Flashcards in New New Deck (49):
Motion for Sanctions under 271 requires .... (3)
2. opp to be heard
3. finding of evi supports propriety of fees as sanctions
what is a preferential payment?
made within 90 days of filing while debtor was insolvent (or 1 year if an 'insider trade') - can get judgment against creditor. exc: DSO
what is the diff between a preferential payment and a fraudulent conveyance?
fraud. convey is a txfr of property done with intent to hinder, delay or defraud credit. preferential payment is generally a distribution of income.
reverse pereira credit for post-sep efforts of 1P which increased the value of the SP business.
how to show that someone knew of motion of which you are trying to hold them in contempt?
- present when order was made
- personally served with the OAH
be ready to have the person who served @ hearing in the event OP says they weren't served. Only exc is where it was a reg'd process server
MA and 2 C
BIC to remain together (Williams) b/c right to continued companionship of sibligns.
CCE to determine BIC of event 1P moves
80% TS = de factor sole px custody
Allocation of C expenses
authority to make orders re education of C through 4061 which provides 50/50 share OR proportional to each Ps respective adjusted income
if 1P take gilmore election to retirement, not entitled to increases except for COLA
DRO --> QDRO
become QDRO when they are approved by the plan administrator.
What happens if a P dies before it becomes a QDRO
Ct retains jx to cause DRO to become a QDRO after death
Carmona v. Carmona
If you retire, you can't change the beneficiary to post-retirement and annuity benefits because they are now payable. Doesn't matter if there is a court order which permit the change to to occur. You are locked in.
Kennedy v. Plan Admin of Dupont
If P waives rights to def'd comp through MSA, they must sign any plan docs to effectuate that. Otherwise, the plan docs control and a distribution to that P despite the waiver is still okay. PLAN DOCS CONTROL THE PLANS ACTIONS. Pymt is not a violation of ERISA
- living together
- family 2nd degree (uncle, aunt, 1st cousins, neice, nephew, siblings, parents, children)
Timeframes for commencing discovery after petition?
- 10 days from service of summons for ROGS
- 20 days from service of summons for Demand or deposition
May be limited by Ct under CEC 723
- special knowledge, training, education on area
Q: did you rely on publication?
Q: was publication reliable? normally relied upon?
Q: Compensation paid to expert?
Authentication of Docs
- Writing doesn't need to be authenticated by writer, can be done by anyone who saw it written or knows the handwriting (laywit okay)
- no auth needed for docs 30+ years old
- no auth needed for docs rec'd in response to a communication
- no auth needed for doc relating to algo unlikely to be known by anyone other than the claimed author of the writing
FL Privileges - list
- spousal privilege
- confidential m'l comm
BOP to Term Parental Rights
C+C of unfitness; doesn't need to be current unfitness
BOPs for Custody to NonParents
Non-custodial P must show with C+C that detriment to the C to be removed from their care
BOP shifts to Ps to show, prep of evi, that in BIC to be returned to them.
Test: Undue Influence
1. Confidential Relationship btw Ps?
2. Did Benefitted P ....
- rely upon confidential relationship?
- participate in the transaction?
- get an advantange (pre-92) or unfair advantage (post-1992)?
IF YES - BOP shifts to benefited party to show that there was no UI
- adeq consideration
- OP knew of all the facts
- voluntarily agreed, etc.
No need to wait 7 days for signing of PMA where both parties were presented from the outset by independent counsel
SSM in CA prior to WINDSOR decision
CA would give RDPS same rights are married couples, but they couldn't call themselves M'd
CA would recognize SSM entered into in any jx where validly entered into before 11/4/08; after 11/5/08, could not recognize SSM
Biological Bond and parentage
Bio-bond is not determinative in parentage, especially where there is already a bond between someone else, such as SSC or non-bio dad.
in re NICHOLAS H
Non-bio dad was given legal status as father because he was a de facto father
W listing her C from a prior marriage in her petition was sufficient to allow court to make orders with step-father. JX appropriate b/c W gave the jx to the court.
C has have 2+ parents if it would be detrimental to the C not to order. Must be a qualifying P. Effective 1/1/14.
Grounds for Motion to Set Aside (2)
473(b) + 2120
Mistake of fact or honest mistake of law
2120 Reasons and SOL
Actual fraud (1)
Failure to comply with disclosure rqmts (1)
Mental incapacity (2)
upon service; but upon petitioner? unclear.
FC 233 - atros upon issuance of summons + svc
CCP 1005 timeframes
Motion - 16 court days
Response - 9 court days
Reply - 5 court days
+ 5 service by mail in CA
+10 service by mail in US
+ 20 service outside of the USA
+ 2 service by fax
2 year SOL
Fraud - EXC learned of fraud and continued cohabitating with them.
2 year SOL
Valid M outside of CA?
CA will recognize it as valid if it was valid under the laws of the jx where the M was entered into.
Doctrine of Divis. Divorce
Disso issues may be heard in diff jxs based upon jx'al considerations such as facts, evidence, convenience and location of parties/witnesses.
Income in FL?
BROADLY defined to include from any source, including pensions, annuities, WC, unemp benefits, disability ins $, soc sec benefits ACTUALLY RECEIVED by P. BUT CANNOT BE LIMITLESS (Alter).
Can include mandatory 401k contributions, pre-tax cafeterial plans, value of options (market price, less option price = income)
Adjust income with ...
- health insurance cost
- union dues
- mortgage int
- property tax
- marketable skills
- earning capacity (now + future)
- supported Ps contrib to edu, training, of payor
- obligations and assets
- length of M
- employment and needs of C
- tax conseq
- goal of Ps to become self-supporting
SS/MSOL can consider savings, investments, expenses and lifestyle. EXCESSIVE spending beyond income should not be considered (Smith), and should be capped if the Ps financed their lifestyle with loans (Weinstein)
Deferred Sale of Home
Ct can order deferred sale of family home (FC 3800) where C is benefited by the deferral + maintenance of the home is financially feasible. Can be done even if the property division is unequal.
C- C, disabled adult C
Earning Capacity + BOP
BOP is on the P claiming there is an earning capacity
SS reservation in a STM = abuse of discretion
Factors to Consider in DEVIATING from Guideline
- stipulation of the Ps to non-guideline
- extraord. high income --> CS that exceed needs
- 1P not contrib'ing to need inline with their TS
- mortgage free residence
Modification of OOS CS Order
FF+C given to out of state orders.
Should register orders, including custody order
MODIFY ONLY IF
- CA has jx AND
- neither P or C is living in the state that made the original order
UIFSA and Modification
Modify OOS CS order if ...
1. neither P or C in original state
2. P seeking mod is not resident of CA
3. P not seeking mod is a CA resident
Reasonable Rate of Return for Investment?
Can give time to make sure investment is can be income producing.