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Joinder of pension and retirement plans in California

Joinder of pension and retirement plans in California

Joinder is the legal process by which a pension or retirement plan is “joined” as a party to a dissolution (divorce) or legal separation proceeding in California.  Not all pension or retirement plans need to be joined.  The following pension and retirement plans must be joined as a party.

1.   Governmental plan of a city, county, state, public school or university or other public agency.

2.   Plan (qualified or non-qualified) covering only business owners and spouses or employees of a church.

Federal government pension and retirement plans do not have to be joined as a party.  However, they do require a Qualified Domestic Relations Order (Q.D.R.O) be issued by the Court specifying the non-employee spouses interest in the plan.  Also many plans covering employees who work for private industry also do not have to be joined as a party, neither do Individual Retirement Accounts (IRA’s) or Roth IRA’s.  These may be divided simply by Judgment or Order of the Court. Judicial Council form FL-318-INFO lists numerous different pension and retirement plans and indicates whether or not they require Joinder.

In California the process of Joinder is completed by the filing of several forms with the Court Clerk.  The forms include detailed information about the employee, list the full name of the pension or retirement plan, and include the dates or marriage and separation as well as other pertinent information.

Upon the filing of the forms, the Court Clerk issues an Order of Joinder.  The Order and the other forms are then served on the pension or retirement plan, which then has thirty (30) days from the date it is served to file a response.  A blank response must be served along with the other Joinder paperwork.

The fact that the Court Clerk is authorized to issue an Order of Joinder greatly simplifies things as this means that the Joinder Order can be obtained without appearing before a Judge.  Thus the Order of Joinder can be obtained very quickly if needed.

The Family Code now requires that a pension or retirement plan must be joined as a party to the divorce proceeding prior to the entry of judgment granting dissolution of the status of the marriage unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law.  See (Ca Fam § 2337(10)(d)(1).

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California Divorce Litigation including Joinder of pension and retirement plans as well as preparation of QDRO’s.

Marital Settlement Agreements in California

Marital Settlement Agreements in California

This blog post will discuss the use of a marital settlement agreement (MSA) in California. MSA’s are widely used in uncontested divorces in California in order that the divorce can be entered without either party actually having to appear in Court.

An MSA in California is used by spouses in a dissolution (divorce) action in an attempt to resolve their contested disputes and claims. A comprehensive marital settlement agreement usually provides for all of the following:

Characterization of property interests and characterization and division of the community estate (assets and debts);

Adjustment of reimbursement claims and income tax issues;

Payment of child support, spousal support and attorney fees and costs;

Child custody and visitation; and

Certain waivers and indemnification agreements between the spouses.

Exchange of statutorily-required “preliminary” and “final” “declarations of disclosure”

(Ca Fam § 2100 et seq.) is an essential step toward the consummation of an effective MSA and entry of judgment thereon.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable. (Ca Fam § 2104).

And, unless excused by the court for good cause, “final” declarations of disclosure must be exchanged before or at the time the parties enter into an agreement resolving property or support issues (Ca Fam § 2105(a). If the mandatory declarations of disclosure are not exchanged the MSA is invalid and will not be accepted by the Court. This cannot be stressed enough.

While, subject to statutory conditions, the parties may stipulate to a waiver of the final declarations of disclosure, the waiver does not limit their underlying fiduciary disclosure obligations–i.e., it simply amounts to a representation that those disclosures have been made (see Ca Fam § 105(d).)

Since the facts and circumstances of each case vary, where the issues involved include, custody, visitation, support, property division, debt division, or other similar issues,  a marital settlement agreement should be carefully drafted to meet the needs of the particular parties involved.

The typical contents of an MSA include:

Identity of parties and recital of facts (including statistical facts of the marriage).

Identity of property, distribution of community estate, and confirmation of separate property.

Provision for payment of debts and adjustment of reimbursement claims.

Custody of children and visitation rights.

Child support, including provision for medical, dental, and special educational or other needs (if any); and, if applicable, including agreementas to the support of adult children.

Spousal support (including, as applicable, provisions for life insurance, survivor annuities, and the like); or waiver of spousal support.

Attorneys’ and experts’ fees and costs.

Tax provisions.

Effect of reconciliation.

Judicial action contemplated.

Warranties.

After-discovered property.

Waiver of rights, including rights in deceased spouse’s estate.

Modification, revocation or termination.

Costs of enforcement.

Execution of related documents.

Effective date.

Choice of law.

“Severability” clause.

Execution by parties.

Marital settlement agreements are consider to “occupy a favored position” in California law. Generally, therefore, an MSA that is “not tainted by fraud or compulsion or is not in violation of the confidential relationship of the parties is valid and binding on the court.” However there are some limitations which must be kept in mind when drafting an MSA.

Child Support:

 

Marital settlement agreements cannot abridge the parents’ mutual statutory child support obligation or impinge on the court’s jurisdiction to award child support. This means that an MSA cannot contain a provision in which one party “waives” child support. The issue of child support can be “reserved” which means that the Court retains jurisdiction to order child support in the future, but it can never be waived.

Child Custody:

 

Marital settlement agreements cannot limit a court’s exercise of custody jurisdiction over the minor children of the marriage.

Religious Upbringing:

 

To the extent a marital settlement agreement purports to prescribe the religious upbringing of the parties’ minor children, it is probably unenforceable. Marriage of Weiss (1996) 42 Cal.App.4th 106, 114-115, 118.

Spousal Support Waivers:

 

There is no prohibition against a waiver of post-dissolution spousal support. If the spouses separate by agreement, neither owes the other a duty of support unless they otherwise agree (Ca Fam § 4302); and any right to support after dissolution exists, if at all, only under the terms of the judgment. Thus, a voluntary, knowing and intelligent waiver of support in a marital settlement agreement will be enforced according to its terms. Note that a waiver of spousal support for a “long-term” marriage of ten years or more must be clear and unequivocal.

Fiduciary Obligations Of The Parties Must Be Respected:

 

The “confidential relationship” between spouses carries attendant fiduciary obligations in intraspousal transactions and in the management and control of the community estate (Ca Fam § 721(b), 1100(e).  All “confidential relationship”/fiduciary duties (including broad disclosure obligations) continue postseparation until the community estate is distributed and support and professional fee issues are resolved.  Ca Fam § 2102, 1100(e).

Compliance With General Contract Law:

 

Subject to limited statutory exceptions, marital settlement agreements (like all spousal contracts) must comply with general principles of contract law. The contract law defenses include (among other things) mistake, failure of consideration, unlawfulness of the contract and prejudice to the public interest (Ca Civil § 1689).  Other general contract concepts which may be relevant in drafting or enforcing a marital settlement agreement are:

Voluntary And Knowing Consent:

Each party’s consent must be voluntary and knowledgeable, given free of fraud, undue influence, duress, menace, or mistake. (Ca Civil § 1566-1579).

Filing a motion for change of venue under Code of Civil Procedure Section 397.5

Filing a motion for change of venue under Code of Civil Procedure Section 397.5

This blog post will briefly discuss filing a motion for change of venue in a dissolution (divorce) case under California Code of Civil Procedure Section 397.5 in California. This procedure can also be used in a legal separation or nullity proceeding. Note that this code section does not apply unless both parties have moved from the county where the original judgment or order was made.

In many situations after a divorce case has been filed, both parties will have moved from the county where the judgment or other order was entered. And many times it will be convenient for the parties if the case is transferred to the county of residence of either of the parties. It is in these types of cases that the motion makes sense.

Code of Civil Procedure § 397.5 states that, “In any proceeding for dissolution or nullity of marriage or legal separation of the parties under the Family Code, where it appears that both petitioner and respondent have moved from the county rendering the order, the court may, when the ends of justice and the convenience of the parties would be promoted by the change, order that the proceedings be transferred to the county of residence of either party.”

An Order to Show Cause or motion should be filed in the county where the original judgment or order was made along with a declaration from the party who wants to change venue stating that both parties have moved and that the ends of justice and the convenience of the parties would be promoted by the change of venue.

The author of this article, Stan Burman, is a freelance paralegal  with over 15 years of experience in California divorce and family law matters.

Vacating a property settlement agreement (MSA) in California

Vacating a property settlement agreement (MSA) in California

This blog post will briefly discuss some of the issues involved in vacating a property settlement agreement also known as a marital settlement agreement, in California. In particular, vacating a property settlement agreement based on one party having an undue influence on the other party because of undue influence such as taking advantage of another due to distress or weakness of mind.

The author worked on a case some years ago in which the wife had signed a property settlement agreement in which she agreed to accept the sum of $6,000.00 as full and complete reimbursement for her share of the community property. At the time that the wife signed the agreement she was not represented by counsel, and she did not consult with any attorney prior to signing the agreement.

Further, at the time that the wife signed the agreement, her rent was already late and she was going to be served with a 3-Day notice to pay rent or quit by her landlord. She did not have any money to pay her rent as she was not working at the time she signed the agreement.

The husband had a large amount of property, much more than the wife, and the wife may have had a community property share. And the agreement was signed before any petition for dissolution of marriage (divorce) had even been filed.

A brief discussion along with some of the statutes and cases that were used in the memorandum of points and authorities are set forth below.

The confidential relationship between spouses imposes a duty of the highest good faith and fair dealing on each spouse, and neither may take any unfair advantage of the other. See California Family Code § 721(b).

Thus the least overreaching or misrepresentation allowing one spouse to gain the property of the other is fraudulent, and will justify an action to avoid the agreement. Haseltine v. Haseltine (1962) 203 Cal. App. 2d 48, 56.

In this case, the wife signed the agreement to not go after anything of her husband’s if he gave her $6,000.00. She only signed the agreement because her rent was 3 days late and she had no money and no job and would be evicted otherwise. Clearly this was a case of not only one spouse taking unfair advantage of the other spouse, but overreaching of the highest degree as someone who is flat broke and about to be evicted is obviously under extreme stress, and therefore highly vulnerable.

And another issue is that the agreement was signed before the petition for dissolution of marriage (divorce) had even been filed. Thus no preliminary or final declarations of disclosure were completed and exchanged.

An exchange of prescribed “preliminary” disclosure declarations is mandatory and nonwaivable California Family Code § 2104; Marriage of McLaughlin (2000) 82 Cal.App. 4th 327, 335–336.

In dissolution proceedings commenced after 1992, no agreement is enforceable with respect to the parties property rights unless both spouses have executed and served on the opposition the final declaration of disclosure required by Family Code § 2105 unless both parties have signed a voluntary waiver of those requirements. California Family Code § 2106.

That fact alone requires the Court to vacate the agreement. And now we come to the issues of duress, undue influence and gross inadequacy of the consideration received.

Marital settlement agreements, insofar as they are not merged into the judgment, are voidable under general contract principles where a party lacked contractual capacity, or consented due to fraud, duress, undue influence or mistake. In re Marriage of Gonzalez (1976) 57 Cal. App. 3d 736, 743-744.

A marital settlement agreements that is not part of the judgment may be set aside if the court finds it to be inequitable, even in the absence of fraud or compulsion. Also, the courts will carefully scrutinize agreements made by a party without the advice of legal counsel. In re Marriage of Moore (1980) 113 Cal. App.3d 22, 27.

Courts are likely to carefully scrutinize marital settlement agreements affecting substantial rights and obligations when one party acted in pro per. Adams v. Adams (1947) 29 Cal. 2d 621, 628.

An agreement lacks valid consent where one party takes unfair advantage of the other party’s weakness of mind or distress. The exertion of the “undue influence” deprives the other party of the ability to exercise “free will”. California Civil Code § 1575, In re Marriage of Saslow (1985) 40 Cal. App. 3d 848, 864.

By statute, spouses stand in a confidential relationship in transactions between themselves and in that context, are subject to the general rules governing fiduciary relationships. California Family Code §§ 721(b), 1100(e).

Undue influence can be shown by the physical or mental weakness of the party claiming undue influence due to economic distress. In re Marriage of Dawley (1976) 17 Cal.3d 342, 355..

And undue influence can also be shown by gross inadequacy of the consideration received by the party claiming undue influence. In re Marriage of Baltins (1989) 212 Cal. App. 3d 66, 85.

Note that once a marital settlement agreement has been merged into a judgment that it will not be voidable under general contract principles.

It may be possible to vacate the judgment if one party did not fully comply with the California Family Code relating to declarations of disclosure. That issue will be covered in a later blog post.

Those provisions of the marital settlement agreement that are merged in the judgment become an order of the court; the “merged” agreement is superseded by the judgment and ceases to be of independent legal significance. As a result, the agreement can then be enforced only as a judgment (by contempt, execution, etc.) it is no longer enforceable by contract remedies and, unless otherwise provided by the judgment, any warranties are extinguished by the judgment. Marriage of Lynn (2002) 101 CalApp. 4th 120, 130 (citing text).

The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in California divorce and family law matters.

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.