Summary of Contents
Contents
List of Figures
Preface
Acknowledgments
1. Introduction to Family Law
2. Parents and Children
3. Child Custody
4. Child Visitation
5 Child Support
6. Spousal Support
7. Property Rights and Obligations
8. The Litigation Process
9. Resolving Issues before Trial
10. Enforcement
11. Selected Issues Glossary
Contents
List of Figures
Preface
Acknowledgments
Chapter 1 Introduction to Family Law
Chapter Overview
A. The Approach to Family Law
B. Jurisdiction; Service of Process; Venue
1 Subject Matter Jurisdiction
2. Residence and Domicile
3. Personal Jurisdiction
4. Service of Process
5. Venue
6. Attacking the Judgment
C. Ethics and the Paralegal
D. The Family Code
E. Validity of Marriage
1. Generally
2. Confidential Marriages
Summary
Key Terms
Questions for Discussion
Chapter 2 Parents and Children
Chapter Overview
A. Introduction
B. Minors
1. Civil Liability Exposure
2. Contracts
3. Medical Treatment
4. Emancipation of Minors
C. Parent and Child Relationship
1. The Paternity Action
2. Termination of Parental Rights
3. Adoption
4. Independent Adoptions
5. Adoption of Adults and Married Minors
6. Child Abuse Summary
Key Terms
Questions for Discussion
Chapter 3 Child Custody
Chapter Overview
A. Introduction
B. Custody
1. Preliminary Considerations
2. Jurisdictional Considerations
3. The Uniform Child Custody Jurisdiction and Enforcement Act and Related Statutes
a) Jurisdictional Bases under the UCCJEA
4. Definitions
a) Legal and Physical Custody
b) Joint and Sole Custody
5. Statutory Considerations
6. Mediation and Conciliation
7 Temporary Custody Awards; Modification of Custody Awards
Summary
Terms Questions for Discussion
Chapter 4 Child Visitation
Chapter Overview
A. Child Visitation
B. Visitation Plans
C. Visitation Restrictions
D. Interference with Custody and Visitation
E. Relocation
1. Marriage of Ciganovich
2. Marriage of Rosson
3. Marriage of Fingert
4. Marriage of Carlson
5. Marriage of McGinnis
6. Marriage of Burgess
7. Montenegro v. Diaz
8. In re Marriage of LaMusga
9. In re Marriage of Seagondollar
F. Remedies for Frustration of Visitation
G Nonparent Access to Children
1. Grandparent Visitation
2. Stepparent Visitation
3. Other Visitation
4. Current State of the Law
Summary
Key Terms
Questions for Discussion
Chapter 5 Child Support
Chapter Overview
A Introduction
B. Child Support
1. Duty to Provide Support
2 Obtaining an Award of Child Support — Statutory Considerations
3. Amount of the Award
a) Historical Perspectives
b) Current Law Concerning Guideline Child Support
c) Statutory Add-Ons and Deductions
d) Computer-Assisted Support Calculations
4. Additional Aspects of Child Support
a) Mandatory Health Insurance
b) Deferred Sale of Home Order
c) Expedited Child Support Order
d)Application of Case Law to Child Support Awards
C. Modification; Termination of Child Support
1. Age of Majority
2. Emancipation of Minors Law
Summary
Key Terms
Questions for Discussion
Chapter 6 Spousal Support
Chapter Overview
A Spousal Support
1. Preliminary Considerations
2. Factors Considered in the Award of Spousal Support
3. Structure of the Award
4. Temporary Support
5. Permanent Support
a)Amount
b) Substantive Stepdown
c) Jurisdictional Stepdown
d) Reservation of Jurisdiction
e) The Lengthy Marriage
6. Selected Issues Regarding Spousal Support
a) Cohabitation
b) Health Insurance
c) Security for the Payment of Spousal Support
B. Modification of Spousal Support
1. Selected Procedural Aspects of Support Modification
Summary
Key Terms
Questions for Discussion
Chapter 7 Property Rights and Obligations
Chapter Overview
A. Introduction
B. General Concepts
C. Property in General
D. Characterization of Marital Property
1. Presumptions Concerning Characterization
2. Presumptions Concerning Property Held in Joint Form
3. Tracing
4. Transmutations
5 Personal Injury Awards
6. Earnings; Employment Benefits
7. Gifts and Inheritances
8. Rents, Income, and Profits
9. Community Contributions for Education and Training
10. Business Interests
a) Valuation of the Business
b) Valuation Methods
c) Date of Valuation
d) Elements of Business Valuation
11. Retirement Benefits
a) Types of Plans
b) Division of Retirement Benefits
c) Special Issues Regarding Retirement Benefits
1) Disability Pay
2) Joinder
3) Qualified Domestic Relations Order
E. Liability of Marital Property
1. Liability of Community Estate
2. Liability of Separate Property
3. Debt Liability Following Division of Property
4. Tort Liability
F. Management and Control of Marital Property
G. The Division of Marital Property
1. Dividing the Community Estate
2. Division of Retirement Plan Benefits
3. Dividing Debts and Liabilities
H. Special Issues Regarding Marital Property
1. Tracing and Commingling
2. Apportionment
a) Pereira and Van Camp
b) Moore/Marsden
3. Reimbursement Claims
4. Quasi-Community and Marital Property
Summary
Key Terms
Questions for Discussion
Chapter 8 The Litigation Process
Chapter Overview
A. Overview of the Litigation Process
B. The Initial Client Interview
C. Choice of Actions
1. Nullity
a) Void versus Voidable Marriages
b) Nullity Based on Void Marriages
c) Nullity Based on Voidable Marriages
d) The Putative Spouse
2. Dissolution and Legal Separation
3. Summary Dissolution
D. The Summons
E. The Initial Filing
1. The Petition and Response Forms
2. Additional Options Available to the Respondent
3 Filing and Service Requirement
F. Default and Uncontested Hearings
G. Contested Trials
H. Conciliation Proceedings
I. Mediation Proceedings
J. Parental Counseling
Summary
Key Terms
Questions for Discussion
Chapter 9 Resolving Issues before Trial
Chapter Overview
A. Preliminary Considerations
B. The Request for Order
1. The Face Sheet
2. The Request for Order and Supporting Declaration
3. The Income and Expense Declaration
4. Temporary Emergency Orders
5. Points and Authorities
C. Responding to the RFO
D Temporary and Ex Parte Orders
E. Domestic Violence Prevention Act
Summary
Key Terms
Questions for Discussion
Chapter 10 Enforcement
Chapter Overview
A. Introduction
B Contempt
C. Enforcement of Support Orders
1. Earnings Withholding Order for Support
2. Abstract of Judgment
3. Child Support Security Deposit
4. Order for Deposit of Assets
5. Notice of Delinquency
D. Uniform Interstate Family Support Act
E. Registration of Intercounty Support Orders
F General Civil Debt Collection Methods
1. Writ of Execution
2. Abstract of Judgment (Civil)
3. Appointment of Receiver
4. Writ of Possession
5. Installation of a “Keeper”
6. Debtor's Examination
7. Wage Assignment (Civil)
G. Sister State Money-Judgments Act
Summary
Key Terms
Questions for Discussion
Chapter 11 Selected Issues
Chapter Overview
A. Attorney's Fees and Costs
B Prevention of Domestic Violence
C. Injunctions Prohibiting Harassment
D. Disclosure of Assets and Liabilities
E. Joinder
F. Employment Benefits
G. Discovery
1. Interrogatories
2. Document Inspection Demands
3. Depositions
4. Requests for Admissions
H. Bankruptcy
1. Generally
2. Family Law Context
I. Taxation
J. Marital Agreements
K. Collaborative Divorce
L. Same-Sex Marriage
M Limited Scope Representation
Summary
Key Terms
Questions for Discussion
Glossary Organization of Family Code Index
List of Figures
Figure 2-1 Form FL-200 — Petition to Establish Parental Relationship
Figure 2-2 Form FL-220 — Response to Petition to Establish Parental Relationship
Figure 8-1 Client Information Sheet
Figure 8-2 Form FL-110 — Standard Family Law Restraining Orders
Figure 8-3 Form FL-100 — Petition
Figure 8-4 Informational Portion of the Petition
Figure 8-5 Informational Portion of the Response
Figure 8-6 Items 1 to 4 of the Petition
Figure 8-7 Form FL-100 — Petition Items 5 to 9
Figure 8-8 Form FL-100 — Petition, Page 3, Items 10 to 12
Figure 8-9 Form FL-120 — Response
Figure 8-10 Form FL-165 — Request to Enter Default
Figure 8-11 Form FL-170 — Declaration for Default et al.
Figure 8-12 Form FL-140 — Declaration of Disclosure
Figure 8-13 Form FL-180 — Judgment
Figure 8-14 Form FL-190 — Notice of Entry of Judgment
Figure 8-15 Form FL-130 — Appearance, Stipulation and Waivers
Figure 9-1 Form FL-300 — Request for Order (Page 1)
Figure 9-2 Form FL-300 — Request for Order and Supporting Declaration (Page 2)
Figure 9-3 Form FL-300 — Request for Order and Supporting Declaration (Pages 3 and 4)
Figure 9-4 Form FL-150 — Income and Expense Declaration (Page 1)
Figure 9-5 Form FL-150 — Income Section
Figure 9-6 Form FL-150 — Deductions Section
Figure 9-7 Form FL-150 — “Assets” Section
Figure 9-8 Form FL-150 — General Information Section
Figure 9-9 Form FL-150 — Monthly Expenses Section
Figure 9-10 Form FL-150 — Attorney's Fees
Figure 9-11 Form FL-150 — Child Support Information
Figure 9-12 Form FL-305 — Temporary Emergency Orders
Figure 9-13 Form FL-320 — Responsive Declaration to Order to Request for Order
Figure 9-14 Form EPO-001 — Emergency Protective Order (CLETS-EPO)
Figure 9-15 Form DV-100 — Request for Domestic Violence Restraining Order
Figure 10-1 Form FL-410 — Order to Show Cause and Affidavit for Contempt
Figure 10-2 Form FL-435 — Earnings Assignment Order for Spousal or Partner Support
Figure 10-3 FormWG-004 — Earnings Withholding Order for Support
Figure 11-1 Form FL-145 — Form Interrogatories — Family Law
Figure 11-2 Form FL-950 — Notice of Limited Scope Representation
Figure 11-3 Form FL-955 — Application to Be Relieved as Counsel
Preface
The purpose of this book is to provide a source of reference and explanation on the material discussed in a class on family law. It is also intended to be a starting point for those not necessarily pursuing this particular course of study but nonetheless interested in the area and searching for a treatise that is written neither for certified specialists nor for completely untrained laypersons. Hopefully this book will fill that need
As I so often caution my students, this particular study of law, second only perhaps to taxation, is one of the most rapidly evolving areas of law. Of course, all of “the law” changes significantly over time. This results from previously unanticipated necessity to meet the ever-changing dynamics of our society and often simply to satisfy the demands of a particular interest group.
Whatever the reason, change is inevitable. In family law, it is both inevitable and quick. Thus, the reader is cautioned to bear in mind that what is correct today may very likely be incorrect tomorrow. This book will be updated periodically to keep up with significant changes in the law, but nothing in this book should be relied upon in an actual legal setting without first undertaking extensive research regarding the particular legal question or consulting a trained professional. No book can substitute for legal advice given by a professional after evaluating all the pertinent facts.
The reader must also be aware that by its very nature this book cannot serve to fully explain the many mysteries of family law. Indeed, this book will be a success if it is able to shed a guiding light on the vast panoply of family law and clearly illuminate the “tip of the iceberg” of the various subjects covered. To presume to fully cover
all of the areas referenced in this book does justice to neither the author nor the many fine authors of extensive, detailed treatises in this area.
This book is not a casebook, although where appropriate cases are mentioned and discussed. Nor is this merely a reference book to the various statutes used in family law, although they too are discussed as appropriate.
Indeed, California family law is a creature of statute. The general common law, while incorporated for the most part into the Family Code, plays little active role in the current resolution of disputes in this area. Case law, too, for the most part only interprets and refines the statutory system. Many is the family court that defers to the legislature to remedy problems in the law.
Accordingly, the plain focus of this book is on the “heart” of the law in this area: the Family Code. This book will thus integrate the two concepts of statutory law and judicial interpretation into a cohesive general discussion of family law and its various aspects. Reference to figures and diagrams are made periodically to help explain the ideas under consideration, and there is a rather detailed discussion of many of the various judicial council forms used in family law practice.
A final note regarding the judicial council forms is appropriate. The forms shown in this book were current as of the date this book went to print. However, as with all other aspects of the law, the Judicial Council regularly revises these forms, sometimes as often as twice a year. As such, care should be taken when reviewing the forms in the book to ensure that the most current one is being studied. Fortunately, although revisions are common, they are typically ministerial and do not reflect significant changes in the substance or content of the form.
Should the reader be so interested, a complete set of judicial council forms can be obtained from any county courthouse at minimal cost. For purposes of this text, the learning process will, in this author's opinion, be unaffected should any of these forms be modified between the time the book goes to print and the time it ends up in the reader's hands.
This book has been a work in progress for the past 21 years. I have seen the area of family law change dramatically over this time, and this book in its various editions has sought to keep up with these changes. This new seventh edition has seen a substantial overhaul of this book, both substantively and in format, because as the law in this area grows and develops there is simply more to write about. Changes in the law have given rise to a restructuring of this book into separate chapters devoted to custody, visitation, spousal support, and child support. Truth is, there is simply too much going on in these areas to keep them grouped together. This restructuring has allowed these areas of family law to be addressed in greater detail in their individual chapters while at the same time maintaining the general flow and consistency between these admittedly related topics.
Additionally, Chapter 11, titled “Selected Issues,” has been expanded to include discussion in the areas of collaborative divorce, same-sex marriage, and limited scope representation. These issues represent “hot topics” in California right now and will no doubt remain so for years to come.
Marshall Waller
December 2015
Acknowledgments
I would like to recognize the help and support of the many people who have assisted me in this endeavor. Inasmuch as the development of this book over its 7 separate editions has spanned over 21 years and required many, many long nights, I feel that the first to receive my sincerest thanks should be, and is, my family: my wife, Mary Ellen, and my children, Ryan and Lauren, all of whom have been patient and understanding throughout its development I also thank my various assistants who have typed the several different incarnations of this book: Cathy Avery, Michele Lazaro, Sam Cesar, Courtney Stensvold, and Doina Gallion. Of my colleagues at work, attorney Sandra Salinas, CFLS has provided insights and suggestions that have found their way into this book over time, for which I am sincerely grateful.
I also wish to thank the various editors who have worked diligently on this book to ensure that it is grammatically sound and substantively readable. A lot goes into producing a book like this, and one would be amazed to see the many gaffes, inconsistencies, misspellings, and non-sequiturs that survive the author's initial draft These people make these books readable, and they deserve much praise for doing so. To the extent that I look good between these two covers, I have them to thank.
I am very appreciative of and wish to recognize the efforts put into this book by Nicholas T. Lasoff, the developmental editor for this edition. To say that he has been diligent and dedicated to the success of this project would be to understate his hard work and attention to detail and his focus on the completion of this project on time and within guidelines. He has been instrumental in bringing this
project to completion and has done so with tact, patience, and understanding. I also wish to thank Mary Elizabeth Grant, Esq. for her hard work, patience, and remarkable writing and editing skills and for all her help in ensuring that this seventh edition is current and up to date. It's not easy cite-checking and proofreading but that
is an essential part of this process. I sincerely thank Ms. Grant for helping to make this book more readable, better organized, and current. Finally I wish to thank Betsy Kenny, my original developmental editor at Wolters Kluwer. Betsy has been patient, kind, caring, and tolerant of me for over 20 years and frankly deserves a promotion, a raise, and a medal for putting up with me for so long. Without her input and guidance these many years this project would have been nearly impossible to put together. I thank her for her time, her efforts, and her support.
CHAPTER1 Introduction to Family Law
A. The Approach to Family Law
B. Jurisdiction; Service of Process; Venue
C. Ethics and the Paralegal
D. The Family Code
E. Validity of Marriage
CHAPTER OVERVIEW
Family law is one of the most challenging and rapidly evolving areas of law today. It involves elements of psychology, taxation, mathematics, accounting, and, of course, law, to name but a few. In addition, the accomplished practitioner in this field must excel at legal research and writing, trial advocacy, and human relations. It has often been said that family law is an area in which it is relatively easy to do poorly and difficult to do well.
This exciting area of the law involves virtually every aspect of the human condition; never will the practitioner see, hear, and experience the range of human emotion as in family law. When one catches a person involved in a marital dissolution, one is not seeing him at his best. Any unpleasant behavior is forgotten, though, the first time a parent thanks you for literally saving her child's life. Believe it; it happens.
This chapter will introduce some of the general concepts used in family law. You will review some basic aspects of civil procedure and study concepts of jurisdiction, service of process, and venue. You will examine ethical issues concerning the practice of law and particularly the practice of family law. Finally, there is a general discussion and overview of the regulating authority for family law in California: the Family Code.
A. The Approach to Family Law
The term “family law” is somewhat of a euphemism in that it is more accurately described, in many respects, as “unfamily law.” Indeed, for the most part, when one thinks of family law, the first thought to come to mind is that of divorce or, more accurately from a California perspective, marital dissolution However, divorce is only one aspect of a very complex and diverse study.
When the subject of family law is examined in any detail, it becomes apparent that this moniker is an umbrella encompassing many diverse and complex areas of law including juvenile law, adoption, guardianship and conservatorship (typically under the major heading “probate”), legal separation, and marital dissolution, to name but a few.
Due to the sheer volume of material, attempting to address all of these subjects would fail to do justice to any of them. Discussion of these subjects sufficient to do more than merely mention their major aspects would exceed the scope of most school terms. The focus of this work, then, is the termination of marital and quasimarital relationships and post-judgment modifications of these matters. This study will emphasize division of property, child custody and visitation, spousal and child support, and procedural considerations in the application of these concepts to everyday situations.
Because this book is designed primarily for a course of study leading to a career as a paralegal, this author combines a strong belief in the concept of “learn by doing” with a heavy emphasis on the conceptual aspects of the study of family law. This combination provides a strong foundation for the student to enter the workplace with a familiarity with the basic concepts involved and a working knowledge of the preparation and utilization of the various judicial council forms that are the cornerstone of everyday family law practice.
This book is divided into several main sections, each of which provides more detailed insights into the myriad of subjects encompassed by the general category. The major categories include a general introduction to the legal system and the legal process, the procedural aspects of family law practice, child custody and visitation, child support, spousal support (“alimony”), property rights and obligations impacting division of marital property, enforcement of orders, and selected procedural and substantive issues, including brief discussions of discovery, nonmarital relationships, registered domestic partnerships, marital settlement agreements, and paternity.
As you approach the study of family law, keep in mind that the law is a constantly changing creature. Family law is no exception. In fact, along with taxation, family law is one of the most rapidly evolving areas of law at this time. As such, understanding the concepts becomes every bit as important as the specific governing code sections and the prevailing case
law of the moment. Accordingly, the memorization of Code sections and certain cases, while not necessarily disadvantageous, should not be the student's primary focus. Instead, that focus should be directed to a thorough understanding of the ideas underlying the statutes. In this way, as the statutes change (and they will) and the
interpretation of the statutes through case law changes, the student will seamlessly adapt to the shifts in policy.
From a statutory standpoint, there are literally thousands of laws (Code sections) in California that have been enacted over the years and are still operative. Fortunately, this course of study concerns itself with only a few. In general, however, there is a large amount of legislation on the subject of family law. The following is a basic list of those laws and their location in the code1:
Abandonment and neglect of children:
Pen. C. §§270 et seq.
Adoptions:
Fam. C. §§8500 et seq.
Child support:
Fam. C. §§3900 et seq.
Spousal support:
Fam. C. §§4300 et seq.
Custody of children:
Fam. C. §§3000 et seq.
Division of property:
Fam C §§2500 et seq
Conservatorships:
Prob. C. §§1400 et seq.
Dissolution, nullity and legal separation of marriage:
Fam. C. §§2000 et seq.
Enforcement of Family Law Act judgments:
C.C.P. §683.310
Enforcement of support orders:
Fam. C. §4500
Guardianships:
Prob C §§1400 et seq
Juvenile Court Law:
W.&I.C. §§200 et seq.
Marital agreements:
Fam. C. §§1500 et seq.
Parent and child relationships:
Fam. C. §§7500 et seq.
Uniform Interstate Family Support Act:
Fam C §§4900 et seq
Spousal abuse:
Pen. C. §§273.8 et seq.
Uniform Parentage Act:
Fam. C. §§7600 et seq.
Uniform Child Custody Jurisdiction and Enforcement Act:
Fam. C. §§3400 et seq.
Uniform Premarital Agreement Act:
Fam. C. §§1600 et seq.
Void or voidable marriage:
Fam. C. §§2200 et seq.
Earnings assignment for support:
Fam. C. §§5200 et seq.
Withholding order for support:
C.C.P. §§706.030–706.034, 706.051, 706.052
Along with those listed, there are other statutes throughout the California codes that pertain to or mention family law subjects. They will be discussed as required throughout this book.
In addition to case opinion and statutory law, there is (in California, at least) a panoply of treatises dealing with the subject of family law Some of the more popular include:
Witkin, Summary of California Law (Thomson Reuters)
Witkin, California Procedure (Thomson Reuters)
California Family Law Service (Bancroft Whitney)
