California Litigation Blog

Saturday, September 13, 2014

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.

Thursday, September 11, 2014

Oppose petition to compel arbitration in Californiia

Oppose a petition to compel arbitration in California is the topic of this blog post which will discuss briefly some of the common grounds for opposing a petition to compel arbitration. The opposition to the petition should be filed and served at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005 unless the court has ordered otherwise.

Parties served with a petition to compel arbitration should first carefully review the petition and any supporting documents to determine what grounds for opposition exist.

One very powerful ground for opposition is that the alleged agreement to arbitrate should not be enforced as the law in California states that an agreement to arbitrate can be invalidated, “upon such grounds as exist for the revocation of any contract.” See Code of Civil Procedure § 1281.

Other common grounds for opposition include but are not necessarily limited to:

The arbitration agreement should not be enforced due to fraud or duress.

The arbitration agreement is unconscionable as it is one-sided and/or is an adhesion contract.

The moving party unreasonably delayed in seeking arbitration.

The moving party acted in bad faith.

The moving party took advantage of the judicial discovery procedures not available in arbitration.

California Code of Civil Procedure §1281.2 states, in relevant part:

”On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the

court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; . . . “(Emphasis added.)

Attorneys or parties who wish to view a portion of a 20 page sample opposition to compel arbitration containing brief instructions, a table of contents and table of authorities as well as 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 opposition to petition to compel arbitration

Wednesday, September 10, 2014

Oppose demurrer to complaint in California

Oppose a demurrer to a complaint in California is the topic of this blog post. This blog post will briefly discuss some common grounds for opposing a demurrer. The same issues discussed in this blog post apply to opposing a demurrer to a cross-complaint as well.

http://www.legaldocspro.net/blog/opposition-to-demurrer-to-a-complaint-in-california/

File a motion to dismiss an adversary complaint for denial of discharge in United States Bankruptcy Court

File a motion to dismiss an adversary complaint for denial of discharge in United States Bankruptcy Court under Title 11 United States Code section 727 is the topic of this blog post.

The motion is made pursuant to Federal Rules of Bankruptcy Procedure 7012(b)(6), ("FRBP") which is the section used in Bankruptcy Court instead of the Federal Rules of Civil Procedure 12(b)(6).

The motion is made on the grounds that the adversary complaint fails to state a claim for relief.

Consider a hypothetical example of a case in which a creditor filed an adversary complaint alleging that the Debtor deliberately failed to list the creditor on their bankruptcy schedules. The adversary complaint requested a denial of discharge under 11 U.S.C. § 727(a)(4) due to an alleged false oath by the Debtor in that they failed to list the creditor.

The Debtor in the case filed a voluntary Petition for bankruptcy pursuant to Chapter 7 of the U.S. Bankruptcy Code. And the Chapter 7 Trustee filed their Final Report under FRBP 5009 which stated that there was no property available for distribution, in other words a no-asset case. Unfortunately an unsecured judgment creditor was omitted from the bankruptcy petition.

The Debtor denied that the failure to list the creditor was deliberate or done with fraudulent intent The Debtor filed a motion to dismiss and contended that the Complaint fails to state a claim for relief as it fails to state facts sufficient to show that: (1) the debtor made a false oath in connection with the case; (2) the oath related to a material fact; (3) the oath was made knowingly; and (4) the oath was made fraudulently. The Debtor also contended that the Complaint failed to state a claim for relief as it also failed to state facts sufficient to show that (1) the debtor made the representations, e.g., a false statement or omission in bankruptcy schedules; (2) at the time he knew they were false; and (3) he made them with the intention and purpose of deceiving the creditors.

Finally, the Debtor also contended that had the creditor waited until after the bankruptcy case was closed they would not be entitled to have the case re-opened because relief would be unnecessary as case law in the Ninth Circuit is clear that reopening to add an omitted creditor is not necessary in a Chapter 7 "no asset/no bar date" case where the court sends a notice directing creditors not to file a proof of claim. Relief is unnecessary because if the omitted debt is dischargeable, it was already discharged. Because the creditor was objecting to the discharge of the Debtor they bear the burden of proving by a preponderance of the evidence that the discharge should be denied as the Court construe § 727 liberally in favor of debtors and strictly against the party objecting to discharge.

The adversary complaint merely made conclusory allegations without any showing of the four elements discussed. And the false oath must relate to a material fact. The adversary complaint failed to detail how the alleged false oath relates to any material fact, other than the fact that the creditor was not listed. The adversary complaint failed to state how that "omission" relates to any material fact.

The creditor had not alleged how the failure to list them as a creditor has detrimentally affected the administration of the estate.

Because the adversary complaint failed to state any facts which showed that the Debtor made any false oath or omission with the knowledge at the time he made it that it was false, and that he made it with the intention and purpose of deceiving the creditors, the creditor failed to meet their burden of showing that the discharge of the Debtor should be denied.

This case was deemed a no asset case, as evidenced by the Final Report filed by the Chapter 7 Trustee which was in fact admitted in the adversary complaint. Conclusory allegations or legal conclusions are not sufficient to prevent a motion to dismiss.

Attorneys or parties in who wish to view a portion of an 11 page sample motion to dismiss an adversary complaint under 11 U.S.C. § 727 in United States Bankruptcy Court containing a memorandum of points and authorities with citations to case law and statutory authority and proof service by mail. can use the link shown below.

Sample motion to dismiss adversary complaint for denial of discharge

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.

Delay a lockout date for an eviction in California

http://www.legaldocspro.com/blog/ex-parte-application-for-a-stay-of-execution-of-an-eviction-judgment-in-california/

Tuesday, September 9, 2014

Statutory penalty for delinquent child support in California

http://www.legaldocspro.com/blog/statutory-penalty-for-delinquent-child-support-in-california/