Business Valuation in a Dissolution

In re Marriage of Lopez involved the division of a law practice in a divorce. Although the case occurred in 1974, it is still valid law today.

FACTUAL BACKGROUND OF THE DISSOLUTION

The husband in this case started a law practice a few years before the parties were married. It was his contention that the law practice was his separate property, and it should be confirmed to him in its entirety.

FAMILY LAW TRIAL PROCEEDINGS

The husband reasoned that because the practice was started before the parties were married, it continued to be his sole and separate property. He argued that because he was paid a salary each year by the business, his income represented the community’s share in the law practice. The trial court agreed with the husband and confirmed to him the entire value of the business. The wife appealed.

APPEAL OF CONFIRMATION OF THE BUSINESS AS SEPARATE PROPERTY

The appellate court reversed the family court’s holding that the law practice was the separate property of the husband. It stated that the efforts, time and skills of a spouse are community assets. Because the husband worked on the business during the marriage, the result was that the community had interest in the practice. Even though the right to practice law is considered a property right, the value of the law practice is a community property.

DO YOU NEED HELP WITH ISSUES RELATED TO BUSINESS VALUATION?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as a business valuation or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

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Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Business Valuation, Community Property | Leave a comment

Collateral Estoppel in Family Law

In re Marriage of Parker involved the determination of whether a father could file a second action to discharge back child support he owed to the county and his ex-wife. He claimed that due to the fact that the parties’ minor children lived with him full- time while they were minors, his back child support should be discharged.

FACTUAL BACKGROUND OF THE COLLATERAL ESTOPPEL CLAIM

The parties were divorced in California in 1990. After the court entered the order, both parties moved from the state of California. The mother moved with the children to Texas and the father moved to Oregon. Mother testified that she took the children with her to live in Texas and dad went to Texas to take the children from Texas for a month-long visit. At the time that he took the children, the mother did not realize that the father had moved from California to Oregon. She testified that she did not know where the father and the children lived and could not contact the father. After the children turned 18, the father filed two motions to discharge the past due child support.

DENIAL OF SECOND ACTION BASED ON COLLATERAL ESTOPPEL

The first motion was filed in 2007 at which time the family court denied the father’s request to discharge his back child support finding that the father kept the children from their mother without proper authority preventing her from seeing them. In December 2014, the father filed again, claiming that the mother committed perjury when she testified that she did now know where he and the children lived. The family law judge denied the second motion based upon the doctrine of collateral estoppel. The father appealed the second order.

APPEAL OF THE DENIAL OF COLLATERAL ESTOPPEL

The court of appeal upheld the family court order, because the first order precluded litigation in the second action based on the doctrine of collateral estoppel. Collateral estoppel prevents parties from filing successive motions after a court has already decided an issue. There are five elements of collateral estoppel, and all elements were met in the second action precluding the father from a second hearing: the issues were the same in both actions, the parties litigated the issue in the first action, the issue of whether or not the mom knew the whereabouts of the children was necessary for the determination in both hearings, the decision in the prior hearing was a final determination and no one appealed it, and finally, it was the same parties litigating both actions. Due to the fact that all elements were met, the father could not re-litigate his request to discharge his back child support.

DO YOU NEED HELP WITH ISSUES RELATED TO FAMILY LAW AND COLLATERAL ESTOPPEL?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as collateral estoppel or any other divorce matter such as legal separation, annulment, custody, child support, spousal support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in California Divorce | Tagged | Leave a comment

Child Support and Assisted Reproduction in California

In County of Orange v. Cole the court of appeal considered whether a sperm donor could qualify as a presumed father so that child support could be ordered.

FACTUAL BACKGROUND OF THE FINDING OF PARENTAGE

A man’s sperm was used to impregnate his girlfriend through assisted reproduction. He spent the first few years of the child’s life with his girlfriend several nights of the week. The child occasionally called him daddy and he often told others that he was the child’s father. After two and a half years, the alleged father cut all ties with the girlfriend and child. In 2014, the County of Orange filed a complaint against the alleged dad, asking that he be declared the father and ordered to pay child support.

PARENTAGE FINDINGS AND TRIAL

The Orange County Superior Court concluded that the sperm donor was the father and ordered him to pay child support. The newfound father appealed the decision stating that he was the sperm donor and as such was precluded from being declared the father.

APPEAL OF THE PARENTAGE ORDER

The court of appeal agreed with the family court. Although Family Code section 7613 prohibits a sperm donor through assisted reproduction from being declared the natural father of a child, the father’s actions in this case qualified him for parentage under Family Code section 7611(d). When the sperm donor held the child out as his own and received him into his home, he changed from being a sperm donor to a father. Once the sperm donor acted like a father and established a relationship with the child, he qualified as a presumed father and was subject to child support obligations.

DO YOU NEED HELP WITH ISSUES RELATED TO PARENTAGE?

If you need legal advice and are looking for a family law lawyer in Orange County to address parentage or a divorce matter such as legal separation, annulment, custody, spousal support, child support, and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Paternity | Tagged , | Leave a comment

Res Judicata, Dissolution, and Subsequent Annulment

Although res judicata was the pivotal issue in In re Marriage of Garcia, the putative spouse’s petition for nullity was the underlying action.

FACTUAL BACKGROUND FOR THE ANNULMENT

In 2014 Florencia Garcia filed for divorce after 24 years of marriage. Juan Garcia filed a motion to quash the service of the petition on the grounds that there was never a legal marriage between him and Florencia. The trial court agreed with the husband, quashed service of the summons and dismissed the action. Florencia did not appeal the judgment and filed a petition for nullity of marriage several weeks later.

PETITION FOR NULLITY OF MARRIAGE

The trial court annulled the marriage and found that Florencia was a putative spouse. Juan filed an appeal on the grounds that the judgment dismissing the dissolution action bars the relief that Florencia seeks in the nullity action.

APPEAL OF THE ANNULMENT OF MARRIAGE

Juan argued that because the annulment and dissolution involve the same parties, identical petitions, and the same requests for relief, they are the same exact action under the res judicata doctrine. The doctrine of res judicata prevents a subsequent litigation of the same cause of action between the same parties once a judgment has been entered. The Fourth Appellate District upheld the order stating that res judicata did not prevent the nullity action from proceeding. Even though the annulment and dissolution resulted in the division of property, spousal support, and attorney fees, they each involved different primary rights. The primary right in the dissolution of marriage is the determination that a valid marriage existed. The primary right in a nullity action is whether a valid marriage existed. Although in both circumstances there can be a division of assets and debts, an award of spousal support, and payment of attorney fees, the underlying action is different.

DO YOU NEED HELP WITH ISSUES RELATED TO AN ANNULMENT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as annulment or any other divorce matter such as legal separation, annulment, custody, spousal support, child support, and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Uncategorized | Leave a comment

Can Business Capital be Considered Income in Consideration of Spousal Support?

If the spouses in a divorce own a business, the court can exclude from income any capital that will be used to re-invest in the business (In Re: Marriage of Blazer).

FACTUAL BACKGROUND OF THE DIVORCE PROCEEDINGS

The parties were married for more than 20 years. Their principle asset was a business created by the husband and valued at 5.6 million dollars. At issue was whether the cash held by the business should be considered as income for purposes of spousal support or if should be considered necessary for capital reinvestment.

DIVORCE PROCEEDINGS

During the divorce, the husband argued that the business was underfunded and any money in the business should not be considered income for purposes of spousal support, because it was needed to reinvest in the company. The wife argued that the money in the business should be considered income. The trial court excluded the money in the business capital account refusing to label it income for the purposes of spousal support. The wife appealed.

APPEAL OF THE DIVORCE JUDGMENT

The court of appeal upheld the trial court’s decision stating that the business needed to be diversified in order to remain competitive in the market. The court held that the family court properly exercised it discretion by attributing the funds in the business capital account to the business rather than as income for the purposes of support.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as child support or any other divorce matter such as legal separation, annulment, custody, or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Income, Spousal Support | Leave a comment

Attorneys Cannot be Awarded 271 Sanctions

Webb v. Webb addresses the issue of sanctions requested by non-parties in a dissolution.

FACTUAL BACKGROUND FOR THE REQUEST FOR SANCTIONS

Wife and husband were getting a divorce when wife’s two separate attorneys recorded a family law attorney real property lien (FLARPL) against the community real property. Later, both attorneys withdrew from the case.

FAMILY COURT’S AWARD OF SANCTIONS

Throughout the litigation, the husband filed numerous ex parte motions to remove the liens from the property. The family court denied all the motions. The husband also filed a conservatorship in probate court saying that the wife could not manage her finances which was also denied. At the end of the dissolution proceedings, the attorney’s who had represented wife filed motions for 271 sanctions which the trial court granted. The husband appealed the order stating that non-parties could not be awarded 271 sanctions.

APPEAL OF THE SANCTIONS ORDER

The court of appeal agreed with the husband. The Second Appellate District Court stated that 271 sanctions are necessary to foster settlement between the parties by shifting fees between the parties to the litigation. It reasoned, that because 271 sanctions could not be awarded against an attorney under section 271, sanctions may not be awarded to a party’s attorney when the attorney is the one who is requesting the sanctions for her sole benefit. Therefore, only a party may move for sanctions.

In addition, in a motion for 271 sanctions, the moving party must show the sanctions were related to section 271’s purpose of promoting settlement. The Appellate Court held that the numerous filings by the husband in this case were not shown to have hindered the parties’ attempts to settle the litigation.

DO YOU NEED HELP WITH ISSUES RELATED TO SANCTIONS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as sanctions or any other divorce matter such as legal separation, annulment, custody, spousal support, child support or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Attorney Fees in Orange County | Leave a comment

Waivers in Spousal Support in Prenuptial Agreements Made Before 1985

During the last forty years, the concept of spousal support and whether or not it can be waived in a prenuptial agreement has undergone significant changes. If parties agreed to a waiver of spousal support in a prenuptial agreement as far back as 1985, the court will invalidate that portion of the agreement. This is exactly what happened in In re Marriage of Melissa.

FACTUAL BACKGROUND FOR THE WAIVER OF SPOUSAL SUPPORT

Just before the parties married, they signed a prenuptial agreement that waived spousal support. The parties were married 24 years before the wife filed for divorce. They had a son together who was an adult at the time of the dissolution.

WAIVER OF SPOUSAL SUPPORT AND ITS ENFORCEMENT

The husband argued that current law allowing waivers of spousal support should be applicable, because there is no public policy that voids agreements to waive spousal support. The trial court voided the waiver of spousal support, stating that all legal authority at the time that the contract was entered into, was very clear that waivers of spousal support were void as against public policy. The husband appealed.

APPEAL OF THE SPOUSAL SUPPORT WAIVER

The appellate court agreed with the family court. It stated that waivers to spousal support agreed to before 1985 are unenforceable in prenuptial agreements. It reasoned that it would be unfair to allow the application of both current law and old law to this situation. Current law requires a seven day waiting period before signature on a prenup that waived spousal support and attorney representation. Old law held that spousal support could not be waived. In this situation, if the court allowed it to be waived, it would be waived without the benefit of a lawyer which is currently required.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as spousal support or any other divorce matter such as legal separation, annulment, custody, child support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com
Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Spousal Support, Waiver | Leave a comment

Does an Agreement for Spousal Support for Bonus Income Include All Income Above Base Salary?

In re Marriage of Minkin involved an agreement and order for the payor of spousal support to pay his wife a regular monthly payment as well as additional spousal support based upon a percentage of his bonus income. The court needed to define of “bonus income” in this case. The issue was whether or not a deferred compensation plan and other income should be considered bonus income which requires that a percentage of it be paid as spousal support to the wife or is the payment of additional spousal support only limited to income which is paid as a bonus.

FACTUAL BACKGROUND FOR MODIFICATION OF SPOUSAL SUPPORT

At the time of separation, the husband worked as an executive earning $300,000 a year with a potential bonus of 20 percent of his salary. The bonus was based upon his and the company’s performance. The parties agreed that the wife would receive spousal support including 41 percent of her husband’s annual bonus income. Shortly after the parties divorced, the now ex-husband obtained a new job. His new job provided him with a senior management incentive plan, deferred compensation plan, change of control agreement, and a relocation plan. He paid his ex-wife 41 percent of the senior management incentive plan but did not pay her a percentage of any of the other compensation. The ex-wife filed a motion to determine spousal support based upon the fact that her ex-husband did not pay a percentage for all the income he earned in excess of his base salary.

FAMILY COURT PROCEEDINGS FOR SPOUSAL SUPPORT

The family trial court ruled in favor of the ex-husband and held that an annual bonus is a discretionary payment based upon performance. Any additional payments above an annual salary that are not tied to performance are not considered bonus income. Therefore, the ex-wife was not entitled to any additional spousal support.

APPEAL OF THE SPOUSAL SUPPORT ORDER

The appellate court affirmed the trial court’s orders. It held that an agreement for spousal support based upon bonus income does not include all income over and above the base salary. The only income that is considered bonus income is income that is discretionary and based upon performance. Therefore, the ex-wife had received what was due her under the agreement and order.

DO YOU NEED HELP WITH ISSUES RELATED TO SPOUSAL SUPPORT?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as spousal support or any other divorce matter such as legal separation, annulment, custody, child support and/or property division, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Income | Tagged | Leave a comment

Who Gets The Growth After a Retirement Account is Divided?

At issue in Janes v. Janes is whether or not a wife is entitled to the gains and losses associated with a “divided” retirement account.

FACTUAL BACKGROUND OF THE DIVISION OF THE RETIREMENT ACCOUNT

In 2010 the parties signed a martial settlement agreement dividing their 401(k). The wife was awarded $113,392 as her share of the 401(k). Several years later, the account was formally divided; however, the wife did not receive any gains or losses from her portion of the 401(k). She filed a motion to enforce the terms of the judgment.

RETIREMENT ACCOUNT PROCEEDINGS TO DIVIDE THE 401(k)

During the family court hearing to enforce the judgment, the husband argued that because the marital settlement agreement only identified a specific amount, the wife was entitled to that specific amount and was precluded from receiving any additional amount based upon growth. The wife argued that even though the marital settlement agreement identified a specific amount, it awarded her that specific amount and she was entitled to receive any growth from her separate property. The trial court awarded the wife the initial amount plus any growth thereof. The husband appealed arguing that the family court lacked jurisdiction to modify the marital settlement agreement the parties signed when it awarded the wife growth from the 401(k).

APPEAL OF THE ORDER FOR THE DIVISION OF THE RETIREMENT ACCOUNT

The appellate court affirmed the order. It stated that when a final order of the court is made dividing community property it becomes the separate property of the person who was awarded that asset. As such, a person’s separate property is entitled to any gains or losses from his or her separate property. Therefore, the wife is not only entitled to the amount specified in the marital settlement agreement, she is also entitled to any growth thereof. When the court confirmed the gains to the wife, it was not altering the judgment, the family court was affirming it.

DO YOU NEED HELP WITH ISSUES RELATED TO DIVISION OF PROPERTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as property division or any other divorce matter such as legal separation, annulment, custody, spousal support and/or child support, please consider Treviño Law in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Property, Retirement Benefits | Leave a comment

Post Judgment Vocational Exams

In re Marriage of Stupp v. Schilders involved a post-judgment request for a vocational examination for the ex-wife.

FACTUAL BACKGROUND OF THE REQUEST FOR ORDER FOR A VOCATIONAL EXAM

By the time the ex-wife filed this appeal, the parties were already divorced. A stipulated judgment had been entered settling support issues. The ex-wife appealed the spousal support orders agreed to in the stipulated judgment. In response, the ex-husband filed a request for the wife to submit to an exam.

TRIAL PROCEEDINGS FOR THE REQUEST FOR A VOCATIONAL EXAM

The family court ordered the ex-wife to submit to a vocational exam. The ex-wife appealed the order for her to submit to a vocational exam.

APPEAL OF THE ORDER FOR A VOCATIONAL EXAM

The court of appeal reversed the order for the vocational exam. It stated that Family Code 4331(b) requires a finding of good cause to require the ex-wife to submit to a vocational exam after a judgment has been entered. At the time that the ex-husband requested the vocational exam, there was no motion pending for spousal support only an appeal of the spousal support order. The fact that the ex-wife was appealing an order for spousal support was not considered good cause, because the family court could affirm an order for spousal support making any motions irrelevant. In addition, section 3662 of the Family Code only allows post-judgment discovery methods if motions are pending.

DO YOU NEED HELP WITH ISSUES RELATED IMPUTED INCOME FOR THE OPPOSING PARTY?

If you need legal advice and are looking for a family law lawyer in Orange County to address a dissolution issue such as imputation of income for child support or any other divorce matter such as legal separation, annulment, custody, spousal support and/or property division, please consider our law office in your divorce attorney search. We are located in Laguna Hills right off Lake Forest exit to both the 405 and 5 freeway.

T-LawLogo only

Treviño Law, Inc.
23151 Moulton Parkway
Laguna Hills, California
Phone (949) 716-2102
Visit us at
www.LawintheOC.com

Although the posting of this information can be considered free legal advice for a divorce in Orange County, it does not guarantee that there are other facts which may play a significant part in a dissolution. Circumstances in a divorce case may alter the required action and analysis taken by a family law attorney in California.

Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc.
Posted in Child Support, Spousal Support | Tagged | Leave a comment