02.17.11
Posted in Family Law, Litigation, Real Estate Law at 13:30 by Administrator
Q. It is generally understood that spouses have a moral duty to deal fairly with each other, which includes disclosing certain facts to each other as well as conforming one’s conduct to certain standards. However, in today’s society, many people want to decide for themselves what is (and by implication, what is not) encompassed by this moral duty, which invariably leads to different interpretations and different results for different couples, even though the relevant facts are the same. What (uniform) duty does California law impose on spouses?
A. California imposes fiduciary duties – the highest form of duty recognized in the law – on, and between, spouses. The existence of spousal fiduciary duties is the reason that a different legal standard and procedure applies when entering into premarital agreements (entered into before marriage) and marital agreements (entered into during marriage) – both of which may accomplish, among other things, the same objective of “opting out” of California’s community form of marital property laws. See, Technicalities of Marital Agreements, http://earlelaw.com/blog/2011/01/22/technicalities-of-marital-agreements-2011-03/
For a period of time, there was some tension and ambiguity in California law between, on the one hand, the presumption that title to real property correctly reflects ownership of that property and, on the other hand, community property law which provides that, with certain narrow exceptions, all property acquired during marriage – regardless of how title is held – is community property. This issue has been settled, with the marital (community) property presumption prevailing over the title presumption. See, Who Owns that House?: What Spouses Need to Know, http://earlelaw.com/blog/2011/01/07/who-owns-that-house-what-spouses-need-to-know-2011-01/
The recent case In re: Marriage of Fossum, B214824 (Second Appellate District, January 28, 2011), provides further elucidation and guidance on the issue of marital fiduciary duty.
The court’s opinion in Fossum starts out in rather unremarkable fashion. Fossum involved a couple who divorced after a number of years of marriage. Many years prior to separation, one spouse transferred to the other, the former’s community property interest in a parcel of real property. The reason for the transfer was solely to facilitate financing. However, notwithstanding a promise to do so, the latter never reconveyed that community interest back to the former. The Fossum court held that, consistent with previous similar cases, the presumption regarding marital property trumps the title presumption. The court then disregarded the record title of sole ownership and deemed the parcel of real property to be a community asset which was subject to equal division. If this were all the court held, the decision in Fossum would hardly be worth noticing or mentioning.
What makes Fossum interesting, however, is its discussion of an additional issue concerning a credit card cash advance taken less than one year prior to separation and filing for divorce, but not disclosed to the other spouse. The court held that the failure to disclose the cash advance to the other spouse constituted a violation of the fiduciary duty owed by the spouse who obtained the cash advance. To emphasize the seriousness with which the law regards such conduct, the court further held that relevant statutes require trial courts, upon proper request, to make orders requiring spouses who violate their fiduciary duties to pay attorney fees incurred by the other the spouse to obtain legal remedy for such violation.
Because it is not reasonable to expect non-lawyers to be aware of all statutes and court decisions, the Fossum decision can also be understood as a reminder to consult with your attorney as soon as potential legal issues arise, and to disclose all facts during your attorney-client privileged conversations.
*Anthony F. Earle, Esquire is a California attorney and real estate broker who maintains a practice in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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01.22.11
Posted in Family Law, Litigation at 18:41 by Administrator
Q. I am planning to get married soon. My future spouse and I are considering whether to enter into a prenuptial agreement. What should we know about such agreements? Do we need an attorney?
A. In California, martial property is governed by community property laws (as opposed to the common law of marital property). “Community property” is defined as “all property acquired by a married person during marriage while domiciled in California,” Family Code § 760, except for certain limited exceptions.
Participation in the California community property system is voluntary. Married persons who agree to do so, may opt out of the community property system. The reasons a couple might choose to opt out are many and varied, and include routine business purposes such as asset protection. See, http://earlelaw.com/Newsletters-2010/EarleLaw-Newsletter-2010-29.pdf.
The method for opting out of California’s community property system is the marital agreement. Martial agreements may be entered into either before or during marriage, although more stringent procedures apply once the parties to the agreement marry each other.
In addition to opting out of the community property system of marital property, couples also may address the issue of spousal support (alimony) in their marital agreements. Although waivers of spousal support are allowed, a court may refuse to enforce waivers in exceptional circumstances.
Additionally, any provision of a marital agreement which is deemed “promotive of dissolution [divorce]” will not be enforced. Whether a provision (or the entire agreement) is, on the one hand, unenforceable because it is promotive of dissolution or, on the other hand, enforceable because it merely “reorders property rights” often requires a very fact-specific analysis.
The rules relating to marital agreements have changed significantly over the years and often are not intuitive. For example, prior to the year 2001, a premarital agreement was enforceable as long as it was: (1) entered into voluntarily, (2) not unconscionable, and (3) the party against whom enforcement is sought had actual or constructive knowledge of the other party’s assets, unless a valid waiver had been executed.
In the year 2000, the California Supreme Court held that a premarital agreement between major league baseball player Barry Bonds and his wife, whose native language is Swedish, was enforceable, even though the agreement was executed on the eve of the parties’ wedding and despite the fact that Bonds’ fiancé had not been represented by an attorney. The California legislature responded by enacting more stringent procedures which must be followed when parties enter into premarital agreements. One such provision deems an agreement to have not been entered into voluntarily – and thus unenforceable – unless the person against whom enforcement of the agreement is sought had at least seven days to review the agreement before signing it, and was advised to seek the advice of an attorney.
The statutory language of the 2000 amendments is sufficiently vague so as to allow for several different, yet reasonable, interpretations of its requirements. One such ambiguity involves whether the seven day waiting period starts anew each time a revised draft of a proposed agreement is presented by one party to the other. This situation typically arises when, as negotiations progress, changes are made to the original proposed agreement.
In the recent case Cadwell-Faso v. Faso, A126524 (California Court of Appeal, First Appellate District, January 11, 2011), the court avoided the issue by holding that, because the waiting period was designed to protect unrepresented persons, it does not apply where, as in Caldwell v. Faso, each party was represented by counsel during negotiation of the agreement’s terms.
Due to the substantive and procedural complexities of the law, couples who contemplate entering into a marital agreement should each retain separate counsel.
*Anthony F. Earle, Esquire is a California attorney and real estate broker who maintains a practice in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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01.07.11
Posted in Family Law, Litigation, Real Estate Law at 14:53 by Administrator
Q. My spouse purchased a house, taking title as the sole owner. In order to assist my spouse in acquiring title to the house, I signed a quitclaim deed in reliance on my spouse’s oral promise to add my name to the title after the purchase had been completed. My spouse never did add my name to the title and now, we are contemplating divorce. If we do divorce, will the court consider the house to be my spouse’s separate property or will the house be considered marital property?
A. The situation you describe is quite common. Husbands and wives often purchase real property during marriage, while taking title to the acquired property in the name of only one spouse. Typically, this is done to facilitate financing, where the interest rate on the loan obtained to finance the property is lower if only one spouse’s name is on the title.
As a general matter, the law presumes that title to property is held in the manner described in the deed. California Evidence Code § 662. This presumption may be rebutted with clear and convincing evidence, a standard which is higher than the preponderance of the evidence standard which applies to most civil cases, but lower than the beyond a reasonable doubt standard which applies in criminal cases.
Married persons may, of course, purchase property from third parties. Married persons may also enter into transactions between themselves. However, different legal rules apply to these very different types of transactions. When married persons, either individually or jointly, purchase property from third parties, “normal” contract rules apply: transactions are presumed to have been made at “arms length” and no special relationship usually exists between buyer and seller.
In California, spouses owe each other a “fiduciary duty”, California Family Code § 721, which is the highest duty the law can impose on one’s relations with another. This duty owed by each spouse to the other is that of the highest good faith and fair dealing, and requires that neither take any unfair advantage of the other.
To give effect to this fiduciary duty, California law presumes that any interspousal transaction that advantages one spouse over the other was the product of undue influence. Undue influence, in turn, comes in many legal flavors, one of which is the use of confidence or authority to obtain an unfair advantage. California Civil Code § 1575. A spouse who gained an advantage over the other spouse may rebut this presumption by a preponderance of the evidence.
The presumption relating to transactions between spouses, created by Family Code § 721, trumps the presumption relating to title, created by Evidence Code § 662.
Thus, in the situation you describe, a California court should find that the house is community property, subject to equal division. Your spouse, however, is entitled to reimbursement of any of your spouse’s separate property funds which were used, for example, for the down payment which was needed to purchase the house.
The legal issue described above was addressed by the California Court of Appeal in Starr v. Starr, B219539 (Second Appellate District; filed September 30, 2010, published October 15, 2010). A copy of the court’s opinion may be downloaded without charge at: http://earlelaw.com/news_family.html.
*Anthony F. Earle, Esquire is a California attorney and real estate broker who maintains a practice in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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12.11.10
Posted in Criminal Law, Family Law, Litigation at 13:41 by Administrator
Q. What remedies might the law potentially provide to victims of domestic violence?
A. Claims for the redress of domestic violence are, at their core, claims to redress intentional, wrongful conduct.
Acts of domestic violence often constitute violation of the criminal law. When police are asked to assist, an officer may, among other things, obtain an emergency protective (civil restraining) order (EPO) for the victim. EPOs are issued ex parte, that is, without affording due process – the right to a hearing – to the person against whom the order is issued. Accordingly, EPOs are valid only for a short period of time.
If unmarried, the victim can request a permanent restraining order by filing appropriate papers in the family law division of the local Superior Court.
If married, the victim may file for divorce and seek a permanent restraining order as part of the divorce action. Alternatively, if a restraining order, but not a divorce, is desired, the married victim may may request a restraining order using the same procedure as would an unmarried person.
In all cases, the victim may also file a separate lawsuit for civil damages against the alleged abuser, as acts of domestic violence typically constitute civil wrongs such as assault and battery.
The reason two or three separate lawsuits may be needed is because no single division of the Superior Court has the ability to order all relief which may be available. For example, the criminal division can enter a judgment of criminal conviction for the crimes of assault and battery, but may not award money damages (however, a criminal court can issue protective and restitution orders). Similarly, a civil court can award civil damages – damages which include, but are not limited to mere restitution – but may not find a defendant guilty of a criminal offense or dissolve a marriage (divorce).
The family law division may dissolve a marriage, issue protective orders, make child and spousal support orders, and make child custody and visitation orders, but it may not award money damages.
The recent appellate case Boblitt v. Boblitt, C061307 (Third Appellate District, Nov. 30, 2010) addressed the issue of similar, and sometimes overlapping, relief which is available in domestic violence cases in California civil and family law courts.
Steven Boblitt and Linda Boblitt separated after a long marriage. During the ensuing divorce action, Linda sought an award of spousal support (alimony). In ruling on Linda’s request for spousal support, the family court considered evidence of alleged domestic violence, one of many statutory factors courts must consider in such cases. Although Linda received an award of spousal support, the family court did not make any findings regarding Linda’s allegations of domestic violence.
Linda then brought a separate civil lawsuit against Steven, in which she again alleged Steven had committed domestic violence against her. Steven moved to dismiss the civil action, claiming that Linda’s allegations of domestic violence had been fully litigated in the divorce case.
The appellate court disagreed with Steven, noting that the primary right Linda sought to vindicate was different in each case, notwithstanding that allegations of domestic violence were common to both cases. The court said that Linda’s civil action sought to vindicate her right to be free from personal injury, while her marital action sought to vindicate her right to, among other things, spousal support. Because the primary right Linda sought to vindicate was different in each case, Linda was allowed to proceed with both cases.
Given the often complex procedural issues associated with litigating domestic violence claims, it is advisable that plaintiff and defendant each obtain their own attorney.
In restraining order and divorce cases, the court may order the person who committed domestic violence to pay the victim’s attorney fees. In civil lawsuits, the plaintiff may be able to pay attorney fees on a contingency basis, from proceeds ultimately received from the defendant.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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11.11.10
Posted in Bankruptcy, Business Law, Constitutional and Civil Rights Law, Criminal Law, Family Law, Litigation, Real Estate Law, Trusts and Estates at 12:24 by Administrator
For one low, annual fee, the LAW Plan will provide you with the following benefits:
Priority telephone access to a lawyer
Four, 15-minute telephone consultations in the areas of:
Bankruptcy
Business Law
Constitutional & Civil Rights Law
Criminal Law/Defense
Family Law
Real Estate Law
Trust and Estates
Review of basic legal documents during telephone consultations
10 percent discount on legal fees for matters not covered by the LAW Plan
For more information and to subscribe, please visit:
http://earlelaw.com/lawplan.html
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10.23.10
Posted in Family Law, Litigation, Real Estate Law at 09:09 by Administrator
Q. My spouse and I recently divorced. As part of the divorce settlement, I purchased my spouse’s marital (community) property interest in what formerly was our family residence. My former spouse and our children still reside at that residence, as my spouse and I agree it is best for the children to have as little disruption in their lives as possible. My former spouse signed a rental agreement, which requires monthly payments of rent. The amount of rent due each month is more than the amount of my monthly child support obligation. May my former spouse and I simply off-set the monthly payments of rent and child support each owes the other, rather than going through a ritual of exchanging payments each month?
A. Currently, there is no California statute or appellate decision which directly answers your question. However, California law considers the timely and proper payment of child support to be a priority over other financial obligations, including contractual debts such as rent.
If your former spouse ever decides to repudiate an agreement to off-set child support and rent payments, and sues you to collect “unpaid” child support, you will have the burden of proving you made all child support payments as ordered. Since California has no statute of limitations on actions to collect unpaid child support, you could be sued for “unpaid” child support long after the children are grown.
Don’t forget attorney fees. The “American rule” is that each party pays its own attorney fees. One exception to this rule allows a “prevailing party” to recover its attorney fees from the other party, in certain cases. Another exception exists for marital and child support cases, where orders for the payment of attorney fees is based solely on the financial circumstances of parties, without regard to the legal merits of the case.
Let us suppose that you and your former spouse off-set monthly payments of child support and rent that each owes the other. Let us further suppose that you were required to pay child support for 10 years; that 10 years after your child support obligation ended (20 years after the divorce), your former spouse fell on hard economic times and decided to sue you in an effort to collect “unpaid” child support; and that, unlike your spouse, you have done well financially since the divorce.
The worst outcome (for you) will be that the court will order you to pay 10 years’ worth of child support, plus simple interest on the total amount, at a rate of 10 percent per year. Additionally, because you have done well financially since the divorce, while your former spouse has not, the court likely will order to you pay some or all of your former spouse’s attorney fees.
Another possible outcome is that you will “win” your case at trial, with the court deciding that rent your former spouse owed you should be credited against your child support obligation. However, you may still be ordered to pay some or all of your former spouse’s attorney fees. Furthermore, since no statute or appellate court decision directly addresses this legal issue, your former spouse might ask an appellate court to review the trial court’s decision, and to order you to pay your former spouse’s attorney fees on appeal, too.
Thus, the potential difficulties which might arise many years from now as a result of an arrangement to off-set payments far outweighs the relatively minor inconvenience of exchanging actual payments every month.
On a final note, be sure to keep a written record – cancelled checks or their equivalent – of every child support payment you make. As your support obligation for each child ends, consider asking your lawyer to obtain a written court order declaring that you have satisfied your support obligation for that child. The existence of such an order will bar any future action against you for “unpaid” child support.
*Anthony F. Earle, Esquire is a California attorney who practices in the Silicon Valley area of northern California. He can be reached at: anthony.earle@earlelaw.com. This article is intended for information and educational purposes only, and is not intended to constitute legal advice.
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09.18.10
Posted in Family Law, Litigation at 08:09 by Administrator
Q. I am having a problem with a person who has been engaging in inappropriate conduct. What must I do to get a restraining order to protect me from this person?
A. “Restraining orders” are a subset of court orders known as “injunctions.” Injunctions enjoin, that is prohibit, a person(s) from engaging in specified activities or conduct. There are three types of injunctions, as defined by the point in time when an injunction issues: (1) emergency/temporary restraining orders (also known as “TROs”), (2) preliminary injunctions, and (3) permanent injunctions. TROs and preliminary injunctions are issued prior to a trial on the merits, that is, before the person(s) against whom the injunction is sought has had an opportunity to fully defend against the plaintiff’s lawsuit. Permanent injunctions issue after a trial.
To obtain an injunction prior to trial, a plaintiff generally must prove: (1) that the plaintiff is likely to succeed at trial on the merits; (2) irreparable harm; and (3) lack of an adequate remedy at law.
To prove likelihood of success on the merits, a plaintiff must present evidence sufficient to convince the court that the plaintiff is likely to win at trial. The type and nature of such evidence will vary, depending on the nature and facts of the case. More on this shortly.
To prove irreparable harm, a plaintiff must present evidence sufficient to convince the court that, if an injunction does not issue, there will be no order the court can make in the future which will adequately redress harm suffered by the plaintiff. Irreparable harm includes physical injury.
Lack of an adequate remedy at law is closely related to, but different than, irreparable harm. In times past, courts were classified either as courts of law or courts of equity. Courts of law had jurisdiction over cases where, generally, a monetary award would be adequate to remedy any legal wrong a plaintiff had suffered. Courts of equity had jurisdiction over other cases. Injunctive relief – an equitable remedy – was available only in courts of equity. Today, American courts are not divided between courts of law and courts of equity. However, the distinction between legal and equitable causes of action still remains for certain purposes, the most notably of which is that jury trials are unavailable in actions deemed to be equitable in nature, such as those which seek restraining orders.
Now, back to the merits of your case. Generally speaking, orders enjoining activity unrelated to the conduct of business fall into two categories: civil harassment and domestic violence.
To obtain a civil harassment protective order, a plaintiff must prove that the defendant engaged in at least one form of prohibited conduct and that there is a likelihood that, absent a restraining order, that conduct is likely to continue or recur. To obtain a domestic violence restraining order, the plaintiff must also prove that the plaintiff and defendant are married to each other or that the plaintiff and defendant have, or had, a “dating relationship” (including cohabitation) with each other.
Being on the receiving end of a restraining order is a serious matter. Restraining orders often convert conduct which otherwise would be legal, into illegal conduct. For example, restraining orders often contain “stay away” orders which prohibit a defendant from coming within a certain distance of the plaintiff.
More importantly, being subject to a restraining order may negatively impact a defendant’s ability to obtain employment or to remain employed. A defendant who is subject to a restraining order may be unable to obtain – or may lose – a government security clearance. Persons such as law enforcement officers, and others whose employment requires the ability to lawfully possess firearms, may no longer be able to perform their job duties.
Finally, any violation of a restraining order may subject the defendant to criminal prosecution or penalties.
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06.25.10
Posted in Family Law, Litigation at 09:48 by Administrator
Q. I am a California resident who will soon be getting married. I recently received a substantial inheritance and am considering whether to ask my future spouse to sign a prenuptial agreement. What should I know about prenuptial agreements? Will a prenuptial agreement actually hold up in court, perhaps many years from now?
A. Premarital agreements, also known as “antenuptial” or “prenuptial” agreements, are agreements executed between prospective spouses in contemplation of marriage, which become effective upon marriage.
California is a “community property” state. Subject to certain exceptions, community property is defined as “all property acquired by a married person during marriage while domiciled in California.” Thus, any inheritance (or other property) you receive prior to marriage is your separate property.
Property acquired during marriage by “gift, bequest, devise, or descent” is one of several exceptions to the general definition of community property. Thus, your inheritance, even if it had been received during marriage, would be your separate property.
A writing is required to transmute – that is, change the characterization of – property from separate to community or from community to separate. Thus, a premarital agreement is not needed to prevent your pre-marriage inheritance from being transmuted to community property.
Life, however, is seldom that simple. Although the separate property inheritance you received before marriage will not become community property unless you sign a transmutation agreement which changes its character from separate property to community property, other events may result in the creation of certain non-community property rights to which your spouse will be entitled.
Suppose, for example, the pre-marriage inheritance to which you refer is in the form of a residence, for example the home your parents owned and in which you grew up. Suppose further that there is a loan which is secured by the residence. Such a loan might be one you obtained after inheriting the residence, but before marriage, or one which was obtained during marriage. Absent a premarital agreement, each of these (as well as numerous other) scenarios will result in the creation of certain property rights to which your future spouse will be entitled.
Whether a divorce court will enforce a premarital agreement, perhaps many years from now, will depend on several factors, not the least of which is whether the premarital agreement was created in accordance with all then-existing laws.
Regarding possible future changes in the law, California’s Family Code provides that all statutory amendments are to apply retroactively, thus suggesting that, at a minimum, the continuing validity of premarital agreements is questionable. The argument against amendments which retroactively impair vested (e.g., contract) property rights is that such amendments violate the Due Process clause of the Constitution and, thus, are unenforceable. In any event, the apparent tension between California’s Family Code and the constitutional principle of due process all but ensure future litigation if California attempts to retroactively amend its premarital agreements law. And even if California premarital agreement law is not amended, your future spouse will always be able to challenge whether the agreement is valid under the law that existed when the agreement was signed.
The bottom line: If your prospective future spouse agrees to, and does, sign a premarital agreement that complies with current law, and if the marriage fails at some time in the future, you should expect, at a minimum, that your spouse will challenge the validity of the premarital agreement. From a purely economic perspective, the question is whether (and by what margin) the cost of obtaining, and potentially judicially defending, a premarital agreement is more or less than the present and anticipated future value of the property to be protected. In any event, you should consult with an attorney well in advance of the date on which you plan to marry.
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01.29.10
Posted in Family Law at 15:47 by Administrator
Earle Law Offices believes strongly in the sanctity of marriage. However, because we also understand that divorce is sometimes the best of available options, Earle Law Offices provides economical attorney assistance with the preparation of legal documents required by California law and courts in uncontested dissolution of marriage (divorce) cases.
Clients who use our Attorney-Assisted, California Uncontested Divorce Service (CA-UDS) are self-represented, and are able to complete the divorce process without ever having to visit a courtroom or our law office. To use the CA-UDS, clients simply provide Earle Law Offices with necessary supporting documents and data. Earle Law Offices then prepares all required court papers, which are reviewed by an attorney for technical sufficiency. Completed documents are then forwarded to the client, who files or submits the documents to the court.
In order to take advantage of the CA-UDS, clients must possess the ability to communicate with our law office by telephone and by electronic mail, and must also have the ability to view and print documents which have been prepared in the Adobe portable document format (pdf).
Prospective cases, to be suitable for the CA-UDS, must meet two requirements: (1) At least one spouse must be a California resident (any California county) and (2) both spouses must be in agreement on all issues which are legally relevant to the divorce case. As described in the following table, two CA-UDS plans are available: Plan One: Services are provided to only one spouse. Plan Two: Services are provided jointly to both spouses.
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Services
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Plan One
$2,699*1
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Plan Two
$3,399*2
|
|
Attorney-Client Privileged Communications
|
X
|
|
|
Attorney representation available if dispute arises (selected San Francisco Bay Area counties only; additional fees apply)
|
X
|
|
|
One hour initial telephone consultation with attorney
|
X
|
X
|
|
Binding arbitration services available for issues which unexpectedly become contested/disputed (additional fees apply)
|
|
X
|
* Court filing fees and other third party fees not included.
1. Fees for Plan One UDS cases include a 5 percent discount for payment made by cash or check. The standard (non-discounted) fee of $2,841.05 applies where payment is made by credit card or debit card.
2. Fees for Plan Two UDS cases include a 5 percent discount for payment made by cash or check. The standard (non-discounted) fee of $3,577.89 applies where payment is made by credit card or debit card.
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Forms Prepared
|
|
|
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Petition for Dissolution of Marriage
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X
|
X
|
|
Summons – Family Law
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X
|
X
|
|
Proof of Service of Summons/Notice of Acknowledgment and Receipt
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X
|
X
|
|
Declaration of Preliminary Disclosure
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Petitioner
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Petitioner
Respondent
|
|
Income and Expense Declaration
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Petitioner
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Petitioner
Respondent
|
|
Schedule of Assets and Debts
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Petitioner
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Petitioner
Respondent
|
|
Declaration re: Service of Declaration of Disclosure and Income and Expense Declaration
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Petitioner
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Petitioner
Respondent
|
|
Marital Settlement Agreement
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X
|
X
|
|
Judgment of Dissolution of Marriage
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X
|
X
|
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Notice of Entry of Judgment
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X
|
X
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In Plan Two cases which unexpectedly become contested (disputed) as to one or more issues, Earle Law Offices offers clients binding arbitration services – for an additional fee – the focus of which is to resolve contested issues fairly, expeditiously, and at substantially less expense than otherwise would likely be incurred through traditional litigation. Arbitration services are not offered in Plan One cases for reasons relating to client confidentiality and conflict-of-interest.
Traditional, full-service legal representation is available for most cases which are not suitable for the CA-UDS, provided venue will be, or is, in a court located in the San Francisco Bay Area.
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11.22.09
Posted in Family Law, Litigation at 17:34 by Administrator
There is no statute of limitations for the enforcement of California child support orders. Such orders are “per se enforceable until paid in full, and . . . not retroactively modifiable either as to accrued arrearages or any interest due thereon.” In re: Marriage of Hamer, 810 C.A.4th 712, 718, superceded by statute on other grounds. As a result, claims that court-ordered child support was never paid often arise many years after – sometimes even after the child for whom support was ordered has reached age 18 – the payments came due. Not only is there no statute of limitations for enforcing child support orders, the payor of child support bears the burden of proving payments were made, in the event a payee later claims support payments were not made.
Claims of unpaid past child support often total tens of thousands, if not $100,000 or more, plus interest.
Willful failure to pay court-ordered child support can also constitute contempt of court. Contempt is punishable by, among other things, a period of confinement in a local jail. Contempt is not always a preferred remedy, however, because often the payee may not want to impair the payor’s ability to earn funds which will be used to make support payments. Unlike child support orders, which are “per se enforceable until paid in full”, there is a statute of limitations which applies to contempt actions. Thus, even though a contempt action may be time-barred, it may still be possible to bring an action to collect unpaid child support.
There is an equitable (as opposed to statutory) limitation – known as the doctrine of latches – which may, in certain cases, limit the “per se enforceable until paid in full” character of child support orders. For a latches defense to succeed, the payor must prove that the payee unreasonably delayed in bringing an action to enforce a child support order and that the payor was prejudiced by that delay. California appellate courts have held that delay alone – even many years of delay – without a showing of prejudice, is insufficient for a latches defense to succeed.
The defense of latches, although still available in limited class of cases, was significantly restricted by a 2003 amendment to California law which provides that the defense is available only in cases in which the Department of Child Support Services (DCSS) is responsible for the enforcement of child support orders. DCSS is not responsible for the enforcement of most child support orders; consequently, a latches defense will not be available in most cases. If you have been ordered to pay child support:
1. Keep a record of each child support payment. Detailed and accurate records which prove payments were made and received will be essential to the successful defense of an action to collect past child support. Such actions often are brought many years after the due date of the payment (10 years to 20 years is not unheard of), sometimes even after the child has turned 18. Thus, the importance of keeping accurate records cannot be understated: Imagine looking forward to retirement in the near future, even after the recent decline in the stock market and retirement account holdings in publically traded stocks, only to be served with an action for past-due child support, totaling tens of thousands if not $100,000 or more, in child support.
2. Make child support payments by wage assignment. Child support payees are entitled, by law, to a wage assignment order, which is an order that requires the payor’s employer to deduct courtordered child support from the payor’s paycheck and forward payment directly to the payee.
3. Do not “off-set” (reduce) child support payments against debts owed by the child support payee. It is not uncommon for the person to whom child support is owed to also owe the child support payor money for any number of debts or other obligations. For example, a child support payee may owe the support payor money related to a property division settlement in a divorce case, or a support payee may owe the support payor rent for a residence the payee rents from the payor. The fact that a support payee owes the support payor a debt is not a defense to non-payment of child support. Accordingly, support payors should resist the temptation to reduce child support payments to the child support payee by the amount the support payee owes the support payor, or by any amount.
4. Child support payors should consider asking the DCSS to assume responsibility for collecting child support payments. Typically, it is the support payee who seeks the assistance of DCSS. However, there is no logical reason why payors should not also take advantage of this government service which is being funded by taxpayers.
5. Immediately upon termination of a child support obligation, promptly obtain a judicial determination that all child support payments have been made. Once a child support obligation terminates, the payor of support usually is content simply to discontinue making support payments. This course of action leaves the door open for the payee to, many years down the road, attempt collection of accrued, but allegedly unpaid, support payments. To close the door to this possibility, hire an attorney to obtain a judicial determination that no support arrears are owed; the cost of doing so will be substantially less than the cost of proving, perhaps years later, that all support payments have been made.
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