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Pile Management Card
CA Fam Law Specialist
CA Fam Law Specialist
| What is the UDRA? |
| Uniform Divorce Recognition Act FC section 2090-2093 |
| What are the initial questions you ask when determining if court has power? |
|
1. SMJ? From what source? a. Granted conditionally? b. Specific jxn? FC 2650: Limitations/restrictions? 2. Pers Jxn? 3. |
| What statute gives CA courts jxn over disso matters? |
|
FC 2010 - 1. status of marr 2. custody of mc from marr 3. support of kids 4. property rts 5. AF |
| What is the difference between subject matter jxn and personal jxn? |
|
SMJ: power to hear a case Pers Jxn - power of the court to render money jgmt over a person |
| Guardianship of Kassandra H. |
|
Fill this in when the case is analyzed
Voluntary versus Involuntary |
| What is the difference between gaining a grandparent's custody versus guardianship? |
| 1. Rebut presump in FC 3104 = against GP. But in guardianship, prove detriment to place child with natural parent, bic to keep with guardian |
| What case supports a non parent de facto parent in gaining visitation with a step child? |
| Marr of Gayden; |
| What advice to give grandparents that want to be clients for visitation |
|
1. Attorney fees
2. Generalized expense (may have to have separate living accomodations - restrictions) 3. Mediation 4. Conditions 5. Have good pre existing bond 5. |
| Has FC 3104 survived the Troxel test? |
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barely.
Parent may have to do a bit more than stand on Troxel. Need more evidence of relationship needs of children. |
| What was COA ruling on Harris (grandparents visitation) |
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1. FC 3104 not facially unconsxl
2. FC 3104 controls for post disso (FC 3103 is more general) 3. Facial challenge that mother made of per se denial, 3104 barely survives (7-0) 4. As applied, (4-3) survives 5. Separate consxl right of privacy squeeked by at 4-3. 6. Rebuttable presumption is absolutely essential (5-2) 7. "Special Weight" is probably important. Ct must make findings of why the GP relationship is in BIC. |
| Marr of Harris: What was outcome of this case re grandparents access? |
|
Case was pre Troxel.
M said she would offer some time M said it was a "per se Troxel" violation if you say it is in BIC to maintain GP relationship USSCT: |
| What does Punsley v. Ho? |
| Same as Kyle O - as long as parent offers some contact - |
| What is the ruling in Kyle O re grandparent visitation? |
|
Where parents offer visitation, grandparents cannot overcome presumption just by showing hostility alone.
Must be affirmative best interests |
| What Family Values have emerged from Troxel? |
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1. Family values
2. Relatives v.s psych parent 3. Estoppel 4. Harm? 5. Sexual orientation |
| What Troxel rights have emerged? |
|
1. Troxel is a parent's right's case, not grandparent's rights case - keeps others out of parent's life
2. CA case 15 yr old sibiling wanted to have access to half sibling. |
| What was plurality opinion offered by Justice O'Conner in Troxel? |
|
1. Parent has 14th A right parental liberty interest.
2. WA statute was breath takingly overbroad - no special weight to parent's views 3. Did not req ct to any special weight to fact that parent offered some time to GP 4. Parent offering some time should be a factor that favors parent If statute had been better drafted, might have survived. Analyze statute for over breadth, and special weight pattern. |
|
Troxel v. Granville:
How did the statute read? |
|
1. No custody proceeding
2. Non parents req access 3. WA state statute broad to order access to any person based upon BIC (not limited to certain classes) 4. Parent claimed conxl rt to liberty privacy Not majority agreement on reasoning. But did agree was overbroad. |
| What are Troxel problems? |
|
Statutory requirement:
1. Pre existing bond 2. Bad mouth history 3. Can grandparent work with limited conditions? Small amt of time? 4. If lose, what? 5. Mediation? 6. Ready to travel and pay expense and stifle? 7. May make relationship with child-in law worse 8. AF? |
| Can attorney fees be awarded in GP visitation proceedings? |
| Yes whether or not there is a Troxel problem: |
| What are the Troxel limitations that are in place in FC 3104? |
|
1. 3rd party access allowd under very specific conditions
2. disppears 3. weigh parental concerns 4. Rebutable presumpt that BIC = no GP Make sure that answer is structured to look at statutory issue first. Don't address conxl issue until the stat issue first. Would a statute even permit a judge would make an order. Don't talk about Troxel first. |
| What is the special grandparent statute for visitation? |
|
FC 3104:
1. BIC due to pre existing bond and relationship with GP 2. weigh c's interest with M & F's parental authority 3. Petition ok only if: parents separated or 1 absent for > month, or a parent joins, or c does not live w/either parent. 4. Cannot be used to grant long term if conditions no longer exist - self-destructs if factual circs dissolve 5. Rebuttable Presump - GP access is not in BIC if parents don't want or if 1 parent w/sole physical custody objects |
| What is the basis for approaching a question? |
| 1. Is there subject matter jxn? |
|
Grandparent's visitation rights:
What is the basis for SMJ? |
|
1. 3102 - relatives of deceased parent
2. 3103 - GP if custody pending 3. 3104(a) - GP is no custody pending and intact marr |
| What does Williams say about whether trial judge should say about BIC or Best Interest of Group? |
|
Expert should consider both individual and group best interest - major factor.
Millmower case states that older the child, the more likely court should take child's opinion - does this drive the younger child's circs? |
| Why is IRMO Williams (move away) not limited to move aways? |
| Cannot do individualized analysis of individualized of child to a parent. Must do the final step and factor sibling relationship. Should not be limited to long distance move away cases. |
| What was the legal error in the IRMO Williams? |
|
Court failed to recognize relationship between children. Entitled to companionship of siblings unless compelling circs.
Tr Ct s/have used Burgess and trial de novo. they are not community property to be divided equally for the benefit of their parents. |
| What does IRMO Williams stand for (parents separate siblings)? |
|
1. Parents have week on week off custody
2. M wants to move away 3. Does the judge look at the individual interests of each child versus the group Tr Ct has broad discretion; used individual bonding w/each child and ea/ parent. COA reversed b/c kids have right to have society |
| Freedom of speech to adress the child: What are the limits of communication between a parent and child about this? Can parents criticize the coparent's religion? |
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No CA cases. FL court decision that held parent not disparage other parent (their religion).
See Judicial Council forms (not to disparage other party) |
| What was the outcome of the Weiss matter (parent's right to choose religion for child) |
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Cannot apply ordinary best interests in parent's competition about religion
Cannot take expert opinion. Murga: Parent objecting must show a present showing of substantial threat or emotional harm to a particular child. Can probably never be met. (Child would "probably" be harmed is not good enough) |
| May a court get into situation where parties disagree about religious introduction to a child? |
|
Marr of Weiss: M converted to F's religion and promised to raise kids in F's religion. After disso, changes plans and goes back to her church. F challenges her ability to select a religion.
F wants restraining order re M's religion, 2 faiths are harmful, written agreement; M opposes b/c 1st Amendment, chg mind, take kid; Tr ct gave priority to F's religion b/c of agreement but did not make orders about where M could take children to church. |
| How does Palmore affect us today? |
|
1. sexual orientation
2. illegal immigration status 3. disability 4. mental illness 5. religion Argue under the theory that best interests must be modified by the recognition of conxl rights and public policies that supervene, not only allow us but require us to apply that policy rather than narrow view of that moment. Other cases: Wellman - ct cannot disallow you to parent if you have someone of same sex spend the night, have illegal alien, cannot disability as a major operating fact (Carney). Mental illness; These cases follow this case. |
| What does the case Palmore v. Sidoti stand for? |
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1. Ct may have to hold back on a certain holding b/c of social policy
(Mother chose to remarry different racial person in small southern state city - Bio father moved for chg of custody b/c of racial strife that would cause problems for child) Would child be subject to social opprobrium (reproach) b/c of interracial home. Reality of private bias is not basis to remove a child from parent - cannot perpetuate social prejudice as external policy Conxl cannot control such prejudices but cannot tolerate them. |
| Do courts have ability to appt guardian ad litem? |
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No, Irmo Lloyd.
GAL appt per local rule. Reversed. Not allowed. |
| What does the Akkiko M. stand for? |
| A child in dependency case if competent must be allowed atty of choice. Maybe same for fam law setting. |
| What court of appeals case might help a parent challenge the fact that minor's counsel can not be cross examined? |
| Marr of McLaughlin - mediator was not subj to cross exam. |
| What can minor's counsel do with court order? |
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1. access to kid and records
2. veto examinations unless ordered |
| What are the duties of minor's counsel? |
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1. interview kid
2. files and records of parties 3. other investigation 4. own witnesses 5. arguments 6. adequate representation a mouth piece for child's views AND independent coherent presentation of child's best interest. - built in conflict. |
| What findings must a court make to order counseling per FC 3190? |
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1. dispute poses substl danger to kid
2. best interests 3. not undue financial burden |
| Court ordered counseling: What code provides authority? |
|
FC 3190
1. FC proceeding 2. party or kid 3. outpatient counseling w/mhp or subst abuse counseling 4. 1 yr limit 5. renewable on showing need 6. dv - sep counseling\ |
| In re Marr Camacho: May a fam law court order that no visits occur until after F achieves emotional maturity? |
| No one would ever be able to see child. Absolute right to access. Limitations m/b on something very specific. |
| In re Marr of Douglass - what was the outcome of req to name child before birth? |
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1. Prebirth surname order ok
2. prebirth custody order not ok 3. t/ct ruled hyphenated name 4. first namer has leg up 5. can be mediated issue |
| What is the general rule regarding changing a child's surname? |
|
Schiffman case is leading case (CASCT)
1. Best interest test 2. Burden on person wishing to change surname - what name has the child been using - puts premium on whoever starts using a name first. 3. Not tied to the traditional patronimic pattern in US Factors: 1. How long has child used name 2. symbolic role of name 3. embarrassment |
| What is relationship between UCCJEA and FPKPA |
| UCCJEA conforms to FPKPA, beefs up enforcement of custody and visitation on interstate basis. |
| Difference b/t UCCJA AND UCCJEA? |
|
UCCJEA replaces UCCJA UCCJA did not give priority to home state., did not provide for continuing exclusive jxn for state that entered decree for as long as someone/child or party stayed there |
| Is UCCJEA reciprocal? If a child comes here from Mexico (non Uccjea state) and DHS wants to claim child should stay here, how does uccjea apply? |
| Applies in all situations whether reciprocal or not. Whether adopted or not. Whether in US or non-US. Petitioner has right to choose uccjea or hague in international matters. |
| UCCJEA SECTIONS 3400 TO 3465: What is the purpose of these sections? |
| Uniform agreement adopted by states, each state adopts slightly differently; establishes restrictions on SMJ on court. |
| Re: CCP 397.5: If both parties have moved out of county, what can court do? |
|
If both moved, court can exercise jxn to transfer case to either county where party lives Issue temporary orders until receiving county takes jxn of matter If transfer for enforcement of c/s obligations, generally to county where child resides |
| Re: CCP 395 - where does venue lie for nullity or legal sep? |
| The party where either party lived when petition filed. No time reqmt. |
| Re CCP 395 - where does Venue lie for disso? |
| In county where petitioner or respondent has resided for 3 months before filing petition. Only one party needs to qualify. |
|
Explain the analysis briefly for SMJ in the following cases: 1. Irmo Dick 2. Irmo Gray 3. Purnel 4. Irmo Jacobsen 5. Irmo Zaragoza |
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1. Resident does not rely on federal immigration rules. If H establishes residence in CA = SMJ 2. Divisible Disso - split case into different pieces 3. Preemption - c/s -look to source: Fed law preempts somethings (Military pay) but not c/s even if from Indian trust money 4. Preemption s/s: State law & public policy trump tribal traditions of no pay to non-Indian 5. Zaragoza: Waiver -- parties cannot submnit to jxn and then try to object to SMJ - H did not object w/mot to quash |
| What is the doctrine of divisible disso? |
| One spouse obtains ex parte disso in different state and then CA can have jxn over the remaining spouse here as to property and support |
| What is a bilateral decree of disso and why does it prevent collateral attack? |
| Sherrer Doctrine: If both parties have notice and opportunity and participate in process, neither can complain later and raise jxnl issues. |
| What is prima facie evidence that a person was domiciled in CA and therefore out of state disso s/not be recognized? |
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1. domicile in CA 12 mo. before disso and resumed residence in CA 18 mo after date of departure (were in CA 12 mo, left for 6 mo, and came back) 2. During entire time of absence from state until return, retained residence in CA |
| What does the UDRA provide? |
| CA residents who go out of state for a disso and do not otherwise meet reqmts, disso will not be recognized in CA. |
| What is the UDRA? |
| Uniform Divorce Recognition Act FC section 2090-2093 |
| What are the initial questions you ask when determining if court has power? |
|
1. SMJ? From what source? a. Granted conditionally? b. Specific jxn? FC 2650: Limitations/restrictions? 2. Pers Jxn? 3. |
| What statute gives CA courts jxn over disso matters? |
|
FC 2010 - 1. status of marr 2. custody of mc from marr 3. support of kids 4. property rts 5. AF |
| What is the difference between subject matter jxn and personal jxn? |
|
SMJ: power to hear a case Pers Jxn - power of the court to render money jgmt over a person |
| WHAT IS THE AGE TEST FOR QUALIFYING CHILD? |
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1. under 19 at end of year 2. full-time student (5 mo of year)and under 24 at end of year or 3., permanent and total blindness or disability regardless of any age |
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RE: FC 4072 If court allows hardship expense deductions, what must court state on record regarding nonguideline support? |
|
COURT SHALL 1. state the reasons supporting deduction on record 2. document amount of deductions and underlying facts/circs 3. specify duration |
| When does a non parent (non party)have standing to request custody of a child according to the FC? |
| 1. Anytime there is a Disso/nullity/legal sep; excl custody; dvpa, or upa proceeding - any non parent. But if no proceeding pending, deceased parent relative by 3102, grandparents by 3104 and former guardian by 3105. Step parent can use 3101 but only if proceeding is pending. |
| What is the definition of Assisted reproduction agreement per FC 7606?> |
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A written contract that includes 1. who is the legal parent of child 2. what is the relationship between the parties (donor and donee) |
| What are the 6 WAYS a man is REBUTTABLY presumed to be a natural parent? |
|
1. Man and child's natural mother are or have been married to ea other and C is born during marr OR w/in 300 days after marr is terminated by death, annul, decl of invalidity or divorce, or after a judgment of sep is entered by court 5. Before C's birth, M and child's natural mother have attempted to marry by a arr solemnized in apparent compliance w/law, although marr could be deemed invalid if either is true: a. if attempted marr could be invalidated by ct, C is born during attempted marr or w/in 300 days after its term b. If attempt marr is invalid w/o court order, C is born w/in 300 days after of cohabitation 6. Aft C's birth, he and child's natural M have married or attmpt to marry and either is true: a. F consent's to his name on birth cert b. He is obligated to support child by written voluntary promise or by ct order 7. He receives C into is home AND openly holds out C as his own |
| WHAT IS A DEFERRED SALE OF HOME ORDER |
| Duke order from Marr of Duke where ct can defer sale of home and allow custodial parent to stay there w/ mc. |
| What is the mathematical calculation for child support? |
|
1. Figure the total net monthly income of each parent under the standards set forth in Family Code Sections 4058 (annual gross income) subtract deductions listed in 4059 and add both parents's net incomes together; 2. Multiply that figure by the percentage of time that the higher earner has primary physical responsibility for the children 3. Subtract the result from the higher earner's net monthly disposable income. That yields the part of the higher earner's monthly income on which child support is computed. 4. Find the appropriate value of K as set forth in Family Code Section 4055(b)(3), and take K percent of the result of step 3. |
| HOW DOES THE IRS DEFINE COMMUNITY/SEPARATE PROPERTY? |
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The presumption under California law that commingled property is to be treated as community property is generally followed for tax purposes. However, this presumption does not, by itself, overcome the presumption of correctness of an I.R.S. deficiency determination |
| How do you compute community interest under Pereira? |
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1. Calculate the original amt of sp investment or the value of bus at DOM 2. Subtract the initial investment or DOM value from the DOS value. 3. Difference equals excess 4. Multiply the investment by rzbl return rate over the period of marr 5. Subtract investment return from excess earnings. 6. Remaining amt owed to community. |
| How is the value of community interest in Stock options calculated? |
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Stock options awarded during marriage are CP. Time formula: Months from date of award to date of separation / Months from date of award to date of exercise. |
| What does FUSFSPA stand for? |
| Federal Uniformed Services Former Spouses' Protection Act |
| What is a MARVIN AGREEMENT/ACTION |
|
Non marital partner agreement remedy: 1. action on implied Kr 2. action to enforce an implied partnership/ventuare 3. action to enforce implied agmt to own prop jtly 4. action in quantum meruit for rzbl value of services 5. action seeking impo of consx/resulting trust or equitable lien |
| What are disability payments in terms of property characterization? |
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Treated as wage replacement – characterized at time received. Same for worker’s comp and severance pay. Spouse’s election to take disability payments in lieu of retirement benefit doesn’t avoid spouse’s right to the retirement benefits. |
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What are Pension benefits, what portion in general belongs to the community and how is that determined? How are the benefits paid out? |
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Employee retirement benefits accumulated during marriage are CP. Time formula: # years employed while married / total years employed. If spouse is still employed, judge will issue a "when and if received" decree. Other approach is to cash out wife with assets of equal value. If spouse can retire, other spouse has right to receive her ½ of the pension, and spouse’s desire to continue working past retirement cannot defeat spouse’s right to receive pension. Wife’s interest in the QDRO is not devisable. |
| What are the five filing statuses? |
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1. Single 2. MFJ 3. JFS 4. HOH 5. Qualifying Widower) with dependent child |
| Explain theory of FUSFSPA regarding dissolution and division of cp property |
| Subj to limitations of 10 USC 1408, ct may treat disposable retired pay (to service memb) for pay periods > 6/25/1981 either as sp of member or cp per state law |
| What are the concerns regarding efficiency and conservation of judicial resources in Elkins? |
| The CASCT stated that you cannot advance those goals at the expense of impairing the public interest in being afforded access to justice, resolution of controversy on the merits and a fair proceeding |
| What authority allows a trial court to "judicially shift the dependency exemption" in the calculation of child support? |
| County of Monterey v. Cornejo (1991) CASCT held that IRC does not preclude state court from doing so. Public policy is to maximize after tax income available for paying c/s. |
| Transmutation by premarital agreement requires what? |
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No consideration needed. But requires writing, and signed by both parties. Exceptions to SOF: * Oral agreement is fully performed; or * Reliance on oral promise to change will, or not to change will. Parties can agree on anything they want, but cannot limit obligation to furnish child support or spousal support because against public policy. Defenses: * Not signed voluntarily * Unconscionable when made, no fair disclosure of assets, and right to disclosure not waived in writing and no independent knowledge of assets. |
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Explain the three formulas for tracing separate funds in commingled bank accounts E D F |
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Recapitulation accounting not allowed (total expenses exceeded total CP income). Burden of proof on SP proponent to show that each asset was acquired with SP funds. 1. Exhaustion method: All CP was gone, any subsequent purchase is from SP. 2. Direct tracing: Quick-in, quick-out. Must have sufficient separate funds available, and intent to use SP and not CP to buy asset. 3. Family expense presumption: Expenditures for family expenses were made with CP, even if SP was available, unless agreement exists. |
| Would testimony from a spouse that property purchased durr marr but taken in only one spouse's name in order to secure better loan rebut the title presumption that it is spouse's sep property? |
| No. See Marr of Kahan |
| If, durring marr, a couple purchases a home with comm $$ and only one spouse takes title, how can the other spouse in a disso proceeding prove that the property was intended to be community? |
| Must rebut title not with acquisition durr marr argument, not tracing, but with CCE that title intended to be community. Use evidence of an agreement or understanding. One party's belief in jt ownership not sufficient. |
| If during marr, a couple purchase real property w/comm $$ but one spouse takes the title in their name alone, is the property community by virtue of its acquisition date (durr marr)? |
| No. See Marr of Lucas. "it is the affirmative act of specifying a form of ownership in the conveyance of title taht removes such property from the more general community property assumption. The mere fact that property is acquired during marr does not rebut the form of title presumption. |
| According to the Marr of Berger, if a spouse voluntarily elects to defer income and live off of savings while maintaining a high life style, what should the court do in determining income available for c/s |
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Court should 1. use the actual earnings spouse c/have rec'd if they had not deferred the income or 2. Deviate from GDS using "special circs" being that H deferred income. Ct should use the amt of support H would pay if he had not deferred his income as the deviation. |
| May a non parent attempt to join herself into a UPA action that was settled previously in order to obtain custody over a child that lived in her home for 7 years? |
| No. Nonparent has no standing in dormant UPA action where no proceeding pending. Must initiate guardianship proceeding. Scott v. Superior Ct. 2009 |
| When can a former legal guardian bring an action to have visitation with a child? |
|
1. During fam law proceedings or 2. If none, can maintain an independent action. If one parent alive - in fam court If no parents alive - in guardianship matter BIC standard |
| What type of proceedings specifically allows grandparents to petition for visitation? |
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FC 3102 if their adult child is deceased, even if a step parent adopted the grandchild. Can be brought anytime whether custody before court or not. Independent action. FC 3103: if custody issue before court FC 3104 if custody issue not before court - natural parents are not living together or if they are and one agrees |
| What "special statutory jxns" exist to permit non-parent visitation when there is no family law hearing pending? |
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1. FC 3104 - grandparents can petition court for visiation if no hearing pending but only under limited conditions 2. FC 3102 - deceased parent's relatives can request visitation if conditions are met |
| What is the traditional meaning of income according to Marr of Alter? |
| Recurring monetary benefit |
| Is federal tax law conclusive as to the definition of income for purposes of child support? |
| No - not conclusive (Marr of Rothrock). Marr of Alter decides to include recurring gifts b/c rzbly related to traditional meaning of income as a recurring monetary benefit |
| When can gifts of money from a parent be considered income for purposes of child support? |
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Marr of Alter: regularly recurring gifts s/b income if they bear a reasonable relationship to the traditional meaning of income as a "recurring monetary benefit." |
| Which case determined that reducing child support may sometimes be in the best interest of the children? |
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Mar of Mosley: if hard times happen, not in BIC to force parent into a level of debt they have no ability to pay reduction in c/s may be in bic if it permits a parent to devote more time to children tan to working ore or less constantly simply to keep up with an onerous support order |
| What does FC 3651 expressly provide about modifications about c/s and s/s? |
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C/s can always be modified or terminated. S/s can not be modified or terminated if the parties agreed in open court or if by written agreement. |
| What does transmutation require? |
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1. Writing 2. Express declaration 3. Changing nature 4. Signed by party whose interest is adversely affected Precludes extrinsic evidence |
| What are the three factors that generally determine property characterization? (Irmo Rossin Private Disability benefits) |
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1. time of acquisition 2. operation of various presumptions, particularly those concerning title 3. determination whether spouses have "transmuted" property, changing character |
| In Re E.S. (2009) held what regarding FC 3041? |
|
FC 3041 not unconsxl where child placed w/non parent even though no unfitness needed b/c 1. detriment to child (by CCE) is focus (child's interest) rather than parental unfitness and 2. Best interest of child (by PPE) to be placed w/non parent = proper balancing of competing interests |
| In Kevin Q. V. Lauren W. what should Kevin have done to disprove Brent's biological paternity or tried to rebut the presumption of Brent's paternity? |
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1. S/have moved for genetic tests under FC 7575 to disprove Brent's paternity 2. C/have challenged Brent's VDP on equitqble grounds such as extrinsic fraud 3. Any other statutory options for challenge |
| What priority does a judgment of paternity (by Vol Decl of Pater) have over a 7611 parent presumption? |
| Superiority |
| What are the policy considerations for rebutting the presumed parent status in FC 7611? |
| The mere fact that a parent is a presumed parent and that the evidence is then rebutted by CCE (not genetic dad) may not be appropriate to apply the rebuttal to the case if child does not have two parents. |
| Regarding presumptions in FC 7611 (status of natural parent, presumptions, conditions) - if two ore moe presumptions arise under 7611 and are conflicting, how does the court decide which to choose? |
| The court must choose the presumption founded on the weightier considerations of policy and logic. |
| What is the burden of proof for an alleged parent to prove she is a "presumed parent?" and what is the burden of proof to rebutt that evidence? |
| Proof by a preponderance that alleged parent is presumed. Once found, other parent must rebut by clear and convincing evidence. |
| If an alleged father fails to submit to paternity testing after having been ordered and fails to bring motion seeking relief - what is possible consequence |
| court may resolve paternity against alleged father |
| Who can request blood DNA test for paternity under FC 7558? |
|
DCSS uf 1. paternity is issue 2. support is issue 3. person alleging paternity gives smt under penalty of perjury establ req sexual conduct 4. person denying gives stmt w/rzbl non exist of paternity 5. alleged father requests in response 6. M and alleged F agree in writing to test |
| Who can request a blood DNA test for paternity under FC 7551? |
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1. Court on its own initiative 2. any person who is involved 3. dependency ct father if paternity is issue (not if he is claiming presumed status) 4. grandparents when putative F is deceased 5. putative father |
| When may blood tests for paternity not be used to challenge paternity |
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a case that reached final judgment or paternity on or before 9/30/1980 or A case coming within FC 7613 (artificial insemination) or Case in which wife w/consent of H conceived with surgical procedure |
| Who can file for a blood (DNA) test for paternity under FC 7541? |
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UNDER FC 7541 1. Not later than 2 yrs from dob 2. husband 3. presumed father 4. child through GAL 5. mother if the child's bio father has filed an affidavit w/ct acknowing paternity |
| In teh case Kevin Q v. Lauren W (2009) F lived with M before child and after child was born. Why did COA reverse the tr ct's finding Kevin was presumed F? |
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FC 7611 states man is presumed to be natural F of child if he 1. meets paternity judgment or conclusive presumption by filing vol decl of paternity or 2. conclusive presump of paternity over child of the marr or 3. for a rebuttable presumption of fatherhood under any of 7611's subdiviions M and Brent signed Vol Decl of Pat and under FC 7574, id'd B as the child's nat F. Can be filed with DCSS any time. Serves as paternity judgment and trumps presumed F status claim. |
| Why was the sanction in Elkins inconsistent with the policy favoring determining cases on their merits? |
| Local rules cannot trump state court rules. |
| What is the preference when a local rule and a state court rule conflict? |
|
State rule trumps Elkins |
| What procedure is required to divide a qualified retirement plan upon dissolution? |
| All qualified plans and all funded ERISA covered retirement plans can only be divided between a participant and non participant spouse (or used to pay support) by a court order QDRO |
| WHAT IS THE THEORY OF THE VAN CAMP RULE? |
| Under the Van Camp rule, an amount determined to be the reasonable value of the owner-spouse's services is treated as community property, and the balance of the business income is separate property. |
| Which theory should a court use to calculate the increase in value of separate property business mannaged by the community? |
|
Discuss both theories, use the one that results in substantial justice. VanCamp: Valuable Company – use when SP capital investment was primary factor in business’ growth. Value the Community labor, rest is SP. Start with value of spouse’s services at market rate, minus family expenses paid from CP, equals CP value; rest is SP. Pereira: Personal skills/effort. Add interest to SP investment; remainder is CP. |
| What is the difference between the administrative and judicial remedies set forth by the Convention? |
|
Judicial: means bringing an action in the country in which the child is physically present Administrative: allows a central authority in the country where the child was removed to gather info about the child, secure return, and provide information to parties/court. |
| Goodwill of a professional practice |
|
Valued by expert witness; or capitalization of excess earnings attributed to good will (net annual return, minus value of services, minus return on capital; multiplied by number of years). Divide by 2 to determine spouse’s CP interest. Not capped by buy-out agreement. |
|
TESTS TO BE A QUALIFYING CHILD R A R S E |
|
1. son, daughter, stepchild foster child, brother, sister, half brother, half sister, step brother, step sister a descendant of any of them. 2. under 19 at end of year or under 24 and full-time student or any age if permanently and totally disabled\ 3. live with you for more than 1/2 yr 4. not provided more than 50% of their own support for year 5. If child meets rules to be qc to more than one person, you must be person entitled to claim |
| What was the status of custody in Brown and Yana? |
| the custody issue had already been decided, fully litigated, and the resulting judgment was entitled substantial deference in the absence of a showing of a significant change of circs. |
| What did Brown & Yana not do? |
| It did not suggest that litigants must make a prima facie showing of some kind in order to be entitled to proceed to trial. |
| What did Brown v. Yana stand for? |
| Once a judgment has been entered in a custody matter, a postjudgment motiohn or request for OSC for a change in custody based upon an objection to the cp's plan to move away requires an evidentiary hearing only if necesssary - only if moving party is able to make a prima facie case showing that move will be detrimental to child or has identified a "material but contested factual issue that should be resolved through the taking of oral testimony." |
| FC 3185: What must the court to if parties fail to reach agreement in mediation? |
| Set the matter for a hearing for unresolved matters |
| Regarding Elkins, why was the Reifler reasoning not acceptable/ |
|
1. Reifler involved post judgment modification, not trial on marital disso 2. Reifler was for motions, not trials. 3. Controverted facts could exist but not if they required factfinding resulting in a judgment 4. CCP 2009 reasoned to allow affidavits 5. CCP 2009 weakened by post Reifler cases, People v. Johnson 2006 6. Affidavits in 2009 intended to be on procedural matter not on contested facts that form cause of action 7. CCP 2009 does not authorize intro of hearsay evid at a contested dtrial 8. Local ct may not adopt hearsay exception appl solely to divorce trials despite state law making disso trials conducted in accordance w/other civil proceedings. |
| What was Marilyn Elkin's main argument regarding the effectiveness of a "declaration" as testimony? |
| Marilyn argued that an affidavit is "testimony". The court rejected this as every written declaration including depositions, transcripts and so forth would be given the same accord as an oral examination. |
| What did the trial court in Elkins allow? |
| Ct had a rule and order allowing for the admission and use of written declarations admissible as a basis for decision making in contested disso trial |
| Are the rules of evidence applied in F.Law? |
| Even though some informality and flexibility is applied in marital dissolutions, the proceedings are governed by the same statutory rules of evidence and procedures that apply to all other civil actions. |
| What was the holding in Elkins regarding a court adopting local rules? |
|
A trial court is without authority to adopt local rules or procedures that conflict with statues or with rules of court adopted by the Judicial Council, or that are inconsistent with the Consx or with case law. Local courts may not create their own rules of evidence and procedure in conflict with statewide statues. |
|
I see Cal Rules of court 3.1203 says exparte notice must be given 10:00 a.m. prior to the day of the hearing. I thought this was usurped by a local rule that requires 24 hours notice. |
|
Ca State Rules trump all local rules See Elkins |
| Remedies for threat of abduction re FC 3048 |
|
1. supervised parenting 2. cash bond 3. removal restrictions 4. relocation restrictions 5. get passport 6. notify counselate of US or other country 7. Register CA order in other jxn 8. Control issuance of transport tickets 9. Adopt add'l lang under Hague or Uccjea to help enforcement |
| Does a parent have to have direct evidence that the other parent tried to abduct a child? |
|
No direct evidence. Up stream info that shows certain factors that are part of analysis. Factors may be completely innocent behavior. No bad faith behavior required. Low threshold Stereotyping foreigners/countries Keep in mind advice about backfiring of this strategy |
| List the factors the court must consider in a FC 3048 abduction prevention analysis: |
|
1. Previous abduction 2. Threats 3. No strong ties here 4. Ties elsewhere (ct cannot consider this unless evidence exists in support of another factor in the 3048 section) - many people have substl ties to other jxn. 5. Financially footloose (can go anywhere in world) 6. Planning activities 7. DV or criminal acts |
| What must the FC 3048 findings contain? |
|
1. All custody orders (any c/v prodceeding) a. juris basis b. Notice c. Rights d. Penalties e. Habitual residence of child 2. factors re danger of abduction 3. need for preventative measurese 4. conditions if necessary 5. Give DA child abduction unit info |
| What is CA's mini child abduction act? |
| FC 3048 - lays out circumstances and remedies ct must consider as to whether child may be removed from a jxn in ca. |
| What are the differences in enforcement between Hague and UCCJEA application? |
|
UCCJEA: 1. Not reciprocal. CA will use with other state or foreign jxn even if other jxn doesn't accept UCCJEA as long as they have similiar rules 2. Applies to custody and visitation (access) Hague: 1. Enforceable only with custody, not access 2. Only applies to to other jxns (countries who agree to follow rules) signatories 3. |
| Does UCCJEA permit subject matter jxn waiver? |
| No. It may be considered by the court but is not controlling as in child support situations |
| What are the differences between UCCJA AND UCCJEA |
|
UCCJA: 1. Homestate: 2. significant connectsd + substl evidence = best interests 3. Emergency (neglect/abuse) 4. no other state UCCJEA: 1. Homestate has priority 2. significant connection + substl evid only if a. no home state b. home state declined, or c. all home states and signfc states declined 3. Emergency basis (temp) 4. No other state 5. All home state and sig. conn. states have declined |
| What is the definition of CEJ? |
|
Once a state acquires subject matter jxn (using home state rule, emergency jxn, vacuum or significant contacts rule), it remains the CEJ until in CA 1. issuing state decides no significant contact and no substl evidence or 2. issuing state decides child and one parent/custodial all moved away |
| What is a uniform act? |
| It is a statute that many states agree to adopt in whole or part, example UCCJEA |
| What is the definition of home state according to UCCJEA: |
| The state where the child lived immediately preceeding the commencment of the matter |
| As between the gestational mother whose womb bears the egg and the ovum donor who donates the egg, which is considered the "natural mother" and under what authority? |
|
Johnson v. Calvert: 1993
CA law recognizes only one "natural mother." When gestation provided by one and genetic material provided by other, natural mother is woman who intended to bring about the birth of the child and to raise the child. the social mother. |
| What is the difference between gestational surrogacy and traditional surrogacy? |
|
Gestational: Ovum donor donates fertilized egg into infertile mother's womb for gestation only.
Traditional: Surrogate mother provides both the egg and womb. |
| Does UPA grant authority for court to decide parentage for two same sex women? |
|
Yes per 2005 CASCT trilogy of cases:
In re Elisa B. K.M. v. E.G. and Kristine H. v. Lisa R. |
| How may a mother and child relationship be established? |
|
a. Mom and child - mom gave birth (FC 7610)
b.Adoptive Mopm parent and child - proof of adoption c. Contribute genetic material to other Mom's child (K.M. v. E.G.) d. Received their partners' children into their homes (same sex partners) Elisa B. e. Parentage by estoppel (Pedragon, Buzcanna, Cleveland by extension) |
| What type of evidence is automatically admitted in UPA hearings w/o foundation? |
| bills for pregnancy, childbirth and genetic testing are admissible |
| If a party brings an action under the UPA and submits a DNA test, what must the court first do before making even pendente lite custody orders? |
|
1. Find that DNA test proves parentage
2. Find that custody or visitation is in BIC |
| What is the definition of "parent and child relationship" ? |
| per FC 7601 means "legal relationship existing between child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties and obligations. Term includes mother and child relationship and father and child relationship." |
| What circumstances is UPA appropriate in deciding custody/visitation? |
| Unmarried parents |
| What is the difference in jxn to decide custody/visitation issues between the UPA and the DVPA? |
|
DVPA allows limited jxn to court to make custody/visitation orders only where marital relationship occurred between parties and child is result of marr or persons are legal parents by previous court order, POP, adoption etc.
Ct cannot decide paternity/maternity in DV case |
| What is the definition of Assisted Reproduction per FC 7606? |
| Conception by any means other than sexual intercourse |
| What is the definition of a pension? |
| A pension is an "annuity" meaning payments made to the employee from the employer upon his/her retirement for their remaining life. |
| What orders can the court make regarding an Action for Exclusive Custody? |
|
1. No petition for disso or legal sep needs to be filed
2. Ct can make any orders for BIC in accordance with rights of natural parents 3. Orders can be made during pendency of petition, at final hearing on petition and modification later. |
| What factors are used to determine whether a guardianship should be terminated? |
|
1. Public policy favors stability
2. Parents must prove "overall fitness" and that it would be in the BIC to return her to parents. |
| What rights to former legal guardians have pursuant to FC 3105 |
| 1. Legis policy that children's rt to have companionship w/previously judicially approved guardian outweighs parents's right to control and custody - may grant rzbl visitation rights if in BIC |
| What is the definition of Clear and Convincing Evidence? |
| 80 yers ago CASCT defined CCE = finding based upon "high probability", greater than preponderance. Later defined as to be "so clear as to leave no substantial doubt; sufficiently strong to command an unhesitating assent of every reasonable mind." In re Angelia (1981) |
| What is the definition of Forum Non Conveniens? |
| --Forum non conveniens requires that in the interests of fairness and convenience a court with personal jurisdiction over a party nonetheless yield its power in favor of a more appropriate forum |
| What is the difference between residence and domicile? |
| While a person may, at any given time, have more than one residence, he or she may have only one domicile at a time. Moreover, once a domicile has been established, it is presumed to continue until a new one has been acquired. In order to establish a new domicile, a person must show (1) physical presence at the new location with (2) an intention to remain there indefinitely |
| Waht does the statement "frequent and continuing contact" refer to? |
|
It is the public policy of CA through the legislature as follows:
to assure children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, and to encourage parents to share the rights and responsibilities of child-rearing, unless contact would not be in the best interests of the child. Therefore, in making an order for custody to either parent, the court must consider which parent is more likely to allow the children frequent and continuing contact with the noncustodial parent. |
| Marr of Lester stands for? |
| A court may not prefer a parent as custodial parent because of the parent's gender. |
| What is the definition of Family Support? |
|
Family support is an income-tax shifting device designed to receive alimony tax treatment under Internal Revenue Code Sections 71 and 215 (deductible to payor; income to payee) for payments that might otherwise be treated as child support.
Can never refer to c/s calculations or factors. Query whether it comports with findings required to deviate from guideline in FC 4065. |
| Does the court consider a "tie" between the number of years of service and the amount of severance as a factor in characterizing the asset? |
|
Cts look at a number of factors:
an appellate court found that, although the severance pay at issue was partially based on years of employment it should be characterized as separate property, when (1) the entitlement to the pay was derived from a court order, rather than being based on a contract right, (2) it represented an employee's option between returning to work and accepting payment for giving up the right to return to work, and (3) it was only incidentally based on the number of years of service. The employee spouse had no absolute right to payment because he would not have received the pay if he had returned to work. The appellate court found that the severance pay was present compensation for loss of future earnings, not deferred compensation for prior services See Marr of Frahm |
| What is the characterization of severance pay? |
| If received after separation and if intended for loss of future earnings, is considered sp property of ee spouse. |
| Describe non retirement plans that employers may also offer that are not considered "qualified" plans |
| any nonretirement benefit such as severance, bonus, life, health and accident plans, fringe benefits |
| What is the difference between qualified and nonqualified plans? |
|
Nonquals are almost never funded.
Top Hat plans, Supplemental Executive Retirement Plan to name a few |
| Are all qualified private employer retirement plans covered by ERISA? |
| Some are not |
| What does the term "qualified" mean with respect to retirement plans? |
| "Qualified" refers to having met the requirements for tax qualification unter IRC section 401(a) et seq. |
| What is a profit sharing plan? |
| form of defined contribution plan. |
| What is the character of disability benefits received after DOS? |
|
Marr of Donnelly: Although related to employment during marr, generally belong to disabled spouse's sep property.
But if disability pmts substitute for longevity or retirement pension benefits, community may have interest. |
| How should the effect of taxes be considered in assigning a home to one spouse and a retirement plan to another spouse? |
|
House - if the house is going to be sold immediately, the court must consider the immediate and specific consequences of the sale - capital gains taxes if they exist.
For retirement, unless it is ripe for maturity, the court should not consider future taxes |
| Describe the formula for actuarial valuation of a defined benefit plan |
|
1. EE's amount of monthly retirement pension benefit promised at future retirement
2. Discounted back to valuation date to yield present day value 3. Discounting includes 1) interest, mortality rate and vesting if an issue |
| If a pension plan is a defined benefit plan and must be divided, what must the court consider?f |
|
1. Present day value
2. factors (economic, health or otherwise) used in rendering opinion as to value 3. discounted down to date of trial - thus establishing a present value of the stream of payments ove the ee spouse's life expectancy, or over the jt lives of the ee and the non ee. |
| What is the definition of a defined benefit retiremente plan? |
| Broadly defined for tax purposes is any plan that is not a defined contribution plan. Usually a formule based upon service credits and salary. Actuarial must determine present day value |
| What describes a defined contribution retirement plan? |
| provides for an individual account for each participant and benefits solely bgased upon contributions to account either by employer or in conjunction with employee; Amt of contribution is defined by plan as a specific amt or formula of pay |
| Give examples of defined contribution retirement plans |
| Profit sharing, stock bonus, money purchse, target benefit, tax sheltered annuity, 401K |
| Gives example of cash out order for profit sharing plan where dot value is higher than dos value |
|
Value community baseline at dos plus any post separation increases attributable to that baseline amount up to the date of trial.
2. Consider alternative date if changes in baseline due to ee spouse's actions 3. consider ct to reserve jxn if division of benefits postponed until time of distribution |
| When is the time rule not appropriate for approtioning retirement benefits? |
|
1. when the retirement benefits are not substantially related to the number of years of service of employment
2. Further years of marriage were not necessary after the maximum years of employment were reached during the marr (marr was 10 years long but max vesting occurred at year 8 (seen in military pay) |
| What is a cash-out order for a deferred compensation plan? |
| 1. Method requires the entire comm interest in plan be awarded to ee spouse at present value with assets of equal value awarded as offset to other sp = overall equal division of cp |
| What is the benefit of using the "Time Rule" to value community retirement benefits? |
|
1. Use to divide retirement benefits in kind when "cash out" not feasible or will not result in equal division.
2. No actuary needed 3. Must consider actual years used as opposed to extra years not needed to qualify for plan 4. Must consider immed and specific tax consequences |
| What is Reverse Van Camp theory |
|
To be used when sep efforts improve value of community asset
1. Establish value of community bus at DOS, and increase between DOS and DOT 2. Apply rzbl earnings against increase as paid to SP employee 3. Remainder of growth is awarded to community. |
| What is the Reverse Pereira theory? |
|
In situations where Sep efforts increase value of community asseet post separation, there are several methods:
1. Establish value at DOS, add growth in value due to non-spouse factors = commu interst at trial. 2. Or reverse Pereira where investment return is attributed subtracted from total increase and attributed to community (rather than to sep as in normal approach) and then remainder of increase value is CP |
| What is the proper way to analyze the facts of a case under both Pereira and Van Camp? |
|
1. Value of sep prop at DOM
2. Value of Sep prob at DOS (tracing if necessary 3. Proportion of increase to sep prop under Pereira and Van Camp and 4. Proportion of increase to CP under Pereira and Van Camp |
| What role does the skills of the spouse have to do with which formula (pereira or Van Camp) are used in valuation of a sep prop asset at dissolution? |
|
1. Applies to business or asset that increases in value
2. If spouse's efforts/skills caused increase in value and profits of SP asset - Pereira used. 3. If increase occurred from other factors than spouse's skill/efforts - use Van Camp |
| Formulaic Pereira |
|
fair return on spouse's sp investment to that spouse as sp
allocate any excess to the community estate as arising from spouse's effort |
| What is the Van Camp formula? |
|
A reasonable value (less any salary taken) is attributed to the services performed by the owner-spouse and that amount is valued as community property.
Increases in the value of the sep property are allocated as sep property to the owner spouse. |
| When should the Van Camp formula be used in valuing sp prop asset/business? |
| It should be applied to value community and separate interests accruing in a sp business interest dur marr when the increase and value were due to other factors than the sep sp's efforts and skills. |
| What types of scenarios in a Pereira and Van Camp apportionment are possible? |
|
1. H owns sep prop business before marr (restaurant) and continues to operate it through marr, increasing the business value as well as paying income to community
2. H and W own bus started durr marr. After DOS H continues to work in business increasing value, receiving income and paying W out of the proceeds 3. A movie producer writes a movie before and after DOS. Movie produced after and receives profits. Profits s/b apportioned between pre sep and post sep. 4. H runs a dental practice that he owned prior to marr. W is bookkeeper for bus. After DOS, W continues to work for H as bookkeeper, pays herself salary out of H's income. 5. Same example except W is not paid a salary and works for free for many years organizing and running H's business. H takes a salary but W does not. |
| What is the purpose of both Pereira and Van Camp formulas? |
| In general, it is an apportionment between sep prop and community property of profits on an asset or business that occur either during the marr or after separation. |
| How should a court determine which formula to use (Pereira or Van Camp)? |
|
Beam v. Bank of America,
"'In making such apportionment between separate and community property our courts have developed no precise criterion or fixed standard, but have endeavored to adopt that yardstick which is most appropriate and equitable in a particular situation . . . depending on whether the character of the capital investment in the separate property or the personal activity, ability, and capacity of the spouse is the chief contributing factor in the realization of income and profits [citations] . . . [Par.] In applying this [***13] principle of apportionment the court is not bound either to adopt a predetermined percentage as a fair return on business capital which is separate property [the Pereira approach] nor need it limit the community interest only to [a] salary fixed as the reward for a spouse's service [the Van Camp method] but may select [whichever] formula will achieve substantial justice between the parties |
| Describe the Van Camp Approach |
| The Van Camp formula would determine the reasonable value of husband's services (less the draws or salary taken) and allocate this additional sum, if any, to husband as his separate property and the balance of the increase to community property. |
| Describe the Pereira Approach |
|
the Pereira approach would allocate a fair return of the increase to the community property and the excess would be husband's separate property.
the Pereira approach, "is to allocate a fair return on the [husband's separate property] investment [as separate income] and to allocate any excess to the community property as arising from the husband's efforts." |
|
Re: FC 2552 Valuation of Community Assets and Liabilities
What are the exceptions to valuing property at date of trial? |
|
Marr of Duncan: pension fund company increased value solely due to H's efforts, reputation and skill
Marr of Stevenson: small contracting business dep on H's sole skill Marr of Sherman: Ct cannot value Moore/Marsden at DOS rather than DOT b/c appreciation due to market factors, not to parties' efforts Marr of Nelson: Used DOS b/c W's poor record keeping post sep Bono v. Clark - used time of sep in probate proceeding (exception) Marr of Imperato: Exception - proper to to apportion increase in value of bus b/t DOS and DOT b/t CE and SP of H; Pereira and VanCamp s/b used to apport value Marr of Cream: Ct may not value property by means of interspousal auction when one spouse disapproves |
|
Fe: FC 2552 Valuation of Assets and Liabilities
How does one seek a different valuation date of community estate? |
|
Upon 30 days notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities
AT A DATE AFTER SEPARATION AND BEFORE TRIAL to accomplish an equal division of the CE of the parties in an equitable manner |
|
Re: FC 2552 Valuation of Assets and Liabilities
When are assets valued? |
| As near as practible to the time of trial with certain exceptions |
|
RE: FC 2552 Valuation of Assets and Liabilities
What time period is this section applicable to? |
|
Division of the community estate
Upon disso of marr or legal sep |
| Definition of TANF |
|
Temporary Assistance for Needy Families
A federally funded program where blocks of federal funds are granted to states to help families go back to work and provides temp $$ |
| What are the differences between Family Law goals and Dependency Proceeding Goals? |
|
1. Fam Law specifically prohibits "reunification services" between the children removed from and the parent.
2. Dependency proceeding requires it because the state is involved in taking a child from a parent. Ct required to give unless good cause shown otherwise. 3. Dependency proceeding, the child is a ward of the court, FL proceeding, the child is usually placed with the other parent or relative placement which has priority. |
| Define Dependency Proceeding |
| Where a nonparent seeks the involuntary removal of a child from parental custody because of alleged parental misconduct. Non parent requests county or county will file a petition to bring the child within the dependency jurisdiction of the juvenile court under Welfare and Institutions Code Section 300 et seq. |
|
Re: FC 4055
What is the K factor in calculating child support? |
| K = Amount of both parent's net income (expressed as percentage) to be allocated for child support |
| Does the Hague always require the child to be returned to the country of their habitual residence? |
|
If petitioner stays in same country - yes
If petitioner moves to new country where child is - no. Convention will not intervene. |
| What is the most important concern of the Hague Convention? |
|
dual objectives -
secure the prompt return of children who are wrongfully removed or retained, -- and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states. One of the paramount purposes --to restore the statue quo and deter parents from crossing international borders to search for a more sympathetic court. |
| What is the definition of "habitual residence" of a child? |
|
Not the domicile of a parent.
The place where the child actually lives. |
| What is the consequence if a complaining parent agreed to or acquiesced to the child being removed to a new country? |
| The Convention will not consider the removal a "wrongful removal". No intervention. |
| What are the consequences of a "ne exeat" clause in a Hague Convention matter? |
|
A ''ne exeat'' clause that prohibits one parent from taking the children out of the country without the other parent's permission does not provide rights of custody to a parent who otherwise possesses only access rights.
A parent with custodial rights has the affirmative right to determine the country, city, and precise location where the child will live. By contrast, a ne exeat clause serves only to allow a parent with access rights to impose a limitation on the custodial parent's right to expatriate the child. |
| How does the Hague Convention view custodial rights versus access rights? |
|
1. A parent possessing only access rights is not entitled to the remedy of return of the child.
2. A parent with access rights may submit an application to make arrangements for organizing or securing the effective exercise of access rights to the Central Authority of the country to which the child has been removed. |
| If a parent is accused of wrongfully removing a child from or retaining a child in another country, what are the four defenses/exceptions that a court could find to rebut returning the child? |
|
1. Whether the complaining parent was exercising custody rights at the time of the removal.
2. Whether the return will cause physical or psycholoical harm to the child 3. Whether the complainint parent consented to the removal and 4. Whether the child objects to being returned |
| What are the key facts that must be considered by the Hague Convention? |
| 1. What was the habitual residence of the child before they were moved to or kept in another country from the one where their custodial parent had custody |
| What are the threshhold questions asked by the Hague Convention |
|
1. Was the subject child taken (wrongfully removed) from the country of their habitual residence without consent of both parents?
If yes, convention calls for prompt return of the child to its initial country. IF not, the analysis looks to the moment after moving the child to the second country |
| What did the Hague Convention establish? |
|
legal rights and procedures for the return of a child wrongfully removed to,
or retained in, a country other than the child's habitual place of residence. it applies only to children under age 16 |
| What is the purpose of the Hague Convention concept? |
|
1, to settle jurisdiction in custody disputes, not custody on the merits
2. to decide which between two competing forums (countries) should use its courts to adjudicate custody in a particular case |
| How long may a custodial parent remain in the deferred sale home? |
|
1. CP remaries
2. facts court originally used changed 3. no more economic feasibility Rebuttable presumption for termination |
| What language must a deferred home sale order contain? |
|
Must state:
duration of the order a May state: the legal description and assessor's parcel number of the real property that is subject to the order. specify the parties' respective responsibilities for the payment of costs of routine maintenance and capital improvements. |
| How would a deferred home order be applied if payor father owned the home as his SP? |
|
FC does not distinguish b/t community or sp of either spouse in "family home"
Factor is economic feasibility and need for child's stability. Out parent must be paying support. |
| WHAT ARE THE FACTORS COURT USES TO DETERMINE OF DUKE ORDER APPROPRIATE? |
|
First Economic Feasibility and Just
If yes, then impact on child based upon: 1. The length of time the child has resided in the home; 2. The child's placement or grade in school; 3. The accessibility and convenience of the home to the child's school and other mservices or facilities used by and available to the child, including child care; 4. Whether or not the home has been adapted or modified to accommodate any physical disabilities of a child or a resident parent in a manner such that a change in residence may adversely affect the ability of the resident parent to meet the needs of the child; 5. The emotional detriment to the child associated with a change in residence; 6. The extent to which the location of the home permits the resident parent to continue his or her employment; 7. The financial ability of each parent to obtain suitable housing; 8. The tax consequences to the parents; 9. The economic detriment to the nonresident parent in the event of a deferred sale of home order; and 10. Any other factors the court deems just and equitable. |
| WHAT IS THE PURPOSE OF DUKE ORDER |
| To minimize the impact of dissolution and relocation upon minor children |
| What is a Stay Away Order and what are its implications? |
|
It is a personal conduct restraint order that prevents one person from having specifically described contact with another person.
Once signed by the judge, a file endorsed copy should be lodged with law enforcement. Could be entered into CLETS even though technially not a CLETS order. Thus, should not agree to non- Clets order as there is no such thing |
|
Re: FC 6321
What 3 things must a person show before the court can issue a "kick out order"? |
|
only if the affidavit (or declaration) in support of the application for the order affirmatively shows all of the following:
1. party who stays has right under color of law to possess premises 2. party to be excluded has assaulted or threatens to assault other party or child 3. physical/emotional harm would otherwise result to other party or child of dwelling |
| WHAT MUST OCCUR FOR DVPA TO BE VALID? |
|
1. Must state the date of expiration of the order'
2. Must identify the protected person and enjoined person 3. Must be personally served 4. must allow restrained person access to court within 5. Must state on its face that it is effective when made, cops enforce on receipt, any place in CA, if no POS on resrained, cops may serve and advise |
| WHAT IS DVPA |
|
Domestic Violence Prevention Act
Section 6220 et seq applies to 1. Disso action 2. UPA action 3. Nullity 4. Legal sep 5. non marital custody acts |
|
Re: FC 4073
What must the court take into consideration when deciding whether or not to allow hardship deduction? |
| 1. Shall be guided by goals set forth in this section of child support FC 4055 |
|
RE: FC 4071
What do the deductions for minimim basic living expenses refer to? |
|
1. either parent's natural or adopted children
2. obligation to support 3. living with parent |
| Definition of Financial Hardship in FC 4070? |
|
Extreme financial hardship
justifiable expenses circumstances in FC 4071 |
|
Re: FC 4071
GDS = $2000 per month for 5 children. Payor parent seeks hardship for his two other children from new relationship. Calculate the hardship deduction. |
| Payor has two children, can receive no more than 1/2 of $400 for each of his children or $200 per child, total $400 for deduction. |
|
Re: FC 4071
What is the formula for calculating hardship deduction? |
|
Maximum hardship = for each child who lives with payor parent, no more than 1/2 the support allocated to each child sub to the order.
For this deduction: total GDS ordered / number of children subject to order |
|
Re: FC 4071
What circumstances may constitute evidence of hardship to qualify for hadship deduction? |
|
1. Extraordinary health expenses, parent financial responsible,
2. Uninsured catastrophic losses 3. Min basic living expenses of either parent's natural or adopted children (oblig to support - live with parent) |
| Re: FC 4070 What qualifies as a hardship deduction consideration? |
|
if a parent is experiencing extreme financial hardship
due to justifiable expenses listed in FC 4071, ct may allow deductions under FC 4059 |
|
Re: FC 4059
What deductions are permitted to be deducted from a parent's annual gross income for c/s? |
|
1. state/fed taxes payable (not just withholding) w/prop filing status
2. FICA 3. Mandatory union dues 4. Health ins prem for parent and children obligated to support; SDI 5. Proof of ct ordered cs/s/s paid; w/o order: cs actually paid but can't be more than guideline (kids not with payor) NO PROOF NO DEDUCTION 6. Job related expenses if allowed by court after consid if necessary 7. Hardship deductions defined by FC 4070-73 and appel law; a. deduct from income, not c/s b. equity b/t 2 c/s orders c. |
|
Re: FC 4062
What are "additional child support" add-on authorized by statute? |
|
Court shall order:
1. child care costs 2. rzbl uninsured health care exp reimbfor kids Court may order: 1. educa or special need costs 2. travel expenses for visitation |
| If court deviates from guideline support what may a party request? (4 things) |
|
Court must describe the factors used in calculating off guideline support as follows:
1. net monthly disp income of ea parent 2. actual fed income filin status of ea parent 3. deductions from gross income for ea parent 4. approx % of parenting time |
| Re: FC 4056 What must a court state on the record in order to deviate from guideline? (three things) |
|
fed law requires:
1. guideline support 2. reasons for different from GDS 3. why consist with BIC |
|
Re: FC 4057:
The presumption of guideline formula being correct amount is rebuttable by: |
|
1. is a rebuttable presumption affecting burden of proof
2. admissible evid - appl of formula w/b unjust or inapprop in particular case 3. consistent with FC 4053 (policy) 4. preponderance of evid 5. must state rasons in writing or on record a. stip to diff amt b. deferred sale of residence (rental value/prop/tax > mort pmt) c. high earner, exceeds need of kid d. parent not paying enogh $ per custodial time e. unjust/inapprop/special circs (1) different time share for diff kids (2) subst = share but higher or lower house costs (3) special med needs $$ for kids c. 6. |
| WHAT IS THE RESIDENCY TEST FOR QUALIFYING CHILD? |
|
1. lived with you more than 1/2 year
excepetions (temp absence, kids born/died dur year, kidnapped children, children of divorced/separated parents) |
| WHO MEETS THE CRITERIA FOR THE RELATIONSHIP TEST TO BE A QUALIFYING CHILD? |
|
1. your son, daughter, stepchild, foster child, adopted child, or descendant of any of them
2. your brother, sister, half brother, half sister, step brother/sister, or a descendant of any of them |
| WHAT ARE THE FIVE TESTS THAT MUST BE MET FOR A QUALIFYING CHILD? |
|
1. relationship
2. age 3. residency 4. support 5. special test for qc of more than one person |
| TESTS TO BE QUALIFYING RELATIVE |
|
1. cannot be your qualifying chyild or the qualifyihg child of any other taxpayer
2. must be related to you (per rules) under Relatives who do not have to live with your or 3. must live w/you all year as a memnber of your household (your relationship not violate local law) 4.person gross income < $3500 for year 4. you provide > 1/2 of person's total support for year |
| What is a qualifying relative for you to file as H of Household? |
|
1. qualifying relative (brother, sister, mother, grandparent, meet certain tests
2. lives w/you > 1/2 yr 3. you can claim exemption for them 4. no one else claims them for qualifying relative |
|
If person living in your home is:
1. Qualifying child, grandchild etc and single 2. qual relative your mother or father and you can claim exemption for them 3. If no exemption allowed for them |
|
Then that person is
1. a qualifying person (19, or 24) 2. they are qualified persons 3. They are not qualified persons |
| WHAT IS TIME LIMIT FOR AMENDING FROM SINGLE TO JT RETURN? |
| 3 years from due date of separate returns - does not include extension time |
| RULES FOR MFS (PENALTIES) |
|
1. higher tax rate
2. 1/2 of alt min tax (opposed to jt ret) 3. cannot take credit for child and dependent care expenses in most cases 4. cannot taike earned income credit 5. cannot take edu credits 6. cannot exclude int income for qual u.s. savings bonds used for higher edu exp 7. you have to incluede in income more (up to 85%) of any social security benefits rec'd 8. cannot roll over trad IRA to Roth IRA 9. Reduced credits and deductions: child tax creditr, retirements savings contrib credit, itemized deductions, deductions for personal exemp 10. 1/2 of capital gains loss 11. must itemize if sp itemizes on mfs |
| MARRIED FILING SEPARATE STATUS |
|
1. married
2. no agmt to jt return 3. file MFS unless qualify for HOH status 4. can claim exemption for spouse if he/she had no income and not dep of someone else 5. spouse cannot file return |
| WHEN IS A DIVORCED PERSON RESPONSIBLE FOR THEIR SPOUSES TAXES? |
| May have joint and individual responsibility for taxes, int, and penalties on jt return filed before disso. |
| MARRIED FILING JOINT STATUS |
|
1. married
2. agree to file jt return 3. report combined income, report combined deductible expenses 4. use same accounting period, may use diff accounting methods 5. jt resp for taxes, interest, penalty |
| DEFINITION OF SINGLE STATUS FOR TAXES |
| 1. last day of year single, unmarried, legally separated from sp under divorce decree |
| DEFINITION OF MARRIED STATUS FOR TAXES |
|
1. Married and living together as H and W
2. Living together in common law marr that is recog'd in the state you now live or where common law marr began 3. Married and living apart but not legally separated under a decree of divorce or separate maintenance 4. Separated under interlocutory disso (no longer in CA) 5. Even if spouse died during the year, considered marr for whole year for filing |
| WHAT IS HEAD OF HOUSEHOLD TAX DESIGNATION? |
|
1. Unmarried on last dayy of year
2. paid more than 1/2 cost of keeping up home for the year 3. a qualifying person lived w/you in the home for more than 1/2 year as their main home (unless qual person is parent, no need to live w/you) 3a. Must be able to claim exemption for the qual child 4. spouse cannot live in home during last 6 mo of tax year |
| Consequence of anullment of marriage when having filed jt returns? |
| IRS considers you unmarried. You must file amended returns for every jt return filed. |
| What is the definition of unmarried person? |
| Unmarried or legally separated (under a divorce or separate maintenance decree) on the last day of the taxable year, 12/31 |
| For federal tax purposes what is the definition of marriage? |
| Legal union between husband and wife |
| DEFINITION OF EARNED INCOME |
|
wages
tips professional fees taxable scholarships and fellowship grants |
| DEFINITION OF UNEARNED INCOME |
|
taxable interest
ordinary dividends capital gain distributions unemploymente compensation taxable social security benefits pensions annuities distributions of unearned income from a trust |
| DEFINITION OF GROSS INCOME |
|
all income you receive in the form of money, goods, property, and services that is not exempt from tax. 1/2 of your spouse's income is your gross income.
Unearned plus earned income = gross income |
| HOW DOES THE IRS CONSIDER TAXES IN REGARDS TO COMMUNITY PROP LAW OF CALIF? |
| Federal law follows state law of community property recognition |
| WHAT IS THE THEORY OF PEREIRA? |
| a fair return on the separate property investment is treated as separate property, and the balance of the business income is treated as community property |
| Slow Death Order |
| Ordering a paying parent to pay c/s or s/s when CP stays in family residence and there is no rzbl possibility that parent will be able to pay mortgage and support |
| Substantive Step-Down or Step-Up in Amount |
|
may be used as either a step-down or step-up spousal support order; that is, payment of a specified amount for a fixed period and specified lesser or greater amounts thereafter for an additional period or periods.
Such an order must address the question of jurisdiction at the end of the last term specified in the order. Jurisdiction may either be terminated without further recourse on that date or retained indefinitely after the date passes, or terminated on that date unless the supported spouse moves to extend duration before that date |
| TERMNINABLE INTEREST RULE |
| A rule abolished by CC 4800.8 which terminated pension benefits to a surviving spouse |
| No entitlement to Innocent Spouse Relief if: |
|
. You are not entitled to innocent spouse relief for any tax year to which the following situations apply.
1. In a final decision dated after July 22, 1998, a court considered whether to grant you relief from joint liability and decided not to do so. 2. In a final decision dated after July 22, 1998, a court did not consider whether to grant you relief from joint liability, but you meaningfully participated in the proceeding and could have asked for relief. 3. You entered into an offer in compromise with the IRS. 4. You entered into a closing agreement with the IRS that disposed of the same liability for which you want to seek relief. |
| What is an injured spouse claim for tax purposes? |
| You are an "injured spouse" if you file a joint return and all or part of your share of the refund was, or will be, applied against the separate past-due Federal tax, state tax, child support, or Federal non-tax debt (such as a student loan) of your spouse with whom you filed the joint return. If you are an injured spouse, you may be entitled to recoup your share of the refund. |
| Requirement for "equitable relief" |
| if you do not qualify for innocent spouse relief or relief by separation of liability. Equitable relief is available for additional tax owed because of a reporting error (an understatement) or you properly reported the tax on your return, but you did not pay it (an underpayment). To qualify for equitable relief you must establish, under all the facts and circumstances, that it would be unfair to hold you liable for the tax on your joint return. In addition, you must meet other requirements listed in Publication 971, Innocent Spouse Relief. |
| Requirements for "relief by separation of liability" |
|
you must have filed a joint return and must meet one of the following requirements at the time you request relief:
1. You are divorced or legally separated from the spouse with whom you filed the joint return for which you are requesting relief; or 2. You are widowed; or 3. You have not been a member of the same household as the spouse with whom you filed the joint return at any time during the 12-month period ending on the date you file Form 8857 (PDF), Request for Innocent Spouse Relief. If you have actual knowledge of the item that gave rise to the understatement of tax, you may not qualify for relief by separation of liability. |
| Requirements for filing for Innocent Spouse Relief? |
|
You must request relief no later than 2 years after the date the IRS first attempted to collect the tax from you, regardless of the type of relief you are seeking.
You must meet all of the following conditions to qualify for "innocent spouse relief": 1. You filed a joint return, which has an understatement of tax, directly related to your spouse's erroneous items. Any income omitted from the joint return is an erroneous item. Deductions, credits, and property bases are erroneous items if they are incorrectly reported on the joint return. 2. You establish that at the time you signed the joint return you did not know, and had no reason to know, that there was an understatement of tax. 3. Taking into account all the facts and circumstances, it would be unfair to hold you liable for the understatement of tax. |
| Equitable Relief |
| liability relief for something not reported properly on a joint return. You may also qualify for equitable relief if the correct amount of tax was reported on your joint return but the tax remains unpaid |
| Relief by Separation of Liability |
| provides for the allocation of additional tax owed between you and your spouse or former spouse because an item was not reported properly on a joint return. The tax allocated to you is the amount you are responsible for. |
| Innocent Spouse Relief |
| for additional tax you owe because your spouse or former spouse failed to report income, reported income improperly or claimed improper deductions or credits. |
| What is Joint and Several Liability on tax returns? |
| Joint and several liability means that each taxpayer is legally responsible for the entire liability. This is true even if a divorce decree states that a former spouse will be responsible for any amounts due on previously filed joint returns. One spouse may be held responsible for all the tax due even if the other spouse earned all the income or claimed improper deductions or credits. In some cases, a spouse can get relief from joint and several liability. |
| Federal preemption |
|
SP:
Armed Forces Life Insurance Disability benefits Social Security U.S. Savings Bonds CP: Foreign service pension Military retirement benefits Civil service pension |
| Property insurance proceeds |
| Same character as the property they replaced. |
| Setting aside judgment / MSA |
|
Within 6 months for mistake, inadvertence, surprise, neglect.
After 6 months only for extrinsic fraud. |
| Property acquisition outside of marriage |
|
No CL marriage. K law applies, maybe partnership, joint venture, quantum meruit.
Putative spouse: Good faith belief that she was lawfully married. Property characterized as quasi-marital property. |
| Quasi-CP |
|
Property acquired while couple was domiciled in a common law state, which would have been classified as CP had it been acquired under the same circumstances in CA.
Treated the same as CP for divorce: Real property in another state (no jurisdiction): Award non-titled spouse other assets of same value; or if court has personal jurisdiction over titled spouse, court can order that spouse to sign the deed. Same result for out-of-state land purchased with CP. At death, personal property treated as CP, but foreign real property distributed per law of the situs (i.e. SP), but non-titled spouse can get a resulting trust or constructive trust. Non-titled spouse has no power of disposition over foreign real property that is quasi-CP and CP. |
| Equal management and control |
|
Each spouse has equal management and control of CP, and either spouse acting alone may buy, sell, spend or encumber all CP.
Exceptions: * CP business interest substantially run by one spouse. Spouse can act alone, but must give written notice to other spouse before sale or encumbrance of all or substantially al personal property used in business. Innocent spouse has remedy against managing spouse. * Personal belongings: Voidable by other spouse at any time. * Conveyances of CP real property: Joinder of both spouses required. Innocent spouse can set aside the deed and void the transaction, even against BFP. 1 year SOL from date of conveyance. Innocent spouse has burden of proof. * Neither spouse can encumber "my ½ interest" in CP real property, except for a lien to family law attorney in divorce action. |
| Tort and K liability |
|
If tort was between spouses, recovery is SP.
If tort by TP, recovery is CP but upon divorce the award goes to injured spouse, unless interest of justice requires otherwise (no other assets). Tortfeasor-spouse liability: If act to benefit community, first CP then tortfeasor’s SP. If not to benefit of community, first tortfeasor’s SP then CP. Judgment creditor can’t reach innocent spouse’s SP, except for K’s for necessaries (subject to reimbursement if CP funds available). CP can even be reached for pre-marital debt, except earnings of nondebtor spouse cannot be reached if held in separate account, uncommingled, and debtor spouse has no right of withdrawal. After divorce, creditor can’t reach CP awarded to nondebtor spouse, unless that spouse was assigned the debt by the court. |
| Education |
|
Not property, but entitled to reimbursement of half of contributions if education enhanced earning capacity.
Defenses: Community already substantially benefited (10 yrs); other spouse received CP-funded education; or education was obtained by spouse seeking spousal support (reduced need). School loans are assigned to party who encurred them. |
| Life insurance |
|
Whole: CP in proportion to payments made from CP.
Term: Determined by last payment. |
| Mortgage or installment purchase paid partly from SP and CP |
| SP house, mortgage paid party with CP: The equity is CP in proportion to amount of principal paid (buy-in rule). |
| Mortgage or installment purchase paid partly from SP and CP |
|
Only applies when there is a title document (real estate, stock) – if no title, use direct tracing.
Before 1980, tracing was allowed to establish character. After 1980, Lucas said that taking title in joint & equal form made any SP contributed as a gift, absent proof of intent to keep SP separate. For purposes of death, joint title is presumptively CP. JTWROS is presumptively JT. At death, surviving spouse would prefer CP rather than JT for 100% stepped-up basis; but CP allows decedent to dispose of ½ CP, JT does not. For purposes of divorce, after 1/1984, property acquired during marriage in joint and equal form is presumptively CP, and can be rebutted only by express statement in deed that property is SP, or written agreement that property is SP. Spouse who made post-1984 SP contribution to CP for Downpayment, Improvements or Principal payments on mortgage can get reimbursement, capped at net value of property |
| Taking title in joint and equal form |
|
Only applies when there is a title document (real estate, stock) – if no title, use direct tracing.
Before 1980, tracing was allowed to establish character. After 1980, Lucas said that taking title in joint & equal form made any SP contributed as a gift, absent proof of intent to keep SP separate. For purposes of death, joint title is presumptively CP. JTWROS is presumptively JT. At death, surviving spouse would prefer CP rather than JT for 100% stepped-up basis; but CP allows decedent to dispose of ½ CP, JT does not. For purposes of divorce, after 1/1984, property acquired during marriage in joint and equal form is presumptively CP, and can be rebutted only by express statement in deed that property is SP, or written agreement that property is SP. Spouse who made post-1984 SP contribution to CP for Downpayment, Improvements or Principal payments on mortgage can get reimbursement, capped at net value of property. |
| Married Woman’s Special Presumption |
|
Applies to property (real and personal) acquired before 1975.
When CP is used to take written title in married woman’s name before 1975, property presumptively wife’s SP. Rebuttable between the parties (showing intent of other purpose), but irrebutable against BFP’s. Doesn’t apply if title taken as "Mr & Mrs name name", "name name, Husband and Wife", or J/T. If H is on title but not as these exceptions (i.e. title is in T/C), W owns ¾ (her SP plus ½ of CP), H owns ¼. |
| Transmutation by postmarital agreement |
|
No consideration needed.
Oral transmutation ok before ’85, required in writing after ’85, signed by spouse whose interests is adversely affected, and must expressly state that a change in ownership is being made. Exceptions: Gifts of tangible property (not investments/cash) of a personal nature from one spouse to another, as long as not substantial in value. A will is not satisfactory as a writing when used as evidence at divorce. |
| What governs assets acquired on credit during marriage |
|
When title hasn’t been taken in joint and equal form:
Funds borrowed during marriage and goods purchased on credit are presumptively CP. But classified according to primary intent of lender - if the lender was primarily looking to SP in satisfaction of the debt, then the asset is SP. If CP cash is contributed (i.e. mortgage payment), then the asset is proportionally CP (buy-in). |
| Testamentary power over CP |
|
Each spouse has the power of testamentary disposition over all of his SP, and ½ CP. If intestate, all CP goes to surviving spouse, and between 1/3 to 100% of SP depending on how many survivors there are.
Widow’s election is required if the will devises CP to a TP, and gives spouse the residuary. Surviving spouse can either take residuary clause (relinquishing gifts), or elect against the will and take the gift. |
| CP life insurance policy naming TP as beneficiary |
| Same rule applies if decedent named a TP on a CP life insurance policy. Surviving spouse can recover ½ interest from beneficiary or estate. |
| What are spouse’s options when other spouse makes a lifetime gift of CP? |
|
* Set aside gift (transfer for less than FMV) in entirety because neither spouse can make a gift of CP without other spouse’s written consent.
* Or, on divorce, spouse can take offsetting CP assets to recover ½ value. If spouse doesn’t learn about gift until after other spouse dies, spouse can set aside ½ of the gift, either from the donee |
| Statutory exceptions to equal division on divorce |
|
* One spouse misappropriates CP
* Student loans * Tort liability not based on activity for benefit of community * PI award is given to injured spouse (unless interests of justice require otherwise) * Community liabilities exceed assets: Relative ability of spouses to pay debt considered (to protect creditors). |
| How is CP handled on divorce? |
|
All CP must be divided 50/50, unless parties have agreed to a property settlement.
Disparity in earning power can only be considered for spousal support. If economic circumstances warrant, certain assets can be awarded wholly to one spouse, if each spouse ends up with 50% of all CP in terms of total economic value. Example: Family residence awarded to spouse with custody of minor children; closely held corporation; offsetting pension with other assets. |
| How are earnings classified? |
| Earnings are classified on the basis of when they were earned (effort/labor during marriage), not when they were received. |
| When does economic community begin and end? |
|
Begins: Marriage
Ends: Permanent physical separation with intent not to resume marital relations, communicated to other spouse. Not a trial separation, even if trial separation turns in to permanent separation (because intent lacking during trial separation). |
| Separate property |
|
* Property owned by either spouse before marriage
* Property acquired during marriage by gift, will, or inheritance * Property acquired during marriage by expenditure of separate funds (tracing) * Rents, issues and profits from SP |
| Community property |
|
Property, other than SP, acquired by either spouse during valid marriage.
Presumption: All assets acquired during marraiage are CP, absent showing of transmutation. Burden of proof on party contending SP. |
| IN RICHMOND ORDER, WHAT FACTS COULD TRIGGER CHANGE IN CT'S ORDER? |
| Failure to achieve self-sufficiency by expected date can cause extension of support. Jxn only reserved until term date |
| RICHMOND ORDER |
|
Substantive step-down s/s order:
1. s/s for fixed period 2. evid that spouse w/b self-supporting by end of period 3. Ct retains jxn to modify amt and term if 4. spouse acts b/4 term date 5. Shifts burden to supported spouse to show cause to extend order |
| DUKE ORDER |
| Deffered sale of home order - temporarily delays sale of home & grants excl use/poss to in spouse. May have effect of lowering NCP's c/s order |
| How is language regarding s/s presumed in MSA? |
| Presumed to favor retaining jxn unless specifically expressed otherwise. |
| VOMACKA |
| LANGUAGE SUFFICIENT TO TERMINATE S/S JXN |
| BROWN FORMULA |
|
Apportions retirement benefits (not same as Time Rule)
1. Pension rts accrued durr marr whether or not vested; 2. In-kind division may be accompl by ct retaining jxn & later implementing division as pension becomes payable |
| MSA |
| Refers to an agreement made between spouses in contemplation of their indefinite sepaeration, disso, or LS |
| What years are not included in the Time Rule calculation? |
| Any extra years that were not necessary to earn benefits (enhancements that have no affect on retirement) - dilutes comm prop |
| When is Time Rule not appropriate means for dividing pensions? |
| Where there is a point system (depending on nature & frequency of service) used rather than years of service |
| TIME RULE |
|
Dividing Pension benefits
Employee/s length of service durr marr and before sep divided by employee's total service Divided by two. |
| What were the issues in the Marvin case? |
| Court looked to conduct to see implied agreement, some lawful expectation; not same as meretricious relations |
| What is the purpose of a Marvin Action? |
| Allows non marital partners to use theories of implied Kr and equitable remedies to establ prop rts |
| How must spouse establish st ct has pers jxn in FUSFSPA? |
|
St Ct must have pers jxn over member
1) residence other than by military assign 2) domicile, or 3) consent to jxn |
| How far back does FUSFSPA apply? |
|
Cannot apply FUSFSPA to a disso pre 6/25/1981 and
decree must not have reserv' jxn to treat memb pay as CP |
| May a service member delay division of his retirement pay and enlist in "active duty?? |
| Member cannot delay division of CP or dilute Comm int by remaining in reserve status after qualifying period of active duty met. |
| What are the limitations of FUSFSPA |
|
1. Must use military defined division 1. Must use military defined division rules
2. Military retired pay incl "retainer pay" 3. Retainer pay divisible in st ct. |
| COHABITATION |
|
More than living together and engaging intimate relations -
1. supported spouse and comp combine financial resources in a way resembling couple |
| What is Judicial Allocation of Dependency Exemption? |
| CASCT held Tr Ct may order custodial parent to execute 8332 to release dependency exempt to obtain max tax savings to parent earning more $; Makes more $ avail for cs |
|
DEPENDENCY EXEMPTION
(5) |
|
6. QR - no reqmt for common abode
7. QR-no taxable income > exemption amt 8. TP provides >50% support for QR for taxable year |
|
DEPENDENCY EXEMPTION
(4) |
|
5. Qualifying relative QR m/be ch of taxpayer not dependent of any other taxpayer
6. grandparents, parents, aunt/uncle, stepparents, house members |
|
DEPENDENCY EXEMPTION
(3) |
|
4. QC is usually child, step/adopted/foster child of taxpayer
5. Student = fulltime 5 mo/year |
|
DEPENDENCY EXEMPTION
(2) |
|
2. QC m/h same principal res as taxpayer for >50% of tax year
3. QC must not provide for >50% his/her support |
|
DEPENDENCY EXEMPTION
(1) |
|
1. Taxpayer entitled to DE for each individual who is qualifying child or relative
a. qual child: <19><24; b. child, sibling, stepsibling of taxpayer or descendant of a child, sibling, steps of taxpayer |
|
EARNING CAPACITY
(re spousal support) = 5 factors |
|
1. Marketable skills of supported sp
2. Job market for those skills 3. Time/expense/edu to obtain skills 4. Retraining 5. Impairment b/c domestic duties |
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