INVESTMENT BY HUSBAND'S COMPANY NOT INCLUDIBLE AS INCOME FOR CHILD SUPPORT.

In re Marriage of Knowles
(2009) ___ CA4 ___
3rd DCA, Justice Nicholson
Butte County, Commissioner Glusman

QwikBrief
(1) Where Husband and his subsequent spouse owned substantial community assets that generated income, trial court violated Family Code Sec. 4057.5(a)(1)—which prohibits consideration of the income of a subsequent spouse when modifying child support—by considering the half of the community income attributable to the subsequent spouse when it modified father’s child support obligation.

(2) Husband was not entitled to claim a hardship because he did not prove that he would suffer extreme financial hardship if expenses relating to his new children were not considered.

(3) Where the original Order to Show Cause date had been allowed to go off-calendar, the trial court had jurisdiction to order a modification retroactive to the initial date that Wife’s Order to Show Cause modification was filed.

(4) Because Husband was not in the investment business, his capital gains could not be considered income in determining his child support obligation.

Facts

The 1995 judgment ordered Husband to pay child support of $506 per month. After the divorce Husband remarried and worked in a family business, taking a partnership draw instead of a salary. Eleven months after Wife filed or Order to Show Cause to increase the child support order Husband quit the family business to work in a startup business of his that was yet to turn a profit. Husband and his second wife were successful in real estate investing, earning more than $3.1 million in 2003 and 2004. That money was invested in a brokerage account in the name of the second wife, who was an attorney.

Wife filed her Order to Show Cause in January 2005, but experienced difficulty in obtaining discovery responses from Husband. The Order to Show Cause was continued nine times, and was ultimately taken off calendar on November 29, 2005. On February 14, 2006, Wife filed a motion in which she requested that her Order to Show Cause be set for trial. At an interim child support hearing on June 13, 2006, the presiding commissioner made an interim child support order and, in his minute order, stated that the matter had been resolved by the parties on November 29, 2005.

Ruling in Trial Court

Husband was imputed with earned income of $4,166. In addition, Husband was charged with all of the $18,450 per month investment income that he and his second wife were earning. Child support was increased to $1,557 per month, retroactive to January 6, 2005. The trial court refused Husband’s request for hardship deductions for his two children from his second wife.

The trial court disagreed with the commissioner who made the interim order. It held that the Order to Show Cause had not been resolved when the matter went off-calendar, giving it jurisdiction to make the modification retroactive to the date the Order to Show Cause was filed on January 6, 2005.

The trial court refused to treat Husband’s capital gains as income in the calculation of his child support obligation. The court held that the gains were derived from the “liquidation of his capital assets,” not from the operation of a business. The trial court held that to include such gains as income would result in a “spike” in the child support, which would not be in the interest of justice.

Ruling on Appeal

Reversed as to Consideration of new wife’s income. Affirmed as to the hardship deduction and retroactivity of modification.

1. New Wife’s Income: Unless the child would suffer extreme and severe hardship, the income of a new spouse cannot be considered in determining child support. Family Code §4008 allows community property of a subsequent marriage to be used to satisfy a child support obligation, but the income of the new spouse cannot be factored in to the calculation of the child support obligation. There was no evidence that the children would suffer any hardship if the new wife’s income were not considered.

2. Hardship Deduction for New Children: A parent can claim the Family Code §4071 hardship deduction if he can show extreme financial hardship. Husband offered no evidence of such hardship. The fact that Wife did not contest the hardship claim was not an implied contract which required the trial court to grant it.

3. Retroactivity of Modification: The interim order recited that the court “. . . retained jurisdiction to ultimately increase or decrease this amount [the interim order] and to make any order retroactive to an earlier date.” The court had jurisdiction at trial to modify the interim order.

4. Consideration of Capital Gains: The trial court properly relied on Perlstein, which held that the proceeds from father’s sale of stock were not income. Only the return on those proceeds, when invested, were to be considered. Wife failed to offer any evidence that the child does not enjoy the same lifestyle when he was with her as when he was with his father. For that reason, the trial court’s order did not violate Family Code §4053, which requires parents to support their children according to their circumstances and station in life and ability to pay. The court referred to the trial court’s observation that Wife has remarried and resides in her husband’s home and when residing with her, [the minor child] lives in a separate unit at the house referred to as a “Casita.

Authorities Cited

Family Code §§ 4053(child support consistent with parent’s lifestyle and parent’s ability to pay), 4057.5 (new spouse’s income) Travelers Ins. Co. v. Superior Court (1977) 65 Cal.App.3d 751.(retroactivity) In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361. In re Marriage of Cheriton (2001) 92 Cal.App.4th 269 (capital gains)

Comment

Family Code §4057.5(a)(1) provides as follows: “The income of the obligor parent's subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor's subsequent spouse or nonmarital partner.”

WHAT IS A COLLABORATIVE DIVORCE?

Our office is now offering Collaborative Divorce services. In a Collaborative Divorce case the spouses and their attorneys sign an agreement in which they commit themselves to resolving the issues in the divorce without going to court. The agreement further provides that if either spouse decides to litigate the case in court, both of the attorneys will withdraw from the case and will not be allowed to perform any further services in connection for either spouse.

The Collaborative Divorce process involves the assembly of a team of professionals who are all dedicated to achieving an amicable resolution of the divorce without going to court. In addition to the attorneys, the team includes four other professionals.

Divorce Coach: Each spouse has his/her own mental health professional who functions as a "divorce coach," assisting the spouses to deal with the emotional issues in the case.

Child specialist - a mental health professional who focuses on the needs of the children.<

Financial Specialist - an expert, such as an accountant or financial planner, who assists the spouses in creating household budgets and dividing the community property.

A Collaborative Divorce differs from the traditional litigated divorce in several important respects:

A Collaborative Divorce can usually be completed in a few months. A typical litigated divorce takes between six and eighteen months to complete, sometimes longer.

A Collaborative Divorce usually costs between one-third and one-half the cost of a litigated divorce

The spouses in a Collaborative Divorce case use joint accountants, mental health consultants, appraisers, and other consultants, instead of hiring their own separately retained experts.

At the end of a Collaborative Divorce the spouses are more likely to retain goodwill and respect.

The feelings and desires of the children are considered throughout the entire process.

FIDUCIARY DUTIES OF DISCLOSURE IN FAMILY LAW CASES

The California Family Code imposes fiduciary disclosure duties on spouses who are dissolving their marriage. All persons involved in dissolution of marriage, legal separation or modification cases must be aware of the fiduciary duties that have been established in the law. These duties require each party to disclose information and documents that are material to the case - without being requested. In transactions between themselves, spouses are “subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other,” which “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 duty does not end when the final Judgment of Dissolution of Marriage is filed with the court. As discussed below, the fiduciary duties continue even after the end of the marriage.

THE LAW

Fiduciary duties that are imposed on divorcing spouses are found in several section of the California Family Code:

Family Code §721 (b):

Spouses are under fiduciary disclosure duties "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 which 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 transaction.

(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 which concern the community property."

They are also obligated to provide the other spouse with:

(1) Without demand, any information concerning the partnership's business and affairs reasonably required for the proper exercise of the partner's rights and duties under the partnership agreement or this chapter; and

(2) On demand, any other information concerning the partnership's business and affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances."

Family Code §1100(e):

The interspousal fiduciary duties set forth in Family Code §721(b) in the management and control of community assets continue "until such time as the assets and liabilities have been divided by the parties or by a court."

Family Code §2100:

This section sets forth what the intent was of the California Legislature in creating the fiduciary disclosure duties. This record of legislative intent helps us understand why the concept of the fiduciary duty owed between divorcing couples is taken as seriously as it is. In general, in creating these detailed rules, the Legislature intended to:

● To marshal, preserve and protect community property.

● To ensure fair and sufficient child and spousal support awards.

● To achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law.

Family Code §2102(a):

The parties are subject to "the standards provided in Section 721, as to all activities that affect the assets and liabilities of the other party," including those stated in the section, "from the date of separation to the date of the distribution of the community or quasi-community property asset or liability in question."

Family Code §2102(b):

As to assets and liabilities, the fiduciary duties continue until the asset or liability has been divided between the parties. Thus, even if an asset is divided months or years after the end of the family law case, the parties continue to have the duty to fulfill their respective fiduciary duties with respect to that asset.

Family Code §2102(c):

The parties are "subject to the standards provided in Section 721 as to all issues relating to the support and fees, including immediate, full, and accurate disclosure of all material facts and information regarding the income or expenses of the party" "(f)rom the date of separation to the date of a valid, enforceable, and binding resolution of all issues relating child or spousal support and professional fees.

Family Code §§ 2103 - 2107:

To implement the rules establishing the fiduciary duties between spouse, the law requires parties to family law cases to exchange their preliminary declarations of disclosure and final declarations of disclosure. These disclosures consist of the following:

● Detailed schedules of assets and debts

● Reporting of any important developments that might affect the marital assets and debts

● Completed income and expense declarations on court-mandated forms.

The Court cannot file a judgement resolving the parties’ property rights until the declarations of disclosure have been exchanged. However, the final declarations of disclosure do not have to be exchanged if the parties have agreed in writing to dispense with that requirement. If a party has not complied with the requirements regarding preliminary and final declarations of disclosure, the aggrieved spouse can ask the judge to order the defaulting party to comply. In extreme cases the judge can impose the sanctions discussed below.

CONSEQUENCES ARISING FROM FAILURE TO COMPLY WITH FIDUCIARY DUTIES

The consequences of not complying with the legally-imposed fiduciary duties can be severe. If a party to a family law case is found to have violated his/her fiduciary duties, the judge can do any or all of the following:

● Impose monetary sanctions. In Marriage of Feldman - a recent appellate court decision - the husband was ordered to pay sanctions in the amount of $250,000 and attorney fees of $140,000 because of his failure to fulfill his fiduciary duties of disclosure.

● Make that party pay the other party’s attorneys fees, court costs and other litigation expenses.

● Award all - not just one-half - of an asset a spouse has concealed to the other spouse. (In Marriage of Rossi, a noted case, the husband was awarded all - not just half - of the $3 million in California lottery winnings that the wife did not disclose to the husband. )

● Prevent the offending spouse from presenting his or her case in court.

● Set-aside (void) a court order or judgment that was entered as the result of a party’s failure to comply with the disclosure statutes.

The Family Code further provides that, when deciding what sanctions are appropriate, the judge is to order sanctions that will effectuate compliance with the above statutes. This means that sanctions can be ordered even if the other spouse did not suffer any actual financial damage or loss.

THE BOTTOM LINE

The days of hide- the-ball divorce litigation, where one or both of the spouses would conceal important information and documents from the other spouse, are clearly a thing of the past. Now, each spouse must actively engage in complete and ongoing disclosures at all times.

Our office takes very seriously the concept of fiduciary duties. As the legal advisors of our clients, we make it our mission to ensure that our clients comply with their fiduciary duties in every way. Moreover, where the other party appears not to take the fiduciary disclosure rules seriously, we take steps to obtain either that party’s full cooperation or the court’s imposition of sanctions.

RECOMMENDATIONS

There are various steps that husband and wives must take to avoid being held to have not complied with the disclosure rules.

● They should familiarize themselves with the rules that are outlined in this article.

● At all times, a divorcing spouse must remember that he/she has the affirmative duty to disclose material information and documents. The duty to disclose arises even if the other party has not requested disclosure.

● Each spouse should carefully read the Standard Restraining Orders that are on the back of the Family Law Summons. Among other things, these orders restrain both spouses from disposing, transferring, borrowing against or liquidating any community property or separate property asset.

● Where appropriate, a spouse should make copies of all documents that have any bearing on assets and income. This includes bank statements, cancelled checks, credit card statements, tax returns (personal and business), deeds, titles, escrow documents, w-2 forms, 1099 forms, and payroll check stubs.

● If either spouse is entitled to receive child support or spousal support from the other, any increases in income must be reported to the other spouse.

● Whenever an event or development that might impact and asset or debt occurs, it must be disclosed to the other spouse. No event is too small to disclose. The following is a list of the types of disclosures that are commonly seen in family law cases. Because the types of disclosures that are required are limitless, it is impossible to list every occurrence that triggers a disclosure.

Real Estate: Offers to purchase, contemplated sales, change in tenancy, major repairs that are required, notices or documents received from any governmental agency, notices received from any co-owner, lawsuits that have been filed that in any way pertain to the property.

Businesses: Offers to purchase, contemplated sales, lawsuits, tax issues, loss or acquisition of major customers or clients, loss of significant employees, preparation of financial documents, new partners or major shareholders,

Employment: Changes in status of employment, raises, receipt of bonuses or commissions, exercise or granting of stock options, changes to retirement or 401 k plans, retirement.

Investments: Any significant change in value, receipt of statements, maturity of certificates of deposit, notification of any lawsuits.

YOUR DAY IN COURT

At least one trip to court is required in most dissolution cases. This might be either for an Order to Show Cause hearing or trial. Regardless of the type of hearing, it is important for you to know what to expect and what is expected of you when you go to court.


Getting Ready

The night before you go to court, you should get to be early and get plenty of sleep. For obvious reasons, court can be a stressful and tiring experience. So, it is important that you come to court completely rested and ready to participate in the proceedings with a clear head.


If you have not been to court before, be sure you know how to get there. If you are unsure of the location of the courthouse, parking facilities or the courtroom, please contact our office. You might also consider writing down directions to the courthouse the night before.

Determine how long it will take you to drive to court, and then increase that time by 50% to account for rush hour traffic and any other unforeseeable delays you might encounter. For example, if you estimate it will take you 30 minutes to get to court, plan on leaving home at least 45 minutes before you are to be there.

Make sure that you have completed your court preparation on the night before your court date. By doing this, you will avoid rushing around the following morning. You should assemble any documents that Mr. Rabenn has asked you to bring with you. Lay out your clothes for the next day and, in general, have everything ready to go for when you get up.

Court Reporter's Fees

Because of budgetary problems, the courts are now requiring parties to pay for the services of the Court Reporter for Order to Show Cause hearings exceeding one hour and all trials. The fees are currently $255 per half day - a cost that ordinarily must be shared by the parties.
You should be sure to have your checkbook when you come to court and you should be prepared to pay up to $255 for your share of the Court Reporter's charges for two one-half days of services. Mr. Rabenn will not advance this cost for you.

Arriving at Court

Before your court day, be sure to ask Mr. Rabenn where he wishes to meet you. This will usually be in the hallway outside the courtroom where your case is set to be heard. When you get to the courthouse, go directly to the courtroom where your matter is scheduled to be heard, unless Mr. Rabenn has asked you to go somewhere else.

Most courthouses now have metal detectors at the front door. Make sure you are not carrying anything that might be considered a weapon, such as a pocket knife.


Outside the courtroom the bailiff or clerk will have posted the calendar, which is a listing of cases scheduled for that day. The cases are usually listed in alphabetical order. Make sure your case is listed on the calendar. If it is not, you might be in the wrong courtroom.

If you do not see your name on the calendar and cannot find Mr. Rabenn, go into the courtroom and talk to the bailiff or the clerk. If, after talking to the courtroom personnel, you still do not know where you are to be, go to the nearest telephone and call our office for instructions.

Court Personnel

Besides the judge, there are usually three other people in most courtrooms.

The Bailiff

The bailiff is a uniformed officer who is assigned to assist in the operation of the courtroom. He or she (many bailiffs are women) is usually the first person you talk to when you enter the courtroom.

The bailiff has various functions in the courtroom. Primary among this is the job of maintaining order. This applies to anything from asking people to stop taking while court is in session to physically subduing people who become violent.

The handling of forms, exhibits and miscellaneous papers is commonly assigned to the bailiff. During a hearing any attorney will often need to give a document to the judge. This is usually done by merely handing it to the bailiff, who then gives the document to the court clerk or directly to the judge.

The Court Clerk

The court clerk is the man or woman who is responsible for the management of the court. In the morning, before court starts, the clerk gets all of the files for the day from the clerk's office and gives them to the judge. When the court opens up, the attorneys and the people who are there without attorneys are usually required to "check in" with the clerk. This means that they are to advise the clerk that they are present.

When court is in session the clerk administers the oath to all witnesses, hands documents and exhibits to the judge and generally serves as the judge's clerical assistant.

The Court Reporter

As depicted in numerous theatrical courtroom scenes, the court reporter records everything that is said while court is in session, using a silent recording machine. After your hearing is completed, Mr. Rabenn or the other attorney may request the court report to prepare a transcript of the proceedings. This a verbatim script of everything that was said by the judge, attorneys and witnesses in your case.

In some courthouses, court reporters are being replaced by sophisticated tape recording and video systems that are operated by court technicians. Because they are significantly less expensive than a court reporter, these systems are becoming more popular, although some people believe they are not as accurate as a court reporter.

Judges and Court Commissioners

As with any other court proceeding, there is a judge who presides over the court. In California there are no jury trial in family law matters.

Many family law courts are presided over by a "court commissioner" instead of a judge. There are only two differences between a commissioner and a judge:

•A commissioner is employed by the county, while a judge is a state employee.

•The parties must agree, usually in writing, that a commissioner may hear their case.
In Los Angeles County both parties and their attorney must sign a court form authorizing the commissioner to decide the case. In Orange County only the signatures of the attorney are required.

If either spouse refuses to allow a commissioner to hear the case, it will usually be transferred to the "Master Calendar" court, where it will be assigned to the next available judge.
Some people decide that they would prefer to have their case heard by a "real" judge, instead of a commissioner. For at least two reasons, this is a mistake. First, more than 90% of all family law matters are heard by commissioners. As a result, most family law commissioners are more knowledgeable about family law that the average judge.

Secondly, most Master Calendar courts are extremely crowded and judges seldom any have spare time to hear family law cases. As a result, the Master Calendar judge often "trails" family law cases for days at a time, until a courtroom becomes available. This can cost the parties considerable amounts in attorneys fees.

For the balance of this discussion, the term "judge" will refer to a judge or commissioner.

Calendar Call

After taking the bench, the first thing the judge does is call the calendar. The purpose of this is to enable the judge to determine how many cases are actually going to be heard and how long each one will take. With this information, the judge can plan the sequence of the hearings.

When the calendar is called the judge simply calls each case in alphabetical order and asks the attorneys or persons who are representing themselves how long they estimate it will take to have the case heard. If different hearing times are given, the judge will usually take the long estimate so that each party will have as much time as possible.

During the calendar call there may be one or more cases that are not ready to be heard, either because one of the attorneys has not arrived or because the attorneys are negotiating the case in the hallway. When this happens, the case is put on "second call." This means that the judge will call the case later in the morning.

When the calendar call is completed, the judge has a list of cases that are ready to be heard. The judge will then call the cases for hearing, with the shortest time estates being called first. These are usually cases in which the attorneys are simply going to recite the terms of an agreement or where one party has defaulted and is not expected to show up.

Hearing or Trial Preliminaries

Review of Pleadings

Court rules require the attorneys to file their papers ("pleadings") before the hearing date. This gives the judge and the attorneys an opportunity to know what each side is going to asking the judge to do. Before the judge comes out in the morning he or she will usually have read the court papers that have been filed and will be familiar with the "issues" that are to be decided.
If you are in court for the final trial of your case, both attorneys will have given the judge a "trial brief." This is an outline of the case and the issues which are going to be litigated. Where there is a complex or unique legal issue, the attorneys might also give the judge a "Memorandum of Points and Authorities," which is a discussion of relevant legal precedents.
If financial issues, such as child support, spousal support or attorneys fees and costs, are to be decided, each attorney will also be required to give the judge their client's current Income and Expense Declarations.

Stating of Appearances

When your case is called by the judge, both attorneys and the clients (the "parties") step forward and take their places at the counsel table. Usually the attorneys sit on the inside chairs and the clients sit in the chairs at opposite ends of the table. The Attorneys will first state their "appearances for the record." For example, Mr. Rabenn will say, "Good morning, your honor. I am Glen Rabenn, counsel for Petitioner Jane Jones, who is present."

Administering the Oath

Before anything takes place, the clerk will administer the following oath to both parties by instructing them to raise their right hands. The clerk will then ask:
"Do you solemnly swear to tell the truth, the whole truth and nothing but the truth, so help you God?" If you are in any way uncomfortable with the standard oath, you can request to take an oath that does not refer to God.

In a clear and audible voice, both parties are required to say "I do."

If your religious convictions prevent you from swearing to God, the clerk will administer another oath that does not contain a reference to God. Please advise Mr. Rabenn if you wish the alternative oath administered to you.

In either case, you should understand that your testimony is being given under penalty of perjury. This means that you can be charged with and convicted of a crime if you knowingly tell a lie when you testify.

Stipulations and Unresolved Issues

The judge will then want to determine which issues have been settled by agreement ("stipulations") and which ones remain unresolved. One of the attorneys will then recite any agreements and list the issues which remain "contested." In many courts, the judges insist that all agreement be put in writing and given to the clerk before the case is called.
After the judge reviews the written agreement or listens to the statement of the settled issues, he or she will ask the parties if they understand the agreement. Once the parties tell the judge that they understand the agreement and are willing to abide by its terms, the judge will usually make a statement confirming the agreement as a court order, such as, "The court accepts the stipulations of the parties and confirms it as an order of this court."

Testimony

Once the preliminaries are completed the actual hearing or trial begins. If the hearing is an Order to Show Cause for temporary orders or for modification of existing orders, the party who filed the Order to Show Cause puts on his or her case first. In the case of a dissolution trial, the petitioner - the person who filed the case - goes first.

Direct Examination

The hearing usually begins with the attorney calling his or her client for "direct examination," although that is not always done. Sometimes an attorney will decide to call a witness "out of order" because that witness cannot stay long or for strategic reasons.

During direct examination the attorney will ask questions that will enable the judge to understand his or her client's position. In most cases the attorney will have previously discussed direct testimony with the client and witnesses, so the questions should not come as a surprise.
Rules of Evidence in Direct Examination

In conducting direct examination, there are certain rules of evidence that must be followed. The most common rule is that any question must be "relevant" to the subject matter. For example, if the only contested issue is child support, a question about the client's political affiliation would be irrelevant and, therefore, objectionable.

A question cannot call for "hearsay" testimony. Hearsay is anything said by another person who is not present in court. The question is objectionable if the answer to the question is being offered for its truth. An example of a question that is objectionable under the hearsay rule is the following: "Mrs. Smith, did Mr. Smith's employer tell you how much Mr. Smith is being paid?"

The only way this information can be presented to the judge is to actually subpoena the employer to come to court or to subpoena the employer's records.

Another important rule of evidence in direct examination is that the question must not "lead" the witness. A leading question is one that suggests the answer. For example, where the issue is spousal support, it would be improper for the wife's attorney to ask the wife, "You haven't had a job for twenty years, have you, Mrs. Smith?"

Instead, the attorney should ask, "When is the last time you had a job?"

If the attorney has properly prepared the wife for her direct testimony, she should quickly answer, "Twenty years ago."

Cross-Examination

After direct examination is completed the other attorney is permitted to cross-examine the witness. Cross-examination gives the other attorney an opportunity to test the credibility of the witness and, on occasion, show the weaknesses in the other party's case.
In cross-examination the attorney asking the questions is limited to the scope of the questions asked on direct examination. Thus, if the direct examination was limited to question concerning child support, the attorney conducting cross-examination cannot ask questions about community property.

Rules of Evidence in Cross-Examination

The attorney asking questions on cross-examination must also follow the rules of evidence, but some flexibility is allowed. For example, leading questions, which are not allowed in direct examination, are permitted in cross-examination. However, the rules of relevance and hearsay must still be followed.

During cross-examination, the attorney is not permitted to pose questions that are "argumentative." For example, an improper question would be,
"Mr. Smith, are you seriously asking the court to believe that you can't find a job?"
These types of questions may be common in courtroom scenes on television, but they are not allowed in real hearing and trials.

Further Examinations

After the completion of cross-examination, the attorney who called the witness is permitted to conduct "re-direct examination." These questions must be limited to the subject matter of the cross-examination.

An attorney will ordinarily conduct re-direct examination if his or her witness said something inaccurate or misleading while being cross-examined. For instance, where the issue is child custody, under cross-examination the following question and answer might take place:

Question: Isn't it true that you leave your child home alone?

Answer: Yes, it is.

If the parent's attorney knows that his client does not actually leave the child home alone, he might ask the following question during re-direct examination:

Question: When you were being cross-examined, you said that you leave your child home Alone. Isn't that true?

Answer: Well, not exactly.

Question: What did you intend to say?

Answer: Sometimes I leave my child home alone with her
16 year-old sister.

After re-direct examination is completed, the other attorney can ask more questions in "re-cross examination," in which the scope of questions is limited to the scope of the re-direct examination.

General Rules for Testimony

Regardless of which attorney is conducting the examination, there are several rules that you should follow when you are testifying:

1) Listen carefully to the question that you are being asked.

2) Do not guess at the answer to a question. Instead of guessing, simply say that you do not know or do not remember the information requested. However, you may estimate an answer, such as an approximate date or amount of money.

3) Wait until the question has been completed before you start to give your answer. This is important for several reasons:

•If you prematurely answer a question you might give the cross-examining attorney some information that he or she had not thought of asking.

•The court reporter can only record one person talking at a time. So, if you start talking while the attorney is asking the question, the court reporter may not be able to keep a clear record of the proceedings.
•If the other attorney q
uestioning you and Mr. Rabenn wishes to object, he will not have any opportunity to make the objection if you answer immediately.

4) State your answers clearly. If the question asks for yes or no answer say "yes" or "no," instead of "uh huh" or "uh uh."

5) Answer only the question that is asked. Never go beyond the scope of the question.

6) Pause a few moments after the question has been asked before you start talking. This will give you time to think about the question and formulate your answer. It will also give Mr. Rabenn time to make appropriate objections to the judge.

7) Stop talking if the judge or either of the attorneys starts to talk.

8) If you feel physically or emotionally unable to continue with the examination you should make that fact known to the judge immediately.

Documentary Evidence

A judge decides the case by applying the law to the facts of the case. The facts are based on the evidence that is present to the judge during the trial.

Evidence is usually presented in two forms: oral testimony and documents. When an attorney wishes to present documentary evidence, there are several steps that must be followed:

Marking of Exhibits

The first this the attorney does is to request that the clerk "mark" the document as an exhibit. This involves assigning a number or letter to the document so that it can be easily identified whiled the trial is in progress. In most courts written evidence submitted by the Petitioner is assigned numbers, while the Respondent's exhibits are given letters.

When an attorney wants to have an exhibit marked, he or she says,

"Your honor, I would like this [letter, contract, etc.] to be marked as Petitioner's Exhibit 1."
If there are going to be a significant number of exhibits presented, the judge will want the attorneys to have the exhibits marked before the trial starts. This avoids using court time to mark exhibits.

Foundation

Marking an exhibit does not guarantee that the judge will allow it to be "received." Before that happens, the attorney must first establish the "foundation" for the receipt of the document. "Laying a foundation" is the process by which the attorney submitting a document shows the judge that it is authentic.

In dissolution cases it is common for a spouse's payroll records to be subpoenaed to court. Before the judge can consider such records, the attorney submitting them must first have the spouse's employer testify that the document is true and correct. Once this is done, the records will be received as evidence.

Receiving Evidence

Once the foundation has been properly laid, the propounding attorney will ask,
"Your honor, I am requesting that this document be received as Petitioner's exhibit 1."
Before the judge receives an exhibit, the other attorney will be asked if there are any objections to the document. As with oral testimony, there are many grounds for objecting to the receipt of documentary evidence, such as relevancy or hearsay.

Respondent's or Responding Party's Case

After the requesting party in an Order to Show Cause hearing or the Petitioner in a trial has presented all of his or her evidence, that party's attorney will say, "Your honor, Petitioner rests." It is then time for the other party's attorney to present his or her case. The same procedures and rules discussed above are followed during the presentation of the other party's case.

Rebuttal

When the responding party or the Respondent has finished his or her case, the trial is not necessarily over. The first party's attorney now has the right to call "rebuttal" witnesses to contract the other party's evidence. The most common rebuttal witness is the other party, but any witness can be called for rebuttal purposes.

Closing Arguments

Once the testimony stage of the trial is completed it is time for the attorneys to make their "closing arguments" to the judge. In the closing argument each attorney summarizes the important points of the case and tells the judge why his or her client should win on the various issues involved in the case. In their closing arguments the attorneys will often refer to statutes or relevant appellate court decisions that are relevant to the case.

Some judges prefer to have the attorneys submit their arguments in writing. Where this is the practice, the judge will usually order the Petitioner's attorney to submit a closing argument within two weeks, followed by the Respondent's closing argument two weeks later, and then a rebuttal argument by the Petitioner one or two weeks after that.

After the arguments are completed, the judge can either announce the decision orally in open court or take the matter "under submission." This means that the judge is going to think the case over and issue a written decision within a few weeks.

Completion of the Hearing or Trial

The reference in the title of this discussion to your day in court is somewhat misleading. Because of the staggering number of dissolution cases that are being filed, family law courts are becoming overburdened with cases. This means that even if your case is on calendar for a particular day, there is no guarantee that will be completed, or even started, on that day.

In fact, in many family law courts as many as one-half of the matters on calendar in a particular day have to be continued to another day for completion. In some courts, it can take many separate court days, spread out more than six months to a year, to complete a lengthy trial. This can cause problems for the attorneys in the presentation of their cases, not to mention the inconvenience to the parties and witnesses. Unfortunately, it is a fact of life in the judicial system.

TYPES OF CHILD CUSTODY

CALIFORNIA FAMILY CODE

3000. Unless the provision or context otherwise requires, thedefinitions in this chapter govern the construction of this division.

3002. "Joint custody" means joint physical custody and joint legalcustody.

3003. "Joint legal custody" means that both parents shall share theright and the responsibility to make the decisions relating to thehealth, education, and welfare of a child.

3004. "Joint physical custody" means that each of the parents shallhave significant periods of physical custody. Joint physicalcustody shall be shared by the parents in such a way so as to assurea child of frequent and continuing contact with both parents, subjectto Sections 3011 and 3020.

3006. "Sole legal custody" means that one parent shall have theright and the responsibility to make the decisions relating to thehealth, education, and welfare of a child.

3007. "Sole physical custody" means that a child shall reside withand be under the supervision of one parent, subject to the power ofthe court to order visitation.

DISCLOSURE REQUIREMENTS

CALIFORNIA FAMILY CODE

2100. The Legislature finds and declares the following:
(a) It is the policy of the State of California (1) to marshal,
preserve, and protect community and quasi-community assets and
liabilities that exist at the date of separation so as to avoid
dissipation of the community estate before distribution, (2) to
ensure fair and sufficient child and spousal support awards, and (3)
to achieve a division of community and quasi-community assets and
liabilities on the dissolution or nullity of marriage or legal
separation of the parties as provided under California law.
(b) Sound public policy further favors the reduction of the
adversarial nature of marital dissolution and the attendant costs by
fostering full disclosure and cooperative discovery.
(c) In order to promote this public policy, a full and accurate
disclosure of all assets and liabilities in which one or both parties
have or may have an interest must be made in the early stages of a
proceeding for dissolution of marriage or legal separation of the
parties, regardless of the characterization as community or separate,
together with a disclosure of all income and expenses of the
parties. Moreover, each party has a continuing duty to immediately,
fully, and accurately update and augment that disclosure to the
extent there have been any material changes so that at the time the
parties enter into an agreement for the resolution of any of these
issues, or at the time of trial on these issues, each party will have
a full and complete knowledge of the relevant underlying facts.
　
　
2101. Unless the provision or context otherwise requires, the
following definitions apply to this chapter:
(a) "Asset" includes, but is not limited to, any real or personal
property of any nature, whether tangible or intangible, and whether
currently existing or contingent.
(b) "Default judgment" does not include a stipulated judgment or
any judgment pursuant to a marital settlement agreement.
(c) "Earnings and accumulations" includes income from whatever
source derived, as provided in Section 4058.
(d) "Expenses" includes, but is not limited to, all personal
living expenses, but does not include business related expenses.
(e) "Income and expense declaration" includes the Income and
Expense Declaration forms approved for use by the Judicial Council,
and any other financial statement that is approved for use by the
Judicial Council in lieu of the Income and Expense Declaration, if
the financial statement form satisfies all other applicable criteria.
(f) "Liability" includes, but is not limited to, any debt or
obligation, whether currently existing or contingent.
　
　
2102. (a) From the date of separation to the date of the
distribution of the community or quasi-community asset or liability
in question, each party is subject to the standards provided in
Section 721, as to all activities that affect the assets and
liabilities of the other party, including, but not limited to, the
following activities:
(1) The accurate and complete disclosure of all assets and
liabilities in which the party has or may have an interest or
obligation and all current earnings, accumulations, and expenses,
including an immediate, full, and accurate update or augmentation to
the extent there have been any material changes.
(2) The accurate and complete written disclosure of any investment
opportunity, business opportunity, or other income-producing
opportunity that presents itself after the date of separation, but
that results from any investment, significant business activity
outside the ordinary course of business, or other income-producing
opportunity of either spouse from the date of marriage to the date of
separation, inclusive. The written disclosure shall be made in
sufficient time for the other spouse to make an informed decision as
to whether he or she desires to participate in the investment
opportunity, business, or other potential income-producing
opportunity, and for the court to resolve any dispute regarding the
right of the other spouse to participate in the opportunity. In the
event of nondisclosure of an investment opportunity, the division of
any gain resulting from that opportunity is governed by the standard
provided in Section 2556.
(3) The operation or management of a business or an interest in a
business in which the community may have an interest.
(b) From the date that a valid, enforceable, and binding
resolution of the disposition of the asset or liability in question
is reached, until the asset or liability has actually been
distributed, each party is subject to the standards provided in
Section 721 as to all activities that affect the assets or
liabilities of the other party. Once a particular asset or liability
has been distributed, the duties and standards set forth in Section
721 shall end as to that asset or liability.
(c) From the date of separation to the date of a valid,
enforceable, and binding resolution of all issues relating to child
or spousal support and professional fees, each party is subject to
the standards provided in Section 721 as to all issues relating to
the support and fees, including immediate, full, and accurate
disclosure of all material facts and information regarding the income
or expenses of the party.
　
　
2103. In order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to a proceeding for dissolution of the marriage
or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104 and a final
declaration of disclosure under Section 2105, unless service of the
final declaration of disclosure is waived pursuant to Section 2105 or
2110, and shall file proof of service of each with the court.
　
　
2104. (a) After or concurrently with service of the petition for
dissolution or nullity of marriage or legal separation of the
parties, each party shall serve on the other party a preliminary
declaration of disclosure, executed under penalty of perjury on a
form prescribed by the Judicial Council. The commission of perjury
on the preliminary declaration of disclosure may be grounds for
setting aside the judgment, or any part or parts thereof, pursuant to
Chapter 10 (commencing with Section 2120), in addition to any and
all other remedies, civil or criminal, that otherwise are available
under law for the commission of perjury.
(b) The preliminary declaration of disclosure shall not be filed
with the court, except on court order; however, the parties shall
file proof of service of the preliminary declaration of disclosure
with the court.
(c) The preliminary declaration of disclosure shall set forth with
sufficient particularity, that a person of reasonable and ordinary
intelligence can ascertain, all of the following:
(1) The identity of all assets in which the declarant has or may
have an interest and all liabilities for which the declarant is or
may be liable, regardless of the characterization of the asset or
liability as community, quasi-community, or separate.
(2) The declarant's percentage of ownership in each asset and
percentage of obligation for each liability where property is not
solely owned by one or both of the parties. The preliminary
declaration may also set forth the declarant's characterization of
each asset or liability.
(d) A declarant may amend his or her preliminary declaration of
disclosure without leave of the court. Proof of service of any
amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each
party shall provide the other party with a completed income and
expense declaration unless an income and expense declaration has
already been provided and is current and valid.
　
　
　
2105. (a) Except by court order for good cause, before or at the
time the parties enter into an agreement for the resolution of
property or support issues other than pendente lite support, or, if
the case goes to trial, no later than 45 days before the first
assigned trial date, each party, or the attorney for the party in
this matter, shall serve on the other party a final declaration of
disclosure and a current income and expense declaration, executed
under penalty of perjury on a form prescribed by the Judicial
Council, unless the parties mutually waive the final declaration of
disclosure. The commission of perjury on the final declaration of
disclosure by a party may be grounds for setting aside the judgment,
or any part or parts thereof, pursuant to Chapter 10 (commencing with
Section 2120), in addition to any and all other remedies, civil or
criminal, that otherwise are available under law for the commission
of perjury.
(b) The final declaration of disclosure shall include all of the
following information:
(1) All material facts and information regarding the
characterization of all assets and liabilities.
(2) All material facts and information regarding the valuation of
all assets that are contended to be community property or in which it
is contended the community has an interest.
(3) All material facts and information regarding the amounts of
all obligations that are contended to be community obligations or for
which it is contended the community has liability.
(4) All material facts and information regarding the earnings,
accumulations, and expenses of each party that have been set forth in
the income and expense declaration.
(c) In making an order setting aside a judgment for failure to
comply with this section, the court may limit the set aside to those
portions of the judgment materially affected by the nondisclosure.
(d) The parties may stipulate to a mutual waiver of the
requirements of subdivision (a) concerning the final declaration of
disclosure, by execution of a waiver under penalty of perjury entered
into in open court or by separate stipulation. The waiver shall
include all of the following representations:
(1) Both parties have complied with Section 2104 and the
preliminary declarations of disclosure have been completed and
exchanged.
(2) Both parties have completed and exchanged a current income and
expense declaration, that includes all material facts and
information regarding that party's earnings, accumulations, and
expenses.
(3) Both parties have fully complied with Section 2102 and have
fully augmented the preliminary declarations of disclosure, including
disclosure of all material facts and information regarding the
characterization of all assets and liabilities, the valuation of all
assets that are contended to be community property or in which it is
contended the community has an interest, and the amounts of all
obligations that are contended to be community obligations or for
which it is contended the community has liability.
(4) The waiver is knowingly, intelligently, and voluntarily
entered into by each of the parties.
(5) Each party understands that this waiver does not limit the
legal disclosure obligations of the parties, but rather is a
statement under penalty of perjury that those obligations have been
fulfilled. Each party further understands that noncompliance with
those obligations will result in the court setting aside the
judgment.
　
2106. Except as provided in subdivision (d) of Section 2105 or in
Section 2110, absent good cause, no judgment shall be entered with
respect to the parties' property rights without each party, or the
attorney for that party in this matter, having executed and served a
copy of the final declaration of disclosure and current income and
expense declaration. Each party, or his or her attorney, shall
execute and file with the court a declaration signed under penalty of
perjury stating that service of the final declaration of disclosure
and current income and expense declaration was made on the other
party or that service of the final declaration of disclosure has been
waived pursuant to subdivision (d) of Section 2105 or in Section
2110.
　
　
2107. (a) If one party fails to serve on the other party a
preliminary declaration of disclosure under Section 2104 or a final
declaration of disclosure under Section 2105, or fails to provide the
information required in the respective declarations with sufficient
particularity, and if the other party has served the respective
declaration of disclosure on the noncomplying party, the complying
party may, within a reasonable time, request preparation of the
appropriate declaration of disclosure or further particularity.
(b) If the noncomplying party fails to comply with a request under
subdivision (a), the complying party may do either or both of the
following:
(1) File a motion to compel a further response.
(2) File a motion for an order preventing the noncomplying party
from presenting evidence on issues that should have been covered in
the declaration of disclosure.
(c) If a party fails to comply with any provision of this chapter,
the court shall, in addition to any other remedy provided by law,
impose money sanctions against the noncomplying party. Sanctions
shall be in an amount sufficient to deter repetition of the conduct
or comparable conduct, and shall include reasonable attorney's fees,
costs incurred, or both, unless the court finds that the noncomplying
party acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(d) If a court enters a judgment when the parties have failed to
comply with all disclosure requirements of this chapter, the court
shall set aside the judgment. The failure to comply with the
disclosure requirements does not constitute harmless error.
(e) Upon the motion to set aside judgment, the court may order the
parties to provide the preliminary and final declarations of
disclosure that were exchanged between them. Absent a court order to
the contrary, the disclosure declarations shall not be filed with
the court and shall be returned to the parties.
　
　
2108. At any time during the proceeding, the court has the
authority, on application of a party and for good cause, to order the
liquidation of community or quasi-community assets so as to avoid
unreasonable market or investment risks, given the relative nature,
scope, and extent of the community estate. However, in no event
shall the court grant the application unless, as provided in this
chapter, the appropriate declaration of disclosure has been served by
the moving party.
　
　
2109. The provisions of this chapter requiring a final declaration
of disclosure do not apply to a summary dissolution of marriage, but
a preliminary declaration of disclosure is required.
　
2110. In the case of a default judgment, the petitioner may waive
the final declaration of disclosure requirements provided in this
chapter, and shall not be required to serve a final declaration of
disclosure on the respondent nor receive a final declaration of
disclosure from the respondent. However, a preliminary declaration
of disclosure by the petitioner is required.
　
　
2111. A disclosure required by this chapter does not abrogate the
attorney work product privilege or impede the power of the court to
issue protective orders.
　
　
2112. The Judicial Council shall adopt appropriate forms and modify
existing forms to effectuate the purposes of this chapter.
　
　
2113. This chapter applies to any proceeding commenced on or after
January 1, 1993.

MANAGEMENT AND CONTROL OF COMMUNITY PROPERTY

CALIFORNIA FAMILY CODE

1100. (a) Except as provided in subdivisions (b), (c), and (d) andSections 761 and 1103, either spouse has the management and controlof the community personal property, whether acquired prior to or onor after January 1, 1975, with like absolute power of disposition,other than testamentary, as the spouse has of the separate estate ofthe spouse. (b) A spouse may not make a gift of community personal property,or dispose of community personal property for less than fair andreasonable value, without the written consent of the other spouse.This subdivision does not apply to gifts mutually given by bothspouses to third parties and to gifts given by one spouse to theother spouse. (c) A spouse may not sell, convey, or encumber community personalproperty used as the family dwelling, or the furniture, furnishings,or fittings of the home, or the clothing or wearing apparel of theother spouse or minor children which is community personal property,without the written consent of the other spouse. (d) Except as provided in subdivisions (b) and (c), and in Section1102, a spouse who is operating or managing a business or aninterest in a business that is all or substantially all communitypersonal property has the primary management and control of thebusiness or interest. Primary management and control means that themanaging spouse may act alone in all transactions but shall giveprior written notice to the other spouse of any sale, lease,exchange, encumbrance, or other disposition of all or substantiallyall of the personal property used in the operation of the business(including personal property used for agricultural purposes), whetheror not title to that property is held in the name of only onespouse. Written notice is not, however, required when prohibited bythe law otherwise applicable to the transaction. Remedies for the failure by a managing spouse to give priorwritten notice as required by this subdivision are only as specifiedin Section 1101. A failure to give prior written notice shall notadversely affect the validity of a transaction nor of any interesttransferred. (e) Each spouse shall act with respect to the other spouse in themanagement and control of the community assets and liabilities inaccordance with the general rules governing fiduciary relationshipswhich control the actions of persons having relationships of personalconfidence as specified in Section 721, until such time as theassets and liabilities have been divided by the parties or by acourt. This duty includes the obligation to make full disclosure tothe other spouse of all material facts and information regarding theexistence, characterization, and valuation of all assets in which thecommunity has or may have an interest and debts for which thecommunity is or may be liable, and to provide equal access to allinformation, records, and books that pertain to the value andcharacter of those assets and debts, upon request.

1101. (a) A spouse has a claim against the other spouse for anybreach of the fiduciary duty that results in impairment to theclaimant spouse's present undivided one-half interest in thecommunity estate, including, but not limited to, a single transactionor a pattern or series of transactions, which transaction ortransactions have caused or will cause a detrimental impact to theclaimant spouse's undivided one-half interest in the communityestate. (b) A court may order an accounting of the property andobligations of the parties to a marriage and may determine the rightsof ownership in, the beneficial enjoyment of, or access to,community property, and the classification of all property of theparties to a marriage. (c) A court may order that the name of a spouse shall be added tocommunity property held in the name of the other spouse alone or thatthe title of community property held in some other title form shallbe reformed to reflect its community character, except with respectto any of the following: (1) A partnership interest held by the other spouse as a generalpartner. (2) An interest in a professional corporation or professionalassociation. (3) An asset of an unincorporated business if the other spouse isthe only spouse involved in operating and managing the business. (4) Any other property, if the revision would adversely affect therights of a third person. (d) (1) Except as provided in paragraph (2), any action undersubdivision (a) shall be commenced within three years of the date apetitioning spouse had actual knowledge that the transaction or eventfor which the remedy is being sought occurred. (2) An action may be commenced under this section upon the deathof a spouse or in conjunction with an action for legal separation,dissolution of marriage, or nullity without regard to the timelimitations set forth in paragraph (1). (3) The defense of laches may be raised in any action broughtunder this section. (4) Except as to actions authorized by paragraph (2), remediesunder subdivision (a) apply only to transactions or events occurringon or after July 1, 1987. (e) In any transaction affecting community property in which theconsent of both spouses is required, the court may, upon the motionof a spouse, dispense with the requirement of the other spouse'sconsent if both of the following requirements are met: (1) The proposed transaction is in the best interest of thecommunity. (2) Consent has been arbitrarily refused or cannot be obtained dueto the physical incapacity, mental incapacity, or prolonged absenceof the nonconsenting spouse. (f) Any action may be brought under this section without filing anaction for dissolution of marriage, legal separation, or nullity, ormay be brought in conjunction with the action or upon the death of aspouse. (g) Remedies for breach of the fiduciary duty by one spouse,including those set out in Sections 721 and 1100, shall include, butnot be limited to, an award to the other spouse of 50 percent, or anamount equal to 50 percent, of any asset undisclosed or transferredin breach of the fiduciary duty plus attorney's fees and court costs. The value of the asset shall be determined to be its highest valueat the date of the breach of the fiduciary duty, the date of thesale or disposition of the asset, or the date of the award by thecourt. (h) Remedies for the breach of the fiduciary duty by one spouse,as set forth in Sections 721 and 1100, when the breach falls withinthe ambit of Section 3294 of the Civil Code shall include, but not belimited to, an award to the other spouse of 100 percent, or anamount equal to 100 percent, of any asset undisclosed or transferredin breach of the fiduciary duty.

1102. (a) Except as provided in Sections 761 and 1103, eitherspouse has the management and control of the community real property,whether acquired prior to or on or after January 1, 1975, but bothspouses, either personally or by a duly authorized agent, must joinin executing any instrument by which that community real property orany interest therein is leased for a longer period than one year, oris sold, conveyed, or encumbered. (b) Nothing in this section shall be construed to apply to alease, mortgage, conveyance, or transfer of real property or of anyinterest in real property between husband and wife. (c) Notwithstanding subdivision (b): (1) The sole lease, contract, mortgage, or deed of the husband,holding the record title to community real property, to a lessee,purchaser, or encumbrancer, in good faith without knowledge of themarriage relation, shall be presumed to be valid if executed prior toJanuary 1, 1975. (2) The sole lease, contract, mortgage, or deed of either spouse,holding the record title to community real property to a lessee,purchaser, or encumbrancer, in good faith without knowledge of themarriage relation, shall be presumed to be valid if executed on orafter January 1, 1975. (d) No action to avoid any instrument mentioned in this section,affecting any property standing of record in the name of eitherspouse alone, executed by the spouse alone, shall be commenced afterthe expiration of one year from the filing for record of thatinstrument in the recorder's office in the county in which the landis situated. (e) Nothing in this section precludes either spouse fromencumbering his or her interest in community real property, asprovided in Section 2033, to pay reasonable attorney's fees in orderto retain or maintain legal counsel in a proceeding for dissolutionof marriage, for nullity of marriage, or for legal separation of theparties.

1103. (a) Where one or both of the spouses either has a conservatorof the estate or lacks legal capacity to manage and control communityproperty, the procedure for management and control (which includesdisposition) of the community property is that prescribed in Part 6(commencing with Section 3000) of Division 4 of the Probate Code. (b) Where one or both spouses either has a conservator of theestate or lacks legal capacity to give consent to a gift of communitypersonal property or a disposition of community personal propertywithout a valuable consideration as required by Section 1100 or to asale, conveyance, or encumbrance of community personal property forwhich a consent is required by Section 1100, the procedure for thatgift, disposition, sale, conveyance, or encumbrance is thatprescribed in Part 6 (commencing with Section 3000) of Division 4 ofthe Probate Code. (c) Where one or both spouses either has a conservator of theestate or lacks legal capacity to join in executing a lease, sale,conveyance, or encumbrance of community real property or any interesttherein as required by Section 1102, the procedure for that lease,sale, conveyance, or encumbrance is that prescribed in Part 6(commencing with Section 3000) of Division 4 of the Probate Code.