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Response to petition for dissolution of marriage (divorce) in California

Response to petition for dissolution of marriage (divorce) in California

The topic of this blog post is the filing of a response to a petition for dissolution of marriage (divorce) in California.  The response must be on the Judicial Council Form FL-120 Response-Marriage (Response) which is a mandatory form. If there are minor children under the age of 18 years old of the marriage or relationship involved a Declaration under Uniform Child Custody Jurisdiction and Enforcement Act (Declaration) Judicial Council Form FL-105 must be used as this is also a mandatory form.

A Response should be filed in any case where the two parties have not already discussed an amicable divorce settlement. The filing of the Response will avoid any default being entered against the responding party and will ensure that they are on equal legal footing with the petitioner. The filing of a Response does not prevent the two parties from reaching an amicable settlement. It merely protects the interests of the responding party. The Court will charge a filing fee when the Response is filed, in most counties the filing fee is currently $395.00 unless the responding party can qualify for a fee waiver.  The responding party should call their local Court to verify the correct filing fee for their particular county.

In most cases the original Response, and Declaration if there are minor children, must be filed with the Court within thirty (30) calendar days from the date that the respondent is served.  A copy of the Response, and Declaration if needed, must be served by mail on the petitioner, or their attorney if they have one, and a proof of service must be filed along with the original Response, and Declaration.

The appropriate boxes must be checked on the Response. As each case is different, the party responding should take care to ensure that the Response is filled out correctly. The Declaration must also be correctly filled out.

If the responding party anticipates that the reaching of an amicable settlement is not feasible at the time that they file their response, it may make sense to consider propounding discovery to the petitioner. Discovery can be very helpful to each party in evaluating the strengths and weaknesses of their case, facilitating a possible settlement, and in preparing for trial.

Parties in California divorce proceedings can utilize the same discovery procedures as are used in California civil litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council. See Family Code § 210.

Form Interrogatories for divorce and other family law cases are available using Judicial Council Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case. For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a Schedule of Assets and Debts, Judicial Council Form FL-142, if that form is attached to the Form Interrogatories and the appropriate box is checked. The other party has thirty five (35) calendar days to respond if the Form Interrogatories are served by first class mail.

In the opinion of the author, the Form Interrogatories should be utilized and served concurrently with the Response even in a simple case as they are relatively easy and can be completed fairly quickly. Proper use of the Form Interrogatories is an easy and quick way to obtain the most information with a minimum of effort.

Special Interrogatories are also extremely useful as a party can request the other party to state all facts, identify all persons having personal knowledge of the facts, and all documents in support of the facts, which support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s Petition or Response.

The requests for production and inspection of documents and other tangible things can be useful in obtaining bank and financial records and other documents that are pertinent to the issues involved in the divorce proceeding.

And last, but certainly not least, requests for admission can be used to request the other party to admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

In a more complex case involving a long term marriage (over 10 years), minor children, and numerous community property assets and obligations, all of the discovery requests mentioned in this blog post should be at least considered, if not actually used.

The most important thing to keep in mind is the fact that a party served with a petition for divorce should file a timely Response or they risk a default being entered against them. As previously mentioned, the filing of a timely Response will protect the interests of the responding party. And it does not prevent the two parties from reaching an amicable settlement.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Bifurcation procedures for California dissolution of marriage (divorce)

Bifurcation procedures for California dissolution of marriage (divorce)

This blog post gives an overview of the Bifurcation process as it applies to California dissolution (“Divorce”) proceedings. It can take many months, even several years, for a contested divorce to wind its way through the courts. Faced with this fact, many spouses want to terminate the marriage quickly, even if the other issues in the case have not been settled. There might also be situations in which it makes sense to have a separate trial of a particular issue.

In both of those situations, the court will order that the trial is to be “bifurcated.” This means either that the marital status is terminated and the parties are restored to their single status or a separate trial is to be held concerning a specific issue.

Bifurcations are generally requested because one or both of the spouses want to remarry. They are also sought because one or both of them want to file their tax returns for the current year as a “single” taxpayer.

The tax laws state that a person can file as a “single” person as long as his or her marital status was terminated before the end of the year. Thus, even if the marital status is ended on December 31st, the taxpayer can file as a “single” person for the entire year. This can be significant, particularly for the person who is paying spousal or “family” support.

Payments of spousal and family support are 100% deductible for the person who is ordered to make those payments. Conversely, spousal and family support payments must be reported as income by the person receiving them. Income tax laws provide that these support payments are not deductible if the spouses file a joint tax return.

The court can also bifurcate the trial of certain issues. For example, where there is a family business that was owned before the marriage, the spouses might disagree as to whether it is community property or the separate property and what it is worth. If the business is ultimately found to be the separate property of the spouse who started it, the value of the business would be irrelevant. In such a case, the judge might order that there will be a bifurcated trial to first determine if the business is community property or separate property. If the result of that trial is a finding that the business is community property, then there would be a trial on the value to be placed on it.

The law provides that the marital status can be terminated not less than six months from when the Respondent was served with the Petition for Divorce. So, only cases in which the Respondent was served before July 1st can be bifurcated during that year.

Most courts require the filing of a motion for bifurcation, although some courts allow it to be done simply by filing a written stipulation. If a motion is required, the appropriate court papers must be prepared, which must then be filed with copies mailed to the spouse or his/her attorney. Approximately 4-8 weeks after the motion is filed, the requesting spouse and his/her attorney if they have one have to appear before the judge, who will almost always grant the request.

California law favors bifurcation in the absence of particularized, compelling reasons to the contrary. Under this approach, bifurcation will be granted for almost any reason, such as possible tax advantages, fewer constraints in social and financial matters, or the fact that the property issues will require more discovery and a more lengthy trial.

For example, in Gionis v. Superior Court (1988) 202 Cal. App. 3d 786, 788-790,  the California Court of Appeal held that a request for bifurcation does not have to be justified by a compelling showing of need, and that on the contrary a spouse opposing bifurcation must present compelling reasons for denial. Reviewing California case law, the court found that bifurcation was a favored procedure because it implemented the policy underlying no-fault divorce. The court noted that the state’s high court had endorsed the concept of bifurcation in these terms:

“Severance of a personal relationship which the law has found to be unworkable and, as a result, injurious to the public welfare is not dependent upon final settlement of property disputes. Society will be little concerned if the parties engage in property litigation of however long duration; it will be much concerned if two people are forced to remain legally bound to one another when this status can do nothing but engender additional bitterness and unhappiness.” Hull v. Superior Court (1960) 54 Cal. 2d 139, 147.

While the granting of a request for bifurcation of the marital status is virtually automatic, there are some prerequisites and conditions that must be followed by the requesting party. Initially, the party requesting bifurcation must serve his or her preliminary declaration of disclosure on the other spouse before the request for bifurcation is filed. The judge will usually impose certain “conditions” on the granting of a bifurcation. These include: (1) The obligation to reimburse opposing party for any tax consequences or loss of right to claim probate homestead or family allowance; (2) The employee-spouse must maintain existing medical insurance for the other spouse; (3) The employee-spouse must indemnify the other spouse for loss of pension death benefits. In addition, the law requires that, before a bifurcation is granted, the pension plans of the spouses must be joined in the divorce case.

The condition that existing medial insurance be maintained is particularly significant. Under that condition, the spouse requesting bifurcation must maintain existing medical insurance for the other spouse. If such coverage is no longer available, the requesting spouse must purchase medical insurance for the spouse that provides coverage that is comparable to the existing coverage. If such insurance is not available, the requesting spouse must pay for all medical bills incurred by the other spouse that would have been paid by the existing medical coverage.

As discussed above, a person can file as a “single” taxpayer for the entire year, as long as the marital status was terminated sometime in that year, even as late as December 31st. This is why there is usually a flood of bifurcation motions filed at the end of the year. To be assured that the clerk places a bifurcation motion on the court’s calendar before the end of the year, the motion should be filed not later than November 15th.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Requesting a modification of child custody and/or visitation orders in California

Requesting a modification of child custody and/or visitation orders in California

The topic of this blog post is the issues involved in requesting the Court to modify the child custody and/or visitation orders in California.  Several statutes and cases outline the standards used and the burden of proof on the moving party.

California law states that child custody and visitation orders generally are modifiable throughout the child’s minority whenever the court finds a modification is “necessary or proper” in the child’s best interests. See Family Code § 3022.

To put it another way, in child custody/visitation matters (just as with child support,) the family law court has continuing jurisdiction and the matter thus remains pending even after entry of the underlying dissolution (or legal separation or nullity) judgment.  Marriage of Kreiss (2004) 122 Cal.App. 4th 1082, 1085.

Although the statutes governing custody adjudications only requires courts to ascertain the child’s best interest, the best interest standard has an added twist once a “final” judicial custody determination is in place: A party seeking to modify a “permanent” custody order can do so only upon a showing of a significant change of circumstances so affecting the child that modification is essential to the child’s welfare. Absent such a showing, any modification would be an abuse of discretion as denying the child the benefits of a stable home environment and thus would not be in his or her best interest. Montenegro v. Diaz (2001) 26 Cal. 4th 249, 256, Marriage of LaMusga (2004) 32 Cal. 4th 1072, 1088.

Indeed, the trial court’s exercise of discretion is far more limited when it effects a change in existing custody orders than when it makes an initial custody decision. Appellate courts are “less reluctant to find an abuse of discretion when custody is changed than when it is originally awarded, and reversals of such orders have not been uncommon.”  Marriage of McLoren (1988) 202 Cal.App. 3d 108, 113,   modification giving W joint legal custody (where original order gave H sole legal and physical custody) reversed because W failed to present proof of change of circumstances affecting children’s welfare]

The “changed circumstances” rule is an adjunct of the statutory “best interests” test for determining child custody. See Family Code §§  3011, 3040(b). It furthers the paramount goal of preserving the need for continuity and stability in custody arrangements, unless some significant change in circumstances indicates a different arrangement would be in the child’s best interest. Montenegro v. Diaz, supra, 26 Cal. 4th at 256, Burchard v. Garay (1986) 42 Cal. 3d 531, 535, see Marriage of Brown & Yana (2006) 37 Cal. 4th 947, 956.

While the party seeking a modification of child custody must make a showing of changed circumstances in many cases, there are exceptions to this rule that should be carefully considered and reviewed by any party contemplating requesting that the Court modify a child custody and/or visitation orders in California.

The changed circumstances rule is triggered only after a “final” or “permanent” custody adjudication. The ordinary best interest standard, without the additional changed circumstances burden of proof, applies when the court makes an initial custody adjudication and when it adjudicates custody following any temporary or interim custody order. Montenegro v. Diaz, supra 26 Cal. 4th at 256, 257;  Marriage of Burgess (1996) 13 Cal. 4th 25, 29, 37.

So as not to discourage parties from entering into custody stipulations, any doubts about whether the parties intended a stipulated custody order to be a “final” or “permanent” custody adjudication will be resolved against finality and thus against application of the changed circumstances rule in subsequent proceedings to modify the stipulated order.

All indication is that, where the issue is disputed, a stipulated order will be deemed to be temporary or interim in nature unless it clearly states it is a final judgment as to custody or words to that effect. See Montenegro v. Diaz, supra, 26 Cal. 4th at 259, neither underlying stipulations nor court’s minute order contained “clear, affirmative indication” that parties intended stipulated orders to be final judicial custody determinations; Marriage of Rose & Richardson (2002) 102 Cal. App. 4th 941, 952, (citing text).

A stipulated dissolution judgment awarded the parties’ joint legal custody, mother “primary physical custody” and father “reasonable  visitation.” The judgment also recited, however, that “in the event the parties are unable to resolve their custody and visitation issues, they shall agree upon a therapist or counselor to assist them. If after meeting with a therapist or counselor, the parties remain unable to resolve their differences, they shall make an appointment with the

Conciliation Court prior to either party filing a  request with the Court for a hearing on the issue.” Despite other boilerplate language in the judgment stating it was intended to be a final settlement of the parties’ rights and obligations, there was no “clear, affirmative indication” that they intended the stipulated custody provision to be a final judicial custody determination. Quite the contrary, the stipulated language warranted “the opposite conclusion the parents disagreed and were attempting to resolve the custody and visitation issues.” Marriage of Rose & Richardson, supra, 102 Cal. App 4th at 951, 952.

As to physical custody, the changed circumstances rule applies when the modification request seeks to remove custody from one parent and give it to the other. By contrast, no change of circumstances need be shown as a prerequisite to altering only the co-parenting schedule (the amount of time the child spends in each parent’s household) under a joint custody order. Proposed changes in parenting time are “not on a par with a request to change physical custody from sole to joint custody, or vice versa”; the only standard the moving parent must meet in such cases is the child’s  best interest. Enrique M. v. Angelina V. (2004) 121 Cal. App. 4th 1371, 1379, 1380;  Marriage of Birnbaum (1989) 211 Cal. App. 3d 1508, 1513.

So long as the joint custody award itself is not being changed, the court has very broad discretion to revise the “coparenting residential arrangement” where the parents are unable to agree and call upon the court to intervene. Marriage of Birnbaum, supra, 211 Cal. App. 3d at 1518.

And the changed circumstances rule does not apply when a parent requests only a modification of the visitation arrangement (whether in a joint custody or sole custody situation). Because such a modification does not change “custody,” the trial court considers a visitation modification solely under the child’s best interests standard.  Marriage of Lucio (2008) 161 Cal. App. 4th 1068, 1077 1080, (citing text) (collecting cases) noncustodial parent who had supervised visitation not required to show changed circumstances in support of request for unmonitored visits and additional visitation time not amounting to “de facto joint custody”.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Order to Show Cause for Contempt in California Family Law proceedings, part one

Order to Show Cause for Contempt in California Family Law proceedings, part one

The topic of this blog post is the filing of an order to show cause for contempt in a California family law proceeding.  This is part one of the blog post series on contempt in California family law proceedings.

Under California law a party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties. Code of Civil Procedure §§ 1218 & 1219.  As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders.

In California a contempt proceeding in a family law case is initiated by the filing of an Order to Show Cause and Affidavit for Contempt with the Court to obtain a hearing date. The person who is alleged to be in contempt must be personally served with the Order to Show Cause and Affidavit for Contempt at least 16 Court days before the hearing.

Family law orders and judgments are enforceable by contempt unless punishment by contempt would violate the constitutional guaranty against imprisonment for nonpayment of “debt” U.S. Const., Amend. XIII; Ca Const. Art. I, § 10. However, an order or judgment is not a “debt” within the meaning of the constitutional guaranty against imprisonment for “debt” simply because it requires the payment of money. As discussed below, most (but not all) family law orders and judgments are deemed based on a law-imposed obligation (not “money judgments in civil actions for debts”) and thus are enforceable by the court’s contempt power.

Child, spousal and family support orders are based on an obligation arising out of marriage and parentage and are imposed by law. They are not money judgments in civil actions for the payment of a “debt” within the meaning of the constitutional guaranty against imprisonment for debt and thus clearly are enforceable by contempt.

Child custody and visitation orders do not impose a “debt” obligation. Thus, e.g., the court may invoke its contempt power against a parent who unjustifiably interferes with the other parent’s court-ordered visitation rights or violates an injunction restraining relocation with the children.

Need-based attorney fees and costs are awardable by statute in marital proceedings. Family Code §§ 2030/2032. The award is based on a law-imposed obligation (not arising out of a money judgment for a “debt”) and thus is enforceable by contempt.

A spouse who refuses to relinquish a specific item of property or to pay over a portion of a specific fund of money pursuant to a community property division order is subject to enforcement by contempt. The obligation is “law-imposed” (not a “debt”) because based on the parties’ statutory right to an equal division of community property upon termination of marital status. See Family Code § 2550 et seq.

The court may properly invoke its contempt power to compel compliance with valid protective orders and restraining orders issued in a domestic relations proceeding. Penal Code § 273.6 misdemeanor penalty for intentional and knowing violation of Family Code § 6218 protective orders.A spouse who has complied with the statutory “declaration of disclosure” requirements in marriage dissolution proceedings Family Code § 2100 et seq. has various statutory remedies against the other spouse who has failed to comply. One such remedy is a motion to compel a further response Family Code § 2107(b)(1)). If the noncomplying spouse fails to file a sufficient response, the complying spouse may seek monetary sanctions “in addition to any other remedy provided by law”. Family Code § 2107(c).

The contempt remedy for noncompliance with a court order made under the Family Code is subject to a statute of limitations.  Code of Civil Procedure § 1218.5.

For an alleged failure to pay child, family or spousal support, the contempt action must be commenced no later than three years from the date the payment was due.

A contempt cause of action for nonpayment of support may be broken down into separate “counts” for each month payment was not made in full. Thus, the fact the obligor stopped (or fell short in) payments over three years ago is not fatal to a contempt remedy: Each month within the three-year period for which payments were in default is separately punishable as separate counts of contempt.

A contempt action to enforce any other order made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.”

In California a contempt proceeding in a family law case is initiated by the filing of an Order to  Show Cause and Affidavit for Contempt with the Court.  The person alleged to be in contempt (“citee”) is then served with a copy of the Order to  Show Cause and Affidavit for Contempt.

The facts constituting the contempt must be alleged by an “affidavit of facts,” setting forth the type of order violated, the date the order was issued, how the order was violated, and when the violation occurred. Jurisdiction to adjudicate a contempt ordinarily exists only if the charging affidavit alleges evidentiary facts showing a prima facie case of contempt as discussed below.  Code of Civil Procedure § 1211(a).

However, a deficient charging affidavit may be amended at any stage of the proceeding. And, if there is no objection to the sufficiency of the charging affidavit, jurisdiction to adjudicate contempt may be established by facts proved at the contempt hearing (in which case, the court “shall cause the affidavit or statement to be amended to conform to proof”).

The citee must be formally notified of the charge and of the time and place for the court hearing on the charge. Service of the notice must be effected in a manner authorized for service of summons; an OSC re Contempt is not properly served by the more liberal Code of Civil Procedure § 1010 et seq. methods for service of motions or OSCs generally. Code of Civil Procedure § 1016;  Family Code § 215.

Unlike ordinary motion and OSC proceedings, contempt cannot be decided on the moving and responding papers alone. The citee is entitled to a formal hearing as a matter of right and must be allowed to testify, to call and cross-examine witnesses, and to introduce evidence in defense of the charge. Code of Civil Procedure § 1217.

Contempt citees clearly have a due process right to be represented by an attorney they have retained for that purpose.  Additionally, where the potential penalty includes a jail sentence, an indigent citee has the due process right to court-appointed counsel at county expense.

The citee must be afforded the testimonial privileges of a criminally accused: He or she is entitled to exercise the privilege not to be called as a witness, and can decline to answer specific questions, claiming the privilege against self-incrimination. These privileges are not waived by filing an answer to the charging declaration.

As a general rule, the citee also has the same rights as a criminally accused to proof of a prima facie contempt case by competent evidence beyond a reasonable doubt. The contempt must be discharged if the charging party fails to carry this burden on each element of the prima facie case.

The Sixth Amendment to the U.S. Constitution guarantees the right to a jury trial for all “serious” criminal contempts such as when the contempt is punishable by more than six months’ imprisonment.

The right to a jury trial under the California constitution is broader: It extends to all criminal prosecutions above an “infraction.” Thus, there is a right to jury trial in criminal contempt proceedings that carry a maximum penalty comparable to a felony or misdemeanor (six months’ imprisonment plus $1,000 fine) regardless of what the Legislature has labeled the offense.

However, there is no right to jury trial where the court invokes its general summary contempt power under Code of Civil Procedure § 1209 and imposes only a maximum five-day sentence and/or $1,000 fine. Code of Civil Procedure § 1218(a). That punishment is not akin to a misdemeanor penalty and thus does not trigger the state constitutional jury trial provision.

If the court proceeds to trial on contempt charges without a jury, and the citee has not expressly waived the right to a jury, the maximum sentence that may be imposed is 180 days (six months). A longer sentence in violation of the jury trial right will not invalidate the contempt conviction or require retrial by jury; but the court must reduce the sentence to six months or less.

The elements or facts generally necessary to establish a prima facie contempt of a family law order are: (1) rendition of a valid order; (2) the citee’s knowledge of the order; and (3) the citee’s willful disobedience of the order.

A contempt adjudication cannot stand if the underlying order is invalid. The charging affidavit must identify the underlying order by date of entry and type. For purposes of sustaining a prima facie case, the court can presume validity unless the order is void on its face; the citee thus normally bears the burden of showing invalidity, either as an affirmative defense in the answer or by motion to discharge the contempt citation.

Part two of this blog post will discuss the remaining issues that will be decided at any contempt hearing.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Order to Show Cause for Contempt in California Family Law proceedings, part two

Order to Show Cause for Contempt in California Family Law proceedings, part two

This blog post is part two of the series which discusses the filing of an order to show cause for contempt in a California family law proceeding, including the remaining issues that will be decided at any contempt hearing.

The charging affidavit in support of the order to show cause for contempt must set forth facts showing the citee’s notice or knowledge of the underlying order as this is a a jurisdictional prerequisite to a valid contempt adjudication.

Knowledge can be shown by personal service of a copy of the order, the citee’s presence in court when the order was made, the citee’s signature on a stipulation upon which the order was based, or proof that the citee previously sought relief related to the order such as a modification.

To complete a prima facie case of contempt, the charging party must allege facts showing the citee’s willful disobedience of the underlying order.

In making a family law support or attorney fees/costs order, the family court necessarily must determine the obligor’s ability to pay. Since the court has already determined the obligor’s ability to pay the underlying order, present ability to pay is not an element of a prima facie contempt case predicated on nonpayment. Rather, inability to pay is an affirmative defense that must be proved by the citee.

A custodial parent can be held in contempt of a visitation order only when he or she has sufficient control over the child so as to have the ability to make the child available for visitation. This is a fact question in each case. A parent probably has sufficient control over minor children of “tender years” to compel them to visit with the other parent; failure to make such children available for visitation probably would be punishable as contempt. But the result may be otherwise when the children get older and it becomes more difficult to exert parental “control.” If a teenage child refuses to visit with the noncustodial parent, through no fault of the custodial parent, the custodial parent lacks the ability to comply with the order and cannot be held in contempt; in these cases, the noncustodial parent is probably left without a remedy.

The citee may answer the charge, admitting or denying it, or may move for a discharge without answering.  In response to the contempt charge, and before the hearing, the citee can file an opposing affidavit or declaration under penalty of perjury,  questioning the adequacy of the moving party’s charging affidavit or raising a sufficient “excuse or justification” in defense. The opposing affidavit together with the charging affidavit frame the issues to be tried in the proceeding.

Contempt charges are commonly defended on the ground that any failure to comply with the underlying order was not “wilful” because the citee lacked the ability to comply. The citee does not meet this burden, however, with conclusory declarations. He or she must set forth evidentiary facts showing why complete performance was impossible. Moreover, default under the order will not be excused if the responding allegations disclose that the inability to comply was self-imposed for the purpose of avoiding compliance.

Note also that disobedience of a lawful court order is not excused by the fact the citee was acting on advice of counsel. Moreover, attorneys who encourage such defiance can be held in contempt themselves for their own recalcitrant conduct.

In lieu of an answer, the citee can move for a discharge of the contempt citation on the following grounds:

The charging affidavit does not make out a prima facie case of contempt.

The order expired before the alleged violation. But if the order was in effect at the time of the violation, discharge will not be granted simply because it has expired or been superseded at the time of the contempt proceedings.

The same charge was previously made on the same facts and the citee was discharged on the merits.

Normally, either the citee or his or her attorney must appear at the hearing; and, if neither appears, a bench warrant can issue to secure their presence. But it is error for the court to proceed in the absence of the alleged contemnor or his or her attorney, unless it finds the OSC and Affidavit for Contempt forms were validly served and the failure to appear was voluntary.

The charging and opposing affidavits are hearsay and thus inadmissible over objection. Evidence Code §§ 1200(a),(b).

The penalties upon a contempt adjudication are prescribed by Code of Civil Procedure §§ 1218 and 1219.

Upon a contempt adjudication for failure to comply with a court order made under the Family Code, the court “shall order” community service and/or imprisonment as prescribed by Code of Civil Procedure § 1218(c).

Upon a first finding of contempt, the party found in contempt (“contemnor”) must be ordered to perform community service of up to 120 hours, or to be imprisoned up to 120 hours (five days), for each count of contempt.

Upon a second finding of contempt, the contemnor must be ordered to perform up to 120 hours of community service, in addition to imprisonment of up to 120 hours (five days), for each count of contempt.

Upon the third or any subsequent finding of contempt, the contemnor must be imprisoned for up to 240 hours (10 days) and be ordered to perform up to 240 hours of community service, for each count of contempt.

The contemnor must also be ordered to pay an “administrative fee,” not exceeding the “actual cost” of the contemnor’s administration and supervision, while assigned to a community service program.

With regard to child, family or spousal support contempts, each month in which there was a default may be alleged as a separate count of contempt and punishment imposed for each count proved.  This provision means that each count alleged in one charging affidavit may result in one “finding of contempt”; but that the specified community service and imprisonment penalties may be aggregated for each of the counts proved.

As an example: One charging affidavit alleges five months’ default in support payments, each as a separate count. If the citee has not yet been adjudicated in contempt of a Family Code order, proof of each count in a single proceeding will amount to a “first finding of contempt” under Code of Civil Procedure § 1218(c)(1); but the citee may be ordered to perform up to 600 hours of community service or be imprisoned for up to 600 hours (25 days).

In addition to the fine, community service and imprisonment penalties discussed above, a party (or party’s agent) found in contempt for violating a court order “may” be ordered to pay the charging party’s reasonable attorney fees and costs incurred in connection with the contempt proceeding. Code of Civil Procedure § 1218(a).

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Obtaining income and expense information from the other party before filing an order to show cause to modify or terminate child, family, or spousal support in California

Obtaining income and expense information from the other party before filing an order to show cause to modify or terminate child, family, or spousal support in California

The topic of this blog post is the process of obtaining income and expense information from the other party before filing an order to show cause to modify or terminate child, family, or spousal support in California.

As will be shown in this blog post, the method described below is an extremely useful tool to obtain income and expense information from another party before commencing a modification or termination proceeding for child, family or spousal support. In fact it is the only method that can be used before commencing any modification or termination proceeding. It truly does provide an inexpensive method of obtaining the facts necessary to determine whether or not to commence a modification or termination proceeding.

The relevant statutes are contained in Chapter 6, Article 3 of the California Family Code, sections 3660 through 3668.

These statutes allow a party to serve a request for an income and expense declaration on the other party before they file an Order to Show Cause or Notice of Motion to modify or terminate child, family or spousal support.

The California Legislature states that the purpose of these statutes is to permit inexpensive discovery of facts before the commencement of a proceeding for modification or termination of an order for child, family, or spousal support. See Family Code § 3660.

These status provide the only method of discovery before filing any Order to Show Cause or Notice of Motion to modify or terminate child, family or spousal support.  Other methods of discovery may only be used if a motion is pending. See Family Code § 3662.

Unless a motion for modification or termination of a support order has been filed, a request for discovery pursuant to this article may be undertaken not more frequently than once every 12 months.  See Family Code § 3663.

The procedure and relevant rules for using this method to obtain income and expense information from another party before commencing a modification or termination proceeding for child, family or spousal support are as follows:

At any time following a judgment of dissolution of marriage or legal separation of the parties, or a determination of paternity, that provides for payment of support, either the party ordered to pay support or the party to whom support was ordered to be paid or that party’s assignee, without leave of court, may serve a request on the other party for the production of a completed current income and expense declaration in the form adopted by the Judicial Council.  See Family Code § 3664(a)).

If there is no response within 35 days of service of the request or if the responsive income and expense declaration is incomplete as to any wage information, including the attachment of pay stubs and income tax returns, the requesting party may serve a request on the employer of the other party for information limited to the income and benefits provided to the party in the form adopted by the Judicial Council. The employer may require the requesting party to pay the reasonable costs of copying this information for the requesting party. The date specified in the request served on the employer for the production of income and benefit information shall not be less than 15 days from the date this request is issued.  See Family Code § 3664(b).

The requesting party shall serve or cause to be served on the employee described in this section or on his or her attorney a copy of the request served on the employer prior to the date specified in the request served on the employer for the production of income and benefit information. This copy shall be accompanied by a notice that, in a typeface that is intended to call attention to its terms, indicates all of the following: (1) That information limited to the income and benefits provided to the employee by his or her employer is being sought from the employer named in the request for production. (2) That the information may be protected by right of privacy. (3) That, if the employee objects to the production of this information by the employer to the requesting party, the employee shall notify the court, in writing, of this objection prior to the date specified in the request served on the employer for the production of income and benefit information. (4) That, if the requesting party does not agree, in writing, to cancel or narrow the scope of the request for the production of this information by the employer, the employee should consult an attorney regarding the employee’s right to privacy and how to protect this right.  See Family Code § 3664[c].

The employee described in this section may, prior to the date specified in the request served on the employer for the production of income and benefit information, bring a motion pursuant to Section 1987.1 of the Code of Civil Procedure to quash or modify this request in the same manner as a subpoena duces tecum. Notice of this motion shall be given to the employer prior to the date specified in the request served on the employer for the production of income and benefit information. No employer shall be required to produce information limited to the income and benefits of the employee, except upon order of the court or upon agreement of the parties, employers, and employee affected.  See Family Code § 3664(d).

Service of a request for production of an income and expense declaration or for income and benefit information pursuant to this section or a copy thereof shall be by certified mail, postage prepaid, return receipt requested, to the last known address of the party to be served, or by personal service.  See Family Code § 3664(f).

The form used is Judicial Council Form FL-396 which is a mandatory form.  Click below to view the official form.  http://www.courts.ca.gov/documents/fl396.pdf

Note that while the code does not require service of the request on the attorney for the other party, it is probably a good idea to mail a courtesy copy to them assuming that they are still the attorney of record.

Family Code Section 3665 states that, “

(a) A copy of the prior year’s federal and state personal income tax returns shall be attached to the income and expense declaration of each party.

(b) A party shall not disclose the contents or provide copies of the other party’s tax returns to anyone except the court, the party’s attorney, the party’s accountant, or other financial consultant assisting with matters relating to the proceeding, or any other person permitted by the court.

(c) The tax returns shall be controlled by the court as provided in Section 3552. 3666. This article may be enforced in the manner specified in Sections 1991, 1991.1, 1991.2, 1992, and 1993 of the Code of Civil Procedure and in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), and any other statutes applicable to the enforcement of procedures for discovery. 3667. Upon the subsequent filing of a motion for modification or termination of the support order by the requesting party, if the court finds that the income and expense declaration submitted by the responding party pursuant to this article was incomplete, inaccurate, or missing the prior year’s federal and state personal income tax returns, or that the declaration was not submitted in good faith, the court may order sanctions against the responding party in the form of payment of all costs of the motion, including the filing fee and the costs of the depositions and subpoenas necessary to be utilized in order to obtain complete and accurate information. This section is applicable regardless of whether a party has utilized subdivision (b) of Section 3664.”

The method discussed in this blog post is underutilized but is very useful.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

How to obtain a 6 percent a month penalty for overdue child support arrearages in California


How to obtain a 6 percent a month penalty for overdue child support arrearages in California

The topic of this blog post is obtaining a 6 percent a month penalty in certain cases on delinquent child support in the State of California. This is done by utilizing the Civil Penalty for Child Support Delinquency contained in Part 5, Chapter 5 of the California Family Code, specifically sections 4720 through 4733. The California Family Code provides many different methods by which to enforce a child support order. Many family law attorneys and other professionals are either not aware of this method, or do not utilize it because they assume it must be complicated. This is not true. It is a vital tool for use in child support enforcement in California.

All child support orders in California accrue simple interest at a rate of ten (10%) percent per year. However using the Civil Penalty Method it is possible to have a penalty of six (6) percent per month assessed on all child support arrearages which are more than thirty (30) days delinquent. However this method is only intended to be used in extreme situations where there is a clearly deliberate failure to pay the child support order. The California Legislature intends that the penalties provided in this method be used in egregious instances of noncompliance with child support orders. See Family Code § 4721(b).

The person to whom the child support has been ordered paid (support obligee) may file and then serve a Notice of Delinquency with the Court. The Notice of Delinquency is Judicial Council Form FL-485. Click here to view the form. http://www.courts.ca.gov/documents/fl485.pdf

The Notice must be signed under penalty of perjury and must contain the following information: (1) The amount that the child support obligor is in arrears. (2) The installments of support due, the amounts, if any, that have been paid, and the balance due. (3) That any unpaid installment of child support will incur a penalty of 6 percent of the unpaid support per month until paid, to a maximum of 72 percent of the original amount of the unpaid support, unless the support arrearage is paid within 30 days of the date of service of the notice of delinquency. (4) In the absence of a protective order prohibiting the support obligor from knowing the whereabouts of the child or children for whom support is payable, or otherwise excusing the requirements of this subdivision, the notice of delinquency shall also include a current address and telephone number of all of the children for whom support is due and, if different from that of the support obligee, the address at which court papers may be served upon the support obligee. The Notice may be served personally or in any other manner provided for service of a summons. If the child support owed, or any arrearages, interest, or penalty, remains unpaid more than 30 days after serving the notice of delinquency, the support obligee may file a motion with the Court to obtain a judgment for the amount owed, which shall be enforceable in any manner provided by law for the enforcement of judgments.

Pursuant to Family Code Section 4726: “No penalties may be imposed pursuant to this chapter if, in the discretion of the court, all of the following conditions are met: (a) Within a timely fashion after service of the notice of delinquency, the support obligor files and serves a motion to determine arrearages and to show cause why the penalties provided in this chapter should not be imposed. (b) At the hearing on the motion filed by the support obligor, the court finds that the support obligor has proved any of the following: (1) The child support payments were not 30 days in arrears as of the date of service of the notice of delinquency and are not in arrears as of the date of the hearing. (2) The support obligor suffered serious illness, disability, or unemployment which substantially impaired the ability of the support obligor to comply fully with the support order and the support obligor has made every possible effort to comply with the support order. (3) The support obligor is a public employee and for reasons relating to fiscal difficulties of the employing entity the obligor has not received a paycheck for 30 or more days. (4) It would not be in the interests of justice to impose a penalty.” Any penalties due using this method shall not be greater than 6 percent per month of the original amount of support arrearages or support installment, nor may the penalties on any arrearage amount or support installment exceed 72 percent of the original amount due, regardless of whether or not the installments have been listed on more than one notice of delinquency. See Family Code § 4727.

Penalties due pursuant to this method may be enforced by the issuance of a writ of execution in the same manner as a writ of execution may be issued for unpaid installments of child support, as described in Chapter 7 (commencing with Section 5100), except that payment of penalties under this chapter may not take priority over payment of arrearages or current support. See Family Code § 4728.

At any hearing to set or modify the amount payable for the support of a child, the court shall not consider any penalties imposed under this chapter in determining the amount of current support to be paid. See Family Code § 4730. A subsequent notice of delinquency may be served and filed at any time. The subsequent notice shall indicate those child support arrearages and ongoing installments that have been listed on a previous notice. See Family Code § 4731.

As the penalties using this method are quite severe it should only be used in extreme cases. However, in the right situation this method can be very useful in convincing an individual who owes a significant sum of money in delinquent child support to “get their act together” and either pay the full amount due, including the penalties, or make suitable payment arrangements.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Obtaining an expedited child support order in California

Obtaining an expedited child support order in California

The topic of this blog post is obtaining an expedited child support order in California. The California Family Code provides a very useful method to obtain an expedited child support order, in some cases without a hearing. This means that a child support order may be obtained faster than the traditional method of filing an order to show cause. The relevant statutes are contained in Chapter 5 of the California Family Code, sections 3620 through 3634.

The forms used are official Judicial Council forms FL-380 through FL-382. Click below to view the official forms. http://www.courts.ca.gov/forms.htm?filter=MO

These statutes allow a party to file and then serve a request for an expedited child support order. The procedure and relevant rules for using this method to obtain an expedited order for child support are as follows: In an action for expedited child support that has been filed and served, the Court may, without a hearing, make an order requiring a parent or parents to pay for the support of their minor child or children during the pendency of that action, pursuant to this chapter, the amount required by Section 4055 or, if the income of the obligated parent or parents is unknown to the applicant, then the minimum amount of support as provided in Section 11452 of the Welfare and Institutions Code. See Family Code § 3621.

The court shall make an expedited support order upon the filing of all of the following: (a) An application for an expedited child support order, setting forth the minimum amount the obligated parent or parents are required to pay pursuant to Section 4055 of this code or the minimum basic standards of adequate care for Region 1 as specified in Sections 11452 and 11452.018 of the Welfare and Institutions Code. (b) An income and expense declaration for both parents, completed by the applicant. (c) A worksheet setting forth the basis of the amount of support requested. (d) A proposed expedited child support order. See Family Code § 3622.

(a) An application for the expedited support order confers jurisdiction on the court to hear only the issue of support of the child or children for whom support may be ordered. (b) Nothing in this chapter prevents either party from bringing before the court at the hearing other separately noticed issues otherwise relevant and proper to the action in which the application for the expedited support order has been filed. See Family Code § 3623.

(a) Subject to Section 3625, an expedited support order becomes effective 30 days after service on the obligated parent of all of the following: (1) The application for an expedited child support order. (2) The proposed expedited child support order, which shall include a notice of consequences of failure to file a response. (3) The completed income and expense declaration for both parents. (4) A worksheet setting forth the basis of the amount of support requested. (5) Three blank copies of the income and expense declaration form. (6) Three blank copies of the response to an application for expedited child support order and notice of hearing form. (b) Service on the obligated parent of the application and other required documents as set forth in subdivision (a) shall be by personal service or by any method available under Sections 415.10 to 415.40, inclusive, of the Code of Civil Procedure. (c) Unless there is a response to the application for an expedited support order as provided in Section 3625, the expedited support order shall be effective on the obligated parent without further action by the court. See Family Code § 3624.

(a) A response to the application for the proposed expedited support order and the obligated parent’s income and expense declaration may be filed with the court at any time before the effective date of the expedited support order and, on filing, shall be served upon the applicant by any method by which a response to a notice of motion may be served. (b) The response to the application for an expedited support order shall state the objections of the obligated parent to the proposed expedited support order. (c) The simultaneous filing of the response to the application for an expedited support order and the obligated parent’s income and expense declaration shall stay the effective date of the expedited support order. (d) No fee shall be charged for, or in connection with, the filing of the response. See Family Code § 3625.

The obligated parent shall cause the court clerk to, and the court clerk shall, set a hearing on the application for the expedited support order not less than 20 nor more than 30 days after the filing of the response to the application for the expedited support order and income and expense declaration. See Family Code § 3626.

The obligated parent shall give notice of the hearing to the other parties or their counsel by first-class mail not less than 15 days before the hearing. See Family Code § 3627.

If notice of the hearing is not given as provided in Section 3627, the expedited support order becomes effective as provided in Section 3624, subject to the relief available to the responding party as provided by Section 473 of the Code of Civil Procedure or any other available relief whether in law or in equity. See Family Code § 3628.

(a) At the hearing on the application for the expedited support order, all parties who are parents of the child or children who are the subject of the action shall produce copies of their most recently filed federal and state income tax returns. (b) A tax return so submitted may be reviewed by the other parties, and a party also may be examined by the other parties as to the contents of the return. (c) Except as provided in subdivision (d), a party who fails to submit documents to the court as required by this chapter shall not be granted the relief that the party has requested. (d) The court may grant the requested relief if the party submits a declaration under penalty of perjury that (1) no such document exists, or (2) in the case of a tax return, it cannot be produced, but a copy has been requested from the Internal Revenue Service or Franchise Tax Board. See Family Code § 3629.

(a) Except as provided in subdivision (b), the amount of the expedited support order shall be the minimum amount the obligated parent is required to pay as set forth in the application. (b) If a hearing is held on the application, the court shall order an amount of support in accordance with Article 2 (commencing with Section 4050) of Chapter 2 of Part 2. See Family Code § 3630. When there is a hearing, the resulting order shall be called an order after hearing. See Family Code § 3631.

An order after hearing shall become effective not more than 30 days after the filing of the response to the application for the expedited support order and may be given retroactive effect to the date of the filing of the application. See Family Code § 3632. An order entered under this chapter may be modified or terminated at any time on the same basis as any other order for child support. See Family Code § 3633.

As stated in this blog post the method described above is an extremely useful tool to obtain an expedited child support order, in some cases without a hearing, provided that the other party does not oppose it. And even if there is a hearing it must be held not more than 30 days from the filing of any response. This is significantly faster in most cases than the traditional methods of obtaining a child support order.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995.

Qualified Written Request (QWR)

What Is A Qualified Written Request (QWR) And What Does That Do For You Related To Your Mortgage?

A Qualified Written Request (QWR) is a powerful tool when dealing with abusive mortgage servicing companies (Litton Loan, Wells Fargo, Bank of America, etc). This is a right under RESPA – Real Estate Settlement Practices Act – to gain information and to dispute false bills or charges.

A couple of pointers.

First – it must be in writing. Seems obvious from “Qualified WRITTEN Request” but we have seen far too many people try and make this by calling. Don’t do that – instead send it in writing. Certified mail, return receipt requested.

Second – it should be sent to the mortgage servicing company and to other relevant companies. Here’s the deal – send it to everyone you can think of. Former servicing companies. Foreclosure attorneys. Current alleged owner of the note, etc. There have been cases where it was sent to the wrong place and consumers have lost their powerful rights under this law so cover your bases and send it to everyone. Mention that “If this QWR should go to someone else, please let me know so I can forward it directly to that person.”

Third – it should be sent to the correct address. This normally is NOT the billing address. Instead it will be a place listed on your bill or on the website of the servicing company that is described as “For all other written correspondence” or “For billing questions or disputes” etc. You can and should also call the company and ask where is the correct address. Carefully document all of your contacts with the mortgage servicing company.

Fourth – expect a response in about 30 days and then again in about 90 days. The servicing company has 20 business days (in essence 30 days) to let you know it received the QWR and then 60 business days (again basically 90 days) to respond.

OK, so what do you put in a QWR? Here are some suggestions:

1. Identify who you are, your loan, account number, property address, etc. so the servicer can find you in its system.
2. Whatever information that you legitimately need to determine if the servicer has been properly applying payments, charging fees, etc.
3. If you legitimately dispute a charge or the way the company handled a payment (particularly a lump sum payment as these are often handled illegally) then clearly state that in the QWR letter. We’ll talk about this more later but remember that charges are automatically imposed on your account and to eliminate a bogus charge requires a human being to manually do this so you can see why so often illegal charges are not removed but continue to be added against your account.

While your dispute is pending, the disputed part cannot be shown as late onyour credit report.

You will find a QWR a powerful tool to gain information about your account and to dispute bogus charges.

If you have any questions about how to draft a QWR or your legal remedies if a QWR is not properly handled by the servicing company and you live in California, please feel free to contact us. You can call us at 866-225-4028 or send us an email through this blog or through our website or you can join us for our foreclosure seminar tomorrow night at 4pm in which we will discuss QWRs.

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Opposition to a motion for relief from the automatic stay

Opposition to a motion for relief from the automatic stay

This blog post will discuss the filing of an opposition to a motion for relief from the automatic stay in United States Bankruptcy Court. Note that the deadline for filing an opposition to a motion for relief from automatic stay varies with each individual Court but as a general rule the opposition should be served and filed at least fourteen (14) calendar days before the hearing, unless the notice of motion states otherwise, or the Court has otherwise ordered.

It must be stressed that the failure to file and serve a timely opposition to a motion for relief from the automatic stay may be construed by the Court as an admission that the motion has merit and should be granted. Thus a party who wishes to oppose the motion for relief from the automatic stay should do everything possible to ensure that a timely opposition is served and filed.

The automatic stay prevents creditors from taking certain actions once a petition for relief under the Bankruptcy Code has been filed.

11 U.S.C . 362a states in relevant part: “Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of–(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title…”

The party requesting relief from the automatic stay bears the burden of establishing a prima facie case that “cause” exists for relief from the automatic stay. If the moving party fails to meet its initial burden relief should be denied.

“The burden of proof on a motion to modify the automatic stay is a shifting one. To obtain relief from the automatic stay, the party seeking relief must first establish a prima facie case that “cause” exists for relief under § 362(d)(1). Once a prima facie case has been established, the burden shifts to the debtor to show that relief from the stay is unwarranted. If the movant fails to meet its initial burden to demonstrate cause, relief from the automatic stay should be denied.” In re Plumberex Specialty Products, Inc. 311 B.R. 551, 557 (Bkrtcy.C.D.Cal.,2004) (internal citations and quotations omitted).

The moving party must establish a factual and legal right to the relief that it is seeking.

“A prima facie case requires the movant to establish “a factual and legal right to the relief that it seeks.” In re Plumberex Specialty Products, Inc. , supra at FN 11.

In some cases the moving party will have to show that the debtor’s actions constitute a clear abuse of the bankruptcy process, in other words bad faith on the part of the debtor.

“The existence of good faith depends on an amalgam of factors and not upon a specific fact. The test is whether the debtor is attempting to unreasonably deter and harass creditors or attempting to effect a speedy, efficient reorganization on a feasible basis. Good faith is lacking only when the debtor’s actions constitute a clear abuse of the bankruptcy process.” In re Plumberex Specialty Products, Inc. , supra at 559.

Any party that is served with a motion for relief from the automatic stay should carefully review the motion and supporting documents to determine if the moving party has met its initial burden. Many times a party will file a motion for relief with very little if any, supporting facts to support their motion.

The author of this article, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.