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Family Law Statutes

Annulments

  • Incestuous Relationships: Family Code section 2200
    • A person cannot have a marriage with anyone of blood relating, it will be considered void even if the relationship is legitimate.
  • Monogamous Marriages: Family Code section 2201
    • A person cannot marry another person unless they have dissolved the previous marriage. There are other exceptions.
  • Void Marriages:Family Code section 2210
    • Lists reasons for the voiding of a marriage if certain conditions existed at the time of marriage. One of the reasons includes a party lacking capability of consent.
  • Void Marriages Restrictions: Family Code section 2211
    • There are time restrictions for obtaining a judgment of nullity of marriages. Works in commencement with Family Code section 2210.
  • Putative Spouse: Family Code section 2251
    • Discusses that a spouse can be declared a putative spouse if in good faith they found out that their marriage was void.

Attorney Fees in California Family Law Proceedings

  • Order of Attorney’s Fees: Code of Civil Procedure section 128.5
    • Discusses that a court can order a party to pay attorney’s fees for bad tactics or for unnecessary delay. This section has restrictions and explanations of terms used.
  • Sanctions for Violations of Rules of Court: California Rules of Court rule 5.14
    • States that there can be sanctions for violations of rules in court. Discusses the procedures needed to be followed.
  • Attorney’s Fees Procedures: California Rules of Court rule 5.427
    • This section discusses the procedures for requesting attorney’s fees.
  • Ability to Pay Attorney’s Fees Consideration: Family Code section 270
    • The court determines the party’s ability to pay attorney’s fees before it orders it.
  • Sanctions for Attorney’s Fees from Bad Conduct: Family Code section 271
    • The court can order a sanction for attorney’s fees for bad conduct that furthers or frustrates the policy of the law to promote settlement of litigation. If a person is behaving badly just to be an annoyance or to stalemate the case then the court can “punish” them.
  • Discretion for Payment of Attorney’s Fees: Family Code section 272
    • The court has discretion on whether the attorney’s fees can be paid in part or in whole.
  • Attorney’s Fees for Legal Representation: Family Code section 2030
    • If the court finds necessary, they can order payment for attorney’s fees if one party is unable to financially fund their defense in their case. The court wants both parties to have access to legal representation.
  • Temporary Attorney’s Fees: Family Code section 2031
    • Discusses that the party has to have a motion on notice or an order to show cause in order to modify attorney’s fees during a pendency of a proceeding.
  • Reasonable Considerations for Attorney’s Fees: Family Code section 2032
    • The court can award attorney’s fees to the extent that they are just and reasonable. Discusses the considerations that the court takes in determining what is reasonable to the parties.
  • Community Property as Attorney’s Fees: Family Code section 2033
    • A party can encumber their interest in community property for attorney’s fees. It will be called a family law attorney’s real property lien.
  • Denial of Real Property Lien: Family Code section 2034
    • The court can deny the encumbrance of community property if it will result in unequal division of property and will cause that party to not meet their community obligations.
  • Temporary Restraining Order for Dissolution: Family Code section 2040
    • When a dissolution is filed, there is a temporary restraining order that stops the parties from removing children or any property. This is to make sure that all is accounted for with the court.
  • Early Access to Legal Representation: Family Code section 3121
    • Discusses that the court may award attorney’s fees in order that each party have early access to legal representation.
  • Attorney’s Fees for Spouse/Custodial Parent: Family Code section 3557
    • Discusses that the court can award attorney’s fees to a custodial parent or a spouse.
  • Support Orders and Attorney’s Fees: Family Code section 3652
    • Attorney’s fees can be included in support orders.
  • Sanctions for Incomplete Income/Expense Declarations: Family Code section 3667
    • The court may order sanctions against a party if the requesting party filed a motion for modification/termination of a support order and the responding party filed incomplete documents.
  • Order of Attorney’s Fees after Hearing: Family Code section 6344
    • The court can issue an order for the payment of attorney’s fees of the prevailing party after notice and a hearing.
  • Attorney’s Fees for Custody Matters: Family Code section 7605
    • In any matter related to child custody, the court will ensure that each party have equal opportunity to legal representation. The court can order one party to pay the other party’s attorney’s fees if there is a need.
  • Fees for Trial Related Matters: Family Code section 7640
    • The court can order fees of trial related matters to be paid by the parties. This includes things like experts, counsel, etc.

Child Support Issues

  • Grandparent-Child Visitation: Family Code section 3103
    • The court can grant reasonable visitation to the grandparents of the child if they find that it’s in the child’s best interest.
  • Child Support Termination:Family Code section 3601
    • Child support orders continue until they are terminated by the court.
  • Reconciliation: Family Code section 3602
    • Court child support orders are not enforceable if the parties have reconciled and are living together.
  • Modification/Termination of Child Support: Family Code section 3603
    • A child support order can be modified or terminated at any time except to an amount accrued before the date of the filing to modify/terminate.
  • Limitations to Modification of Child Support: Family Code section 3651
    • A support order can be modified at any time if the court deems it necessary. Discusses some exceptions/limitations.
  • Statement of Decision: Family Code section 3654
    • A statement of decision must be included in modifying/terminating orders if requested by a party.
  • Parental Responsibility for Child Support: Family Code section 3900
    • States that the mother and father of the child has equal responsibility to support their child suitable to the child’s circumstances.
  • Responsibility until Legal Adult: Family Code section 3901
    • Discussed that the duty of support stated in section 3900 continues until the age of 18, unless the child is still a full-time high school student then it continues till 19.
  • Incapacitated Child: Family Code section 3910
    • The parents of an incapacitated child have an equal responsibility to take care of their child until whatever age, to the extent of their ability.
  • Grandparents & Child Support: Family Code section 3930
    • Grandparents are not responsible for the support of their children’s children.
  • Voluntary Child Support: Family Code section 3951
    • A parent doesn’t have to compensate for voluntary support of their child if there was no previous written agreement.
  • Contingent Child Support: Family Code section 4007
    • Child support orders terminate on the contingency of the minority child’s death, marriage, etc. The court can make an order requiring the person receiving the payments to notify the other party of when/if the contingency takes place.
  • Retroactive Child Support: Family Code section 4009
    • An original child support order can be made retroactive to the date of the filing of the petition, complaint, or other initial pleading.
  • Federal Regulations: Family Code section 4050
    • It is legislature’s intention to make sure that the state remains in compliance with federal regulations for child support guidelines.
  • Adherence of Statewide Guidelines: Family Code section 4052
    • The court will follow statewide uniform guideline and will only depart from it in special circumstances.
  • More than Two Legal Parents: Family Code section 4052.5
    • The statewide uniform guideline in any case in which the child has more than two parents. The court will divide child support obligations among the parents.
  • Principles in Statewide Uniform Guideline: Family Code section 4053
    • A list of principles that the court follows when implementing the statewide uniform guideline.
  • Child Support Formula: Family Code section 4055
    • Gives the formula for determine child support using the statewide child support guideline.
  • Refutability of Child Support Formula: Family Code section 4057
    • States that the amount of child support provided from section 4055 is the correct amount of child support to be ordered. It can be rebutted if there is admissible evidence to show that the formula was unjust.
  • Annual Gross Income: Family Code section 4058
    • Discusses what is included in “annual gross income”.
  • Annual Net Disposable Income: Family Code section 4059
    • Discusses what can be deducted from annual gross income to come up with annual net disposable income.
  • Additional Child Support: Family Code section 4062
    • Has a list of things that can/will be ordered as additional child support.
  • Responsibilities for Additional Child Support: Family Code section 4063
    • This section deals with part of section 4062 in that it discusses the courts responsibilities when it orders additional child support.
  • Fluctuating Income Child Support: Family Code section 4064
    • The court can adjust child support for parents with seasonal or fluctuating income.
  • Family Support Deductions: Family Code section 4066
    • Some of the orders and stipulations can be designated as “family support” to be able to be deductible on taxes.

Civil and Family Code Discovery in Family Law Cases

Community and Separate Property Assets and Debts

  • Date of Separation: Family Code section 70
    • Discusses that the meaning of “date of separation” means the date that a final break in the marital relationship evidenced by both parties.
  • Interest in Separate Property: Family Code section 752
    • Neither spouse has interest in the separate property of the other.
  • Community Property: Family Code section 760
    • All property acquired by the persons during the marriage is community property.
  • Definition of Separate Property: Family Code section 770
    • Definition of what is included in “separate property”.
  • Separate Property after DOS: Family Code section 771
    • The earnings and accumulations of a spouse and a minor child of the spouse after the date of separation is that spouse’s separate property.
  • Transmute of Property: Family Code section 850
    • Married persons by agreement can transmute community or separate property to each other.
  • Written Agreement for Transmutation of Property: Family Code section 852
    • Transmutation of property isn’t valid unless it is in writing and accepted by the party that is being affected.
  • Transmutation of Property regarding a Will: Family Code section 853
    • The statement in a will of the character of property is not admissible evidence if the person is not deceased.
  • Debt Liability & Community Estate: Family Code section 910
    • Community estate is liable for a debt incurred before or during the marriage.
  • Debt Liability & Earnings: Family Code section 911
    • The earnings of a married person during marriage are not liable for a debt incurred by the person’s spouse before the marriage. There are exceptions.
  • Debt Liability & Separate Property: Family Code section 913
    • The separate property of a married person can be liable for debt incurred by the person before or during the marriage.
  • Personal Liability & Debts: Family Code section 914
    • Discusses the instances in which a married person is personally liable for debts incurred by the person’s spouse during the marriage.
  • Support from Previous Marriage: Family Code section 915
    • A child or spousal support of a married person that didn’t arise out of the marriage is considered a debt incurred before the marriage.
  • Division of Property: Family Code section 916
    • Discusses what takes place after the division of community and quasi-community property.
  • Right to Reimbursement: Family Code section 920
    • A list of provisions that is used when regarding a right to reimbursement.
  • Liability for Damages by Spouse: Family Code section 1000
    • A married person isn’t liable for damages caused by the spouse except in cases where married person would be liable if the marriage didn’t exist. Also discusses the liabilities of a married person for death or injury to property/person.
  • Restrictions: Family Code section 2040
    • States that the summons will contain a temporary restraining order. Has a list of restrictions such as not getting rid of any property or removing the minor child from the state.
  • Liquidation of Property: Family Code section 2108
    • Court has the authority to order liquidation of community or quasi-community property to avoid unreasonable market/investment risks if the party applied for it for good cause.
  • Equal Division of Property: Family Code section 2550
    • The court will divide the property equally unless there is a written agreement or an oral stipulation in open court.
  • Division of Community Estate: Family Code section 2552
    • The court will value the assets and liabilities of the community estate as near practicable to the time of the trail.
  • Property Adjudication: Family Code section 2556
    • The court can award community estate assets or community estate liabilities to parties that haven’t been previously adjudicated by a judgment.
  • Community Property acquired during Marriage: Family Code section 2581
    • Community property is property that was acquired during the marriage. It can be rebutted by evidence showing that it was separate property.
  • Awarded Community Estate: Family Code section 2601
    • The court can award an asset of community estate to one party so that it warrants a substantially equal division of the community estate.
  • Additional Award for Misappropriation: Family Code section 2602
    • The court can award property that had been deliberately misappropriated from one party.
  • Division of Retirement Plans: Family Code section 2610
    • The court will make whatever order necessary to ensure that the party gets their fair share of any community property retirement plan. Has a list of benefits included.
  • Division of Debts- Community Estate: Family Code section 2620
    • This discusses the division of the debts for which community property is liable for.
  • Debts accrued before Marriage: Family Code section 2621
    • States that debts incurred before the date of the marriage go to the spouse that incurred that debt.
  • Debts accrued during Marriage: Family Code section 2622
    • Debts incurred during the marriage and before the date of separation shall be divided between the spouses.
  • Debts accrued after DOS: Family Code section 2623
    • Discusses what takes place for debts incurred after the date of separation but before entry of a judgment of dissolution of marriage.
  • Debts accrued after Dissolution: Family Code section 2624
    • Debts incurred after the entry of judgment of dissolution of marriage/legal separation but before the termination of marital statues are offset to the spouse that incurred them.
  • Debt accrued without Community Benefit: Family Code section 2625
    • If a spouse during the marriage incurred debt that had no benefit to the community, the debt will be confirmed to the spouse that incurred it. Also follows along with sections 2620-2624.
  • Reimbursement for Debts: Family Code section 2626
    • The court has the capability to order reimbursement for debts paid after separation but before trial if it deems it appropriate.
  • Acquisition & Contribution: Family Code section 2640
    • Discusses what is included in the acquisition of property and how reimbursement is effected based on contribution to acquisition.
  • Community Contributions for Education: Family Code section 2641
    • Discusses the meaning of “community contributions to education or training”. Discusses what takes place regarding reimbursement for community contributions.
  • Division of Property when Joint Tenants: Family Code section 2650
    • The court has the jurisdiction to divide the separate property interests of the parties in real and personal property when held by the parties as joint tenants or tenants in common.
  • Financial Code section 1450
  • Financial Code section 1620
  • Financial Accounts: Probate Code section 5122
    • Discusses the meaning of an “account” and includes that it is a checking/saving account, etc. Also states what is not included in an “account”.
  • Financial Accounts & Marriage: Probate Code section 5305
    • If parties to an account are married to each other, then their net contribution to the account is presumed to be their community property.

Confidentiality, Evidence & Privilege Rules

  • Exclusion of Evidence: Evidence Code section 352
    • The court can exclude evidence if it value is outweighed by the probability that its admission will consume undue time or bring on prejudice/confusion.
  • Written Facts: Evidence Code section 622
    • Written facts are presumed to be true as between the parties. Does not apply to the recital of a consideration.
  • Legal Title to Property: Evidence Code section 662
    • The owner of the legal title to property is presumed to be the owner of the full beneficial title. Can be rebutted by convincing proof.
  • Cross-Examination of Witnesses:Evidence Code section 776
    • Discusses that any witness used to testify for evidence can be cross-examined by both parties. There are limitations.
  • Privileges of a Witness” Evidence Code section 911
    • No privileges to not be a witness or not disclose information. There are exceptions.
  • Waiver of Witness Privileges: Evidence Code section 912
    • Other conditions for privileges of a witness can be waived if deemed necessary.
  • Evidence Code section 913
  • Evidence Code section 917
  • Right to no Self-Incrimination: Evidence Code section 940
    • A person has a privilege to refuse to disclose any matter that may tend to incriminate him.
  • Evidence Code section 958
  • Right to not Testify against Spouses: Evidence Code section 970
    • Except as otherwise provided by another statute, a married person does not have to testify against their spouse.
  • Right to not Witness against Spouses: Evidence Code section 971
    • A spouse has the privilege to not be called to witness in a proceeding by the adverse party without prior consent.
  • Privileges of Spouses: Evidence Code section 972
    • A list of when a married person does not have a privilege against being a witness or testifying.
  • Spousal Testify:Evidence Code section 973
    • If a spouse decides to testify or witness against their spouse, they do not have any privileges in which testimony was given.
  • Right to Refuse Disclosure:Evidence Code section 980
    • A spouse has a right to refuse to disclose information if during the time the information was given with confidence between the spouses.
  • Evidence Code section 1152
  • Inclusion of Written Record: Evidence Code section 1271
    • A list of when a writing made to record an act or event is excluded from being inadmissible by the hearsay rule.
  • Absence in Business Records: Evidence Code section 1272
    • Absences of certain records of a business can be used to prove the nonoccurrence of the act. It is not made inadmissible by the hearsay rule. Has two conditions.
  • No Refusal to submit Income Tax Returns: Family Code section 3552
    • No party of a proceeding regarding child, family, or spousal support can refuse to submit copies of the party’s state and federal income tax returns to the court.

Custody of Children and Visitation

Deferred Sale of Family Residence

  • Deferred Sale of Home Order: Family Code section 3800
    • An order that temporarily delays the sale of the home and awards temporary exclusive use/possession to a custodial parent. Custodial parent refers to a party awarded physical custody of a child.
  • Practicality of Deferred Sale of Home Order: Family Code section 3801
    • This is used to determine whether the deference of the home is reasonable or economically feasible.
  • Necessity of Deferred Sale of Home Order: Family Code section 3802
    • Following FC 3801, if the court finds that it is economically feasible to have a deferred sale of the home, then the court looks at a set of rules to determine whether they grant the deference or not.

Dissolution, Legal Separation and Related Proceedings

  • Self-Disqualification of Judges:Code of Civil Procedure section 170.3
    • This code refers to when a judge determines his/her self to be disqualified and will no longer participate in the proceeding. However this disqualification may be waived by the parties.
  • Disqualification of Judges based on Prejudice:Code of Civil Procedure section 170.6
    • A judge cannot try any proceeding if they have been previously found to be prejudice against a party, attorney, or interest of a party/attorney.
  • Trial by the Court: Code of Civil Procedure section 632
    • Written findings of fact and conclusions of law shall not be required; however, there are rules/exceptions to when a party can request an explanation of a decision/finding.
  • Of References and Trials by Referees:Code of Civil Procedure section 639
    • The court can appoint a referee in certain cases either with or without consent.
  • Giving and Entering Judgment: Code of Civil Procedure section 664.6
    • Parties can agree to a settlement orally in front of the court or in writing outside of the court. The court can retain jurisdiction over the parties to help enforce the settlement.
  • Offers by a Party to Compromise: Code of Civil Procedure section 998
    • A party can serve an offer in writing prior to 10 days of trial or arbitration. There are rules and requirements needed in the writing of the offer.
  • Meet/Confer Requirements & Document Exchange:California Rules of Court rule 5.98
    • Discusses that all parties/attorneys are required to meet before the date of hearing relating to a Request for Order. Also, documents used for evidence/proof must be exchanged before the hearing.
  • Declarations Supporting & Responding to a Request for Court Order: California Rules of Court rule 5.111
    • A party must file a supporting declaration with the court clerk and serve it on the other party. Must follow alongside a Request for Order or a Responsive Declaration. There are requirements for the length and content of declarations.
  • General Procedural Provisions: Family Code section 210
    • A statute that states all other statutes apply to the proceedings and constitute the rules.
  • Affirmative Relief: Family Code section 213
    • During a hearing other than contempt, the responding party may seek affirmative relief alternative to that requested by the moving party by filing a responsive declaration within the time set by the statute.
  • Private Proceeding:Family Code section 214
    • If the court deems it necessary, they may restrict the proceeding to only the parties, their witnesses and the counsel.
  • Modification of Judgment: Family Code section 215
    • After entry of a judgement, no modification of the judgment is valid unless any prior notice that was required to be given to a party to the proceeding was served. Service upon the attorney of record is not sufficient.
  • Testimony Provisions: Family Code section 217
    • The court may receive any live, competent testimony that is relevant and within scope of the hearing, has certain limitations.
  • Jurisdiction:Family Code section 2013
    • Parties may use collaborative law process for a written agreement that was entered. Collaborative law process refers to an attempt to agree in writing and use best efforts to resolve disputes.
  • Procedural Provisions: Family Code section 2021
    • The court may order a person that claims an interest in the proceeding to be joined as a party.
  • Notice to Insurance Carriers: Family Code section 2050
    • The court or party may order transmittal to a health, life, or disability insurance carrier/plan.
  • Residence Requirements: Family Code section 2320
    • A judgment of dissolution of marriage cannot be entered unless one of the parties to the marriage has been a resident of California for 6 months. Also, one of the parties must have been a resident in the county that the proceeding is filed for at least 3 months.
  • Same Judicial Officer: Family Code section 2330.3
    • The court wants all dissolution actions, to the best of the parties’ capabilities, to be filed with the same superior court department so that all decisions be made by the same judicial officer. However, if it is going to be a significant delay, then the parties don’t need to assign it to the same superior court department.
  • Dissolution of Marriage/ Legal Separation Provisions: Family Code section 2337
    • Discusses the different capabilities of the court when dealing with dissolution of marriage and states some of the requirements.
  • Legal Separation: Family Code section 2345
    • States that the court needs consent for both parties to render legal separation with some exceptions.
  • Family Centered Case: Family Code section 2450
    • The court uses family centered case resolution to try to expedite the processes that take place throughout the process of dissolution of marriage. The court wants to try to save the family time and money.
  • Family Centered Case Requirements: Family Code section 2451
    • Just states the requirements of court-ordered family centered case resolution plans.

Domestic Violence

  • Continuance Rights: Family Code section 245
    • The respondent is entitled to one continuance of the hearing in order to respond to the petition.
  • Definition of Abuse: Family Code section 6203
    • Defines that abuse means: sexual assault, bodily injury, etc.
  • Definition of Domestic Violence: Family Code section 6211
    • List of who domestic violence can be perpetrated against.
  • Definition of Protective Order: Family Code section 6218
    • List of what restraining orders a protective order can include.
  • Issuance of an Emergency Protective Order: Family Code section 6250
    • A judicial officer can issue an emergency protective order if a law enforcement officers has found reasonable grounds to according to a list of requirements.
  • Requirements for an Emergency Protective Order:Family Code section 6251
    • The two requirements that a judicial officer must find in order to issue an emergency protective order.
  • Restrictions of an Emergency Protective Order: Family Code section 6252.5
    • The restrictions against attempting to find the protected party’s personal information such as their address.
  • No Mutual Restraining Orders: Family Code section 6305
    • It is not customary for the court to issue mutual restraining orders against both parties without some exceptions.
  • Ex Parte Orders: Family Code section 6320
    • Discusses that the court can issue an ex parte order and the behaviors it restricts.
  • Denial of Ex Parte Orders: Family Code section 6320.5
    • Denial of the ex parte order will include the reasons for the denial. Also includes some time restrictions on the hearing/responding of the case.
  • Exclusion Ex Parte Orders: Family Code section 6321
    • The court can issue an ex parte order in which it will exclude a party from common dwellings, family dwellings, or dwellings of the person who cares for the child.
  • Best Interest of the Child Ex Parte Orders:Family Code section 6323
    • The court can issue an ex parte order for temporary custody/visitation of a minor child. They are trying to limit the child’s exposure to domestic violence.
  • Orders Issuable After Notice and Hearing: Family Code section 6340
    • Discusses that the court can issue orders after a notice and a hearing. The court will consider the safety of the petitioner and children when determining to make any orders. Goes along with Family Code section 6320.
  • Domestic Violence Code: Penal Code section 273.5
    • This is the penal code that states the punishments for any person who inflicts injury that results in a traumatic condition of the victim. States the applications of whom victims are.

Enforcing Support Orders

  • Judgment Lien on Real Property: Code of Civil Procedure section 697.310
    • Discusses the process of a lien on a real property and its length.
  • Writ of Execution and Notice of Levy:Code of Civil Procedure section 699.510
    • An order to force a judgment of possession.
  • Support Order Definition:Family Code section 155
    • Support Order is defined and its limitations.
  • Enforcement of Judgments and Orders: Family Code section 290
    • Discusses that the court can enforce the orders/judgments by execution.
  • Enforceability of Judgments: Family Code section 291
    • Judgments can be enforced until paid in full or otherwise satisfied. They do not have to be renewed to be enforced.
  • Order for Deposit of Money:Family Code section 4560
    • This is paying a lump sum of child support or having to set it aside to make sure that the obligor gets paid the child support amount due. This isn’t the same as having to pay a monthly child support balance.
  • Civil Penalty for Child Support Delinquency: Family Code section 4722
    • If a person hasn’t been paid their child support in 30 days past the due date, then they can file and serve a notice of delinquency. If the other party then doesn’t pay this balance for another 30 days, it accrues a penalty of up to 6% for each month unpaid up to 72%.
  • No Child Support Delinquency: Family Code section 4726
    • If certain requirements are met that show cause for being unable to pay the child support on time, then no penalties can be imposed.
  • Writ of Execution Enforcement: Family Code section 5100
    • Writ of Execution can be used to enforce different support orders. A Writ of Execution is used to enforce an order.
  • Writ of Execution Enforcement thru Garnishing: Family Code section 5103
    • The court can use a Writ of Execution against the party’s employee benefit plans.
  • What Accompanies a Writ of Execution:Family Code section 5104
    • The Writ of Execution is accompanied by an affidavit that states the total amount due/unpaid.
  • Wage Garnishing:Family Code section 5230
    • When the court orders a party to pay an amount for support, they will include an assignment that orders the employer to pay the obligee that portion of the earnings due.
  • Employer Liability: Family Code section 5241
    • If the employer fails to forward the wages that are supposed to be garnished for the support order, then the employer is liable for the unpaid support.

Ex Parte Procedures

  • Time of Notice to Other Parties: California Rules of Court rule 3.1203
    • For an ex parte order, you must notify all parties by 10:00 a.m. the court day before the hearing. There are exceptions to the rule.
  • Contents of Notice and Declaration Regarding Notice:California Rules of Court rule 3.1204
    • This discusses the contents and declarations regarding the ex parte notice.
  • Filing and Presentation of the Ex Parte Application: California Rules of Court rule 3.1205
    • States that the clerk must not reject an ex parte application for filing as long as the requirements were met.
  • Service of Papers: California Rules of Court rule 3.1206
    • Must serve the ex parte application or any written opposition at the first reasonable opportunity. If not, then no hearing may be conducted. There are exceptions.
  • Motion or Application for Continuance: California Rules of Court rule 3.1332
    • Trial dates are firm, if you want to have a continuance then you must follow the rules and have supporting declarations to request a continuance. There is a list of grounds for continuance.
  • Must Notify Respondent First: Family Code section 241
    • Must notify the respondent before an order can be described. The exception is if notifying the respondent will bring the petitioner great/irreparable injury.
  • Temporary Restraining Orders Timeframe: Family Code section 242
    • This discusses the timelines that a hearing will take place after the grant or denial of a temporary restraining order.
  • Service of Documents:Family Code section 243
    • You must serve the respondent with a copy of the documents at least 5 days before the hearing. This includes, if applicable, a copy of the petition, temporary restraining order, and the notice of hearing on the petition.
  • Hearing on the Petition: Family Code section 244
    • The hearing on the petition takes precedence over all the other matters on that court day. There are exceptions.
  • Continuance: Family Code section 245
    • The respondent is allowed one continuance to respond to the petition. Either party can request a continuance of the hearing as long as they are able to show good cause.
  • Request for Temporary Restraining Order: Family Code section 246
    • The court will grant or deny a request for temporary restraining order on the same day that the petition was submitted to court. However, if the petition was submitted to late in the day, then the court will grant or deny it the next calendar court day.
  • Ex Parte Orders: Family Code section 2045
    • Potential limitations/restrictions that the court can order during pendency of the proceeding. Such as limiting a person from transferring or concealing any property.

Expert Discovery

Expert Witnesses and Evaluations

  • Court-Ordered Child Custody Evaluations: California Rules of Court rule 5.220
    • The court can order child custody evaluations when there is disputed custody or visitation issues or when looking for the best interest of the child.
  • Appointment of Expert Witness: Evidence Code section 730
    • The court can appoint an expert to investigate and report their findings/testify if the court feels that expert evidence is required.
  • Expert Witness: Evidence Code section 733
    • Parties may produce their own expert witnesses on facts or matters; however, they are responsible for the costs of the expert witness.

Fiduciary Duties

  • Relation of Spouses: Family Code section 721
    • Either spouse can enter into any transaction with the other or any other person if unmarried.
  • Spousal Control of Community Personal Property: Family Code section 1100
    • Either spouse has the control of the community personal property; however, neither spouse can get rid of property without consent of the other for less than fair value. There are further restrictions.
  • Spousal Claim to Fiduciary Breach:Family Code section 1101
    • A spouse has a claim against the other spouse if he/she gets rid of something without their consent. Each spouse has their one-half claim to community property. There are exceptions where the court has ordered ownership etc.
  • Getting Rid of Community Real Property:Family Code section 1102
    • Both spouses must join together in having their property sold or leased. This doesn’t apply in transference of property between the spouses.
  • Lack of Capacity to Rid of Community Real Property:Family Code section 1103
    • If one of the spouses lacks the legal capacity to give consent, then they must follow the probate code and have someone appointed guardianship/conservatorship. That person will make the legal decision for that spouse that is incapable.
  • Preservation of Community Property:Family Code section 2100
    • The court wants to ensure that there is no dissipation of property that existed at the date of separation before it can be distributed fairly. A person can just decide to get rid of whatever they want, they must coincide with the court on all community real property.
  • Distribution of Community Property: Family Code section 2102
    • All community property much be disclosed and accurate. People are subject to standards that hold them accountable for activities that affect assets before distribution.
  • Accurate Community Property: Family Code section 2103
    • Each party must serve the other with documentation of the community property or lists of property that way the court can have an accurate list of all property involved up to the date of separation.
  • Preliminary Declaration of Disclosure Contents: Family Code section 2104
    • This section discusses some of the requirements the parties must meet with the Preliminary Declarations of Disclosure.
  • Final Declaration of Disclosure: Family Code section 2105
    • Discusses what a final disclosure is and when it needs to be served by.
  • Required Documents for Judgment: Family Code section 2106
    • A list of required documents to have been served in order to have a judgment issued including final declaration of disclosure, current income and expense declaration.
  • Complying with the Documents for Judgment: Family Code section 2107
    • If one party complies with all the documents needed and the other party does not, then the party can request preparation of the appropriate declaration of disclosure. There are repercussions that can be taken if the non-compliant party fails with the request.
  • Waiving Final Declaration Disclosure: Family Code section 2110
    • Discusses that the petitioner can waive having to serve and be served a final declaration of disclosure.
  • Relief From Judgment: Family Code section 2121
    • The court may relieve a spouse or any party from a judgment if they find that the party would materially benefit from the relief.
  • Special Rules for Division of Community Estate: Family Code section 2602
    • The court can award an additional award from a party’s share if they found that there was community estate that was deliberately misappropriated.

Joinder of Non-Parties in Family Law Proceedings

  • Joinder of Persons Claiming Interest: California Rules of Court rule 5.24
    • Discusses when a person who claims interest can be added to as a party to the family law case. Has a list of requirements that must be met and capabilities of the joined party.

Mediation in Divorce and Family Law Related Matters

  • Mediation Definitions: Evidence Code section 1115
    • Definitions of mediation, mediator, and mediation consultation. Mediation is when a neutral person helps the parties to communicate with each other in attempting to reach an agreement.
  • Oral Agreement Requirements: Evidence Code section 1118
    • A list of conditions that an oral agreement must satisfy.
  • Information in Mediation: Evidence Code section 1119
    • The information given/discussed in mediation is not admissible in a discovery or other documents. All information discussed in mediation should remain confidential.
  • Mediator Restrictions: Evidence Code section 1121
    • States that the mediator cannot testify or attempt to use the evidence that was discussed during the mediation. The mediator is just to state whether an agreement was reach or not.
  • Exceptions to Admissible Evidence during Mediation: Evidence Code section 1122
    • A list of requirements in which will make a communication or a writing during mediation admissible to the court.
  • Further Exceptions to Mediation Evidence: Evidence Code section 1123
    • A written settlement agreement can be made admissible if it meets the listed requirements.
  • Mediation Ends: Evidence Code section 1125
    • List of instances in which mediation ends. If the parties complete an agreement which resolves the dispute then the mediation is over and confidentiality ends.
  • Evidence Inadmissibility:Evidence Code section 1126
    • Evidence during mediation remains inadmissible after mediation has ended.
  • Cannot Reference Mediation Evidence: Evidence Code section 1128
    • You cannot reference any mediation evidence in any subsequent trial or it can be grounds for vacating/modifying the decision in that proceeding.

Military Divorce Related Statutes and Regulations

  • Activated to Service:Family Code section 3651
    • This basically states that if a party is activated to US military or other force, that they can submit a modification to a support order.

Motions

Paternity of Child

  • Paternity of Child: Family Code section 7540
    • The child of a wife cohabiting with her husband is presumed to be a child of the marriage. As long as the husband isn’t impotent or sterile.
  • Resolution of Paternity: Family Code section 7541
    • If paternity results or an expert states that the husband is not the father, then the court will resolve the question of paternity.
  • Voluntary Declaration of Paternity: Family Code section 7573
    • A voluntary declaration of paternity that was filed with Child Support Services holds the same weight and effect as a judgment for paternity.
  • Rescind of Voluntary Declaration of Paternity:Family Code section 7575
    • Either parent can take back the voluntary declaration of paternity if they file a form with Child Support Services within 60 days of the date of execution of the declaration by the father/mother.
  • Presumed Natural Parent: Family Code section 7611
    • Covers the conditions that would deem the person as the natural parent of a child.
  • Rebutting Paternity: Family Code section 7612
    • This ruling states that the presumptions of paternity are rebuttable and that some presumptions can carry more weight than another.
  • Intended Parent: Family Code section 7613
    • States that if a woman conceives through assisted reproduction, even if the father is not the biological father, that if he was the intended parent it is treated the same as if he were the natural parent.
  • Parental Actions: Family Code section 7630
    • Discusses the actions that a parent of a child can take to try to declare the existence of other parent-child relationships.
  • Vacating Judgment of Paternity: Family Code section 7646
    • If there is evidence that proves that the previously deemed parent is not the biological parent, then the court can set aside or vacate the previous judgment. There are restrictions that must be met.

Pension and Estate Related Matters

  • Property Rights: Employer Benefit Plans or Pension: Family Code section 755
    • Provides the means of providing notice to a pension or employee benefits plan by providing the notice of an adverse claim. Precludes one spouse from unilaterally receiving the other party’s benefits.
  • Premarital Agreements: Family Code section 1612
    • Requirements/restrictions on premarital agreements.
  • Changing Premarital Agreements: Family Code section 1614
    • You can only amend or revoke a premarital agreement after the marriage if there is a written agreement signed by both parties.
  • Unenforceable Premarital Agreement: Family Code section 1615
    • Lists reasons why a premarital agreement wouldn’t be enforceable. Such as not executing the agreement voluntarily.
  • Entering a Joinder of Plan: Family Code section 2060
    • After written application, the clerk will enter an order joining a party to any employee benefit plan.
  • Requirements for a Joinder of Plan: Family Code section 2062
    • The party requesting the joinder needs to serve a list of documents upon the employee benefit plan.
  • Death of Joint Tenant: Probate Code section 5601
    • Discusses when a joint tenancy can be severed if there was a dissolution of marriage prior to the death. Concludes that a separation does not terminate the status of husband and wife.

Personal Injury Awards

  • Personal Injury Community Property: Family Code section 780
    • Money and other property received by a married person because of a judgment for damages for personal injuries is community property. Works in accordance with other rulings.
  • Personal Injury Separate Property: Family Code section 781
    • Guidelines for when property received for personal injury becomes separate property.
  • Community Estate Personal Injury Damages: Family Code section 2603
    • Definition of community estate personal injury damage. It is talking about all the money or other property received/to be received in satisfaction of a judgment for damages/personal injuries.

Same-Sex Marriages and Domestic Partnerships

  • Domestic Partners Definitions:Family Code section 297
    • Defines what domestic partners and domestic partnership entails. There are requirements for filing the declaration of domestic partnership. Domestic partners are two adults that want to share each other’s lives in an intimate/committed relationship.
  • Domestic Partners Rights: Family Code section 297.5
    • Discusses that domestic partners have the same rights and obligations that spouses do.
  • Terminating Domestic Partnership: Family Code section 299
    • A registered domestic partnership can be terminated without filing a proceeding for dissolution of domestic partnership. The person just has to file a notice of termination of domestic partnership and has to meet certain conditions.
  • Legal Union: Family Code section 299.2
    • A legal union of two people of the same sex that was validly formed in another jurisdiction is recognized as a valid domestic partnership in this state.
  • Out of State Marriage: Family Code section 308
    • If the marriage was contracted outside of California and is valid by the laws of the jurisdiction that the marriage was contracted in, then it is valid in California.
  • Residence Requirements for Dissolution of Marriage: Family Code section 2320
    • One of the parties must have been a resident of this state for 6 months and in the county that they wish to file in for at least 3 months in order to enter into a judgment of dissolution of marriage.

Service of Pleadings and Papers in Divorce and Family Law Proceedings

  • Service of Summons: Code of Civil Procedure section 415.10
    • A person other than the party can serve a summons by personal delivery and it must include a copy of the summons and a copy of the complaint.
  • Other Methods of Service of Summons: Code of Civil Procedure section 415.20
    • A person other than the party can deliver a summons by leaving a copy of the summons and complaint at the party’s office during usual office hours or at their usual mailing address. There are requirements that must be met.
  • Service of Summons by Mail: Code of Civil Procedure section 415.30
    • A person other than the party can serve the summons by mail as long as it meets some requirements.
  • Out of State Service of Summons: Code of Civil Procedure section 415.40
    • A person other than the party can serve a summons on a person outside of this state by any of the previous manners.
  • Publication of Summons: Code of Civil Procedure section 415.50
    • A person other than the party can serve a summons through publication as long as it is satisfactory with the court and cannot with reasonable diligence be served through one of the other specified manners.
  • Written Notice for Motions or Orders: Code of Civil Procedure section 1005
    • A party must give written notice for certain motions. Some of the list includes: Notice of application and hearing of writ of attachment, notice of application and hearing for claim and delivery, etc.
  • Service of Papers Requirements: Code of Civil Procedure section 1011
    • Discusses the requirements for service of papers depending on if it is with an attorney or upon a party.
  • Post-judgment Requirements: Family Code section 215
    • A judgment cannot be modified after the entry of the judgment unless prior notice was served to the party. Has a list of orders that it applies to. A post-judgment motion to modify child support/visitation can be served by mail.

Service of Process

Setting Aside Judgments and Orders

  • Correcting Mistakes on Pleadings: Code of Civil Procedure section 473
    • The court allows a party to amend or strike out errors that were made in the pleadings. Discusses that the court can potentially allow for more time if needed to make the changes necessary.
  • Setting Aside Default Judgments: Code of Civil Procedure section 473.5
    • If a party did not get actual notice and there has been a default judgment made against them, then the party can file a notice of motion to set aside the default judgment in order to defend against the action. There are limitations.
  • Reconsideration of Judgments: Code of Civil Procedure section 1008
    • A party can ask for reconsideration of the judgment/decision made by the judge within a certain timeframe if they have new or different facts/circumstances.
  • Grounds for Relief from a Judgment:Family Code section 2122
    • The grounds and time limits governing setting aside a judgment. Discussing perjury, duress, mental incapacity, etc.
  • Relief from a Support Order: Family Code section 3690
    • The court can relieve a party from a support order after the six month time limit and based on certain limitations.
  • Grounds for Relief from a Support Order: Family Code section 3691
    • The rules governing setting aside a support order. Including actual fraud, perjury, etc.
  • Unable to Set Aside Support Order for Unfairness/Inadequacy:Family Code section 3692
    • A support order can’t be set aside just because the court finds that it was unfair when made or that circumstances after the order made it inadequate. The party would need to file to modify the support order.
  • Setting Aside Portions of the Support Order: Family Code section 3693
    • The court has will set aside the provisions of the support order that are affected by the circumstances leading to the court granting relief; however, the court has the discretion to set aside the whole order if need be.

Spousal Support

  • Family Support: Family Code section 92
    • Family Support is an agreement, order, or a judgment between the parents that combines child support and spousal support. It does not designate what amount is paid for child support or what the amount for spousal support is.
  • Spousal/Child Support During Pendency of Proceeding: Family Code section 3600
    • While waiting for the proceeding to take place, the court can order temporary spousal support or child support from both spouses in order to meet the necessary needs. This applies to proceedings that include: dissolution of marriage, legal separation, etc.
  • Modifying Temporary Support: Family Code section 3603
    • A spousal or child support order made during pendency of a proceeding can be modified or terminated at any time. However, it cannot alter the amount that is past due or previously ordered to be paid.
  • Retroactive Support: Family Code section 3653
    • The court can make an order to modify or terminate support retroactive to the date that the notice of motion was filed. This means that there could be a possible credit for the overpaid support after the notice of motion if the court decides to modify the support. There are exceptions to this ruling that include unemployment, military service, etc.
  • New Partner Income for Child Support: Family Code section 4057.5
    • The court does not consider the new parent’s spouse/mates income when determining or modifying child support. There are exceptions to this rule for extraordinary cases which includes a parent who intentionally quits working to try to reduce income.
  • Separate Property Spousal Support: Family Code section 4301
    • When there is a court order, the person has to pay spousal support with their money that has been accrued after the date of separation.
  • Separate Living Spousal Support: Family Code section 4302
    • A person doesn’t have to pay spousal support if there is no order and they are living apart or if there is an agreement that doesn’t call for spousal support.
  • Considerations for Ordering Support: Family Code section 4320
    • A list of the circumstances that the court considers when ordering spousal support.
  • Cohabiting and Spousal Support: Family Code section 4323
    • If a person is cohabiting with a non-marital partner, it can be assumed by the court that there is a reduced need for spousal support.
  • Domestic Violence and Spousal Support: Family Code section 4325
    • If there has been criminal conviction for domestic violence within a time frame of the dissolution of marriage, then the court may not award spousal support to the abusive spouse.
  • Spousal Support: Family Code section 4330
    • The court can order spousal support during a judgment of dissolution of marriage or legal separation.
  • Spousal Examination: Family Code section 4331
    • The court can order an examination of the party to find that party’s potential for obtainment of employment that would allow the party to maintain themselves at the marital standard of living.
  • Retroactive Spousal Support for Dissolution of Marriage: Family Code section 4333
    • The order for spousal support can be made retroactive to the date of the filing of the notice of motion/order to show cause.
  • Contingent Spousal Support: Family Code section 4334
    • If a court orders spousal support for a contingent period of time, the support ends when that contingency has been met. Contingency is an event or goal such as finding employment.
  • Spousal Support for Long Duration Marriages: Family Code section 4336
    • Unless there is a written agreement between the parties to the contrary, the court retains jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal separation where the marriage is considered of a long duration. Typically a marriage of 10 years or more is considered a long marriage.
  • Termination of Spousal Support through Death or Remarriage: Family Code section 4337
    • Spousal support terminates upon death of either party member or upon the remarriage of the other party.
  • Support After Death: Family Code section 4360
    • In certain circumstances, the court may order the supporting party to include a sufficient enough amount so that the supported party can purchase an annuity or a trust. This is to ensure that the supported spouse will not be left without the means to support if the supporting spouse dies.

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