Negotiating Spousal Support Payments in Marital Dissolution

My last post was a broad overview of the issue of spousal support in marital dissolution.  Now, I want to look more carefully at the practical ways of determining amount and duration of permanent spousal support.

In most divorce cases that I have seen, arranging the details of permanent spousal support is a top priority for the parties themselves.  This is certainly understandable, given that parties are keeping a watchful eye on their immediate needs:  the Payor, who will be writing the check, is likely thinking about the money needed to cover it, whereas the Recipient, who will be using the check, is likely thinking about its sufficiency for minimum, necessary expenses.  In my role as a Temporary Judge, I tend to look beyond such immediate concerns to broader considerations, such as expected passages in life, the expectations for adjustment of support in the future, and the overall ability of each party to deal with the on-going requirements of life, work, and self-support.

Furthermore, parties often want permanent spousal support to proceed in the very same way that temporary support was handled—i.e., they want to put income figures into a computer and have software determine exactly how much they can expect to pay and receive.  Unluckily, however, the law says that the Court CANNOT use computer generated calculations for permanent spousal support (but MUST use such calculations for child support!)

So, when it comes to working out the details of permanent spousal support, parties have no other choice but to rely on their own negotiating efforts in settlement discussions.  For some, this may be the bad news.  For others, this may be the good news since the parties do indeed get to make their own choices in dealing with this important matter.

This is not to say, however, that parties must ‘invent the wheel’ in this regard.  In general, there are two major frameworks for managing amount and duration of permanent spousal support:  1) ‘automatic’ application of predefined conditions, and 2) future determination by the Court.

1)   ‘Automatic’ Application of Predefined Conditions

Parties can establish a negotiated set of definable and observable criteria for either or both payment and jurisdiction.

In this instance, the parties define the conditions for payment and/or any modification thereof, and then the Court simply mechanically enforces these conditions, without judgment.  For example, the parties might agree that there will be no modification of spousal support unless Payor has a reduction in income of at least 10% of the last year’s income, for at least six months.

2)   Future Determination by the Court

Parties allocate to the court at some time in the future the responsibility to determine modification of either payment or duration if parties themselves do not reach agreement on one or both of these.

The court will then make its determination either by

1.  applying the normal, legally defined criteria from case and statutory law [i.e., no guidance will be given in the documents; the court simply applies the law,]

or by

2.  using party-defined criteria on the still financially related former spouses.  For example, the parties themselves might stipulate that support will terminate absolutely if Recipient is residing in a quasi-marital relationship with a member of either sex, whether or not that relationship decreases the need for support.  [NB:  current statutory law requires that the cohabitation must be with a member of the opposite sex, and merely provides a presumption of decreased economic need.]

No matter which of these frameworks parties use, they and their attorneys will also have the following common patterns to consider for matters of payment and duration:

1.   Pay the computer-generated support amount that had
been determined for short term, temporary support. 

Though the Court, by law, cannot use computerized calculations to determine permanent spousal support, the parties themselves may do so if they wish.

Note, however, that the formula used to determine temporary spousal support is based on the assumption of a single earner household, which may not be relevant for all households.

2.   Pay a support amount that is based on expectations of some specific performance of the Recipient in the future, such as completion of school, increased earnings or the achievement of some other, financially significant milestone. 

Parties who choose this “conditional plan with consequences” must also recognize that it requires a lot of effort and ongoing involvement of the former spouses to address such matters as these:  supervision of performance; proof of accomplishment of required conditions; accuracy of the future predictions and thus, compliance with the entire plan.

Parties contemplating this plan should answer these questions:  how will the risk of inaccuracy be equitably allocated to both parties?  Who suffers if a condition is not met?

3.   Pay a support amount that is based on returning each
party to the appropriate Marital Standard of Living (MSOL). 

Under this plan, the Recipient would see a basic Smith/Ostler percentage increase in support if the Payor’s income improves post-judgment.  Such an increase, however, is usually capped at the designated MSOL (including all earnings of the Recipient).

4.   Custom-design a support payment plan such that the initially-agreed upon support amount adjusts (i.e., changes) in a predetermined way once certain imminent conditions occur.

A custom designed support plan might work like this:  the parties bargain for a step down in support as soon as a care-giver obligation ends for the Recipient; or upon the Recipient’s receipt of an expected inheritance; or when a closely held company finally goes public, thereby multiplying the value of divided options.

*     *     *     *     *     *     *     *    *     *     *     *     *

In the end, there’s just no way around it:  making arrangements for permanent spousal support gives one much to consider,  no doubt more than many parties initially imagine.

The next post will offer one more installment in this series on permanent spousal support, looking more closely at the limitation of the Court’s jurisdiction and support payment termination.

©2011 James Frederic Cox

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Posted in Education About Dissolution, Family Law, Spousal Support | Tagged , , , , , ,

Marital Dissolution and the Issue of Spousal Support

Parties in a marital dissolution often regard the issue of spousal support on par with that of child support.  From a legal perspective, however, these two kinds of financial obligations are quite different.  Child support is required to be paid according to a state wide formula if one party asks for it, and no party can be prevented from making such a request.  Long Term or Post-Judgment spousal support, on the other hand, is not allowed to be set by a formula and so, parties typically engage in extensive negotiations to determine support arrangements.  Should these negotiations fail, it is likely that the Court will make its own binding determination.

The Court has considerable discretion when it comes to determining the amount and duration of spousal support, even to the point of denying it altogether.  The way the Court
exercises discretion, however, will always depend on the specific facts of a case and on the criteria contained in FC 4320 and in other statutes, especially those pertaining to the parties’ “marital standard of living” (MSOL) and to each spouse’s post-judgment ability to be self-supporting.

Before proceeding further, allow me to distinguish between two types of “spousal support,” temporary spousal support and permanent spousal support.

Temporary spousal support refers to payments one spouse makes to the other from the date of separation until the date a judgment on Long Term Support is issued.  Generally speaking, the Court uses a formula to determine the amount of temporary spousal support.  Notably, the formula commonly used in California is the one that was created by the Family Law Courts of Santa Clara County.

Permanent spousal support, on the other hand, refers to the long term, post-judgment payments that one spouse makes to the other.  In this situation, the courts have ruled that one cannot use a formula.  Instead, in determining the amount and duration of permanent spousal support, the Court must consider the myriad of factors enumerated in Family Law Section 4320 and apply these to the circumstances and earning capacities of both spouses at the time of dissolution.  On the basis of such an assessment, the Court
must then come up with an equitable arrangement for permanent spousal support.

The word “permanent” in the expression “permanent spousal support” makes it seem as if this kind of support is, by definition, unending, which is simply not so.  Certainly, it is true that permanent spousal support might go on for a very long time, but there is no specific guidance demanding that it does.  And of course, permanent spousal support inevitably
terminates with the death of either spouse and also, typically, with the remarriage of the recipient spouse.  So practically speaking, “permanent spousal support” does not mean “support in perpetuity,” but rather support that lasts as long as the facts of a marriage warrant or, alternatively, until some point in the future when the Court determines that
the recipient spouse has becomes self-supporting.

In devising equitable arrangements for permanent spousal support, the Court begins with certain statutory presumptions.  In long-term marriages (i.e., marriages of 10 years or more), the Court’s presumption is that permanent spousal support will last until the recipient becomes self-supporting, no matter how long that takes.  In short-term marriages (i.e., marriages of less than 10 years), the presumption from the legislature is that permanent spousal support will probably terminate at half the length of the marriage. So, for example, in a marriage of four years, the presumption is that spousal support would terminate after two years, post separation; in a marriage of seven years, the presumption is that spousal support would terminate after three and a half years, post separation, and so on.

These presumptions, we must remember, are just that:  presumptions, not laws or hard and fast rules.  Depending on the facts of the case, the Court may see fit to order permanent spousal support in increments other than what these presumptions suggest.
So, for example, in a marriage of three years where both parties have continued to work and develop their careers, the Court may see fit to order only 6 months of permanent spousal support, and in a marriage of only 6 months where there is an infant who needs a period of extensive care, the Court may see fit to order permanent spousal support for a full eighteen months.  The Court, in other words, will always be in the position of exercising its own discretion when it comes to the final determination of the length of spousal support.

So if these presumptions alone are not juridical, how exactly do they function for the Court?  The answer here is simple:  they serve as “good rules of thumb,” shedding the light of commonsense and logic on the entire issue of permanent spousal support.  The shorter the marriage, the more likely it is that each spouse will have retained much of his/her pre-marital financial independence and hence, the less of a need there would be, post-judgment, for one spouse to sustain the other financially.  On the other hand, the longer the marriage, the more likely it is that spouses will have developed the expectation of a particular, lifelong income level and standard of living, based on the efforts of a marital unit.   Also, the more likely it is that one spouse will have taken some time off from work
life and thereby, become deficient in marketable job skills.  And so in long marriages, it is logical for the Court to award permanent spousal support on a long-term, even life-long
basis.

When it comes to the procedure of determining an end to permanent spousal support, the legislature has set out the 10 year mark in marriages as a significant turning point.  Below 10 years, the Court presumes that spousal support will have atermination date.  Above 10 years, the Court presumes that spousal support will not terminate until death, retirement,
remarriage or self-support.  But this latter presumption notwithstanding, the Court may still see fit to order termination of permanent spousal support in a 10 year + marriage if it looks at the facts of the case and makes a finding for such termination as a matter of fact.  And, of course, the fact especially relevant here would be the date in the future when the recipient spouse is certain to become self-supporting at or above the MSOL and hence,
no longer in need of permanent spousal support.  This could be achieved by individual earnings, or by a gross estate sufficient to provide for the party’s support, or by some mixture of these two.

Establishing a termination date for permanent spousal support as a matter of fact,
however, is not at all easy to do.  Indeed, in long marriages, a factually-determinable date for the termination of permanent spousal support generally remains out of reach.  Looking ahead at the 2 or 3 years following a divorce, the Court is typically unable to predict with solid, factual accuracy when the recipient spouse will become self-supporting. What this means is that equitable arrangements for spousal support are made at the time of dissolution, and the Court will just have to revisit the issue upon the request of one of
the parties at some point in the future.

In truth, the Court can determine a termination date for permanent spousal support in any way it wants to, so long as it bases its determination upon the finding of the recipient’s ability to be self supporting.  Absent such a determination, the issue of spousal support does not go away and the Court retains its jurisdiction to modify both amount and duration of future payments unless that jurisdiction is specifically terminated or restricted in some way.

Both parties have the right to continue to investigate the financial affairs and earnings of the other, and either can pull the case back to court to litigate for a change in support.  The Payor is always suspect as to her/his earnings and ability to pay, and once the Court has issued a Gavron Warning (In re Marriage of Gavron), the recipient is always subject to the imputation of phantom income if efforts to work have not been up to the level expected by
the Payor spouse.

©2011 James Frederic Cox

Posted in Education About Dissolution, Family Law | Tagged , , , , , ,

Stipulation to Temporary Judge: Three Effects

Once parties in a marital dissolution case elect to work with a Temporary Judge (aka “Private Judge” or “Judge Pro Tempore”) instead of litigating their case publically before a judge sitting in the courthouse, the parties must file with the Court an appointment document known as “STIPULATION AND ORDER RE: APPOINTMENT OF TEMPORARY JUDGE,” or “Appointment Stip” for short.

Broadly speaking, the Appointment Stip is the method by which parties appoint as their judge a licensed attorney who meets the minimum qualifications.  Sometimes such an appointment comes about through a referral by the Court; other times, it results from the parties themselves deciding to resolve their marital dissolution case through less public legal proceedings.  In either instance, the Appointment Stip officially establishes a non-courthouse, Temporary Judge to hear and act on the case.

Because an Appointment Stip is not designed to be a document of basic explanation, it does not clarify the judicial powers that belong to the simple role of “judge.” These powers,
however, are inherent in the appointment of a Temporary Judge.  So, for example, within the scope of the appointment, the Temporary Judge might do case management and calendar changes,just as a courthouse judge might do.  The Temporary Judge might also be required to maintain decorum, refer the matter to additional or alternate processes, and/or comment, if necessary, on both parties’ engagement in good faith to work toward resolution.

The language of the Appointment Stip is quite explicit, however, in its establishment of clear ties between the acts of the Temporary Judge and the judicial authority of the Superior Court. For example, the Stip clearly states at the outset that the Temporary Judge is appointed “to hear and determine … all outstanding issues in this proceeding, as defined herein …, until final determination in the Superior Court.”  The Appointment Stip, thus, makes it clear that the final authority belongs to the Superior Court.  The authority of the Temporary Judge, as defined and limited in the terms of the Appointment Stip, is a surrogate for the authority of the Superior Court.

The Appointment Stip also solidifies the connection between the Temporary Judge and the public authority of the Superior Court in the following three ways:

1.  By agreeing to be appointed according to the terms of the Appointment Stip, the Temporary Judge agrees to be bound to the judicial code of ethics, just as a courthouse judge is similarly bound.  The Appointment Stip, in other words, mandates that a Temporary Judge, just like a public, courthouse judge, cannot be for or against either side.

2.  Absent a clear and specific limitation in the language of the Appointment Stip, the scope of authority for a Temporary Judge, by default, is for all purposes and all issues, which is the same scope of authority as that of a public, courthouse judge.

The Appointment Stip, however, always limits the authority of the Temporary Judge to the
written terms of the appointment, which means that the Temporary Judge will have as much or as little judicial authority as the written appointment accords.  Her/his scope of authority can be unlimited (All Purpose) or limited to a particular issue (e.g., real estate sale), or limited to a type of procedure (e.g., settlement conference or case management).

3. The Appointment Stip provides the Temporary Judge the authority to make binding judicial orders within the scope of the order of appointment.  In settlement, the Temporary Judge is limited to the memorialized agreement of the parties; in trial or a hearing, the All Purpose Temporary Judge is only limited by the procedural due process legal limits that bind all judges in hearing and resolving disputes. This is the same authority as that of a judge sitting in the courthouse.

Whether made by a courthouse judge or by a Temporary Judge, an order, to be valid, has
to meet the legal standards:  it has to be recorded or memorialized by a court reporter or by some other authorized means.  Generally, in non-courthouse settlement proceedings with a Temporary Judge, these legal standards are met by the parties signing a final written memoralization or ‘term sheet’ which is then adopted, through the Temporary Judge’s signature, as the settlement of the parties. Usually, as a final stage, these terms are then written up as a more formal agreement or order, signed by the Temporary Judge, and filed in the court house in the legal case file.

There is, however, a key element of difference here when we look at the issue of jurisdiction.  Whereas a courthouse judge has unlimited jurisdiction to make binding judicial orders, the jurisdiction of a Temporary Judge is limited to the scope of the order of appointment.  As stated before, the Appointment Stip can accord the Temporary Judge an unlimited scope of authority, just like that of a public judge on the bench, or it can limit the Temporary Judge’s scope of authority to specific tasks or issues.

In light of the foregoing, parties who elect to appoint a Temporary Judge should now have a clear understanding of the dominant conditions to which they are stipulating when they sign an Appointment Stip.

©2011 James Frederic Cox

Posted in Court Processes, Education About Dissolution, Family Law | Tagged , , , , , ,

For Comment: Final Versions of the AOC Draft Forms

In my earlier post entitled “New Emphasis on Attorneys Fees” (March 14, 2011), I discussed the new forms for attorneys fees that the Administrative Office of the Courts (AOC) was tasked to implement, pursuant to the recommendations of the Elkins Task Force.

Final versions of these AOC draft forms are now available for comment.  You can easily view them on my website, http://www.privatejudge.org.  Just follow the link in the navigation bar that says “Attorneys Fee Presentation AOC.”  There you will also be able to review the
AOC’s own discussion of these changes.

With these new AOC forms, we do indeed see a significant policy change, soon to take effect (as of 1 January 2012), with respect to attorneys fees in Family Law cases.  An
unrepresented party will be able to request fees in advance for the purpose of
obtaining counsel.  This means that a financially disadvantaged party will be able to request that funds be taken out of the pocket of the other side in order to reduce that party’s available litigation funds and achieve representational parity.  Also, the expense of litigation for both parties will be realized early on and the funds necessary to hire an attorney will be made available more readily to both sides.

I suggest you to take the time to peruse these draft documents either at my website or at the AOC website, http://courts.ca.gov/policyadmin-invitationstocomment.htm, where you can also register your comments.

Please note:  the deadline for registering online comments is June 20, 2011.

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What do “Private Judges” Do?

First of all, full disclosure:  I myself am a Private Judge.  For six years now as a Private
Neutral, I regularly get hired to do Private Judging.  So naturally I am in favor of it, and I will explain why in this post.

But make no mistake:  my positive opinion of Private Judging is also based on my considerable experience in this area.  From 1997 to 2005, I worked as the Family Court Settlement Officer for the Superior Court of Santa Clara County.  In that role, I would see 5 or 6 marital dissolution cases a day and be appointed the parties’ “Temporary Judge” or “Judge Pro Tem” (an older name for “Private Judge”) for the purpose of conducting settlement discussions.   During this period of my legal career, in other words, I worked as a Private Judge many thousands of times.

For this reason, I am in an excellent position to explain both what this work is and what it is not.

A blog I recently read (www.simplyappalling.blogspot.com/2005/06/hire-your-own-judge-youll–help-system.html) implied that hiring a Private Judge to handle a marital dissolution case is something that only the wealthy or the privileged few would do.

This is simply not correct.  Though there are indeed additional costs incurred in non-courthouse proceedings that are not incurred in courthouse trials, these additional costs, contrary to what one might think, almost always result in an overall cost savings for the litigants.

Why is this so?  Because the cost of hiring a Private Judge is more than offset by other kinds of cash savings–and sometimes quite substantial ones at that. (More on this in what follows.)

So Private Judging is not simply “for the wealthy.” Rather, it is for almost anyone whose income or assets exceed the level of “very modest.” It is also for those who want to
control their own solution without being held hostage to or dominated by the other party, and it is for those who  don’t want to engage a private attorney for representation.

In other words, Private Judging is indeed for almost anyone.

So now, let us begin with the basics:  what exactly is a “Private Judge?”

As stated above, “Private Judge” is simply another name for the formal legal job title of “Temporary Judge.” A Temporary Judge/Private Judge (a.k.a. Judge Pro Tempore) is an
attorney who meets specific California legal qualifications and who is appointed by the parties with the consent of the Court.  Within the parameters of her/his appointment, a Temporary Judge/Private Judge generally has the same responsibilities, authority and roles as those of the full time, courthouse judicial officers, including being bound to the judicial code of ethics.

How does one go about hiring a Private Judge?

The appointment of a Private Judge begins with the parties themselves filing with the Court an agreed court order known as a stipulation and order for “APPOINTMENT OF TEMPORARY JUDGE,” or “Stip” for short.   In this Stip, both the type of work and the scope of authority of the Private Judge are clearly defined.

By the agreement of the parties, a Temporary Judge can be limited in jurisdiction to one or more types of issues (substantive) – such as Real Estate Sale, Child Custody, Attorney
Fees, Discovery, Tracing Retirement Accounts, Allocating Stock Option and RSUs,
etc. — or to a particular scope of authority (procedural)–e.g., All Purpose (unlimited) scope of authority, Settlement only, Case Management only, Referee only, etc.

Once parties have embraced an individual in the role of Private Judge, they are committed to using the PrivateJudge according to the stipulated terms of her/his employment.

What exactly does a Private Judge do? 

In general, Private Judges provide neutral, third party input on probable solutions to legal matters.  This input can be determinative and binding, or simply advisory and educational, depending on how the order of appointment is drawn.

Private Judges also have the ability to give litigants and parties practical guidance whenever this is needed or appropriate.   For example, a Private Judge might advise parties about motions, hearing orders, settlement recommendations, and trial and judgment matters.  She/he might provide other kinds of assistance as well, such as assistance with difficulties between clients, between attorneys and even between clients and attorneys.

Drawing on a broad base of experiential antecedents, as well as on possible, unconsidered options within various legal parameters, Private Judges are adept at providing creative
solutions to the legal matter at hand.  The combination of their legal expertise, managerial skill and analytical perspective keeps the adversarial process moving along and on track
to a final, judicially-approved court order.

In short, Private Judges, just like conventional courtroom judges, address the considerations of both sides, but unlike conventional courtroom judges, Private Judges are much more welcoming of party-input when it comes to the crafting of a final agreeable,
compromised solution.  In this respect, parties working with a Private Judge often have more autonomy than they would have in a court trial when it comes to determining a final outcome.

Also, Private Judges are often able to work in a much more timely and efficient manner than a conventional judge would be able to do, simply due to the fact that their case loads are in the tenths of a percentage of those handled by the regular judicial officers.

How much does a Private Judge cost?

Typically, Private Judges charge an hourly rate, in the same manner as other legal professionals.  However, because the cost of hiring a Private Judge is shared equally by both parties, it is usually less than the cost of a representational attorney.

Of course, what one finally pays to hire a Private Judge is always affected by the actual hourly rate and by the services provided.  For example, the degree of the Private Judge’s active involvement, the amount of preparation required and the kinds of formal procedures used (telephone-conference, web meeting, face-to-face meeting) all will bear on the final cost.

Whatever the cost of a Private Judge turns out to be, this cost must always be balanced against the ultimate cost-savings that Private Judging brings.

Private Judges are typically expert in the field of law that pertains to the cases they try.   They are able, therefore, to size up the facts of a case quite quickly and move swiftly from a perspective of conflict to a perspective of resolution.  This efficiency factor saves parties hourly rate costs and lengthy waiting times that are typically associated with conventional courtroom proceedings (e.g. attorneys resolving disputes with filing a motion, and response, which usually takes 2 hours per side; waiting 6 to 8 weeks to get to a court hearing date; waiting around almost half a day for the judge’s attention and then having only 20-30 minutes of hearing time with a Judge whose background is not at all in
the field that relates to the legal matter at hand.)

For motions, the expected savings will be approximately $3000 to $5,000 per side; for contested cases, the savings are usually in the range of 25-33%.

Private Judges also cut down on some other key elements of attorney costs.  For example, they can accept letter of pleadings indicating the issue in conflict and the factual background for this specific case, thereby avoiding formal pleadings and drafting, and saving 2 hours of attorney time.  Private Judges can also engage in a teleconference for a hearing, thereby saving 6-8 hours of attorney preparation and travel time.

And usually, Private Judges have heard the issue at least 50, if not 2000 times before.  But even if they have not, their familiarity with the legal context of the disagreement means that they will be able to address the conflict succinctly and directly, either giving an indicated decision on the spot, or guiding investigation and factual development in a
productive direction.

To summarize…

Almost all people engaged in dissolving a marriage can look forward to these advantages from using a Private Judge:

  • Cost savings
  • Expertise
  • Convenience
  • Privacy / public avoidance
  • Rapidity
  • Greater party autonomy

By providing parties with savings of cost, time and psychological or emotional trauma, as well as with more autonomy in determining the terms of a final divorce agreement, Private Judging is definitely a route that many divorcing couples will want to consider, either
with attorneys or on their own.

©2011 James Frederic Cox

Posted in Education About Dissolution, Family Law, Private Judges | Tagged , , , , , ,

Trust Accounts and PayPal: Caveat Counsel

Allow me to share with you a cautionary story about PayPal and an attorney’s trust account.

In a recent marital dissolution case, by stipulation, an attorney placed the proceeds from the sale of a house in a trust account, for the benefit of both parties.  The account was opened under the attorney’s name and in the social security number of one of the beneficiaries.  It was formally established that authorized withdrawals from this account could be made only on written agreement or by further court order.  As the monthly statements for the account were received, the attorney-trustee routinely sent copies to opposing counsel and to both parties, thereby discharging his fiduciary responsibility.

On one of the monthly statements, the trustee discovered 5 unauthorized transactions, all of which related to a PayPal account that had been connected to this trust account.  There were two de minimis deposits, a subsequent withdrawal of the combined deposit amounts, and several  separate $5000 withdrawals.

Investigation disclosed that all 5 transactions had been accomplished automatically, entirely independent of any bank staff involvement.  The bank, thus, was not at all able to limit this activity.  Apparently all that was needed to initiate these automatic procedures was for someone to provide PayPal with the account number and relevant social security number, and for PayPal to verify the account’s existence through sequential deposits and a withdrawal.

Upon realizing what had happened, the bank promptly re-deposited the funds and changed the account number, but then, strangely, refrained from working further with the attorney about the issue.  Luckily, the funds withdrawn in this instance were small, and did not exceed any possible absolute minimum to which either party could lay claim; but certainly, the situation could have been much worse, given that there had been–and still were–no limits or restrictions to keep further withdrawals from happening.

And so, in wake of this incident, I strongly recommend that both attorneys and client-beneficiaries be very circumspect with trust fund account numbers, and keep a very close watch for unusual account activity.  It is also a good idea to engage in advance with your financial institutions to find out what, if any, provisions are in place to prevent this type of potential problem.

©2011 James Frederic Cox

Posted in Education About Dissolution, Family Law | Tagged , , , ,

New Emphasis on Attorney Fees

At a recent Administrative Office of the Courts (AOC) training session, I and Commissioner Louise Bayles-Fightmaster made a presentation on attorney fees in family law cases.  Commissioner Bayles-Fightmaster served on the Elkins Task Force, and continues to serve on the Task Force implementing committee.   Pursuant to the Task Force recommendations, several changes have been made in the statutes pertaining to, and the practical management of, attorney fees.  Guiding these changes is a strong policy push, as Garrett Dailey puts it, to ‘award fees early and frequently’ in order to ensure parity between the parties and equal access to justice.

To effectuate these changes, the AOC was tasked with implementing a new court rule and brand new forms for attorney fees.  At the AOC training session, draft versions of the new forms were made available for discussion and comment.  Final versions of these forms will be released for comment on 20 April 2011. 

You may view the AOC draft versions of the new forms right now on my website, at www. privatejudge.org.  After April 20, final versions of these forms for comment will also be on my website.  Feel free to take the time to register your comments with the AOC through its web site, http://www.courtinfo.ca.gov/invitationstocomment/acommentform.htm. 

Of particular note is the fact that an unrepresented party can now request fees in advance for the purpose of obtaining counsel. Thus, a financially disadvantaged party will now be able to request that funds be taken out of the pocket of the other side, thereby reducing that party’s available litigation funds, achieving representational parity, establishing early on the cost of litigation for both parties and in the end, coming up with the funds necessary to hire an attorney.

Also important is that the requirement in FC 2032 has been softened so as to allow the court more latitude in dealing with attorney fees in instances of complex litigation.  The court can now clearly authorize the appointment of a CCP 639 Referee to determine the issue of fees.

The substance of the presentation is on my website under AOC presentation if you wish to review it in more detail.

Posted in Attorneys Fees, Education About Dissolution, Family Law | Tagged , , , , ,