the qdro reader

Newsletter Editor

Sharon A. Bryan, J.D., CFLS





N E W S L E T T E R

Association of Certified Family Law Specialists SPRING 2005, No. 2







the qdro reader

by james m. crawford, jr.

CHAPTER 1 "You mean that my husband and his first wife

r on o ae h nie 1000"

aegigt tk teetr $2,0?

st

The Vii Your jaw dropped and so did the papers.

Picking them up, you point to the blurred num-

t was a dark and stormy January afternoon. I h s s e l y 1 0 0 0 ow i t e o

ber. " f t i i r a l $ 2 , 0 , h d d i g t t

I Your client just walked into your office and

eagerly handed you a damp statement from

e o ag?

b s lre"

"Because after we were married I persuaded

her husband s defined benefit plan. "How my husband to finish school, which he did,

uh f hs s on o e ie" h ss

mc o ti i gigt b mn? seak. after which he rejoined Plumb as a softwa er

You look down at the paper, which you see e t ye h r t 0 as

engineer. H s a d t e e for the nex 1 ye r ,

is dated December 31, 1990, one month befo e r doing very well. Then last December we

e ae f arae t h

h r d t o m r i g . I s ows a vested annual d oie u f h le eln s f

receive a n t c o t o t e b u t l i g u o a

benefit of $1,2001 based on final average com- special retirement offer from the company that

a utpir f

pensation of $12,000 per ye r, a m l i l e o w ould enable him to elect early retirement

% n 0 as f rdtd evc. h el

1 , a d 1 ye r o c e i e s r i e S e t l s with 100% of his final average pay, which by

you that this was earned years ago while he then was $120,000.2 Since this wa j s t o g o

s ut o od

rig s aio

w as wo k n a a j n t r for Plumb Software; and that he had ok t"

of an opportunity to pass up, weto i.

ut fe 0 et i. u m l , h s

q i a t r 1 years when his first wife l f h m Yo s i e t i "Unfortunately," she continued, "my husband came home

s o n o e a y.

i gigt b es from signing all the paperwork yesterday and announced he

r

But befo e you have a chance to respond, she hands yo a u n ht.

w as leaving me and going to spend the rest of his life i Ta i i

d n h

second soggy statement which she had just receive i t e o e l e ow

S , t l m , h much of that $120,000 will I receive" ?

th eei

mail. Not surprisingly, i sow ed that her husband s b n f t Being familiar with the "time rule," and having recently

had not changed it was still $1,200 although with the rain- r a Marriage of Lehman3 c r t c r,

ed ove o ove you calmly reassure

smeared ink it almost looked like $120,000. "I m sorry to tell You

her," are entitled to half of the additional benefits that

u h t o e f h s s us"

yo t a n n o t i i yo r , you tell her smoothly. continued on page 4 (QDRO)



. h ln eei s % i a verage compensation (FAC x ye r o s r

1 T e p a b n f t formula at that time wa 1 x f n l a ) a s f e v- s % as f evc oa,

2. The new benefit formula wa 5 x FAC x years of service. Husband had 20 ye r o s r i e t t l

as f rdtd evc, n f 1,0 e a %

ice. When husband quit he had 10 ye r o c e i e s r i e a d FAC o $ 2 0 0 p r ye r. 1 x f 1000 e a % ie 0

and FAC o $ 2 , 0 p r ye r. 5 t m s 2 years x $120,000 is $120,000.

2 0 0 0 as s 120

1 , 0 x 1 ye r i $ , 0 . . 19) 8 a. t 6.

3 In re Marriage of Lehman ( 9 8 1 C l 4 h 1 9







From the Editor’s Desk . . . . . . . . . . . . . . . . . . . 2 New Family Code §2640(c): Closing a Loophole

What’s Inside









Sharon A. Bryan or Creating a New Right . . . . . . . . . . . . . . . . . . . 14

From the President . . . . . . . . . . . . . . . . . . . . . . 3 Dawn Gray

ron Lachner Legislative Report . . . . . . . . . . . . . . . . . . . . . . . . 16

The QDRO Reader . . . . . . . . . . . . . . . . . . . . . . . . 1 Joseph J. Bell

James M. Crawford, Jr. Computerization and Telecommuting for the

The Standard of Value in Solo and Small Firm Lawyer . . . . . . . . . . . . . . . . 20

Divorce Business Valuations . . . . . . . . . . . . . . 9 John E. Harding

Mark Kohn More than the Basics: What Vocational

Support: Assembly Bill AB19 Evaluations Can Do for You . . . . . . . . . . . . . . . . 23

Oppose: SCA1 and ACA 3 . . . . . . . . . . . . . . . . . .11 Betty Kohlenberg

Lynette Berg robe/Melvin J. Ross the Human Side of Family Law

ACFLS Spring Seminar 2005. . . . . . . . . . . . . 12-13 One Family Lawyer’s Perspective on Judges . . . . 27

Laguna Beach Heidi S. Tuffias

RECYCLED PAPER

From the Editor’s Desk

Sharon A. Bryan, J.D., CFLS

Newsletter Editor

N E W S L E T T E R

Los Angeles

Spring 2005, N0.2

sharon@mbslawcorp.com

Association of Certified

Family Law Specialists



President

.. FS

Ron Lachner, J D , C L

suspect that readers will agree with reading the recent news magazines,

Newsletter Editor

Sharon A. Brya , J D , C L

n .. FS

I

f

me that family law is constantly

orcing us to analyze different wa s t

y o

w omen starting all ove a a n i t e r

ote, ite n ite r h ot

r gi n hi

fr i s f f i s a d s x i s a e t e m s

Newsletter Editor-Elect approach an issue -- whether it be a aife ru f epe o hr s

stsidgopo pol. S teei

.. FS

Leslie Ellen Shear, J D , C L lain - n

pension or a business va u t o - i hope out there, and maybe a vocational

Printing r e o e t e ve u l e t . i

o d r t b s s r orcins Jm l a i n a s i t u l e t n i d-

eva u t o c n a s s o r c i n s i f n

House of Graphics r i

Crawfo d g ves us a thought-provoking ing the way.

Graphics and Typography article on Qualified Domestic Relations s sa, o el s n o f ht s

A uul JeBl i o tpo wa i

Fumi Gothard Orders and the time rule as applied happening in the legislature and the most

through the permutations of facts and motn il r rsne ee o ht

ipratblsaepeetdhr s ta

setr s ulcto f h

The ACFLS New l t e i a p b i a i n o t e rn ae.

circumstances in diffe e t c s s You etfe pcait hogot h tt

criidseilsstruhu tesae

Association of Certified Family Law Specialists

a e rm edn t ht t s o

cnsefo raigi ta i i nta a rt o h eiltr ih epc

cnwiet telgsauewt rset

Send your submission in

ect r n ik r mi o

W ordPerf or Wo d o d s o e a l t :

simple matter of applying the time rule o hs il f motne o hm

t toeblso iprac t te.

Sharon Byran, CFLS, Newsletter Editor o h eso, r f t s

t t e p n i n o i i i , we may be seri- Lynette Berg Robe and Mel Ross have

21515 Hawthorne Blvd., Suite 490

Torrance, CA 90503-6511

ously disadvantaging our clients. This c l e t o f r t-

done their usual ex e l n j b o w i

hn: 30 4-85 a: 30 1-37

Poe (1)5085 ¥Fx (1)3610 , o lce

article is long and complex s I e e t d n etr o h eiltr eadn

igalte t telgsauergrig

E-mail: sharon@mbslawcorp.com

o ped t sus n o i

t s r a i over two i s e , a d t s m- bills which would limit marriage in

All contributions become the intellectual property of

ACFLS, and may be distributed by ACFLS in any fashion it

l f t s u h s o s b e n h ex

piyi a mc a psil. I ten t ai

C l fornia to a union between a man

chooses, including print, internet and electronic media. issue, Mr. Crawford provides us with and a woman.

Authors retain the right to independently republish or

itiue hi

d s r b t t e r own contributions.

some of his thoughts on solutions. Heidi Tuffias weighs in on the odd

s o

What approach we u e t valuing a but generally productive relationship

setr s eind o r ie cuae

The new l t e i d s g e t p ov d a c r t

n

and authoritativeiformation in regard to the subject mat- business advantages or disadvantages between family law attorneys and

e overed and is distributed with the understanding that

trc our clients, and Mark Kohn wa k uls s hi ugs

terjde.

FS s o nae n edrn ea, conig r

AC L i n t e g g d i r n e i g l g l a c u t n o

t e r fe s o a e v c . f e a d i e r t e

o h r p o s i n l s r i e I l g l a v c o o h r expert through an analysis which we should s s

Finally, John Harding give u a

s i t n e s e u r d h e v c s f o p t n r fe

a s s a c i r q i e , t e s r i e o a c m e e t p o s- o n

d i every case. The actual standard of detailed view of how he does his

inl esn hud e ogt

soa pro sol b suh.

s r.

value may, a M Kohn suggests, telecommuting. His article names the

require a bifurcated hearing on which r n el

names of softwa e a d t l s you what

ACFLS MISSION STATEMENT

tnad o s n atclr ae

sadr t uei apriua cs. to buy and why he likes one type of

t s h iso f

I i t e m s i n o ACFLS to promote

and preserve the Family Law Specialty. s s ra nlss

Dawn Gray give u a g e t a a y i r

softwa e over another. We thought it

To that end, the Association will seek to:

of 2640(c), with some thoughts that r o o r c i-

might be really helpful fo s l p a t

.

1 A dvance the knowledge of Family Law Specialist;

may not have occurred to you in terms tioners, which constitute a fair propor-

. cig h il

2 Monitor legislation and proposals affe t n t e f e d

of family law;

f ow we should utilize the new

o h tion of our membership.

.

3 Promote and encourage ethical practice among mem- Family Code ⁄2640(c) in our practices, il e inn f ih hs su r

I w l b s g i g o f w t t i i s e fo

es f h a n hi let; n

br o tebradtercins ad l n

whether it applies retroactive y, a d r s

a year while Leslie Shear takes ove a

.

4 Promote the specialty to the public and the

family law bar.

whether it applies to other than jointly- Editor of the ACFLS Newsletter. Iwl il

owned separate property. be back with next summer’s issue. In

Vocational evaluations can be per- the meantime, I wish you interesting

ADMINSTRATOR

n

For circulation, membership, administrative a d event

lal

sonally va u b e for our clients who l e t , h l e g n e a s u s o r-

cins calniglglise,cu

registration requests, contact: have not been in the workplace fo ar tesy and professionalism from and

i r

Patricia A. Parson/Lynn Pfefe lp e

long time, since they can deve o fe l- ow

t ard colleagues, and good judges to

1884 Knox Street, Castro Va l

l ey, CA 94546 ings of self esteem and guidance as to make decisions that generally affe tc

50 8-79 a:

( 1 ) 5 1 3 9 ¥ F x (510) 581-8222

E-mail: acfls@aol.com

o iet hi f rs o h uue

how t d r c t e r e fo t t t e f t r . people more personally than in any

it u ic t s fe

Not to appear sex s , b t s n e i i o t n other type of law.

w omen who have not been in the work

' 2005 Asociation of Certified Family Law Specialists

oc r o g i e f

f r e fo a l n t m , i you have been Have a great summer.



Spring 2005, No.2 Page 2 ACFLS Newsletter

From the President

RON LACHNER, J.D., CFLS

President

Los Angeles

ron@lachnerlaw.com









eve a o j c i

r l b e t ves of importance demanding professional niche. The

S to me this ye r a e

a r: ACFLS list serve is an opportunity to

dialogue with your colleagues

1 Maintain and enhance services

. tt

s a ewide on challenging questions.

to members; bie s ig

The we s t i ever-improv n .

Past-President, Frieda Gordon, has

2 Expand our statewide geographic

. contributed mightily to it s present

d ve s t ; a d

i riy n status. She continues to do so as our

h ek

Technology Coordinator. S e s e s

3 Foster institutional memory by

. contributions from all members to

administrator and directors. create a website bank of documents

bie

of mutual interest. The we s t

ACFLS is blessed with another tal- nlds tt

i c u e a s a ewide calendar of

ented, dedicated board of directors. Parson, our administrator of almost family law events, educational,

Directors are generous with their two decades. social or otherwise. It takes awhile

time and creativity on behalf of or

f such a concepts to reach viabili-

ACFLS. Our thirteenth annual Spring r n rcs. f

ty but they a e i p o e s I you

While acknowledging the conti- Seminar was held in Orange bie

have not accessed the we s t

nuity and historical wisdom from County at the Aliso Creek Inn in eety r otiue o t lae

rcnl o cnrbtdt i,pes

current board members who have ri. rsdn-

Laguna Beach, Califo n a P e i e t consider doing so.

a s s r d i t e p s , a s e i l we

l o e ve n h a t p c a l- Elect Ronald S. Granberg planned a

come is extended to five new mem- l - e e ved

fine collection of we l r c i n lsn cn

I c o i g I a k owledge one of

es f h or:

br o tebad events, seminars and presenters. u eet

o r r c n , former directors from

Orange County, John Horwitz. His

izr Bte;

1. Sandra L. Schwe t e ( u t ) The newsletter is a major member w orthy service as ACFLS Treasurer

2. Michael B Samuels (Marin) n

benefit. Kudos to Sharon Brya , o eve a

f r s r l years, as enhanced by

. oad . if Ls nee)

3 Rnl K Zf (o Agls Leslie Ellen Shear and their prede- able supporting services from his

.

4 Sherry D. Graybehl (Orange); esr

c s o s for distinguished service per- accountant wife, brought our

and ormed on a demanding, time-con-

f i

accounting up to a higher par.Hs

i h y r. S n i g )

5. Roger M. Ke t l J ( a D e o suming duty. i ih i

early retirement to Hawa i w t h s

family is a inspiration on those days

i r,

Lynn Pfefe aformer administra- Most family law practitioners when the practice of family law

o

trfor the Marin County Bar rcie oo r n

p a t c s l o i very small firms. sometimes seems almost too much.

Association, succeeds Patricia A. t a e oey

I c n b a l n l existence in a is u

Thanks, John. We m s yo .



ACFLS Newsletter Page 3 Spring 2005, No.2

QDRO compelled to share the bad with l

invo ved, but maybe that s because you

continued from page 1 the employee spouse, he or she are not familiar enough with this kind

r and s eut f

w e e e r e a a r s l o your hus- must be allow ed to share the good f h

of retirement plan to know i t e

band s employment during your mar- as wel"5

l. s orc n h su

Lehman court wa c r e t o t e i s e

riage--which comes to ex c l $ 0 0 0 "

aty 3,0. of characterization.

r en

Knowing your reputation fo b i g a Your hopes are momentarily dashed. You hand your client an umbrella,

really fun attorney, she smiles know - But then you realize that what the i usd u fie

and ask her to wa t o t i e yo r o f c

Yo e i d n , i h ? h s e .

ingly." u r k d i g r g t " s e a k d o r s a k n b u e e s e evant

cuti tligaothr i rl o

frafew minutes while you make a

u

You quickly rethink yo r Lehman only to the issue of whether the Plumb u al

call. When she is out of earshot yo c l

analysis. Each marriage has a commu- plan enhancements should be charac- your buddy, who is an ERISA attorney.

nity interest in the plan benefits as terized as a community asset of both After you veexplained the problem, he

they are defined at retirement, includ- marriages, not how those enhance- el u h or

t l s yo t e Lehman c u t s characteri-

ing the enhancement. Check. The time ments should be divided between them. s o s oi s t

zation analysis wa n t a s l d a i

rule is appropriate to apportion benefits That much the court made clear: seemed.

when service is a substantial factor in o " u s.

"How s ? yo a k

the retirement benefit formula. Check. "The fact that a nonemploye e Tw h n s " e e a . F r t n

" otig, h bgn "is,i

The first marriage and the second mar- spouse who owns a community , ne h

modern plans such as Plumb s o c t e

riage each contributed 10 ye r o t e

as f h property interest in an employe e e ss a rcs ht

employe ve t ( p o e s t a by law

0 oa

2 t t l years of service, so each com- spouse s retirement benefits owns a as,

can take no longer than seven ye r )

munity must get half, or $60,000 per community property interest in hr s o el bd ht a e hrd

teei n ra "a"ta cnb sae

a

ye r. Check. One half of the amount h atr

t e l t e s retirement benefits as e pue y

by the non-employe s o s . B federal

attributable to the second marriage is enhanced does not mean that that law, whatever benefits the employe e

u l e t hr s

$30,000, so yo r c i n s s a e i enhancement is a community asset has accrued as of the end of the mar-

$30,000. Check. n t n i e y. B t t e q e t o

i isetrt u h usin riage, and any post-vesting increases in

But what about the fact that the time what extent such an enhancement those accruals are protected against

rule is supposed to apportion benefits belongs to the community and sep- being cut-back, and most are insured by

based on the period of service that arate estates is one of apportion- the PBGC, an agency of the federal gov-

earned them? How could anyone in ment and not characterization." 6 ernment similar to the FDIC. Second,

their right mind conclude that hus- r bd o

even if there we e a " a " t worry

aioil

band s j n t r a work "earned" a benefit As to how this apportionment should bu, t s o ogr orc o a ht

aot i i n lne crett syta

o h is arae ht s 0 ie

fr t e f r t m r i g t a i 5 t m s s

be done, you find that the court wa the nonemployee spouse is compelled to

what it had accrued before he remar- qal la- t es n rnil:

eulycer-a lati picpe share in that risk until the employe e

r

ried and returned to wo k for Plumb, d c d s t r t r , a l a t n t s n e R A8

eie o eie t es o ic E

and 5 times his highest annual salary "Whatever the method that it may amended the tax Code9 and ERISA10 t o

b fore his career change.4 Your reread

e use, the superior court must arrive add the now-familiar QDRO1 provisions

n hr t s

Lehman, a d t e e i i : t eut ht s esnbe n

a arsl ta i raoal ad n 9 4 n a t h s a s h i t i u-

i 18. I fc,teedy,tedsrb

f h eai

fairly representative o t e r l t ve tion rights of the nonemployee spouse

"That the nonemployee spouse contributions of the community are actually superior in some respects to

might happen to enjoy an increase, adsprt poet etts " 7

n eaae rpry sae. e o

those of the employe . F r example,

o sf

r u fer a decrease, in retirement although the employee spouse must

benefits because of postseparation ht o e i e t u let

Okay, ta s m r l k i . Yo r c i n i

g ve us his or her salary to commence

o even postdissolution eve t o

r ns r osbe ot. is,

has two p s i l " u s " F r t you can benefits and pay a penalty tax12 i p y-

f a

odtos s utfe

c n i i n i j s i i d by the nature examine the linchpin of the court s d e

ment is receive b fore 59; the nonem-

of the right to retirement benefits characterization analysis (i.e., the prem- l

p oyee spouse may withdraw his or her

as a right to draw from a stream of ise that a nonemployee spouse is locked share of the plan without that penalty,

income that begins to flow , a d i

n s into the plan until the employee spouse regardless of whether the employe e

then defined, on retirement (cita- eie) o e f t s l d s t p l e o

r t r s t s e i i i va i a i a p i s t decides to keep working. In many cases

tions omitted), with the nonem- your case. And second, you can look to this distribution can be taken immedi-

l

p oyee spouse, at one and the same see whether the "time rule" is a reason- t l l owing the date of separation,

a e y fo l

time, holding the chance of more able method for determining how rt ae t s l ial

but wo s c s , i i a ways an ava l b e

(citations omitted), and bearing the much the first marriage contributed to option once the employee has reached

ik f es cttos mte)

rs o ls (iain oitd, l h

the Plumb plan benefit. Intuitive y, te the "earliest retirement age", a defined

equally with the employee spouse. latter approach looks more promising, term which usually means age 50.

e pue s

Because the nonemploye s o s i i

g ven the outrageous numbers Under the terms of the Plumb plan,



r, h

4. Interestingly enough, had he not returned to wo k t e . t 7.

5 Lehman a 1 9 9. The Internal Revenue Code of 1986, as amended

maximum annual benefit under any possible formula would . t 8.

6 Lehman a 1 0 t f 94

10. The Employee Retirement Income Security Ac o 1 7

a o ut 1,0 ie, 0% f i ihs

have been limited by l w t j s $ 2 0 0 ( . . 1 0 o h s h g e t . t 8, iig 17) 7 a.

7 Lehman a 1 7 c t n In re Marriage of Poppe ( 9 9 9 C l 11. Qualified Domestic Relations Orders. See Code section 414(p)

annual compensation). See Section 415(b) of the Internal p. d ,1

Ap 3 11 and its ERISA counterpart, section 206(d)(3)

Revenue Code of 1986, as amended ("Code"). 8. The Retirement Equity Act of 1984, as amended. oe eto 1t.

12. See generally, C d s c i n 7 ( )





Spring 2005, No.2 Page 4 ACFLS Newsletter

with which I have had some dealings in defined byaformula that is based on period, ignoring the fact that not one

the past, the nonemployee spouse from u t wo a t r : e g h f e v c n

js t fcos lnt o sriead penny of that money could have been

the first marriage had a right to take highest compensation, usually a num- earned without the help of the service

her share as soon as she separated, so e h t s n verage of three or more

brta i a a h eod eid"

provided by t e s c n p r o .

there was nothing compulsory about years. Although by working the formu- A

"lthough this skewing of the results

her staying in the plan to share the u a el s

la at any period of time yo c n t l a is typical, in instances where there is

o d.

go " f ht ae

o t a d t exactly how much of the ry bu, t

no crossover benefit to wo r a o t i

"But there is another reason why I benefit has been earned as of the end of o ntne

could go the other way. F r i s a c ,

r m s s a l y, e

think the court s p e i e i f u t "h i

a g ven period, some of those new accru- suppose the accrual at the end of the

continued. "Think back to Marriage of als may come about because the com- is 0

f r t 1 years was $1,200, and that due to

Gillmore13 , a c s c t d extensive y i

ae ie l n pensation for the period is multiplied by a demotion, this was increased by only

Lehman, in which the court recognized at evc rdtd n ale as s

p s s r i e c e i e i e r i r ye r . A $100 to $1,300 by the end of the second

the right of a nonemployee spouse to eut h oa eei cre s

arsl,tettlbnftacuda 0 as n ht ae ic ie ue

1 ye r . I t a c s , s n e t m r l

f e o u u i r e

orce the employe t b y o t h s o h r between two periods of employment, w ould give each period half the total

interest once the employee spouse , sal

whether or not consecutive u u l y eei, t

b n f t i would require the court to

became eligible to terminate employ- osss f he ics f h

c n i t o t r e p e e . Tw o o t e take away $550 of what the first period

ment and commence benefits. That pieces are made up of the respective n ad t o

earned independently, a d h n i t

l f

case also spoke with approva o volun- portions that each period accrued inde- the second."

us

tary buyo t by the employee spouse. .. ihu ead o n

pendently, i e , w t o t r g r t a y "By the way, I did some research and

Under either of these scenarios, even other compensation or service credits. f rl tts s i

ound out that seve a s a e u e a d f-

without the REA changes, the notion h hr, hc l al h cos r

T e t i d w i h I l c l t e " r s ove" eet ue

f r n r l for pensions, sometimes

that non-employee spouses are entitled eei r ak f etr em s h

b n f t fo l c o a b t e t r , i t e ald h bih ie ue, ne

cle te"rgtln rl" udr

to share the "good with the bad" because additional benefit earned when the which the first period of employment

s

they have no choice but to stay inve t- compensation increase contributed by gets only the benefit accrued as of the

"

ed in the plan just does not apply. n eid s sd n h

o e p r o i u e i t e formula along mn ie, h 120

last day of employ e t ( . . t e $ , 0

"In fact, about the only remaining with the credited service contributed n

i your case), with the rest being consid-

plans to which Lehman s compulsion uig n ale eid"

drn a erirpro. ered as having been earned post-mar-

concerns would apply are the military "Take yo r c s fo example. There,

u ae r r a e 14 This rule produces the same

ig.

pension plans. Those are an entirely husband s retirement benefit has all rirr eut s h ie ue

abtayrslsa tetm rl,

ife e t e t e f i h "

df r n k t l o f s . three components. The first is the re ht s t l

although in reve s . T a i , i a ways

"Okay", yo i t r e t " u i s e s t

u nejc, bt t em o $1,200 benefit that was earned by h si r s l f h r s ove e e i o

a wa d a l o t e c o s r b n f t t

me that even if the court in my case i i i l 1 years of employment under

nta 0 the second period, and none to the first."

w ere to decide that the first marriage t e formula applicable at the time (1%

h A

"s you can see, the fundamental

et t neet n h lm ln

l f i s i t r s i t e P u b p a volun- p r ye r fo 1 years multiplied by a

e a r 0 problem here is that any rule that

a i y,

t r l since community assets retain $12,000 salary). The second piece is the attempts to resolve a multi-dimensional

their character until they a e d v d d I

r iie, $60,000 benefit that was earned during ral

problem by looking at only one va i b e

not sure what we would gain by win- the second 10 years using the amended is destined to be wrong to some degree

ning the point. In either case the plan formula, higher salary, and only those ot f h ie t ud e ie

m s o t e t m . I wo l b l k

will still need to be apportioned based ye r o s r i e ( % p r ye r fo 1 ye r

as f evc 5 e a r 0 as expecting Johnny Appleseed to be able

on the relative contributions of the multiplied by $ 2 , 0 s l r ) T e l s ,

1000 aay. h at o el

t t l you what portion of the alcohol

community to the whole, and that has and by no means the least significant in a glass of apple jack came from tree A

nothing to do with whether its interest p e e i t e c o s r b n f t o $58,800,

i c s h r s ove e e i f and what came from tree B just by

s r s o okd no h ln ni h

i o i ntlce it tepa utlte which is the enhancement obtained knowing that it was made with three

e eie.

employe r t r s " when the service credits from the first apples from tree A and three from tree

Ta re" e ele, bt ept

"ht stu, h rpis "u dsie period were used in the new formula . ept i

B D s i e h s expertise, unless you also

l f h s u f h r-

the court s portraya o t e i s e o c a along with the increased compensation l ow

a l him to examine the quality of the

acterization as being distinct from that provided by t e s c n .

h eod" fruit from each in terms of its size and

of apportionment, they may in fact be "Since neither the first nor the second sugar content, he would have no wa o y f

ie f h ae on"

two s d s o t e s m c i . marriage could have earned the knowing. But ask him the same ques-

To

" understand why this is so, we crossove b n f t o i s own, it would

r eei n t tion and tell him to ignore any qualita-

need to first see what it is about defined not seem reasonable to say that it wa s i iferences between the two batch-

t ve df

benefit plans that makes them so diffi- "contributed" entirely by one or the es of apples, and he would then be able

cult to apportion between two periods other. Yet when you run the numbers o el

t t l you confidently, although proba-

of employment based on their relative that is what the time rule would have ht ah re o

bly incorrectly, t a e c t e c n-

contributions to the total. The reason is yo b l eve I wl always a ward 100%

u e i . t il aty af f h uc.

tributed ex c l h l o t e j i e "

that in most of these plans benefits are o tecos rbnftt teerir

f h r s ove e e i o h a l e "While it is not obvious to me why,

3 18) 9 a d 1.

1. In re Marriage of Gillmore ( 9 1 2 C l 3 4 8 0

Hunt, 9 9 P.2d 525, 532 (Colo. 1995), holding that the non- receipt of benefits, but only when immediate distribution is

ue s h pl n

14. For a detailed discussion of the two r l s a t ey a p y i r h i k f rfi-

employee spouse should be compensated fo t e r s o fo e ial.

not ava l b e

the context of a military retirement plan, see Marriage of ue ea n eep, n ak f oto r h iig f

t r , d l y i r c i t a d l c o c n r l ove t e t m n o





ACFLS Newsletter Page 5 Spring 2005, No.2

despite its procrustean tendencies, the proves too much since the same can be s n h lo tr edn:

e o t e f o r. I s a t r a i g

ie ue s tl otd s esnbe

tm rl i siltue a araoal ad

s i for the remainder of the employe s e

method to apportion defined benefit current compensation package, includ- CHAPTER 2

ln, y us s ht t a

pas m gesi ta i hsaltt d o o o ing his or her salary which is clearly

with the courts having nothing better separate property. " W h e n Not to Use the Traditional

to wo k w t . A t r a l h does one

r i h f e l , ow "On the other hand, fo a c u l o

r ope f Time Rule

go about rationally deciding how much eae esn t ih e ut s if

r l t d r a o s i m g t b j s a d f i-

f r s over benefit comes from the

o acos c l t a g e i f vo o s b t t t n t e

ut o ru n a r f usiuig h If there is one thing that QDRO prac-

period that supplied the service multi- bright line rule, which wo l e fe t ve-

ud f ci titioners and family law judges usually

le n ow

p i r, a d h much comes from the l d s o ve the partnership and leave

y isl dread seeing in the disclosure of com-

period that supplied the compensation the second period free to take all the uiy ses t s eie eei

mnt ast,i i adfndbnft

increase? Not having the luxury of advantage ava l b e f o t e f r t s r

i a l r m h i s e v- s s ht

retirement plan. The good new i t a

saying I don t have a clue like Johnny, i e c e i s F r t f o t e e p oye p r-

c rdt. is, rm h ml r e these days even though such esoteric

they have been left to choose between spective it may be that at least some or f lnis

eatures as actuarial equiva e c e ,

rs h is eid l f

a rule that awa d t e f r t p r o a l o alo tecos

l f h r s over benefit wa p e s r- early retirement subsidies and survivo r

r eei o h

the crossove b n f t t t e exclusion funded during the earlier period, in annuity elections might be a source of

of the second, and another that does which case the earlier period rather argument on occasion, at least the divi-

h eve s . h s s

ter re Ti i,Itik weete hn, hr h than the later would seem to have t e h sion of the underlying benefits in the

Lehman discussion of the equities better claim. Second, on the employe e yia ln s aey n usin o

tpclpa i rrl i qeto. Fr

come into play, and why I think that side, to the degree that the increase can that we have the now familiar "time

h ors n ai

t e c u t i C l fornia have ended up b atiue t cs o lvn rie ad

e trbtd o ot f iig ass n rule", which is not only simple to use,

siding with the period that, at least similar passive market fo c s i s e s

re, t em u ital

b t v r u l y foolproof when it comes

back in the 70s when these rules we e r more a product of the design of the plan, to establishing how much of the benefit

is s

frtformulated, really wa forced to than the employe s subsequent person-

e at retirement derives from service dur-

stay in the game, and thus really did a efot"

l f r. n h arae r s t

igtemrig. O i i?

risk losing or winning based upon You are intrigued. "Maybe the only h ups f hs ril s o

Teproeo ti atcei t

e i r i o

what the employe d d o d d n t w ay out of the mess we a e i i t c n-

r n s o o explain why the traditional time rule is

eie o o n h ae

d c d t d i t e l t r ye r oas f tnet uetetm rl,btadt i a

iu o s h ie ue u d o t og ru r t

l n ove d e fo i s own semi-retire-

mn.

employ e t qualitative dimension that will provide ment, and to propose a next-generation

Ad hs s lo h hn t s

"n t i i a s w y I t i k i i a more balanced means of apportioning replacement more in keeping with the

r oa

important fo t d y s courts to under- the crossover benefit, and at the same w ay that modern defined benefit plans

rd nt

stand that the pension wo l ( o time protect the benefits accrued inde- r.

w ok

including military plans) has changed ah eid"

pendently by e c p r o ?

in the 30 plus years since the time rule " s I t i k s , b t t a sa lata

Ye , h n o u h t t e s What is the old rule?

s

w a formulated, and that many of the er icsin"

two b e d s u s o .

old equitable arguments are no longer Hanging up, you suddenly remember In a nutshell, the traditional time

elsi ocrs n at h igr

raitccnen. I fc,tebge that your client wa s i l s a d n o t

s tl tnig u rule states that whenever credited serv-

concern should be whether to continue in the rain. Sheepishly, you open the c s s b t n i l a t r n e e m n-

iei a"usata fco"i dtri

o s u e h t n b e h i s e i-

t uearl ta ealstefrtpr door, s i e a d t l h r i m y b a l

ml, n el e t a e l ing the benefit payable under a defined

d

o , by choosing to the stay in the plan, rgtatral

ih fe l. eei o D" ln h

b n f t ( r " B ) p a , t e extent to

o

t force the second period into a kind of s r

which that service wa p ovided during

economic partnership in which the The Evolution of the Specious the marriage in comparison to the total

i s e i d s b e o a s ve y a t c

f r t p r o i a l t p s i l p r i i- will alone determine the community

pate, but take 100% of the additional ts

I been days now , and no word from sae 1

hr.

benefit derived from the arrangement, ae n

your ERISA friend. Finally, l t o e

and risk nothing other than the possi- Friday afternoon he staggers into your What is it about the way benefits

bility that those proceeds might not be ofc. Usa

fie n h ven, unshod, and general- are earned in a defined benefit

a lrea hpd"

s ag s oe. ly unkempt, he looks like he hasn t plan that makes time alone a poor

"While one might argue that such a s e t fo d y .

lp r a s index of benefit derivation?

a t e s i h u d t l e l ow

p r n r h p s o l s i l b a l ed I a nt l p r a s " e a s

" h ve s e t fo d y , h s y .

because the value to the employe o rf You nod encouragingly," look

You Unlike the more familiar profit shar-

the services provided in the second peri- fine, what do you havefor me" ing, 401(k), and employee savings plans,

o i d e i p r t t e ye r o s r i e

d s u n at o h as f evc "I got so wrapped up in this thing that in which there are individual accounts

contributed in the early period the so Idcddt wiea atceaoti.

eie o rt n ril bu t to determine benefits based on trace-

c l e m r t l foundation, or momen-

ald aia H r . H l a s over my desk, shove h s

ee" e en s i able contributions and earnings, a true

tum theory that argument actually manuscript under my nose and collaps- defined benefit plan has no individual

1. The use of the time rule is not unreasonable when the as f evc. ur,

the number of ye r o s r i e " (In re Marriage of Poppe, s p a 19) 8

Cal.App.3d at pp. 522—523.) Marriage of Lehman ( 9 8 1

"amount of the retirement benefits is substantially related to 7 a.p.d t . ; cod ur, 8

9 C l A p 3 a p 8 a c r , In re Marriage of Judd, s p a 6 Cal.4th 169,







Spring 2005, No.2 Page 6 ACFLS Newsletter

accounts.2 Instead, the benefits payable t t n s o e s n h r fo e h t

I sad t rao,tee r,ta s ed o e sbtnil atr n

w a hl t b a"usata fco"i

to each participant at retirement are when apportioning a DB plan pension the production of the benefit, and

determined or "defined" byaformula between periods of marital and non- demands that the community share be

that typically applies a percentage marital service, the basic benefits computed based on the time rule.

rals h atc

multiplier to two va i b e : t e p r i i- should all go to the period that accrued The court, of course, agrees; and since

i a verage compensation and

pant s f n l a them; and any crossover benefits, hav- aty 0 f

the marriage contributed ex c l 1 o

length of service.3 Each ye r a b n f t

a s eeis ing been jointly produced by both peri- the 20 years that Wendy worked,

are earned, it is up to the plan actuary h u d e l o-

ods in acting together, s o l b a l a wards the community exactly half of

to determine the amount that the cated based on the relative contribu- the total benefit, or $1,020 per month.

employer must contribute to the plan tion of each to that accrual.4 So what s the problem?

n re o ud r hs uue iblt

i o d r t f n fo t i f t r l a i i y, hs s air ad

Unfortunately, t i i e s e s i The problem is that there are not

le f h

based upon the current va u o t e r t o r

than done, or would be we e i n t fo enough benefits to go around. Here is

plan assets, anticipated earnings and a h l ie ue hs s eas n

teodtm rl. Ti i bcuei y h n f a 0 e

w h y. B t e e d o ye r 1 , b fore the

number of other assumptions about order to determine the contribution of s n n

community wa eve i existence,

future events. Because DB plan bene- oia

one period relative to another, l g c l- W endy had already earned as her sepa-

fits are earned independently of any of ly one must in some fashion find a way rf

rate property a non-fo eitable contrac-

these funding decisions, apportion- of converting two disparate measure- u l i h o e e ve

t a r g t t r c i $2,000 per month

ment as between contributing periods ment units: compensation (the qualita- 2 0

( % x 1 years x $10,000 per month) at

of employment can only be done based i

t ve aspect of service) and length of retirement, regardless of whether she

upon how the participants service and s e t . ow

service (its quantitative a p c ) H continued employment or not. Since

compensation in each period interacts does the traditional time rule accom- r

W endy created and therefo e owns this

with the benefit formula. And therein l s h s a y,

p i h t i ? E s it simply assumes bsc eei" urgt h s nild

"ai bnft otih,sei ette

is h u, o or

l e t e r b t b r ow from the Bard, e l r n l e v-

a way the problem by d c a i g a l s r o t n diin o hs 200 h s

t i. I adto t ti $,0,sei

since in most DB plans the benefits c o e u l t t vely the same value

iet b qaiai entitled to some portion of the $40 ben-

payable on account of any given period as a benefit producer even though it efit that was earned during her second

of employment usually are not limited lal s o.

ceryi nt 0

1 years while married to Harry. H r y,ar

to what was earned during that period. This can be demonstrated byafew how ever is entitled to $1,020 under the

h ia eei n

Conceptually, t e f n l b n f t i a examples. time rule, such that the total "entitle-

DB plan is typically the sum of pieces, a s

ment" between the twoi over $3,000.

"basic" benefit and what we w l c l

il al Example 1. Suppose that Wendy s p a ln But with only $2,040 available, Harry

h cos

t e " r s over" benefit. The basic bene- formula is a typical 2% x final average cannot get his "time rule share" with-

i s ht hc s and o acud

fti ta wihi ere (r"cre" compensation x total credited service. out taking away about half of what

in plan parlance) as of the end of a rs r 0

Suppose also that she wo k fo 1 W endy took with her into the mar-

i n eid oey s eut f h

g ve p r o , s l l a a r s l o t e years at a salary of $10,000 per month, ig. f ore

r a e O c u s , exactly the same prob-

compensation and service provided after which she quits because of stress lem would result were the married

during that period. The crossover bene- at age 50, and marries. At the urging of as o oe n h is af f

ye r t c m i t e f r t h l o

fit, on the other hand, is that which her new husband, Harry, Wendy evc,

W endy s s r i e except that then the

accrues when the credited service from r

decides to return to wo k for the same community, rather than the separate

one period is combined in the formula r,

employe although in much less property estate would be shorted.

with the (higher) compensation factor demanding role, and with a commen- The reason the old time rule fails us

eades f

earned during another. R g r l s o surate cut in pay to $3,000 a month. n hs

i t i example is precisely because it

whether this benefit accrues during She then works another 10 years with uses only the duration of employment

the employment period that con- steady raises until she retires with a (i.e., time) to determine who con-

tributes the higher compensation fac- i a verage salary of $5,100. Wendy

fnla tributed what, and ignores the fact

o

t r, or during the period that provides divorces Harry. Harry wants his share ht h

t a t e quality of the service provided

ts

the length of service factor,i i always of Wendy s total retirement benefits, during the period of marriage (as meas-

going to the combined result of both which under the formula are $2,040 ured by the compensation the employ-

contributions, and therefore cannot as % 510. e

per month (20 ye r x 2 x $ , 0 ) H s iln o a r t s o ow

er wa w l i g t p y fo i ) wa s l

reasonably be said to deriveexclusive y l points to the numerous cases in which that it was not until the year 20 that

from only one. aty hs ye f

ex c l t i t p o formula service W endy s additional service produced

2. Many governmental plans, such as CalPERS, offer an annu- hypothetical contribution account is annuitized to determine benefit is definitely determinable at any given point in time,

ity component of the total benefit that is based solely on mem- or "define" the retirement benefit, rather than a more typical n

a d for ERISA covered or tax qualified plans, the minimum

ber contributions, and is thus account-based (and traceable) to oml. s eut n huh h eei s tl

f r u a A a r s l , eve t o g t e b n f t i s i l formula- accrual requirements are satisfied.

that degree. The remainder of the benefit is determined based determined and independent of any actual plan contributions .

4 As the supreme court recently put it in Marriage of Lehman

n h yia

o t e t p c l formula service, compensation and a negotiated r n

o i vestment growth, it usually can be traced reliably to a [ ] e a t h t o e p oyee spouse who owns a community

"th fc ta annml

lsiiain

multiplier that depends upon the member s c a s f c t o . i

g ven period of service using standard account-based methods. e pue

property interest in an employe s o s s retirement benefits

Although such plans are technically considered hybrid plans as o hs esn ie ue s o riaiy sd r uh ln.

F r t i r a o , t m r l i n t o d n r l u e fo s c p a s owns a community property interest in the latter s retirement

defined in ⁄414(k) of the Internal Revenue Code, the benefit has . uh

3 S c a formula might define the benefit at retirement age as benefits as enhanced does not mean that the enhancement is a

traditionally still been divided according to the time rule alone. being equal to 2% x total credited service x final average com- community asset in its entirety. But the question to what extent

Another type of defined benefit plan, commonly known as a r,

pensation. There is, how eve no limit on the number of diffe r- such an enhancement belongs to the community and separate

cs aac" ln rsns pca ae n uh ln,

"ahblne pa,peet aseilcs.I sc pas a ent ways the benefit might be defined so long as the accrued estates is one of apportionment and not characterization."







ACFLS Newsletter Page 7 Spring 2005, No.2

te frt dla o adtoa bnft 5I

h is olr f diinl eei. n 0, f c i l e e v n o h n r h

2) efe t ve y r c i i g n t i g fo t e ment, he accrued more than $2,370 in

at a t o en ia

f c , h d i n t b e for Wendy s f n l at ht u lot

f c t a d e a m s exclusive to Wendy s additional monthly benefits. The time

average compensation of $5,100 being f rs uig h arae e eei

efo t d r n t e m r i g , h r b n f t rule would award to the community on

l 0 as h 0 a

multiplied by a l 2 ye r , t e 1 ye r rm h is eid f evc s

f o t e f r t p r o o s r i e wa hs at 29% r ut r 3 ie

t e e f c s 7 . 5 , o j s ove 1 t m s

community service period would have enhanced from $100 to $6,000 per month. the benefit actually earned during the

produced NO benefit whatsoeve r. These examples demonstrate a funda- marriage. This award includes the basic

Thus, by ignoring the qualitative r h

mental principle that holds true fo t e eei f 17 ls l f h onl r

b n f t o $ 3 , p u a l o t e j i t y p o-

aspect of service in determining benefit apportionment of any qualified DB r eei $,8) ae,

duced crossove b n f t ( 1 6 7 . J m s

derivation, the time rule in this case retirement plan in which benefits o i eaae rpry f r ht

f r h s s p r t p o e t e fo t t a

s k

produced a result that wa s ew e i d n d r ve" from a combination of credited

"ei helped earn the $2,370 increase, wa s

as eve a

favor of the second 10 ye r by s r l service and compensation: re ny i ai eei f 66

a wa d d o l h s b s c b n f t o $ 7 .

thousand percent. Since Wendy s bene- Some of you may recognize this case

fit is a monthly annuity amount, All other things being equal, s 19) 4

a In re Marriage of Gow an ( 9 7 5

be r i , hs s o

paya l fo lfe t i i n t exac l aty when the effect on benefit produc- Cal.App.4th 80, in which the court did

small potato error. i ferences in

tion of qualitative d f n at id iig oeim rm

i fc fn,ctn aslcs fo

service is ignored, the result in Marriage of Judd about all service hav-

Example 2. Suppose that we change every case will be skew e i favo

d n r ing equal dignity7, t a $ 2 5 0 o a

ht 2,0 f

r h is 0

Example 1 by assuming that fo t e f r t 1 of the period of service earning $30,000 dollar per year pension had

r i g t 5 e o r,

years Wendy was wo k n a $ p r h u h ow

t e l er compensation. The been "earned" by the community, even

100 hours per month, earning annually greater the disparity, the more though the total annual benefit

a f rdtd evc.

$6,000, and one ye r o c e i e s r i e d h eut

skew e t e r s l . accrued by that period of service alone

She then quits, departing with an accrued s ny ml rcin f hs

w a ol asalfato o ti

retirement benefit of $100 per month6 Example 3. Consider one other exam- amount: $1,646.

be einn t g 5

paya l b g n i g a a e 6 . Wendy l, iia o h at u n n hc

pe smlrt tels,btoei wih How many of us read this case and

os ak o

promptly marries Harry, g e b c t the marriage occurred in the first period s ow

asked ourselve h the court could rea-

school to get her MBA, and is hired back of employment. In this scenario, James sonably have come to this conclusion?

by her old company with a salary of r 4 as

w orked for ABC company fo 1 ye r r f ore s ht esn a

The answe o c u s , i t a r a o h d

ny eie

$10,000 per month. When We d r t r s while married to Ramona. When he ohn o o ih t uh eut r

ntigt d wt i. Sc rslsae

as ae wt 0 oa as

as CEO 10 ye r l t r ( i h 2 t t l ye r left ABC, his salary was $30,000 per n ial riat f ue ht goe

i ev t b e a t f c s o a r l t a i n r s

f e v c ) e i a ve a e a a y s

o srie,hrfnla rg slr i year and his accrued pension benefit ey

a k factor in benefit determination.

$30,000 per month, and her retirement s i

w a alfe annuity of $137 per month,

h s g own to $12,000 per month ($30,000

a r bgniga ae6.

einn t g 5 (Continued next issue with

x 2 x 2 ) I h r d vorce from Harry,te

0 %. n e i h a new time rule solution)

s ple o i

time rule wa a p i d t g ve Wendy as ae

A little more than 10 ye r l t r,

he u t s f h s r 9 0 0 e o t

t r e fo r h o t i , o $ , 0 p r m n h s eie

James wa r h r d by ABC, but this time

se a 0 eaae rpry as n

( h h d 1 s p r t p o e t ye r , a d t aay f 1000 e a e

a a s l r o $ 0 , 0 p r ye r. H r s n

James Crawfo d i a experienced ERISA

as r o a

half of the 10 community yer,fo a t t l re

w o k d for 5 more years and then and employee benefits attorney with a sub-

f 52 r 5 f h evc) ar s

o 1 / 0 o 7 % o t e s r i e . H r y wa eie ih oa f 9 as f evc

r t r d w t a t t l o 1 ye r o s r i e stantial QDRO practice.

re 300 s i ie ue hr

a wa d d $ , 0 a h s t m r l s a e rdt n i

c e i , a d a l fetime pension of $2,500. He may be reached at 530-753-7080 o r

h l f h 6 0 0 a n d u i g as 1

( a f o t e $ , 0 e r e d r n yer 1- hs n h ia i

T u i t e f n l f ve years of employ- 832-971-1101 .



. hs n

5 T u , i year 9 of the marriage, the benefit determined by a l e a s t ow

e r i r ye r a l er salaries. Similar arguments in cases contributions in the early years of employment during the

multiplying Wendy s salary times the combined service of both involving continuous employment have been repeatedly marriage, even though based on a smaller salary, may actually

s tl ny 198 2 9 as

periods of employment wa s i l o l $ , 3 ( % x 1 ye r x eetd ai r i o r s o

r j c e by C l fo n a c u t . F r example, in In re Marriage of be worth more than contributions during the post-separation

$5,100). Interestingly enough, had W retired in year 19, the com- Judd, the husband argued that because his annuity payments years, due to the longer period of accumulated interest and

munity would have been unable to pass even the threshold w ere based in part upon postmarital years of service, which investment income prior to the commencement of benefit pay-

et f hrceiain se 19) 8

t s o c a a t r z t o ( e In re Marriage of Lehman ( 9 8 1 w ould have a s g i i a t y g e t r d l a value than his ye r

infcnl rae olr as et. ur, 8 a.p.d t . 2.

m n s " (In re Marriage of Judd, s p a 6 C l A p 3 a p 5 3 )

Cal. 4th 169), since the marriage had accrued no rights under of service during the marriage, the community property award h is evc

The court therefore gave t e f r t s r i e years (during the mar-

r p o ht on.

the plan whatsoeve u t t a p i t i h o h i ferent ye r o s r i e

should not give equal we g t t t e d f as f evc. riage) as much weight in computing total service as the last few

. %

6 2 x 10 x $500 = $100 r,

The Judd court, how eve held that a husband and wife share years (after separation)." The obvious flaw in this reasoning is

. F n l y,

7 " i a l we consider the argument, made implicitly by the same qualitative interest in the retirement rights, and the n

discussed below i footnote 10, below .

ae, ht i ae evc

J m s t a h s l t r s r i e years at high salaries contributed fact that a plan reflects subsequent salary increases does not

more to the value of his pension [54 Cal.App.4th 91] than his es

alter the community’s interest in those rights. "[A]n employe ’









See us

online

at: > www.acfls.org

Spring 2005, No.2 Page 8 ACFLS Newsletter

The Standard of value in

divorce business valuations

by

Mark Kohn, J.D., cpa, cfe, cva, abv







e e r i ferent standards of

hr aedf tal integration. This standard values



T value that can be used in valuing

a s t , a d a r i of certain

ses n

aplaecssrfet ta df

ev ew

p e l t a e e l c s h t i ferent

the asset based on the economic value

f h se o t eades f

o t e a s t t i s owner, r g r l s o

whether or not the asset could be sold.

rn ses hs

standards apply to diffe e t a s t . T i Using this standard, a law practice

ril il

a t c e w l explain the primary stan- n f t ol o e

could be valued eve i i c u d n t b

ad f

d r s o value, and then discuss which od n t

s l , a d i would be valued based on

standards are to be used in divorce h rcie o

the income generated by t e p a t c t

ae.

css r iial sn hs

the lawye owner. S m l r y, u i g t i

standard, there would not necessarily

Liquidation Value be any discount for a minority interest.

One might value the 20% interest using

This is the net amount that can be the income stream that is earned by the

elzd rm h ae f uies f

raie fo tesl o absns i 20% owner, and if he actually earns 20%

the business is terminated and the f h oa noe t s ut osbe

o tettlicm,i i qiepsil

assets are sold piecemeal. Liquidation rh

that his 20% interest is wo t exactly

a e i h r o d r y r fo c d . h s

cnb ete "rel"o " re" Ti 20% of the entire company.

standard of value assumes that the busi-

ness will no longer remain as a going ai r i a e a a r e o l r f

C l fo n a c s l w h s t i d t c a i y

concern. le s o e sd

which standard of va u i t b u e . A

major principal was established by I n

Fair Market Value le

Using the standard of fair market va u , 18) 4 a.

Re Marriage of Hewitson ( 9 3 1 2 C l

and assuming that the business wa s App.3d 874. That case rejected a fair

T i i t e value of an asset when

hs s h w orth ten million dollars, that 20% market approach in that specific case

there is a willing buyer and a willing interest would be worth less than ten because the methodology used wa s

seller when neither is acting under million dollars. That is because on the n ht ae n

improper. I t a c s , a expert valued

compulsion and when both have r a- e open market, willing buyers pay per- a business using data from publicly

sonable knowledge of the relevant as 5 f h oa le

h p 1 % o t e t t l va u for a 20% traded companies, and the court ruled

facts. This standard also includes the r ujc o h

interest because they a e s b e t t t e that such a methodology was flawed

concept that the asset can be sold. control of the 80% owners. because one cannot compare small

r, f ar akt r h

Therefo e i f i m r e value we e t e closely-held companies with large pub-

standard to use in the value of a law Investment V alue r, h

licly traded companies. Therefo e t e

practice, and if law practices could not court ruled that fair market value could

b s l , a wa t u i t e p s , t e

e od s s re n h at hn hs s h pcfc le f n se o

T i i t e s e i i va u o a a s t t not be determined — not that it should

there could not be a value established a particular investor based on individ- r, o ee

not be used — and therefo e t d t r-

f r t e va u o t e l w p a t c . I i

o h le f h a rcie f t ual investment requirements or the le" n

mine a "hypothetical market va u , o e

cannot be sold, there could not be a pcfc le f atclr uies o

s e i i va u o a p r i u a b s n s t should use the investment value stan-

willing buye a d w l i g s l e a d

r n i l n e l r, n another particular business or person. ad f

d r o value. The court, to my under-

therefore, using this standard, there o

F r example, Cingular recently standing, was stating that fair market

could not be a value. Another example rls. h

acquired AT&T Wi e e s T ey would le hud e sd f osbe n f

va u s o l b u e i p s i l , a d i

w o l b m n r t d s o n s I , fo

ud e ioiy icut. f r probably have paid more for AT&T not, one should arrive at a hypothetical

example, someone owned 20% of a busi- W ireless than Walmart would have market value using an investment

ness, and other people owned the other n e-

paid, because Cingular could have i t value methodology so that one effe c-

80%, that person has what is called a rls no hi

grated AT&T Wi e e s i t t e r ow n i

t vely ends up with a fair market value

minority interest in the business. uies n ihr

b s n s , i e t e a vertical or horizon- ln.

equiva e t



ACFLS Newsletter Page 9 Spring 2005, No.2

s eie n

The above principle wa r f n d i Law Practice such as the aboveexample of Cingular

a

the same ye r by I Re Marriage of

n rls. n i r e i u

and AT&T Wi e e s I a d vo c s t a-

Sharp (1983) 143 Cal. App.3d 714. That A law practice can be valued tion, where the family business may have

case rejected a standard of value which whether or not it could legally be sold, synergistic value to certain businesses,

it described as "going concern" and ruled or whether or not there is a market fo r and that value would be greater than the

that the standard to be used in the va u-

l lwpatcs I teei amre,ad

a rcie. f hr s akt n le

value determined using fair market va u ,

ation of a business was fair market there are good statistics, then it seems it seems that if the business is marketable,

value. Apparently, i t a c s , f i

n ht ae ar that the standard of va u t b u e i

le o e sd s the standard to use is fair market value

market value was determinable, and fair market value, and the marketplace r , h ow r

and therefo e t e l e value should be

the court overturned the trial court s s o l b t e b s s fo t e va u t o . I

hud e h ai r h lain n used. This could be particularly compli-

usage of a going concern standard. Note many cases, the law practice may be cated in situations where the divorce pro-

that a going concern assumption simply unique, and therefo e t e value may be

r h ceedings are taking place at the same time

means that the business will not be liq- difficult to determine using market- as business merger or acquisition talks are

udtd bti cudapyt bt afi

iae, u t ol pl o oh ar place statistics, and then investment being explored. It may be that the busi-

market value standard or an inve t-

s value should be used. The use of inve t-

s ness is worth ten million dollars using a

ment value standard, which is presum- ment value would require that one use fair market value standard while at the

ably why the court rejected it. There is excess earnings or some other method- very same time that the divorce proceed-

no standard per se of going concern ; ology to determine the economic value ings are moving along, someone is offering

going concern is an attribute of other of the law practice to the lawye r. r ite ilo o

to buy the business fo f f e n m l i n d l-

le, n h ak f

standards of va u s a d t e l c o a lars. This type of situation may also wa r-

going concern assumption is an attrib- Minority Discounts rant a special hearing to determine which

ute of the liquidation va u s a d r .

le tnad le s prpit. O

standard of va u i a p o r a e ( f

If the business is marketable, then course, it often makes sense for both par-

The above concepts we e t e c a i-

r hn lr fair market va u i t e s a d r o

le s h tnad f ties to agree that the business simply be

f e f r h r t n ye r l t r i t e c s o

id ute e as ae n h ae f value, and therefore a discount should le)

sold at the higher va u .

n 19) 3 a.

I Re Marriage of Cream ( 9 3 1 C l be applied to someone who owns a

App.4th 81. The court rules that minority interest in that business. A Unusual Sale Price

25% interest in a business would be

" n o r v ew , t e f i m r e value

I u i h ar akt w o t , a a example, perhaps 15% of

rh s n Another example where the standard

of a marketable asset in marital le f h nie uies f h

the va u o t e e t r b s n s . I t e f

o value may have r l e evance is where the

dissolution cases is the highest business is not marketable, then it controlling spouse sold the family busi-

p i e o t e d t o valuation that

rc n h ae f seems that investment value should be ness at the time of the divorce proceed-

w ould be agreed to by a s l e b i g

e l r, e n used, and therefore no discount should ings, and the sales price doesn t seem to

willing to sell but under no obliga- be made for a minority interest. Under make sense. It might seem to be below

to o ugn ncsiyt d s,

in r ret eest o o o the investment value standard, one va l- le f h u-pue ged o

market va u . I t e o t s o s a r e t

and a buye being ready, w l i g

r, iln ues the investment to that specific s iln elr s

the sale, then there wa a w l i g s l e a

and able to buy but under no owner, a d i h o s e h s a 2 % s a e

n f e r h a 5 hr both the in-spouse and out-spouse agreed

r o on.

particular necessity fo s d i g o t e p o i s fo example, then one

f h rft, r o h a e r c . ow r, f h u -

t t e s l p i e H eve i t e o t

W ersrc teueo ti dfn

e t i t h s f h s e i i- could va u h s o h r i t r s a b i g

le i r e neet s en s et u f h eoitos

spouse wa l f o t o t e n g t a i n ,

tion to marketable assets because 25% of the value of the entire business. and did not agree to the sales price, then

some marital assets are not mar- Therefo e t e value of the minority

r, h quite possibly the court would agree that

ketable, but nonetheless may have interest may differ greatly depending fair market value should be used, and not

t b va u d "

o e le. on which standard of va u i b i g

le s en the actual sales price. One would, there-

sd n eti iutos ut s n

ue. I cranstain,js a oe f o ok

ore, not have t l o for possible kick-

This opinion is consistent with, and has a bifurcated hearing to determine back arrangements or other explanations

lrfe, h b

c a i i s t e a ove two c s s T e s a

a e . h t n- t e d t o valuation, there might be a

h ae f or

f the abnormal sales price. One simply

re ae s ar

dard to be used in divo c c s s i f i need to have a bifurcated hearing to le h uies s f t r o od

va u s t e b s n s a i i we e n t s l ,

market value provided that the busi- determine the appropriate standard of using a fair market value standard (since

es s aktbe f h uies s

ns i mreal. I tebsns i valuation. s n cult od t

the business wa i a t a i y s l , i

not marketable, then, per Hewitson, en ye f uies ht s

w ould have b e a t p o b s n s t a i

le s h n

the standard of va u i t e i vestment Synergy or Special Value marketable, and therefore the standard to

value — which itself is intended to s s a r a k t le.

u e i f i m r e va u )

ri

a r ve at a hypothetical fair market rh

There are businesses that are wo t a

le

va u . certain amount on the open market using h t n a d f le s

In summary, t e s a d r o va u i a

the fair market value, but they would su n i l u i-

key i s e i d vorces that invo ve b s

There are many consequences of the have a h g e value to another buye

ihr r ness valuations, and the resulting value

above understanding, which will be because that particular business wo l f t

ud i of the business would depend on which

l s e b l a s e i i examples.

i t d e ow s p c f c n

i very we l w t t e r own business,

l ih hi tnad s sd

sadr i ue. s



Spring 2005, No.2 Page 10 ACFLS Newsletter

Support: assembly bill AB19

oppose: sca1 and aca 3

by

lynette berg robe, J.D., CFLS and melvin j. ross, J.D., CFLS

los angeles





he following letter was sent to the Honorable Dave Jones of the state assembly judiciary committee, as

T well as copies to many legislators. The letter is printed here because it addresses important issues currently

eoe h eiltr.

bfr telgsaue







March 21, 2005 uhr f S 9, t s lo en

John Laird and Sally Lieber, a t o s o A 1 ) i i a s b i g

forwarded to all of the other authors of AB 19, Assembly

oe

The Honorable Dave J n s Speaker Fabian Nu ez, Assembly Member Mark Leno,

Chair, Assembly Judiciary Committee Assembly Member Jackie Goldberg and Assembly Member

State Capitol, Room 3126 rt.

Paul Ko e z

Sacramento, California 95814

W ith conviction, our members last year solidly supported

RE: Assembly Bill 19 [Leno - Gender-Neutral Marriage] f

Assembly Member Leno seforts with Assembly Bill 1967, and

hs

t i year we strongly return to proclaim not only our commit-

SUPPORT- ted support of AB 19, but also our vigorous opposition to both

SCA 1 and ACA 3.

SCA 1 - [Morrow- Amend the California Constitution to pro-

vide that only marriage between a man u

W e thank yo for this additional opportunity to be heard.

and a woman is valid or recognized in

ai

C l fornia, whether contracted in this state W e support the language and purpose behind AB 19 and trust

r l ewhere ]

o es ht u ai

t a o r C l fornia Legislature (despite the well-publicized

oiia iie il o

deepening, and increasingly bitter, p l t c l d v d ) w l n t

OPPOSE - only find the politicized will to enact a meaningful gender-

eta il hs a

n u r l b l t i ye r, but will also send both SCA 1 and AC A

ACA 3 - [Haynes-Amend the California Constitution to pro- 3d own to deserved ignominious defe t a.

vide that only marriage between a man and

ld r eonzd n ai ri,

a woman is va i o r c g i e i C l fo n a While the reasons underlying our support for AB 19 (and oppo-

h t e o t a t d n h s t t r l ewhere ]

wehrcnrce i ti saeo es sition to SCA 1 and ACA 3) are myriad (Constitutional; legal;

o i i a ; s c o o i a ; o i t l , h e l y l o l own to

p l t c l p y h l g c l s c e a ) t ey r a l a l b i d

OPPOSE - just two: permitting gender-neutral marriage to be legal and

fully recognized under law is the right and fair thing to do,

Dear Assembly Member Jones: s h ie o o t ee n ai ri!

and now i t e t m t d i h r i C l fo n a



On behalf of the Family Law Section of the Los Angeles ei ht h tt f ai

W e b l eve t a t e S a e o C l fornia does and should stand

County Bar Association and our nearly 1,100 Section mem- o h rnil f nlso, o

f r t e p i c p e o i c u i n n t exclusion, and AB 19 is mere-

bers, representing the largest active practicing Family Law y h a e t n o g i e f r n i l d n r g e s ve t e

l telts i aln ln o picpe adporsi h

a n ai

b r i C l fornia, we have been authorized and directed in time has come positions embraced by our state when display-

hs ige etr o p e s o

t i s n l l t e t ex r s t you our support of Assembly ing its most distinguished blush of enlightenment though the

Bill 19 and our opposition to both SCA 1 and ACA 3. extension of due process and equal treatment under the

a o l esn.

lw t alpros

n diin o

I a d t o t forwarding this letter to all members of the

Senate and Assembly Judiciary Committees (which includes n u i

I o r v ew , both SCA 1 and ACA3 represent an egregious

Senator Bill Morrow , the author of SCA 1, Assembly Member impermissible backward tampering with our honored State

Ray Haynes, the author of ACA 3, and Assembly Members Constitution. continued on page 25(AB 19)



ACFLS Newsletter Page 11 Spring 2005, No.2

ACFLS SPRING S

Aliso Creek Inn • L

(Above)Commissioner Gale Hickman, Orange County,

and Lyn Greenberg, Ph. D., lecture on obtaining and

presenting psychological evidence in relocation cases.

Dynamic Duo: Dawn Gray, Nevada County,

(Below)

and Steve Wagner, Sacramento County, lecture on new

Family Code §2640(c) and transmutations in estate

planning documents.

(Above) Ro

rent presid

Monterey

Camaraderie after (Right) Les

classes. Dawn Gr

nar site.



Ron Granberg, Monterey County, says

he’s a well-prepared family law attor-

ney, as he lends a handkerchief to

Administrator Pat as her retirement is

mentioned.

Drafting Marital Agreements

for Domestic Partner’s: Diane

Goodman, Los Angeles, and

Garrett C. Daily, Alameda

County.









Sterling (Below) Debra Frank relaxes

Myers, Los in room at our meeting

Angeles, and resort.

wife Joann.

Rapt Attention . . .





Roger and Sandra

Keithly, San Diego.









from Frieda Gordon and other attendees.





Spring 2005, No.2 Page 12 ACFLS Newsletter

EMINAR 2005

Laguna Beach







n Lachner, Los Angeles, cur- L to R: Dawn, Sandy, Jan and Mark Berry, Santa Clarita, and Mike Samuels,

dent, and Ron Granberg, Marin County.

County, president elect.

lie Shear, Los Angeles, and

ray enjoy the beautiful semi-









Ron Ziff, Los Angeles



Our new administrator

Lynn Pfeifer

L to R: Joe Bell, Nevada County, and Diane and Tom Woodruff,

Sacramento County, enjoy Friday night get-together.









(Above) Dawn

Gray, Nevada

County, Sharon

(Above) Our new Bryan, Los

Secretary-Elect Sandy Angeles, and

Schweitzer, Butte Cecilia DeLury.

County. (Right) New Board

member Sherry

(Left) Leroy

Humpel, Graybehl, Orange L to R: Vince Jacobs, Sacramento County, and President Ron

San Francisco. County. Lachner, Los Angeles.





ACFLS Newsletter Page 13 Spring 2005, No.2

new family code §2640(c):

closing a loophole or

creating a new right

by

Dawn Gray, J.D., CFLS

Nevada County

dgray@ix.netcom.com







efore January 1, 2005, Family transmutation in writing pursuant to



B itd n h

Code ⁄2640 had ex s e i t e

same form since it was incorpo-

rated into the new Family Code on

Chapter 5 (commencing with Section

5) f at f iiin , r rte

80 o Pr 2o Dvso 4 o awitn

i

w a ver of the right to reimbursement.

January 1, 1994. It came into the Family The amount reimbursed shall be with-

Code from Civil Code ⁄4800.2 in the old out interest or adjustment for change in

t t

Family Law Ac . I was enacted in 1983 monetary values and may not exceed

n f ci n aur , 94 Sas

a d e fe t ve o J n a y 1 1 8 ( t t . the net value of the property at the

93 h 4) t noprto no h

18,c.32.Isicroainit te time of the division." The enactment of

Family Code did not change its lan- h s e t o a s s everal interesting

ti scinrie s

r, f c i aur ,

guage. How eve efe t ve J n a y 1 sus

ise.

2005, the legislature enacted new h is su hc il rs s

Tefrtisewihwl aiei

Family Code ⁄2640(c) in response to the whether or not the new provision will

eiin n

Fourth District s d c s o i Marriage be applied retroactively to contribu-

of Cross (2001) 94 Cal.App.4th 1143, 114 i n a e r o o t f c i ae

t o s m d p i r t i s e fe t ve d t .

Cal.Rptr.2d 839. Does new ⁄2640(c) When the legislature enacted the origi-

r rae

close a loophole in the law, o c e t a a

n l version of CC ⁄4800.2, litigation

new substantive right? The answe t r o n n r as r t e r a t ve

w e t o fo ye r ove i s r t o c i

hs usin il f

t i q e t o w l a fect the way the application; the legislature amended

court will apply the new subdivision to the section to specifically authorize

u ae.

yo r c s s retroactive application but the

n

I Cross, Husband and Wie lve i

f i d n fh

spouse’s separate property.I te ai

C l fornia Supreme Court ultimately

W ies separate property house during

f Legislature had intended to givea held that it could not be applied to con-

t e r four-year marriage. At their disso-

hi pue sc] ih ., h eiltr

sos [uh argt.. teLgsaue rbtos ae ro o t f ci

t i u i n m d p i r t i s e fe t ve

l t o t i l t ey stipulated that

uin ra, h could have included language to date, as such an application would con-

Husband had contributed $39,654 of his hs net t i o. ec,

achieve t i i t n . I d d n t H n e ttt e r va i n f

s i u e a d p i t o o vested property

separate property funds to improve t e h section 2640 is not applicable in this rights without due process. See

property and also traded the services of case, and husband’s reliance upon it is 18) 9 a.d 5,

Marriage of Buol ( 9 5 3 C l 3 7 1

his separate property business fo r misplaced." 1

218 Cal.Rptr.3; Marriage of Fabian

another $40,000 in services to improve The Legislature took up this invita- (1986) 41 Cal.3d 440, 448, 449, 224

the property. Husband asked for reim- tion and on February 19, 2004, Sheila 3;

Cal.Rptr.33 Marriage of Heikes ( 9 5 19)

bursement of these amounts under Kuehl introduced SB 1407 for the pur- 0 a . t 2 1 4 a . p r. d 5 .

1 C l 4 h 1 1 , 4 C l R t 2 15

Family Code ⁄2640, but the trial court pose of addressing the issue raised in Neither new ⁄2640(c) itself nor any

held that the section did not apply Cross. As chaptered, the bill added new uncodified language in the enacting leg-

because the property "acquired" wa n t

s o ie ht ()

subsection (c), which prov d s t a " a islation indicate Legislative intent that

a community asset. The Fourth District r h at’

party shall be reimbursed fo t e p r y s t e p l e e r a t ve y.

i b a p i d r t o c i l Under the

affirmed, holding that "(n)othing in sec- separate property contributions to the constitutional analysis which wa s

tion 2640 give o e s o s a r g t o

s n pue ih f acquisition of property of the other ple o

a p i d t former CC ⁄4800.2, whether

reimbursement for separate property spouse’s separate property estate during or not courts will do so depends on

contributions made to the other the marriage, unless there has been a whether it alters vested property rights



Spring 2005, No.2 Page 14 ACFLS Newsletter

or simply makes a procedural change. neous belief, because of a mistake of w ould justify such a remedy is not left

The June 15, 2004, Assembly Judiciary a r at ht e s h

l w o f c , t a h i t e owner of the ihu eore f t s o o ple.

wtotrcus i i i nts apid

Committee s analysis of SB 1407 says land." One who acquires property in his r, h t i ference may persuade

How eve t a d f

hs il

that "(a)ccording to the author,ti bl name by using funds contributed by a court to find that the enactment of

ek o etf h

s e s t r c i y t e Marriage of Cross another for an intended joint acquisi- ⁄2640(c) was not so much a change in

situation and close this hole in the area tion holds the property as a resulting the law as simply the enactment of an

of reimbursements that has not been trustee; that was one of the arguments alternate remedy, thus permitting

ihr

previously clearly addressed by e t e f el

W ie made in Della Zoppa v. D l a retroactive application. CC ⁄4800.2 wa s

" h s a g a e n i-

statute or case law. T i l n u g i d Zoppa (2001) 86 Cal.App.4th 1144, 103 l

not applied retroactive y even though

cates that the subdivision creates new 2 0, n ekn n neet

Cal.Rptr. d 9 1 i s e i g a i t r s the contributing spouse did not have

rights which had "not been previously in property acquired in Husband s name any other such remedies prior to its

addressed," which means that contribu- ro o h ate arae lo ()e

pirt tepris mrig.As,"th enactment; this may have supported

tions of separate property by one spouse or lo ed ht n h

Marvin c u t a s h l t a , i t e the courts conclusions in cases dealing

o h te

t t e o h r s separate estate made prior absence of an express agreement, the with that issue that the right to reim-

to January 1, 2005, are not reimbursable courts may look to a variety of remedies s s e r o o h f c-

bursement wa ve t d p i r t t e e fe

under the new subsection, although o rtc h ate’

t p o e t t e p r i s expectations. i ae f 40.. n

t ve d t o ⁄ 8 0 2 I Cross, Husband

they may have always been reim- Among those remedies, the court sug- argued only for reimbursement under

bursable under civil theories. gested that principles of constructive ⁄2640, which at the time did not apply.

n f h i ferences between this

Oeo tedf trust, resulting trust or quantum He did not seek another remedy, s t ao ht

type of contribution and those made d

meruit might be employe by the case does not stand for the proposition

with separate property to a community ors" 19) 0

c u t . Friedman v. Friedman ( 9 3 2 that he was without one.

asset is whether or not there is an alter- Cal.App.4th 876, 883, 24 Cal.Rptr. d2 In addition, arguably the legislature

native to the Family Code for reim- 892. Then there is always an unjust has already expressed its intent that

bursement. Prior to the enactment of i

enrichment claim; "(r)estitution is aval- ns n

the new section apply to "past eve t " i

former CC ⁄4800.2, a spouse who con- able to plaintiff when the defendant Family Code ⁄4, which provides transi-

tributed her separate property to the has been unjustly enriched through tional rules from the old Family Law

acquisition of a community asset had fraud, mistake or coercion." Hultin v. A ct to the Family Code which replaced

no right of reimbursement absent an yo

Ta l r (1970) 6 Cal.App.3d 802, 806, 86 t f ci

i efe t ve January 1, 1994. Family Code

understanding or agreement with the a . p r. 8 . e l o

C l R t 2 5 S e a s Grappo v. 4a()B eie n

⁄ ( ) 1 ( ) d f n s " ew law" as including

other spouse. See Marriage of Lucas 19) 3

Coventry Financial Corp. ( 9 1 2 5 an "act that makes a change in this

5.

(1980) 27 Cal.3d 808, 166 Cal.Rptr. 83 Cal.App.3d 496, 286 Cal.Rptr.74 1. code, whether effectuated by amend-

Such a spouse had no other recourse fo r Civil law has always provided reme- ment, addition, or repeal of a provision

obtaining reimbursement for the con- is

d e for one party who contributes f hs oe" e 4c,

o ti cd. Pr⁄()

tributions. Absent such an agreement, more than the other to the acquisition

the contributions were considered a of property held in both parties names ()bet o h iiain r

" s u j c t t e l m t t o s p ovid-

gift, and because of the nature of com- as separate property; this is known as d n h s e t o , h ew

e i t i s c i n t e n law

ny af f h o

munity property, o l h l o t e c n- an "equitable compensatory adjust- ae o l

applies on the operative d t t a l

tribution enriched the other spouse. et" n

m n . I Marriage of Leversee ( 9 418) matters governed by the new law,

Also, the family law court was the only 156 Cal.App.3d 891, 203 Cal.Rptr.41 8, regardless of whether an event

court with jurisdiction over communi- the court noted the lack of jurisdiction occurred or circumstance existed

y ses

t ast. over separate property and said that before, on, or after the operative

That is not true with regard to sepa- ()cue h eiec s re on e

" b e a s t e r s d n e i t u j i t t n- date, including, but not limited to,

rate property contributions to the ancy property and the court lacked commencement of a proceeding,

te

o h r s separate estate. A person who uidcin o iie r f c h a

j r s i t o t d v d o a fe t t e p r- r aig f n

making of an order, o t k n o a

makes such contributions has long had is neet n t t ipsto ut

te’itrssi i,isdsoiinms cin"

ato.

remedies for reimbursement or other be pursued in a separate partition

claims depending on the nature of the rc, 8200 t e.

action. (Code Civ. P o . ⁄ 7 . 1 e s q ) Family Code ⁄4(a)(3) defines "opera-

otiuin ut s f e r h a

cnrbto,js a i h o sehd In the partition action the court may i ae

t ve d t " for this purpose as "the opera-

contributed funds to the improvement order an equitable compensatory i a e f h ew

t ve d t o t e n law. "

f tagr netoal r

o a s r n e s property, i t n i n l y o adjustment to compensate Paula fo h rr e n 20) 2

I Marriage of Fellows ( 0 4 1 1

ciet o

by a c d n . F r example, one who use of separate funds for the down pay- 3 2,

Cal.App.4th 607, 615, 17 Cal.Rptr. d 3 5

improves the property of another under ment on the residence." s

which wa vacated on December 1,

a mistaken belief that he is the owner The availability of these other reme- 2004, when the California Supreme

of the property can obtain relief as a dies arguably makes it less compelling i h hr itit

Court granted rev ew , t e T i d D s r c

r" C 7.()

"good faith improve ; C P ⁄ 8 1 1 a to apply new ⁄2640(c) retroactive yl ed ht

hl ta

r s o e-

defines a "good faith improve " a s m because a spouse who contributed sepa-

one "who makes an improvement to rate funds to the other spouse s separate "[Family Code] Section 4 provides

land in good faith and under the erro- property under circumstances which continued on page 19 (Code ⁄2640)





ACFLS Newsletter Page 15 Spring 2005, No.2

legislative report

by

Joseph J. bell, J.D., CFLS

Nevada County

attorney@bellslaw.com







Introduction

AB 1102 [Hancock - Marriage License

espite the reports that the Procedures]



Di

Legislature has been diverted

oiis i

from business by p l t c v s a

v s the Governor, t e l g s a i hopper

h e i l t ve

This bill makes changes to 37 particu-

lar sections of the Family Code (within

f aiy a n eae il s

o f m l l w a d r l t d b l s i ove r- Sections 300-536), and 14 sections of the

l

fowing, at least compared to the 2004 Health and Safety Code which regulate

eso. at

s s i n L s year we tracked about 40 marriage procedures for the county

new bills, of which 15 related to family clerk and notaries.

and juvenile matters were chaptered. The bill would revise, recast and con-

a hr ih e 9 il f

This ye r, t e e m g t b 6 b l s o f iin n hs e

orm various prov s o s i t o e s c-

interest to family and juvenile law tions. Among other things the bill

practitioners, including a constitutional w ould prohibit the issuance of confi-

u te il eae

amendment and fo r o h r b l s r l t d dential marriage licenses based upon an

o arae tef h ois nld

t mrig isl. Tetpc icue n b l t f h a t e o p e r, n

i a i i y o t e p r i s t a p a ad

marriage, domestic and protective w ould make related changes with

orders, child abuse and dependency, cs- u regard to notaries public and the state

tody, parenting rights and children’s eita

r g s r r. In issuing a duplicate marriage

rights, child support, property and license or confidential marriage license,

’ e. ny

attorneysfe s O l a few can be dis- h i l u d l ow

t e b l wo l a l the county clerk to

cussed here. e o ove h c u l o t

charge any fe t c r t e a t a c s s

Many of the originally introduced bills MARRIAGE AND MARITAL of issuing that duplicate license, and

have already been amended. More RIGHTS w ould change the fee charged notaries

ial. t s hr

amendments are inev t b e I i t e e- ulc l o su ofdnil

p b i for approva t i s e c n i e t a

f important to check on the current

ore AB 19 [Leno - Gender Neutral Marriage] marriage licenses to an unspecified

tts f il. lo tf eot n tt

s a u o b l s A s , s a f r p r s a d s a e- amount. The State does not have t o

ments in support or opposition which are hs il

T i b l would enact the Religious reimburse local cost.

l n e t t e L g s a i we s t c n b

i k d o h e i l t ve b i e a e Freedom and Civil Marriage Protection

hlfli udrtnigabl.

epu n nesadn il A ct, which would instead provide that AB 1236 [DeVore - Choice of Marriage

l f h il h

A l o t e b l s s own, along with marriage is a personal relation arising Act of 2005 as amended]

their history and links to many docu- e

out of a civil contract between two p r-

ments created by t e l g s a u e i t i

h eiltr n hs sons. The bill would make conforming h s i l u d eve s h o f u t

T i b l wo l r r e t e n - a l

process, are on the legislature’s we s t .

b ie changes with regard to the consent to, n f c n

divorce procedures now i e fe t i

A dditionally, a yone can request e-mail

n and solemnization of, marriage, and ai

C l fornia, on specific terms and condi-

notice of the continuing progress of any w ould make related findings and decla- tions. The bill contains numerous find-

p r i u a b l . G t www.leginfo.ca.gov.

atclr il o o ain.

rtos ns o h f c h t o f u t i

i g t t e e fe t t a n - a l d vorce

Once there, it is reasonably easy to h il otis l

Interestingly, t e b l c n a n e even lae

degrades the general we f r by, among

s l c a b l o b l s for which you may

eet il r il findings which set forth the history of other things, undermining marriage,

have a p r i u a i t r s ( r o i i n ,

atclr neet o pno) the development of marital law in harming children, making divorced

o ownload the current and prior ve

t d r- ai

C l fornia. The actual language of the men smoke more, drink more and have

s o s t d s , t f a t o e o m s c n-

in o ik o lg hs f ot o bill simply amends Family Code section more unhealthy diets, causing various

c r for e-mail notice, and to track the

en 300 to replace the words defining mar- cultural neuroses, impoverishing

pors o lc teef a tessin

rges r ak hro, s h eso riage as between a man and a woman rh

w omen and children, and so fo t .

continues. esn.

with the words two p r o s ud lo sals lci

The bill wo l a s e t b i h e e t ve



Spring 2005, No.2 Page 16 ACFLS Newsletter

procedures by which a couple may that only marriage between a man and w ould require that a law enforcement

enter into a marital contract rejecting a woman is valid or recognized in officer determining that a protective

h i h o o a l i re

t e r g t t a n f u t d vo c , except in ai r,

C l fornia. Moreove the amendment d

order has been issued, but not serve,

certain circumstances. The bill would u d everse and preve t a l m r t l

w ol r n l aia shall immediately notify the defendant

require couples seeking to enter into ihs epniiiis eeis n

rgt,rsosblte,bnft,ad of the terms of the order and where the

this type of marital contract to undergo obligations from being conferred on any order may be obtained. The officer shall

specified marital counseling and educa- other union or partnership. t ht ie lo n

a t a t m a s e force the order.

in e

t o b fore entering into that contract, The proposed amendment is being

a d a s b fo e d vo c n .

n lo e r i rig opposed by various bar associations. SB 585 [Kehoe - Protective Orders, as

The bill would require county clerks The ACFLS Board of Directors voted amended]

o evelop and make ava l b e t t e

t d ial o h unanimously to oppose the amend-

ulc hie rs s eie, n

p b i , c o c fo m , a d f n d i ment on April 15, 2005. hs il

T i b l would amend Family Code

accordance with the act. The bill would section 6389 to revise the protective

also require a county clerk to file and DOMESTIC VIOLENCE AND re

o d r form to allow the petitioner to

keep completed choice forms within PROTECTIVE ORDERS identify weapons and their location

the county’s permanent records and to that are subject to seizure. The respon-

establish a directory of marriage educa- AB 99 [Cohn - Expiration of Protective dent would be required to surrender or

t o o s i l t a n n p oviders within

in r kls riig r Orders as amended] sell any such firearm within 24 hours

t f i e s p c f e . y l c n d i-

isofc,a seiid B paigad and to notify the court of relinquish-

inl uis n oa fiil, h il

toa dte o lclofcas tebl hs il

T i b l would amend Family Code ment or sale within 48 hours rather

w ould impose a state-mandated local sections 6345 and 6361 regarding the than within 72 hours. The court, with

program. expiration of personal conduct, stay- probable cause, would be authorized to

n eiec

a way, a d r s d n e exclusion orders. rat

issue a wa r n for search and seizure

SB 1031 [Hollingsworth - Dissolution The amendment would reduce the of any firearm in the possession of the

Counseling, as amended] as

duration of such orders from ten ye r respondent. The court may grant use

o i l eid

t f ve years, and the renew a p r o r h c f eiqitn.

immunity fo t e a t o r l n u s i g

h s i l d s ew

T i b l a d a n Family Code sec- w ould be changed from three to five

tion 2330.2 to extend a new require- years, or permanently, from the date SB 720 [Kuehl - Protective Orders,

ment where it appears to the court that the judgment is issued, after notice and Contempt, as amended]

hr s esnbe osblt f e

t e e i a r a o a l p s i i i y o r c- ern.

ahaig

onciliation, and the court decides to hs il

T i b l would amend Code of Civil

stay the proceedings fo 3 d y .

r 0 as AB 118 [Cohn - Protective Orders: Minor Procedure section 1218, Family Code sec-

Existing law makes reference to a Children, as amended] tion 6380, and amend certain Penal

rarely seen family conciliation court, hs il

Code sections. Specifically,ti bl

which may be implemented by the hs il

T i b l would amend Family Code w ould authorize a district attorney or

or

superior court in each county, t p o- section 3100 to provide that where a city attorney to imitate and pursue a

vide means for the reconciliation of criminal protective order has been or cin

c u t a t o for contempt against any

spouses and the amicable settlement of issued any visitation order issued under party failing to comply with a Family

ris

domestic and family controve s e . the section shall make reference to the u t e h il u d l e

Code order. F r h r, t e b l wo l a t r

hs il

The new section proposed by t i b l criminal order and limit the exposure of provisions regarding the transmission

w ould require the parties to a proceed- a minor child to domestic conflict or of protective orders to law enforcement

n

i g for dissolution of marriage, if minor ilne

voec. personnel, and would require the

l d o opee

children are invo ve , t c m l t four District Attorney to notify a victim 30

hours of family education, either AB 429 [Chu - Service of Temporary days prior to the termination of certain

together or separately, d r n t e 3 -

uig h 0 Restraining Orders as amended] res s pcfe. ial

protective o d r , a s e i i d F n l y

day period immediately fo l l owing the h il

t e b l would provide that monetary

iig f h eiin r islto f

f l n o t e p t t o fo d s o u i n o hs il ros e

T i b l would amend va i u s c- fines on conviction of contempt would

u d l ow

marriage. The bill wo l a l the tions of the Code of Civil Procedure, the fund domestic violence shelters.

court to order the parties to attend edu- Family Code, and the Welfare and

c t o focused on the effe t o d vorce

ain cs f i Institutions Code regarding the service AB 978 [Runner - Restraining Orders:

or separation on children. of temporary restraining orders and pro- Stalking, as amended]

e t ve r e s

t c i odr.

ACA 3 - SCA 1 [Haynes/Morrow - In sum, the bill would require that a hs il

T i b l would add new sections to

Constitutional Amendment re: law enforcement officer serve such the Code of Civil Procedure, the Family

Marriage] orders at the scene of reported unlawful lae

Code, the Penal Code and the We f r

violence or a credible threat of violence, and Institutions Code to create a

These identical bills would amend whether or not the defendant has been requirement that the court restrain

h ai

t e C l fornia Constitution to provide taken into custody. Other provisions actions by the respondent to find the



ACFLS Newsletter Page 17 Spring 2005, No.2

confidential address or location of pro- drug testing and guardian registration. e f iesd

b fore a representative o a l c n e

etd ate.

tce pris h il

Specifically, t e b l would authorize a adoption agency or private placement

h il

Specifically, t e b l would require court to require persons seeking cus- h t t . n t p-

agency licensed by t e S a e I a s e

the court to order that the restrained tody or visitation in any guardianship parent adoption, the bill would author-

party shall not take any action to proceeding under the Probate Code to ize the consent of either or both parents

obtain the address or location of a pro- undergo drug testing, in the same man- to be signed in the presence of a notary

uls hr s od as

tected party, " n e s t e e i g o c u e ner as presently permitted in Family public. The bill would also authorize an

not to make that order. " Law proceedings. An exception to the adoption agency to whom the child has

registration requirements for nonrelat- been or is proposed to be relinquished or

CHILD ABUSE AND DEPENDENCY ud lo e eee.

ed guardians wo l a s b d l t d a person who intends to adopt the child

to bring an action to determine paternity.

AB 114 [Cohn - Child Abuse: Evidence, as CUSTODY, PARENTING RIGHTS

amended] A N D C H I L D R E N ’ RIGHTS

S SB 359 [Ortiz - Supervised Visitation,

Protective Order]

T i b l would amend section 1109 of

hs il SB 116 [Dutton - Child Abandonment,

the Evidence Code to provide that Newborns, as amended] hs il

T i b l would add new section

when a defendant is accused of child 3100.5 to the Family Code, concerning

abuse in a criminal action, evidence of hs il ros e

T i b l would amend va i u s c- visitation orders where the court has

h e

t e d fendant’s prior acts of domestic ea

tions of the Health and Safety, P n l re ietd o

issued a protective o d r d r c e t a

violence may be admitted to prove t eh and Welfare and Institutions Codes to hs il

parent. Specifically, t i b l would

e

d fendant’s conduct, except as speci- iin n

extend indefinitely the prov s o s i require the court to impose supervised

id hs

f e . T i exception to the admissibility law related to the voluntary surrender, visitation, despite any stipulation to

ue rcs h iia

r l s t a k t e s m l r exception for f hl, 2

without criminal liability, o a c i d 7 the contrary by the parties or recom-

cs f oetc ilne h il s

at o dmsi voec. Tebl i o ulc r r

hours old or younger, t a p b i o p i- mendations of the mediator, when the

pending in the Assembly. t optl

va e h s i a . court has granted visitation to a parent,

r f

and has been made awa e o evidence

AB 253 [Aghazarian - Child Abuse, as AB 265 [Haynes - Child Custody, f ik o h hl niaig ht s

o rs t tecididctn ta i

amended] Parents on Military Duty] necessary to protect the child from risk

of harm due to physical or sexual abuse,

hs il

T i b l would amend Penal Code h s i l d s ew

T i b l a d n Family Code sec- neglect, substance abuse or domestic

section 273a to create a new crime fo r tion 3047 which would prohibit a court violence by a parent or member of the

use of a controlled substance in the from modifying an order granting cus- parent’s household.

presence of a minor child. Specifically, tody of a child if a party who was grant- The bill would also prohibit unsuper-

r f

any parent, guardian, or caregive o a ed custody of the child is a member of ie iiain

v s d v s t t o for a parent convicted

minor child who knowingly and h ai

t e C l fornia National Guard on active f cp s pcfe.

o felony abuse, ex e t a s e i i d

unlawfully consumes . . . or otherwise duty, unless the court determines that h il

Further, t e b l would require a court

uses" certain controlled substances modifying the order is in the best inter- o id

t f n by a preponderance of the ev i-

including cocaine, LSD, heroin, est of the child and the party has either a

dence that a biological or adoptive p r-

methamphetamines, in the presence of, uy r s o ogr

died while on active d t o i n l n e ent to whom the child is attached poses

or where such use is witnessed by a be o r r h

a l t p ovide adequate care fo t e ik o h hl, s pcfe, e r

a r s t t e c i d a s e i i d b fo e

minor is punishable by imprisonment hl. h il s edn n h

cid Tebl i pnigi te denying visitation or imposing super-

n h tt rsn

i t e s a e p i o for 16 months, or Assembly. vised visitation on that parent.

, r h e as

two o t r e yer.

SB 302 [Scott - Adoption Procedures] AB 519 [Leno - Dependent Child Rights,

AB 299 [Maze - Abuse Reports and as amended]

Juvenile Case Files, as amended] hs il

T i b l would amend the Family

Code presumptions and procedures fo r hs il

T i b l would amend Welfare and

hs il

T i b l would amend Penal Code termination of parental rights, and in Institutions Code sections 213.5 and

e t o 1 6 o l ow

s c i n 1 1 6 t a l child abuse man- particular of the rights of presumed ih r

366.26 to create a new r g t fo a

asml r

dated reports to be made by f c i i e o fathers under Family Code section 7611 dependent child who has not been

electronic transmission. The bill has t e . p c f c l y, h s i l

e s q S e i i a l t i b l would pro- adopted after the passage of at least

passed the Assembly. vide that the presumption of father- three years from the termination of

hood may be rebutted by clear and con- parental rights or is no longer adopt-

AB 541 [Harman — Guardians, as amended] vincing evidence that another man is be s pcfe, o eiin h u

a l , a s e i i d t p t t o t e j ve-

h il

the natural father. T e b l would ie or

n l c u t for reinstatement of parental

hs il

T i b l would amend section 3041.5 authorize a presumed father to wa vei rights, according to specified proce-

of the Family Code and sections 2341 his right to notice of adoption proceed- dures. The bill would also make techni-

and 2854 of the Probate Code related to ns ctn

i g by exe u i g a form so stating cal changes to the ex parte orders provi-



Spring 2005, No.2 Page 18 ACFLS Newsletter

in

s o s for dependent children. The bill gross income from the National Guard earned by the member during the final

has passed the Assembly and is pending or

f each month or part of a month that three years of employment, prior to the

n h eae

i teSnt. h il

the parent is on active duty. T e b l f c i ae

efe t ve dt.

w ould make other procedural changes

SB 594 [Torlakson — Custody, Sex and would apply retroactive y.

l SB 1088 [Bowen - Family Law Motions,

Offenders, as amended] Orders, as amended]

PROPERTY RIGHTS —

T i b l would amend Family Code

hs il MISCELLANEOUS hs il

T i b l would add section 218 to the

section 3030 and add section 3030.5 to Family Code regarding rules governing

expand the prohibition fo a c u t t

r or o AB 69 [Multiple Party Accounts, as ex parte communications in Family

order custody or unsupervised visita- amended] h il

Law proceedings. Specifically, t e b l

i n i h h l o e i t r d ex

to wt acidt argsee s w ould require the Judicial Council to

f p c f c l y, h i l u d l o

ofender. S e i i a l t e b l wo l a s hs il

T i b l would amend Probate Code adopt a rule of court regarding such

prohibit such orders for a person who sections 5301, 5303, and 5401 regarding communications between mediators,

either resides with a registered sex h

t e ownership interests in a multiple evaluators, and the court, parties and

f

ofender or who has been convicted of party account, as defined. Specifically, attorneys. The rule would be required

pcfe rms gis

seiidcie aantacid Tebl hl. h il h il

t e b l would provide that the propor- to be adopted by March 1, 2006.

w ould also require modification of inl

t o a ownership interests in such

existing custody and visitation orders accounts are not limited to the sums on CORRECTION

that are inconsistent with the amended deposit, and would make clarifying

provisions. The bill is pending hearing changes with regard to survivorship NB: For readers of the ACFLS Ye r a

in the Senate. interests, and other changes affecting End Legislative Wrap Up, in the Wi t rne

iaca ntttos

fnnilisiuin. plgz

2005 issue, we a o o i e for two inad-

CHILD SUPPORT vertent errors: The private child sup-

AB 214 [Richman - Public Employees, ot olcin il B 3, s

p r c l e t o b l , S 3 9 wa vetoed

AB 498 [Haynes - Guidelines, National Retirement Compensation] fe h ril s rte. t s gi

a t r t e a t c e wa w i t n I i a a n

Guard Members] e r h eiltr n hs eso, s

b fo e t e L g s a u e i t i s s i n a

hs il

T i b l would add Government B 9. lo r iin n B 33

S 8 6 A s , a p ov s o i S 1 1

hs il

T i b l would add Family Code sec- Code section 20037.1 to the changing the reporting requirements

tion 4059.5 to alter the child support Government Code, to redefine final o s s eee n h

fr "exual assault" wa d l t d i t e

udln

g i e i e for parents who are on active compensation for any member of PERS r h ia

last hearing befo e t e f n l vote enact-

duty as members of the National h eie r is fe aur ,

wortrso de atrJnay1 n h a Pnl oe 16.]

igtelw[ea Cd 1153. s

Guard. Specifically, such child support 2006. The new definition, in sum,

w ould be calculated on the basis of w ould be the average compensation





Code §2640 h ev ew el

t e r i granted in F l ows, a p r y at bursement for contributions to the

continued from page 15 may make this argument and a court rpry f t a o uidcin

p o e t i i h s n j r s i t o ove i? rt

that amendments to the Family may come to the same conclusion that f o a t re ht rpry od n

I s,cni odrta poet sl i

Code, including the one at issue the Third District did; unless and until re o r

o d r t p ovide reimbursement? If not,

here, are intended to apply to past the Supreme Court holds that Family ut at ie eaae ii cin

ms apryfl asprt cvlato,

events unless the amendment pro- Code ⁄4 cannot be so interpreted, the consolidate the cases and ask for such

ie tews, r h ae is

vdsohrie o tecs ft argument that Family Code ⁄4 applies an order?

into one of the particular excep- to this amendment is certainly a viable lo n 19) 7

A s , i Marriage of Walrath ( 9 8 1

tions enumerated in the remainder n.

oe 2 5,

Cal.4th 907, 923, 72 Cal.Rptr. d 8 6

of section 4. Because section 4 Another issue raised by the new sub- h ai

t e C l fornia Supreme Court held that

demonstrates the Legislature h

division is jurisdiction. Currently, te "the phrase the property in section

intended amendments to the family court only has jurisdiction ove r 60 . nlds o ny h pcfc

24 ..icue ntol teseii

Family Code shall apply retroac- onl-

j i t y owned separate property, which community property to which the sep-

i l

t ve y, we conclude section 4502(c) s o fe r d

w a c n r e by Family Code ⁄2650 to arate property was originally con-

applies retroactively to conduct "close the loophole" mentioned in tributed, but also any other community

that predated that section. In doing u r . ew

Leversee, s p a N ⁄2640(c) includes property that is subsequently acquired

ut hs h ra or i o r"

j s t i , t e t i l c u t d d n t e r. no grant of jurisdiction to the family from the proceeds of the initial proper-

r

court ove solely-owned separate prop- y,

t and to which the separate property

Arguably, in Family Code ⁄4 the f h or a o uidcin

erty. I t e c u t h s n j r s i t o ove r contribution can be traced." The legisla-

Legislature has already expressed its h t f c i l e m-

such property, w a e fe t w l a r i r f

ture is presumed awa e o existing law

intent that ⁄2640(c) apply to "past bursement order under new ⁄2640(c) and interpretations when it passes new

ns s h n " eades f

eve t " a t e " ew law. R g r l s o have? Can the court even order reim- continued on page 26(Code ⁄2640)





ACFLS Newsletter Page 19 Spring 2005, No.2

John E. Harding is the principle of

Harding & Associates, with offices

in Pleasanton and San Francisco.

Computerization He practices is in the areas of fami-

ly law litigation and divorce medi-

ation. He has been certified as a

family law specialist by The State

and a f ai

B r o C l fornia Board of Legal

Specialization. More importantly,

he is a husband, father, youth



telecommuting sports coach, grandstand cheer-

leader, ak

family chauffeur, b c yard

rlig

g i l n expert, and dog washer.







for

fyou are a lawyer reading this from your 25th-floor office within





the solo

I u i r a im hs ril

the opulent digs of yo r f ve-hundred lawye l w f r , t i a t c e

so r

i n t fo you. For the topics about which I write, you can turn to

the in-house technology department, T-1 network connections, and an

army of secretaries, paralegals, and associates. My suggestions would

ny e n u, f

o l g t i your way. Bt i you are a solo or small firm lawyer looking

or

f hints to improve your use of technology and to get work done away

rm h fie ed n

f o t e o f c , r a o . You just might learn a thing or two . ..

and My wife and I decided to have kids. We wanted children. We wanted

hr u i

to be around them, watch them grow , s a e o r l ves with them. Our

wishes were answered with the birth of our son, Jack, and two ye r as

n e n rae

later our daughter,Rya . B fore Jack was born, my wife a d I c e t d a

small firm plan whereby I would be a stay-at-home dad each Wednesday. E c p

f the occasional deposition, hearing, or trial, we have been able to

or

xet



realize that goal. The key to spending more time with my family,

while still maintaining an active law practice, is telecommuting. This

s ult f i s h a f etn p t

i a q a i y o l fe benefit. Woe wa t e d y o g t i g u a four in the

lawyer f o h fie n e tre n r o ty t h

morning to drive o f t t e o f c a d g t s a t d o wo k ( r s a a t e

office late into the night) during those especially busy times. I enjoy

n hlrn tl, h

being at home with my wife a d c i d e . S i l t e work must get

m ow

done. Fortunately, I a n comfortable with my telecommute. I can

be away from the office, without totally sacrificing professional pro-

. a

ductivity. There was a learning curve I h ve gotten through that, and

by o hr h rcs a ere.

now I am happy t s a e t e t i k I h ve l a n d

Mine is a busy family law practice. For the most part I do still spend

John E. Harding, J.D., CFLS the bulk of my lawyer time at my law office. Fortunately, my home

fie a l

o f c h s evo ved to the point that I can duplicate most tasks there.

r, n

The keys to my success: computers, the Internet, great softwa e a d

Alameda County an ability to tolerate the noise that two kids, one dog, and the sur-

ow o t

rounding neighborhood can generate. Here s h I d i .

www.hardinglaw.com is: u y e f r c i e h e e-

F r t The Telephone. Regardless of yo r t p o p a t c , t e t l

phone is an indispensable tool. A second phone line is a wonderfl u

accessory for the home office. The convenience of being able to operate

r ie, a ot r, nent ces t., n tl

telephony softwa e ( . . f x s f wa e I t r e a c s , e c ) a d s i l

eiae ie r

have a d d c t d l n fo voice communication is quite a treat.

f

A dditionally,i your work-at-home time is to be shared with other

members of the family, their use of the main phone line will not shut

rd

down your vital telephone link to the rest of the wo l .



Spring 2005, No.2 Page 20 ACFLS Newsletter

f ore hr r lo ellr

O cus,teeaeas clua s uh s on o on

are alternative , s c a p i t t p i t n

i g GoToMyPC through two c b e al

phones. My cell phone allows me to r ie

phone line connection softwa e l k r ae s eerc

modems, the transfe r t i m t o i

iig n

make work calls while wa t n i .h

PCAnywhere) T e GoToMyPC tech- compared to telephone modems. The

courthouse halls, while stuck in traffic, l s n t l a i n f e i-

nology invo ve i s a l t o o a r s cable modem offers another advantage:

y f h

while walking the fairwa s o t e dent software program on each of the It frees up the telephone modem on my

AT&T Open at Pebble Beach. My partic- computers that I want to include in my office computer. With that phone line

lr el hn s

u a c l p o e i a PalmOne Tr o e, personal remote computing netwo k r. ial, a r

ava l b e I h ve installed fax softwa e

which is an integrated phone and per- o o s o n o y

Then all I have t d i l g o t m n t ow

on the computer, a d i n serve a s s

oa iia sitn n r

s n l d g t l a s s a t ( ow they a e member section within the my primary fax machine. Incoming

called "PDAs" or "smart phones", in the bie

GoToMyPC.com w e s t ( w w w.goto- s ri

faxe a r ve right on my desk. No more

old days we use to call them palm mypc.com) and access my computer of w alking back to the copy room to

pilots). All of my contact and calendar choice. The technology works wonder- e r eve a fax. As an added bonus, I can

rti

n

i formation is at my fingertips. My cell ul

f l y, and makes my office personal i

prev ew incoming faxes on my comput-

phone also includes modem technology computer available to me whereve I r er screen, and then print the ones I

so that I can use it to connect my laptop a ces h nent

c n a c s t e I t r e . GoToMyPC n , r i h e e e ey o e i f

w a t o h t t e d l t k t gtrdo

o h nent oc n sd t o

t t e I t r e ( n e I eve u e i t includes a reliable security component n. hs s ie

the ones I don t wa t T i i a n c

connect my laptop to the Internet to ensure that access is totally within function, with a cost benefit now that

while passing through Grand Junction, my control, and no one else s. Once the telemarketers and junk mailers have

r f n

Colorado, from the comfo t o a connection is established, I am prompt- ic

d s overed fax machines! Even at home,

Amtrak train). Admittedly though, d

e for a sign-in name and passwo d r. a i s e e ve t h

I c n v ew the faxe r c i d a t e

the quality of the connection on a cellu- Upon successful login, my home com- office — once again thanks to remote

a a e p t y t i e . f e d r s-

lrcnb sot a tms I Ine cy puter monitor literally displays the access technology.

a la oncin, ad ie s

tlcercnetos aln ln i electronic screen for my office comput- r lo nlds tl

Remote softwa e a s i c u e u i i-

seta.

esnil r.

e I am running my office computer is

te for file sharing — another advantage

from my home computer! If I wa t tn o or a d r ve

f the telecommuter. H r d i s

Second: Computers. I am a big believ- run the word processor on my office ts 0

now adays can run 40 gigaby e , 6

er in buying as much computer pow e r machine I simply open the program by r ite

gigabytes, and more. For ve y l t l

as possible. My remote computing m oving and clicking the mouse on my n oy

extra money I e j so much hard drive

l

invo ves running several applications f

home computer.I Iwant to run my l f y

space that I can actually copy a l o m

simultaneously. The more muscle billing program, same thing. Mouse, w ord processing and case management

od h atr

under my computer s h o , t e f s e click, compute. The technology is fan- files from my office computer to my

and more reliable my telecommuting a t c verything that I can do on my

tsi.E home computer, with plenty of storage

will be. That includes the laptop com- office computer while seated at my space to spare. Using the file compres-

puter that I use at home. While laptops fie ek a lo o n y fie

ofc ds,Icnas d o m ofc sion technology of the remote control

have not mirrored the drop in price and computer while I am seated at home. In r, h

softwa e t e exchange can be done in a

improvement in technology of desk- at m paig hs ril

f c , I a u d t n t i a t c e by run- manageable amount of time. This

tops, laptop computers have come a ning my office computer from my liv- comes in handy when I don t, or wo , nt

long way. For about twice the price you ing room while watching football on have access to a fast Internet connec-

can have the same capacity and func- h u l u c i n l t f y e e-

T V. T e f l f n t o a i y o m t l t ie hrn, a ed l y

tion. Wi h f l s a i g I c n s n a l m

tion of a desktop, but without the big- computing also includes printing. w ord processing files to my laptop com-

bad a lo e

ger screen and key o r . I h ve a s s t GoToMyPC includes a remote printing puter; work on those files in the word

up a wireless network in my home. feature that allows me to print any- processor that is installed on my laptop;

This technology allows the five com- thing from my office computer to a t

then savei for later transmission back

puters that we have at home to share printer at my remote location. This fe a- to my office machine via the remote

one Internet modem. It also allows me ture is a real bonus. More than once I control software. As an alternative, my

to carry my laptop around and work have prepared and/or printed a plead- home and office computers have r a -ed

from anywhere within the house, ing from my office computer to the s o

write CD-ROM drive . C pying all my

rather than chaining me to one desk. If printer at my home, before driving w ord processing and case management

I want to work from the kitchen table straight to court (and saving myself a files ("burning a CD" in "CD-ROM talk")

o ht a ep n n h is

s t a I c n k e a eye o t e k d rp o h fie o ik p h ae)

ti t teofc t pc u teppr. onto a CD takes maybe ten, fifteen min-

r, h

while they are playing in the ya d t e s huh o n oy

I must confe s t o g , I d e j one utes. I take the CD home, write it onto

wireless technology lets me do that. superfluous luxury when it comes to ia ul ul

the home machine and vo l , f l d p i-

remote access. My Internet access at ain

cto.

Third: Remote Computing Softwa e r. the office and at home is via broadband Speaking of CD-ROMs, once again the

My method of telecommunicating cable. That means cable modems at remote software comes in handy. H ow

exploits remote access technology. My both ends, which translates into blaz- many of you have subscriptions to CD-

brand of choice is an online service ing data transfer rates, when compared ROM-based products? For example,

ald

c l e GoToMyPC.com (although there to 56K telephone modems. When utiliz- treatises, hornbooks, codes, or case law?



ACFLS Newsletter Page 21 Spring 2005, No.2

Not a problem for the telecommuting software at the office. Another nice aaal.. hr s tl oe ht h

pltbe) Teei silmr ta te

r. u t e ve u fie

lawye J s l a the CD in yo r o f c treat: my case management softwa e r r. h

W orld Wide Web has more to offe T e

machine and access it remotely via the transfers all my contact names and latest and greatest online phenomenon

r.

remote control softwa e phone numbers, and calendar informa- s Ss r apiain evc

i AP,o "plcto srie

tion to my PDA cell phone. ies" setal

prov d r . E s n i l y, ASPs are remote

Fourth: Case Management r ht

computers hosting softwa e t a you

r . ow

Softwa e N I am sure most of you it:

F f h Document Imaging Softwa e r. pay to use. Rather than installing, say,a

will agree that one of the essential My practice will always maintain u

w ord processing program on yo r ow n

skills required to maintain your sanity, a e i e . ow

p p r f l s N though my files are computer, you access the program on

and avoid malpractice suits, while prac- complimented by a paperless compo- the ASP s machines, and pay them fo r

s r a i a i n g i , o t-

ticing law, i o g n z t o . A a n s f e t ve y i c f a e h t s

nn. E r peeo pprta i the time that you use. The ASP provides

s a i r. n a t c

w are makes our live e s e I p r i u- received into the office is scanned and the software application and stores

a m e

lr, I a r ferring to case management d s n l c r n c i e very docu-

save a a e e t o i f l . E your work product created with the

software. There are myriad programs r a e s l o a d l c-

ment that we c e t i a s s ve e e application. The thinking is that this

ial, nldn

ava l b e i c u i g Time Matters, i f

tronically. A b t o extra time is added, method will (1) be more affordable,

Abacus, Gryphon, Practice Perf c ,et but the benefits down the line more because you are not buying softwa e r

n il e

Case Master, Needles, a d Tr a D hn fst h ta ie p rn.

t a o f e t e ex r t m u f o t programs and updates, and (2) more effi-

.

Novo My brand is Amicus Attorney by tlz

In my office we u i i e Visioneer cient, because you don t have to spend

r. et r

Gavel & Gown softwa e I t s d ove scanners with automatic document r , e l-

time administering the softwa e d a

several of the others, but went with he ees h

s e t fe d r . T e Visioneer scanners ing with crashes, etc. Because the appli-

or

Amicus Attorney f two very impor- come factory installed with Paperport ain s cesd r h nent t s

c t o i a c s e ove t e I t r e , i i

at esn. is, t cen okd

tn raos Frt issresloe r. hs ot

softwa e T i s f ware runs the scan- ial o

ava l b e t you at the home, at the

the neatest. (I m not talking straight ner and saves the scanned document in f i e r t n t e nternet access

ofc,o a ayohr I

lines and clean edges here, I m talking pf r a . h s d

"d"fo m t T i p f format is the cre- on.

pit

ht o l o k n ! ) e o d

"wow , ta s c o l o i g " S c n , even to f

a i n o A dobe Systems, and has tlz

I u i i e Jurisearch.com as an ASP,

huh t s

t o g i i a W indows program, it r l c-

become the industry standard fo e e r l y ai

and as the source fo a l m C l fornia

r ve i e t s r a e

d i s l k i wa c e t d fo t er h tronic document images, much like jpeg codes and case law. My one account

n te rs t s ipe

Macintosh. I o h r wo d , i i s m l s

ifor photographs. The pdf documents number allows me access the

or

f un-savvy computer users like me to r , n u n n exe s a t f h a

a e i t r , i d d a p r o t e p r- Jurisearch system from any Internet

s.

ue ae ie ihn u ae

ticular matter s c s f l w t i o r c s browser. Once online, I can then type

Case management software has management software. The beauty of in "jurisearch.com," plug in my user

ow

come a long way. N single softwa e r hs rcs s ht

t i p o e s i t a every document in name and password, and research away.

products include contact managers be

my practice is view a l by computer. rig t h fie r t

When I am wo k n a t e o f c o a

s, ofit

(i.e., computerized Rolodexe ) c n l c o n o ev ew my

F r example, if I wa t t r i home and I need to pull cases or

of interest checkers, document archiv- let r o

c i n s interrogatory answe s I d n t statutes, or run some cite checks,

ing, calendars, call tracking and nota- o e r eve t e p y i a f l a d

have t r t i h hscl ie n s ut os lc

Jurisearch.com i j s a m u e c i k

tions, time and billing functions, file turn to the document, I just click on the a way. No longer do I need to lug a trunk

summaries, file histories, and so on. I file on the computer, and poof, the docu- load of law books home. Speaking of

had always considered myself to be a ment appears on my computer screen! o ogr

books, because of Jurisearch I n l n e

fairly efficient practitioner. Case man- The magic of document imaging really a r

p y fo expensive paper code and case

agement software has made me even shines through when telecommuting. subscriptions.

more efficient, and that includes my h nie ie aie n y fie s t

Teetr fl cbnti m ofc i a

home life. Merging my work schedule my disposal at home. Bringing It Home So I Can Be At

with my personal schedule is now a r eas

Home. I became a lawye b c u e I l ove

piece of cake. No longer do my wife Sixth: The Internet. Thanks to the r. r

the wo k I wo k for myself in a small

and I go back and forth with phone Internet, my home office can be any- i m e a s t l ows me greater flex

fr bcuei al i-

al n oti oe

c l s a d p s - t n t s for family to-dos hr ht a id nent ces

weeta Icnfn Itre acs. I iiy hn ol r pc n ag

b l t t a I c u d eve ex e t i a l r e

and activities. I simply pow er up the have already extolled certain of the im in o o a col o ht

fr.Idd tg t lwsho s ta I

home computer, check my Amicus virtues of the Internet while discussing o l e l ve o y e k t h f i e

cudb asa t m ds a teofc.

n i l n ew

Attorney calendar, a d f l i n fam- GoToMyPC and cable modems. There s r o ep epe o

I became a lawye t h l p o l , d

ily dates with my wife at home. Also more. Frequently I find myself wa t niig r h t i d ew

w o k t a I f n r arding, and make

gone are the days of maintaining n iprs r itn n oe om.

i arot,o stigi htlros enough money to buy a home and sup-

stacks of legal pads filled with notes W ith the internet and remote assess port my family. Computers and

or

f the work that I do at home. When I technology I can log onto the office telecommuting help me to enjoy the

am working from home, I have r a el computer and make productive u e o s f ral at f i , n e

more comfo t b e p r s o l fe a d l t

time case management and billing this time (plus the blackjack softwa er e ie o ut ite i oe hn

me fe l l k I g t j s l t l b t m r t a

records because I am recording all of that I have on my laptop can make that I had originally hoped for (or perhaps

my efforts into the case management $9 dollar airport burger just a bit more l ows me to suffe a l t l b t l s ) s

al r ite i es.



Spring 2005, No.2 Page 22 ACFLS Newsletter

more than the basics:

what vocational evaluations

can do for you

by

1

Betty Kohlenberg, M.S.





ocational evaluations in A number of Family Code sections indi- ht h l b

t a s e s able to earn we l a ove t eh



V ai

C l fornia family law cases

accomplish two basic func-

tions, but their influence on successful

cate a second important intended out-

come of a vocational evaluation: provid-

n

i g vocational planning when it is

median wage in his county and wants

you to make sure his support leves

elc i e i g . r h e l s i ?

l

r f e t h s fe l n s A e t ey r a i t c

case conclusions can be much broader necessary. S c i n 4 2 ( ) c l s fo t e

eto 301 al r h lao a el

The eva u t r c n t l you and him

than envisioned in the Family Law consideration of the possible need fo r whether his assessment of her earning

Code sections that establish them as a retraining or education of the support- capacity is confirmed by the employe s r

useful part of resolving marital dissolu- ed spouse. Section 4331(d) requires that r s pcl

in the area. The answe i n t s e u a-

in.

t o s Vocational evaluations can make t e eva u t r b ex e t i " n e v ew -

h lao e pr n itri tion, but is based on labor market

a

the attorney s job much easier, c n ing, administering, and interpreting research.

reduce conflicts between the parties et

t s s for analysis of marketable skills,

and can improve the emotional and

financial health of the evaluated party.

formulating career goals and planning

courses of training and study." Te h

¥sexpressed in 20 calls each week to

The wife whose anxiety about her life

i

evaluator must have knowledge of edu- u fie

yo r o f c . Want her to calm down?

lain let ad t

A vocational eva u t o c i n s i i cation and training programs in the Send her to talk about her prospects

et

bs: area with costs and time plans for these with a vocational counselor who will

The work we did together wa s programs. The supporting spouse may r no

expect her to put some effo t i t

h is ie

t e f r t t m I ever got to think be required to pay fo t e c s s o s c a

r h ot f uh onl raig

j i t y c e t n a vocational plan.

ne o o

about what I wa t d t d . You pa.

ln Being active in deciding about her

really pushed me to go for what I e lae es f

future will give h r a c e r r s n e o

w anted; our talks were the best In accord with these Code sections and .

who is controlling her life

u r

part of the divorce. Thank yo fo standard counseling practice, a voca-

your help and support. toa pa

inl ln ¥ at home whentellschildrenhaveto

The mother who u I

yo , "

¥outlines the steps needed to achievea be the get

The Two Basic Functions of ctoa ol

vo a i n l g a , home from school so they will be prop-

Vocational Evaluations ¥compares sources of training and spe- s h

erly supervised. That wa t e

cific programs, if needed, and arrangement we made when we g t o

The first outcome of a vocational eva u- l ¥includes costs, duration and identifica- ow

married and that s h I m raising our

ation is the determination of the eva u- l in f oeta ares o ucs.

to o ptnilbrir t sces hlrn a r i l h r 8"

c i d e . I c n t wo k t l t ey a e 1 .

ated party sw age earning capacity. l e h l r n u fe f h

W i l h r c i d e s f r i s e works?

The vocational evaluator concludes The Family Code and Beyond: Vocational counseling, a professional

that a particular range of earnings More Benefits of Vocational assessment of any special needs of the

rfet tebs ftbt

e l c s h e t i e ween the individ- Evaluations children in accord with Section

a ris kls blte, piue,

ul s t a t - s i l , a i i i s a t t d s 4320(2)(g), and some reality testing

physical and psychological capacities, Bringing a vocational evaluator into the about finances will help this mother

le n h f

interests and va u s — a d t e o ferings divorce case from either side can help make her decision based on whether

ial os n hi aais f

ava l b e — j b a d t e r s l r e — o the attorneys, especially in communi- h a f

s e c n a ford to stay at home and

r pc

the current local labor market fo s e i- aig ih ifcl let.

c t n w t d f i u t c i n s A voca- what her options are. Statements like

id s h s a n-

f e vocational alternative . T i e r inl

t o a evaluation will help in each of eig,

these are often based on old fe l n s

ing capacity can be used instead of actu- these familiar examples. current fears and the uncertainty of

al income for support determination, her future, rather than on immutable

according to Family Code Section 4058

b,

() for an imputation of income.

¥ orked in 20 whose but whohainsists

The husband

w years

wife s t n values. Let a counselor help her and

u

yo .



. s et

1 M . B t y Kohlenberg is the principle of Kohlenberg & Associates Vocational Counceling Services in San Francisco.





ACFLS Newsletter Page 23 Spring 2005, No.2

4320(2)(g), and some reality testing

about finances will help this mother able to work as a plumber but could be a h o erh f rs sn eto

t e j b s a c e fo t , u i g S c i n

make her decision based on whether aaea. ctoa

p r l g l A vo a i n l evaluation can 3558 to require "good faith attempts at

h a f

s e c n a ford to stay at home and what include an assessment of the impact of job training and placement."

her options are. Statements like these physical or mental health factors on

are often based on old feelings, current anns n hud drs h su f

erig,adsol adesteisei r

Standards fo vocational evaluations

fears and the uncertainty of her future, ihr pue rns t no h upr

ete sos big i it tespot it r

now exs fo your use in appraising the

le. e

rather than on immutable va u s L t a determination process. u e. ml ru f

evaluations yo s e A s a l g o p o

counselor help her and yo . u Northern California vocational evalua-

¥ spouse whose earnings have never

The

matched the educational background

os

t r formed Bay Area Vocational

Experts (BAVE) in 2003 and have writ-

¥or tspouse,whoosays,to"I mktooAdepresseds

The

o i k o l ] wo . n t e e

[ o sc t od r d hr or who reports earning far less than in ten VO C ATIONAL EVA L U ATION:

nothing out there I can do anyway ro as s t h cnm r s t

p i r ye r . I i t e e o o y o i i STANDARDS of PRACTICE in

wt m lmttos" I ti hat

ih y iiain. s hs elh willful suppression of income? Yo lul C l fornia Family Law.2

ai

issue large enough to have an impact on e be o pan t o

b a l t ex l i i t your client and

earning capacity? The same illness ln l f

p a for appropriate support levesi s r

The chart below i p ovided to give you

e e i h a n n s t i fe

may interf r w t e r i g a d f r- u s

yo a k a vocational evaluator both to y o

an easy wa t explain what will hap-

n eves r i s m l r o s o e n

e t l l fo d s i i a j b . S m o e look at the economy of a job and an e n

p n i a vocational evaluation to your

with mobility impairment may not be industry, and to assess the adequacy of let

cin.







VOCATIONAL EVALUATION PROCESS

for

DETERMINATION of WAGE EARNING CAPACITY

In California Family Law Cases



ACTIVITY PURPOSE RESULTS

DIAGNOSTIC ¥Explain vocational process ¥Diagnostic knowledge

INTERVIEW ¥Collect basic information ¥Client involvement in evaluation process

¥D iagnose vocational assets and deficits and ¥Client assignments for self-assessment and

motivational factors n

i formation

¥Identify transferable skills



VO C ATIONAL ¥Obtain objective measurements of interests, ¥Confirmed transferable skills

TESTING kls piue, ci r le

s i l , a t t d s a h evements and wo k va u s ¥Potential vocational alternative

s



IDENTIFICATION ¥Interpret test results and consider client feed- ¥S e i i j b t t e fo vocational exploration

pcfc o ils r

o VO C ATIONAL

f back ¥Increased client self-awareness and self-confi-

OPTIONS ¥Consolidate subjective and objective findings dence

t i e t f v a l vocational options

o dniy ibe ¥Assignments for client research activites



LABOR MARKET ¥Explore job availability, current and potential ¥Current data used to determine wage earning

RESEARCH r eetd os n

w ages, entry methods fo s l c e j b i capacity

appropriate geographic area



W AGE EARNING ¥Summarize individual earning capacity, it

ne- ¥Objective ve i i b e expert opinion of wage

, rfal

CAPACITY ANALYSIS grating client background and labor market earning capacity

and REPORT conditions



VO C ATIONAL ¥Outline specific activities, resources, costs and ¥Clear, concise individual plan to reach maxi-

R E C O M M E N D ATIONS timing to achieve vocational objective mal employment



hebr, 05

' Betty Kolneg 20 SIATED TIME: 10-15 hours

ETM





. o oy f h

2 Contact Betty Kohlenberg, Kohlenberg & Associates in San Francisco, at 415-665-6902 or w w w.bkohlenberg.com f r a c p o t e Vocational EVA L U A-

TION: STANDARD of PRACTICE.



Spring 2005, No.2 Page 24 ACFLS Newsletter

AB 19 (continued from page 11) noe h s s u t e n i a i n h t h r s o a i n-

udn. ...Ti i afrhridcto ta teei n rto

Both SCA 1 and ACA 3, beyond being on the wrong side of his- l ai

a b s s for denying marriage to same-sex couples.

tory, are to be rejected unworthy and insupportable attempts

to shamefully clamp intolerance, denial of due process, dis- The Family Law Bar is particularly interested in the develop-

crimination and unequal treatment under the law into our l-en f

ment of laws that ensure the safety and we l b i g o

precious California Constitution. ai ri

C l fo n a s families and children.



n 98 h ai 14)

I 1 4 , t e C l fornia Supreme Court in Perez v. Sharp ( 9 8 W ith our unique view of the societal changes that have been

32 Cal.2d 711 courageously and farsightedly led the nation in taking place within our families, Family Law attorneys well

hn

striking down our state s t e existing (and now unthinkable) understand that the typical family is no longer one mother,

law banning interracial marriage. one father, and two or three children of the marriage.



n erset t s icm rig n h

I r t o p c , i i d s o fo t n i t e extreme to note that ri, n h ags iis o h mlet

Throughout Califo n a i t e l r e t c t e t t e s a l s

C l fo n a Civil Code Section 60 at that time actually provided

ai ri hamlet, thousands of single mothers and fathers (gay and

that: All marriages of white persons with Negroes, Mongolians, straight) are raising children in one-parent families.

members of the Malay race, or mulattoes are illegal and vo di.

In Los Angeles County alone, close to 50% of all family law

t s o as ht ai ri

I wa n t for another 19 ye r t a C l fo n a svanguard posi- proceedings are paternity actions where the parents neve r

tion became the law of the land: in 1967, the United States married at all, as opposed to dissolution of marriage or legal

rii 16) 8 .. tuk

Supreme Court, in Loving v.Vi g n a ( 9 7 3 8 U S 1 s r c separation proceedings.

down all such repugnant state anti-miscegenation laws as

violative of the equal protection clause of the United States There are thousands of blended families where parents are

Constitution. raising children together from previous marriages.



ol

F l owing in that same trailblazing leadership spirit, AB 19 Thousands of grandparents are raising their grandchildren.

once again extends to California the opportunity to lead the

nation in doing the right thing in embracing tolerance and A dd to that mix the approximately 70,000 children in

f

inclusiveness by a fording due process and equal treatment ai

C l fornia alone who are being raised by same-sex couples.

under the law to all persons.

t o l f hs ocle o-rdto

As a society, weow e i t a l o t e e s - a l d n n t a i i n-

Just this month, in an historic decision, San Francisco ally raised children to ensure as best we can that the house-

n odn ht

Superior Court Judge Richard A. Kramer, i h l i g t a r asd r s tbe s osbe

holds in which they a e r i e a e a s a l a p s i l .

ai ri

C l fo n a s ban on same-sex marriage is not rationally related

to any legitimate state purpose and that it violates the Equal W e ask that there be no further delay in having AB 19 heard

ri

Protection Clause of Califo n a s Constitution, wrote: by the Assembly Judiciary Committee and that the

t e r

Committee take the lead in bringing the bill to a vo e b fo e

Simple put, same-sex marriage cannot be prohibited solely the entire Assembly and in defeating both SCA 1 and ACA 3.

because California has always done so.

As Justice Louis Brandeis presciently heralded in his dissent

W i h A 2 5 ( f c i January 1, 2005, amending Family

t B 0 e fe t ve n r c o 13) 8 .. 6.1:

i New Yo k I e C . v. Liebmann ( 9 2 2 5 U S 2 2 3 1

Code Section 297.5, California Domestic Partner Rights and t s n f h a py n i e t f h

I i o e o t e h p i c d n s o t e federal system that

t f 0 3 , u t t e i l t r a i h f l-

Responsibilities Ac o 2 0 ) o r s a e l g s a u e h s r g t u ige orgos tt a

asnl cuaeu Saemy...sr a albrtr; e ve s a o a o y

y

l extended to same-sex couples many of the state rights l oil

and try nove s c a experiments without risk to the rest

r,

attached to marriage; how eve no matter how good, AB 205 f h onr f h ih f esn

o t e c u t y . . . I we would guide by t e l g t o r a o

is not the same as marriage. w e must let our minds be bold.



As Judge Kramer vividly further Constitutionally under- rs ht

W e t u t t a you will find these thoughts useful and con-

crd n i uig

soe i hsrln: u r ei

structive and we thank yo for considering same and fo r g s-

tering our support of AB 19 and opposition to SCA 1 and ACA 3.

The idea that marriage-like rights without marriage is ade-

quate smacks of a concept long rejected by the courts: sepa- W e genuinely look forward to cooperatively working with

ae u qa. n

r t b t e u l I Brown v. Board of Education of Topeka .. . you in aid of our mutually desired goal of enlightened, effec-

the Court recognized that the provision of separate but equal i

t ve, and fair Family Law legislation, and your consideration

educational opportunities to racial minorities generates a n neet n aiy a s icrl prcae.

aditrs i Fml Lwi sneeyapeitd ...

eln f n

f e i g o i feriority as to their status in the community that

may affect their hearts and minds in a way unlikely to be Thank You



. s et

1 M . B t y Kohlenberg is the principle of Kohlenberg & Associates Vocational Counceling Services in San Francisco.







ACFLS Newsletter Page 25 Spring 2005, No.2

Welcome to Our New Members

Michele M. Bissada Diane J.N. Morin Michael A. Carlovsky

Flicker & Kerin, LLP 2211 Park Blvd 01 ai

5 0 C l fornia Ave #218 George N. Seide

120-B Santa Margarita Ave Palo Alto, CA 94306 Bakerfield, CA 93301 16055 Ventura Blvd #712

Menlo Park, CA 94025 650-473-0822; Fax: 650-473-0812 661-861-8540; Fax: 661-861-6046 Encino, CA 91436

650-289-1400; Fax: 650-838-9250 morin@batnet.com carloskylaw@highspeedca.com 818-981-8810; Fax: 818-981-8810

mbissada@flicker-kerin.com Santa Clara County Kern County george seide esq@sbcglobal.net

w w w.flicker-kerin.com w w w.adelman-seide.com

San Mateo County Karen L. Dixon Kathryn M. Fitzgerald Los Angeles County

Dixon Robbins & Associates Fitzerald & Green

Jennifer Crum 1301 K St #F 1010 E Union St #206 Kathleen S. Amos

Hanson Family Law Group Modesto, CA 95354 Pasadena, CA 91106 1067 C St #101/PMB 142

411 Borel Ave #440 209-529-0969; Fax: 209-524-6431 626-449-8433; Fax: 626-449-0565 Galt, CA 95632

San Mateo, CA 94402 armstrongdixon@sbcglobal.net kf22@earthlink.net 209-745-1470; Fax: 209-945-1115

650-524-2144; Fax: 650-524-2141 w w w.armstrongdixon.com Los Angeles County ksamos@comcast.net

jc@hansonflg.com Stanislaus County Sacramento County

w w w.hansonflg.com Charles J. Morris, Jr.

San Mateo County Bernie J. Kempen Stettner & Morris Name Correction:

Kempen & Company 160 N Glendora Ave #A Gregory W. Herring, Esquire

Rolf D. Lruger 720 13th st #C Glendora, CA 91741 Ferguson, Case, Orr, Paterson &

Flicker & Kerin, LLP Modesto, CA 95354 626-914-2791; Fax: 626-914-3946 Cunningham LLP

120-B Santa Margarita Ave 209-577-1433 Los Angeles County 1050 South Kimball Road

Menlo Park, CA 94025 r.com

attorneybernie@itsove Ventura, CA 93004-2000

650-289-1400; Fax: 650-838-9250 is r.com

w w w.tove Voice: 805-659-6800

rolfkruger@flicker-kerin.com Stanislaus County Fax: 805-659-6818

w w w.flicker-kerin.com gherring@fcopc.com

San Mateo County http://www.fcopc.com









Code §2640 ty contribution to a community asset is Chapter 5 (commencing with Section

continued from page 19 mandatory even if the means by which 5) f at f iiin , r rte

80 o Pr 2o Dvso 4 o awitn

laws. Therefore, arguably the court the property became community is a i

w a ver of the right to reimbursement."

could order reimbursement from all nes hr s la

transmutation; u l s t e e i a c e r The words "the right to reimbursement"

downstream properties to which the i

and specific wa ver of the ⁄2640 reim- i r n o

limit only the "written wa ve " a d n t

original contribution can be traced — bursement right, a purported transmu- the "transmutation" language.

n f ht rpry s h erce"

eve i t a p o e t i t e " n i h d tation of the reimbursable separate The only other possible interpreta-

o e y owned separate proper-

spouse s s l l - property "component" of a community tion of the transmutation language in

t D e t i g ve t e c u t j r s i t o

y. o s h s i h or uidcin asset remains reimbursable. Under the ⁄2640(c) is that the "transmutation" has

eaae sae

over both spouse s s p r t e t t s by language of new subdivision (c), how ev- to be of the specific amount or property

implication? The answer to these ques- r,

e a separate property contribution to subject to reimbursement, and not the

tions is unclear, and nothing in the leg- the other spouse s separate property is n i e s e . f a t r t own that

etr ast I aprywoed

sai

i l t ve history of ⁄1407 addresses the ci s i r f e m-

arguably effe t ve a a wa ve o r i Ii

" gve Husband $20,000 of my separate

su.

ise bursement even if a writing does not funds as his separate property and

Also, the amendment s language dif- pcfcly e

s e i i a l r fer to the section but oth- " hs

intend to change its character, ti

fers from its "community reimburse- erwise constitutes a valid transmuta- ud e

w o l b a valid transmutation but not

ment" counterpart in ⁄2640(b). In par- o

tion of property. Fr example, a deed i r. f h r

a wa ve I t e e was a comma in the

t c l r, it omits the phrase that reim-

iua r n ferring property from one spouse s

tas l owing "wa ve " t e " f

sentence fo l i r, h n o

bursement is mandatory "unless a party e

separate estate to the other spouse s s p- the right to reimbursement" would

i r f h ih

has made a written wa ve o t e r g t arate estate would probably result in no limit both the "transmutation" and the

to reimbursement or has signed a writ- reimbursement under this language, i

"wa ver" language. But there isn t, mak-

i g t a h s t e e fe t o a wa ve "

n ht a h f c f i r. whereas such a deed transferring prop- ing it more arguable that the first inter-

Instead, it says that reimbursement ry no

e t i t community property does not pretation is correct, absent some legisla-

must be ordered "unless there has been relinquish the separate property reim- i lrfcto. n n n , h ew

t ve c a i i a i n I a y eve t t e n

a transmutation in writing pursuant to bursement right. This interpretation subdivision is much less protectiveo f

Chapter 5 (commencing with Section seems consistent with the way the sen- the reimbursement right it creates than

5) f at f iiin , r rte

80 o Pr 2o Dvso 4 o awitn tence is phrased: that reimbursement r h

⁄2640(b) is. We will be watching fo t e

i

w a ver of the right to reimbursement." shall be ordered "unless there has been a appellate court s application of the

Reimbursement of a separate proper- transmutation in writing pursuant to amendment in upcoming cases. s



Spring 2005, No.2 Page 26 ACFLS Newsletter

Reflections on the Human Side of Family Law Practice





One Family Lawyer’s

Perspective on Judges

Heidi S. Tuffias, J.D., CFLS, Director South

Brentwood (Los Angeles)

tuffias@aol.com • www.familylawsolutions.com



.

7 Nearly everything the lawyer and tionship with Judges — wel ove them

Heidi Tuffias has been a

Certified Family Law Specialist i

Judge say to each other will be aval- when they go our way; we hate them

since 1995. She practices in b e r ev ew

a l fo r i in perpetuity in the ue gis s oe f s

when they r l a a n t u . S m o u

s l

Brentwood. Heidi enjoy a l rncit

court reporter s t a s r p . attempt to please them, to be the

aspects of family law and .

8 Judges and lawyers will not always e. l r o usat

Judge s P t We a l t y t o t m r

ned o e r r

i t n s t b a family lawye fo

r ntne

say what they mean, fo i s a c : rnil o

them. Some of us are defe e t a t

a long time.

. r a s Your Honor,

a If the lawye s y , " them. Some of us rebel against them.

h

wit all due respect " he or she ht h

Some of us actually believe t a t ey

he relationship between Judges means "Your Honor, u ryo e r ut eua epe

aejs rglrpol.



T r s etil

and lawye s i c r a n y a

rd

bizarre and complicated wo l .

If I described the lawyer/Judge relation-

.

b If the lawye sy, "As you ve r a

wrong."

r as

in our papers " he or she means,

ed

Whatever we think of Judges, how

w e deal with them (in reality and the

ugs ht i

J d e t a l ve within ourselve) s

ship to someone from another planet or Cery o ed r o

" l a l you have n t r a o n t makes a difference in our and our

ud on ite

another time, it wo l s u d a l t l understood our papers." let i s id t r i f c l n

c i n s l ve. I fn i ve y d f i u t a d

ie hs

lk ti . r as I a

c If the lawye s y , " h ve a n artificial to communicate with Judges

appointment this afternoon," he within the rules. I have spent my pro-

Relationship Rules r h en, I a

o semas " cntpsil osby esoa i erig hn ht h

f s i n l l fe l a n n . I t i k t a t e

spend the lunch hour listening to ue f

r l s o evidence make no sense. We

.

1 The Judge decides when and if the y let"

m cin. w ant our Judges to use their experience

lawyer can speak. . f ug as Pes, oe o

d I aJdesy, "lae cm t and wisdom to make good decisions.

.

2 The lawyer is supposed to only pres- i e a . e r h en, I o

s d b r. " h o s e m a s " d n t Shouldn t we trust them to decide what

ent things to the Judge which fall u n rn f

w ant to embarrass yo i f o t o n

i formation is reliable without a litany

within the rules stated in a book u let u

yo r c i n b t . . ." of arcane rules designed to help a jury of

ald h ai

c l e t e C l fornia Evidence Code . f ug as I m on o ae

e I aJdesy," a gigt tk lay people distinguish between the

which uses phrases such as "the truth this matter under submission," he ud ie o

guilty and innocent? I wo l l k t

f h atr ttd.

o temte sae" r h en, I m ite fad

o semas " a altl ari come into court (at a more decent hour

. r o u h

3 The Judge has the pow e t p t t e u let s on o o

of what yo r c i n i g i g t d than 8:30 a.m.) and sit around a table,

r n al

lawye i ji. f ue rm h ec.

i Irl fo tebnh" with the Judge, counsel, the clients and

.

4 The lawyer may or may not agree . f ug as Cusl

f I a J d e s y , " o n e , you have u s f o fee and have a chance to

cp o cf

with the things that he or she is say- clet o " e r h

done an ex e l n j b . . . h o s e rin f elt

explain my ve s o o r a i y. A p a elc

ing to the Judge but that will not means, "I am about to rule against ect

where everyone is imperf and

f r as o h

afect what the lawye s y t t e u"

yo. crd o n s a r od hr s

sae,n oei bdo go.Teei

ug.

Jde just a family with problems and a

.

5 The Judge expects to hear "many dif- Judges. Wel ove them, we hate them, y o o ve

bunch of different wa s t s l them.

f erent truths" regarding any one set of w efear them, we gossip about them. f

You knew i you read this column

circumstances. l a u

W e a l h ve o r own relationships and ud ial e

long enough you wo l f n l y s e a

.

6 The lawyer may only see the Judge ideas about Judges. Our feelings lg r D . e e t s ant ep

p u fo A R H r i i . I c n o h l

rm :0 .. o 20 .. r :0 ..

fo 83 am t 1:0pm o 13 pm ow r s h m f e , e a e o

t a d t e , o t n r l t t every- t h n h t o fee and a round table

i. Itikta cf

to 4:30 when the Judge is also sched- thing but them. Some of us use them to n i s t h a e eve

where everyo e s t a t e s m l l

e

uled to see betwe n forty and one hun- exorcise our issues with authority and ltrly n iuai l) s h

( i e a l a d f g r t ve y i t e wa ty o

dred and twenty other people. r. o e f s a ove h t e a-

pow e S m o u h ve a l - a e r l o

g. s



ACFLS Newsletter Page 27 Spring 2005, No.2

Membership application

mnsrtr

Patricia A. Parson, ACFLS Ad i i t a o ¥ 84 n l ey, ai

1 8 K ox Street, Castro Va l Clfornia 94546

drs.

Membership applications should be mailed to the ACFLS Administrator at the above a d e s

l owing information and enclose your check payable to ACFLS as fo l

Please complete the fo l l ows:

u im

$200 for single membership; $150 for each subquent membership from yo r f r .



Firm:



Name:



des

Ad r s : City/State/Zip:



Telephone: Fax:



-al

Emi: b ie

W e St:



Date Certified by BLS: SBN:



Signature:









2005 Board of Directors

President: Secretary: Director South: Director at Large l ey

Central Va l Chair:

Ronald K. Lachner D. Thomas Woodruff ed . fis

H i i S Tu f a Sacto/NE: David J. Borges

Los Angeles County Sacramento County Los Angeles County H. Vincent Jacobs Tulare County

562-420-6164 916-920-0211 310-473-7250 Sacramento County 559-733-0517

a:

F x 562-420-9984 a:

F x 916-920-0241 F x 310-473-2789

a: 916-923-2223 a:

F x 559-733-0569

email: ron@lachnerlaw.com email: tom@woplaw.com email: tuffias@aol.com a:

F x 916-929-7335 email: alawbiz@aol.com

email: vjacobs@hjrl.com

President-Elect: Secretary-Elect: Director South-Elect: Legislative Coordinator:

Ronald S. Granberg izr

Sandra L. Schwe t e Ronald K. Ziff Director at Large- oeh . el

Jsp J Bl

Monterey County Butte County 310-342-2818 North: Nevada County

831-422-6565 530-879-0300 F x 301-342-2825

a: Esther R. Lerner 530-272-7477

F x 831-422-5550

a: F x 530-879-0350

a: email: rkzggz@sbcglobal.net San Francisco County a:

F x 530-272-7340

email: ron@granberglaw.com email: 415-391-6000 email: attorney@bellslaw.com

sandy@chicofamilylaw.com N ewsletter Editor: a:

F x 415-391-6011

Treasurer: Leslie Ellen Shear m i :esther@cafamilylaw.

eal com

Joan S. Bauman Director North: Los Angeles County Technology

San Luis Obispo County va . ol

Vi i n L H l ey 818-501-3691 Director at Large- Coordinator:

805-772-1925 San Francisco County a:

F x 818-501-3692 South: Frieda Gordon

a:

F x 805-772-7061 415-474-1011 email: lescfls@earthlink.net Sherry D. Graybehl Los Angeles County

email: joanbauman@aol.com F x 415-441-8102

a: Orange County 310-829-7220

email: vholley@creative.net N ewsletter Editor-Elect: 949-608-6900 a:

F x 310-829-2490

Treasurer-Elect: Sharon A. Bryan a:

F x 949-608-6994 email:

J

Roger M. Keithly,r. Director North-Elect: 310-540-8855 m i :sgraybehl@ferruzzo.

eal com friedag@cooper-gordon.com

San Diego County Michael B. Samuels a:

F x 310-316-1307

858-485-0652 Marin County email: Director at Large: Past President:

a:

F x 858-485-1762 415-258-9064 sharon@mbslawcorp.com r

Sterling E. Mye s Dawn Gray

email: rogkeithly@aol.com a:

F x 415-258-9074 Los Angeles County Nevada County

email: mbsamuels@msn.com 626-445-1177 530-477-5574

a:

F x 626-445-2085 a:

F x 530-477-5578

email: stermyers@aol.com email: dgray@ix.netcom.com









N EW S L E T T E R



i r,

Patricia A. Parson/Lynn Pfefe

ACFLS Administrators

tet

1884 Knox S r e

l ey, CA 94546

Castro Va l