration, be prepared and served upon the opposing party.opposing party.

Family Code section 2106 provides that no Family Code section 2106 provides that no judgment will be entered with regard to the judgment will be entered with regard to the party’s property rights until and unless each party’s property rights until and unless each party has prepared and served a copy of the party has prepared and served a copy of the final declaration of disclosure, together with a final declaration of disclosure, together with a current income and expense declaration, on the current income and expense declaration, on the other.other.

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

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E. JOINDERE. JOINDER

Joinder refers simply to the act of a party Joinder refers simply to the act of a party “joining in” to ongoing litigation or a party being “joining in” to ongoing litigation or a party being “joined in” to ongoing litigation by the litigants “joined in” to ongoing litigation by the litigants themselves.themselves.

In the family law context, issues of joinder In the family law context, issues of joinder typically arise in custody and visitation disputes typically arise in custody and visitation disputes and disputes relating to the division of and disputes relating to the division of community property, more specifically, disputes community property, more specifically, disputes arising out of and pertaining to employee benefit arising out of and pertaining to employee benefit pension plans.pension plans.

Cal. Rule of Court 5.158 states that the court Cal. Rule of Court 5.158 states that the court mustmust join any party whom the court discovers join any party whom the court discovers has physical custody or claims custody or has physical custody or claims custody or visitation rights of any minor children of the visitation rights of any minor children of the marriage into the proceedings.marriage into the proceedings.

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F. EMPLOYMENT F. EMPLOYMENT BENEFITSBENEFITS

Perhaps the most common area in which the Perhaps the most common area in which the subject of joinder arises is that involving subject of joinder arises is that involving division of community property, more division of community property, more specifically, issues related to the joinder of a specifically, issues related to the joinder of a pension plan in the litigation.pension plan in the litigation.

One of the more common benefits of One of the more common benefits of employment today is an employee’s retirement employment today is an employee’s retirement plan, sometimes called a pension plan (the plan, sometimes called a pension plan (the Plan).Plan).

Because the nonemployee spouse is not a direct Because the nonemployee spouse is not a direct participant in the plan, the pension plan does participant in the plan, the pension plan does not owe the same level of duties to that person not owe the same level of duties to that person as it does to the employee spouse.as it does to the employee spouse.

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Over time circumstances have developed, Over time circumstances have developed, especially in divorce litigation, where, either by especially in divorce litigation, where, either by manipulative scheming by the employed spouse manipulative scheming by the employed spouse or sometimes by sheer coincidence, the pension or sometimes by sheer coincidence, the pension plan starts paying out the monies that it is plan starts paying out the monies that it is holding for the benefit of the employee spouse holding for the benefit of the employee spouse to the employee without regard to the interest to the employee without regard to the interest the nonemployee spouse may have in the plan the nonemployee spouse may have in the plan funds.funds.

This obviously creates a problem for the This obviously creates a problem for the nonemployee spouse in a marital dissolution nonemployee spouse in a marital dissolution proceeding.proceeding.

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The nonemployee spouse seeks to protect The nonemployee spouse seeks to protect his interest in these plan funds and to his interest in these plan funds and to ensure that he obtains his appropriate ensure that he obtains his appropriate share.share.

In order to deal with this situation, the law In order to deal with this situation, the law has developed to provide that under has developed to provide that under appropriate circumstances the pension plan appropriate circumstances the pension plan can be put on notice or actually joined into can be put on notice or actually joined into the dissolution litigation in order to protect the dissolution litigation in order to protect the interest of the nonemployee spouse in the interest of the nonemployee spouse in the retirement benefits.the retirement benefits.

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Joinder of an employee’s pension benefit plan Joinder of an employee’s pension benefit plan becomes absolutely essential when one examines becomes absolutely essential when one examines the provisions of Family Code section 2060(b), the provisions of Family Code section 2060(b), which provide that “an order or judgment in the which provide that “an order or judgment in the proceeding is not enforceable against an proceeding is not enforceable against an employee pension benefit plan unless the plan employee pension benefit plan unless the plan has been joined as a party to the proceeding.”has been joined as a party to the proceeding.”

Accordingly, if a party does not join the Accordingly, if a party does not join the employee pension benefit plan as a party, that employee pension benefit plan as a party, that Plan is not required to comply with any court Plan is not required to comply with any court order that may come out of the family law order that may come out of the family law proceeding compelling it to pay or not pay proceeding compelling it to pay or not pay monies to particular individuals.monies to particular individuals.

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The Plan generally will not be The Plan generally will not be interested in participating in the interested in participating in the hearing because it typically does not hearing because it typically does not have an interest one way or the other in have an interest one way or the other in the outcome of the dissolution the outcome of the dissolution proceedings.proceedings.

Its sole concern is that the money is Its sole concern is that the money is ultimately paid out in accordance with ultimately paid out in accordance with the court’s order so it does not become the court’s order so it does not become liable for payment of these funds.liable for payment of these funds.

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G. DISCOVERYG. DISCOVERY

This term This term discoverydiscovery is used in litigation practice is used in litigation practice to describe the various procedures utilized by to describe the various procedures utilized by parties to litigation that are designed to help parties to litigation that are designed to help them learn as much as they can about the other them learn as much as they can about the other side.side.

Generally speaking, the most basic and Generally speaking, the most basic and common forms of discovery in the area of family common forms of discovery in the area of family law practice include interrogatories, document law practice include interrogatories, document production requests, depositions, and request production requests, depositions, and request for admissions (although this latter discovery for admissions (although this latter discovery device does not find much use in family law device does not find much use in family law matters).matters).

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1. 1. InterrogatoriesInterrogatories The term The term interrogatoriesinterrogatories describes a set of describes a set of

written questions that are mailed by one written questions that are mailed by one party to the other and that must be party to the other and that must be answered by the other party under answered by the other party under penalty penalty of perjuryof perjury..

This last clause is very important because it This last clause is very important because it requires that the answers to these requires that the answers to these interrogatories, once given, will have that interrogatories, once given, will have that same effect as testimony given in court.same effect as testimony given in court.

These responses will constitute admissions These responses will constitute admissions that can be used as evidence against them that can be used as evidence against them when the matter goes to trial.when the matter goes to trial.

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In the context of a family law proceeding, the In the context of a family law proceeding, the judicial council has promulgated official form judicial council has promulgated official form interrogatories and requests for admissions, interrogatories and requests for admissions, which are quite complete and succinct.which are quite complete and succinct.

They are divided into 21 specific categories of They are divided into 21 specific categories of inquiry as follows: see page 522.inquiry as follows: see page 522.

See Figure 11-1 on pages 523-524.See Figure 11-1 on pages 523-524. The party to whom the interrogatories have The party to whom the interrogatories have

been served has 30 days (plus five if they have been served has 30 days (plus five if they have been served by mail) to respond.been served by mail) to respond.

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2. 2. Document Inspection DemandsDocument Inspection Demands Code of Civil Procedure sections Code of Civil Procedure sections

2031.010 et. seq. establish the 2031.010 et. seq. establish the statutory framework for a demand that statutory framework for a demand that the parties exchange and allow the the parties exchange and allow the inspection of documents.inspection of documents.

In essence, the propounding party will In essence, the propounding party will serve a demand for the inspection and serve a demand for the inspection and copying of records pursuant to this copying of records pursuant to this code section on the responding party.code section on the responding party.

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This demand will require a verified response This demand will require a verified response (that is, one made under penalty of perjury) (that is, one made under penalty of perjury) within 30 days of service of the demand (35 days within 30 days of service of the demand (35 days if the demand has been served by mail) that if the demand has been served by mail) that identifies the documents in the responding identifies the documents in the responding party’s possession falling under one or more of party’s possession falling under one or more of the categories of documents requested and also the categories of documents requested and also indicating whether the responding party will indicating whether the responding party will make these documents available for inspection make these documents available for inspection and copying.and copying.

Set forth below are two examples of some of the Set forth below are two examples of some of the basic categories in which a document request is basic categories in which a document request is very often made in the context of a family law very often made in the context of a family law proceeding.proceeding.

See Examples 1 and 2 on pages 525-533.See Examples 1 and 2 on pages 525-533.

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3. 3. DepositionsDepositions Code of Civil Procedure section 2025.010 Code of Civil Procedure section 2025.010

establishes the framework for the conduct of establishes the framework for the conduct of oral depositions.oral depositions.

A A depositiondeposition is a proceeding whereby one is a proceeding whereby one party is allowed to examine the other party party is allowed to examine the other party under oath, in front of a court reporter, in a under oath, in front of a court reporter, in a proceeding that is not entirely dissimilar to proceeding that is not entirely dissimilar to the question and answer “give and take” found the question and answer “give and take” found at trial.at trial.

At the conclusion of the deposition, everything At the conclusion of the deposition, everything that everyone said in the room will be that everyone said in the room will be transcribed by the court reporter and printed transcribed by the court reporter and printed up in booklet form.up in booklet form.

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

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In addition to requesting that a party In addition to requesting that a party appear at the attorney’s office and give appear at the attorney’s office and give oral testimony under oath, the party oral testimony under oath, the party may be requested to bring to the may be requested to bring to the deposition various documents for review deposition various documents for review and use.and use.

By so doing, the attorney taking the By so doing, the attorney taking the deposition can orally question the deposition can orally question the witness (or party) with respect to these witness (or party) with respect to these documents at that time.documents at that time.

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4. 4. Request for AdmissionsRequest for Admissions Requests for Admissions are discussed in Code of Requests for Admissions are discussed in Code of

Civil Procedure section 2033.010.Civil Procedure section 2033.010. The procedure is for serving requests for The procedure is for serving requests for

admissions is basically the same as for admissions is basically the same as for interrogatories.interrogatories.

In fact, it can be said that the request for In fact, it can be said that the request for admission is simply a special type of admission is simply a special type of interrogatory, specifically, one that asks the interrogatory, specifically, one that asks the responding party to admit that a particular fact responding party to admit that a particular fact as stated in the request is admitted as being true.as stated in the request is admitted as being true.

Additionally, the request can ask the responding Additionally, the request can ask the responding party to admit the genuineness of certain party to admit the genuineness of certain documents.documents.

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H. BANKRUPTCYH. BANKRUPTCY

1. 1. GenerallyGenerally The concept of bankruptcy involves the use The concept of bankruptcy involves the use

of those sections of the United States Code of those sections of the United States Code (U.S.C.) that establish the various forms of (U.S.C.) that establish the various forms of protection available to debtors in the protection available to debtors in the bankruptcy court.bankruptcy court.

At its most basic, bankruptcy is a procedure At its most basic, bankruptcy is a procedure by which a debtor (one who owes money) is by which a debtor (one who owes money) is given the opportunity to pay off his creditors given the opportunity to pay off his creditors (to the extent that is possible), and then (to the extent that is possible), and then obtain an economic “fresh start.”obtain an economic “fresh start.”

There are three different forms of There are three different forms of bankruptcy available to a debtor.bankruptcy available to a debtor.

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The first of these choices is known as The first of these choices is known as Chapter 7Chapter 7 bankruptcy. bankruptcy.

In this type of bankruptcy proceeding, the In this type of bankruptcy proceeding, the debtor’s property is completely liquidated debtor’s property is completely liquidated (sold) and his or her debts are then paid off (sold) and his or her debts are then paid off to the extent available by virtue of the to the extent available by virtue of the proceeds of the liquidation.proceeds of the liquidation.

The second type of bankruptcy proceeding is The second type of bankruptcy proceeding is called a called a Chapter 13Chapter 13 filing. filing.

A Chapter 13 proceeding does not involve A Chapter 13 proceeding does not involve liquidating the entire bankrupt debtor’s liquidating the entire bankrupt debtor’s estate.estate.

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Rather, it contemplates a plan of paying Rather, it contemplates a plan of paying off the creditors over an extended period off the creditors over an extended period of time.of time.

The third type of bankruptcy proceeding is The third type of bankruptcy proceeding is found in Chapter 11 of the Bankruptcy Act.found in Chapter 11 of the Bankruptcy Act.

A A Chapter 11Chapter 11 reorganization is reorganization is fundamentally the same as a Chapter 13 fundamentally the same as a Chapter 13 proceeding, except that Chapter 11 is proceeding, except that Chapter 11 is primarily designed for business entities primarily designed for business entities (partnerships and corporations) rather (partnerships and corporations) rather than for individuals.than for individuals.

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2. 2. Family Law ContextFamily Law Context Once a bankruptcy has been filed by one of Once a bankruptcy has been filed by one of

the parties to a marital termination (or legal the parties to a marital termination (or legal separation) proceeding, the subject of initial separation) proceeding, the subject of initial concern is “what happens to my divorce concern is “what happens to my divorce case?”case?”

Initially, the operation of the automatic stay Initially, the operation of the automatic stay contained in 11 U.S.C. §362(a) will stay contained in 11 U.S.C. §362(a) will stay allall legal proceedings brought against the debtor.legal proceedings brought against the debtor.

Thus, to the extent that the dissolution or Thus, to the extent that the dissolution or legal separation proceeding is seen as an legal separation proceeding is seen as an “action against the debtor” (which it is), that “action against the debtor” (which it is), that action will be stayed by operation of law.action will be stayed by operation of law.

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The stay simply temporarily The stay simply temporarily “freezes” the underlying state action “freezes” the underlying state action until such time as the bankruptcy until such time as the bankruptcy matter has run its course.matter has run its course.

Fortunately for recipients of support, Fortunately for recipients of support, as a general rule support obligations as a general rule support obligations are are notnot affected by bankruptcy. affected by bankruptcy.

Accordingly, support obligations, Accordingly, support obligations, whether spousal or child, will not be whether spousal or child, will not be discharged in bankruptcy.discharged in bankruptcy.

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Finally, of significant concern in the Finally, of significant concern in the family law context is the extent to which family law context is the extent to which a bankrupt spouse can be discharged a bankrupt spouse can be discharged from payment of debts that are assigned from payment of debts that are assigned to that party by the state court.to that party by the state court.

Generally speaking, under circumstances Generally speaking, under circumstances where a debtor spouse is discharged in where a debtor spouse is discharged in bankruptcy from the payment of certain bankruptcy from the payment of certain debts, that is the end of the discussion on debts, that is the end of the discussion on that subject.that subject.

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I. TAXATIONI. TAXATION

There are significant potential tax There are significant potential tax consequences involving the division of consequences involving the division of property as well as the payment of support property as well as the payment of support and maintenance.and maintenance.

All payments made as spousal support All payments made as spousal support constituted deductions to the payor and must constituted deductions to the payor and must be included in income (and taxes must be be included in income (and taxes must be paid on it) by the recipient.paid on it) by the recipient.

In contrast to this treatment is the fact that In contrast to this treatment is the fact that payments made as and for child support payments made as and for child support cannot be deducted by the payor and are not cannot be deducted by the payor and are not included in the income of the recipient.included in the income of the recipient.

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I. TAXATIONI. TAXATION

Another facet of this tax discussion that is the Another facet of this tax discussion that is the source of rather frequent controversy in a source of rather frequent controversy in a divorce proceeding concerns the dependency divorce proceeding concerns the dependency exemption that is allowed to parents exemption that is allowed to parents pertinent to their children.pertinent to their children.

As a general rule, the parent having custody As a general rule, the parent having custody of the child for the greater portion of time of the child for the greater portion of time during the calendar year in question will be during the calendar year in question will be entitled to claim that child as a dependent entitled to claim that child as a dependent unless that parent signs a written waiver unless that parent signs a written waiver giving up the right to make that claim.giving up the right to make that claim.

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J. MARITAL SETTLEMENT J. MARITAL SETTLEMENT AGREEMENTAGREEMENT

A Marital Settlement Agreement can A Marital Settlement Agreement can take several forms: a take several forms: a premaritalpremarital agreement, a agreement, a postnuptialpostnuptial agreement, or agreement, or a a marital settlementmarital settlement agreement. agreement.

All three essentially effect the same All three essentially effect the same thing: the contractual recitation of the thing: the contractual recitation of the rights and remedies of parties to a rights and remedies of parties to a marital union, the fundamental marital union, the fundamental difference between the three being the difference between the three being the timing of the creation of the contract.timing of the creation of the contract.

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Generally speaking, these agreements are Generally speaking, these agreements are nothing more than contracts, and they are nothing more than contracts, and they are typically governed by many of the same rules typically governed by many of the same rules and regulations as “normal” contracts.and regulations as “normal” contracts.

A A premaritalpremarital agreement is generally thought agreement is generally thought of as a contract entered into by parties to a of as a contract entered into by parties to a prospective marriage.prospective marriage.

The basic purpose of an agreement of this The basic purpose of an agreement of this type is to protect the current property position type is to protect the current property position of the potential spouses and to limit the of the potential spouses and to limit the effects of the laws of community property on effects of the laws of community property on that property which, of course, will come into that property which, of course, will come into operation at the commencement of the operation at the commencement of the marriage.marriage.

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The second type of agreement in this The second type of agreement in this area is the area is the maritalmarital or or postnuptialpostnuptial agreement.agreement.

As its name implies, this is an agreement As its name implies, this is an agreement entered into by the parties after they entered into by the parties after they have married.have married.

Perhaps the most common type of Perhaps the most common type of postnuptial agreement is one that postnuptial agreement is one that changes the status of community changes the status of community property or separate property.property or separate property.

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The third category of these agreements, and by The third category of these agreements, and by far the most common, is the far the most common, is the marital settlementmarital settlement agreement.agreement.

These agreements are, in fact, in contemplation These agreements are, in fact, in contemplation of dissolution or legal separation and are by far of dissolution or legal separation and are by far the type of agreement with which the typical the type of agreement with which the typical reader will have day-to-day contact.reader will have day-to-day contact.

Since most of these cases ultimately settle, Since most of these cases ultimately settle, most will use the marital settlement agreement most will use the marital settlement agreement to memorialize the provisions of that to memorialize the provisions of that settlement.settlement.

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Once the agreement is entered into by both of Once the agreement is entered into by both of the parties, its provisions will generally the parties, its provisions will generally constitute the basis for preparation of the constitute the basis for preparation of the judgment, which, if it is a stipulated judgment, judgment, which, if it is a stipulated judgment, will simply incorporate the executory will simply incorporate the executory provisions of the marital settlement agreement provisions of the marital settlement agreement and carry the signatures of both parties.and carry the signatures of both parties.

See Sample Premarital Agreement on pages See Sample Premarital Agreement on pages 550-565.550-565.

See Sample Marital Agreement on pages 567-See Sample Marital Agreement on pages 567-587.587.

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K. COLLABORATIVE K. COLLABORATIVE DIVORCEDIVORCE

Collaborative Family Law is the Collaborative Family Law is the newest approach to family law newest approach to family law matters, including divorces.matters, including divorces.

It is a method in which attorneys for It is a method in which attorneys for both divorcing parties agree to both divorcing parties agree to assist to resolve the dispute using assist to resolve the dispute using cooperation and problem solving cooperation and problem solving strategies rather than adversarial strategies rather than adversarial approaches and litigation.approaches and litigation.

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K. COLLABORATIVE K. COLLABORATIVE DIVORCEDIVORCE

A major difference between A major difference between collaborative family law and other collaborative family law and other approaches is that clients approaches is that clients themselves craft the terms of their themselves craft the terms of their divorce and final outcome.divorce and final outcome.

No third party (such as a judge) No third party (such as a judge) decides the outcome for them.decides the outcome for them.

This process only works when both This process only works when both parties agree to use it.parties agree to use it.

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L. SAME-SEX MARRIAGEL. SAME-SEX MARRIAGE

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

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L. SAME-SEX MARRIAGEL. SAME-SEX MARRIAGE

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

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M. LIMITED SCOPE M. LIMITED SCOPE REPRESENTATIONREPRESENTATION

Limited Scope Representation allows a party Limited Scope Representation allows a party going through dissolution proceedings to seek going through dissolution proceedings to seek an attorney’s services for certain aspects of an attorney’s services for certain aspects of their dissolution, and to be represented by their dissolution, and to be represented by that attorney in court, without requiring that attorney in court, without requiring either the attorney or the client to commit to either the attorney or the client to commit to full representation of the client for all issues full representation of the client for all issues in the divorce.in the divorce.

This allows the client to use the attorney’s This allows the client to use the attorney’s services only for these items that they believe services only for these items that they believe they need an attorney, without incurring the they need an attorney, without incurring the fees for full representation, and without being fees for full representation, and without being forced to forego representation in an area forced to forego representation in an area where they may truly need it.where they may truly need it.

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See Figure 11-2 on pages 606-608.See Figure 11-2 on pages 606-608. Upon filing the Notice of Limited Scope Upon filing the Notice of Limited Scope

Representation, the attorney is now the Representation, the attorney is now the attorney of record in the dissolution for those attorney of record in the dissolution for those areas and/or proceedings identified in the areas and/or proceedings identified in the Notice.Notice.

At the end of the representation, the attorney At the end of the representation, the attorney must simply prepare and present a Substitution must simply prepare and present a Substitution of Attorney to the client, ask them to execute it of Attorney to the client, ask them to execute it where indicated on the form, and then file the where indicated on the form, and then file the form with the Court, serving it on all interested form with the Court, serving it on all interested parties in the dissolution proceedings.parties in the dissolution proceedings.

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If the client refuses to sign the If the client refuses to sign the Substitution of Attorney, the Substitution of Attorney, the attorney must file with the Court a attorney must file with the Court a Judicial Council of California form Judicial Council of California form FL-955, “Application to be Relieved FL-955, “Application to be Relieved as Counsel Upon Completion of as Counsel Upon Completion of Limited Scope Representation.”Limited Scope Representation.”

See Figure 11-3 on pages 611-612.See Figure 11-3 on pages 611-612.

california family law for paralegals, 5 th ed. chapter eleven selected issues

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