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Lexis Nexis Complex Issues in California Family Law - Volume I
The fundamental issues of support, fees and sanctions are becoming increasingly more complex.
Publisher: Matthew Bender Elite Products
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Issues relating to support, fees, and sanctions are basic to most family law matters. In many cases, support, fees and, particularly sanctions, are important and complex, so family law attorneys must be familiar with the underlying public policy, purpose, and philosophy relating to support, fees, and sanctions.
Authors / Contributors
Dawn Gray
Stephen James Wagner
Dawn Gray
Dawn Gray is a Certified Family Law Specialist and sole practitioner. Since 1994, her practice has been limited to contract research and writing on complex family law issues for other family law attorneys. Her clients include family law specialists statewide, as well as various legal publishers, for whom she contributes articles, analysis and editorial review for both statewide and national family law publications including Child Custody and Visitation Law and Practice (Matthew Bender).
Ms. Gray is a past president of the Association of Certified Family Law Specialists. She is also a regular presenter of family law courses. In that capacity as well as in her consulting work, she has contributed to the result in many published family law appellate cases, both on behalf of amici and of parties.
Stephen James Wagner
Mr. Wagner has been a Certified Family Law Specialist since 1981and has been a partner since 1984 in the Sacramento law firm of Dick & Wagner, specializing in complex family law matters, including issues relating to fiduciary duties, characterization, tracings, business valuations, and support.
Mr. Wagner, who entered private practice in 1975, is a Diplomate of the American College of Family Trial Attorneys and permanent faculty member of the ABA's Annual Family Law Trial Advocacy Institute (an 8-day course). In 2006 he was selected as the Southern California Chapter of the American Academy of Matrimonial Lawyers' Family Law Person of the Year. Mr. Wagner has been selected for each edition of Best Lawyers in America since 1987. He is a member of the Hall of Fame of the Association of Certified Family Law Specialists (ACFLS-2003). He has been a speaker for more than 150 CLE programs since 1980.
Mr. Wagner is a coauthor of Complex Issues in California Family Law, which is a 10-volume series written to provide the family law bar and bench with the most in-depth analysis available of the family law issues being addressed. The series comprehensively addresses the issue in question, including its historical origin and modern application, its practical effect on the practice of family law and proposals for a legislative change, if deemed necessary. He is also a consultant to Kirkland, Lurvey, Richmond & Wagner, California Family Law Practice and Procedure, 2nd ed., and a regular contributor to the California Family Law Monthly.
He formerly chaired the Family Law Section of the California State Bar (1992-1993) and is a past chair of the Sacramento County Bar Assn. (2000). Mr. Wagner is also a Fellow of the American Academy of Matrimonial Lawyers and International Academy of Matrimonial Lawyers.
Table of Contents
Chapter I1 Point of View
I1.01 Structure
I1.02 Importance of Support, Fee and Sanction Issues to Family Law Practitioner
I1.03 Executive Summary
Chapter I2 Public Policy, Purpose and Philosophy Underlying Support, Professional Fees and Sanctions
I2.01 Overview of Policy Considerations
I2.02 Statutory Statements of Legislative Intent and Public Policy Regarding Child Support
I2.03 Cases Effectuate This Legislative Intent and Public Policy Regarding Child Support
I2.04 Statutory and Judicial Statements of Legislative Intent and Public Policy Regarding Temporary Spousal Support
I2.05 Statutory Statements of Legislative Intent and Public Policy Regarding Permanent Spousal Support
I2.06 Cases Effectuate This Legislative Intent and Public Policy Regarding Spousal Support
I2.07 Statutory Statements of Legislative Intent and Public Policy Regarding Importance of Self-Support
I2.08 Statutory Statements of Legislative Intent and Public Policy Regarding Warning Supported Spouse of Need to Make Efforts Toward Self-Support
I2.09 Disclosure Statutes Also State Public Policy of Making Fair and Sufficient Support and Fee Awards
I2.10 Other Policy Considerations
I2.11 Public Policy Favors Facilitating Support Enforcement
I2.12 Likely Future Trends Implementing Public Policy Underlying Award of Spousal Support
I2.13 Statutory Statements of Legislative Intent and Public Policy Regarding Professional Fees
I2.14 Cases Effectuate This Legislative Intent and Public Policy Regarding Professional Fees
Chapter I3 Resources Available for Support, Fees and Sanctions
I3.01 Importance of Looking for “Resources” Rather Than Just “Income”
I3.02 Importance of Hiring a Forensic Accountant in Early Stages of Proceeding
I3.03 Resources Available for Support, Fees and Sanctions—Legal Foundation
I3.04 Obtaining Material Facts and Information to Determine Resources Available
Chapter I4 Obtaining Material Facts and Information for Support Purposes
I4.01 Importance of Postseparation Fiduciary Disclosure Obligations in Support and Fee Cases
I4.02 Overview of Evolution of Postseparation Disclosure Obligations
I4.03 Informal Discovery Under Family Code
I4.04 Family Code Informal Discovery—Implementation Statutes
I4.05 Cases Imposing Sanctions for Disclosure Duty Breaches
I4.06 Informal Family Code Discovery Compared to the Discovery Act
I4.07 Attorney Exposure Regarding Client’s Disclosure Obligations
Chapter I5 Complex Financial Issues Relating to Child Support
I5.01 Introduction to Complex Child Support Financial Issues
I5.02 Child Support Statutes Relevant to Financial Arguments
I5.03 Deviating from Guideline Formula
I5.04 Who Is a “High Earner?”
I5.05 Determining Income of the Self-Employed
I5.06 Imputing Earnings for Child Support Purposes
I5.07 Apportioning Fluctuating or Bonus Income
I5.08 Noncash Benefits as “Income”
I5.09 Attributing Income to Non-Income Producing Assets for Child Support Purposes
I5.10 Use of Internal Revenue Code Definitions
I5.11 Income from Nontraditional Sources: Income Versus Assets for Child Support Purposes
I5.12 Use of Expert Testimony on Income Issues
I5.13 Children’s Reasonable Needs as a Cap on Support in High Earner Cases
I5.14 Discovery Limitations in Child Support Cases
I5.15 Privacy Rights and Support Discovery
Chapter I6 Complex Financial Issues Relating to Spousal Support
I6.01 Introduction to Complex Financial Issues Relating to Spousal Support
I6.02 Obtaining Temporary Spousal Support Orders
I6.03 Statutory Authority for Permanent Spousal Support
I6.04 Standards for Imputing Income for Spousal Support Purposes
I6.05 Proving Amount of Imputed Income
I6.06 Determining Income of the Self-Employed
I6.07 Use of Income Versus Assets for Spousal Support Purposes
I6.08 When Is Requesting Party’s Estate Sufficient for His or Her Own Support?
I6.09 Exploring Obligation for Self-Support
I6.10 Establishing Marital Standard of Living
I6.11 Is Marital Living Standard an Effective Ceiling on Spousal Support Entitlement?
Chapter I7 Passage of Time As a Basis for Lowering or Terminating Support: When, If Ever, Is Enough, Enough?
I7.01 Overview of the Issue
I7.02 Issue Has Been “Left for Another Day”
I7.03 Both Public Attitudes and Contemporary Official Policy Have Changed With Respect to Spousal Support
I7.04 Contemporary Public Policy Has Been Codified
I7.05 Change of Circumstance Rule
I7.06 Court Must Apply All Factors Listed in Family Code § 4320
I7.07 Case Law Addressing Passage of Time As a Change of Circumstances
I7.08 Schaffer: Court Must Look at “Big Picture” When Modifying Spousal Support in Light of Policy Encouraging Self-Support
I7.09 Conclusions
Chapter I8 Retroactivity Issues
I8.01 Retroactivity Issues in General
I8.02 Statutory Limitations on Retroactive Establishment of Initial Child Support Orders
I8.03 Statutory Limitations on Retroactive Modification of Existing Child Support Orders
I8.04 Retroactivity of Orders for Temporary Spousal Support
I8.05 Retroactivity Relating to Permanent Spousal Support Orders
I8.06 Retroactive Support Orders As Restitution for a Breach of Postseparation Disclosure Obligations
Chapter I9 Award of Professional Fees or Sanctions
I9.01 Overview of Issues Relating to Professional Fee and Sanction Awards
I9.02 Statutory Basis for Professional Fee, Cost and Sanction Awards
I9.03 Fee Awards As a Reward for Compliance with Postseparation Disclosure Obligations
I9.04 How Relevant Is Income to a Fee Award?
I9.05 Fee Awards Against Third Parties
Chapter I10 Where Do We Go From Here?
I10.01 This Area of Law Continues to Evolve
