Wednesday, January 3, 2018

You Don't Have Rights if You Don't Know What They Are?

Not surprisingly, many clients believe what their friends tell them and what they see on TV and Facebook.  Unfortunately, it's best to actually know at least some of the law that governs the type of issue you have. If you had a complicated separate property issue, compounded by numerous transactions that may or may not create further problems, you would likely have no idea how those issues would be handled.

Or if you have side businesses which add to your employment income, and you don't want to pay high spousal, well-- you're going to need a plan well in advance!  Unfortunately, a client may just want to agree to shared visitation where one spouse never pays anything but the other spouse then has to pay increased support because there is not any child support offset?  A typical client isn't going to know these things.



Or, if you had a part time business that you owned years before you met your spouse, and then he started siphoning money out of the business without you knowing it, AND creating more credit card debt (without you knowing it) ---- you are going to have some large issues.  OR if you were married over 20 years and now have huge health issues, should you let your ex bifurcate your case?

Maybe your spousal is too high or too low; maybe you don't understand how it's calculated to begin with, so you wouldn't know if it was right to start with?  Maybe you think all attorneys work the same way, but in fact, each attorney handles their clients differently.  Attorney herein has seen showboat attorneys, bragging attorneys, pathetic attorneys, just plain overly aggressive attorneys, and some really lame attorneys that can't or don't have any legal reasons to bring motions forward, and just lose them but keep getting paid?  What the hell are they telling their client?  Lies??






Knowing that attorneys act differently, we realize that could mean clients either don't know how attorneys should act, or just assume their attorney is doing things correctly.  Over the years, what is surprising to see in Family law, are attorneys that may have come from a big name school, but can't draft a decent argument for court, much less argue the case. Oftentimes, the documents are hardly persuasive.   Or attorneys that have been around for 20 years and think they own the courtroom, but can't even file a procedurally correct document, or think they can simply bamboozle opposing counsel by using invalid/improper written threats?
None of these things is lost on attorney herein. Attorney carefully sizes up all other attorneys so that we know what we are working with. A strategy plan is always used, even though opposing attorneys usually believe that no plan is being used. (Haha  that's half the battle there...)  We know other attorneys never read what we write here and even if they did, it wouldn't matter.  Attorney usually does not lose cases. End of story.

Tuesday, October 10, 2017

Is Trial Required in Your Case?

Most cases in Family Law may not require a trial or long cause hearing or hearings, BUT if a hearing requires taking testimony, then normally that hearing goes on the long cause calendar. This can get expensive due to the time and evidence preparation and the planned cross examination, depending on how many witnesses are needed.  To avoid the time and expense, if you have no big issues that you can't solve then you may not need a long cause hearing at all.

Unfortunately, some cases will require such a hearing or trial. Although this can become rather costly, it some cases it will be worth it, especially if you are owed money, property, or the kids were wrongly taken from you; if false (provably false) allegations were used to gain money/property/custody, then you may not have much choice in order to change the status.
Family law has some very specific time limits on how long you can wait before the statute might run on certain issues-- many of these Codes, especially Family Code Sections  2105, 2106, 2107, 2120, 2121, 2122, 2123, 2125. And FC 2640 which relates to separate property reimbursements is a real nightmare if the "judge" who is not a judge (but is commissioner) doesn't understand how it works?  Be very, very careful if you have this issue because quite frankly, with underwater property, the wrong ruling can cause one spouse to lose all cash put down on a property PLUS loss of the property itself.

We say this only because we have seen it happen.  It is likely only a writ or an appeal might salvage the bad ruling. The appeal might be won but unless some type of stay is in place, there would still be a problem.  And of course, that can be extremely costly.  http://codes.findlaw.com/ca/family-code/

Wednesday, September 20, 2017

DO YOU NEED TEMPORARY SUPPORT? YES!!!!

It is possible.......that a client may fail to request temporary  
       
 spousal support "unknowingly"......
 and in so doing, because an "agreement" or stipulation was entered as to permanent support, and there was no motion to the court asking for temporary support-- there was no date to which a trial court could make the permanent support order retroactive in accordance with Family Code Section 4333. Family Code section 4333 controls the permissible date on which a permanent spousal support order may begin.

In contrast, an order for temporary spousal may, at the court's discretion, be made retroactive to the date on which the petition for dissolution was filed, or in some cases, on the date that the request for order was filed.  


[Under FC4009, an original order for child support may generally be made retroactive to the date of filing the petition, complaint, or other initial pleading]

Basically, without a filed separate request for temporary spousal support (via RFO normally), the court may not make a spousal support order retroactive to the "filing" date of a petition for dissolution.

The bottom line is that in most cases, it is best to ask for temporary spousal via filed motion just to be sure.  The fact that you filed it and it is heard will cover the problem encountered above. The opinion on this case, (Mendoza v Cuellar) was August 25 2017 Fourth Appellate District California.

If you want/or need spousal support call attorney herein today.

Where your ex is self employed, claims not to be working [but is working], is frauding the system, or other issues which might cause ability to obtain temporary support difficult--attorney has years of experience in difficult issues such as these and may be able to help you.  Call 530.359.8810 for help.







Tuesday, July 4, 2017

Good Advice--Family, Criminal or Civil Case

I read and laughed at another attorney's post on a criminal law blog;  Essentially he's telling people to shut up and don't be posting online about their cases. He's pretty funny actually, great sense of humor.

In Family Law, we don't see this specific issue as much as compared to Criminal law cases. But this attorney is correct.

In Family Law, it's even worse, because the Jerry Springer quality in people divorcing comes out, and that JS quality can ruin your case.  I won't say exactly why or how but common sense is common sense.  I found this data directly below, kind of interesting........

Here is what the OTHER attorney (in Philadelphia area) said----- what he says below is exactly correct.  https://phillylawblog.wordpress.com/tag/shut-up/


 Free Legal Advice of the Day — STOP TALKING ON AVVO.

Today’s legal pro-tip: If you are a criminal defendant, or a potential criminal defendant — SHUT UP.
Don’t talk on the internet, even if you get “free advice” from professionals on the internet.
So if you’re a criminal defendant, or a potential criminal defendant, do the following:
  1. Shut up.
  2. Don’t post on about your case on the internet. This means Avvo, Facebook, Twitter, MySpace, Instagram, Grindr — WHATEVER.
  3. Call an attorney immediately.
  4. Did I mention SHUT UP?
Talking on the internet cannot help you. It can, and will, only hurt your case.
You hire a lawyer, you get someone who’ll be the only person between you and a prosecutor gunning for your head.
In the meantime SHUT UP. Free legal advice on the internet is worth what you pay for it. Except this advice. This advice might just save your ass.

-------------------------------------------------------------------------------------
In Family  law--- I  (attorney herein) say there are 3 types of DRAMA. Such "drama" usually leads to lying of some type........

First---the type of drama that involves real facts, not blown out of proportion, and it creates an issue, possibly a large issue, i.e. One parent gets drunk, piles kids into car, drives 10 miles, and crashes the car into something, let's say a tree.  No one is hurt, no one sees this happen, and the parent and kids are not hurt.

Second--- the type of drama that involves real facts, but blown out of proportion, so as to make the other person appear more guilty than he/she is, i.e., both parties are drinking, inside a house, there are no kids there, then both parties start playing around and one party runs into a corner of a counter. That party (hitting counter) decides he/she is going to file a DV (domestic violence) case based only on that incident.

Third--- The type of drama that does not involve real facts except as to those leading up-- to some altercation, or minor situation;  the only witness might be a 9yr old child that favors one parent; one parent (whom the child favors) will tell the child he/she needs the child to tell someone else that something else happened, when in fact nothing substantial actually has happened.  The child agrees to do it and the parent then uses the false
"fact" against the other parent in order to gain advantage in either custody, visitation, or support.


Now if you don't believe any of the above, then  you have probably never had kids, never known anything about divorce (OR Jerry Springer) or have lived under a rock.  I might excuse you if you lived under the rock.

Wednesday, April 12, 2017

Why Pay to "Settle" Cases When You can Win??

Remarkably, some attorneys are in the business of charging fees to "settle" cases when you could have done that yourself....often they call this "mediation" of cases, and we don't mean mediation as to child custody.  We mean mediation-- of all issues.


PITFALLS OF MEDIATION.....YOU ARE NOT REPRESENTED BY COUNSEL AND YOU  DON'T KNOW YOUR RIGHTS !!




This attorney's past experience with such cases usually means that one client forces the other to cave in, while the client who caves in doesn't even realize that he or she caved in when it was not necessary.  OR-- one party knowingly concedes a major issue, without realizing just how major the issue is (because he/she has no attorney representing him/her) -- and then loses his/her ass, because he/she thought they were "saving money" when that was not the case.

For example, attorney has seen this done where one client who was earning $85k a year gross, vs the other party was earning $27k a year.  The parties "settled" the case because the $85k client took advantage of the $27k party and forced the $27k party into taking a huge loss in settling the case.     They played upon the emotions of the 27k client who they told to get rid of  (his/her) attorney, (which was attorney herein)..... and "settle" the case.  That 27k client (against advice of attorney herein) apparently went and signed a stipulated agreement which was grossly NOT 50-50, nor did it cover the 27k client's rights.  Of course since attorney herein was no longer attorney of record,  attorney could not protect the client.

When attorney sees things like this happen, in good faith, attorney cannot recommend either settling cases with only one attorney in the mix, or attorneys that claim they "settle" cases when in fact they are not really settling cases, but possibly taking advantage of one party.  Divorce should never be "settled" unfairly, especially under circumstances where the higher wage earner takes advantage of the lower wage earning spouse, and when there was a long term marriage.  That should never, never occur.
As it happens, in the case above, the time limits for rectifying such an errant settlement will have already run, and unless there is some change in the codes, it is likely that client who lost out will not be able to even set aside the agreement.

How very sad; such things should never happen like that.
In case you don't believe attorney herein,   then look at this response seen online,   (from the actual Mediator attorney)...to a client that went through mediation with this attorney.  The client left a review online that he was not happy with the services of the Mediator, and this is what the Mediator's response stated, no words have been changed:
                      ________________________________________________________________
         "The role of the mediator is to assist the participants reach an agreement. 
 It is not the mediator's role to give legal advice or to assure
 that the agreement is fair or equitable to either party.  
There may well be unintended consequences resulting in one or more
 of the participants suffering "buyers remorse", but they made the decision
  to accept the terms  and entered into the agreement, not the mediator..."
     ___________________________________________________________________

OMG !!!!!
  WTH!!???    Well, when I (attorney herein) read stuff like this, having seen this type of thing before---  this is exactly WHY  I always tell clients NOT to use mediation, the main reason being, simply because an agreement was made does not necessarily mean the clients understood:

(1) What they were entitled to  
(2) What they gave up
(3) Whether or not the law was known to the clients as to their rights under the Family Code or Evidence Code, or any other Civil Procedure Code, etc.
(4) Whether or not,  when nothing is explained to the parties, and neither has hired an "attorney" but have only hired a mediator (Mediator meaning ONE person)-- then did the clients REALLY understand their rights, since the "mediator" does not give legal advice, nor does the mediator assure that such agreement is fair or equitable????  

[Of course, the parties can then pay a litigation attorney for opinion on how their legal rights are affected, but if one is going to do that, most attorneys won't advise both parties, so the parties would usually have to then pay two separate attorneys in addition to the Mediator.] 

Also in the CA Judicial Council forms themselves, both limited and unlimited,  there is a clear CMC statement page (form CM110)  which states whether the parties are open to arbitration (binding or non binding), mediation, ADR, neutral evaluation, settlement conference--but in Family Law forms---those choices are never offered in such blanket options on the forms. Mediation on custody issues is an entitlement and required on any dispute involving visitation/custody.

 The entire premise of the Family Law Code is mostly based on equality and disclosure. 
And as stated BY the Mediator above, it is NOT the Mediator's JOB to (1) give any legal advice or (2) see that the agreement is fair or equitable to either party!!!! 

When parties don't even understand their rights, it is almost impossible for a mediator (again--that's one person who doesn't represent the parties!!)  to carve out an equal solution, since at least one party likely doesn't even know what he or she gave up!! 

 Family Law is quite different than just civil law, such as in a contract dispute, for example.... Different rules will apply to different subjects of law, but in particular, Family Law has distinct rules on very specific areas, such as in presumptions, waivers, and other highly specific areas where the fact pattern can drastically affect the outcome.  Failure to know that non disclosure could or would have created a windfall to one party might result in the guilty party taking far more than he/she was entitled to receive. 

 Conversely, a party that purposely lied could end up getting away with property to which he/she was never entitled.  Most divorcing clients do not want to lose property if they do not have to do so. Additionally, issues involving Bankruptcy can be either very convoluted, or laced with problems due to actions by one party which would adversely affect the other party. An example of this would be one spouse fabricating his income and then submitting that fabricated income into his Bankruptcy case as an exhibit for Family Court.   Not all Family Law attorneys know Bankruptcy law or its ramifications down the line. In particular, collateral estoppel, res judicata or Rooker Feldman issues can present a huge plethora of additional problems....further, Relief from Stay may be required in order to safely divide property of the parties.

Personally, attorney herein finds the entire scenario of "Mediation" to be very contradictory to the nature of Family Law.  Only in very rare cases where there is almost nothing to be divided, there are no kids, no need for spousal, and no property--- and a short marriage, then using a Mediator might not be too dangerous.  Not too much to lose.

 Much litigation in CA is based on nondisclosure, so even if that issue was not found out until after the mediation, the party who got screwed over should contact a litigation attorney in family law ASAP since the law and the time for setting aside may not be very long, and one could lose their ability to set aside if too much time has passed. Additionally, see http://www.scmediation.org/2015/10/confidentiality/
which covers some of the issues involving confidentiality in mediation and potential pitfalls; normal divorce cases are public records. 

If one has to settle something, it should at least be done fairly. Mediation does not provide that. And that's why I am dead set against it.  You simply have no rights if you don't KNOW what they are!!

Saturday, March 4, 2017

Did Facebook Help Ruin Your Marriage?

It is a sad fact that today, many people put their personal life and  private business online--and much of it is on Facebook.  Amazingly, many people do not really understand how Facebook is linked to everything--- and we mean EVERYTHING.  There is not much privacy left these days, despite online sites telling us there are rules for privacy.



If you're getting divorced, considering divorce, or have a plan to leave your spouse, you can almost be sure that if the spouse you are leaving is addicted to Facebook or similar sites, he/she will be talking about you.  This means Facebook is where attorneys look for dirt on the cases we see. Why?  Because many people lie to the spouse but go on Facebook and tell a completely different story?
This is actually quite common.



This means basically--that if YOU have been posting on Facebook and then tell the Court a different story--- you will probably be wrecking your own case, especially if you have talked about drunken episodes, partying and drugs, and anything illegal of course. Medical marijuana is not illegal if you have the script, but if you gave the MJ to your kids, that could become problematic?

We think in today's gadget world-- people are simply over-wired, over connected, and persuaded to keep buying gadgets....then the kids want the gadget toys, and the trouble starts. Kids start defaming each other, get their parents involved, and next thing we see is a parent assaulting another child's mother?  If this seems far fetched, it's not, since that case is currently pending in court. Parents should control their kids, but instead, we have seen parents that tell their kids to fight other kids.


Friday, March 3, 2017

Separate Property Reimbursements in California Family Law

BEWARE: 

If you have any issue in divorce,  involving a property like a house, which is under water, absolutely do NOT let any officer of the court (Judge, commissioner,etc.) GIVE your house to the other party if you paid big cash down--- unless you don't want the house at all....ever.   Get help fast from a family law attorney who has handled these cases as it appears that some in Butte County don't understand how to handle this.




There is a lot written about reimbursements in CA family law cases, and some very messy litigation in the published cases. Typically, a CA FC2640 reimbursement http://codes.findlaw.com/ca/family-code/fam-sect-2640.html
arises when spouses  to the dissolution have spent their separate property money and then went in/out and out/in and changed things such that it's difficult to say who owned what, when, where, and how?

In some instances, each party claims reimbursement. Also note that reimbursement is not automatic if there are issues involving prior marriage, prior title changes, prior refinancing, or any changes to title, or removing people from title.  Further, evidence of someone writing a check for improvements, for example,  is generally not sufficient at all to prove tracing of payments, especially if the one paying had multiple accounts, commingled accounts, and was married, divorced, remarried, and then divorced again.

When a property is now "under water" meaning little to no equity, but one spouse had paid hard CASH and bought the property with $150,000 cash down---should that property (with no equity) just be given to the OTHER party?

The correct answer is usually NO.
But much of the published cases have divorces where there are other items and property so the Court can try and apportion the division.

Family Code 2640 has a provision (b) which says at the end,.."the amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division."  

Would that mean --- that anyone who paid cash for an asset in their name alone, where the asset was currently worth less than they paid at divorce trial (think CA 2007-to the rock bottom of real estate sales/foreclosures) --  that this means Judge should just give the asset (a house) away to the other spouse whose name was NEVER even on the house, it was not held in joint tenancy, there was no change to the title ever during the marriage, and the other spouse didn't even work to boot--the one that was GIVEN the house???  HELL NO!!!!!!  There is no way in the world that using the phrase in (b) above should cause one party's traceable asset to simply be GIVEN AWAY to the other person.

The division should be close to equal BUT when title was clearly held only in one name and there is no equity,  the person who owned the house should have been given the house (that party could re-finance or use a government program to change the mortgage!!)
A huge error like this where the FC2640 reimbursement was not possible due to no equity--but yet the Judge gave that very property to the spouse---this is an abuse of discrection.

We aren't kidding here--there is an officer of the Court in Butte County that simply gave away the house to the person that wasn't on title and was on disability and couldn't afford to pay for the house anyway?  And the person who OWNED the house had the separate property simply TAKEN from her?  and given to the other spouse????

Never in a million years should this ever, ever, ever happen. Never. Especially when the documents for trial clearly indicated that such property was a separate property belonging to the spouse that put the cash down.

This is a BIG warning to family law litigants that are pro se-- if you have ANY separate property that has any value, even if under water, get help right away!!