California Marital Settlements – April 2006 Summary
Legal Developments
Acknowledgment Form Revised
Civil Code §1189(a) has been amended, effective January 1, 2006, to require the inclusion of the name and title of the officer in an acknowledgement form. Specifically, the use of the phrase "the undersigned notary public" is no longer sanctioned. New Questions 806 and 807.
Domestic Support Obligations Now Nondischargeable in Bankruptcy
For bankruptcy cases filed on or after October 17, 2005, if an obligation is a debt provided for in a "separation agreement, divorce decree, or property settlement agreement," then it qualifies as a "Domestic Support Obligation" pursuant to 11 U.S.C. §101 (14A). Domestic Support Obligations are nondischargeable pursuant to 11 U.S.C. §523. For cases filed prior to that date, such obligations remain technically dischargeable under the prior rules. Questions 128, 133, 134, 150, 598, 599, 716 and 726.
Ninth Circuit Holds that QPSAs Cannot Be Assigned to Children
Hamilton v. Wash. State Plumbing & Pipefitting Ind. Pension Plan (9th Cir. 2006) 433 F.3d 1091, held that "ERISA does not permit children to be designated as alternate payees in a QDRO. Only the surviving spouse (or a former spouse properly designated) is eligible for those benefits." Question 276.
Full Evidentiary Hearing Not Required in Every Move-Away Case
In In re Marriage of Brown & Yana (2006) __ Cal.4th __, __ Cal.Rptr.3d __, the Supreme Court reversed a Court of Appeal decision that sought to expand LaMusga to hold that an objecting parent was entitled to a full evidentiary hearing in every case. The Supreme Court disagreed, holding that a trial court may deny a noncustodial parent's request to modify custody based on a change of residence of the child without holding an evidentiary hearing, if the noncustodial parent's allegation or showing of detriment to the child is not substantial in light of all the circumstances presented in the case, or is otherwise legally insufficient to warrant relief. Question 506.
No Termination of Parental Rights by Agreement
Lawgic does not provide this option because it is contrary to public policy and unenforceable. This was recently reaffirmed in Kristine M. v. David P. (Seth M.) (2006) __ Cal.App.4th ___, __ Cal.Rptr.3d __ [Judgment terminating parental rights per stipulation where no adoption planned violates public policy and is void.] Question 506.
New Option to Include Military Reservist or National Guard Paragraph
If either Husband or Wife are a member of the Military Reserve or National Guard you may now include a paragraph explaining the effect of Fam. Code §3047: "A party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military service and deployment out of state." Questions 573, 574 and 575.
Privacy Provisions Allowing Sealing of Financial Documents Held Unconstitutional
Fam. Code §2024.6, the statute that permitted the sealing of financial documents, was declared unconstitutional in In re Marriage of Burkle (2006) __ Cal.App.4th __, __ Cal.Rptr.3d __. Thus, it is unlikely that Court Clerks will still honor the ex parte notices to seal financial documents. Question 779.
Detailed Findings Required for Mutual Restraining Orders
It is unclear whether a marital settlement agreement can provide for mutual conduct restraining orders without independent proof being submitted to the court to support mutual orders pursuant to Fam. Code §2047 (no mutual conduct restraining orders absent proof) and Fam. Code §6305 (proof required for entry of conduct TROs and protective orders). Technically, such mutual conduct TROs should not be entered when the judgment is submitted by declaration pursuant to Fam. Code §2336. In these cases, the court should require the appearance of the parties pursuant to Fam. Code §2336 (b)(4) (appearance is in the interests of justice). The Court of Appeal recently held in Monterroso v. Moran (2006) __ Cal.App.4th __, __ Cal.Rptr.3d __ that unless the trial court makes the detailed findings required by Fam. Code §6305, it acts in excess of jurisdiction by entering a mutual restraining order. Question 784.
Nullity on Grounds of Fraud Must Relate to Sex or Procreation
A Nullification of marriage may be granted on the basis of fraud only if the misrepresentation goes to the party's intentions with respect to the sexual or procreative aspect of marriage. Neither party may question the validity of the marriage upon the ground of reliance upon the express or implied representations of the other with respect to such matters as character, habits, chastity, business or social standing, financial worth or prospects, or matters of similar nature. In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 31 Cal.Rptr.3d 663. Question 94.
Career Assets Are Not Recognized in Property Division Unless the Holder Is Engaged in a Business
Career assets such as celebrity or executive goodwill are not recognized unless the holder is engaged in a business or profession. In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th 1090, 35 Cal.Rptr.3d 287. Questions 143, 145 and 174.
Tax Court Allows Gillmore Payments Deducted as Alimony
In Dunkin v. C.I.R. (2005) 124 T.C. No. 10, 124 T.C. 180, the taxpayer was paying his former wife her share of his defined benefit pension plan before he actually retired pursuant to a Gillmore order. He deducted the payments made as alimony and the Tax Court agreed.
The IRS has appealed this decision to the 9th Circuit. Question 250.
Proper Date of Valuation of a Residence Will Usually Be the Date Closest to Trial
A date of separation valuation of property is appropriate '"when the hard work and actions of one spouse alone and after separation, greatly increases the 'community' estate which then must be divided with the other spouse."' 'On the other hand, when an asset increases in value from nonpersonal factors such as inflation or market fluctuations, generally it is fair that both parties share in that increased value.'" In re Marriage of Sherman (2005) 133 Cal.App.4th 795, 800-801, 35 Cal.Rptr.3d 137. Question 371.
Requirements for Reimbursement to Community for Payment of Support in Prior Relationship
There is no liability to reimburse the community for any such payments unless there was nonexempt separate property income available when the payment was made. Each installment paid is treated as a different debt and the three-year statute of limitations contained in Fam. Code §916 runs as to each. As to each such payment, to secure reimbursement, the objecting spouse must show that the paying spouse had nonexempt separate income available when community property funds were used to make a particular support payment. In re Marriage of Sherman (2005) 133 Cal.App.4th 795, 35 Cal.Rptr.3d 137. Question 696.
Updated Product Features
New Option to Specify Treatment of Assets Sold or Transferred in Violation of the Automatic Temporary Restraining Orders
You may now add a section reciting a breach of the ATROs by either party (or both) and specifying the remedy. New Questions 122 through 127.
New Formatting Option to Include Document Title in Footer for Judgment
Cal. Rules of Court, rule 201 (g) provides : "Except for exhibits, each paper filed with the court must bear a footer in the bottom margin of each page, placed below the page number and divided from the rest of the document page by a printed line. The footer must contain the title of the paper (examples: "Complaint," "XYZ Corp.'s Motion for Summary Judgment") or some clear and concise abbreviation. The title of the paper must be in at least 10-point type." A new question allows you to specify such a footer when drafting a judgment. New Question 799.
New Formatting Option to Include Table of Contents in Page Numbering Sequence for Judgment
Traditionally, Lawgic’s optional Table of Contents has included page numbers (in lower case Roman numerals) in a separate sequence from that of the main document. For a Judgment this is technically inconsistent with Cal. Rules of Court, rule 201 (e) (1) which provides: "Each page must be numbered consecutively at the bottom." Cal. Rules of Court, rule 201 (a) provides that this requirement applies to "all documents, except exhibits or copies of documents, that are offered for filing in any case." A new question asks if you want separate page numbering for the Table of Contents. New Question 802.
New Option to Specify Application of Estimated Tax Payments Made Prior to Separation or Overpayment of Taxes or a Refund from a Previous Year Applied To Future Taxes
You may now add a section specifying the treatment of estimated tax payments or overpayments/refunds to be applied to future taxes. In the absence of such agreement taxing authorities apply any such amounts existing on a joint account to the first tax return processed. You may also specify notification of the taxing authorities by a separate document. New Questions 765 through 772. |
