- In This Issue -


Volume 4, Number 1 • February 2013 • Archive of Past Issues
Family Law Home Page

Message from the Editor

In this edition of E-News, I am delighted to bring you four pieces that highlight not only the wide scope of family law, but also the compassion and moral fortitude for which we should all strive. Our Chair, Lynette Berg Robe, acknowledges many of our accomplishments, while calling for greater participation from our bar. Our Family Law Presiding Judge, Scott M. Gordon, discusses the current budget issue facing the Los Angeles Superior Court; Igor Zey of White, Zuckerman, Warsavsky, Luna & Hunt, LLP, brings to the forefront the issue of disability insurance being an important part of a divorce settlement; while Peter S. Muffoletto of Muffoletto & Company writes about the careful consideration needed by divorcing couples as to their elected 'status' when filing taxes. Our own Peter M. Walzer speaks passionately about the proper legal and moral precautions to take when drafting and reviewing prenuptial agreements. As always, please enjoy the announcements, events, case summaries, and summaries of recent legislation.

These articles are representative of the original content we endeavor to provide our readers and we encourage you to submit or recommend pieces you believe would be of interest to the family law bar for future editions. As always, do not hesitate to contact me with your comments or suggestions.

Raymond R. Goldstein
Editor, E-News
Goldstein@EnforceSupport.com



Message from the Chair

I'm sitting writing this over Martin Luther King weekend amid the presidential inauguration events. These events have set me musing about our country, our current court crisis in California, and our many self-represented litigants.

Marian Wright Edelman, currently the director of the Children's Defense League and an early supporter of Dr. King, wrote a piece for the holiday in The Huffington Post. In it, she pointed out that in 1968 when Dr. King was assassinated, the United States had 25.4 million poor people in America, 11 million of those children. Today, as of the most recent statistics, we have 46.2 million people classified as "poor", with 16.1 million of those children. In 1968, our population was about 201 million people. Today, as of the 2011 census, we have 311 million. By comparison, the overall percentage of poor in 1968 was roughly 13%; today it is 15% of the overall population. Yet, today, in spite of the poor economy since 2008, the economy of the United States is still the world's largest, with its nominal Gross Domestic Product estimated to be $15.8 trillion in 2012. In 1968, the U.S. GDP was $4.13 trillion. So, in the 45 years since 1968, our GDP has more than tripled, actually close to being four times what it was in 1968. Yet the percentage of our poor population has not diminished, and, in fact, has grown by two percentage points. In spite of the setbacks of recent years, we are still the richest nation in the world, but, somehow with all our inventiveness and pragmatic abilities, we have not been able to find a remedy for the scourge of poverty.

As all readers of this column are all well-aware, we are confronting in California drastic budget cuts to our courts while also confronting the continuing problem of 70% self-represented litigants in Family law. I am no statistician, but I have to believe there is a relationship between the 15% of the general population classified as being poor and our great numbers of self-represented litigants in family law. We have to assume that the 70% self-represented are either too poor to afford an attorney, or they have decided that they would rather take their chances with the system than pay an attorney hundreds of dollars an hour. We who hawk our wares in the legal marketplace must face the reality that of the universe of potential family law clients, 70% are walking away, telling us either that they cannot afford our services, or that they do not value what we have to offer enough to pay what we are asking—that they would rather fend for themselves and spend their money on something else. The wealthy, of course, will always be able to afford attorneys and can also opt out of the courthouse altogether with private judging.

These factors tie in too with our court crisis, for the drastic reduction in funding also shows the lack of respect and lack of appreciation the public has for our justice system by not wanting to fund it. There are very few attorneys now in our legislature. So, when the budget was being set and court-funding so drastically reduced, there was no "hue and cry" from the public, no outrage at the closure of courtrooms. Now, we have 10 full courthouses in Los Angeles County being closed. Maybe the outrage will come later, when citizens realize how far they have to travel for a small claims case, a probate case, an unlawful detainer case. In family law, thanks to the creative planning of our supervising family law judge, Judge Scott Gordon, and the recognition of the importance of the family law courts to the lives of the litigants, our presiding judges, formerly Lee Smalley Edmon, and now, Judge David S. Wesley, family law has lost only 3 courtrooms, and we still have our court reporters. There are still more cuts to come, however, in the coming months, so we may face additional closures of courtrooms. Certainly, the closure of the ADR office at Stanley Mosk will affect family law cases.

The Founding Fathers of our nation were well aware of the importance of the courts in a democratic society. In establishing the Constitution, the preamble clearly puts "Justice" in the forefront. Knowing that unjust societies ultimately fail, the Founders set forth the duties they wanted our new government to provide:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

Justice was first on their list. Yet, here in California and Los Angeles County today, the People seem to have forgotten the importance of Justice. The huge changes in our courts will be felt soon, and there are going to be tremendous problems with access to justice.

Because it affects our careers and livelihoods, as well as our rights as citizens, attorneys have to be in the forefront of solving these problems. We are intelligent, well-educated and powerful. If we can't help, who else is going to?

Family law attorneys as a bar are incredibly generous with both time and money. We volunteer as settlement officers and mediators; we take pro bono cases from legal aid organizations such as the Harriett Buhai Center for Family Law; we serve on multitudinous bar committees, we improve the practice of family law through continuing education, and directly assist the ever-growing number of self-represented parties.

This year, the LACBA Family Law Section has established two new committees. One is the "Veterans and Active Military Pro Bono Project, " being chaired by Adam King. We have established a list of family law attorneys who would be willing to accept a case involving an active military parent or a returning veteran in a child custody or child support case. We also have established Trial Readiness Clinics twice a month for self-represented litigants who have been given a trial date. These clinics are being held at the Los Angeles County Law Library. We have an enthusiastic group of attorneys who are conducting the clinics, and I want to give them recognition by listing their names here:

Nancy Braden-Parker • Bob Cohen • Christiaan Gordon
• Merylyn Hernandez • Ann Kiley • Ariel Leichtner-Maroko
• Adam Lipsic • Alexandra Lavinsky • Fernando Luna
• Melissa McNair • Phillip Monahan • Tigran Palyan
• Parima Pandkhou • Michelle Short-Nagel • Christine Twining

The clinics are still a work in progress. Our aim is to give self-represented litigants an overview of trial procedures, going over the documents that are required, stressing the importance of having their documents completed, and encouraging them to get to the Self-Help Center to get their documents prepared. Eventually, the plan is to have the clinics available in Spanish as well.

Without diminishing the value of these contributions, many of which are literally life-altering, all of these well-intended efforts end up being just a drop in the proverbial bucket, considering the thousands of self-represented family law litigants in Los Angeles County.

Mike Feuer, who was just termed out of his Assembly seat from the 42nd District, was able to get the "Sergeant Shriver Civil Counsel Act" passed (AB 590) in 2011. It was also called the "Civil Gideon Act," arguing for a right to counsel in certain civil matters that affect basic human needs, just as Gideon v. Wainwright (1963) 372 U.S.335 established the right to counsel in criminal cases for defendants who are unable to afford to pay their own attorneys. AB 590 established seven pilot projects in California, funded by court fees, in different parts of the state, in which legal service providers in the community will assist low-income clients in child custody cases, conservatorship, guardianship, and unlawful detainer cases.

Of course, a recent case, Marriage of Campi (2013), reminds us that there is no due process right to counsel in civil cases, outside of dependency cases, or unless a liberty interest of a party is at stake. Likewise, there is no right to "effective assistance" of counsel either. At this juncture, with the courts being held in such low-esteem by our citizens, it is unlikely that either the Legislature or the public will pass a broader civil Gideon act wherein all family law litigants will be entitled to an attorney if they can't afford one.

Yet, as I pointed out before, all of these combined efforts address only a small percentage of the self-represented. Somehow, we as a bar must do more. If the courts continue to be underfunded, and the large number of self-represented litigants continues to grow, there are likely to be changes that none of us will like.

If we who are privileged to have had the opportunity to become attorneys cannot solve these problems, who else is going to do it? Going back to Dr. King, one of his themes was that the "time is always ripe to do right," particularly if the well-being of others is at stake. There are no easy answers. I can only call on each of you to find the will to do something…to do what you can. Doing nothing, looking the other way and hoping someone else will do it—the ostrich approach—rarely produces the result you would like.

Best regards,

Lynette Berg Robe
Chair, Family Law Section

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Upcoming Events

It's All About the Evidence!
This full day program will focus on strategies and techniques for introducing documentary evidence and testimony, with a special emphasis on evidentiary issues common in family law. This event is scheduled to take place on Saturday, March 2, 2013 from 8:30AM – 4:30PM at the Sheraton Universal Hotel in Universal City. Please click here for additional information or to register for this event.

Domestic Violence Project Volunteer Training
The LACBA Domestic Violence Project Training Volunteer Seminar will take place on Wednesday, March 6, 2013 and will be held at the LACBA Conference Center. Volunteers will provide a valuable service to a vulnerable population and gain expertise in the area of family law. Please click here for additional information or to register for this event.

What Every Family Law Attorney Should Know About Retirement Benefits
Linda Morra and Louise Nixon will be the speakers for this four-hour interactive program. Attendees will be provided with the tools and resources to identify complex issues involving Qualified Domestic Relations Orders (QDRO's) and much more. This event will take place on Friday, March 15, 2013 from 12:00PM – 4:30PM at the Harriett Buhai Center for Family Law. Ticket prices are as follows:
• $125 General Registration
• $50 Non-profit legal aid providers, self-help courts and government agencies personnel (Limit 4 people per agency)
• $35 Active Harriett Buhai Center volunteers (50 hrs. during the last 12 months) For Registration: Contact cle@hbcfl.org or (213) 388-7505 ext. 320. Pre-payment required. Registration deadline: March 13, 2013



Choosing the Right Horse in Difficult Times

Judge Scott M. Gordon

Around the turn of the 17th century, Thomas Hobson ran a thriving livery stable in Cambridge, England.  His business catered to Cambridge University students.  He began to notice that his customers would request certain horses over and over again.  Fearing that those favorites would be overworked, he devised a new system for choosing a horse for rental.  Despite a stable full of horses, the customer was given the choice of the horse in the stall nearest the door or none at all.  Hobson’s business practice was soon picked up in the literature of the day.  In 1660 Samuel Fisher wrote in The Rustick's Alarm to the Rabbies, "If in this Case there be no other (as the Proverb is) then Hobson's choice ... which is, chuse whether you will have this or none.

The primary issue confronting the entire Los Angeles Superior Court and the Family Law Division of the Court remains the implementation of the budget.  And at this point, there is truly only one choice to be made.  Since 2008, the Trial Courts of California have experienced an almost 24% reduction in budget.  Since 2008, many different strategies have been developed and deployed to deal with the new fiscal reality.  As with the entire Court, the goal of the Family Law Division has been to maximize service to litigants with the increasingly limited resources.

Currently, the Los Angeles Superior Court is faced with a budget deficit for the 2013-2014 Fiscal Year.  Hard choices will have to be made to create a Court that survives within the new budget.  More than 25 million people pass though the doors of the Los Angeles Superior Court each year.  The changes that will be made have been crafted with those people in mind—the litigants, witnesses and lawyers who use and work in the courts each and every day.

The planning that has gone into the current Budget Implementation Plan has been exhaustive and comprehensive.  But, the choices remain difficult.  Over the next several months, there will be historic levels of change occurring within the court. Ten courthouses will be closed.  In 2008, Los Angeles Superior Court operated 58 courthouses.  Under the current budget implementation plan, that number will be reduced to 36 courthouses.  Cases will be reorganized by litigation type. 

Small Claims, Unlawful Detainers, Limited Civil and Civil Collection cases will be hubbed into a limited number of courts located throughout the county.  All areas of litigation will see an increase in workload.  Although the Family Law Division will not see a reduction in the number of operating courtrooms, the Division will see an approximate 15% increase in workload with the assumption of Civil Harassment Restraining Orders.

The Bar has been a great partner in finding new and better ways to adjudicated the important cases families bring to our courts every day.  I look forward to continued partnership and innovation.

Pythagoras said; “choices are the hinges of destiny.”  It is hoped that the hard choices currently facing the court will open doors yielding solutions to the challenging issues we face.

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Prenup Practice Tips

Peter M. Walzer

As lawyers drafting and reviewing these agreements, we are under pressure from the client to finish the agreement before the wedding date to protect the client in case of divorce. Last-minute changes are to be expected, but cause the most worry for us because we don't have time to completely think through the issue or draft exquisite language. These agreements will be carefully scrutinized in any litigation – sometimes years after the agreement was drafted. The client will blame us if the agreement does not hold up. Here are some suggestions that could help you to draft better agreements:

Allow Adequate Time to Handle These Matters. I will not take a premarital matter unless I have at least two months before the wedding to prepare and negotiate the agreement. Two months is the bare minimum. Often it takes much longer. As the wedding date approaches, the pressure on the parties intensifies to a point where the relationship can be damaged. Claims of duress will be made if the agreement is signed to close to the wedding date. Like any other resolution, we will be tempted to cut corners, break the rules, or make an exception. Don't with this one.

Don't Try to Hit the Home Run; Play Fair. I will not represent a party in an agreement that is patently unreasonable. Some clients want one-sided agreements, which give them all of the rights and leave nothing for the other party. Even though the disadvantaged party may be willing to sign such an agreement, these deals are ticking time bombs waiting to go off. When you have to write a CYA letter to your client that is as long as the agreement itself – that should be a warning sign. I have reviewed agreements where a party has effectively been sold into a life of slavery. If she ever leaves the marriage she will be penniless. We should not do that to anyone, certainly if that person is our own client. People have a right to be stupid, but why make yourself part of that stupidity. Often it does not pay to represent the dependent spouse because often you don't have leverage. Weigh whether leaving someone destitute is worth the fee you are receiving. Granted there is the outside chance the agreement will be set aside because it is unfair, but you will be the first in the line of fire no matter which side you represented in that transaction. Life is too short to take that kind of risk.

Keep the Agreement Simple and Easy to Follow. I will not prepare an agreement that I do not understand. These agreements are as complicated as the lives of the parties they govern, so it is not easy to make a simple agreement. Still, there are some terms to avoid if possible. Payment plans, where money is paid to a spouse over the length of the marriage in consideration for his or her waiver of rights in the agreement, make sense at the time the agreement is drafted, but their implementation can be a problematic. If the payments are not made, non-performance of the agreement will be a defense against enforcement. These agreements may have to be complied with over a twenty or thirty year period. It is unlikely that a client will be that meticulous to comply with a recurring payment requirement for that long.

Percentages and formulas may be used to calculate alimony or contributions to joint accounts during marriage when one spouse's income fluctuates, but they tend to be complex in practice and invite litigation. Here is a formula from an actual agreement:

The monthly amount of spousal support payable to the recipient shall not exceed, on an annual basis five percent (20 %) [sic] of the payor's Gross Cash Flow for the prior calendar year. In the event the monthly amount of spousal support payable as of January 1st of any year multiplied by twelve (12) would exceed the applicable percentage of the payor's Gross Cash Flow for the prior calendar year, the monthly amount shall automatically be reduced as of January 1st to an amount which, when multiplied by twelve (12), equals the applicable percentage of the payor's Gross Cash Flow for the prior calendar year.

What? This paragraph meanders on for another page of turgid quasi-legalese. I am sure the drafter felt like he was taking into account every eventuality, but unfortunately this kind of formula will require forensic accounts and probably a judicial officer to determine how much alimony is due for each year. Not to mention that the drafter made a critical typo and he never defined the term "Gross Cash Flow".

Be Prepared for Death. I will remember that I am a family lawyer and be careful when drafting "marital waivers" or "probate waivers". Most of us have never probated an estate or drafted an estate plan. We are vaguely aware of the tax consequences at death and we probably know less about how to plan around them. The basic waiver states that if a party dies intestate, that the other party gets nothing, cannot remain in the family home, and gets no support from the estate. Often the other party wants to negotiate these rights. Acknowledge your limitations and bring in expert help.

Read and Improve the Boilerplate. I will read the boilerplate each time, and not assume that it is all correct. We often gloss over the standard clauses in our form agreements assuming that at some time in the distant past a lawyer with oodles of time labored by candlelight to carefully craft clauses that were solid and unimpeachable. This is not accurate. Many of these clauses should be tweaked to keep up with changes in the law and errors that creep in over time. An example of this type of "standard" is the choice of law clause. I was engaged as an expert in a matter involving an agreement drafted in California that was being enforced in an equitable division jurisdiction. The issue turned on the meaning of one clause, "This agreement shall be interpreted and enforced in accordance with the laws of the State of California, regardless of any property subject hereto and regardless of the then current domicile of the parties." This clause is short, but comprehensive. But as with everything in this world, it can be improved. The clause could be clarified by stating that the agreement should be interpreted and enforced according to the laws in effect at the time the agreement was entered into. It could also be enhanced by beefing up the phrase "the laws of the State of California" to add, ". . . including, but not limited to the California Family Code, and the community property laws of California." And if you are drafting a choice of law clause, perhaps you should consider a choice of forum clause such as, "The parties agree that they will retain a retired California judicial officer with significant family experience to hear and decide any issues arising out of the interpretation and enforcement of this agreement." Choice of forum clauses such as this one limit the options of the parties and the client must make the decision as to whether they are willing to take the risks of limiting their option to litigate in a court of law.

Reversal of Fortune. I will not assume that the financial circumstances or power will remain the same during the marriage, no matter how much the client insists that he will never go broke. A man in his seventies was brought into our office by his adult daughter for a divorce. He was suffering from minor dementia. His daughter explained that when he married 20 years ago he had insisted that his fiancé sign a prenup. The prenup stated that each party's earnings were their separate property and all property acquired with those earnings were separate. He did not anticipate the reversal of fortune. Not so long into the marriage he had a stroke and never worked again. Sadly, even though this was a long marriage, he was going to walk away with almost nothing (something that his daughter was not too happy about). The lesson here is that the agreement the client wanted turned out to be very bad for him. Advise your clients that fortunes change and that a one-sided agreement could be devastating.

Conclusion. Take these suggestions as a prod to think a little deeper about the intended and unintended consequences of the agreement. Human behavior is unpredictable, and to the degree that prenups try to control it or predict it, they are risky. As Yogi Berra said, "You've got to be very careful if you don't know where you are going, because you might not get there."

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Filing Under a Court Decree

Peter S. Muffoletto, C.P.A.

The question that commonly comes up in divorce matters is what filing status a couple should consider in filing their tax returns during the process of divorce. Generally this answer is going to be best determined by a number of factors but the overriding issue of course is what the Internal Revenue Service allows, and this can get rather technical depending upon the circumstances.

Generally what a couple should avoid is letting the government win in terms of taxes when they are at odd ends with each other. Unless there are criminal or tax evasion issues, or a situation where one spouse continues to be liable for the other when there are reasons to avoid doing so the tax assessed will be lower if the couple files what is technically termed Married Filing Jointly (MFJ). It must be remembered that when filing MFJ each spouse assumes complete liability for the tax assessed for that return. Only if each spouse files Married Filing Separately (MFS) does each spouse separate their liability from the other.

Married Filing Jointly is an election by both spouses by filing together, there is no requirement to do so, but there is a requirement for each spouse to file their own tax return each year whether together or separately if there is a requirement to file.

One of the most misunderstood provisions in the tax code is the MFS process, especially in a community property state such as California.

Should one or both spouses elect to file separately during any year that they cohabitated they must allocate half of the total earnings of both spouses to each tax return no matter who earned the income, and the same relates to the deductible expenses and deductions unless there was a prenuptial or post nuptial agreement, or agreed upon separate property where earnings and deductions inured. In some marriages there are situations where one spouse may have owned a business, career, or income earning asset that is covered in a prenuptial agreement which has not subsequently been commingled where those earnings are reported separately, and will continue to be reported as such during the divorce process period. Lacking such, both parties if they lived together during the year must allocate the appropriate earnings and deductions to each tax return no matter who earned or incurred the expenses. Many accountants make the mistake of filing returns that reflect only the earnings and deductions of the separated spouse not reflecting the allocations of earnings and deductions as required in a community property state. The allocations generally are based upon the time that the couple cohabitated during the year. The resulting tax generally will be higher than if the couple filed their returns together electing MFJ status, therefore these approaches should be analyzed very carefully, and to the extent there is a benefit to the couple if they choose to file together the potential savings can and should be considered in the marriage settlement agreement or during the period that the divorce process is still ongoing rather than the government being the winner.

The complications arise in divorce matters that continue that are not readily resolved, and span many years. In those situations if the spouses have been separated for over a year and have maintained separate households both parties can continue to elect to file together, computing the benefit to each party, and those benefits can be considered in the overall settlement process, or in part. If the parties choose to file separately, and it only takes one spouse to make that decision which is binding on the other, then earnings and deductions that are earned or paid by any given spouse, only then can those earnings and deductions be claimed separately.

In the instance that a final court order is issued establishing separate status, or legal separation, both parties are required to file separately making the appropriate allocations for the periods before and after the court order for the year as MFJ is no longer available as of the date of the order. Depending upon whether there are children, and fulfilling the criteria for maintaining a home and more than 50% of the support, Head of Household might be an option as to filing status, otherwise, the choices are Married Filing Separately, or if the parties lived separately all year long, then Single maybe the appropriate filing status. How one spouse files after that point does not dictate how the other files.

California tax law conforms with the federal rules with the exception of separate allocations that there must be the intention not to resume the marriage where under California law both parties must until a separation order is issued must allocate earnings equitably between the spouses. Under Internal Revenue Code Section (IRC) 66 which provides that while a person is living separately from his or her spouse earned income and accumulations while living apart for the entire year and files a separate return shall treat his or her earned income as his or her separate income. California law contains no such provision. In some instances where the intention is not determinable California Law will apply, but as a practical approach this maybe a mute issue unless the parties reconcile.

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Disability Insurance as Part of Divorce Settlements

Igor A. Zey, MSFS, CFP, CLU, ChFC, CAP, AEP

Disability insurance is a financial instrument against financial consequences of one's inability to earn a living due to injury or sickness. Aside of the insured himself, there may be others who depend on that income to keep a roof over their head, food on the table and to pay the tuition for their education. The client's spouse and their children are beneficiaries, as well.

What happens when part of a family loses a source of income and also the guarantee of that source of income due to divorce? Are Family Law attorneys to play a role in protecting their clients with a guaranteed source of income?

DIVORCE SETTLEMENTS
All settlements include division of assets and liabilities and there are a spousal support and a child support agreements as well. What happens to the spousal support payment if the earning spouse becomes disabled and is unable to earn the income to make the support payment?

In divorce proceedings and negotiations, if spousal and/or child support are components of the possible settlement agreement, life insurance for the benefit of the dependent spouse and children is usually made part of the paying spouse's continued obligation. However, there are no requirements regarding disability insurance in divorce settlements. The payer spouse is under no obligation to obtain and maintain a disability insurance policy for the benefit of the ex-spouse or children. However, many family law attorneys are open-minded to the inclusion of disability insurance as part of an overall divorce settlement. On the other hand, attorneys representing payer spouses are usually hostile to a disability insurance provision to be included in the divorce settlement agreement.

SO WHAT TO DO?
A number of strategies can be used to successfully negotiate the issue. The goal is to have a requirement for a disability insurance policy on the payer spouse written into the divorce settlement for the benefit of the dependent spouse, as well as for the children.

• Negotiate a disability benefit for the full amount of the spousal and child support to be paid for by the payer spouse with the dependent spouse as beneficiary.

• Negotiate a disability benefit for the full amount of child support to be paid for by the payer spouse. The payer spouse will be the beneficiary of the benefit. Although a payer spouse may be reluctant to pay additional insurance premiums for the benefit of his ex-spouse, there is a strong possibility that the payer spouse would look more favorably on providing protection and stability to the children and himself.

• Negotiate a disability benefit for the full amount of spousal and child support to be paid for by the dependent spouse with the dependent spouse as beneficiary.

The consequences of not having a disability insurance policy in place on the payer spouse could cause severe economic hardship to both spouses and their children. Generally, when an individual becomes disabled because of a non-work-related injury or a medical condition such as a heart attack, stroke or even major depression, and a plethora of others, the payer spouse's recourse is to seek modification of support. The reduced funds available to the payer and dependent spouse are further burdened by the likelihood of increased medical bills.

Make disability insurance a topic of discussion during the active divorce settlement talks so that the divorcing couple fully understands the possible future scenarios that can adversely affect them and their children.

With the long-term view toward protection and stability, divorcing couples and their respective attorneys should seriously consider the possibility that the payer spouse may become disabled during the spousal and child support obligation periods. The failure of attorneys to look long range for their client's real needs may be a detriment to their clients.

Disability insurance is affordable and can be obtained in different coverage amounts, often equal to the cost of the monthly child support payment or just the cost of the monthly spousal support obligation. In the past 30 years we have been able to obtain hundreds if not thousands of disability insurance policies for our clients.

So, help your clients understand their insurance needs to secure their financial foundations as well as those of their dependents. Your guidance is needed at this emotional time in the lives of all parties involved to help them look beyond immediate needs and safeguard the future for their family in spite of its changing circumstances.

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Recently Enacted Legislation

Raymond R. Goldstein, Legislative Chair

Below, you will find summaries of some of California's newly introduced legislation relating to family law. The bill descriptions are from the Legislative Counsel's Digest, but the full bill text may be found by clicking on the bill number.

AB 157– Campos (D), 01/22/2013. Protective orders: false impersonation.
Existing law authorizes a court to issue an ex parte order enjoining a party from engaging in specified acts against another party, including threatening or harassing that party, and, in the discretion of the court, against other named family or household members. A violation of this court order constitutes contempt of court, which is punishable as a misdemeanor. This bill would additionally authorize a court to issue an ex parte order enjoining a party from falsely impersonating another party. Because a violation of this court order would be punishable as contempt, a misdemeanor, this bill would create a new crime and would thereby impose a state-mandated local program. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.

AB 161–Campos (D), 01/22/2013. Restraining orders.
Existing law requires a court in a proceeding for dissolution of marriage or legal separation of the parties to issue a temporary restraining order enjoining both parties from cashing, borrowing against, canceling, transferring, disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties and their child or children, for whom support may be ordered. Existing law also authorizes a court in a domestic violence proceeding to issue ex parte protective orders, as specified. This bill would specifically authorize a court in a domestic violence proceeding to issue an ex parte order restraining any party from cashing, borrowing against, canceling, transferring, or disposing of, or changing the beneficiaries of any insurance or other coverage held for the benefit of the parties and their child or children, if any, for whom support may be ordered.

AB 176– Campos (D), 01/24/2013. Family law: protective and restraining orders.
Existing law requires, if there is more than one civil protective or restraining order regarding the same parties, a peace officer to enforce the order issued last. If both criminal and civil protective or restraining orders have been issued regarding the same parties, existing law generally requires an officer to enforce the criminal order issued last. This bill would instead provide that, when there are both civil and criminal orders an officer must enforce the order that is more restrictive in relation to the restrained person. This bill would also make related, conforming changes.

AB 522 Bloom (D), 2/20/13. Civil actions: exceptions to dismissal for delay in prosecution.
Existing law authorizes a court to dismiss an action for delay in prosecution if, among others, an action is not brought to trial within a specified period of time. Existing law prohibits dismissal of an action for dissolution of marriage or for legal separation of parties under specified conditions, including, if a valid order for child or spousal support exists or, in an action for dissolution of marriage, a separate trial on the issue of the status of marriage has been conducted as provided by law. This bill would expand the types of actions to which the exception to dismissal of an action for delay in prosecution would apply and would include an action for the dissolution of a domestic partnership, an action based on void or voidable marriage, and an action relating to a child custody or visitation order. The bill would prohibit those actions from being dismissed under the specified conditions that would also include if an order regarding child custody or visitation has been issued, as specified, or if a valid personal conduct restraining order exists and if an issue in the case has been bifurcated, as specified.


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Hot ListServe Threads

If you are not already participating in our ListServe and enjoying this great benefit, please opt-in. Novices to seasoned attorneys are creating new topics and answering questions daily. Below you will find a number of interesting ListServe threads pertaining to family law. Each link below will bring you directly to the relevant thread. If you are not already logged in to LACBA, the website will prompt you to enter your email address and password. After doing so you will be brought directly to the linked thread:

Staying or Enjoining Foreclosure on Family Residence

Divorce and mental incapacity

Focus Evaluation

JDX over foreign parent?
Award of Fees at Trial from 401K Plan

Page limitation for reply
OT: Motion For Previous Counsel To Turn Over files?
1099 requested by client.

Re: ways to deal with hostile custodial exchanges?

Fw: Limited Licensing of New Legal Professionals?
Vocational Examination for Child Support
Minor Counsel Issue- do I have to run investigation past her


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Case Summaries

Family Law
Posted: Thursday, February 14, 2013
Family Code Secs. 7850 and 7851, authorizing court to order and consider an investigation by a licensed clinical social worker and a report by that social worker, do not form the basis for reversal when no such investigation or report has been requested in the trial court, nor do those sections apply when a petition is brought to terminate parental rights based on mental disability under Sec. 7827. Denial of request under Secs. 7850 and 7851 is reviewable under harmless-error probability standard.
In re Marriage of P.
filed February 13, 2013, Second District, Div. Five
Cite as 2013 S.O.S. 842
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Family Law
Posted: Friday, February 8, 2013
Juvenile court, following transfer of dependency case from another county based on change of juvenile’s residence, erred in sending the case back to the original county in the absence of a finding of changed circumstances or facts not considered by the original court; such error cannot be considered harmless where it results in denial of services to juvenile in the county where he or she resides.
In re Andrew J.
filed February 6, 2013, Fifth District
Cite as F065414
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Family Law
Posted: Wednesday, February 6, 2013
Juvenile court did not err when it declined to order health and human services agency to consider the home of an incarcerated father's fiancée for possible placement of a minor child who had never met the fiancée and had no relationship with her.
In re Michael E.
filed January 16, 2013, publication ordered February 5, 2013, Fourth District, Div. One
Cite as D062596
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Family Law
Posted: Friday, February 1, 2013
No home state jurisdiction existed under the Uniform Child Custody Jurisdiction and Enforcement Act where mother was incarcerated in foreign jurisdiction 28 days before dependency proceedings commenced.
In re Gloria A.
filed January 31, 2013, Second District, Div. One
Cite as B239465
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Family Law
Posted: Friday, February 1, 2013
Family court abused its discretion by granting unsupervised visitation to maternal grandfather over father’s objections, where there was evidence that children were uncomfortable in grandfather’s presence and had accused him of inappropriate conduct, and that their deceased mother had accused him of raping her when she was a child.
Ian J. v. Peter M.
filed January 29, 2013, Fourth District, Div. One
Cite as D060197
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Family Law
Posted: Thursday, January 31, 2013
Court erred in removing minor child from mother’s custody based on the fact that she was incarcerated, where the child’s grandmothers were suitable caretakers and both were willing to take the child.
In re Noe F.
filed January 16, 2013, publication ordered January 30, 2013, Second District, Div. One
Cite as B238278
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Family Law
Posted: Thursday, January 31, 2013
A "family law attorney's real property lien" recorded pursuant to Family Code Secs. 2033 and 2034 is not automatically extinguished upon the trial court’s division of marital property, even if the entire property to which the lien attaches is awarded to the nonencumbering spouse. Trial court may expunge FLARPLs when a dispute arises as to their propriety after the FLARPLs have been recorded. Trial court need not join attorneys as parties to the case before expunging their FLARPLs. Trial court did not abuse its discretion in reducing an attorney’s fee award by applying an offset based on litigation conduct under Family Code Sec. 271. Opposing party was not required to file a separate Sec. 271 motion to obtain the offset.
In re Marriage of Turkanis and Price
filed January 30, 2013, Second District, Div. Eight
Cite as B229482
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Family Law
Posted: Wednesday, January 30, 2013
A stepparent cannot request a modification of a final court order denying on the merits the stepparent's request for visitation.
Chalmers v. Hirschkop
filed January 30, 2013, First District, Div. Two
Cite as A133897
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Family Law
Posted: Friday, January 25, 2013
There is no guaranteed right to counsel in dissolution proceedings in which the custody of a minor child is not at stake; therefore, there can be no ineffective assistance of counsel in such proceedings. Tentative ruling in dissolution proceedings is not a final appealable order until the clerk gives notice of entry of a judgment of dissolution using form FL-190, even if a party and the judge have treated it as such for purposes of a motion for a new trial.
In re Marriage of Campi
filed January 24, 2013, First District, Div. Four
Cite as A134030
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Family Law
Posted: Tuesday, January 22, 2013
Family Code Sec. 3047 created a presumption that a pre-deployment custody agreement would revert. Court was only entitled to conduct a limited inquiry unless mother made a prima facie showing of serious concerns such as need for a transitional period due to minor’s age, or mental or physical health problems that impair returning service person’s ability to parent.
In re Marriage of E.U. and J.E.
filed December 31, 2012, publication ordered January 22, 2013, Fourth District, Div. Three
Cite as G046687
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Family Law
Posted: Wednesday, January 16, 2013
Juvenile court had jurisdiction over blind, autistic boy whose mother left him alone in a car, dirty, disheveled, and in a state of undress, while she hid to avoid the police after violating a restraining order.
In re John M.
filed December 17, 2012, publication ordered January 15, 2013, Second District, Div. Eight
Cite as B241501
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Family Law
Posted: Wednesday, January 16, 2013
Trial court did not abuse its discretion by awarding attorney's fees in an ongoing custody and child support battle to a woman whose husband brought an unsuccessful contempt proceeding against her.
Parker v. Harbert
filed December 19, 2012, publication ordered January 15, 2013, First District, Div. Five
Cite as A134060
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Family Law
Posted: Tuesday, January 15, 2013
Agreement for spousal support was not subject to modification where marital settlement agreement explicitly stated it was not modifiable except in certain, limited circumstances, and there was no evidence that the parties intended that other changed circumstances reduce the support payments.
In re Marriage of Hibbard
filed January 15, 2013, First District, Div. Four
Cite as A135901
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Family Law
Posted: Monday, January 14, 2013
Invalid, unconscionable waiver of spousal support should have been severed from a prenuptial agreement rather than the agreement being nullified in its entirety, where nullification resulted in an inequitable windfall to one spouse that clearly was not contemplated by the parties when they entered into the agreement.
In re Marriage of Facter
filed January 14, 2013, First District, Div. One
Cite as 2013 S.O.S. 167
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Family Law
Posted: Monday, January 7, 2013
Juvenile court properly assumed jurisdiction over minor child where parents had not physically abused the child but seriously abused two of their grandchildren who were also in their custody.
In re Marquis H.
filed January 7, 2013, Fourth District, Div. One
Cite as D061553
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Family Law
Posted: Thursday, January 3, 2013
Trial court properly invalidated spousal support waiver based on law in effect when the parties signed the agreement containing the waiver. California long held such waivers to violate public policy prior to enactment of the Uniform Premarital Agreement Act.
In re Marriage of Melissa
filed December 3, 2012, publication ordered January 2, 2013, Fourth District, Div. Three
Cite as G045899
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Family Law
Posted: Wednesday, January 2, 2013
A man's sexual molestation of his minor daughter or stepdaughter is sufficient by itself to support a finding that the victim's male siblings are also at substantial risk of sexual abuse.
In re David R.
filed December 31, 2012, Second District, Div. One
Cite as B239629
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Family Law
Posted: Friday, December 21, 2012
Full faith and credit clause requires a California court to give a New York Order of Filiation the same effect it would have under Family Code Sec. 5604. It does not require a California court to give the New York order greater effect than the same order would have if issued by a California court.
Adoption of A. S., a Minor
filed November 29, 2012, publication ordered December 19, 2012, First District, Div. Two
Cite as A134219
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Family Law
Posted: Friday, December 21, 2012
Where two men, neither married to a child’s mother, were presumed fathers of the child, the biological father’s presumption of paternity was controlling where he had fully committed to his responsibilities as a father.
J. R. v. D. P.
filed December 21, 2012, Second District, Div. Eight
Cite as B236047
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Family Law
Posted: Thursday, December 20, 2012
There was insufficient evidence for order terminating reunification services where the Department of Family and Children's Services failed to arrange for the psychotropic assessment of the parent recommended in the psychological evaluation, and there was no clear showing of circumstances making it unreasonable to do so.
In re K. C.
filed December 20, 2012, Sixth District
Cite as H037940
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Family Law

Posted: Wednesday, December 19, 2012
Juvenile court's order removing 4-year-old from the custody of her parents was not supported by substantial evidence where the child had good language skills and an outgoing and social nature, and there was abundant evidence that her mother and father were good parents who enjoyed a healthy relationship.
In re Hailey T.
filed November 26, 2012, publication ordered December 19, 2012, Fourth District, Div. One
Cite as D062087
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Family Law
Posted: Friday, December 7, 2012
Where the juvenile court has terminated the rights of both a minor's biological mother and the minor's guardian to make educational decisions for the minor, but the minor's surrogate parent does not wish to be appointed, the proper course of action is for the juvenile court to appoint a responsible adult as required by Welfare and Institutions Code Sec. 726.
In re Q.N.
filed November 9, 2012, publication ordered December 7, 2012, Third District
Cite as C064967
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Family Law
Posted: Wednesday, December 5, 2012
Use of medical marijuana, without more, cannot support a finding that such use brings a minor within the jurisdiction of the dependency court when there is no evidence that the parent is a substance abuser or that he failed or was unable to adequately supervise or protect the minor.
In re Drake M.
filed December 5, 2012, Second District, Div. Three
Cite as B236769
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Los Angeles County Bar Association
2012-2013 Family Law Section Newsletter
FAMILY LAW SECTION eNEWS
Raymond Goldstein, Editor


SECTION OFFICERS EXECUTIVE COMMITTEE MEMBERS

Chair
Lynette Berg Robe

Chair-Elect
Seth Kramer

Vice Chair
Peter M. Walzer

Treasurer
Judy L. Bogen

Secretary
Ronald F. Brot

Immediate Past Chair
Robert C. Brandt

Program & Event Administrator
Gail Coleman

Blum, Stephanie I.
Brauer, Laurel B.
Cogan, Ram
Gallegos, Rose Marie
Goldstein, Raymond
Gould-Saltman, Richard
Hadjian, Abbas
Hammers, Barbara
Kane, Paula
Karton, David S.
King, Adam N.
Levine, Marci
Medina, Randy W.
Mindel, Steven A.

Olson, Doreen Marie
Pandkhou, Parima
Pines, Cari M.
Reyes, Lucia A.
Ribet, Claudia
Shebby, David
Shiell, Warren R.
Spirito, Joe
Sturman, Jeff M.
Trope, Sorrell
Tuffias, Heidi S.
Waller, Marshall
Yamamoto, David
JUDICIAL OFFICERS PAST CHAIRS PARTICIPATING ON THE EXECUTIVE COMMITTEE

Hon. John Chemeleski
Hon. Scott M. Gordon
Hon. Mark A Juhas
Hon. Thomas Trent Lewis
Hon. B. Scott Silverman

Roberta Bennett
Robert C. Brandt
Harold J. Cohn
James R. Eliaser
Debra S. Frank
Ira M. Friedman
William J. Glucksman
Lawrence E. Leone
Dvorah Markman
Leonard J. Meyberg Jr.
Glen Schwartz

LIAISONS

Tai Glenn
Tracy Katz, CPA/CFF
David Kuroda, LCSW
Margaret A. Little, Ph.D.
Mary Lund, Ph.D
Phillip J. Monahan
Irwin Nachimson
Paul J. White, CPA