What can I do about an asset that was not listed in my divorce decree or judgment in California

Assets that were not listed in any divorce decree or judgment in California

Sometime parties in California that have already had a dissolution (divorce) judgment in California  discover an omitted asset many weeks or months later and wonder what their options are.  This blog post discusses the issue of assets or liabilities that were not listed in any divorce decree or judgment in California. These are what is known as omitted assets.

A party can request that the court adjudicate any assets or liabilities that were not mentioned in the judgment of divorce as those assets were not previously adjudicated in the judgment of dissolution of marriage and in most cases were never mentioned in any documents filed with the court or any court orders. The request is filed under the provisions of Family Code section 2556. by the filing of a notice of motion or request for order. 

A request filed under Family Code section 2556 is most often filed in divorce cases but can also be filed in a legal separation or nullity case in California.

If you use this request in the right situations it is very powerful as there are no time limitation specified in the statute although in my personal opinion you should file the motion as soon as possible after discovering the omitted asset or liability is a good idea. I also want to point out that the court will most likely deny any request if you have already filed another motion or request with the court under another code section or legal theory that mentions the omitted asset and the court has denied that request

Family Code § 2556 states that,

“In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has continuing jurisdiction to award community estate assets or community estate liabilities to the parties that have not been previously adjudicated by a judgment in the proceeding. A party may file a postjudgment motion or order to show cause in the proceeding in order to obtain adjudication of any community estate asset or liability omitted or not adjudicated by the judgment. In these cases, the court shall equally divide the omitted or unadjudicated community estate asset or liability, unless the court finds upon good cause shown that the interests of justice require an unequal division of the asset or liability.”

Before this code section was enacted into California law the courts allowed a former spouse to file a separate partition action to divide any assets that were omitted from a divorce judgment. 

Any community estate asset or liability that was not mentioned in the judgment should most likely be considered an omitted asset.

Both the California Supreme Court and the California Courts of Appeal have stated that the doctrine of res judicata does not prevent the division of community property assets that were not adjudicated in any prior judgment.

The California Supreme Court has also stated that the entitlement of a spouse to a share of any community property arises at the time that the property is acquired and any property which is not mentioned in the judgment or any of the pleadings is considered unadjudicated by any judgment and is therefore subject to further legal proceedings as the former spouses are considered tenants in common until the asset can be adjudicated.

The moving party should make a sufficient showing that the omitted asset or liability is in fact a community estate asset or liability as the asset was acquired or the liability was incurred during the marriage.  The California Supreme Court has stated that any property acquired by purchase during the marriage is presumed to be community property.

Attorneys or parties in California that would like to view a portion of a sample 11 page motion to adjudicate an omitted asset under Family Code section 2556 containing brief instructions, a memorandum of points and authorities and sample declaration sold by the author can use the link below. 

   Sample Motion to Adjudicate Omitted Asset Under Family Code Section 2556 by Stan Burman

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that 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 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 visiting http://www.legaldocspro.net

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.

Sanctions award under California Family Code section 271

http://www.legaldocspro.com/blog/request-for-family-code-section-271-sanctions-in-california/

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.
 

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.

 

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/

Motion to vacate divorce settlement or stipulation in California

A motion to vacate a divorce settlement or stipulation in California is the topic of this blog post.  A motion to vacate a divorce settlement or stipulation in California is filed under the provisions of Code of Civil Procedure section 473 and Family Code section 210. A motion to vacate a settlement or stipulation can also be filed in a California legal separation or a nullity case.

The grounds for vacating a divorce settlement or stipulation in California include mistake, inadvertence, excusable neglect, fraud, mistake of law or fact, where the facts stipulated have changed or there has been a change in the underlying that could not have been anticipated, or where special circumstances exist rendering it unjust to enforce the stipulation.  Several decisions of the California Courts of Appeal have stated that the issue of fairness can also be considered in appropriate situations where a motion to vacate a settlement or stipulation has been filed.

Code of Civil Procedure Section 473 states in pertinent part: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect.”

A motion to vacate a divorce settlement or stipulation in California may also be filed in other family law cases as well 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.”

Note that any motion to vacate a divorce settlement or stipulation in California should be made as soon as possible once a party discovers the mistake of fact or law, fraud, etc as the motion must be filed within a reasonable period of time in no case exceeding six months once the stipulation or settlement has been signed or entered.   The more quickly the motion is filed the better as section 473 is applied liberally where there is a prompt request for relief and the opposing party will not suffer any prejudice if relief is granted.

The moving party should be sure to include enough detailed facts in their supporting declaration to support the motion as well as attaching any relevant exhibits.

Attorneys or parties in California who would like to view a portion of a 11 page sample motion to vacate a divorce settlement or stipulation 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 to vacate divorce settlement or stipulation in California

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.

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.

New trial motion in California dissolution (divorce) case

A new trial motion in a California dissolution (divorce) case is the topic of this blog post.  A new trial motion in California can also be filed in a legal separation or an annulment case as well as a divorce.  The advantage of filing new trial motion is that it permits the court to reexamine an issue of fact or law.

Motions for a new trial in a divorce case in California can be filed pursuant to Code of Civil Procedure section 657 and Family Code section 210 on several grounds including (1) irregularity in the proceedings of the court, adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) accident or surprise, which ordinary prudence could not have guarded against; (3) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (4) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law and (5) error in law, occurring at the trial and excepted to by the party making the application.

A motion for a new trial may be made in a California divorce 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.”

When the application for a new trial is made for any ground mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court. See Code of Civil Procedure § 658. Note that the second ground would obviously not apply as a jury trial is not authorized in any divorce proceeding in California.

However, there are strict deadlines that must be met.   The first thing any party who wants to request a new trial should do is file a notice of their intention to move for a new trial and specify all of the grounds listed in section 657 that even remotely could be applicable in that particular case.  This MUST be done in a timely manner or their motion will be denied.

Code of Civil Procedure § 659 states that, “(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”

Within 10 calendar days after filing the notice of intention to move for new trial the party must file and serve any supporting affidavits unless a stipulation or court order has been obtained extending the time period. See Code of Civil Procedure § 659a.

While not technically required a memorandum of points and authorities with citations to case law and statutory authority is strongly recommended and should be filed and served at the same time as the supporting affidavits. 

The power of the court to rule on a motion for a new trial expires 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or no notice has been given, then 60 days after filing of the first notice of intention to move for a new trial. If the motion for a new trial is not determined within the 60 day period, or within that period as extended by law, the effect shall be a denial of the motion without further order of the court. See Code of Civil Procedure § 660 for more details.

Attorneys or parties in California who would like to view a portion of a sample 15 page sample motion for new trial in a California divorce case containing brief instructions, a notice of intention to move for new trial, memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author of this blog post can use the link shown below.

Sample motion for new trial 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. 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 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.
 

California dissolution (divorce) document collection for sale

LegalDocsPro offers the California dissolution (divorce) document collection which contains over 45 documents with a list price of over $275.00 if purchased separately but you can purchase the entire collection for only $99.99 which is a discount of over 65% off! Documents include a sample marital settlement agreement, sample qualified domestic relations order, sample requests for production of documents, trial brief and more.

This document collection was just updated on May 4, 2015 with over 5 new documents.

DESCRIPTION:

Sample legal 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                        
Sample Marital Settlement Agreement
Sample Motion for Reconsideration in California
Sample Motion for New Trial in California
Sample motion for Family Code section 271 sanctions in California divorce
Sample Motion for Set-Aside of Interspousal Quitclaim Deed in California
Sample motion to adjudicate omitted assets in California divorce
Sample motion to correct clerical error in California divorce judgment
Sample motion to modify child custody/visitation in California divorce
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 objections to statement of decision in California divorce
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 divorce
Sample requests for admission in California divorce
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

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.

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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.

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/