Ask A Lawyer – Divorce

What is a right of first refusal for childcare?

A right of first refusal, also called a right of first option for child care, is a general term for a child custody order provision which provides that if the custodial parent is unable to be with the child during their scheduled time (be it for work, school, or other engagements) that the other parent is given the option to watch the child before non-parties (like babysitters, nannies, or daycare providers) are called in.  The idea behind these types of provisions is that it is best for the child’s development to be with parents to the maximum extent possible.

The devil in the details of right of first refusal orders

As stated above, the term “right of first refusal” is a general term describing a type of order.  Without specific language regarding the purpose, intention, and limitations of how a right of first refusal should operate, an agreement that the parties “have a right of first refusal” isn’t worth the paper it’s printed on.

Common Considerations:

  1. How frequently are situations where a right of first refusal may apply going to come up?  If a schedule provides one parent with time which they are consistently unable to exercise it may be necessary to consider revising the general parenting schedule to establish a more stable routine.
  2. Is work related childcare included in the right of first refusal? A common reason that one may use childcare is so that they can go to work.  Some parties expressly exclude work related childcare from the right of first refusal so that the child can have a more consistent routine, while others want to include work related childcare needs in a right of first refusal to maximize the time the child is with a parent.  It is important to address this particular need in crafting a right of first refusal.
  3. What minimum amount of time should the custodial parent be unavailable before a right of first refusal kicks in? Viewed legalistically, a general right of first refusal without specific limitations could require one parent to call the other if they have to have someone watch the child for a quick shopping trip, requiring the parties to spend more time coordinating logistics than the amount of time the custodial parent is going to be away.  To avoid such an absurd result the language of a right of first refusal order only comes in to play if the custodial parent has to be away for several hours or more.  The minimum amount of time which is appropriate varies on each individual family and their needs.
  4. What about time with extended family? Even if a parent is unavailable during their parenting time there are a variety of good reasons they may want to have the child spend time with extended family members.  Read legalistically, a right of first refusal could be read to bar this time with extended family unless the custodial parent is present.  It’s a good idea to discuss this issue and determine what exceptions like this may apply to a right of first refusal.

The right of first refusal is such a common part of California child custody orders that the California Judicial Council added form language to an optional child custody order attachment for the courts and family law litigants to use to create a right of first refusal for childcare.  The form language reads as follows:

Right of first option of child care.  In the event either parent requires child care for (specify number) ______ hours or more while the children are in his or her custody, the other parent must be given first opportunity, with as much prior notice as possible, to care for the children before other arrangements are made.  Unless specifically agreed or ordered by the court, this order does not include regular child care needed when a parent is working.”  – FL 341(D) – Optional Additional Provisions – Physical Custody Attachment

While the judicial council form language is good and will work for many parents, it is important to ensure that the considerations above are addressed so that a right of first refusal is right for you and your unique needs.

Who is a right of first refusal good for?

Whether a right of first refusal makes sense for you depends on many factors.  My experience working with a variety of families shows that generally a right of first refusal can be successful in the following situations.

  • If the parents have a good communication skills with each other. The implementation of a right of first refusal requires regular civil communication between parents.  Of course, good communication skills do not happen by accident and can be learned, giving such an order a greater chance of success, but this order should not used for parents who are constantly arguing.
  • If one (or both) parent(s) have variable schedules. If work, school, or other constraints require one or both of the parents to be unavailable for chunks of their parenting time, making it impossible to set an exact workable schedule, a right of first refusal may be the best solution to that problem.
  • Parents who work together with flexibility and cooperation. Like many other parenting issues, being flexible and cooperative with the other parent is good for the productivity of the co-parenting relationship and is good for the children involved.  Parents who do this well in practice (but who may need a little help establishing general guidelines on how to do so) can often benefit from a right of first refusal.

Who is a right of first refusal not good for?

Experience also shows that there are some for which a right of first refusal would not be a good idea and may even make a difficult situation worse.

  • If there is a history of domestic violence between the parties (whether or not a restraining order is in effect) a right of first refusal may cause more harm than good as it requires a high level of communication with the other parent.
  • If one parent’s time is limited to supervised visitation a right of first refusal would not be consistent with the child’s best interests.
  • If the parents do not communicate well a right of first refusal will likely not operate well in practice.
  • If one or both parents are inclined to legalistic behaviors and interpretations of court orders regardless of how that impacts the children, such an order may lead to disputes.
  • If the parents do not live close to each other, for practical reasons.

For assistance in determining whether a right of first refusal is workable for you and your needs please contact our office to schedule a consultation with one of our experienced child custody attorneys.

Child Support: Termination and continuation beyond age 18

Question Asked on: January 12th, 2016

In the start of a family law case with minor children, the parties often devote much attention to establishing an amount for child support.  In almost all cases when parents separate the court will institute an amount of support payable by one part to the other for the parties’ children.  This ordered support continues until support is modified by the court or terminated by law.  This article addresses those circumstances which give rise to the termination of child support and circumstances which may allow it to continue into adulthood.

Termination of Child Support

As a matter of law there are certain conditions which terminate an obligation to provide support for a child.  Generally child support will end when:

  1. The child dies.
  2. The child is emancipated.
  3. The child gets married.
  4. The child is adopted terminating the parental rights of the supporting parent.
  5. The child reaches the age of 18 and is no longer a full time high school student.
  6. The child reaches age 19 (regardless of whether the child is still in high school or not).

Absent certain exceptional circumstances if one of the terminating conditions listed above occurs, child support terminates as an operation of law.  After such happens the parent receiving support is obligated to notify the parent paying support and is obligated to refund any support paid after support obligation terminates.

Child Support into adulthood

The court can in certain circumstances, as listed below, order that support for a child continues into adulthood.  However, if these circumstances do not exist the court lacks the authority to continue child support.

Support to pay for colleges

While some states have instituted laws that require parents to chip in for their adult child’s college education, California has not done so.  The court cannot order a parent to contribute to an adult child’s college expenses over that parent’s objection.  However, the parents can agree to pay for a child’s college education, whether informally or as a court order, and if made into a court order the court can enforce that agreement according to its terms.  Absent such an agreement, a court order to pay for an adult child’s college education expenses is invalid and is beyond the court’s authority.

Support for adult disabled children

Family code 3910(a) creates an obligation for a parent to support “a child of whatever age who is incapacitated from earning a living and without sufficient means”.  The courts have generally imposed a support obligation under this statute when the facts or circumstances indicate that the child has a physical or mental disability which prevents them from being able to work if they chose to do so.  In cases where a now adult child has such a disability a careful examination of the facts is needed to determine the child’s vocational interests and their ability to work (whether with or without accommodations).   Cases dealing with support for adult children who may be disabled are incredibly complicated and fact specific and should not be undertaken without legal assistance.

If you have any questions regarding child support and its termination please contact our office and set up a time to meet with our attorneys.

What Is an “Offer In Compromise”?

Question Asked on: January 7th, 2016

If you have already spoken with an attorney and determined that bankruptcy will not discharge all of your tax debt, and an installment agreement is not a feasible way to satisfy your remaining tax debt, then you will want to try to make an Offer In Compromise to the IRS.

What Is an “Offer In Compromise”

An offer in compromise is an agreement between you (the taxpayer) and the IRS that settles a tax debt for less than the amount owed.  Like bankruptcy, it gives the eligible taxpayer a chance to satisfy their tax debt and get a “fresh start” with respect to the tax debt.

Why Would the IRS Accept Less than What Is Owed?

When a troubled taxpayer prioritizes between buying food, paying the mortgage or paying taxes – taxes often got the short shrift.   Nonetheless, that tax debt continues and continues to grow.

Three tax consequences often accompany an economic downturn and rapid changes in asset ownership and/or income, and these consequences also form the bases for the IRS accepting an offer in compromise:

  1. Doubt as to collectability
  2. Doubt as to liability
  3. Effective tax administration

Doubt as to Collectability:  If taxpayer’s assets and income are less than the full amount of the tax liability, then the IRS has doubt as to collect-ability, and is authorized to negotiate and accept an offer in.

Doubt as to Liability:  Rapid economic change comes with chaos, and tracking income and tax liability across a shifting economic landscape is not easily accomplished.  As a result, a genuine doubt as to tax liability can result.   Here again, the IRS is authorized to investigate and accept an offer in compromise when there is doubt as to liability.

Effective Tax Administration:  This last basis for accepting an offer in compromise takes more of a public policy perspective on the tax administration process, and determines whether the taxpayer would suffer “economic hardship” or whether accepting a compromise would promote effective tax administration where the taxpayer provides a “compelling public policy or equity consideration” to support such compromise.

“Economic hardship” is a legitimate basis for an offer in compromise where the taxpayer can show that although full collection of tax debt could be achieved, it would cause the taxpayer “economic hardship” as specified in the Treasury regulations.

“Compelling public policy or equity considerations” require the taxpayer to demonstrate exceptional circumstances which render the collection of the full tax liability as an act that undermines the public confidence that the tax laws are being administered in a fair and equitable manner.

These are the reasons why the IRS might accept an offer in compromise, but a taxpayer must do his or her due diligence before being eligible to submit such an offer.

Are you eligible to submit an offer in compromise?

If you wish to submit your offer in compromise, you must first:

  1. File all tax returns you are legally required to file;
  2. Make all required estimated payments for the current year; and
  3. Make all required federal tax deposits for the current quarter if you are a business owner with employees.

Note – If you are in an open bankruptcy case, then you are not eligible to submit an offer in compromise.  You must first address the pre-petition tax debt through the bankruptcy case, and thereafter address any outstanding tax debt once the bankruptcy case closes.

It is important to be aware of this partial list of concerns when submitting an offer:

  1. Penalties and interest will continue to accrue during the offer evaluation process.
  2. Besides the continuing penalties and interest, the IRS can also file a Notice of Federal Tax Lien during the Offer investigation; however, unless a jeopardy situation exists, a request for a Tax Lien will not usually be made until after the final determination has been rendered.
  3. You cannot make an offer that is only for a tax year or tax period that has not been assessed.
  4. Any tax refunds or money from a levy served prior to you submitting an offer, will be applied to the tax liability.
  5. Any payments made with an offer or during the course of the offer investigation will be applied to your tax liability, whether the offer is accepted or not.
  6. If your offer is accepted, you must continue to file and pay your future tax obligations as they become due for the next 5 years.  If you fail to do so, your offer may be defaulted and the compromised tax debts, including penalties and interest will be reinstated.

Making the Offer:

There is an application fee of $150 required when submitting your offer.  However, this fee can be waived for individuals meeting the Low Income Certification guidelines.  If the fee is not waived, it will not be returned to the taxpayer, but will be applied to the tax liability.

The Offer in Compromise can be made in a couple different ways:

  1. Lump Sum Cash:  requires that 20% of the total offer amount be paid at the same time the offer is submitted.  The remainder will be paid within 24 months in accordance with the offer terms.
  2. Periodic Payment:  requires that the taxpayer make an initial payment with the offer, and then make continuous payments on the remaining balance over a period of not more than 24 months in accordance with the proposed terms of the offer.

This is a good stopping point.  The general benefits and considerations of the Offer In Compromise have been laid out.  But making an offer in compromise is a complicated undertaking, and there are IRS forms to be completed and supporting documents to be gathered.  You should become very familiar with the IRS website or obtain the services of a tax professional when getting ready to make an offer in compromise; but be leery of fly-by-night tax outfits.  Obtaining the services of an experienced and knowledgeable attorney is a smart choice.

Personal Income Tax Debt: Can Bankruptcy Help?

Question Asked on: December 17th, 2015

No creditor knocks quite as loudly as the Internal Revenue Service when they come to collect.  The consequences of not timely paying your personal  income tax debt can result in the seizure of your personal property, levying of your bank accounts, garnishment of your wages , and/or foreclosure of real property.

You may be considering bankruptcy as a way to discharge your personal income tax liability, but before you rely too heavily on bankruptcy to discharge that tax debt completely, you need to ask yourself some important questions to determine what portion of your tax debt can be discharged.

Rather than listing what tax debt is dischargeable, it is more efficient to identify which income tax debt is not dischargeable:

  1. Priority income tax debt is not dischargeable.  Several types of this non-dischargeable tax is identified in bankruptcy code section 507(a)(8)(A).  Priority status of tax debt often relies heavily on timing, and includes:
  • Taxes for which a return, if required, is last due, including extensions, on a date more than 3 years before the date that the bankruptcy case was filed.For example,  if Mary Smith filed bankruptcy on July 4, 2015 and she listed tax debt for tax years 2010, 2011, and 2012.  If no tax filing extensions were obtained, then the 2010 and 2011 tax debts would be dischargeable in Mary’s bankruptcy case because those tax returns were due by April 15 of the following year: i.e.  2010 tax return due by April 15, 2011 and 2011 tax return due by April 15, 2012.  Because April 15, 2012 is the latest date that either of these returns was due,  and that date is more than 3 years before the date that the bankruptcy case was filed, then the 2010 and 2011 tax debt is dischargeble.  

Now consider that Mary received an extension until October 2012 to file her 2011 tax return.  As a result of the extension, the last date the 2011 return is due is less  than 3 years from the filing date of the bankruptcy case. Consequently, the 2011 income tax debt is no longer dischargeable in the bankruptcy case.   The 2012 income tax was due by April 15, 2013 and was never eligible for discharge in a bankruptcy case filed on July 4, 2015.

  • Priority debt also includes any tax assessed within 240 days before the filing date of the bankruptcy case, exclusive of-
  • Any time during which an offer in compromise with respect to that tax was pending or in effect during that 240 day period, plus 30 days; and
  • Any time during which a stay of proceedings against collections and arising out of an earlier bankruptcy filing was in effect during that 240 day period, plus 90 days.
  • Tax debt is not dischargeable in bankruptcy for tax years for which:
  • returns were never filed;

Note – late filed returns should be reviewed thoroughly with an attorney to determine the circumstances and timing, and whether that tax is likely to be deemed dischargeable.

  1. Tax debt is not dischargeable with respect to returns in which the debtor fraudulently filed a return or willfully attempted in any manner to evade or defeat such tax.

It is tempting to believe that any tax debt not described here as non-dischargeable is therefore dischargeable, but this conclusion will not always be true.  Always seek legal advice when you need greater clarity regarding your specific circumstances, and especially when the amounts at issue are large.

Wage Garnishments: What can be done?

Question Asked on: December 10th, 2015

A wage garnishment is the most common type of garnishment. It is the process of removing money from an employee’s monetary compensation­ it can also includes a garnishment on 1099 income.

Garnishments are the result of a court order, abstract or judgment or lien for an outstanding balance to a creditor and the wage garnishment will proceed until the debt is paid in full or alternative arrangements are made to pay off debt.

Like most creditors, the IRS has the authority to garnish your wages for outstanding taxes owed. But, not to panic, there are many solutions that can take care of your wage garnishments. Below are top 3 ways to handle wage garnishments for tax debts that you owe.

  1. Setting up a payment plan to pay the taxes owed over a period of time; while writing a check in full to the IRS is most ideal, many cannot afford to pay all at once, which is understandable, making payments is much more affordable and possible and the installment agreement is based on your financial ability to pay – if you are going through a hardship, the IRS may even deem your account as noncollectable for up to a year which means your wage garnishment would stop and they would hold off on collections until your financial situation improves.
  2. If you do not show an ability to make monthly payments an OIC may be an option, known as an Offer in Compromise (OIC); we review your financial situation to determine if an OIC is possible and in your best interests.
  3. Filing for bankruptcy is also an option­ our office would review your liabilities to see if a bankruptcy filing could alleviate your tax liabilities. The bankruptcy filing would immediately stop the wage garnishment and give you breathing room in order to be able to set a payment plan after the bankruptcy case is discharged.

While a wage garnishment may seem overwhelming and impossible to overcome, there are actually many options that our office can offer to help deal with outstanding tax debts. The Law Offices of Thomas P. Hogan works with the IRS every day on behalf of our clients to resolve issues that seem overwhelming and impossible. We work hard for our clients to provide the best possible service and optimum results. Our group of lawyers and experts will make sure that your tax issues are taken care of in a timely matter in order to get you back on track and out from under the oppressive burden of back taxes.

Q: Do I need to name a legal guardian for my children?

A: As parents, we would do anything to protect our children. We buy the best and safest car seat, the best strollers, we make sure they attend the best schools and receive the best education possible. But what if something happens to you? Have you done what you need to do to protect your children? Have you made plans to best prepare your children for a future without you? No parent wants to think about not being around to raise their children. I get it. It’s a scary thought. But what is scarier, is NOT thinking about it. If you do not decide proactively what will happen to your children if anything happens to you, a court will decide for you. The problem with that is the court doesn’t know your children. While the judge is obligated to consider the best interests of your child when appointing a legal guardian, the judge won’t know your children like you do.

As a parent, I want to be the one to decide who will raise my children if I cannot. I have worked hard to raise my children a certain way. Naming a legal guardian ensures that your children are raised by the person you want, in the way you want. When you name a legal guardian, you take the control into your own hands. You name the person/couple you trust, love and know would care for your children the way you want your children to be raised. You get to choose the guardian with whom your children have a close relationship, a guardian who has a similar parenting philosophy, similar moral and values, similar religious beliefs and a similar discipline style as you.

I have clients who tell me they know exactly what would happen to their children… “My sister (mother, brother, etc.) would raise my kids.” However, they do not have legal documentation in place to ensure their sister (mother, brother, etc.) would become their children’s legal guardian. The truth is, unless you have legal documentation in place, you don’t know who would raise your children if anything happens to you. That is why, if you have minor children at home, you need to have legal documentation in place naming a legal guardian to raise your children if anything happens to you.

Naming a guardian for your children can also help alleviate unnecessary confusion and conflict that could result if more than one family member petitions the court to become guardian of your children.

This is not an uncommon issue. This is what happened to the Barber Family. The Barbers were a young family from Southern California with three sons. The Barbers took their family on a road trip to Arizona and were involved in a fatal car accident. The parents passed away and all three children survived. They were placed in foster care until a relative came to get them. What happened next could have been avoided if the Barbers had taken the time to name a legal guardian for their children. More than one family member petitioned the court for guardianship of the boys. The family fought for months over what the parents would have wanted for their boys. Accusations were made, nine attorneys were retained and many thousands of dollars were spent fighting in court. In the end, the court made a decision to place the boys with one family member. However, by this time, damage had already been done, relationships were strained and the boys missed out on relationships with their extended family.

While the court did make a decision, we still don’t know what the parents would have wanted because they did not name guardians for their boys. What I can imagine is that the Barbers did not want their familial relationships torn apart fighting over who would be named legal guardian for their boys. This is one of the biggest personal risks we face when we do not take the time to name legal guardians for our children.

If you have minor children at home, it is imperative you take the time to legally document who you would want to be the guardian of your minor children if anything happens to you. If you cannot decide who you would choose, we can walk you through a series of steps that will help you reach the best decision for you and your children. It is not easy to make these decisions and they should not be made on your own. It is important to have good legal guidance. Contact an attorney in our office to help guide you through the process, answer all of your questions, help you consider all of your options and to help avoid harm in the future.

Parties who are filing or responding to a petition for dissolution of marriage will quickly come across a section for them to state their “date of separation” on the court’s pleading forms.  The question for almost all parties then immediately becomes, when did we separate? And why does the court need to know?  Why does this matter?

Why does date of separation matter?

The date of separation is important in California divorces for two main reasons:

  1. Property Division:  California law provides that generally property which is acquired by either spouse after the date of separation is the separate property of that spouse, which is 100% theirs.  This can include salaries, real property, personal property, accumulation of retirement benefits, as well as other property items.  While there are major complications which can arise in determining whether an item was received fully from a party’s separate property, in general the date of separation can have a significant impact on how the parties’ property is divided.
  2. Spousal Support: One of the biggest factors that the court considers in setting the duration and amount of spousal support is the length of the parties’ marriage.  Generally, the longer the parties are married the longer the spousal support will last (and potentially the higher it will be).  So, a choice between two different dates of separation can have a major impact on the support rights and obligations of the parties.

How does the court determine our date of separation?

Determining the exact dates that parties did in fact separate is a question that has perplexed the courts throughout the years and has led to inconsistent decisions.  For some parties there is no dispute and the separation is clear.  For example, if a husband and wife decide to live in separate residences on January 1st and the husband moves out that same day to his own apartment with the wife staying the marital home, January 1st is their separation date.  For other couples with multiple move-ins and move-outs, ongoing financial ties, and other ongoing joint activities the question of a date of separation can be even more complicated.  A third common category of couples may live under the same roof but separate their finances, schedules, and activities and live together as “roommates”.   What is the court looking for in deciding when the parties separated?  Is it about parties emotional connection? Physical intimacy?  Their living situation?

In 2015 the California Supreme Court weighed in on the issue of the parties’ date of separation for the first time.  In the case In Re Marriage of Davis the Supreme Court established that for parties to be separated they must be living in separate residences.  In essence, parties are not separated until they no longer live under the same roof.  However, the court also recognized the reality that parties may live in the same household and still be separated in certain exceptional circumstances, but did not elaborate on what those circumstances could be.   This caveat, buried in a footnote in the court’s opinion, leaves the door open for this rule to change in the future.  As it stands now though, parties must first and foremost be living in separate residences to establish their separation.

Other older cases make clear that parties can still be married (unseparated) even though they do not live in the same residence.  In essence it is not enough for the parties to live in different residences; the parties’ conduct and the circumstances of their marriage may refute a finding that they are separated.  The best example of this comes from the case Marriage of Baragry, where the husband lived with his girlfriend/employee in his own apartment, but often went home to his wife and children to enjoy her home cooked meals, have her do his laundry, and otherwise maintained ongoing ties with his wife while living with his girlfriend.  The court refused to allow the husband to claim that they separated when he first moved out in light of the benefits husband continued to receive due to his ongoing relationship with his wife, even though he didn’t actually “live” there.  Essentially, the court will not allow parties to have it both ways.

The cases on date of separation are complicated and at times contradictory.  As discussed above, this issue can be critical and can have a substantial impact on the rights of the parties.  If you have questions about the date of separation in your case and the best approach to take, it is important that you contact one of our attorneys to guide you through this process.

For many divorcing couples, what will happen with a house after the divorce is a critical concern for both spouses.   These concerns only increase when title to the house is only in one of the spouse’s name.  For the spouse who is not on the deed, it is important to take steps to protect their interest in the house to prevent the other spouse from borrowing against, selling, or losing the house to foreclosure prior to a final Judgment.

One of the best tools a spouse can use to protect their interests in a house that titled in the other spouses’ name is to file and record a “Notice of Pendency of Action” against the house.  This document becomes a public record, which when properly drafted and recorded gives notice to the other spouse, and anyone else that there are pending court proceedings regarding this house.  With this notice, the other spouse will not be able to effectively sell the house to a third party.  This notice will come up on any title search and will be flagged to the attention of any buyer of a house or any bank who might lend funds to purchase the house.  It also provides a mechanism for you to be notified about important occurrences with the house, such as default and foreclosure, allowing you to step in and take other actions to protect your interests.  Also, this Notice of Pendency of Action may work to prevent a party from borrowing against the equity in their house during the divorce, either through a home equity line of credit or a Family Law Attorney’s Real Property Lien.

The Notice of Pendency of Action is a tool which can be used in conjunction with the Standard Family Law Restraining Orders to prevent one spouse from taking actions to unilaterally undermine the other spouse’s interest in a property item away during a pending family law proceeding.   Use of the notice of pendency of action gives additional “teeth” to the Standard Family Law Restraining Orders and allows for additional remedies which you may not have been able to use otherwise.

The Notice of Pendency of Action is a valuable tool and should be used carefully and properly.  This document puts a “cloud” on title and once the family law proceeding is finished needs to be removed to avoid future hardship for both parties.  Further, there are circumstances when the court can remove the Notice of Pendency of Action from the house.

A final related note, it is important to remember that in California community property law that whose name is on a house is not the final determinative issue in deciding who gets the asset and whether the other spouse has to be “bought out” from the house.  Rather, there are multiple ways in which the spouse not on title can claim an interest, including seeking a determination that the asset is community property in spite of its title, seeking a percentage of the house under a Moore/Marsden theory, or requesting reimbursement for expenses paid towards another spouse’s separate property home.   Therefore, it is important to consult with an experienced family law attorney to discuss the use of this tool and what interest, if any, you may have in a house in the other spouse’s name.

One of the most pressing concerns for any parent going through a divorce, legal separation, or break up is what will happen with the children.  Even in the most amicable of breakups numerous new challenges arise, including changes in housing, finances, scheduling, work, and many other areas of life, all of which must be considered and addressed to create a parenting plan in the children’s best interest.  In more contentious breakups there may be additional serious issues present such as neglect, abuse, addiction, as well as other serious concerns.

California Family Code §3170 requires that in any contested custody case that the parties first participate in mediation to attempt to resolve custody disputes with an agreement before the issues are tried in front of a judge.   This requirement is imposed under the belief that an agreement which the parties come up with themselves for their children is usually better and will be more successful in the long term than one imposed by the courts.  To assist the parties in working through these various difficult issues the mediation is conducted with the assistance of highly trained therapists who are familiar with the common issues that need to be addressed in custody disputes.

In some counties, commonly referred to as “recommending” counties the mediator has an additional role when the parties are unable to reach an agreement.  In these counties the mediator will present a written recommendation to the court regarding a parenting plan for the minor children.  In these counties the mediation process has increased significance as the mediator’s recommendations are often adopted in whole or in large part by the court.  Many local counties, including Sacramento, Placer, Yolo, San Joaquin, and Stanislaus counties are recommending counties.  In other counties, the mediation process is entirely confidential and the mediator does not make recommendations to the judge if the parties are unable to reach an agreement.

All courts in California have an office called Family Court Services to provide mediation services to the parties in contested custody cases.  Most custody mediation is handled through these court offices that provide their mediation services at no cost to the parties.   As an alternative parties may request (either with an agreement or without) that the parties be referred to private Child Custody Recommending Counseling (CCRC) to assist parties in resolving contested custody issues and if needed, to investigate and prepare a recommendation to the court regarding custody.   This counseling is done by an experienced therapist within special training dealing with contested custody issues.  The expense of the private CCRC is paid by the parties, usually with the party who requested it advancing or paying 100% of the cost upfront with the court reserving the ability to divide the cost between the parties at a later date.  Due to limited resources in the office of Family Court Services, most mediation sessions last between 15 minutes to one hour, whereas when the case is set for private CCRC the parties will spend multiple hours with the counselor who will also invest time outside of these meetings investigating and preparing recommendations.  While it is not necessary or affordable for parties in all cases, private CCRC provides a valuable service to resolve difficult custody disputes.

If you are facing decisions regarding custody issues it is important that you contact an experience family law attorney who can advise you regarding your options and strategies to obtain a custody order in your children’s best interests.

The fundamental purpose of child support in California is to ensure that the needs of children are provided for.  Under California law each parent has an obligation to financially support their children (Family Code §4053(b)).  Practically, the state has adopted a uniform guideline formula to calculate the amount of support that should be paid keeping in mind each parent’s obligation to support their child.  Simply speaking, the guideline formula calculates support based upon each parent’s income and the amount of time each parent has with her child.

To ensure that a child is supported, in the appropriate case the court may count a new spouse’s income in calculating support.  However, under the law a new spouses’ income should not be considered except in an extraordinary case (Family Code §4057.5(a)(1)).  The family code lists examples of these extraordinary cases, including when a parent “voluntarily or intentionally quits work or reduces income” or when a parent “intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income” (Family Code §4057.5(b)).  The law recognizes that in this case it is appropriate to use a new spouse’s income to calculate support so that the entire burden for supporting a child does not fall on the parent who is still working.  (Marriage of Paulin (1996) 46 Cal.App.4th 1378, 1384, fn. 5).

It is important that if you are facing these issues that you contact an experienced family law attorney to ensure that child support is set in an amount that is fair and proper.

On October 4, 2013 Governor Jerry Brown signed into law Senate Bill 274 which enacted new statutory amendments to clarify that a child may have more than two parents in the appropriate circumstance.  This means that in certain circumstances more than two parties can have the rights to custody and visitation of a minor child, and that more than two parents may have the obligation to support a child.

The new law provides that a child may be found to have more than two parents if it would be detrimental to the child to recognize only two parents.  To determine whether there would be detriment to a child in this circumstance the court is called to consider various factors including whether a proposed third parent has met the physical needs of that child, whether they have met the psychological needs of a child for care and affection, and how long they have assumed that role, among other factors.

In addition to showing that there would be detriment to the child if there are only two parents, one of several existing statutory grounds to establish paternity will have to be proven as to the non-biological parent.  Some examples of these methods of establishing paternity are (1) being married to the mother of the child, (2) attempting to marry the mother of the child before or after the child’s birth, (3) or receiving that child into their home and holding it out as their own.

Demonstrating to a court that these facts exist can be complicated and may require expert testimony from child psychologists or other child custody professionals and will often have to be resolved with a trial or evidentiary hearing.  It is important if you are facing these complicated issues that you consult with a family law attorney right away to assist you in navigating these very tricky claims.

A common situation that comes up during a dissolution matter is dividing the equity in a house that was owned by one spouse prior to marriage. In most cases the non-owning spouse is entitled to receive a portion of the equity in the house. The general rule in California dissolutions is that all community property (property from the marriage) is to be divided equally. The complication in this situation is that at part of the loan was paid outside of the marriage and part was paid during the marriage. To make matters even more complicated, the value of homes generally fluctuate constantly throughout the parties marriage and the divorce process.

 

Two California cases (In Re Marriage of Moore and In Re Marriage of Marsden) have established a method for dealing with these issues. Simply put, the portion of the equity of the house which came from the marriage will be split equally and the portion of equity from before or after marriage belongs to the spouse who owns the property. To determine the correct apportionment of these two, the courts look to the value and loan balance at four different dates: (1) Date of Purchase, (2) Date of Marriage, (3) Date of Separation, and (4) Date of Trial. With this information correct percentage and values owed to each spouse can be determined.

 

Generally, the assistance of a real estate appraiser is required to determine these values. Further, close examination of the loan documentation is also required. If the house has been re-financed at any point in time, additional information and documentation has to be reviewed. In many cases, the parties can hire an agreed appraiser to determine these values and can agree to a fair buyout amount. In other cases the value may be contested and it may be necessary to have the court decide this value. Either way, it is important when dealing with this issue to contact a skilled attorney to assist you in navigating this complicated claim. You may contact our office to discuss this issue further with one of our attorneys.

Bankruptcy Concerns

Question Asked on: August 14th, 2013

It is not uncommon for potential bankruptcy clients to come in for a consultation with their own pre-conceived ideas that are not always fact.  It is always our goal to get these concerns out in the open so we can try and relieve some of the burden  and get down to the facts. Below I have listed a few of the most widely held concerns that I have been asked about:

1)      That once a bankruptcy is filed, I can not keep any assets- that the home, cars and dog will have to go- this is not the case- actually, in most cases, we are able to protect all of the clients property and all of the debt is wiped out in the bankruptcy filing.

2)      That once a bankruptcy filing takes place that they will not be able to get any credit for next 7-10 years- not true- in many cases, once the bankruptcy has been completed and the debt discharged, most individuals receive offers of new credit right away- low balances to start, but generally decent interest rates- this allows individuals the ability to begin rebuilding their credit right away.

3)      That once a bankruptcy is filed, I can not keep my financed home or car(s)- also not true- as long as your payments are current on your financed assets,  you can keep them and continue to pay the lenders- this will allow the individual to continue rebuilding their credit post bankruptcy.

4)      That once a bankruptcy is filed, I will not be able to buy a house for 7-10 years- not true- it is a common rule of thumb that once a bankruptcy has been discharged, after two years, individuals would be eligible for FHA insured loans with competitive interest rates.

5)      That if an individual is married, they can only file bankruptcy if their spouse files- this is also not true- individuals have the right to file a bankruptcy singly even if they are married- community assets held by the married couple must be considered in the bankruptcy filing to ensure the assets are protected and then the individual can achieve debt relief. It is , in most cases, best to file jointly, but it possible for married individuals to file singly.

It is our goal at the Law Office of Thomas Hogan to get all the facts and concerns from our potential clients and do our very best to put them at ease during this difficult time- no one ever wants to have to proceed with a Bankruptcy filing, but in some cases it may very well be the best decision for getting a clean start.

In the State of California, the courts may be able to impute minimum wage earning capacity to a parent, and it is up to that parent to prove why he/she may not be able to earn or get a minimum wage job. For example, if he/she has a disability, or lacks in education or skills, medical condition, etc. The reason for this is that both parents are required to give support to their children, regardless of whether one is acting as the primary caregiver or not. Read the full answer…

In cases involving judgment on the division of property in a marital dissolution proceeding where one party wishes to have any modification made, their remedy is a timely set-aside motion within 6 months after the judgment is made, as per CCP § 473(b). But if the 6-month time bar expires, they may find an equitable relief through Fam.C. § 2120 et seq which sets forth the strict grounds for a set aside motion, and time limits applicable (Fam. C. § 2122).

For modifications involving property division in a divorce, work with an experienced divorce lawyer for more information and proper guidance.

In furtherance of the public policy that a person is presumed not to have committed bigamy, there is a rebuttable presumption that the second of two successive marriages is valid (i.e., that former marriage was legally terminated by death or marital status judgment). However, A subsequent marriage or domestic partnership is illegal and void from the beginning if either party has a spouse or domestic partner still living unless the former  marriage/domestic partnership was dissolved or adjudged a nullity before the date of the subsequent marriage/domestic partnership [Fam.C. § 2201(a)(1)].

Even though a void marriage or domestic partnership is technically nonexistent, a judgment of nullity is still advisable. The judgment will eliminate doubt as to the parties’ marital status (making the fact of invalidity a matter of public record); and will also conclusively determine the parties’ “marital” property and support rights.

Contact a lawyer who is an expert in divorce and annulment to be better informed and guided in matters regarding status of a previous marriage and the validity of a subsequent marriage.

How is child support calculated?

Question Asked on: August 10th, 2013

This is a question I receive on a daily basis during my family law consultations. The quick and short answer is: child support is based on income and timeshare. For those individuals that have been through the child support process before, they understand the phrase “income and time” basically sum it up. However, for individuals that are new to this process there is a long answer. The long answer is that the court uses a program called a Dissomaster whereby the court takes each of the party’s incomes minus deductions, the number of children and the time spent by the noncustodial parent with each child, and plugs those numbers into the Dissomaster spreadsheet. The program then provides a support number to be paid for each child relevant to the current matter. Read the full answer…

According to common law, you may have a chance to get reimbursement from the child’s biological father. However, you can’t use that as a leverage to get out of debt responsibilities. You should discuss this with an attorney who is an expert in family law to find out what your chances of reimbursement are and what you need to do to get it. Read the full answer…

Yes, there is either a 2-year or 4-year statute of limitations for debts in California. However, this doesn’t stop the collection agency or the creditor to file a lawsuit against a debtor. Read the full answer…

Yes, you need to be present at the hearing, even if you didn’t request for it, to make sure that you can defend your side on why there should be no modification on the support. Although it is not mandatory to be represented by an attorney, it is often a good idea to have an expert in family law on your side to make sure that your argument will be presented well, in a way that could best convince the court. Read the full answer…

Provided that your mother never moved, or that her address at the time the divorce was filed has been known to your father, then clearly there is a breach in the process of properly serving her the summons. Your father and his attorney could face sanctions as a result of this. Your mother may also has the right to an independent action in equity to set aside a default judgment as void for defective service of process. Read the full answer…

Our loan of $750,000 was given to me without even making more than $350 a week! They even suggested my husband’s name be taken off so he would not have to deal with it. I am not very wise when it comes to left-brain things and basically signed on the lines they told me to. We now have a horrible loan, we had to live off credit cards for 3 years because we needed all our money to keep our home and we are paying $5500 a month and we still owe $720,000! The loan was sold so many times that I lost track. Chase owns it now and won’t modify. We are in large industry construction and when the recession hit we almost lost everything. We can’t even afford health insurance and are now strapped with paying emergency room bills because of heath issues. We make too much to qualify for assistance even though all our money is spent paying bills. Our business has picked up a bit and we’ve done everything to pay all our bills on time but we need help. So many companies are calling! to get my credit cards cut in half and promising to hook me up with their lawyers for $5000 and $29.95 per month for years. I don’t know who to turn to but do know that everyone has told me my case is the best they’ve ever seen for loan fraud! They promise to get all our money back and a really great loan but why do I have to go through a middleman? Is there a good faith lawyer out there who handles this sort of fraud? We don’t qualify for the Obama loan modification by $60,000, I believe, and we make too much for medical help. Can you assist me in not making anymore mistakes with our home loan?

Question Asked on: August 5th, 2013

For such a complex case, you do need to immediately consult with an attorney who is an expert in debt management, and at the same time an expert negotiator who could deal with your creditors and possibly convince them to agree on a different terms or modes of payment. Read the full answer…

Winning a battle for custody is generally about taking the children’s welfare into utmost consideration. The court will consider what is the best for the children, regardless of their age. If the court sees that the children will be better off if they are with the father, then it will be granted to you. The key is to make your argument persuasive and factual that your children will have better lives with you than with the mother. Read the full answer…

Child custody order is always for the best interest of the child. If you and your wife both have legal rights to the child as the child’s legal parents, then the factors surrounding the conception (infidelity) doesn’t play a major role in the outcome of the custody order. What the court would consider is what is best for the child in this matter. Read the full answer…

It is a difficult situation where you want something achieved but you seem to be not getting it. First, speak with your lawyer and ask him exactly why he would refuse to do it the way you told him. He might have a valid response, and since he knows your case more than anybody does, he is in the position to give you the necessary advice. Read the full answer…

Your entitlement to the properties will depend on their nature, whether they are community, quasi-community or separate property. If it’s community or quasi-community property, then you and your husband may have a 50-50 interest in it, and you have no interest in your spouse’s separate property. Read the full answer…

Even if a parent has the right to spend time with their children, no parent is allowed to deprive the other of their chance to be with their children if either of them are entitled to custody.

In custody issues, the courts always put the child’s best interest before anything else. If your ex has been proven to have a history of domestic violence, it may work against him in a custody battle, especially if it has been proven that the violence has negatively affected the children. Read the full answer…

It may be a good thing that you did not go through the IRS hotline before you have consulted with a lawyer who could study your case and suggest options that are better for you. You can request the IRS to reinstate your agreement, or file an appeal if you think that there is an error in the computation of your taxes. Tax laws could be complex and it may be quite difficult at times to deal with the IRS yourself. Read the full answer…

You can make an estimate of what is a fair amount of alimony and child support depending on you and your children’s needs. Whatever you and your soon-to-be-ex-husband may agree on will be part of the final judgment. Whether it is fair or not will depend on your needs and expectations. But you really have to be careful and consult with a divorce lawyer before agreeing to any amount of support. Read the full answer…

You did not mention how many you are in your household, which has a bearing on which median income to apply for your particular case. In California, for example, the median income for a 2-person household is $63,030, for 3-person is $67,401, for 4-person is $75,656 and an additional $8,100 for any additional member in excess of 4. Read the full answer…

Since you know of your husband’s plan to file for divorce, then it is for your best interest to get an expert divorce attorney as soon as possible. Since your current residence is your marital home, he can only legally kick you out through a court order, regardless if it is his separate property. Read the full answer…

You can amend your petition from divorce to annulment by withdrawing your first petition and filling out a new form, the same form as you used to file the divorce. But instead of dissolution, and check the box for annulment AND amended. There are also rules to follow after the amendment is made, such as serving the amended petition to your soon-to-be ex-wife. Read the full answer…

The issue of jurisdiction and applicable laws on the statute of limitations for debt has always been a tricky subject if it considers more than one state, such as in your case. First, if the creditor has not yet filed any case against you for your debt, the applicable SOL will depend on what is stated in your contract, if there is any clause involving choice of applicable laws. Read the full answer…

Assuming that your case was “dismissed without prejudice,” then you may refile for divorce. You and your ex may use services of the same attorney since there is no dispute on property, support, etc. The attorney’s fees vary, so it is best to speak with one personally and discuss your case. Read the full answer…

If your mother did not execute a power of attorney or any document for that matter prior to the onset of her dementia, then one possible way for you to rent out, or maybe even sell the house, is by applying for conservatorship of her estate. Read the full answer…

First, do not speak to the Coast Guard or arresting officer or anyone else regarding this matter until you have spoken to a BUI/DUI lawyer. Consequences for BUI are generally much tougher than DUI because driving on water is deemed more unsafe than on land. Read the full answer…

You can transfer your property directly to your parents’ living trust through a grant deed by putting your parents’ trust as the grantee in the deed. But it is advisable to consult with a lawyer first before proceeding with the transfer to make sure that the transfer happens without problems. Read the full answer…

Usually, establishing paternity would require the signature of both parents. However, since the father is deceased, then you need to go to court and then the court will decide whether or not there is the existence of relationship between the child and your daughter’s fiance. Read the full answer…

California tax laws have a lot of differences with federal tax laws. However, there is an exclusion for gains for a sale of a home in California not exceeding $250,000. There is also an exception from withholding tax under Section 121 of the Tax Code. Read the full answer…

Where you file for modification depends on where the judgment was made. But California may have jurisdiction especially if your daughter has lived in this state and goes to school, essentially making California her home state. You may fill out the Request for Order Form (FL-300), Read the full answer…

You can file for divorce in the same manner as if your spouse is not in prison, as long as you can make sure that the summons is served to him personally through the prison authorities and you have a valid proof of that. Getting full custody of your children will be up to the court to decide, taking into consideration the children’s best interest. Read the full answer…

Payroll taxes cannot be eliminated in bankruptcy. Qualifying for bankruptcy is usually a case-to-case basis. Whether you’re filing as an individual or business, it depends on the income, assets and liabilities and other factors. If you are struggling to pay off your debt, then it is best to consult a bankruptcy lawyer first before filing for bankruptcy to ensure that you qualify, or if you may still be able to negotiate with debtors regarding payment and schedules. Read the full answer…

Social security wages cannot be garnished. However, if one opened a bank account and deposits the SS earnings there, they should notify the FTB. Otherwise the bank account will be used as part of their collections activities. There must be proof that ALL the money in the bank account came from social security alone, and that no other amount has been deposited from other sources. Read the full answer…

If your are filing for legal separation, you may ask for spousal support as part of your settlement. Your husband will also be required to pay for child support. Provided that custody will be granted to you, he is obliged to pay for his share of the expenses for your child’s needs. And if you want to go back to Germany with your son, you may need to file for an international move-away permission from the court. Read the full answer…

Concealment of a DUI is not grounds for annulment. Fraud as a ground for the annulment of marriage must constitute concealment of something that is vital to the relationship and the essence of marriage. Neither are drinking problems nor change in character grounds for annulment. Read the full answer…

Yes you can. Just like in divorce or annulment cases, a spouse may petition for support in a legal separation. The court will grant the amount of support upon their discretion, based on the standard of living during marriage, the length of marriage, the capacity of either spouse to provide or find a source of income, etc. Read the full answer…

One option is to contact your creditor to clarify the details of your debt, and if possible, so that you can come to an agreement regarding other ways for you to pay the debt. And also, depending on the debt, generally there is a 2-year or 4-year statute of limitations for the collection of debt, but this doesn’t stop the creditor from pursuing the case and demand payment. Read the full answer…

You may contact the insurance company and ask them if there is an option for you to pay directly to them. They may be able to receive your payment and certify that you have indeed paid for your share according to the court order. If you have an attorney, consult with them regarding the details of the order to make sure that you are complying with what has been stipulated. Read the full answer…

The court may appoint counsel to represent the best interest of a child on the court’s own motion or if requested to do so by a party, the attorney for a party, the child or any relative of the child, a mediator, a custody evaluator, a court-appointed guardian ad litem or special advocate or any other person who the court deems appropriate. The court will appoint a counsel for the child if it finds that it is for his best interest, and one of those factors include whether the dispute involves allegations of physical, emotional, or sexual abuse of the child. Read the full answer…

Since the custody was determined in AZ, that court has original jurisdiction and California courts cannot modify the custody order except in certain cases. However, there are exceptions wherein you may be able to file for a custody modification in California should you meet certain conditions. For example, if AZ court determines it no longer has exclusive and continuing jurisdiction, or if a California court would be a more convenient forum. Read the full answer…

Your parents could legally hold the money depending on the stipulation on your grandmother’s will, especially if your parents (or at least one of them) were assigned as the executor or trustee. One of your options is to study the will and what is written on it regarding the conditions set as to when and how you could get your inheritance. Read the full answer…

Unfortunately for you, the non-custodial parent cannot be forced to see his/her children if they don’t want to. But try to go back to mediation and come up with a set-up that would work for both parents, but most especially for the children. You may want to consult and work with a family law attorney who could guide you through the process, from mediation up to the court. Read the full answer…

Since he is the father of the child, he could get visitation rights if he brings the action to court. But there is a great chance that you will be granted full custody if the court finds that it is for the child’s best interest to stay with his mother. Just to make it clear, even if you have full custody, he may still get visitation rights if the court grants it. Read the full answer…

For Chapter 7 bankruptcy, a fee of $306 is collected upon filing (http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyResources/BankruptcyFilingFees.aspx). However, knowing whether filing for Chapter 7 is a good choice or not depends on different factors such as the amount of debt versus the income received, among others that may be considered. Based on the information you have given, your mother probably will benefit from filing for bankruptcy, Read the full answer…

Yes, you can. For legal separation, like in dissolution, judgment could include support. Spousal support may be awarded in a final judgment upon the discretion of the court, taking into consideration certain things like the lifestyle during marriage, the capacity of the obligor to provide, the capacity of the supported spouse to earn a living, etc. While courts have a broad discretion when awarding spousal support, Read the full answer…

The answer to your question depends on the situation, such as for what reason was your license suspended, or if there were other stipulations related to the suspension of your license, or how many times has your license been suspended before, etc. Contact a lawyer as soon as possible first, to seek advice regarding your license situation, and to deal with the accident and possible issues with the insurance companies of the parties involved. Read the full answer…

Yes. Non-payment of child support by an obligor, who is otherwise capable of paying but chooses not to, has serious consequences. If he still doesn’t pay the support after the involvement of the local child support agency, the court could hold him in contempt and he could face jail time if proven guilty of evading child support payment. Read the full answer…

Common law marriage has long been abolished in California. So generally, unless an unmarried couple who lived together register as domestic partners, they acquire no rights that are granted to married couples or registered domestic partners. However, the partner may have remedy in an ordinary civil action, instead of the family court, if they would want to stake claim at properties owned by the deceased. Read the full answer…

Renouncing US citizenship may not have an effect on tax obligations. The US government still imposes taxes on US income for nonresidents. If you are renouncing your U.S. citizenship and are no longer planning to receive US income, you may be required to file taxes only for the portion of the year that you were still a US citizen.

Read the full answer…

They won’t grant emancipation simply because you want to see your boyfriend. To be granted emancipation, you must meet ALL of the requirements: you must be 14 years or older, you don’t want to live with your parents and your parents don’t mind if you move out, you have your own way to legally make money, Read the full answer…

That depends on which loan you applied for. Since you were able to receive the loan, then it means you were qualified for it, provided that you gave them truthful information about yourself at the time of the application. You cannot escape student loans, so try to negotiate with the creditor for a payment system that would work best for you to pay it off. Read the full answer…

You are right to be looking for a property tax attorney. However, be warned that you should not delay any further since the deadline for redemption or initiation of payment plan for a property that tax-defaulted in 2008 is on July 1, 2013. It would be best to find a lawyer who is not only knowledgeable on tax issues, Read the full answer…

It depends on whether you actually did beat up your girlfriend, and if so, the circumstances surrounding that incident. Pursuant to California Penal Code section 12022.9(a), a 5-year sentencing enhancement is imposed on a defendant who knows or reasonably should know that a woman is pregnant, and yet commits a felony during which he or she personally inflicts injury upon that pregnant woman that results in the termination of her pregnancy. Read the full answer…

Getting non-parent custody would require proving that it is in the child’s best interest to be under the care of a person other than his/her parent. It is already complex as it is with the help of an experienced lawyer, and it would be at least doubly challenging without one. Read the full answer…

It is the statutory duty of the parents, to the extent of the parent’s ability, to support an adult child who is lacks the capacity to support themselves. If you are able to pay for the support for your child, then you are obligated to do so. The SSI benefits are for those who have no other financial source, or whose income is not enough to meet their basic needs. Read the full answer…

You are not liable for your deceased husband’s credit card debts especially because, as you mentioned, he did not leave any property that could pay for the debt. In addition to that, if he acquired the debt during the separation while the dissolution was in progress, you are not liable for that even if he were still alive; Read the full answer…

If you are registered domestic partners, then there is no going around declaring your income as would other married couples because that would be tax evasion or fraud. However, if you are not registered as domestic partners, then you need not factor in your partner’s income in filing your tax return because you are still single and unmarried under the law. Read the full answer…

Based on what you have stated, you may be qualified to apply for spousal support modification. There are several factors that the court would consider in awarding spousal support such as the length of marriage, the capacity of the spouses to earn, etc. It was unwise to have gone through divorce without consulting a legal expert, so don’t make that same mistake and personally work with one this time. Read the full answer…

No. Your husband was ordered to pay support probably because he was the “default” father of the child. Even a DNA test proving that he is actually not the biological father would not reverse the court’s decision ordering him to pay, and he may not get reimbursement for the child support. Read the full answer…

Generally, property acquired during marriage is considered as community property. But if it is a separate property of the wife, then you do not have any right to it. There are not a lot of details here to give more opinion on the actual nature of the home and the situation surrounding your case. It would be better to personally get in touch and consult with an attorney who is an expert in Family Law for advice. Read the full answer…

If there is a risk that your ex may take the child to another state or country, you may file for a “move-away” restraining order. However, the restraining order against you may only be suspended or stopped upon the determination of the court that the child is not going to be at risk of being abused. Until then, the custody of the child will not be given to you. Read the full answer…

Under the Child Abuse and Neglect provisions of the California Penal Code, doctors have a statutory obligation to report to authorities a reasonable suspicion of child abuse or neglect that they discovered within their scope of employment or professional capacity. (Penal Code § 11165.7.) If a doctor does come across a case of reasonable suspicion of child abuse and does not report it, that doctor may liable for the resulting injuries in a negligence cause of action. Read the full answer…

It depends on what you’re seeking. If you’re seeking a criminal case against Walmart, it depends on your state’s specific gun laws. Some states have really lax gun laws, while other states have more stringent requirements that mandate certain types of background checks. As you may have heard in the news, the federal government is having trouble passing a law that would require mental health and strict background checks in order to purchase guns. Read the full answer…

It depends. Under the Fourth Amendment, the home is sacred and generally, the police cannot enter without at least a warrant, consent, or some sort of exigent circumstance. While the police can ask you for consent, they cannot threaten or coerce you to give it. The United States Supreme Court has held that any consent given to the police or other government official to search must be voluntary, that is, free of duress or coercion. Read the full answer…

Unfortunately, if you are not the owner of the bike and the bike is not under your name, then there is not much you can do. One question that remains obvious is the circumstances under which you claim ownership of the bike. How is it that you claim to own the bike when there is another owner and your name is not on the title? Read the full answer…

Unfortunately, the answer is no. The “fruit of a poisonous tree” doctrine that you reference comes from well-settled United States Supreme Court case law regarding the Fourth Amendment. The Fourth Amendment protects people from unreasonable searches and seizures of their “persons, houses, papers and effects.” Read the full answer…

A power of attorney requires the express permission of the person granting that power; and since your mother is already incapacitated to grant that, the best recourse for your father to be able to better manage the properties is to apply to the court for conservatorship. Read the full answer…

Parents are obliged to support all their minor children’s needs according to each parent’s capacity (Fam C. 3900). But when the child reaches adulthood (18 years) before he/she finishes high school, this statutory obligation continues for parents to support the child who is a full-time high school student, unmarried and not fully self-supporting until he/she graduates from high school or until the child reaches 19 years, Read the full answer…

FL-180 is the form used to finalize the judgment in a dissolution proceeding, and the contents of the stipulated judgment puts a rest on all issues covered, unless one of the parties withdraws a specific issue from the judgment. As you said, the FL-180 that he gave you “stays true” to what you have agreed upon. Read the full answer…

If you are determined to file for bankruptcy and would qualify, it is possible to do it from abroad. However, you would still need to fill up and sign the appropriate forms yourself. Forms for that are downloadable from the website of the bankruptcy court of the state. Read the full answer…

Although summary dissolutions where no children, property or support are involved is the “fastest” way of getting a divorce, there is still a mandatory 6-month waiting period from the earlier of either the date of service of copy of summons and petition, or respondent’s appearance [Fam.C. § 2339(a)]. Read the full answer…

The statute of limitations for credit card debts starts running after the last transaction was made on the card, e.g. a purchase using the credit card or a payment made on the card, and runs up to 4 years as per the California Code of Civil Procedure 337. Read the full answer…

There are no exceptions to the requirements for summary dissolution that are enumerated in Fam.C. § 2400, where it specifically states on (a) that a summary dissolution will be allowed “if all of the…conditions exist at the time the proceeding is commenced.” Read the full answer…

The best and the only way of legally changing or stopping the payment of court-ordered spousal support is through the court. The court may modify or terminate support orders anytime, as it deems necessary [Fam. C. 3651(a)]. Sometimes the court may consider the supported spouse’s cohabitation with a person of the opposite sex as a considerable change in circumstances that Read the full answer…

When faced with serious financial difficulties due to debts, there are times when the best recourse would be to file for voluntary bankruptcy to get a fresh start in life. Filing for bankruptcy may help eliminate most, or maybe even all of one’s credit card debts. Read the full answer…

The duration for the payment of spousal support is stipulated on the final judgment in a dissolution case. When the court decides to award alimony upon dissolution, it is upon the court’s discretion as to the amount and the duration of the support. This decision is based on the facts at the time of the support hearing and the spousal support factors stipulated in Fam.C. § 4320. Read the full answer…

Payment of spousal support after the dissolution of marriage is upon the court’s discretion, taking into strict consideration the mandatory provisions set by Fam. C. 4320 such as, but not limited to, the earning capacity of each party and “the ability of the supported party to engage in gainful employment.” Read the full answer…

Whether an organization falls under IRS Code Section 501(c)7 or IRS Code Section 501(c)3 depends on the nature and objectives of the group. A social club that is organized for pleasure, recreation, and other similar purposes, and supported by membership dues, fees and assessments would usually fall under IRS Code Section 501(c)7 for non-profit organizations. Read the full answer…

A grant deed basically “transfers title to real property or a real property interest from one party (grantor) to another (grantee)” (Farlex Legal Dictionary). Selling a rental property may have tax consequences on the seller (under whose name the property is on before the sale), depending on whether there is a gain or loss from sales. Read the full answer…

A person has the right to leave an employment that they deem as detrimental to their general well-being; at the same time, a debtor under Chapter 13 has the right to convert to Chapter 7, provided that he or she is not ineligible based on bad faith or abuse of bankruptcy process. Read the full answer…

There are times when filing for bankruptcy may be the only option one has when faced with grave financial difficulties. However, there may be other alternatives to filing for bankruptcy such as debt consolidation, creating a repayment plans with creditors, creating a debt management plan, or possibly defaulting on the debt. Read the full answer…

Generally, a cancelled or forgiven debt for less than its full amount is considered as income for tax purposes (IRS Publication 4681). In cases of cancelled or forgiven debts following foreclosure or repossession, it is treated as a sale for which the debtor may realize gain or loss. Read the full answer…

The answer depends on whether there actually was an error committed by the District Attorney. Was your son actually protected by the restraining order but there was a clerical error? Based on the facts your provided, that is the only seemingly plausible error that might subject you to liability. However, it is not up to your wife whether the DA will reopen the case, it is simply up to the DA. Read the full answer…

A summons or subpoena is a common tool used by lawyers to mandate that witnesses show up to hearings and/or provide information. If served with a summons, it is imperative that you abide by it or face contempt of court (which could include fines and/or possible jail time). Read the full answer…

Assuming you have the money to pay for a private defense attorney, there are several ways to find one who is experienced in the area of felony rape, including internet and standard phone book searches. Typically, I find that the best way to select an attorney is through referral by others, which is a good way to gauge an attorney’s reputation and experience. Read the full answer…

Generally speaking, in California there are three sentencing ranges for each offense: lower, middle and upper. There’s a criminal sentencing chart that judges and criminal attorneys use that specify the ranges for each specific crime, and statutorily, this is the guideline that the judges have to follow. Read the full answer…

A parent who wants to change a final court decision on child custody bears the burden of proving that there is a substantial change in circumstances that would affect the child, and that a modification on custody would be for the child’s best interest. Read the full answer…

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