Family Code §2640 Claim: Getting Reimbursed for Separate Property used for Community Property expenses

Family Code §2640 Claim: Getting Reimbursed for Separate Property used for Community Property expenses

This section allows a claim for reimbursement based upon one’s SP contribution to the acquisition of CP.  Requires “tracing”, a method by which a forensic accountant can figure out where money came from and where it’s going.  For instance, Wife comes into the marriage with a big enough bankroll for the couple to buy a house, taken in her name only.  Both parties live in the house and contribute to its upkeep, down payment, taxes, etc.  Once wife uses that separate property for the house, an argument can be made that she has transformed her separate property into a” gift to the community” and may not be able to get it back. The couple continues to live in that house and each works toward the contributions, as in repairs, maintenance, taxes, mortgage, etc.  Wife now wants to stay in the house after separation, so in the divorce proceeding, it will be necessary to “trace” which dollars of Husband’s Separate Property was used to buy the house.  

1. §2030 Fees; The basic code section for fees.  The fees are to be awarded based upon the respective financial circumstances of the parties after consideration of the impact of the CS or SS order.  Know this number by heart.
2. §271 Fees:  Fees awarded for poor behavior.  Usually demanded by both sides.  Must be “notice” and opportunity to be heard.  Ability to pay the amount ordered is an element.  “Need” is not a requirement.
3. “300” Proceeding: A juvenile dependency proceeding under the §300 sections of the W&I Code that may trump a family court proceeding.
4. §473 Motion; A standard motion under CCP§473 to set aside a judgment for mistake of fact or law. Time limit of six months from the “taking” of the judgment.  Refer also to FC§2121 relief from judgment.
5. IV-D Case; A “Four-Dee” case. §5212. Any case established, modified or enforced by the Department of Child Support Services.  42 USC 654 or 454 of the SSA. (Call Randy if you  have any questions)
6. §2320 Requirement;  A Judgment of Dissolution may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.  Where a Petition is amended from Legal Separation to Dissolution the date of the amended petition is deemed to be the “commencement of the proceeding”. (see §2321).
7. §2640 Claim; A claim for reimbursement based upon one’s SP contribution to the acquisition of CP.  Requires tracing.
8. §4320 Factors; These are the factors set forth in the code for determining the proper amount of permanent Spousal Support.  Earning capacity, marketable skills, child-rearing, education, the foregoing of education, contributions to careers, “marital standard of living”, interests of the minor children, length of marriage, half the length of marriage, presumption of lengthy marriage and the needs of each spouse.
9. AF; Attorney Fees. See Fam. Code §2030.  See §2030 above.
10. AFDC; Aid to Families with Dependent Children, since 7/1/97 called TANF (Temporary Assistance for Needy Families ).  These are generally heard on the special IV-D calendars and suspend Family Court’s right to proceed on CS issues.  There is an earnings limit of about $12,000 for a single parent.  Benefits would be in the range of about $700/month.
11. After Discovered Assets; Assets discovered by one spouse after the dissolution has been completed.  Under §2602 I00% of these assets may be awarded to the non-hiding spouse.  (See IRMO Rossi, 6/22/01, which did exactly that on a winning lottery ticket)
12. Aid Case; See AFDC or TANF.  Jurisdiction lies with the Department of Child Support Services (DCSS).  Send the case to a IV-D Commissioner to hear the C.S..
13. Alternate Valuation Date; §2552 See Valuation Date below.
14. ATRO’s; Automatic Temporary Restraining Orders prohibiting disposal of property by any methodology.  Printed on the back of the summons and effective as to both parties. When filed as to Petitioner and when served as to Respondent.
15. Bifurcation; §2337 & Family Law Rules of Court §5.175. (See also local rules, i.e. SDLRC 5.12.4) Permits the issue of dissolution to be severed from all other issues on 30 days notice and a divorce granted without waiting for a complete resolution of all issues.  Use caution when there are medical or Social Security termination problems.  There are significant financial rules laid out by §2337 that are imposed to protect the status quo.
16. BK;  Bankruptcy.  Bankruptcy Code §362(b).  Stops some property actions between the parties and some creditors.  Does not stop child support, spousal support or family support nor does it stop any proceedings involving those issues.
17. Brown Formula; IRMO Brown, (1976) 15 C3d 838.  Known as the “Time-Rule” A formula for dividing pension plans (monthly amounts to be paid in the future).  The formula is:  The CP interest is equal to ½ of The Number of Years the Parties were Married While in the Plan / Divided By / The Total Number of Years the Employee was in the Plan.
18. Burgess Case;  IRMO Burgess, (1996) 13 C4th 25. §§3040 et seq.  The California Supremes have told us that either party may live wherever they choose and unless there’s a significant sharing (footnote 12) of the custody of the children or a basis for a change of custody based upon a change of circumstances the children will be permitted to move with them.  “Clarified” later in LaMusga (2004) 32 Cal 4^th 1072.
19. Capitalization Rate; Cap Rate.  A factor supplied by a business valuator in doing a business valuation.  The cap rate is based on risk.  The higher the risk the lower the cap rate and the higher the interest rate. The Cap Rate the inverse of the interest rate.  (i.e. a Cap Rate of 8 reflects and interest rate of 12% [100 ÷ 8 = 12]).  The term is also used more loosely as a multiplier for goodwill or excess earnings.  As an example, the doctor has excess earnings of $50,000, if we apply a cap rate of 3, the doctor will have goodwill of $150,000, a cap rate of 2 begets a goodwill of $100,000.

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20. Child Support – Add-ons; §4062. Mandatory additions to CS are childcare cost for employment purposes and medical expenses not covered by insurance.  You announce these items routinely when you pronounce the child support.  Discretionary add-ons include special education or special needs and travel costs for visitation.
21. Child Support – Adult Child; §3910. Father and mother have equal responsibility to support an adult incapacitated child.  It seems that the obligation is the same as that for a minor child.
22. Child Support – Fluctuating Income; §4064. The court can adjust support to accommodate fluctuating income.  i.e. Teacher’s income, you can do a summer dropdown rather than annualizing the income over 12 months.
23. Child Support –Guideline; §4055.  CS=k [HN-(H%)(TN)].  TN is total net income of both parties. HN is the high earners net income.  H% is the high earner’s timeshare.  k is the mystery meat in the formula.  k varies depending on the parties total net incomes.  A reasonable guess at k is 25%.  (it goes down to 20% as TN exceeds 20k.)
24. Child Support – Job Related Expenses: §4059(f). Consider necessity, benefit to the employee and other relevant facts.
25. Child Support – Garnishment; The proper term is “Earnings Assignment”, but the rules are the same.  CCP§706.052 – limit is 50% unless you increase it on noticed motion to 65%.  The military limits it to 50%, absent an order to go up to 65%.
26. Child Support – Grandchild; No legal obligation to support a grandkid. §3930.
27. Child Support – Hardships; WATCH OUT! Everyone wants a hardship deduction if there are other kids to support – few are entitled to it. §4072.  Specific findings of hardship are required.  The reason the hardship was granted, amount of the hardship and the underlying facts and the duration of the hardship. Seldom do counsel present appropriate evidence. Permissible hardships include uninsured extraordinary medicals, catastrophic loss or a natural or adopted child in the home (not stepkids). The hardship granted may never exceed the child support awarded in the case at bar, don’t worry the software will do the calculation if you simply enter the number of hardship kids allowed at the hardship line, on the dropdown line called “other §4071 kids.  Notice that you can give a “half” a kid, if you don’t feel a full deduction is entitled.
28. Child Support – Health Insurance;  §3750 et seq.  If insurance is available it’s to be kept in effect.  The cost of health insurance is in addition to CS, but it is deductible in computing gross or net income.
29. Child Support – Registration;  §5600.  Inter-county orders may registered in this county and enforced as if it were a regular filing.
30. Child Support – Retroactivity; §4009. CS may be made retroactive to the date of the filing of the motion.  The date of service would limit how far back you would go on the motion.  Be aware of parties legitimately filing a motion to protect retroactivity and then being reasonable in allowing continuances. See §3603, §3653.
31. Child Support – Sec; §4560 et seq.  The court may order a security deposit of up to one year’s CS as security for the payment urityof CS.
32. Child Support – Wage Assignment;  §5200 et seq.  Properly called an Earnings Assignment Order.  Required in all cases.  Parties by stipulation may agree to stay the wage assignment.  Wage Assignment may be done ex-parte.
33. CLETS;  §6380. No two lawyers or judges agree on how to pronounce the acronym – is it “cleats” as on football or “clets” as in “let’s”.  Actually stands for California Law Enforcement Communications System which is administered by the State Dept. of Justice.  All CLETS orders are transmitted to the DOJ and are made available to all law enforcement officers throughout the state.
34. COBRA Coverage; Consolidated Omnibus Budget Reconciliation Act. Federal.  Applies only to employers with over 20 employees.  Provides for the continuation of insurance coverage for a period of 36 months at the company’s rate. Thereafter for an additional 24 months at retail rates.  The insurance company usually screws people on the rates.
35. COLA’s; Cost of Living Adjustment, usually in the context of military pay. (See www.dfas.mil)
36. Commingling; §852.  The act of combining bits and pieces of both separate and community property together so that their “unentanglement” becomes impossible. i.e. they can’t be traced.
37. Contempt; §§CCP 1209,et. seq. A quasi-criminal proceeding requiring all the formalities of a criminal proceeding.  Four elements (1)valid, unambiguous order, (2) Knowledge of the order, (3) ability to comply, (4) willful violation of the order. (Note that in a CS proceeding ability is presumed and the B/P shifts to the defense.)
38. Contempt – Statute of Limitations: CCP§1218.5.  Three years from the date that each payment falls due as to both child and spousal support.  Two years from the date that the contempt occurred on all other actions.
39. CP; Community Property. §760.
40. CS; Child Support. §3900.
41. Custody– Best Interests; §3011.  The initial doctrine in making a custody award.
42. Custody – Frequent & Continuing contact; §3040, §3100. A doctrine affecting the award of custody.
43. Custody – Joint; §3002. Means both physical and legal custody.
44. Custody – Legal; §3002, §3006 affects the responsibility to make the decisions relating to the health, education and welfare of the child.  May be joint or sole.
45. Custody – Physical; §3004, §3007. The actual physical care of the child
46. Custody – Order of Preference; §3040. 1^st is joint, 2^nd is to either party, next is to a 3^rd party where child has lived, finally to a suitable and able person.
47. Custody – Visitation Rights; §3100.  The court shall grant visitation, unless it is detrimental to the best interests of the child.
48. DCSS: §17000 et. seq. Department of Child Support Services. Created as a statewide agency, in conformance with federal regulations to administer all services and perform all functions necessary to establish, collect and distribute child support.  It is the exclusive agency for administration of the federal IV-D cases.
49. Deferred Comp; Any form of compensation or retirement benefits that is deferred until a later receipt date.  Usually involved with a either a tax-deferral or other economic benefit conferred by the employer.  This is neither a Defined Contribution nor a Defined Benefit Plan.  It is generally not a tax qualified plan.
50. Defined Benefit Plan; A retirement plan that is defined in terms of the future retirement payments (ie. the benefit) that will be paid. A JRS plan is a DBP unless you elect to take a lump sum distribution of the accumulated benefits..  I.e. when you retire at age 60 (or 65 if you’re a JRS II) after 20 years you will receive X dollars per month.  X defines the benefit
51. Defined Contribution Plan; A retirement plan that is defined by the periodic contribution that is made to fund the plan.  A pension/profit sharing plan is also a DCP.  I.e. Both the employer and the employee shall deposit an amount equal to 15% of the employees salary.

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52. Dependency Exemption; IRC§151(d). The exemption gives a deduction from taxable income for a dependent child or adult.  The federal exemption in 2005 is $3200 and goes up $100 for the next two years.  The exemption is phased out for single persons incomes between $145,950 and $270,950 and between $182,450 and $307,450 for Heads of Household.  By law the deduction goes to the custodial parent unless waived in writing on IRS Form 8332.  You will be amazed at how may high-earners fight like crazy to get exemptions which are of no benefit due to the “phase-out factor”.
53. Disclosure Statutes; PDD’S & FDD’S. §§2104, 2105.
54. DOS; Date of Separation. Controls the characterization of earnings.
55. DRO; Domestic Relations Order.  It is a family court order for the division of retirement benefits before it has been qualified by the employer.  When the employer qualifies the order it becomes a QDRO.  Lawyers start calling retirement plan orders QDRO’s long before they’ve even been submitted to the company’s benefits trust to be qualified.
56. Duke Orders; §3800.  Named after an old case from San Diego.  The current statute provides for the deferred sale of the family residence if there is a child involved and a variety of other tests are met.
57. DV/TRO – Conduct; §6320 prohibits molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, destroying property, contacting the person by mail or email or otherwise, coming within a prohibited distance (i.e. 100 yards), or disturbing their peace.
58. DV/TRO – EPO’s; §6250. If a person is in immediate and present danger of domestic violence a judge may issue an emergency protective order (EPO) over the phone.  A commissioner may issue them by day a judge must issue them at night.
59. DV/TRO – Extending the Order;  §6345. The order may be issued for a period of up to five years.  The orders may be extended for either ten years or permanently upon application without a showing of further violence.  Case law suggests that a hearing must be set to determine whether the applicants fears are reasonable.
60. DV/TRO –  Mutual Orders are Prohibited; §6305. Each party must make the request, personally appear and allege facts that permit the court to conclude that both parties were aggressors and neither were acting in self-defense.
61. DV/TRO –  Property; §6324. The court may determine the temporary use and possession of personal or real property.  The court may order temporary payments on the property.  §6325 These order may affect both community and separate property
62. DV/TRO –  Restitution; §6342. The court may order restitution for loss of earnings and out-of-pocket expenses, including medical expenses, after a noticed hearing.
63. DV/TRO – Guns and Warning; §6389. After the issuance of a DV/TRO the court shall issue a warning that the person restrained is not permitted to own or possess, or attempt to own or possess guns and if they have a gun they have 24 hours (48 hours if they weren’t at the hearing) to turn them into the Sheriff or get a receipt of sale to a licensed gun dealer.  They must supply the receipt to the court within 72 hours.
64. DV/TRO – Kick outs; §6321.  The court may exclude a person from the family dwelling where there is an assault or threat of assault to the party or anyone under their care.
65. Earning Capacity; §4058(b),§4320. A theory proffered by counsel on support issues that the other person has the capacity to earn more income than they are earning.  If successful in persuading the court the court will impute a greater income to that party.
66. Educational Loans; §2627 He who gets the education gets the loan that goes with it. See also §2641 for Reimbursement rights.
67. Emancipation; §7000 et. Seq. A minor is emancipated under the age of 18 if they’ve entered into a valid marriage, joined the military or received a court authorized declaration of emancipation (see §7122).
68. EPO; Emergency Protective Order. §6250.
69. Epstein Credit.  24 C3d 896 (1979). §2626.  The court has jurisdiction to order reimbursement for debts paid after the date of separation from either a parties S.P. or their separate earnings.  This is a “favored” credit and if proven should be granted, because it is good policy to favor paying legitimate family bills and thereafter giving that person credit for doing so.
70. Fluctuating Income – Child Support; §4064. The court can adjust support to accommodate fluctuating income.  i.e. Teacher’s income
71. Expedited Child Support; §3620. A party may bring a request before the court for Expedited Child Support.  The court without a hearing may order support based on §4055 or if the parents income is unknown apply W&I §11452 to estimate income.
72. Extrinsic Fraud; §2122. A basis for the set aside of a Family Law Judgment. Extrinsic (A definition never made clear to me in law school) means that the aggrieved party was prevented from having a fair submission of the controversy.  §2122 has a one-year statute as compared to CCP§473.
73. Facilitators; A blessing for all judges.  §10,000 (FLFA). Every county shall have a licensed attorney available to assist parents in matters of child and spousal support and process.  They may provide information and assist in the preparation of forms.
74. Family Court Services;`§1800. Another judicial blessing, especially in “recommending counties” such as San Diego.  The Counselor of the county has broad powers to meet with the parties, investigate case, conduct mediation of custody and visitation disputes and make recommendations to the court.
75. Family Support Order; §4066.  Permits an unallocated support order where neither CS or SS is broken out separately.  It is a euphemism for alimony under IRC§71/215 to permit CS to be deductible and therefore produce more net income for both parties.

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95. FDD; §2105.  Final Declaration of Disclosure.  The parties, during separation are in a fiduciary relationship with each other and not only file a PDD, but must file a FDD no less than 45 days prior to trial.  A FDD may be waived by stip. or upon a finding of good cause by the court.
96. FLA; The initial legislation in 1969 that established the Family Law Act under the Civil Code.  In 1992 the Family Code was adopted, thus totally confusing the older attorneys who’d spent the last 22 years learning Civil Code sections that comprised the FLA. TRY THIS – Ask any attorney with grey hair what Section 4800 stands for.
97. Frequent and Continuous Contact; §3040. (See Custody  above).
98. FS.; Family Support.  §4066. (See Family Support, above).
99. FUSPA; Federal. 10 USC§ 1408.  Stands for Former Uniformed Spouses Protection Act.  Now technically known as USFSPA – Uniformed Services Former Spouses Protection Act. Sets the federal rules for the division and enforcement by the military of military pensions. Also covers state jurisdiction.  California follows the jurisdiction rules, however, may differ on the division and enforcement rules.
100. Gavron Warning;  203 CA 3d 705. §4330.  Stands for the basic proposition that every supported person, where circumstances dictate, should make reasonable efforts to assist in providing for his or her own support.  Long marriages are excepted.
101. Gillmore Election; 29 C3d 418.  An election for the immediate distribution of the Alternate Payee’s benefits, even though the Employed Spouse has yet to retire.
102. Hague Convention;  §3442. 42 USC §11601. California can enforce custody orders where a child has been removed from their “country of habitual residence”.  Complex cases, get help.
103. Hardships;  (See Child Support – Hardships above).
104. I&E  Annual Demand;  §3664. A party may, without leave of court, serve a request for a completed Income and Expense form on the other party.  Either paying or receiving party may do this.  There must be a response with 35 days including pay stubs and tax returns. After 35 days the request may be served on the employer who has 15 days to respond.
105. I&E Are Mandatory;  CRC, Family Law Rules §5.128.  A current (within last 90 days) Financial Declaration and a current Property Declaration shall be served and filed by any party appearing at a hearing where such issues are relevant. Where fees are requested, Item 19 of the income form and item 4 of the expense form must be filled out.
106. Innocent Spouse; An IRS concept. IRC§6015.  Both parties on a joint tax return are jointly and severally liable unless there has been undisclosed income not reported or unauthorized deductions taken for which there is no support and the innocent spouse didn’t know nor had no reason to know.  It’s not your decision to make – It’s the Service’s.
107. IRMO; In Re Marriage Of. It’s not the name of a strange person from the Midwest, rather, IRMO stands for In Re the Marriage Of Smith.
108. Joint Property – Reimbursement;  §2640.  Separate property contributions to the acquisition of joint property shall be reimbursed to the contributing party without interest or accretion in value.  Joint property is any form of joint title.
109. Joint Property Acquired During Marriage;  §2641. Includes CP, JT’s and T in C.
110. Judgment Set-Asides (Non 473); §2122 (See Extrinsic Fraud)
111. Kick-Out Order; §6321.  (See DV/TRO Kickouts).
112. La Musga (2004) 32 Cal 4^th 1072. A “clarification” of Burgess that says if the noncustodial parent makes a substantial showing that a change of custody is essential to prevent detriment to the children from a proposed moveaway the court has the power to change custody even though the other parent had been the primary parent.  Substantial involvement by the noncustodial parent still required.
113. Lesterize;  Named after an old Federal case.  Means to combine CS & SS in a manner that fails to specify any amount for CS, thus making the entire amount tax deductible to the payor and taxable to the payee as if it were all SS.  (See Family Support)
114. Management and Control;  §§1100, 1102.  Once held only by the H except as to W’s SP.  Now each spouse has equal management and control over the community personal and real property.  Both signatures are required to convey property or to lease it for more than a year.
115. Marvin Action; An action named after the old Lee Marvin v. Michelle Triola Marvin case.  No statutory duty to support or divide property with a non-married cohabitant.  The law provides the same contractual or estoppel rights to cohabitants as it would to any other unrelated litigants.  The Marvin cases can be litigated in a civil department not FL, it’s up to court policy.  A jury trial may be required.
116. Mediators; §10,000. (See “Facilitators” above.)  Family Court Facilitators.
117. Minor’s Counsel; §3150 et. Seq.  The court may appoint counsel to represent children if it is in their best interest.  Counsel shall receive reasonable compensation for their services and costs, which shall be paid by the parties or by the county at the court’s discretion.

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100. Moore/Marsden –  Much ado about very little.  This is a formula that compares the party’s community property contributions to a party’s SP house, usually by virtue of the house payments contribution toward the equity or loan reduction.  After all is said and done the contributions to the equity, made as a result of monthly payments, after subtracting interest from the payment leaves very little equity reduction to go onto the CP ledger.
101. Move-away Case; A new version of custody cases with a name all its own.  Starting with the Burgess and LaMusga cases and their progeny, a “moveaway” identifies a specialized custody battle where the custodial party is seeking to move, with the child, out of the county. (See “Burgess” above).
102. MSA;  Marital Settlement Agreement
103. MSC; Mandatory Settlement Conference Usually governed by local rules.
104. MSOL; §4320(D).  Marital Standard of Living.  An elusive concept considering that the parties are now in two separate households, however, it is one of the elements that must be considered in setting permanent support or modifying support that previously did not meet the MSOL.
105. Negative Asset Case; §2622 (b).  The court may divide an “upside down” estate by directing that the greater earning party pay the bills.
106. New Mate Income;  §4057.5.  The earnings of a new spouse that must be considered by the computer in calculating the taxes of the newly married couple in doing a child support calculation for the old couple.  The income of a new spouse or a new mate is not to be considered for use in the actual support of the child, unless it would lead to extreme and severe hardship to the child to ignore the income.  I.e. Where the parent quits work or suppresses income.  Subsec. (b).
107. Nunc Pro Tunc; §2346.  The backdating of a dissolution judgment to a date where there was a mistake, negligence or inadvertence in granting the judgment.  As a matter of justice the court has the power to sign, date, file, and enter it at an earlier date if there is going to be no appeal ie. the backdating is uncontested.. See subsection (d) for limitations.  Phonetically this is still my favorite judgment to grant – it just sounds soooo cool. Granted – Judgment Nunc Pro Tunc – Kathunk!
108. OAH/FAOH; Order after Hearing. Findings and Orders After Hearing.
109. “Oops” Assets; §2556.  This refers to the situation where the parties orf the court have overlooked the awarding or division of an asset.  Not to be confused with misappropriated assets under §2602,  The court has continuing jurisdiction to award CP assets or liabilities that have not previously been adjudicated.  The same equal division rules apply.
110. OSC; Order to show Cause. CCP§§1003, 1005.  An order is required on a motion when there has been no prior general appearance or on a contempt motion where specific personal jurisdiction is required.
111. Parent Locator Service; §17506.  Under the Dept. of Justice it provides information to locate a missing parent for purposes of CS enforcement and SS enforcement.  This is available to the Department of Child Support Services.
112. Paternity – Advisement; §7572(a)(3), §7574, §17404(b), §17410.  Before admission of paternity a prospective parent must be advised of his right to have counsel, a court trial, and contest the paternity.  Use official Judicial Council form (See §7574).
113. Paternity – Conclusive Presumption; For the old-timers there is no more Evid. Code §621.  §7540 creates the same conclusive presumption of paternity for a father living with the mother in a valid marriage where the dad is not sterile or impotent. §7541 hedges this “conclusive” language by permitting a motion for blood tests up to two years after birth.  A clear “non-paternity” finding will negate the conclusive presumption.
114. Paternity – Rebuttable Presumption;  §7555.  There is a rebuttable presumption where the blood tests show a genetic marker that is 100 or greater.  Remember that the genetic score is logarithmic (meaning progressive) and not an absolute decimal score.
115. PDD; §2104.  Preliminary Declaration of Disclosure.  (See also FDD). To be served (not filed with the court) “after or concurrently with the filing of the Petition”, whatever time limit that means. Perjury on the PDD is a ground for a set-aside of the judgment.  The POS shall be filed.  All assets and debts shall be disclosed as best as an intelligent person can do.
116. Pereira/Van Camp; (1901) 156 C 1, (1921) 53 CA 17,  80+ year old allocation cases standing for the range of business allocation between SP and CP on a SP business.  The range is from asset intensive businesses to service intensive businesses.  The Pereira approach allows a “fair” return on CP capital.  The Van Camp approach is to determine the reasonable value of community services and the balance goes to SP.  In reading both cases you must consider Beam v. Bank of America (1971) 6 C3d 17, which essentially apportions both approaches by apportioning both the SP capital contribution and the CP efforts devoted to the SP business.
117. PERS; Public Employees Retirement System.  This is both a federal and a state term.  One of two major retirement systems for federal public employees. This is an older federal defined benefit system. (cf. with FERS) Federal Employee Retirement System.  For state and other municipal employees PERS administers the state employees retirement plan as well as those of many smaller municipalities.
118. PKPA; 28 USC §1738A. Parental Kidnapping Prevention Act aka FPKPA.  Sets conditions for child custody jurisdiction.  Works in conjunction with UCCJEA.
119. POS; Proof of Service.  CCP§1005 et. al. Must be filed with the court prior to any proceeding.
120. Putative Spouse;  §2251.  A “make believe” spouse where the spouse didn’t know it was make believe.
121. QDRO; Qualified Domestic Relations Order.  Governed under both the Federal Labor Code and the Internal Revenue Code.  Essentially a Family Court order, dividing pension plans under specific federal rules requiring qualification of the order by the plan manager.  The granting of the order is done by the Court, whereas the Q or qualification is done by the plan or trust that manages the plan.  So technically all the court issues is a “DRO”.  It later becomes a “QDRO” when the plan approves the order as being “qualified under the labor code.
122. REA; Retirement Equity Act. Federal law that created the pension rules under the labor code and IRC.
123. Reiflerized; 39 CA3d 479.  A godsend to the smart courts.  Reifler stands for the proposition that the judge has broad discretion NOT to take oral testimony at an OSC.  The court may grant or deny relief based solely on supporting and opposing declarations, along with P & A’s, if appropriate.  Cuts the smart court’s calendars by two-thirds.  Wait to see how this whole thing sorts out in the appellate courts and the AOC during 2010.
124. Richmond Order; 105 CA3d 352.  Essentially a contingent termination order for SS.  I.e.  The court orders SS for 3 years and then reduces it to $0 unless W shows good cause why SS should continue.
125. RURESA; a.k.a. URESA Uniform Reciprocal Enforcement of Support Act.  Outdated terminology since repealed and replaced by UIFSA.

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126. SSA; Social Security Act; Provides for a divorced spouse in a marriage of more than 10 years to receive Social Security Payments directly from Social Security Administration in an amount equal to 50% of the wage earner’s amount.  This becomes especially important when granting divorces near the “ten-year mark”.
127. Special Master; Appointed under Evid. Code §730 and §2554.  §2554 allows the Court to submit property issues under $5,000 to an arbitrator.  §730 permits the court to send matters to an outside expert.
128. Spousal Support – Assignment; §5208.  Slightly different from CS earnings assignments.  CS is under Federal mandate. 42 USC 666.  Terminology is now “Earnings Assignment Order” or “Assignment Order” rather than the old “Wage Assignment”. There is a fed form for CS and a Judicial Council form (1285.70) for SS.  EAO has priority over attachments and executions and possibly even BK orders.
129. Spousal Support – Cohabitation; §4323.  Cohabitation creates only a rebuttable presumption of a reduced need for support.
130. Spousal Support – Factors; §4320.  This is a one of the code sections that you should know by number.  It delineates all of the factors that a wise judge must consider in establishing SS.
131. Spousal Support – Gavron Warning;  §4320(l) One of the factors is the states policy that one should make every effort to become self-supporting.  Gavron provides, however, that the Court must give a “warning” that this is in fact the State’s policy before the court summarily terminates SS.
132. Spousal Support – Reconciliation; Tough call. §4301 imposes a duty to support even while living together.  It doesn’t say this must be done by a specific payment.  If an order is in existence there must by some compliance with §4301, however, an “in-kind” satisfaction of the obligation should suffice.  §3602 On the other hand clearly states an order is not enforceable during any period in which the parties have reconciled and are living together.  Watch out for the situations where the parties are living together due dire financial circumstances.
133. Spousal Support – Resort to Sep. Prop.; §4321.  Resort to the other’s SP only after earnings and CP are exhausted.
134. Spousal Support – Retroactivity;  §4333.  SS is retroactive only back to the date of the filing of the motion or the OSC, not to the date of the filing of the Petition.  There’s something about constitutional notice.
135. SS; Spousal Support. §4320 outlines all of the factors that the court must consider in setting permanent support.
136. Statement of Decision: CCP §632. Generally rendered after a trial on a factual issue.  Is not appropriate on routine motions during the proceedings on a case.  Lawyers often ask for a Statement of Decision on a motion.  The appropriate response is you are not entitled to a SOD, but I will be happy to set forth the basis for my decision on the record.  It is an appropriate request on “substantial” post judgment motions.  The timing is critical.  The Request for SOD must be made before the matter is submitted in a short trial (less than a day or 8 hours) or within 10 days of the tentative decision in a long trial.  (See Professor Nedley’s webpage on SOD’s)
137. Stay Away Order; See DV/TRO. An order to stay a certain distance away from the protected person, or their house, place of employment or car.
138. Step-Down Orders; §§4334, 4335.  a.k.a. Richmond orders.  I.e. Support is ordered for three years and then reduces to $0 (or some other figure).  Tricky orders. There must be a reasonable basis for the “step-down”.
139. STRS;  State Teacher Retirement System.
140. Support Person; §6303. In a DV case the victim may designate a “support person” to accompany them at all stages of a proceeding, including sitting with them at counsel table and even accompanying them in mediation sessions.  They cannot participate, nor give advice.
141. TANF; Temporary Aid to Needy Families.  Implemented on 7/1/97 to replace AFDC and JOBS (Job Opportunities and Basic Skills Training).
142. Tracing; Tracing is not law, but rather a methodology to trace SP or CP to its origins in a trial.  There is direct tracing and residual tracing.  As an example under §2640, (read §(b)) where a person is asserting a SP interest in jointly owned property, they must provide direct evidence of their contribution to the acquisition of the property.
143. Transmutation; §852. Transmutation has strict rules.  Any form of property – SP, CP or QCP (Quasi-CP) – may be transferred, without consideration, to any other form, between spouses as long as it’s done in writing.
144. TRO; Temporary Restraining Order §6320
145. UCCJEA; §3400. Uniform Child Custody Jurisdiction and Enforcement Act.  Adopted in a substantial majority of the other states.  Works in conjunction with FPKPA. See Professor Franks PowerPoint for a lecture on these topics.
146. UIFSA; §4900 et seq. Uniform Interstate Family Support Act.  Generally used by the Bureau of Child Support Enforcement for the interstate collection of CS.  Operates in tandem with FFCCSOA – Federal Full Faith and Credit Act for Child Support Orders – to resolve interstate jurisdictional competition over CS.
147. UPA;  §7600 et seq.  Uniform Parentage Act.  The rules to determine the legal relationship, including support, existing between a child and the child’s natural or adoptive parents.  Counts for about one-fourth of the Family Law petitions. (Excluding DV’s).
148. URESA; Uniform Reciprocal Enforcement of Support Act. Replaced in 1968 by the Revised Uniform Reciprocal Enforcement of Support Act, which was later replaced by Uniform Interstate Family Support Act. See RURESA and UIFSA.
149. Valuation Date/Alternate Date; §2552.  Court shall value the assets and liabilities as nearly as practicable to the date of trial, except that a party upon thirty days noticed motion may, for good cause, seek an alternate valuation date.
150. Vomacka Rights; Vomacka stands for the principle that any waiver of SS in a longer marriage must be with clear and convincing evidence that the supported party’s needs will be satisfactorily met at the time of termination.  The supporting party has the obligation to make it clear at the time of judgment that the waiver of SS is a permanent and binding obligation.
151. Wage Assignment; Now known as Earnings Assignment.  See above.
152. Watts Credits; (1985) 171 CA3d 366.  A credit or reimbursement claim sought by the out-spouse on behalf of the community for the other spouses use of CP after separation – usually the family residence – at a below rental market rate or at no rate at all, i.e. if there were no payments due on the property.  This is not a favored charge or credit, because there’s no strong public policy at stake (See Epstein credits above).

Permission to use “Buzzwords”” at any Family Law Educational Program is granted without further adieu, just email me and let me know the name and sponsor of the program.  Any other permission may be obtained from Judge Huntington at 858-488-7648 or by e-mail at nedley@san.rr.com  Not prepared on Government time or at Government expense.