Automatic Temporary Restraining Orders

Family Code 231 – 235  discuss the issue of the ATROs and punishment to be applied upon violation.  These Temporary Orders are located on the Summons and bind the Petitioner upon filing and the Respondent when they are served.  The parties can stipulate to alter these restraining orders.

Family Code 217

The court must receive live testimony, unless the court finds good cause not to and states so on the record.  You must prepare a witness list.  Upon request if the witness list is not served prior to the hearing, the court may grant a continuance.

Specifically, Family Code 217 provides as follows:

(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing.  The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.  If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing.

FAMILY CODE 215

This section allows a party to serve a post-judgment motion for custody and visitation or child support by mail, so long as it is verified by an FL-334 form. If you have a spousal support matter that does not include a child support component, you will have to serve personally.
The code states:
(a) Except as provided in subdivision (b), after entry of a judgment of dissolution of marriage, nullity of marriage, legal separation of the parties, or paternity, or after a permanent order in any other proceeding in which there was at issue the visitation, custody, or support of a child, no modification of the judgment or order, and no subsequent order in the proceedings, is valid unless any prior notice otherwise required to be given to a party to the proceeding is served, in the same manner as the notice is otherwise permitted by law to be served, upon the party.  For the purposes of this section, service upon the attorney of record is not sufficient.
(b) A postjudgment motion to modify a custody, visitation, or child support order may be served on the other party or parties by first-class mail or airmail, postage prepaid, to the persons to be served.  For any party served by mail, the proof of service must include an address verification.

FAMILY CODE 213 – making a request places the matter “at issue”

California Family Code 213 provides as follows:
(a) In a hearing on an order to show cause, or on a modification thereof, or in a hearing on a motion, other than for contempt, the responding party may seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party, by filing a responsive declaration within the time set by statute or rules of court.
(b) This section applies in any of the following proceedings:
(1) A proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.
(2) A proceeding relating to a protective order described in Section 6218.
(3) Any other proceeding in which there is at issue the visitation, custody, or support of a child.

In other words, when a request is made that the court make orders, there is always the risk that the other party can request an order that favors them in the response, which the court is authorized to consider.

Transmutation of property/ Characterizing Marital Property

Family Code Section 852

(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.

(b) A transmutation of real property is not effective as to third parties without notice thereof unless recorded.

(c) This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.

Child Custody – Pendente Lite Orders

When parties divorce, often they do not understand that both parties have equal parental rights to the children produced by the marriage until an order has been issued.  So, when filing for a divorce, often attorneys will quickly file a Request for Order (RFO), asking the Court to make at temporary orders regarding custody and visitation (Pendente Lite Orders).  This avoids a situation where each parent is taking the child from school, daycare, etc….

If the situation presents a danger to the children, a parent can file to request an ex parte order be issued by the Court. Because these orders can involve one parent not being present during that initial hearing, another hearing is set, usually within 21 days.  This gives the parent who was not present during the first hearing time to arrange to be present at the next hearing, and possibly retain an attorney in the meantime.

It is very important to attend that initial hearing, regardless of whether you were properly served, as orders can issue from that hearing that could result in you not seeing your child until the next hearing.

Tax Depreciation on Investment Property Cannot Reduce Child Support

Did you know that the depreciation a party claims on their taxes for a real estate investment is supposed to be added back to the gross income for child support calculation purposes?    It is not considered a business expenditure by the Courts, and therefore cannot be used to reduce the amount of income available for support calculations.  Because support calculations are based on the total amount of income available to each party, depreciation of property would provide one party with more income because the deduction would not be accounted for.   This can be useful information for a party whose ex-spouse has substantial real estate investments.

Major Victory For the Client!!

We managed to save a client from financial ruin recently. His ex wife had an old pendente lite support order from 12 years ago that was obtained during a divorce. The couple reconciled for a little more than a year, then decided to finish the divorce. No new orders were issued when the divorce was finalized. That old order provided that my client to pay $5,000 per month!
My client lost his job during the reconciliation, and never paid this amount. Fast forward to this year, now ex tries to register the order here, stating he owes her arrears of $600,000, plus 10% interest every year since 2000 – around $1,000,000!
We were successful in proving that a reconciliation occurred and provided case law to the court that indicated that the order had been vacated because the parties had reconciled. Her motion was denied, and my client is extremely happy!

Student Loans and Divorce

Family Code 2641 discusses student loans and how they are treated upon divorce.  Family Code Section 2641 states: (a) “Community contributions to education or training” as used in this section means payments made with community or quasi-community property for education or training or for the repayment of a loan incurred for education or training, whether the payments were made while the parties were resident in this state or resident outside this state. (b) Subject to the limitations provided in this section, upon dissolution of marriage or legal separation of the parties: (1) The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party. The amount reimbursed shall be with interest at the legal rate, accruing from the end of the calendar year in which the contributions were made. (2) A loan incurred during marriage for the education or training of a party shall not be included among the liabilities of the community for the purpose of division pursuant to this division but shall be assigned for payment by the party. (c) The reimbursement and assignment required by this section shall be reduced or modified to the extent circumstances render such a disposition unjust, including, but not limited to, any of the following: (1) The community has substantially benefited from the education, training, or loan incurred for the education or training of the party. There is a rebuttable presumption, affecting the burden of proof, that the community has not substantially benefited from community contributions to the education or training made less than 10 years before the commencement of the proceeding, and that the community has substantially benefited from community contributions to the education or training made more than 10 years before the commencement of the proceeding. (2) The education or training received by the party is offset by the education or training received by the other party for which community contributions have been made. (3) The education or training enables the party receiving the education or training to engage in gainful employment that substantially reduces the need of the party for support that would otherwise be required. (d) Reimbursement for community contributions and assignment of loans pursuant to this section is the exclusive remedy of the community or a party for the education or training and any resulting enhancement of the earning capacity of a party. However, nothing in this subdivision limits consideration of the effect of the education, training, or enhancement, or the amount reimbursed pursuant to this section, on the circumstances of the parties for the purpose of an order for support pursuant to Section 4320. (e) This section is subject to an express written agreement of the parties to the contrary.

We Get Things Moving Forward!!

A man came into our office asking for our help with a case that had been lingering on for 4.5 years!  He just wanted it over with, but the continuances and lack of cooperation had thrown his case into a black hole.  Two months after hiring our firm, the case was done – and with the result he wanted!  Our office receives great satisfaction helping to move people on from being stuck in the combative role on to a happier life.

 

Law Office of Rhonda Ellifritz