Lonich and Patton, LLP

• The Elkins Family Law Task Force

  The Elkins Family Law Task Force was appointed in response to an August 2007 California Supreme Court opinion, Elkins v. Superior Court (2007) 41 Cal.4th 1337, which held that marital dissolution trials should “proceed under the same general rules of procedure that govern other civil trials.”  The charge of the task force is to propose measures to improve efficiency and fairness in family law proceedings and ensure access to justice for all family law litigants.  At its initial meeting in June 2008, the task force defined values that have guided its work and will inform proposed recommendations:

  Ensuring justice, fairness, and due process in family law;

  Ensuring meaningful access for all litigants;

  Using innovative techniques to promote effectiveness and efficiency;

  Improving the status of, and respect for, family law litigants and the family law process and

  Securing adequate resources, including existing, reallocated, and new resources.

  As of October 1, 2009 the Elkins Family Law Task Force had released over 100 draft recommendations for a two-month public comment period that ended on December 4, 2009.  The task force will convene in a two-day meeting from February 1-2, 2010 in the Judicial Council Conference Center of the Administrative Office of the Courts in San Francisco.

  Adapted from http://www.courtinfo.ca.gov/jc/tflists/elkins.htm

  1/20/2010

• Commonly Used Terms in Family Law

  Child Support – Money paid by a parent to help support a child or children.

  Spousal Support-the money paid to the divorced spouse or to the spouse with whom divorces proceedings are initiated, as compensation ordered by the court, for their support. In no-fault divorce it is also called as alimony.

  Child Custody- used in the court of law in cases where the court has to decide on which parents, in case of divorce cases, and who be the guardian in any other case, of a child who is not yet 18 years of age regarding the social upbringing, education and health matters. The court has to make a decision on such cases very carefully as its a question of child’s future and present upbringing. Incase its found that both the parents are unfit of not of sound mind, the custody of the child goes relatives and orphanages.

  Arrears – Money owed because a parent or spouse did not make a court ordered child or spousal support payment on time.

  Prenuptial Agreement –  a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. These agreements are fairly common if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have been “taken” by a previous spouse.

  Postnuptial Agreement – a voluntary marriage contract between spouses that is created after their wedding. It is important that each party has their own legal counsel before signing a postnuptial agreement.

  Qualified Domestic Relations Order – Any decree, judgment, or order that recognizes the right of one person (the alternate payee) to participate either totally or partially in the pension of another (the participant). The alternate payee must be a dependent child, spouse, or former spouse of the participant. This is an exception to the ERISA rule, proscribing the assignment of plan benefits. Abbreviated QDRO.

  With help from the following sources:

  http://www.legal-explanations.com

  http://www.yourdictionary.com/law/qualified-domestic-relations-order

  http://marriage.about.com/od/agreements/g/postnuptial.htm

  http://dictionary.law.com/Default.aspx?selected=1585

  1/11/2010

• Commonly Used Terms in Probate and Estate Planning

  Beneficiary - Someone who gets something from a trust. A person who gets money from a trust is called an income beneficiary. A person who gets property from a trust is called a remainder beneficiary.

  Will – A legal paper that says what a person wants to happen to his or her personal property after s/he dies.  The person who controls the Will can change or cancel it at any time before they die.

  Probate Estate – All the assets in an estate that are subject to probate. This does not include all property. For example, property in joint tenancy, or an IRA account are not part of the probate estate.

  Conservatorship – A court proceeding where a judge picks someone (a conservator) to take care of an adult’s personal needs (Conservatorship of the person) and/or his or her finances (Conservatorship of the estate).

  Guardianship – A court proceeding where a judge chooses someone to care for a person under age 18 or to manage his or her property, or both. Guardianship of the person gives someone who is not the child’s parent custody and control of the child. Guardianship of the estate gives someone (parent or not) the right to manage the minor’s property until the child is 18.

  Trust – A trust is when one person (trustee) holds title to property for the benefit of another person (the beneficiary). A person called the settlor (or trustor) creates the trust and puts the property in the trust. The settlor, trustee, and beneficiary can be different people. But, one single person could be the settlor, trustee and beneficiary.

  Joint Tenancy – When 2 or more people own something and have rights of survivorship. This means that if 1 tenant dies, his or her share goes to the other tenants.

  Totten Trust Account – A type of savings or checking account. The money that’s left in the account when the owner dies goes to the person the owner chose. It is not subject to probate. The same as P.O.D. (payable on death) accounts. P.O.D. accounts are more common.

  Litigation - A case, or lawsuit. The people in a lawsuit cannot agree, so they present evidence and let the court decide.

  Will Contest – When you challenge the validity of a Will in probate court. You can challenge a Will because: it was not executed properly; it was cancelled or revoked; the testator was not capable of writing it.

  Executor – The person or company named in a Will to carry out the Will’s instructions. Usually, the probate court supervises the executor.

  Letters Testamentary – Court papers that let someone be the personal representative of a probate estate.

  Fiduciary – A person who acts for another person’s benefit, like a trustee, guardian, or personal representative. It also means something that is based on a trust or confidence.

  Intestate – To die without a valid Will. Or, a person who dies without a Will.

  Intestate Succession – State laws that say who gets a person’s property when s/he dies without a Will. Or, what happens if the Will does not say what to do with the property.

  With help from the Superior Court of California, County of Santa Clara website.

  http://www.scselfservice.org/probate/prop/FrequentlyAskedQuestions2.htm

  1/6/2010

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