Family Code 217 Testimony

In re Marriage of Swain involved an ex-husband’s request to terminate spousal support.

FACTUAL BACKGROUND OF THE REQUEST TO TERMINATE SPOUSAL SUPPORT.

The parties had been married for 11 years before filing for divorce. They entered into a stipulated judgment which ordered the ex-husband to pay spousal support to his ex-wife in the amount of $2,500 per month. In 2016, the ex-husband filed a request for an order to terminate alimony. In addition to the fact that he had retired from his job, his ex-wife was receiving half of his pension.

FAMILY LAW PROCEEDINGS

In the proceedings, the ex-wife only filed an Income and Expense Declaration. Otherwise she did not respond to the paperwork, and she did not appear at the hearing. The trial court lowered spousal support based on the information presented at trial and the Income and Expense Declaration filed by the ex-wife. The ex-husband appealed stating that the Income and Expense Declaration filed by the ex-wife should not have been used in lieu of her testimony, because the ex-husband was entitled to cross examine his ex-wife as a witness.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the ex-husband. It stated that the enactment of Family Code section 217 required that testimony in family law hearings should be live unless good cause exists or the parties stipulate otherwise.

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.

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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.
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Waived Military Pay and Spousal Support

Military disability pay, retirement pay, and spousal support were the topics discussed in In re Marriage of Cassinelli.

FACTUAL BACKGROUND OF THE SPOUSAL SUPPORT ORDER

The parties were married for more than 20 years and were divorced in 1986. There was a judgment that awarded the wife half of the community interest of the husband’s military retirement. Twenty years later, the husband suffered an illness which was the result of being exposed to Agent Orange, and he qualified for veterans disability pay and combat-related special compensation. In order to obtain disability pay, he had to waive his retirement pay which wiped out any interest his wife would have in the retirement. The wife filed a motion for non-modifiable spousal support.

FAMILY LAW PROCEEDINGS

The trial court awarded the wife the same amount in spousal support as she had received in retirement pay. The husband appealed the order.

APPEAL OF THE SPOUSAL SUPPORT ORDER

The appellate court held that in light of a recent United States Supreme Court decision, the family law court could not award an amount in spousal support that mirrored the amount that the spouse would have received in the retirement account. Instead, the court could only award spousal support based on the factors identified in Family Code section 4320.

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.

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Legal Interest on Judgments

The appellate court in In re Marriage of Dalgleish and Selvaggio discussed the interplay of judgments, legal interests on judgments, and equalization of payments.

FACTUAL BACKGROUND OF THE DISSOLUTION

The parties entered into a stipulated judgment which required them to jointly hire an appraiser to value their real property. After the appraiser was hired, the ex-husband was required to pay the ex-wife an equalization payment within 10 days of the appraisal that was based upon the appraisal of the home. The ex-husband failed to make the payment. The ex-wife filed a request for order to enforce the judgment including interest from the date the equalization payment was due.

FAMILY LAW TRIAL PROCEEDINGS

At the hearing, the ex-husband argued that the amount of the equalization payment was never determined, because the appraiser was not hired jointly. Although the family law judge did not agree with the ex-husband’s argument, the family law trial court held that the interest on the equalization payment would not begin to accrue until the date the order was made on the request for order. The ex-wife argued that the interest on the judgment should have started 10 days after the appraisal was completed which would have resulted in more than a million dollars in interest.

APPEAL OF THE REINSTATEMENT ORDER

The appellate court agreed with the ex-wife. It stated that section 685.020 requires a money judgment to accrue interest on the date of the entry of judgment. It further stated that a money judgment on which interest accrues begins the date of the entry of the judgment unless there is an express or implied agreement that states otherwise. In this case, the parties agreed that the judgment was due 10 days after the receipt of the joint appraisal. The appellate court stated that the judgment based on the request for order was not a new judgment. Instead it was an enforcement of the previous judgment. Therefore, interest should have begun to accrue 10 days after the appraisal.

DO YOU NEED HELP WITH ISSUES RELATED TO CHILD 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, 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.
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Full Faith and Credit for Out of State Judgments

In re Marriage of Connolly involved the enforcement of a judgment for both child support and spousal support orders made in two different states.

FACTUAL BACKGROUND OF THE CHILD AND SPOUSAL SUPPORT ORDERS

The parties first obtained a judgment for divorce in California. The judgment included awards for both spousal support and child support. Both parents moved to Utah where the ex-wife filed a motion to determine support arrears. The Utah order identified the outstanding amount for support, but it did not include interest in the arrears. The ex-husband then moved to California, and the ex-wife filed a motion for the California court to determine the interest due on the outstanding support orders.

FAMILY LAW TRIAL PROCEEDINGS

The California family court determined the interest on the Utah support order, based on the fact that it appeared like the Utah support order did not include interest, and California requires interest on judgments at a rate of 10 percent per year. The ex-husband appealed the California order stating that California should have given full faith and credit to the Utah order.

APPEAL OF THE SUPPORT ORDER

The appellate court agreed with the ex-husband. It stated that because the Utah order was a final judgment, it was entitled to full faith and credit by California. The determination as to whether it was a final decision was based on res judicata. Res judicata is a doctrine that prevents the litigation of an issue that could have been raised in the prior hearing. Because interest could have been adjudicated in the Utah order, and was not, it cannot be litigated in the subsequent California order.

DO YOU NEED HELP WITH ISSUES RELATED TO 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, 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.
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Business Owners Cannot Transfer Their Businesses in Order to Terminate Support

In re Marriage of Berman concerned the issue of spousal support and whether a person who is at retirement age can give his business to his new  business partner and spouse and stop paying spousal support.

FACTUAL BACKGROUND OF THE MODIFICATION OF SPOUSAL SUPPORT

The parties had been married more than 30 years before getting a divorce. There was an order for the ex-husband to pay his ex-wife spousal support. The ex-husband retired at the age of 65 and transferred his business to his second wife. He then filed for a termination of spousal support.

FAMILY LAW TRIAL PROCEEDINGS

The family court denied the husband’s request to terminate spousal support. It viewed the transfer of the business for no consideration as a bad faith attempt to divulge the husband of any of his assets. The court ordered spousal support based on the income that the business would have earned had the husband kept the business. The ex-husband appealed the order.

APPEAL OF THE DENIAL TO TERMINATE SPOUSAL SUPPORT

The appellate court upheld the family court’s order. It stated that if a court finds that a party paying support has structured ownership of a business to avoid his or her obligations, the court can ignore the form or ownership and determine the extent of the supporting party’s true interest in them.

DO YOU NEED HELP WITH ISSUES RELATED TO 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, 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.
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Enforcement of Prenuptial Agreements

In re Marriage of Clarke and Akel discusses the requirements of a valid premarital agreement.

FACTUAL BACKGROUND OF THE DISSOLUTION

Before the parties were married, the husband downloaded a template of a prenuptial agreement from the internet. He prepared the prenuptial agreement and presented it to his fiancee. He then hired an attorney for his fiancee but did not hire an attorney for himself. In the premarital agreement, he gave up some substantial rights including his right to reimbursement for any separate property he contributed to the purchase of the family residence, and he gave up the right to live in his home after the divorce.

FAMILY LAW TRIAL PROCEEDINGS

In the divorce proceedings, the husband argued that the prenup was invalid because it was not presented seven days before the wedding in spite of the fact that the agreement expressly stated that the parties had been presented with the prenuptial agreement seven days before their wedding. He also argued that he did not have a separate writing which informed him of the rights he was relinquishing which further invalidated the agreement. The wife argued that as the creator of the prenuptial agreement, the husband had seven days to review the document and that the waiver of the seven day requirement was valid as to both parties. The trial court found that the prenuptial agreement was invalid, because the husband was never informed of his right to an attorney in a separate writing, he was not informed in writing of the rights he was relinquishing, and he could not waive his right to a seven day waiting period.

APPEAL OF THE REINSTATEMENT ORDER

The court of appeal upheld the order. It held that Evidence Code section 622, which provides that written documents signed by the parties conclusively presumes the truth between the parties, only applies to situations involving arm’s length negotiations. It does not apply when then contract itself is invalid. The parties should have had seven days before the wedding to sign the paperwork and section 622 would not operate to circumvent that right. The court also held that because the husband was not represented, he was not fully advised of the rights he was waiving even though he initiated the agreement and created many of the provisions of the prenuptial agreement.

DO YOU NEED HELP WITH A DISSOLUTION?

If you need legal advice and are looking for a family law lawyer in Orange County to address a 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 Pre-nuptial, Premarital agreement | Leave a comment

A Restraining Order Issued in Juvenile Court Can be Renewed in Family Court

In Priscila N. v. Leonardo G. Priscila was the victim of domestic violence and requested the family court to renew a restraining order she first obtained in juvenile court.

FACTUAL BACKGROUND OF THE REQUEST TO RENEW THE PROTECTIVE ORDER

The parties in this case were previously married. A petition for divorce was filed in family court. While the family court matter was pending, a dependency proceeding was filed in juvenile court. The juvenile court issued a restraining order against Leonardo then terminated the juvenile action. Just before the expiration of the juvenile court’s restraining order, Priscila filed a request to renew the restraining order in family court.

RESTRAINING ORDER TRIAL PROCEEDINGS

At first the family court made an order to renew the restraining order, but later it reversed its decision believing that it did not have the jurisdiction to renew a restraining order which was first issued in juvenile court. Priscila appealed the decision.

APPEAL OF THE DENIAL TO RENEW THE RESTRAINING ORDER

The Second Appellate District Court agreed with Priscila. It stated that the legislative history supported the view that the legislature did not want to re-victimize the victims by requiring them to get new restraining orders in the family court. In addition, the main purpose of the law is to strengthen the law to protect victims of domestic violence.

DO YOU NEED HELP WITH ISSUES RELATED TO PROTECTIVE ORDERS?

If you need legal advice and are looking for a family law lawyer in Orange County to address a restraining order or any divorce matter such as legal separation, annulment, custody, 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 Restraining Order | Tagged | Leave a comment