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Statute and Topical Index
Civil Appeals From Family Court Proceedings
- Filing Appeals Generally: Code of Civil Procedure section 901.4
Please visit our EnlightenedBlog™ articles on Appellate Procedures in Family Law Cases!
- Time for Filing Appeals: California Rules of Court, Rule 8.104
Please visit our EnlightenedBlog™ articles on Appellate Procedures in Family Law Cases!
Attorney Ethics and Relevant State Bar and Related Codes and Rules
- Duty of Family Law Attorneys to Be Competent: California Rules of Professional Conduct, Rule 3-110
State Bar Rule 3-110 defines the minimum standards of "competence" required of all California divorce and family law attorneys.
- No Self-Dealing of Divorce Attorneys Towards Their Clients: California Rules of Professional Conduct, Rule 3-300
California Divorce Lawyers cannot enter into self-dealing transactions with their clients.
- Attorney's Duty to Disclose Lack of Malpractice Insurance: California Rules of Professional Conduct, Rule 3-410
State Bar Rule 3-410 describes the duty of matrimonial lawyers to disclose when they do not have malpractice liability insurance.
- Duty to Maintain Client Funds in Trust Account: California Rules of Professional Conduct, Rule 4-100
State Bar Rule 4-100 requires marital attorneys to maintain and place all unearned retainer deposits into an "IOLTA" - an Interest on Lawyers Trust Account, and not into their general office account! The State Bar takes this obligation seriously, and attorneys are regularly disciplined for misappropriating client funds in this fashion.
- Trial Conduct and Duty to Not Mislead the Court: California Rules of Professional Conduct, Rule 5-200
State Bar Rule 5-200 prohibits family law attorneys, as 'officers of the court,' from lying or intentionally misleading the court or from 'vouching' for their clients, i.e., speaking as if they have personal knowledge or were witnesses to events they did not in fact observe.
- Family Law Attorney Retainer Fee Agreements Must Be In Writing: Business and Professions Code section 6148
B & P Code section 6148 requires family law attorneys to submit and execute, together with the client, a written fee contract whenever clients advance more than $1,000, or the costs of the attorney's services are reasonably expected to exceed $1,000 - and to provide the client a signed copy for their records.
Attorney Fees in California Family Law Proceedings
- Ability to Pay Attorney Fees: Family Code section 270
This statute states the threshold requirement for any family court fee award - a party must have the ability to pay. However, the fact that a party's expenses exceed their income does not equate with an inability to pay lawyer's fees.
- Attorney Fees as Sanctions for Bad Faith Conduct: Family Code section 271
FC § 271 is the key, all-purpose family law and divorce related "attorney's fees and costs" sanctions statute for conduct that frustrates the California public policy favoring settlements and punishing behavior that increases the costs of litigation.
- Prior Court Order for Fees Payable to New Attorney: Family Code section 272
Section 272 covers situations where an attorney fee award with an unpaid balance was awarded to an attorney who has been discharged or quit the case, so that this money might be tapped to pay for the fees needed to conclude the case.
- Attorney Fees and Disparity In Relative Access to Funds: Family Code section 2030
FC § 2030 is the starting point for all attorney fee requests for orders in dissolution, legal separation, or annulment proceedings and states what factors a court must consider, chief among them being a "disparity in access and ability to pay."
- Temporary Attorney Fees: Family Code section 2031
An oral attorney fee request made by made in open court, at any hearing until the time final judgment is entered.
- Attorney Fees Payable From Separate Property: Family Code section 2032
FC § 2032 grants family courts jurisdiction to order attorney fees to be paid from the separate property of the other spouse or domestic partner.
- Family Law Attorney's Real Property Lien: Family Code section 2033
FC § 2033 establishes the procedure for creating a "FLARPL" - a family law attorney's real property lien, which are strictly governed.
- Objecting to Family Law Attorney's Real Property Liens: Family Code section 2034
This Family Law Act statute explains how any person affected by the creation of a FLARPL can object.
- Temporary Restraining Order Upon Filing of Dissolution: Family Code section 2040
Family Code § 2040 contains the "ATROS" - automatic temporary restraining orders that become effective the moment the a party to a marital or domestic partnership dissolution files the Petition, and the moment the other party is served with the Petition and the Summons (which sets forth this statute's terms). It authorizes the use of community property funds, or the sale of assets, for purposes of hiring a family law attorney.
- Attorney Fees in Custody Cases: Family Code section 3121
This Family Law Act statute authorizes a "husband" or "wife" to seek attorney fees where no petition for dissolution, legal separation, or annulment has been filed if one brings an action for "exclusive custody." This is rarely seen, but arguably the section applies to custody proceedings between parents who never married or registered as domestic partners.
- Attorney Fees for Enforcing Support Orders: Family Code section 3557
FC § 3557 authorizes family court judges to award attorney fees to a party who incurs legal fees to enforce a judgment or orders relating to child or spousal support.
- Attorney Fees to Prevailing Party In Support Modification or Set-Aside: Family Code section 3652
Section 3652 specifically authorizes the recovery of attorney fees in certain situations involving spousal support.
- Attorney Fees And Sanctions Where Party Lied About Their Income: Family Code section 3667
This statute authorizes courts to award attorney fees, and costs including deposition expenses, incurred by reason of a party's false or incomplete income statements contained in their FL-150.
- Payment of Attorney Fees and Costs in Domestic Violence Cases: Family Code section 6344
Attorney fees and costs may be recovered to either party in actions involving domestic violence requests for orders.
- Paternity Actions and Attorney Fees: Family Code section 7605
Lawyer fees incurred in paternity cases may be ordered by the family court parentage has been established, in order to maintain the action. The actual standard to be applied is as set forth in sections 2030 and 2032.
- Expert Fees in Paternity Cases: Family Code section 7640
Expert fees and the costs of forensics like blood tests, may also be awarded in paternity actions.
- CRC Rules for Sanctions, Including Attorney Fees: Cal.Rules of Court, Rule 5.14
This rule provides the framework for seeking monetary sanctions, including but not limited to attorney fees and costs, under the Family Code. This includes FC section 271 applications. It also empowers courts to set their own sanctions' motions. It makes clear that motions for sanctions must be supported by an independent RFO.
- CRC Rules for Attorney Fee Applications: Cal.Rules of Court, Rule 5.427
Attorney fee applications must now conform to, and provide all the information required by, new CRC Rule 5.427.
- Sanctions for Bad Faith Conduct or Tactics: Code of Civil Procedure Section 128.5
Rarely used in family law cases, CCP is an independent ground for seek sanctions beyond attorney fees and costs for bad faith conduct that would otherwise be covered by Family Code section 271!
- Void Marriages: Family Code section 2200
FC section 2200 declares what constitutes incest and makes a marriage void from inception.
- Annulment For Prior Existing Marriage: Family Code section 2201
Exceptions to marriages otherwise void by reason of bigamy.
- Grounds for Annulment in California: Family Code section 2210
FC section 2210 state the grounds for annulment.
- Time for Filing for Annulment: Family Code section 2211
This section sets forth who can request an annulment and when they must make the application.
- Putative Spouses and Registered Domestic Partnerships: Family Code section 2251
Family code section 2251 is a very important statute for protecting the marital rights of spouse who learns their marriage is void, for instance because they "spouse" never completed their prior divorce; this is because, absent a legal marriage, there is no right to spouse support and no community property to divide.
Child Support Issues
- Grandparent Child Support Orders: Family Code section 3103
FC section 3103 addresses the burden of proof that grandparents must meet in order to obtain visitation orders with their living children's children. It also authorizes family courts to order them to pay child support!
- Duration of Child Support Orders: Family Code section 3601
Child support can terminated by the Court, or by operation of law.
- Effect of Reconciliation on Child Support Orders: Family Code section 3602
Enforcement of existing child support orders cannot be enforced for the period where parties are reconciled and living together. Arguably, reconciliation has the same effect on spousal support orders.
- Retroactive Modification of Child Support to Date of Filing of Request: Family Code section 3603
You continue to be on the hook for child support that accrued prior to the date that you file an application to modify or terminate it, if that request is successful.
- Set Aside of Child Support Orders or Arrears: Family Code section 3651
- Mandatory Statement of Decision on Support Modification or Set Aside: Family Code section 3654
You are entitled to a "statement of decision" from the Family Court whenever it changes child or spousal support orders, but these are tricky and you must understanding the timing of the request and how to make it.
- Equal Duty of Parents to Support Child: Family Code section 3900
Section 3900 has been applied in situations involving statutory rape (i.e., minor father seduced by adult woman who thereupon becomes pregnant) or to void agreements between parents by which a mother says "I waive child support if you get out of our life and agree to terminate your parental rights."
- Duration of Duty of Parents to Support Child: Family Code section 3901
Family Code section 3901 is important in that includes the traditional limitation that the duty to support a child who is not incapacitated ends when that child reaches the age of 18, or 19 where the child is a full-time high school student and is not otherwise self-supporting. This is standard language in most stipulations, marital settlement agreements, and Stipulated Judgments.
- Duty of Both Parents to Support Incapacitated Child: Family Code section 3910
Parents are responsible for for life to "maintain" according to their "ability" adult children who are incapacitated. This duty cannot be waived by a stipulation as between the parents that one or both will not be so responsible.
- No Duty of Grandparents to Support Grandchildren: Family Code section 3930
Grandparents who don't seek court orders for custody or visitation of grandchildren cannot be ordered to pay child support. Those that do seek such orders can be liable not only for child support, but also for attorney fees incurred by one or both of the child's parents. See FC section 3103.
- Liability to Others Who Provide Support for Child: Family Code section 3951
Beyond direct court orders for child support, parents are not required to reimburse the other parent, a relative, or strangers who voluntarily support a child without an agreement that they will do so. This section really is applied to bar efforts by county agencies to recover monies expended by non-parent relatives.
- Contingent Child Support Orders for a Period of time: Family Code section 4007
Family Code section 4007 provides that where a court has issued specified child support orders subject to a contingency, if the other parent collects money beyond the contingency, they must refund the monies.
- Retroactive Child Support: Family Code section 4009
While Family Code section 4009 seems to say that family courts can make child support orders retroactive to the date that, for instance, a Petition for Dissolution (or Paternity Complaint) is filed (that has the 'child support request box' checked), that is not how it is interpreted by the appellate decisions or the Law Revision Commission Comments.
- Statewide Guideline Child Support Formula: Family Code section 4050
Fam. Code section 4050 states the general rule that California is to be in compliance with federal regulations for uniform support obligations, which assures that the state will receive certain federal monies.
- Departures from Guideline CS Formula: Family Code section 4052
California family courts are supposed to not deviate from the guideline support numbers except when specifically authorized by statute.
- Child Support When More Than Two Parents: Family Code section 4052.5
This statutes guides courts in setting child support where there are more than two legal parents.
- Principles Courts Must Follow in Ordering Guideline CS: Family Code section 4053
This section delineates general principles that family courts must apply when utilizing the state-wide formula.
- Statewide Guideline Child Support Formula: Family Code section 4055
This is the actual algebraic formula that the support programs must crunch in coming up with the guideline support amounts.
- Rebuttable Presumptions Affecting Court-Ordered Child Support: Family Code section 4057
Family Code section 4057 is a child support statute that you must read if you hope to persuade your family court judge to deviate from the presumptively correct child support numbers.
- Gross Income for Purposes of Child Support: Family Code section 4058
Section 4058 defines what is "income" for purposes of inputting information into the guideline formula software programs.
- Net Disposable Income for Purposes of Child Support: Family Code section 4059
The statewide child guideline child support formula derives a "net disposable income" number that is "tax-effected" by subtracting standardized deductions from a party's gross income.
- Additional Child Support Orders: Family Code section 4062
FC section 4062 is important because these child-related expenses are add-ons to the basic child support numbers kicked out by the support software programs. Usually, but not in all cases, they are split equally between the parties.
- Reimbursing Uninsured Health Care Costs: Family Code section 4063
Read FC § 4063 carefully if you expect to have recurring health-care reimbursement issues relating to your children.
- Child Support Orders Based Upon Fluctuating Income: Family Code section 4064
For people who earn income based upon commissions, or receive large bonuses, this is an important family law statute. Income figures inputted into the support software programs must be truly representative of expected income. I've recently blogged about the treatment of bonuses and commissions as "additional child support."
- Family Support Orders - Making Child Support Deductible: Family Code section 4066
"Family support" orders and stipulations can be a terrific way to cause the state of California to underwrite some of your child support obligation by giving you deductions that typically only apply to spousal support awards.
Civil and Family Code Discovery In Family Law Cases
- Subpoenas to Witnesses: Code of Civil Procedure section 1987
Parties and nonparties can be subpoenaed to appear at hearings and to testify at a hearing by a lawyer or party acting as their own attorney.
- Motion to Quash Subpoena: Code of Civil Procedure 1987.1
CCP section 1987.1 allows parties and witnesses, including "consumers" whose records are being improperly sought in a proceeding, to attempt to quash or limit the scope of a subpoena.
- Depositions in California: Code of Civil Procedure section 2025.010
CCP section 2025 sets forth the rules that apply to oral depositions in California. Section 2025.010 is the starting point, and sets forth what a deposition notice must state - including when a video deposition will be undertaken.
- When May a Deposition Be Taken?: Code of Civil Procedure section 2025.210
Absent a court order otherwise, a deposition cannot be taken earlier than 20 days after the other party has been served with the Summons and Petition for Dissolution or Legal Separation. As a practical matter, and except in emergency circumstances, it is not reasonable to expect the other party to be available for deposition that quickly.
- Notice to Produce Documents at Deposition: Code of Civil Procedure section 2025.220
This section governs deposition notices when the witness is also being requested to appear and produce documents. someone only once assuming the deposition is completed.
- Service of Notice of Deposition: Code of Civil Procedure section 2025.270
You must give at least 10 days notice of a deposition to a party or third party witness, and 20 days' notice if you are asking them to bring "consumer" or employment records.
- 7 Hour Time Limit for Depositions of Witnesses: Code of Civil Procedure section 2025.290
Effective January 1, 2013, depositions are limited to 7 hours of questioning by the asking attorneys (or parties), absent a court order declaring the case to be complex or other order of Court.
- Divorce Interrogatories: Code of Civil Procedure section 2030.010
Interrogatories are highly useful, and have advantages for instance as compared with attempting to obtain information about the other party's case through deposition, because they can ask about legal contentions.
- Family Law Form Interrogatories: Code of Civil Procedure section 2030.030
There are two types of interrogatories that are very useful in family law litigation: Form and specially prepared interrogatories.
- Declaration for Additional Interrogatories: Code of Civil Procedure section 2030.050
CCP section 2030.030 limits the number of interrogatories that can be asked in a case to 35; however, all that is needed is a properly completed declaration for additional discovery in order to ask a greater number.
- Form of Propounding Special Interrogatories: Code of Civil Procedure section 2030.060
It is critical that special interrogatories be drafted in accordance with this section, and that you make them as simple and clear as possible.
- Form of Responding to Special Interrogatories: Code of Civil Procedure section 2030.210
Be sure to answer interrogatories in the manner prescribed by this section.
- Time for Responding to Interrogatories: Code of Civil Procedure section 2030.260
Answers are due within 30 days of the date you mail your interrogatories, plus five more for mailing unless they are personally served.
- Demands for Production and Inspection: Code of Civil Procedure section 2031.010
Production demands are an essential form of discovery that should be used early on in a case. In contrast to interrogatories and requests for admission, which are limited to 35 questions as a "matter of right", there is no limit on demands for production.
- Form and Timing of Production Demands: Code of Civil Procedure section 2031.030
Follow the rules for how to draft these to avoid unnecessary argument and objections over form.
- Requests for Admission: Code of Civil Procedure section 2033.010
"RFAs" require the other party to admit or deny a certain fact, the truth of a legal claim or defense, or the authenticity of important documents.
- No More Than 35 Requests Absent Cause: Code of Civil Procedure section 2033.030
As a general rule, don't ask more than 35 questions in any one sitting anyway - when you create that much work for the other side, you increase the likelihood that they will give you objections or worthless answers.
- Declaration Form for More Than 35 RFA's: Code of Civil Procedure section 2033.050
Since each side is only entitled to 35 request for admission as a "matter of right," use this declaration if you need to exceed that number over the life of your case.
- Discovery In Support Modification Proceedings: Family Code section 3660
Section 3660 is intended to allow family law and divorce litigants to obtain certain types of updated financial information from the other spouse, partner, or parent by using an abbreviated request mechanism, without necessarily having to first file proceedings for modification.
- Limitation on Discovery Absent Pending Motion: Family Code section 3662
Once a judgment has been entered in any particular type of family law proceeding, except as set forth in Family Code sections 3663 and 3665, you cannot undertake discovery absent some post-judgment modification request that has been filed with the Court.
- Discovery Once Every 12 Months: Family Code section 3663
Absent a pending motion or request for order, you can't undertake discovery requests except as set forth in Family Code sections 3664 and 3665.
- Request for Production of Income and Expense (FL-150): Family Code section 3664
You can demand that the other side prepare and submit a completed Income and Expense Declaration every 12 months. Often these requests are ignored, however, and this section allows you to recover attorney fees and costs if you are forced to file a motion simply to compel the other party to provide one.
- Producing Tax Returns: Family Code section 3665
This is how you obtain the other party's tax returns so you can decide whether it is time to file an request to modify spousal or child support orders based upon a change in their financial circumstances.
- Penalties for Refusals to Comply: Family Code section 3667
Family Code section 3667 sets forth the penalties, sanctions, and attorney fees and costs that you may recover if you set your request to exchange financial information once year up correctly, if the other side ignores you or perjures themselves in what they do produce.
Community and Separate Property Assets and Debts
- Date of Separation: Family Code section 70
Effective January 1, 2017, the legislature by section 70 abrogates and rejects the California Supreme Court's decision in Marriage of Davis.
- No Interest in the Other's Separate Property: Family Code section 752
While FC section 752 states the basic rule that neither spouse has a financial interest in the separate assets of the other, there are many exceptions to this rule - particularly where one party's separate property has associated debt that gets paid from community property earnings during the marriage.
- Definition of Community Property: Family Code section 760
FC section 760 states the fundamental "community property presumption" that assets (and debts) incurred during marriage belong to the community estate.
- Definition of Separate Property: Family Code section 770
"Separate property" consists of all property owned by a spouse or domestic marriage before marriage, or which is acquired as a gift or inheritance during marriage (but gifts between spouses may not qualify per FC section 852), and includes everything that flows from an asset (i.e., rents and profits).
- Earnings and Accumulations During Separation: Family Code section 771
Money earned during periods of separation are not community property.
- What Is a Transmutation?: Family Code section 850
"Transmutations" constitute changes in the character of property from community to separate, and vice-versa.
- Formal Requirements of Transmutations: Family Code section 852
Transmutations cannot occur unless certain formalities are satisfied and established.
- Transmutations Contained in Wills: Family Code section 853
You can safely protect your spouse as an heir in a Will without risking an inadvertent transmutation.
- Liability of Marital (Community) Property For Debts of Spouses Incurred Before or During Marriage: Family Code section 910
Subject to certain exceptions, community property assets can be tapped to satisfy the separate (i.e., premarital) debts of either spouse as well as community debts they incurred during marriage - whether or not you also signed on to the debt!
- Liability of Earnings on Deposit for Premarital Debt of Other Spouse: Family Code section 911
Community property earnings are not liable for the other spouse's premarital debts so long as the monies are not commingled in a joint bank account.
- Liability of Community Property For Debts Paid or Payable After Marriage But Before Separation: Family Code section 913
According to FC section 913, a married person's separate property is liable for their own separate debts whether incurred before or during marriage.
- Liability of Spouses for Necessaries of Life During Marriage and After Separation: Family Code section 914
Family Code section 914 makes a married person's separate property liable for debts incurred by the other for necessaries of life while the parties are still married and are living together.
- General Rules of Liability Relating to Child or Spousal Support Obligations of a Married Person: Family Code section 915
Family Code section 915 treats a spouse's child or spousal support obligations to a former spouse or children born outside this marriage as a debt incurred prior to marriage, regardless when the child or support obligation is created or modified (i.e., during this marriage).
- Liability of Marital Property For Unpaid Debts After Trial or If Unallocated by a Judgment: Family Code section 916
Separate property is liable for a party's unpaid debts after trial if owed at the time of division of the community estate, as is a party's share of community property that is awarded in the property division.
- Reimbursements Between Spouses for Debts: Family Code section 920
A right of reimbursement must be exercised within specific time limits or it is waived.
- Liability for Death or Injury Caused to Third Parties: Family Code section 1000
This section limits the liability of spouses for the other spouse's car accidents, or other torts, causing a third party personal injuries.
- Automatic Temporary Restraining Orders in Summons (ATROS): Family Code section 2040
The language of Family Code section 2040 is set forth in the Summons that issues when a dissolution, legal separation, or annulment action is filed. It creates automatic restraining orders which bind the Petitioner when they sign the Petition and the Respondent when they are served with the Summons and Petition.
- Orders to Sell or Liquidate Community Property During Case: Family Code section 2108
Obtaining a court order to sell, liquidate, or encumber real or personal property before final judgment in a marital dissolution is a challenging endeavor.
- Dividing the Community Estate: Family Code section 2550
This statute is one of the basic premises of California community property laws. Family court judges must divide the community estate equally as between the parties.
- Date of Valuation of Assets and Liabilities: Family Code section 2552
Family Code section 2552 is based upon the premise that assets are, generally speaking, to be valued at time of trial. However, there are many exceptions to this rule.
- Dividing Omitted Assets and Liabilities: Family Code section 2556
This is a critical statute to invoke where you learn, after the fact, that an asset or obligation that existed when the case was filed, settled, or tried to a judge was somehow forgotten, ignored, or omitted from the equal division that is required by Family Code section 2550.
- Joint Title Presumptions: Family Code section 2581
Family Code section 2581 creates a presumption that property which is acquired in joint names during the marriage, whether or not the title document uses the words "community property", is in fact presumed to be CP.
- Conditional Awards of Community Property: Family Code section 2601
Section 2601 augments the power of the family court bench officers to divide community property equally, as is required by FC section 2550.
- Care of and Visitation with Pets Pending Final Judgment in Divorce and Legal Separation: Family Code section 2605
Section 2605 now specifically authorizes courts to make temporary orders regarding the care of, and visitation with, pets and other animals in pending dissolution and legal separation proceedings. Good to know!
- Awards and Offsets for Misappropriation of Community Property: Family Code section 2602
Family Code section 2602 permits family court judges to charge a spouse or domestic partner from their share of the community estate for property which they deliberately misappropriated. Misappropriation is something much larger than mere "mishandling" an asset.
- Dividing Pensions in California: Family Code section 2610
Family Code section 2610 simply states the obvious duty of the family court judges to ensure that each party receives their full community interest in retirement plans and assets.
- Division of Debts Unpaid at Time of Trial: Family Code section 2620
Family Code sections 2620 through 2628 describe the powers of the court to confirm and divide community and separate property debts.
- Debts Incurred Prior to Marriage: Family Code section 2621
Section 2621 makes it clear that debts incurred prior to marriage must be awarded to that spouse without offset.
- Debts and Liabilities: Family Code section 2622
This divorce statute is important to understanding the powers of divorce judges to divide debts incurred during the marriage, including for instance debts that were incurred in bad faith as part of a deliberate misappropriation of property.
- Division of Debts and Liabilities Incurred After Separation: Family Code section 2623
Section 2623 should not be overlooked when considering how a court might assign debts incurred by a spouse after the date of separation. For instance, debts for the "common necessaries of life" of either spouse or for children of the marriage can be assigned according to who is in a better position to pay them. Debts for "non-necessaries" of life are assigned to the party who incurred them.
- Debts Incurred After Entry of Judgment: Family Code section 2624
Debts of whatever nature that are incurred by a spouse after entry of a judgment dividing the community estate, where the parties have yet to terminate their marital status, are assigned to the party who incurred that debt.
- Debts Not Incurred for Benefit of Community Estate: Family Code section 2625
Family Code section 2625 assigns debts incurred by one spouse during the marriage to that spouse alone, IF the debt was not for the benefit of the community estate.
- Reimbursement for Debts Paid After Separation: Family Code section 2626
Family courts are authorized by Family Code section 2626 to order reimbursement as it deems appropriate for debts paid after separation but before trial. This section may be used to require reimbursement when community property has been applied after separation to satisfy any of the separate debts enumerated in sections 2621 through 2625.
- Separate Property Reimbursements for Contributions to Acquisition of Property: Family Code section 2640
Family Code section 2640 is essentially a reimbursement statute that requires that traceable separate property contributions to the acquisition of community property must be repaid from the value of the asset before any remaining community property equity can be found to exist and hence be subject to division.
- Reimbursements for Education and Student Loan Debts: Family Code section 2641
Generally speaking, student loan debts are assigned to the party who incurred them. However, that reimbursement may be modified or reduced to the extent that the student party can establish that the community estate substantially benefited from the education, training, or loans incurred therefor.
- Jurisdiction to Divide Jointly Titled Property Acquired Before Marriage: Family Code section 2650
When parties acquire title to real or personal property prior to the date of marriage, but for this statute the Family Law Act would require them litigate their claims relating to such property in civil court, typically through a partition action.
- Ownership of Joint Deposit Bank Accounts: Probate Code section 5305
Joint bank accounts can create their own unique issues when dividing cash accounts established during the marriage.
- Definition of "Deposit Account": Probate Code section 5122
Joint deposit bank accounts affected by Probate Code section 5305 generally don't include business accounts.
- Freezing Bank Accounts By Notice of Adverse Claim: Financial Code section 1450
Financial Code section 1450 is a critically useful tool for maintaining the status quo and protecting funds on deposit from being raided by one spouse to the exclusion of the other, which is all to common during the early stages of separation preceding divorce.
- Freezing Access to Safe Deposit Boxes: Financial Code section 1620
This statute allows you to ensure that your spouse doesn't empty the contents of a safe deposit box.
Confidentiality, Evidence and Privilege Rules
- Excluding Unfavorable Testimony: Evidence Code section 352
An Evidence Code section "352 objection" asks the court to refuse to hear testimony or to admit other evidence that is inflammatory and really wastes the Court's time. For instance, possibly a party wants to introduce allegations of fault concerning the break-up of the relationship which bears no connection to issues involving support or property division in a divorce proceeding.
- Conclusive Presumption that Facts Stated in Written Instruments are True: Evidence Code section 622
EC section 622 is an extremely useful presumption that recitals or other facts set forth in a deed, or stipulated judgment, or a premarital agreement were conclusively true at the time the document was executed and so cannot be challenged at a later date.
- Presumptions from Form of Title: Evidence Code section 662
If a deed or other title document recites who the owner is (or whether the property is community or separate or percentages of interests) it creates a presumption that both legal and beneficial title are so held which can only be rebutted by "clear and convincing" evidence - a high burden to overcome.
- Right to Cross-Examine Adverse Parties or Witnesses: Evidence Code section 776
Evidence Code section 776 is the authority for you to call the other party, or hostile witnesses, in your case in chief and allows you to cross-examine them and ask them leading questions which would otherwise be objectionable if they were own witnesses.
- Privileges Generally: Evidence Code section 911
Except where a statute otherwise provides, people cannot refuse to be called as a witness in family court proceedings.
- Waiver of Privileges Generally: Evidence Code section 912
Even where a privilege otherwise exists that would allow someone to avoid testifying, these privileges can be waived if certain conditions are met.
- Effect of Exercise of Privileges: Evidence Code section 913
If someone exercises a valid privilege not to testify, or refuses to answer based thereon, no unfavorable inference can arise from the exercise of that privilege.
- Certain Privileges are Presumed: Evidence Code section 917
Evidence Code section 917 creates legal presumptions that a valid, enforceable privilege has arisen in certain relationships - like disclosures between attorneys and clients, psychotherapists and patients, a husband and wife (which must include same-sex marriages now), and so on.
- California Privilege Against Self-Incrimination: Evidence Code section 940
The privilege against self-incrimination in California civil and marital proceedings only applies to the extent it has been interpreted according to the federal and state Constitutions.
- No Attorney-Client Privilege Involving Acts of Harm: Evidence Code section 956.6
If a lawyer reasonably believes a client has disclosed something confidential that may lead to a criminal act likely to result in someone's death, or substantial bodily harm (i.e., "I am going to kill my Wife - I really mean it!), the attorney-client privilege that otherwise precludes disclosure does not apply.
- Claim of Breach of Duty Against Lawyer Waives Attorney-Client Privilege: Evidence Code section 958
When a client sues their lawyer, or former lawyer, for professional negligence or otherwise they waive the attorney-client privilege.
- Joint Client Exception to the Attorney-Client Privilege in Family Law Proceedings: Evidence Code section 962
When parties to a divorce have previously hired an attorney to, for instance, form limited liability companies or other business entities for their benefit during marraige, in the event of a later "he-said/she-said" dispute about what either party told the attorney, both parties are deemd by operation of law to have waived any attorney client privilege about their communications with that attorney that would otherwise have existed - and so are precluded from objecting to that attorney's testimony about what either told the attorney, confidentially!
- Privilege of Married Persons Not to Testify Against Spouse: Evidence Code section 970
Married persons cannot be compelled to testify against each other, except when otherwise permitted by statute.
- Privilege Not to Testify Against Spouse Absent Consent: Evidence Code section 971
If a married person is called as a witness by a party whose interests are adverse to that witness's spouse, prior express consent of the spouse is required before the witness can testify.
- Limitation of Marital Privilege: Evidence Code section 972
Evidence Code section 972 sets forth the limitations and exceptions of the marital privilege not to testify.
- Spousal Privilege Waiver in Civil Proceedings: Evidence Code section 973
A married person who testifies against his or her spouse does not have a privilege that they can assert against the other's response to their testimony, unless the court erroneously compelled that married person's testimony.
- Privilege Not to Disclose Confidential Marital Communications: Evidence Code section 980
A married person cannot be compelled to disclose confidential communications with his or her spouse while they were husband and wife.
- Confidentiality of Offers to Settle: Evidence Code section 1152
Evidence Code section 1152 serves to make privileged from disclosure negotiations for settlement.
- Business Records Exception to Hearsay Rule: Evidence Code section 1271
EC section 1271 is important to read if you are trying to overcome a hearsay objection to business or similar records.
- Business Records Showing Absence of Events as Exception: Evidence Code section 1272
The absence of certain types of entries in business records may be used to prove their non-existence.
- Limits on Confidentiality of Tax Returns: Family Code section 3552
While tax returns generally cannot be obtained from the other party in civil proceedings absent a court order, they can be obtained in family law proceedings - except the Court can seal them so that they are confidential from public scrutiny.
- What is Joint Custody?: Family Code section 3002
Joint Custody refers to both legal and physical custody.
- What is Joint Legal Custody?: Family Code section 3003
Joint legal custody refers to equal rights to make important parental decisions.
- What is Joint Physical Custody?: Family Code section 3004
Joint physical custody implies that both parents are having the minor children for considerable periods of time.
- What is Sole Legal Custody?: Family Code section 3006
Sole legal custody gives one parent the right to make decisions concerning the children’s interest without consulting the other parent or obtaining their prior agreement.
- What is Sole Physical Custody?: Family Code section 3007
Sole physical custody is the holy grail for many high conflict parents, and those where the other parent has serious personal issues.
- Parents are Equally Entitled to Custody: Family Code section 3010
Without court orders saying otherwise, both legal parents are entitled to the custody of their children.
- What is the Best Interests of Children Standard?: Family Code section 3011
“Best interests” of the child, or “BIC”, is the starting analysis for any custody dispute. Know this family code section!
- Participation of Parents Who Are Detained or May be Depart in Custody Cases: Family Code section 3012
This statute affects custody rights for those who are detained because of immigration and visa problems.
- Policy Favoring Frequent and Continuing Contact with Children: Family Code section 3020
Another major disputed custody statute, Section 3020 states the fundamental policy of the law favoring the right of both parents to be involved in their children’s lives.
- Statement of Reasons for Court's Custody Decision: Family Code section 3022.3
An often ignored provision by lawyers and self-represented parties, a parent who knows this statute and brings it to the court’s decision can force a statement on the record of what evidence the judge relied on in making her or his decision.
- Order for Notice of Parent of Intended Move: Family Code section 3024
This a standard provision in most CCRC mediation orders, and should be included in any stipulation or settlement agreement involving kids.
- Allegations of Child Abuse: Family Code section 3027
Section 3027 empowers courts to make orders to protect children where abuse is alleged, and to cause an investigation to be undertaken.
- Order of Preference for Child Custody: Family Code section 3040
Section 3040 states the hierarchy of preference for placing children, always first to parents, and second to qualified non-parents.
- Custody of Children to Non-Parents: Family Code section 3041
Section 3041 sets forth what showing is required for a nonparent to obtain custody of a minor children. It frequently is invoked by adult siblings and grandparents, but it could include any unrelated person.
- Orders for Drug Testing: Family Code section 3041.5
Family Code section 3041.5 sets forth when a court can order drug testing. Please note, courts never can order hair follicle tests unless the affected person so agrees.
- Preference of Child in Custody with Parents: Family Code section 3042
This is a critical statute that authorizes courts to hear directly from a child, although there remains a lot of judicial reluctance to do it directly.
- Rules for Child Testimony Regarding Parental Preference: California Rules of Court, Rule 5.250
Cal. Rule of Court sets forth how testimony from a child regarding their parental preference may be gotten into evidence.
- Presumptions Against Custody for Domestic Violence Perpetrator: Family Code section 3044
A commonly used sword – in fact, the reason for a huge amount of domestic violence litigation – Family Code section 3044 creates a presumption of no joint custody on the part of a DV perpetrator.
- Factors to be Considered in Granting Custody: Family Code section 3046
Section 3046 mostly deals with consequences for relocation and attempted move-aways, or the absence of a parent where there is no intent to abandon a child. It is particularly intended to preserve the parental rights of parents who flee because of domestic violence, but has a wider application.
- Temporary Custody and Right to Hearing Within 20 Days: Family Code section 3062
This section empowers court’s it issue and extend emergency or ex parte temporary custody orders.
- Temporary Custody and No Removal From State: Family Code section 3063
Section 3063 grants courts explicit authority to issue orders prohibiting a person who receives custody from taking the children out of state without an express order so permitting.
- Limits on Ex Parte Change of Custody Orders: Family Code section 3064
This is a very important statute that many judges, especially newly minted ones, don’t seem to know. Courts are not supposed to make ex parte orders changing custody except when there is evidence of immediate harm to a child, or that the child will be removed from the State.
- Presumption When Parents Agree to Joint Custody Orders: Family Code section 3080
Where the parents agree to joint custody, courts are supposed to follow that agreement.
- Power of Court to Order Joint Custody: Family Code section 3081
Except in cases involving agreement per section 3080 and so long as it is in the children’s best interest per section 3011, section 3081 authorizes family court bench officers or order joint custody or first direct an investigation be undertaken if they believe it necessary.
- Court's Statement of Reasons for Grant or Denial of Joint Custody: Family Code section 3082
Another underutilized provision, a parent can force a judge to explain why he or she ordered joint custody, or refused to do so, on the record.
- Circumstances Where Joint Consent of Parents Required: Family Code section 3083
This is an important provision for parents who feel the other acts in making parental decisions without the input of the other. Courts can require joint consent.
- Parental Visitation Rights: Family Code section 3100
Family Code section 3100 requires courts to grant reasonable visitation of children to their parents if it is in the child's best interest, as defined in this statute.
- Rights of Stepparent Visitation: Family Code section 3101
This is the key stepparent visitation rights’ statute.
- Grandparent and Non-Parent Visitation Where Parent Has Died: Family Code section 3102
This authorizes grandparent visitation where their child, the former parent, has died. It can be a difficult and expensive fight, however, if there is extreme hostility towards the GPs on the part of the living parent.
- Grandparent Visitation Orders: Family Code section 3103
This is the key grandparent visitation rights’ statute.
- Petitions for Grandparent Visitation: Family Code section 3104
Section 3104 establishes the procedures and basis for seeking grandparent visitation.
- Court Appointed Child Custody Evaluators: Family Code section 3110
This is a general statute about who can be a “court-appointed investigator.”
- Child Custody Evaluation Reports: Family Code section 3111
An extremely important provision, Family Code section 3111 empowers courts to appoint a person to conduct a limited or general child custody evaluation which is then reported back to the court, and to the parties.
- Appointment of Minor's Counsel: Family Code section 3150
Section 3150 authorizes courts to appoint “Minor’s Counsel,” who are generally private attorneys who’ve had some training doing that work.
- Role and Powers of Minor's Counsel: Family Code section 3151
Minor’s counsel is literally the attorney for the child. Unfortunately, often minor’s counsel takes a position adverse to one parent or the other, under the guise of the child’s best interests.
- Family Court Custody Mediators: Family Code section 3183
Family Court Mediators work for the county. They meet with parents, try to broker agreements, and in some California counties make recommendations to the court where the parents cannot agree.
- Court Ordered Custody Dispute Counseling: Family Code section 3190
This section authorizes custody judges to order parents to participate in counseling or therapy for not more than one year. This includes substance abuse programs.
- Separate Custody Counseling Where History of DV or Abuse: Family Code section 3192
This allows a parent who has been the victim of domestic violence, typically with prior restraining orders issued in their favor, to meet separate with the court custody mediator.
- California UCCJEA Definitions: Family Code section 3402
The UCCJEA is the Uniform Child Custody Jurisdiction Enforcement Act. It pertains to inter-state custody situations, and is intended to avoid inconsistent orders in different states and to resolve which state should undertake exclusive jurisdiction over the parents and children.
- Requirement that State Courts Communicate in UCCJEA Cases: Family Code section 3410
Where custody proceedings are pending in two different states, the bench officers in each are required to get on the phone and speak in an effort to agree upon which state should exclusively control the proceedings.
- California UCCJEA Jurisdiction Requirements: Family Code section 3421
Section 3421 sets forth how which state should take over the case must be decided.
- California Exclusive Custody Jurisdiction Under UCCJEA: Family Code section 3422
This is California’s rules for asserting jurisdiction over interstate minor children where another state has also been asked to undertake, or already has, jurisdiction. Often parents move from a home state with the children to a new jurisdiction.
- California Temporary Emergency Jurisdiction Under UCCJEA: Family Code section 3424
California courts can assert emergency jurisdiction over parents and children while the larger jurisdictional issue gets sorted out.
- Declining UCCJEA Jurisdiction on Ground of Inconvenient Forum: Family Code section 3427
This section gives California courts the power to decline jurisdiction where the most relevant evidence regarding children’s best interests is in another State.
- Right of Parent to Change Residence of Child (Move-Away): Family Code section 7501
This is the basic “Burgess” rule, which creates a presumption that parents are entitled to change the residence of a child where such relocation will not prejudice the rights or welfare of the child.
- No Ex Parte Contacts With Child Custody Evaluators: CRC Rule 5.235
Cal. Rules of Court prohibits ex parte contacts between lawyers, or parties, with custody evaluators.
Deferred Sale of Family Residence
- Deferred Sale of Family Home ("Duke" Orders): Family Code section 3800
Rarely anymore, In Re Marriage of Duke orders authorize courts to defer the sale of the family home in divorce cases following entry of judgment and the division of everything else, where one former spouse has been awarded physical custody of a minor child and there are good minor child related reasons for continuing to live there.
- Economic Feasibility Requirements for Deferred Home Sale Order: Family Code section 3801
Section 3801 sets forth what economic considerations a court must consider before issuing a Duke order.
- Custodial Parents and Children Seeking Deferred Home Sale Order: Family Code section 3802
Section 3802 states what child-centered considerations the court must consider before deferring the sale of a residence.
Dissolution, Legal Separation and Other Family Law Procedures
- Civil Procedural Rules Generally Apply to Family Law Cases: Family Code section 210
This is a very important statute. It provides that all other procedural and evidence statutes apply to family law proceedings.
- Scope and Limits of Relief Requested in Responsive Declarations: Family Code section 213
An important procedural statute to know, section 213 limits what a responding party can seek by way of affirmative relief to the menu items of the initiating party.
- Excluding the Public From Family Court Proceedings: Family Code section 214
Trial courts can exclude the public from family law proceedings, but rarely do except in adoption and guardianship cases.
- Serving Post-Judgment Motions to Modify Orders: Family Code section 215
Section 215 permits post-judgment motions to modify custody, visitation, or child support by mail, whereas other types of motions must be personally served.
- Requests for Live Testimony in Family Law Proceedings: Family Code section 217
Family law litigants and their attorneys are entitled to demand live-witness testimony on law and motion (RFO) matters, with certain qualifications and requirements set forth in the Cal.Rules of Court.
- Collaborative Family Law Processes: Family Code section 2013
Section 2013 is an explicit recognition that parties may opt out of the adversarial court system and engage in collaborative processes. It exempts them from having to participate in the court process, even though they may have filed a Petition and Response for Dissolution.
- Joinder of Third Parties in Family Law Cases: Family Code section 2021
Family Code section 2021 authorizes courts to join third parties, or entities, to a divorce proceeding according to the Rules of Court.
- Notifying Health, Life and Disability Insurers Not To Cancel Policies: Family Code section 2050
This sets forth the form of notice that will force insurers not to cancel insurance without first giving notice to both parties.
- California Residence Requirements for Filing Dissolution or Legal Separation: Family Code Section 2320
In order to file for dissolution in California, you must be a residence of the State for at least 6 months. You need not live here to file for a legal separation.
- Direct Assignment of Dissolution Actions to One and Same Judicial Officer: Family Code section 2330.3
This section is intended to assure that the same judicial officer preside over a case over time, to the extent possible.
- Requirements for Bifurcating Marital Status: Family Code section 2337
Family Code section 2337 sets forth what orders must be issued when marital status is terminated before the conclusion of the entire case.
- Requirement That Both Parties Consent to Legal Separation: Family Code section 2345
California courts cannot impose a legal separation on the parties; it can only be granted by agreement or by default.
- Purpose of Family Centered Case Resolution Plans: Family Code section 2450
Courts may order parties to family law cases to engage in a family centered resolution plan, but most jurisdictions don’t have the resources.
- Court Management for High Conflict Divorce: Family Code section 2451
Case management plans can be effective, however, for high-conflict cases and can be used to reign in the parties.
- Disqualifying Family Court Judges for Bias: Code of Civil Procedure section 170.3
Once the time limit for disqualifying a judge without cause per CCP section 170.6 has passed, they can only be recused upon a showing of bias or for certain other grounds.
- Peremptory Disqualification of Family Court Judge: Code of Civil Procedure section 170.6
Within a limited time, you can disqualify a judge assigned to your case for good reason, bad reason, or no reason.
- Requesting a Statement of Decision: Code of Civil Procedure section 632
Under certain circumstances, parties can request a statement of decision setting forth how the judge ruled the way they did. We have sample Requests for Statements of Decision in our forms Portal.
- Appointment of Family Law Referee: Code of Civil Procedure section 639
While this section applies to civil actions generally, it can be utilized to get control of a high-conflict family law case.
- Enforcing Out of Court Settlements: Code of Civil Procedure section 664.6
An extremely important code section for enforcing settlements that are reached out of court, every single stipulation and settlement agreement must contain reference to this provision in order to be enforceable if the other party attempts to weasel out.
- Recovery of Attorney Fees in Civil Lawsuits: Code of Civil Procedure section 998
This provides a possible method for attempting to recover attorney fees in family law cases, although its application to them is uncertain.
- Requirement to Meet and Confer Before RFO Hearings: California Rules of Court, Rule 5.98
A good rule to know, if you want to try to get attorney fees or derail a pending motion.
- Length of Family Court Pleadings: California Rules of Court, Rule 5.111
Many courts will not read pleadings if they exceed the length limitations, or if they do they may well be pissed. Some judges will even sanction parties or their attorneys for failing to follow these rules!
- Motions in Limine: Evidence Code section 353
Motions in Limine are an incredibly useful tool for excluding evidence and limiting trial issues. They are filed before trial commencement. See our Blog!
- Requirement that Pleadings Not Include Confidential Financial Identifiers: California Rules of Court, Rule 1.201
Read our Blog to determine what to do when the other side stupidly files your confidential financial information with the Court!
Domestic Violence and Intimate Partner Abuse
- Definitions of "Abuse" Constituting Domestic Violence: Family Code section 6203
Section 6203 is the only DV that actually defines what "abuse" is. It must be read together with section 6320.
- Who Are Victims of Domestic Violence?: Family Code section 6211
This statute distinguishes who are "intimate partners" and related by blood and so eligible to use a DV application to obtain restraining orders as opposed to a Petition against Civil Harassment.
- What Is a Domestic Violence Protective Order?: Family Code section 6218
Basically residence exclusion and orders enjoining specific behavior or acts of misconduct.
- Emergency DV Protective Orders: Family Code section 6250
Called EPO's, these orders may be obtained on an emergency basis like over the weekend to give someone the time they need to come to court on their own DV application. Often issued when a perpetrator is arrested for DV.
- Required Evidence for Emergency Protective Orders: Family Code section 6251
EPO's may be issued if a present danger of abuse or DV exists, to an adult or a child. It may prohibit child abduction.
- Confidentiality of Location of DV Victims: Family Code section 6252.5
This protects the address of a DV victim and their children from disclosure.
- Mutual DV Restraining Orders: Family Code section 6305
Courts are forbidden to split the baby and just issue mutual DV restraining orders, without independent evidence of justification.
- Domestic Violence Restraining Orders: Family Code section 6320
This is the key statute that catalogs what DV conduct may consist of. It is being expanded by appellate decisions.
- Service of DV Papers: Family Code section 6320.5
DV cases must be heard in 20 days and be served not less than 5 days before the hearing. Judges have to state why they refused to grant ex parte orders on the application.
- Right to One Continuance of DV Hearing: Family Code section 245
You are entitled to one continuance as a matter of right at your first appearance at a domestic violence hearing. This will give you time to retain a competent domestic violence attorney.
- Residence Exclusion and "Kick-Out" Orders: Family Code section 6321
Often DV is falsely alleged to get possession of the family residence.
- Temporary Custody Orders in DV Cases: Family Code section 6323
The court will usually issue "no-contact" and no-visitation orders in its temporary DV orders.
- DV Custody Orders After Termination of DV Orders: Family Code section 6340
See also Family Code section 3044, which creates an presumption against joint custody where permanent domestic violence orders have issued.
- Criminal Charges Domestic Violence: Penal Code section 273.5
Penal Code section 273.5 is the felony criminal statute that domestic violence perpetrators will be charged with. If you are convicted or plead guilty or no-contest even to a lesser offense like disturbing the peace, the FC section 3044 no joint custody presumption will be triggered! The no spousal support presumption of FC section 4325, likewise!
- Illegally Obtained Tape Recordings and Electronic Evidence: Penal Code section 632
See our Blog articles about excluding evidence, and motions in limine, that has been illegally obtained and which the other side commonly seeks to introduce in domestic violence proceedings!
Enforcing Support Orders and Judgments in California
- Support Orders | When Ten Percent Interest Begins: Family Code section 155
Per Family Code section 155, and CCP sections 685.010 and 685.020, interest on delinquent support payments accrues at 10% from the date each installment is actually due.
- Enforcing Judgments and Support Orders: Family Code section 290
Section 290 states money orders can be enforced by execution, contempt, or the imposition of a receiver - or any other way the Court determines necessary.
- Exemption From Need to Renew Support Judgments: Family Code section 291
Support judgments never go away! For this reason, the best practice is to have your spouse or the support recipient parent acknowledge in writing, or better yet by a Stipulation filed in the case, that you are paid up!
- Enforcing Child Support Through Security Deposit Orders: Family Code section 4560
Section 4560 is rarely used, but is a means of forcing a parent support payor who has chronic payment issues to put money into a trust for up to one year’s worth of upcoming support installments. It would only be useful with high-asset folks, or someone who just came into a large sum of dough.
- Child Support Interest Penalties: Family Code section 4722
This is a very important and underused section for chronically late support obligors – and it applies to every person who owes child support! Upon giving of a proper demand for payment, you may apply for court orders that interest accrues on the late payments @ 6 percent per month, up to a maximum of 72 percent of the overdue balance. See section 4726.
- Defending Against a Request for Child Support Interest Penalties: Family Code section 4726
This section describes when you can dodge the child support interest penalty bullet.
- Enforcing Support Orders Without Prior Court Approval: Family Code section 5100
Section 5100 makes it clear that child support arrears can be enforced by levy or execution. See our support enforcements blog article!
- Enforcing Support Orders Against Pension Plans: Family Code section 5103
This section describes how to collect child support arrears from pension plans.
- Using a Writ of Execution for Divorce and Support Judgments: Family Code section 5104
This section sets forth what must accompanying a Writ of Execution application for child support.
- Using Earnings Assignment Orders to Collect Child and Spousal Support: Family Code section 5230
Section 5230 provides that you are entitled to an earnings assignment order as a matter of right.
- Liability of Employers Who Fail to Company with Wage Assignments: Family Code section 5241
Use section 5241 where you have an employer, like a family member, who refuses to comply with earnings assignments or garnishments.
- Using Abstracts of Judgment: Code of Civil Procedure section 697.310
Abstracts of Judgment issue upon the determination of support arrears and interest. They are filed in every county where the obligor owns, or may come to own, real property and ensures that balance is paid upon sale or refinance.
- Issuing Writs to Enforce Family Law Orders and Judgments: Code of Civil Procedure section 699.510
Ex Parte Procedures In Family Law Cases
- Giving Notice of an Ex Parte Application: Family Code section 241
Notice of an ex parte application must always be given, unless you can demonstrate that irreparable injury would otherwise occur.
- Hearing Deadlines on Ex Parte Applications: Family Code section 242
Section 242 requires a hearing following the ex parte issuance of temporary restraining orders not later than 25 days thereafter, unless the orders are reissued under section 245.
- Requests for Continuances of Ex Parte Hearings: Family Code section 243
Following the issuance of an ex parte orders, including DV TRO’s, the applicant must be ready to proceed but the respondent can request one reasonable continuance.
- Precedence of Ex Parte Matters for Hearing: Family Code section 244
Ex parte hearings are supposed to take precedent over any other matters on the court’s calendar that day.
- Right to Continue Hearings Where Any Temporary Orders Issued: Family Code section 245
This section states the one continuance as a matter of right rule, but the temporary orders may be left in place and extended to the new hearing date.
- Court Ruling on Ex Parte Requests: Family Code section 246
Judges are supposed to rule on ex parte applications the same day as they are received by the court clerk.
- Ex Parte Property Restraint Orders: Family Code section 2045
These are super-temporary orders that extend beyond, or apply more specifically, then the ATROS’s that come into existence under section 2040 – which, of course, only apply to actions for marital dissolution. Use this if there is no marriage or RDP.
- Time for Giving Notice of Your Ex Parte Filing: California Rules of Court, Rule 3.1203
You are required to give the other side notice of your filing of an ex parte application by 10:00 a.m. the day before.
- Declaration of Giving Notice of an Ex Parte Filing: California Rules of Court, Rule 3.1204
You must comply with Rule 3.1204 or you ex parte application will be denied. Read it.
- Filing Ex Parte Applications with Court Clerk: California Rules of Court, Rule 3.1205
Clerks have no discretion to reject an ex parte even if it is doesn’t comply with Rule 3.1203.
- Time for Serving Ex Parte Papers: California Rules of Court, Rule 3.1206
Ex parte papers must be served upon the other party.
- Grounds for Motions to Continue: California Rules of Court, Rule 3.1332
This Rule deals with continuance with the grounds you must meet in order to continue a hearing or trial.
Expert Witnesses and Evaluations
- Court Appointed Experts: Evidence Code section 730
730 experts are commonly agreed to by the parties, or they may be appointed by your bench officer. They answer only to the Court.
- Experts Hired to Challenge 730 Expert: Evidence Code section 733
These are experts you can hire to challenge the report of the 730 expert, but only on limited grounds.
- Cal Rules That Apply to 730 Custody Evaluations: Cal.Rules of Court, Rule 5-220
These are rules that apply specially to 730 custody evaluators.
Fiduciary Duties Between Spouses and Declarations of Disclosure
- Basic Statute Establishing Fiduciary Duties Between Spouses: Family Code section 721
FC section is the statutory basis for interspousal fiduciary duties. It applies from the moment parties are married.
- Rights to Management and Control of Property: Family Code section 1100
Another important section that many lawyers and probably almost all self-represented parties misunderstand. It means that parties have the equal right to manage the marital estate, but it also imposes obligations on the marital partner who, per the conduct of the parties, makes the financial decisions.
- Consequences for Breach of Fiduciary Duty: Family Code section 1101
Section 1101 is the remedies and penalty statute governing what happens when one spouse breaches a fiduciary duty, including most commonly hiding assets. It only applies to community, and not separate property. Penalties for a breach covered by this section range from 50 to 100% of the value of the CP asset that is hidden.
- Right to Equal Management of Community Property: Family Code section 1102
This section limits what transactions a spouse can enter into with third parties buyers or sellers or lenders, among other things.
- Management of Property Where Spouse(s) Lack Capacity: Family Code section 1103
This covers the uncommon situation where one or both spouses have serious mental or physical problems that make them particularly vulnerable to undue influence or some other form of abuse.
- Duty to Disclose All Assets and Liabilities: Family Code section 2100
Section 2100 and those that follow all have to do with disclosure rules and procedures once some kind of divorce, annulment, or legal separation has been instituted. They are procedurally very important.
- Fiduciary Duties After Separation: Family Code section 2102
Fiduciary duties, that arose because of the fact of marriage, continue after separation until such time as each and every particular asset has been divided or otherwise awarded.
- Service of Preliminary Declarations of Disclosure: Family Code section 2103
Preliminary declarations of disclosure must always be served by the Petitioner, and usually by the Respondent, and are supposed to transparently reflect marital assets, opportunities, and other material facts and information that either spouse would require to make informed decisions about the valuation and division of the marital estate.
- What Preliminary Declarations of Disclosure Must Contain: Family Code section 2104
This sets forth the nature of what must be disclosed in the preliminary declaration of disclosure (PDD).
- Final Declarations of Disclosure: Family Code section 2105
Final declarations of disclosure are different, and are supposed to be much more detailed, then the initial exchange of information of the PDD. They are supposed to be supported by all material facts and information (“MFI”) including documentary back-up.
- No Entry of Judgment Without Final Declaration of Disclosure: Family Code section 2106
Judges are not supposed to make trial rulings or findings on contested dissolution cases without the prior exchange of the “FDD”.
- Consequences for Failures to Service Declarations of Disclosure: Family Code section 2107
These are remedies for set-aside where the PDD or FDD is somehow defective.
- Exception for Declarations of Disclosure in Default Cases: Family Code section 2110
In default cases, the Petitioner can waive service by the Respondent of the Respondent’s PDD.
- Set Aside Motions Based Upon Declarations of Disclosure: Family Code section 2121
Sets forth grounds for set-asides of settlement agreements or orders, and the time limits for filing these set-asides.
- Misappropriated Property: Family Code section 2602
This section provides additional remedies for property that has been stolen by a dissolution party.
Joinder in Family Law Cases
Joinders of third parties, beyond the spouses, is disfavored and must meet specific criteria.
Mediation Privilege in Divorce and Family Law
- What Qualifies as Mediation: Evidence Code section 1115
These sections are Evidence Code provisions because they all deal with the “mediation privilege” Section 1115 describes what qualifies as a protected mediation.
- Enforceable Oral Agreements In Mediation: Evidence Code section 1118
Oral agreements reached in mediation can be effective and enforceable if certain conditions are met.
- The Mediation Privilege: Evidence Code section 1119
This is the core of the privilege: Nothing said or heard or submitted in mediation can be disclosed by either party, or the mediator. California is thought to have the strictest protections for mediation in the country.
- Court Cannot Be Told What Happened in Mediation: Evidence Code section 1121
No court or other administrative body can be told of the mediator’s findings or recommendations, unless all parties to the mediation, and the mediator, sign a writing allowing the information to be submitted or orally agree to do so per section 1118.
- Mediation Disclosures Only By Agreement: Evidence Code section 1122
This provides exceptions when a communication or writing that is made or prepared in the course of mediation may be admitted into evidence.
- Enforceable Written Mediation Agreements: Evidence Code section 1123
Written settlement agreements reached in mediation may be admissible under certain conditions.
- When Does Mediation End: Evidence Code section 1125
Section describes when and how a mediation is ended, for purposes of the expectation of confidentiality.
- Effect of End of Mediation: Evidence Code section 1126
The fact that mediation has ended does not mean that what was previously inadmissible becomes admissible.
- Irregularities in Mediation Proceedings: Evidence Code section 1128
Where materials are erroneously admitted in a court proceeding, this is a basis for modifying or undoing the ruling based upon such an admission.
Military Divorce Statutes and Related Rules and Regulations
- Payment of Community Interest in Military Retirement Plan Per Court Orders: 10 U.S. Code section 1408
- Modification or Termination of Support Order: Family Code section 3651
This section has specific application to support orders of persons who are on active duty with the military or national guard.
- Children Born During Marriage: Family Code section 7540
When a child is born to a couple who are living together, where the husband is not impotent or sterile, the law conclusively presumes the husband is in fact the child’s legal father.
- Challenging Paternity of Children Born During Marriage: Family Code section 7541
Notwithstanding this conclusive presumption, the Court can find – within a limited time – that he is not the legal father if the experts determine he is not the bio-parent.
- Voluntary Declarations of Paternity: Family Code section 7573
VDOP’s, also known as VDP’s, establish legal paternity for purposes of support and custody and visitation in the same manner as a Judgment of Paternity. They are typically signed at the hospital by the father who is present for the child’s birth.
- Rescinding a Voluntary Declaration of Paternity: Family Code section 7575
VDOP’s can be rescinded, and so undo the paternity judgment, under certain conditions.
- Presumptions Regarding Existence of Parent-Child Relationship: Family Code section 7611
Section 7611 establishes legal presumptions of parenthood under its stated conditions.
- Rebutting Paternity Presumptions: Family Code section 7612
The presumptions of section 7611 are rebuttable and are given a relative hierarchy when one presumption conflicts with another.
- Paternity of Children Conceived By Artificial Means: Family Code section 7613
Section 7613 protects donors and obligates “intended parents” to be treated by the law as the legal parent.
- Who May File a Paternity Action: Family Code section 7630
Section 7630 also sets forth legal presumptions about who the legal parent of a child is.
- Time Limits for Setting Aside Paternity Judgments: Family Code section 7646
This section sets forth statutes of limitations about when the right to challenge a finding of paternity may be attacked and/or set aside.
Personal Injury Awards in Divorce
- Personal Injury Awards as Community Property: Family Code section 780
The starting presumption with personal injury settlements is that they are community property if the accident or other claim arose during marriage.
- Personal Injury Awards Generally: Family Code section 781
Section 781 states when what would otherwise be community property settlement funds are, or become, the separate property of the person who had the claim.
- Personal Injury Awards Belong to Injured Spouse: Family Code section 2603
Section 2603 deals with personal injury monies that get commingled, or is not the separate property of the injured spouse per section 781, and gives discretion to trial courts how to award those funds as between the parties.
Pension and Estate Related Matters
- Notice to Pension of Adverse Claim or Interest by Spouse: Family Code section 755
Section 755(b) provides a method of giving notice to a pension administrator about the other spouse’s community interest in the plan.
- Joining Employee Benefit Plans in California Dissolution: Family Code section 2060
Section 2060 authorizes pension to be joined into the proceedings in order to bind it to the court’s adjudication of the parties’ respective interests.
- Service of Joinder on Pension Plan: Family Code section 2062
This section describes how and what must be served upon the Plan.
- Transfers Upon Death to Joint Tenant: Probate Code section 5601
Probate section 5601 deals with severance of joint tenancies, or upon death of a joint tenant.
- Subject Matter of Premarital Agreements: Family Code section 1612
Section 1612 describes what can, and what cannot, be the valid subject of a premarital agreement and further requires what is necessary for a valid spousal support waiver contained in a prenup.
- Revoking Premarital Agreements: Family Code section 1614
Premarital agreements can be free revoked after marriage, if both parties agree to do so in writing.
- Unenforceable Premarital Agreements: Family Code section 1615
Section 1615 sets forth defenses that a spouse may have to the enforcement of a premarital agreement.
Same-Sex Marriages and Domestic Partnerships
- California Domestic Partnerships: Family Code section 297
FC section 297 defines who is eligible for registering a domestic partnerships.
- Same Rules Apply to Domestic Partners as Married Persons: Family Code section 297.5
All provisions of the Family Law Act apply to registered domestic partners ("RDPs")
- Termination of Registered Domestic Partnership by Notice: Family Code section 299
Section 299 permits domestic partners to accomplish a summary dissolution for those who qualify.
- Domestic Partnerships from Other Jurisdictions: Family Code section 299.2
Legal unions lawfully formed in any other jurisdiction must be given full faith and credit in California.
- Same Sex Marriages in Other Jurisdictions: Family Code section 308
Section 308 provides that marriages, implicitly including same-sex marriages, contracted in other states are valid in California.
- Filing for California Divorce in Same-Sex Marriages: Family Code section 2320
You can file for a divorce in California if you married here, where your State doesn't recognize your union and so refuses to dissolve it.
Service of Pleadings in Divorce and Family Law Proceedings
- Service of Summons and Petition for Dissolution: Code of Civil Procedure section 415.10
The Summons and Petition must be personally served upon the other party, unless service is accomplished in the following sections.
- Substitute Service in Lieu of Personal Service: Code of Civil Procedure section 415.20
This is an alternate method of service, besides personally on the other party, if certain conditions are met.
- Service by Mail and Acknowledgment of Receipt: Code of Civil Procedure section 415.30
This is the most gentle method of service where the other party agrees to sign for it.
- Serving Petition Outside California: Code of Civil Procedure section 415.40
This section allows service outside of California by certified mail.
- Serving Summons by Publication: Code of Civil Procedure section 415.50
A court order is required to obtain service by publication.
- Serving Requests for Orders and Motions | Responsive Pleadings: Code of Civil Procedure section 1005
This section describes the general rules for serving motions, after the other party has appeared in the proceedings by paying their filing fee and filing some form of Response.
- Serving an Attorney: Code of Civil Procedure section 1011
This describes how service of motions can be served upon the attorney of record for a party.
- Service of Custody and Child Support Motions After Judgment: Family Code Section 215
This section deals with post-judgment motions, which in certain situations can be served by mail.
Setting Aside Judgments and Orders
- Timing and Grounds for Motions for Reconsideration: Code of Civil Procedure section 1008
The timing rules and form of making motions for reconsideration are critical to success with them, as courts don’t want to relitigate every decision that makes some one party unhappy.
- Grounds and Limits for Setting Aside Family Law Judgments: Family Code section 2122
Family law judgments can be set aside, within certain time frames, on the grounds of fraud, perjury, duress, mental incapacity, and mistake.
- Setting Aside Support Orders After Six Months Per CCP section 473 Has Passed: Family Code section 3690
CCP section 473 only gives people 6 months to set aside orders entered against them by reason of mistake, inadvertence, excusable neglect, or extrinsic fraud. Section 3690 gives court’s discretion to set aside orders if some missed the 6 month deadline.
- Grounds and Time Limits for Setting Aside Support Orders: Family Code section 3691
Section 3691 sets forth the time limits for filing set-aside motions as to support orders depending upon the basis alleged for justifying that set-aside.
- Support Orders May Not Be Set Aside Simply Because Unfair: Family Code section 3692
It is not a basis to set aside a support order that was inequitable when made, or where later circumstances now make it unfair.
- Portions of Support Orders That May Be Set Aside: Family Code section 3693
Trial courts can set aside all of a support order, or portions of one.
- General Rule for Setting Aside Orders Issued Through Your Inadvertence: Code of Civil Procedure section 473
This section is a civil statute with full application to orders issued against you in family court proceedings. It is also used to correct lawyer mistakes.
- Setting Aside Defaults and Default Judgments: Code of Civil Procedure section 473.5
This section is used to set aside entries of default or default judgments.
Spousal Support and Alimony
- What is Family Support: Family Code section 92
“Family” support is spousal and child support combined, and can have positive tax consequences.
- What is Temporary Support: Family Code section 3600
Section 3600 is the starting point for temporary spousal support requests.
- Support Accrued Before Request to Modify or Terminate: Family Code section 3603
Support may only be made retroactive to the date a motion is actually filed with the court.
- Retroactive Support Orders: Family Code section 3653
This expressly gives family law courts discretion to make support orders effective the date of the filing or afterwards.
- What is New-Mate Income: Family Code section 4057.5
New-mate income cannot be directly considered by court in awarding child or spousal support.
- Basic Duty to Support Spouse: Family Code section 4301
Separate property can be liable for the support of the other spouse, and particularly for the other party’s necessities of life.
- Spousal Support When Living Separate By Agreement: Family Code section 4302
A spouse is not liable to pay the other spouse support if they are living apart, absent a written agreement.
- Judgment Spousal Support Factors and Marital Standard of Living: Family Code section 4320
Section 4320 is the key spousal support statute in California divorce. It also applies to applications for attorney fees.
- Effect of Cohabitation on Support Obligation: Family Code section 4323
There is a statutory presumption of a reduced need for spousal support when the support recipient is residing with another person in a romantic relationship.
- Presumption Against Support to Abusive Spouse: Family Code section 4325
Section 4325 is used to cut-off the obligation to pay spousal support to a person against whom permanent restraining orders have issued.
- Duty of Supported Spouse to Become Self-Supporting: Family Code section 4330
Section 4330 states the California rule that supported spouses should make reasonable efforts to become self-supporting within a period equal to half the length of the marriage; however, as commonly known as a Gavron Warning, the supported spouse has first to be given notice of that policy by the court.
- Vocational Examinations: Family Code section 4331
Vocational exams are used, among other things, to impute income to the supported spouse.
- Retroactive Spousal Support Orders: Family Code section 4333
Specifically relating to spousal support orders, this statute limits retroactive support orders to a date of commencement on or after the date a request for support is filed.
- Contingent Spousal Support Orders: Family Code section 4334
Trial courts can issue orders that terminate or reduce or modify spousal support based upon the happening of a stated contingency. To the extent that the contingency occurs but the supported spouse fails to tell the payor, the may have to refund what was thereafter received in support.
- Spousal Support in Marriages of Long Duration: Family Code section 4336
Marriages of long duration are at least 10 years in length, but can also be marriages of less than 10 years under certain circumstances.
- Spousal Support Terminates on Death or Remarriage: Family Code section 4337
Spousal support rights terminate upon death or the recipient’s remarriage.
- Annuities and Life Insurance to Guarantee Spousal Support: Family Code section 4360
Courts can force a supporting spouse to buy an annuity or insurance policy that provides for a spousal support equivalent even after the payor’s death.
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