California Family Law Attorney
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December 13, 2010
  2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS
Posted By Thurman Arnold, CFLS

Effective January 1, 2011, you may serve post-judgment motions to modify custody, visitation, or child support orders by regular mail and file with the Court a declaration of mailing.

This is revised Family Code section 215. Until now applications to change these orders needed to be personally served upon the other party. This created hardship and added expense for many people, since it can be difficult to locate the whereabouts of the other parent in some families months or years after a Judgment for Paternity, Nullity, or Dissolution of Marriage or Domestic Partnership. This often necessitated service by publication if there was no good address - publication in a newspaper can approximate $400, and service is not deemed effective for at least a month after the fourth week of being published. Moreover, an order permitting Service by Publication also needed to be obtained, which itself costs money and time. To this extent the revision is a good thing.

The bad news is that this provision may encourage fraud, which might result in hearings where only one party really knew to be present. Litigants may claim that the papers were mailed when they weren't. Perhaps the person who signs the declaration (grandma) doesn't walk the letter to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't - how could it be proved? What happens when someone doesn't get the mail on the receiving end, whether because of the letter is lost, by inadvertence, or for having moved? So long as the moving papers contain the required Proof of Service they are presumptively valid and orders will issue even when the responding party fails to show up for the hearing.

Hence, the burden of attacking a modification taken by default shifts to the answering party. For instance if an order is issued by reason of their mistake, inadvertence, or surprise it remains valid until and unless a successful challenge is filed and upheld. These motions are expensive, and judges tend to disfavor them. Here your remedies are (a) filing a motion to quash service, which you won't be able to prove (how does one establish the pleadings weren't mailed?) and/or (b) filing a set aside motion pursuant to Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order is entered. Likewise, while there is no time limit for setting aside orders obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third, the other party must bear all the initial expense, which can be considerable since these motions are technical and require the help of an attorney. Fourth, anyone responding to a motion is already at a disadvantage. The moving party has whatever time they needed to draft their paperwork, but once this is "served" the respondent must answer within about 15 days of the date of mailing (I will Blog the exact timing separately). Fifth, it is hard to un-ring a bell once a Court has heard from one party.

FC 215 streamlines litigation where people are responsible. It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents who have gone 'walk about.' The greatest likelihood for abuse is with child support modifications.

One thing is for sure: You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still in high school and live with the first parent. If you move and fail to notify the court, and a modification occurs in your absence, you may not be relieved of your carelessness once you finally learn of the new orders!



Thurman W. Arnold, CFLS


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October 28, 2010
  What Do I Do to Protect My Community Interest In PERS and STRS RETIREMENT PLANS?
Posted By Thurman Arnold

Q. What should I consider to ensure that I have a claim in my husband's teacher's retirement plan once he files for divorce?


A. CalPERS (PERS) is the California Public Employee's Retirement System. California Government Code sections 20000 to 21703 describe it. This includes all kinds of California state employees including police officers, firefighters, emergency services employees, and other public safety employees as well as university teachers, professors, and other professionals.

CalSTRS (STRS) is the State Teachers' Retirement System, which is governed by California Education Code sections 22000-25115.

Both require a joinder pursuant to Family Code section 2060 as a condition to complying with an order against the plan, and they are generally cooperative in facilitating this. Likewise, most other municipal plans require joinder and cooperate with parties who are attempting to accomplish it.

In order to protect your rights, we recommend that you not only serve the Joinder Summons and related pleadings (see our Family Law Forms Library page) but that you also give written notice, by certified mail, on the Plan per Family Code section 755.

The joinder process for those California employee benefits that you can join is easy. The forms you need are the

It is important to name the plan correctly. The plan is a separate entity from the employer. Next, they do need to be properly served per FC section 2062.

Within 30 days the plan must respond by a Notice of Appearance. However, they rarely do. If they fail to, the clerk must enter their default. As a practical matter, the Plan will likely accept the order of the court or any settlement you reach thereafter so long as it meets the plan administrator's requirements.

Thurman W. Arnold III, CFLS

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