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Validity of Foreign Marriage

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Validity of Foreign Marriage

A question that often arises in today’s global world is whether a foreign marriage will be recognized in the State of California. As with most legal questions the answer depends upon the facts and circumstances as set forth below.

Marriage in a foreign country

If you were married in a foreign country the validity of your marriage will depend on what state you currently live in and whether the laws of the country in which you resided at the time you were married were followed. (Reference Material)

Some of the requirements you might encounter are:

    • Parties must be resident in that country for a specified period of time before a marriage may be performed there.
    • Blood tests.
    • Minimum age for the parties who are being married.
    • Parental consent.
    • Documents certifying the end of any previous relationship (such as death or divorce certificates), translated into the local language, and authenticated.
    • Affidavit of Eligibility to Marry: Some countries require an affidavit by the parties as proof of legal capacity to enter into a marriage contract. No such government-issued document exists in the United States. You may execute such an affidavit at a U.S. embassy or consulate. The U.S. embassy or consulate cannot attest to your marital status. However, most countries will accept a statement from you regarding your ability to marry if your signature on the affidavit has been notarized by a U.S. consular officer. (Reference Material)


The State of California will recognize a foreign marriage only if it is valid in the foreign country, “A marriage contracted outside this state that would be valid by laws of the jurisdiction in which the marriage was contracted is valid in California.” ( Cal Fam Code § 308)

Marriage to a Foreigner

If you marry a foreigner your marriage will only be valid if you comply with the laws of the State of California. The requirements in the State of California for a valid marriage are as follows:

(a) Marriage is a personal relation arising out of a civil contract between two persons, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).

(b) For purposes of this part, the document issued by the county clerk is a marriage license until it is registered with the county recorder, at which time the license becomes a marriage certificate. (Family Code § 330)

However, any failure to comply with these requirements by a non-party will not invalidate the marriage,

Except as provided in Section 307, a marriage shall be licensed, solemnized, and authenticated, and the authenticated marriage license shall be returned to the county recorder of the county where the marriage license was issued, as provided in this part. Noncompliance with this part by a nonparty to the marriage does not invalidate the marriage. (Cal Fam Code § 306)

Have Questions On Marriage to a Foreigner in Los Angeles County and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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What Happens to Assets in Revocable Family Trust During a Dissolution Proceeding

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What Happens to Assets in Revocable Family Trust During a Dissolution Proceeding

Once either party files for a Dissolution of Marriage and serves a Summons on the opposing party there are certain automatic restraining orders that go into effect which limit both parties’ rights to deal with real property without consultation with the other party including any property which is held by a revocable living trust. (See Also) Under the Family Code both parties are restrained from selling or encumbering any real property with minor exceptions if needed to obtain attorney’s fees for the Dissolution proceedings,

Restraining both parties from transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life, and requiring each party to notify the other party of proposed extraordinary expenditures at least five business days before incurring those expenditures and to account to the court for all extraordinary expenditures made after service of the summons on that party.

(B) Notwithstanding subparagraph (A), the restraining order shall not preclude a party from using community property, quasi-community property, or the party’s own separate property to pay reasonable attorney’s fees and costs in order to retain legal counsel in the proceeding. A party who uses community property or quasi-community property to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the community for the use of the property. A party who uses other property that is subsequently determined to be the separate property of the other party to pay the party’s attorney’s retainer for fees and costs under this provision shall account to the other party for the use of the property.

(Cal Fam Code § 2040) This provision of the Family Code should be strictly adhered to by both parties and failure to do so can result in the court imposing monetary or other types of sanctions. However, there are exceptions to the general rule as provided by Section (b),

This section does not restrain any of the following:

(1) Creation, modification, or revocation of a will.

(2) Revocation of a nonprobate transfer, including a revocable trust, pursuant to the instrument, provided that notice of the change is filed and served on the other party before the change takes effect.

(3) Elimination of a right of survivorship to property, provided that notice of the change is filed and served on the other party before the change takes effect.

(4) Creation of an unfunded revocable or irrevocable trust.

(5) Execution and filing of a disclaimer pursuant to Part 8 (commencing with Section 260) of Division 2 of the Probate Code.

(Fam. Code, § 2040) Accordingly, if the Parties created a Revocable Living Trust during the marriage which authorized revocation either party can revoke the Trust as long as the required notice is filed and served five days prior to taking effect. Likely, if the Parties have previously consulted with an Estate Planning Attorney, they will each have a Will in addition to the Revocable Living Trust and revocation thereof would also be authorized. Due to the complexity of the financial concerns that are at issue with a Dissolution which includes a Revocable Living Trust you should consult with an attorney to discuss your options and the best possible course of conduct based upon your unique situation. If these are issues that may affect you in a Dissolution of Marriage proceeding, you should contact the Law Office of Sam Walker for a free 15-Minute telephonic consultation.

Have Questions On Revocable Family Trust in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Family Law in Orange County Courts – COVID 19

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Family Law in Orange County Courts – COVID 19

The Governor of the State of California issued a State of Emergency on March 4, 2020. In addition to the Governor’s declaration of a State of Emergency, the California Judicial Council issued emergency rules related to the operation of the courts during the Covid-19 pandemic. (View PDF) The Orange County Superior Court has also issued emergency rules which affect family court’s in Orange County. (View PDF)

How Are Family Law Matters Affected In Orange County Superior Courts?

The Governor’s Orders are referred to by both the Judicial Council and the Orange County Superior Courts as set forth above. Under the Judicial Council’s emergency rule 13 a party may apply for a modification of support, a Request for Order, under the emergency rules,

Notwithstanding any other law, including Family Code sections 3591, 3603, 3653, and 4333, this rule applies to all requests to modify or terminate child, spousal, partner, or family support. For the purpose of this rule, “request” refers to Request for Order (form FL-300), Notice of Motion (Governmental) (form FL-680), or other moving papers requesting a modification of support.

Rule 13 (b) allows a party to initiate the modification of support procedure by serving a copy upon the opposing party,

Except as provided in Family Code section 3653(b), an order modifying or 15 terminating a support order may be made effective as of the date the request and 16 supporting papers are mailed or otherwise served on the other party, or other 17 party’s attorney when permitted. Nothing in this rule restricts the court’s discretion 18 to order a later effective date.

A party utilizing the procedure must also comply with Rule 13(c),

If the request and supporting papers that were served have not yet been filed with the court, the moving party must also serve a copy of the request and supporting papers after they have been filed with the court on the other party, or other party’s attorney when permitted. If the moving party is the local child support agency and the unfiled request already has a valid court date and time listed, then subsequent service of the request is not required.

Rule 13(e) indicates that these rules will remain in effect until 90 days after the Governor lifts the State of Emergency,

This rule will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.

The Orange County Superior Court has issued mandatory telephonic appearance rules for most Family Law Matters as set forth below.

Family law proceedings, with limited exceptions as set forth hereinbelow, shall be conducted via remote hearing, using either the Teams or Webex applications; the use of which application to be determined at the discretion of each family law judicial officer;

Initially, calendar preference will be given to matters that can be resolved remotely in an expedited As this hearing backlog decreases, efforts will be made to address the long-cause matters also pending;

An in-court proceeding can be scheduled on a showing of good cause as to why a remote hearing cannot occur, within the discretion of the assigned judicial officer;

Dual pro per domestic violence cases (no attorneys) assigned to the dedicated family law domestic violence courts may be scheduled for in-court proceedings with Judge Henson or Commissioner Watson;

DCSS child support matters shall be heard remotely pursuant to separate remote hearings protocols as established by federal and state statute and the Department of Child Support Services, in conjunction with Judicial Council Emergency Rule No. 3;

Specific protocols for the submission of, and presentation of evidence can be found online.

Any individual seeking access to a public hearing shall contact the courtroom where the hearing is set no less than 24 hours prior to the scheduled The clerk shall then provide information to enable remote access to the hearing. All those who apply for public access to a Family Law hearing should be advised that no part of any Family Law proceeding may be recorded without permission of the Court, and a violation of this order shall subject the individual(s) to potential civil and criminal penalties. (Code Civ. Proc., § 177.5; Pen. Code, § 632 et seq.) Be advised that certain Family Law hearings are not public by statute;

This Administrative Order is to be read in conjunction with Administrative Order 20/08, and is to be considered an exception to said Administrative Order suspending family law proceedings for those cases selected by each judicial officer to be heard remotely under this order. Additionally, those matters set for status conference after June 1, 2020 shall be heard remotely unless otherwise ordered;

This rule will sunset in 60 days unless renewed by a subsequent administrative

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Child Custody, Visitation and Support during the Covid-19 Pandemic

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Child Custody, Visitation and Support during the Covid-19 Pandemic

Many parents are concerned about their child custody and/or visitation during the Covid-19 pandemic and need legal assistance in deciding how to handle the other parents demands or irresponsibility. Depending on whether you already have a Custody Order (see below) or if you are recently separated and do not yet have a custody order. In either case the health and well being of the children should be each parent’s paramount concern.

I already have a custody order for Child Custody or Visitation

If you already have a custody order in place you should follow the custody order. If you believe that there are valid safety concerns and that the current custody order will jeopardize the health or safety of your children you should call the Law Office of Sam Walker immediately for a free telephonic consultation on the options that you have available. The most likely best course of conduct would be to file an emergency Ex Parte request for the Court to make a different custody order until the Covid-19 pandemic has passed. What that entails is filing a request for the court to consider written evidence of the emergency and an eventual hearing on the emergency. Depending upon whether you are in Los Angeles or Orange County there are specified procedures that would need to be followed. More information can be obtained directly from the Los Angeles Superior Court website. Likewise the Orange County Superior Court offers information for parents at (View Resource)  Basically, an Ex Parte emergency hearing would be justified if you are concerned about someone in the other parents household testing positive for Covid-19 or other similar types of health and safety emergencies. The Governor has issued emergency orders which affect the availability of the Courts to hear your matters on a non-emergency basis. The Governor’s Executive Orders can be found (View Resource). Likewise the Judicial Council of California has also put orders in place which impact the availability of the Courts (View Resource) If you have any concerns you may call us for a free 15-minute telephonic consultation.

I do not have a Child Custody or Visitation Order

If you do not have a child custody or visitation order in place you still have rights to see your children and if the other parent is not being reasonable in allowing you to share custody or visitation then you should call us for a free 15-minute telephonic consultation to discuss your options. Depending on your circumstances you may have sufficient grounds to file for a emergency Ex Parte hearing in the Family Court to obtain a Court Order for visitation or custody during the Covid-19 pandemic. At a minimum you should be entitled to video visits with your children and if there are no immediate threats to the health and welfare of the children some type of in person visitation or shared custody, depending upon the circumstances.

I have a Child Support Order but I need to make a change due to the impact of Covid-19

If you already have a Child Support Order and it is no longer enough to provide adequate support due or you can no longer make the payments due to loss of income or other Covid-19 impacts you should call us for a free 15-minute telephonic consultation. Filing for an emergency Ex Parte order for increased child support or a decrease in the amount may be a viable option depending upon the circumstances. Regardless of the situation you should consult with an attorney to determine what the right steps are for requesting a modification of your child support.

Have Questions On Child Custody, Visitation in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Can My Landlord/Lender Evict Me During The COVID-19 Pandemic?

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Can My Landlord/Lender Evict Me During The COVID-19 Pandemic?

The Covid-19 pandemic has impacted nearly everyone to a greater extent than others. Most people who have non-essential employment or business income have seen a great reduction in their net income to the point where paying rent or a mortgage becomes impossible. If you are impacted by the Covid-19 and need assistance dealing with an unreasonable landlord or lender the following information is pertinent to your concerns and you may contact the Law Office of Sam Walker for a free telephonic consultation to discuss your option.

MUST I PAY RENT/MORTGAGE PAYMENT DURING THE PANDEMIC?

The Governor of the State of California issued a State of Emergency on March 4, 2020, which essentially required non-essential workers to stay home. (Learn More)  Other small businesses have been closed down completely and millions of Californian’s have been forced to file for unemployment or seek out a Small Business Loan. If you have been impacted by the Covid-19 pandemic you are still required to pay your rent/mortgage because there has not been as of the date of this blog any federal or State of California moratorium on rent/mortgage.

CAN I BE EVICTED BY MY LANDLORD OR LENDER FOR NON-PAYMENT OF MY RENT OR MORTGAGE?

The good news is that the Governor issued an executive order on March 27th limiting the legal rights of landlords and/or lenders to evict anyone from their home. The order prohibits landlords from evicting tenants for nonpayment of rent and prohibits enforcement of evictions by law enforcement or courts. It also requires tenants to declare in writing, no more than seven days after the rent comes due, that the tenant cannot pay all or part of their rent due to COVID-19. The tenant would be required to retain documentation but not required to submit it to the landlord in advance. And the tenant would remain obligated to repay full rent in a timely manner and could still face eviction after the enforcement moratorium is lifted. The order takes effect immediately and provides immediate relief to tenants for whom rent is due on April 1st.

On April 6th, the California Judicial Council provided further protections to those persons impacted by Covid-19 by enacting Emergency Court Rules which would prevent any landlord or lender from initiating unlawful detainer proceedings. The pertinent parts of the Emergency Rules are as follows:

(b) Issuance of summons

A court may not issue a summons on a complaint for unlawful detainer unless the

court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.

(c) Entry of default

A court may not enter a default or a default judgment for restitution in an unlawful detainer action for failure of defendant to appear unless the court finds both of the following:

(1) The action is necessary to protect public health and safety; and

(2) The defendant has not appeared in the action within the time provided by

law, including by any applicable executive order.

Essentially until 90 days after the Governor lifts the State of Emergency which is currently set to expire at the end of May 2020 a Court may not issue a Summons or enter a Default Judgment against any person thereby preventing any use of the Courts to effect an eviction unless there are health and safety concerns under which an eviction may be justified.

Have Questions on Eviction in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Transmutation Agreements

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CAN A SPOUSE PURCHASE AN INSURANCE POLICY AS A SEPARATE PROPERTY GIFT TO THE OTHER SPOUSE DURING THE MARRIAGE OR MUST THERE BE A TRANSMUTATION AGREEMENT?

All property purchased during a marriage with community property funds is presumptively community property and remains community property upon death or divorce. Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property. Property that a spouse acquired during the marriage is community property unless it is (1) traceable to a separate property source, (2) acquired by gift or bequest or (3) earned or accumulated while the spouses are living separate and apart.

IS THERE A VALID GIFT BETWEEN SPOUSES?

Often times during marriage a spouse will attempt to give a substantial gift to the other spouse and the question becomes whether that gift will remain as the separate property of the receiving spouse upon death or divorce. Ordinarily, gifts of small monetary value will be effectively transmuted to the receiving spouse without a written agreement but for gifts of substantial value the Court will consider the circumstances of the gift and whether or not a written transmutation agreement was executed. This situation arises most precariously when a spouse uses community property to purchase a substantial gift for the other spouse and designates the receiving spouse on the title to that property, such as in the case of an insurance policy, car, house, jewelry etc… In that situation, the California Supreme Court has held that even when the purchasing spouse has purchased an insurance policy (or other substantial gift) and clearly designated the receiving spouse as the beneficiary of that policy that such a purchase and designation is not a lawful transmutation of the property from community to separate property if the policy was purchased with community funds, “a policy of insurance on the husband’s life is community property when the premiums have been paid with community funds.” .  (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1400.) The Valli Court reasoned as follows:

Married persons may, through a transfer or an agreement, transmute—that is, change—the character of property from community to separate or from separate to community. (Fam. Code, § 850., Reference Material) A transmutation of property, however, “is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (Id., § 852, subd. (a).) To satisfy the requirement of an “express declaration,” a writing signed by the adversely affected spouse must expressly state that the character or ownership of the property at issue is being changed. (Estate of MacDonald (1990) 51 Cal.3d 262, 272, Reference Material) The “express declaration” requirement “does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.” (Fam. Code, § 852, subd. (c), italics added.) (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1400-1401)

Accordingly, the Court found in Valli that even an insurance policy which was purchased with community funds was not lawfully transmuted by a designation on the policy that the receiving spouse was the sole beneficiary. A separate written transmutation agreement is required for all gifts which are intended to be a gift of separate property to the receiving spouse.

If you have questions about the characterization of assets purchased during your marriage with community or separate property funds you should contact the Law Offices of Sam Walker for a free 15-minute phone consultation. We can help you determine the appropriate characterization and value for division upon dissolution of marriage or through probate proceedings.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Trust Litigation Settlement Agreement

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Trust Litigation Settlement Agreement

A Trust Litigation Settlement Agreement is typically entered into between the Trustee and a beneficiary of the Trust or third-party creditor. The focus of this article is a Settlement Agreement between the Trustee and a beneficiary of the Trust. A Trust Litigation Settlement Agreement can be a vital tool in resolving undisputed issues such as any alleged breach of fiduciary duty on the part of the Trustee or the distributive share of the beneficiary. A Trust Litigation Settlement Agreement will eliminate some or all of the issues which will need to be decided through a trial and will result in less time and expense to both parties. Only matters which cannot be agreed upon need to be set for trial and decided by the Judge. Our aim as your attorney will be to resolve the uncontested issues to save you time and money and focus our time and your money on the issues which are in dispute. Any issues remaining will be brought before either the Los Angeles or Orange County Superior Courts under Probate Code Section 11700:

a) The superior court having jurisdiction over the trust pursuant to this part has exclusive jurisdiction of proceedings concerning the internal affairs of trusts.

(b) The superior court having jurisdiction over the trust pursuant to this part has concurrent jurisdiction of the following:

(1) Actions and proceedings to determine the existence of trusts.

(2) Actions and proceedings by or against creditors or debtors of trusts.

(3) Other actions and proceedings involving trustees and third persons.

Cal Prob Code § 17000 https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=9.&title=&part=5.&chapter=1.&article=

A key difference between a Civil Litigation Settlement Agreement and a Trust Litigation Settlement Agreement is that the Trustee owes numerous fiduciary duties to the Trust and/or the beneficiaries of the Trust including but not limited to the duty(s) of loyalty, impartiality, to avoid conflicts of interests, to control and preserve trust property, to make trust property productive, to keep trust property separate, to enforce claims, to defend claims and to use special skills. (See Probate Code §§ 16000 — 16015 https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=9.&title=&part=4.&chapter=1.&article=1.

In addition to the enumerated fiduciary duties the Trustee must administer the Trust with reasonable care, skill and caution under the circumstances as set forth in Probate Code § 16040:

(a) The trustee shall administer the trust with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument

(b) The settlor may expand or restrict the standard provided in subdivision (a) by express provisions in the trust instrument. A trustee is not liable to a beneficiary for the trustee’s good faith reliance on these express provisions.

Cal Prob Code § 16040  https://codes.findlaw.com/ca/probate-code/prob-sect-16040.html

As such, a Trustee must negotiate any Settlement Agreement in good faith and should not seek to act partially for any reason. A Trustee will most likely be required by the terms of the Trust to obtain approval from any remaining Trust beneficiaries prior to entering into any binding Settlement Agreement. If you are a Trustee or beneficiary and would like to learn more about the negotiation procedures applicable to a Trust Litigation Settlement Agreement you should contact the Law Offices of Sam Walker. For more details or to consult with the Law Offices of Sam Walker regarding your specific situation please use our contact form to schedule a free 15-minute telephonic consultation.

Have Questions On Trust Litigation in Los Angeles and Orange County?

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Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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Probate Litigation Settlement Agreement

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Probate Litigation Settlement Agreement

A Probate Litigation Settlement Agreement is typically entered into between the Executor/Administrator and a beneficiary of the Estate or third-party creditor. https://www.courts.ca.gov/8865.htm The focus of this article is a Settlement Agreement between the Executor/Administrator and a beneficiary of the Estate. A Probate Litigation Settlement Agreement can be a vital tool in resolving undisputed issues such as any alleged breach of fiduciary duty on the part of the Executor/Administrator or the distributive share of the beneficiary. A Probate Litigation Settlement Agreement will eliminate some or all of the issues which will need to be decided through a trial and will result in less time and expense to both parties. Only matters which cannot be agreed upon need to be set for trial and decided by the Judge. Our aim as your attorney will be to resolve the uncontested issues to save you time and money and focus our time and your money on the issues which are in dispute. Any issues remaining will be brought before either the Los Angeles or Orange County Superior Courts under Probate Code Section Prob. Code, § 850 as follows:

 

(a) The following persons may file a petition requesting that the court make an order under this part:

(1) A guardian, conservator, or any claimant, in the following cases:

(A) Where the conservatee is bound by a contract in writing to convey real property or to transfer personal property, executed by the conservatee while competent or executed by the conservatee’s predecessor in interest, and the contract is one that can be specifically enforced.

(B) Where the minor has succeeded to the interest of a person bound by a contract in writing to convey real property or to transfer personal property, and the contract is one that can be specifically enforced.

(C) Where the guardian or conservator or the minor or conservatee is in possession of, or holds title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the minor or conservatee has a claim to real or personal property title to or possession of which is held by another.

(2) The personal representative or any interested person in any of the following cases:

(A) Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

(B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

(C) Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

(D) Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.

(3) The trustee or any interested person in any of the following cases:

(A) Where the trustee is in possession of, or holds title to, real or personal property, and the property, or some interest, is claimed to belong to another.

(B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.

(C) Where the property of the trust is claimed to be subject to a creditor of the settlor of the trust.

(b) The petition shall set forth facts upon which the claim is based.

(Prob. Code, § 850) https://california.public.law/codes/ca_prob_code_section_850

 

A key difference between a Civil Litigation Settlement Agreement and a Probate Litigation Settlement Agreement is that the Executor/Administrator owes numerous fiduciary duties to the Estate and/or the beneficiaries of the Estate. Probate Code Section 8502 sets forth the grounds for removal of an Executor/Administrator:

A personal representative may be removed from office for any of the following causes:

(a) The personal representative has wasted, embezzled, mismanaged, or committed a fraud on the estate, or is about to do so.

(b) The personal representative is incapable of properly executing the duties of the office or is otherwise not qualified for appointment as personal representative.

(c) The personal representative has wrongfully neglected the estate, or has long neglected to perform any act as personal representative.

(d) Removal is otherwise necessary for protection of the estate or interested persons.

(e) Any other cause provided by statute.

(Prob. Code, § 8502) https://codes.findlaw.com/ca/probate-code/prob-sect-8502.html

 

As such, an Executor/Administrator must negotiate any Settlement Agreement in good faith and should not seek to act partially for any reason. An Executor/Administrator will most likely be required by the Court or remaining beneficiaries to obtain approval from any remaining beneficiaries prior to entering into any binding Settlement Agreement. If you are an Executor/Administrator or beneficiary and would like to learn more about the negotiation procedures applicable to a Probate Litigation Settlement Agreement you should contact the Law Offices of Sam Walker.

Have Questions On Probate Administration in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

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(714) 943-2336

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Family Court Settlement Agreement

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Walker Law Corporation Articles

Family Court Settlement Agreement

A Family Court Settlement Agreement is typically referred to as an “MSA” or Marital Settlement Agreement. A Marital Settlement Agreement can be a vital tool in resolving undisputed issues such as Spousal Support, Child Support, Business Valuations, Asset Distributions and obligations for Marital Debts. A Marital Settlement Agreement will eliminate some or all of the issues which will need to be decided through a trial and will result in less time and expense to both parties. Only matters which cannot be agreed upon need to be set for trial and decided by the Judge. See-Divorce in California  Our aim as your attorney will be to resolve the uncontested issues to save you time and money and focus our time and your money on the issues which are in dispute.

A key difference between a Marital Settlement Agreement and a Civil Litigation Settlement Agreement is that the parties to a Dissolution of Marriage proceeding owe each other fiduciary duties. As a party to the Dissolution of Marriage proceedings you owe at a minimum the following fiduciary duties:

(b) Except as provided in Sections 143, 144, 146, 16040, 16047, and 21385 of the Probate Code, in transactions between themselves, spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of non marital business partners, as provided in Sections 16403, 16404, and 16503 of the Corporations Code, including, but not limited to, the following:

(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.

(2) Rendering upon request, true and full information of all things affecting any transaction that concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.

(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse that concerns the community property.

Cal Fam Code § 721

The significance of these fiduciary duties is that you must honestly disclose all of your financial interests including both community property and separate property. Failure to honestly disclose your financial interests if discovered by the opposing party can result in a Motion to Vacate and Set Aside the Marital Settlement Agreement and monetary sanctions.

Of course, there are limitations on the extent and scope of these fiduciary duties but those matters are beyond the scope of this article. For more details on the exact nature of the fiduciary duties which are applicable to your Dissolution of Marriage proceedings or to consult with the Law Offices of Sam Walker regarding your specific situation please use our contact form to schedule a free 15-minute telephonic consultation.

Have Questions On Family Law in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Image of Attorney Sam Walker
Sam Walker

[email protected]

(714) 943-2336

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Civil Procedure Before Trial – Motion to Strike All or Any Pleading

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Walker Law Corporation Articles

Civil Procedure Before Trial – Motion to Strike All or Any Pleading

To commence a lawsuit a Plaintiff/Petitioner will file a Complaint, Objection or other pleading which requests relief from the Court. In civil matters a Complaint for damages is filed, in Family Court a Petition for Dissolution of Marriage is filed and in Probate Court a Petition for Administration of the Trust and/or Probate. Regardless of the Court any party may file a Motion to Strike all or a portion of any Pleading, “Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof…” (Cal Code Civ Proc § 435) http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=435.

Prior to filing any Motion to Strike the Moving Party must Meet & Confer with opposing counsel to determine if an agreement can be reached and the necessity of filing a Motion to Strike can be avoided,  “Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Cal Code Civ Proc § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

Both Parties are required to provide legal support for their position during the Meet & Confer process to allow the opposing party the opportunity to review the legality of the opposing party’s position, “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency.” (Code Civ. Proc., § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

The Meet & Confer process is required to be initiated by the Moving Party at least five days prior to the date required for filing the Motion to Strike but if the Parties are not able to conduct the Meet & Confer conference prior to the deadline the Moving Party can obtain an automatic 30-day extension by filing a Declaration with the Court regarding their efforts to Meet & Confer prior to the deadline, “The parties shall meet and confer at least five days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least five days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 435.5) https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-435-5.html

The purpose of these Statutes is to ensure that the Parties have the opportunity to review the opposing parties’ legal position prior to filing any Motion to Strike.

A Motion to Strike can be used to Strike any improper matter from a Pleading and/or any improper manner of Pleading,

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Cal Code Civ Proc § 436) https://casetext.com/statute/california-codes/california-code-of-civil-procedure/part-2-of-civil-actions/title-6-of-the-pleadings-in-civil-actions/chapter-4-motion-to-strike/section-436-authority-of-court-upon-motion

 

The grounds for filing a motion to Strike must appear on the face of the challenged Pleading or must be based upon a matter for which Judicial Notice (See Blog on Judicial Notice) may be taken,

(a) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Cal Code Civ Proc § 437) https://law.justia.com/codes/california/2005/ccp/437c-438.html

Have Questions On Civil Procedures in Los Angeles and Orange County?

Long Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Newport Beach Law Office

Address: 444 W Ocean Blvd #800, Long Beach, CA 90802,
Phone: 714-943-2336
Email: [email protected]

Image of Attorney Sam Walker
Sam Walker

[email protected]

(714) 943-2336

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