Code of Civil Procedure section 632 statement of decision in California divorce case

A Code of Civil Procedure section 632 statement of decision in a California divorce case is the topic of this blog post.   Code of Civil Procedure section 632 and Family Code section 210 authorize a request for a statement of decision in California divorce or other family law cases such as legal separation or nullity cases.

Requesting a statement of decision is an excellent idea in any contested divorce or other family law case in California but is particularly useful in situations when there are numerous issues such as child custody and visitation, child support, spousal support etc., that were decided at the trial.

Requesting a statement of decision allows the party to require the Court to state the legal reasoning for its decision on certain contested issues which in legal terminology are known as controverted issues.  A statement of decision is extremely important in most if not all cases as failing to make a timely request for a statement of decision on all of the controverted issues in a case is almost always fatal to any possible appeal of the case as the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court if no statement of decision has been requested.

Any party appearing at the trial may request a statement of decision.  Code of Civil Procedure § 632 states in pertinent part that if the trial is concluded within one calendar day, or in less than eight hours spread out over more than one day, the request must be made before the matter is submitted for decision.  If the trial is longer than that, the request must be made within 10 days after the court announces a tentative decision.

A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence. See Code of Civil Procedure § 581(a)(6).

The 10-day period for making the request commences at the time the clerk mails the copy of the minute order or decision. See Hutchins v. Glanda (1990) 216 Cal. App. 3d 1529, 1531.

If counsel makes a timely request for the statement, the court's failure to prepare the statement is reversible error. See Social Service Union, Local 535 v. County of Monterey (1989) 208 Cal. App. 3d 676, 681.

The party requesting a statement of decision should be sure to include all important controverted issues in their request as a California Court of Appeal has stated that the request for a statement of decision must specify the controverted issues for which a statement of decision is requested.  The trial judge is not required to sift through a host of improper specifications in search of a few arguably proper ones. Although a party cannot be prevented from using the request as a way of arguing with the court rather than clarifying the grounds of its decision, a party who makes that choice is not entitled to rely on the resulting document to insulate the judgment from the presumption of correctness.  See Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal. App. 4th 547, 558-559.

When there has been a request for a statement of decision, the statement of decision may be limited to only those issues specified in the request if less than all material issues are specified See Harvard Investment Co. v. Gap Stores, Inc. (1984) 156 Cal. App. 3d 704, 709 n.3. 

If an issue was not brought up at the trial, the reviewing court is under no obligation to address it. See Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal. App. 4th 743, 750-751.

A party waives any objection on appeal based on the trial court's failure to file a written statement of decision when trial lasts less than one day and that party fails to make an oral request, and when language in that party's points and authorities that were alleged to be a written request was not specific, but merely asked court to find in her favor. See Martinez v. County of Tulare (1987) 190 Cal. App. 3d 1430, 1434-1435.

If no statement of decision has been requested, the reviewing court is required to presume that every fact essential to the judgment was proved and found by the trial court. Review in these circumstances is limited to a determination as to whether there is any evidence, contradicted or uncontradicted, to support the judgment. See Agri-Systems, Inc. v. Foster Poultry Farms (2008) 168 Cal. App. 4th 1128, 1134-1135.

Requesting a statement of decision is an excellent way for any party involved in contested divorce proceedings in California to require that the Court give a detailed explanation of the basis and reasoning behind its decision on the controverted issues.

Attorneys or parties in California who would like to view a portion of a sample 7 page request for statement of decision in a California divorce case that includes brief instructions as well as a sample proposal for content of statement decision and proof of service by mail sold by the author can use the link shown below.

Sample request for statement of decision in California divorce

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
 

Sample divorce documents for California

Divorce documents for California are now on sale from LegalDocsPro!

LegalDocsPro offers the California dissolution (divorce) document collection which now contains contains over 45 documents with a list price of over $475.00 if you purchased each individual document separately but you can purchase the collection for only $99.99!. This document collection was just updated on December 30, 2014 with 20 new documents and is a great bargain at a discount of over 75% off!

The divorce documents for California dissolution (divorce) cases that are included in this package are:

Bifurcation of Divorce in California newsletter issue
California Child Custody and Visitation Modifications newsletter issue
FREE Legal Research Links for California and Federal law
Motion for Attorney Fees in Divorce Case in California
Sample Custody Stipulation for California
Sample Deposition Notice in California
Sample Evidentiary Objections in California Divorce
Sample Ex-Parte Application for Continuance of Trial Date in California
Sample Ex-Parte Application for Extension of Time to Plead in California
Sample Marital Settlement Agreement
Sample Motion for Reconsideration in California
Sample Motion for New Trial in California
Sample Motion for Set-Aside of Interspousal Quitclaim Deed in California
Sample Motion to Vacate California Divorce Judgment
Sample Motion to Vacate Divorce Judgment for Duress
Sample Motion to Vacate Divorce Judgment for Fraud and Perjury
Sample Motion to Vacate Divorce Judgment for Mistake
Sample Motion to Vacate Divorce Judgment under CCP section 473
Sample Motion to Vacate Property Settlement Agreement for California
Sample Motion to Vacate Stipulation under CCP section 473
Sample Notice to Appear at Trial and Produce Documents in California
Sample Opposition to Motion for New Trial in California
Sample Opposition to Motion for Reconsideration in California
Sample Opposition to Motion to Enforce Settlement Agreement in California
Sample Opposition to OSC to Modify Spousal Support in California
Sample Points and Authorities for Motion to Enforce Settlement Agreement in California
Sample Points and Authorities in Support of OSC to Modify Child Support in California
Sample Qualified Domestic Relations Order in California
Sample Renewed Motion in California
Sample Request for Production of Documents in California
Sample Request for Statement of Decision in California
Sample Responses to Family Law Form Interrogatories in California
Sample Responses to Requests for Production of Documents in California
Sample Stipulation for Bifurcation of Marital Status in California
Sample Supplemental Discovery Request in California
Sample Trial Brief for California Divorce case
Uncontested Divorce in California newsletter issue

For more information on this document collection view and click on the document below. 

   California Dissolution (Divorce) Document Collection for sale by Stan Burman

The author of these sample documents, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

You can view portions of over 300 sample legal documents for California and Federal litigation at http://www.scribd.com/LegalDocsPro

Stan Burman is the author of over 255 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. 
Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

DISCLAIMER:

Please note that the author of these sample documents and newsletter issues, Stan Burman, is NOT an attorney and while the author has taken great care in preparing these sample documents and newsletter issues he cannot guarantee any specific results. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in the sample documents or newsletter issues is NOT intended to constitute legal advice.

The materials and information contained in these sample documents and newsletter issues have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in these documents and newsletter issues is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Motion to quash service in California divorce

A motion to quash service in a California divorce case is the topic of this blog post. This post will discuss using the grounds that the service on the defendant was defective as the Court does not acquire jurisdiction over a defendant unless proper service of the summons and complaint has been made.  This applies even though the defendant may be a resident of California.

Code of Civil Procedure section 418.10 states in pertinent part that a defendant may file a motion to quash service of summons on the ground of lack of jurisdiction of the Court over him or her.  The term respondent is used in a California divorce case but this blog post will use the term defendant instead as the issues discussed herein apply equally to either a defendant or a respondent.

A motion to quash service may also be filed in a legal separation, nullity or other family law case in California pursuant to Family Code section 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

There are certain procedural requirements that must be met in filing a motion to quash service in California. Any motion to quash service must be filed within 30 calendar days from the alleged date of service unless a Court ordered extension of time to plead has been granted or a stipulation to for an extension of time to plead has been entered into.

The motion to quash must be filed before any response is filed as it is considered a "special appearance" meaning that it does not admit the Court’s jurisdiction over the defendant.  Failure to timely file a motion to quash constitutes a waiver of any objection to the service of process pursuant to Code of Civil Procedure section 418.10(e)(3).  The hearing on the motion must be set within 30 days from the date of filing of the motion to quash pursuant to Code of Civil Procedure section 418.10(b). 

The law in California is well settled that once a defendant files a motion to quash service that the plaintiff has the burden of proving that the service was valid.

And the Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid.

The statutes allowing what is known as "substituted service" are strictly construed. Therefore the substituted service must be made at the address where the defendant currently lives even service made at a close relative’s house can be ineffective.

Attorneys or parties in California who wish to view a portion of a sample 10 page motion to quash service in a divorce case complete with brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service sold by the author can use the link shown below.

Sample motion to quash service in California divorce

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 250 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

Renewing a motion in a California divorce case

Renewing a motion in a California divorce case is the topic of this blog post.   Renewing a motion in California is authorized to the pursuant to the provisions of Code of Civil Procedure section 1008(b) and has one very useful advantage compared to a motion for reconsideration in that it is not subject to the 10 day statutory time limitation imposed on motions for reconsideration.  However there is a disadvantage in renewing motion in that they can ONLY by brought by the party who filed the original motion.

Code of Civil Procedure § 1008(b) states in pertinent part that “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

A renewal of a motion may be filed in a divorce, legal separation or nullity case in California under the provisions of Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Certain requirements must be met in order to successfully renew a motion. The party renewing the motion must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence. Failure to comply with the statutory provisions may result in denial of the renewed motion.  

The California Courts of Appeal have stated in several decisions that a ruling on a motion is not res judicata, and a trial court has jurisdiction to consider a renewal of a previous motion.

Attorneys or parties in California who would like to view a portion of a 10 page sample renewal of motion for a California divorce sold by the author that contains brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration and proof of service can use the link shown below.

Sample renewal of motion for California divorce

 

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 300 sample legal documents

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Code of Civil Procedure section 397.5 change of venue motion in California divorce case

http://www.legaldocspro.com/blog/motion-for-change-of-venue-in-a-divorce-case-in-california/

Reconsideration motion in California dissolution (divorce) case

A reconsideration motion in a California dissolution (divorce) case is the topic of this blog post.  Parties in California who wish to request reconsideration of an order may file a motion for reconsideration pursuant to Code of Civil Procedure section 1008(a) which is the statute that authorizes reconsideration of an order in California.  A motion for reconsideration can also be filed in a legal separation or nullity case in California as well as a divorce case.

A motion for reconsideration in California can be useful if a party is aware of the limitations involved.  The first and most important limitation is the 10 day deadline for filing the motion. A statutory motion for reconsideration must be filed within 10 days after service on the party of written notice of entry of the order. The second limitation is the requirement that the party moving for reconsideration of an order must make a showing of new or different facts, circumstances or law since the date of the original order that the moving party was not aware of and could not have discovered with reasonable diligence.

Code of Civil Procedure § 1008(a) states that “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

A motion for reconsideration may made in a California divorce or other family law case pursuant to Family Code § 210 which states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

Several decisions of the California Courts of Appeal have stated that a decision on a motion is not res judicata, and a trial court has jurisdiction to reconsider a prior ruling.

A motion for reconsideration is only applicable to interim orders, not final orders.  Note that any party affected by an order may file a motion as reconsideration is not limited to the party who filed the original application for an order.

Attorneys and parties in California who would like to view a portion of a sample 11 page motion for reconsideration containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author can use the link shown below.

Sample motion for reconsideration for California divorce

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 300 sample legal documents for sale
 
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Family Code section 2030 attorney fee award in California dissolution (divorce)

A Family Code section 2030 attorney fee award in California is the topic of this blog post.   Many parties who are involved in dissolution (divorce) litigation in California are not aware that the Courts have the power to order that the other party to the proceeding pay a reasonable amount to allow a party who is representing themselves, known in California as "In Pro Per" to retain an attorney in a timely manner before proceedings in the matter go forward.  This procedure can also be used in a legal separation or nullity proceeding in California as well.

The relevant statutes are contained in Chapter 3.5 of the California Family Code, sections 2030 through 2034. These statutes can be very useful for a party who does not presently have the funds to retain an attorney and has a pending trial or hearing.

In other words if a prospective client who is currently representing themselves without an attorney wishes to retain an attorney they can ask the Court to order the other party to pay so that they can retain an attorney before any trial or hearing. See California Family Code § 2030(b).

And the Court has the authority to make an attorney fees award without notice by an oral motion at the time of a hearing on the cause of the merits. See California Family Code § 2031(b)(1), and at any time before entry of judgment against a party whose default has been entered pursuant to Section 585 or 586 of the Code of Civil Procedure. The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment. See California Family Code § 2031(b)(2).

A California Court of Appeal has also stated that the court has the power to impose additional fees than those requested if it determines that the adverse party failed to cooperate in family law proceedings.

The family law judge has discretion to create a "judicial lien" on community or separate property in order to secure payment of section 2030 fees. See California Family Code § 2032[c].

The use of this procedure allows a party who is currently representing themselves without an attorney to "level the playing field". And the procedure allows them to make such a request by an oral motion at the time of any trial or hearing. This is very advantageous to many family law litigants as many of them wish to retain an attorney but cannot afford to pay the thousands of dollars most attorneys charge as an upfront retainer.

In fact the California Supreme Court has stated that it is the public policy in California that both spouses have the ability to obtain effective legal representation.

Attorneys or parties in California who wish to view a portion of a sample memorandum of points and authorities with citations to case law and statutory authority, and sample declaration in support of a request for attorney fees in California sold by the author can use the link shown below.

Sample motion for attorney fees in California divorce

Attorneys or parties who would like to view portions of over 300 sample legal documents for California and Federal litigation sold by the author of this blog post can use the link shown below.

View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

 

 

A Qualified Domestic Relations Order (QDRO) in California

A Qualified Domestic Relations Order (QDRO) in California is the topic of this blog post. A QDRO is a judgment or order that is made under California law and that:

Relates to the provision of support or property rights to an "alternate payee";

Creates, acknowledges, or assigns to an alternate payee a right to receive benefits under the pension or retirement plan, and

Meets certain statutory requirements.

Laws were enacted by the United States Congress in 1984 that made it easier for former spouses to receive a portion of the pension benefits awarded to them. A QDRO is a court order, separate from a divorce decree, instructing the Plan Administrator to distribute the share of a former spouse of the retirement benefits to that former spouse. If a party has been awarded a portion of their former spouse's pension or retirement benefits, it is very important that a QDRO be prepared, and as quickly as possible due to the fact that even if a party is awarded one-half of their former spouse's pension, and he/she dies without a QDRO on file, they will be entitled to nothing.

The marital settlement agreement awards a party their community half of the pension or 401(k) Plan and the participant cashes it out, the employer is obligated to give it to him/her if there is no QDRO. If a QDRO was not received by the Plan Administrator before the participant actually retires, the other party loses options and may lose benefits!

Not every pension and 401K plan requires a QDRO. Parties should contact both their and their spouse’s human resource department or retirement plan administrator to determine if they need one. Most mid-size to large companies are quite familiar with answering inquiries If so, the draft QDRO must first be approved by the actual plan before it can be submitted to the Court for approval. This process may proceed quickly or may be delayed for several months depending on the company. After the company approves the QDRO both spouses will need to sign it and it will then be submitted to the Court for the Judge's signature. The order is then sent to the retirement plan administrator for implementation.

Attorneys or parties in California who would like to view a portion of a 9 page sample Qualified Domestic Relations Order sold by the author can use the link shown below.

http://www.scribd.com/doc/118468970/Sample-Qualified-Domestic-Relations-Order-for-California

 

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Joinder of a California pension or retirement plan

Joinder of a California pension or retirement plan is the topic of this blog post.  Joinder is the legal process by which a pension or retirement plan is "joined" as a party to a dissolution (divorce), legal separation or nullity proceeding in California.

It should be stressed that not every pension or retirement plan needs to be joined. The following pension and retirement plans must be joined as a party.

Governmental plan of a city, county, state, public school or university or other public agency.

Plan (qualified or non-qualified) covering only business owners or and spouses or employees of a church.

Federal government pension and retirement plans do not have to be joined as a party. However, they do require a Qualified Domestic Relations Order (QDRO) be issued by the Court specifying the non-employee spouses interest in the plan. Also many plans covering employees who work for private industry also do not have to be joined as a party, neither do Individual Retirement Accounts (IRA’s) or Roth IRA’s. These may be divided simply by Judgment or Order of the Court.

California Judicial Council form FL-318-INFO also known as the Retirement Plan Joinder-Information Sheet lists numerous different pension and retirement plans, and indicates whether or not they require joinder. The latest version of the form can be viewed and downloaded by using the link shown below.

http://www.courts.ca.gov/documents/fl318info.pdf

In California the process of joinder is completed by the filing of several forms with the Court Clerk. The forms include detailed information about the employee, list the full name of the pension or retirement plan, and include the dates or marriage and separation as well as other pertinent information.

Upon the filing of the forms, the Court Clerk issues an Order of Joinder. The Order and the other forms are then served on the pension or retirement plan, which then has thirty (30) days from the date it is served to file a response. A blank response must be served along with the other Joinder paperwork.

The fact that the Court Clerk is authorized to issue an Order of Joinder greatly simplifies things as this means that the Joinder Order can be obtained without appearing before a Judge. Thus the Order of Joinder can be obtained very quickly if needed.

The Family Code in California now requires that a pension or retirement plan must be joined as a party to the divorce proceeding prior to the entry of judgment granting dissolution of the status of the marriage unless joinder is precluded or made unnecessary by Title 1 of the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. Sec. 1001 et seq.), as amended (ERISA), or any other applicable law. See Family Code § 2337(10)(d)(1).

To view over 300 sample legal documents created and sold by the author of this blog post  use the link shown below.

View over 300 sample legal documents for sale

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.


*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit http://freeweeklylegalnewsletter.gr8.com/ for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view other sample legal document packages for sale by visiting: http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

File a peremptory challenge in California

http://www.legaldocspro.com/blog/peremptory-challenges-in-california/

Code of Civil Procedure section 413.30 service of summons in California dissolution (divorce)

http://www.legaldocspro.com/blog/code-of-civil-procedure-section-413-30-service-of-a-summons-and-petition-in-a-california-divorce/

Vacate California divorce judgment for mistake

How to vacate a California divorce judgment on the grounds of mistake is the topic of this blog post.  Vacating a California divorce judgment on the grounds of mistake is authorized by Family Code section 2122(e).  A California legal separation or nullity judgment may also be vacated on the grounds of mistake. 

The party requesting that the judgment be vacated on the grounds of mistake must make an adequate showing of mistake and must also show that the mistake materially affected the original outcome and that they would materially benefit from the granting of the relief.

Family Code § 2121 states that, “(a) In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter. (b) In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”

Family Code § 2122 states in pertinent part that, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.”

The legal standard of mistake under Family Code § 2122(e) is much broader than the extrinsic mistake standard applied under the former law as has been stated by at least two California Court of Appeal decisions.  

Another advantage is that the mistake can be a mistake of fact or of law.  In fact one recent California Court of Appeal decision upheld the validity of a motion under Family Code section 2122(e) based only on a legal conclusion that was erroneous.

Yet another advantage is that no showing of wrongdoing is required in order to obtain relief.

A failure to make a full disclosure regarding a community asset may be a basis for setting aside a judgment and any underlying Marital Settlement Agreement as well as where there has been an invalid waiver of the final declaration of disclosure requirements.

Attorneys or parties who would like to view a portion of a sample 10 page motion to vacate a California divorce judgment on the grounds of mistake containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can use the link shown below.

Sample motion to vacate California divorce judgment for mistake

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation. 

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit Subscribe to FREE weekly legal newsletter for more information.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

Vacate California divorce judgment on grounds of duress

http://www.legaldocspro.com/blog/family-code-section-2122e-motion-to-vacate-a-divorce-judgment-in-california/

Discovery in California dissolution (divorce) proceedings

Discovery in California dissolution (divorce) proceedings is the topic of this blog post.

Parties in California divorce proceedings can utilize the same discovery procedures as are used in California litigation as the same rules and procedures are applicable unless another statute or rule has been adopted by the California Judicial Council. See Family Code section 210.

The importance of discovery in divorce and other family law litigation cannot be emphasized enough. Utilizing discovery correctly can mean the difference between winning and losing for many divorce cases. Yet many law firms and solo attorneys are so overworked and understaffed that they do not have the time to propound enough discovery on their divorce cases. The result is that many cases which could have been won at trial, or a reasonable settlement reached before trial, instead are lost. The following discovery procedures have been found to be very cost effective in divorce cases.

Form interrogatories for divorce cases are available using Judicial Council Form FL-145. This form is extremely useful as the questions are specifically tailored to the issues involved in a typical case. For instance a party may ask the other party to provide the last three (3) years tax returns, and also to complete a schedule of assets and debts on Judicial Council Form FL-142 if that form is attached to the form interrogatories.

Special interrogatories are also very useful as a party can request the other party to state all facts, identify all persons having knowledge of the facts, and all documents in support of the facts which, support the other party’s request for attorney’s fees, sole custody, spousal support and other requests or contentions made in that party’s petition or response.

Additionally, requests for production and inspection of documents and other tangible things can be useful in obtaining bank and financial records and other documents that are pertinent to the divorce proceeding. And a party can demand that the other party allow them to inspect and to photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made as well as demand that any other party produce and permit the party making the demand, or someone acting on that party's behalf, to inspect, copy, test, or sample electronically stored information in the possession, custody, or control of the party on whom demand is made.

Thus a party who believes that the other party is hiding assets may demand to inspect their computer, or other electronically stored information. This could be extremely valuable as computer records may show certain websites that were visited such as bank websites for hidden accounts, or e-mails to banks or other parties which have information on where hidden assets are located. And many people keep a spreadsheet or other list of their assets on their computer thinking that their spouse will never find it.

And requests for admission can be used to request the other party admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

The California courts have ruled that the scope of discovery in California litigation is very broad. Any doubts are applied liberally in favor of discovery.

For discovery purposes, information is relevant if it might reasonably assist a party in evaluating case, preparing for trial, or facilitating settlement. Gonzalez v. Superior Court (City of San Fernando) (1995) 33 Cal.App.4th 1539, 1546.

Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. Davies v. Superior Court (1984) 36 Cal.3d 291, 301.

These rules are applied liberally in favor of discovery. Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790, and (contrary to popular belief), fishing expeditions are permissible in some cases. Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385, ("although fishing may be improper or abused in some cases, that "is not of itself an indictment of the fishing expedition per se").

Propounding discovery is a vital tool in (1) evaluating the strengths and weaknesses of each party’s case; (2) preparing for trial, and (3) facilitating settlement. This is particularly so in a divorce case involving disputed issues such as community property and/or debts.

Form and special interrogatories, request for admissions, and requests for production and inspection of documents and other tangible things all need to be utilized so that the facts, witnesses and documents that support the opposing party’s claims or defenses can be ascertained, deposed and reviewed, and getting certain admissions or denials of issues relevant to the divorce on record before the trial.

Attorneys or parties who wish to view a portion of sample request for production of documents specifically designed for use in divorce cases with 36 separate categories of document requests for sale by the author please click below.

http://www.scribd.com/doc/25882576

The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit his website at http://www.legaldocspro.com for more information on subscribing to his FREE weekly newsletter with legal tips and tricks for California and Federal litigation.

 

 

 

Motion to enforce settlement agreement in California dissolution (divorce)

http://www.legaldocspro.com/blog/motion-to-enforce-a-settlement-agreement-in-a-dissolution-case-in-california/