Author: Joshua Hershon

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Documents You Should Prepare

As you get ready for your first meeting with your family law attorney, you should prepare certain documents and information to bring with you. The information you provide will help us assess your situation and develop a plan that will be the best fit for your objectives. This list is a guide to help you get started. Not all items listed may be applicable to your situation, and we may ask you for additional information and/or documents not on this list as well.

Financial Information (including account names, numbers, balances and current statements)

Individual income tax returns for the past three to five years (state and federal)

Business income tax returns for the past three to five years (state and federal)

Recent income stub

Bank statements

Statements from trusts, stocks, bonds or US Treasury notes

List of safety deposit box contents

Investment accounts (annuities, mutual funds)

Retirement Savings Information (including balances, beneficiaries, outstanding loans and current statements)

401(k)s

403(b)s

IRAs

Life insurance policies (including cash value)

Social Security statement

Pension statement

Property Information (including property description, address, ownership interest, market value, outstanding mortgage and loan balances, source of mortgage and loan payments and most recent tax assessment)

Primary residence

Rental properties (including any rental income)

Vacation homes

Business property

Personal property of value (antiques, collectables, automobiles, jewelry, art, computers, electronics, clothing, furs, etc.)

Inheritance (current or anticipated)

Interests in trust (current or future)

List of property owned by each spouse prior to marriage

Automobile(s), boat(s) or other recreational vehicle(s)

Bills and Outstanding Debt (including balances, statements, source of payments/funds)

Credit card statements

Loan documents

Utility bill

Other bills (school tuition, medical bills, etc.)

Monthly budget worksheet

Legal Agreements

Wills

Living wills

Powers of attorney

Durable powers of attorney

Advance directives (also termed power of attorney for healthcare, healthcare proxy)

Prenuptial agreements (also termed premarital agreement, antenuptial agreement)

Divorce decrees or child support from a previous marriage

Non-financial Contributions

Contributions of a homemaker

Contributions made by one spouse to further the educational and/or career goals of the other spouse

Finally, you will also want to start thinking about other issues that may or may not be applicable to your situation. These are matters about which you should speak with your attorney and may include:

Child support

Child custody (legal, physical)

Visitation

Residence in the marital homestead

Beneficiaries of insurance policies and other benefits

Spousal support / alimony

Domestic violence issues (including child abuse)

Post-divorce non-financial support

Attorney’s fees and expenses

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San Diego Child Support

In California, Courts try to determine the income of parents available for support.  Income may be considered from the following sources:

Child Support Factors

  • Wages from a job
  • Tips
  • Commissions
  • Bonuses
  • Self-employment earnings
  • Unemployment benefits
  • Disability and workers’ compensation
  • Interest
  • Dividends
  • Rental income
  • Social Security or pensions
  • Any payments or credits due or becoming due, regardless of the source, including lottery and prize winnings
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Cyber Bullying

As Facebook and Twitter become more popular, Cyberbullying is becoming increasingly prevalent in schools. Cases of Cyberbullying have rocked the country with effects ranging from the victims not attending classes out of fear and shame to suicide.

How to Protect Your Child from the Dangers of Cyber Bullying

Cyber Bullying encompasses text messages to online posting on websites. As of 2009, the California Assembly amended the Education Code section 48900 to include: any student can be suspended or expelled for engaging in an act of bullying, including, but not limited to, bullying committed by means of an electronic act. Despite this legislation, a National Cyber Security Alliance and Microsoft survey which claims just 26 percent of K-12 teachers surveyed have taught kids how to handle Cyberbullying, versus 15 percent who have spoken to students about hate speech online .

So if you have any reason to believe that your child is being cyberbullied, let school authorities know. Legally, they have the tools readily available to ensure your child has a safe environment to learn and is not targeted on campus. If for some reason there is no action being done or you have any questions regarding whether the conduct has become harassment our office is able to assist you with the legal remedies to protecting your child.

By Mark Hachman, Study: Few Teachers Have Spoken to Kids about Cyberbullying. PC World. March 9, 2011.

http://www.pcmag.com/article2/0,2817,2381741,00.asp

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Appealing the Orders

What Can You Do About it?

So you lost a hearing in family law and the unthinkable has been ordered…whatever that is.

You may ask the court to reconsider the issue based on new evidence or law. This is called a Motion for Reconsideration and it must be filed within ten days of receiving the order. Note that this does not apply to family code 2030 fee orders. Also, the court may reconsider its orders at any time on its own. Reconsideration motions to toll the time during which you may appeal.

You may also ask the court to set aside its orders. This is done pursuant to California Code of Civil Procedure section 473. The time limit is six months. The motion must allege mistake facts or law.

You may also ask for set aside under the family code at 2120-2129. Such a set aside is meant to facilitate disclosures. Similarly the time frame is six months. Such motions cover marriage and separation but may not be brought regarding the issue of paternity. Such motions stem from actual fraud or perjury within a one year time limit – two years for duress. A mistake re a stipulated judgment has a one year time limit – whereas mental incapacity carries a two year limit.

You may also consider a motion to vacate or for new trial under California Code of Civil Procedure 656-662.5 and 663.2. This applies to judgments and appealable orders. Such motion is based on accident, surprise, new evidence, excessive or inadequate damages, insufficiency of evidence, or error in law. These motions must be brought before entry of judgment and within 15 days of notice.

You may want to consider filing a writ or appeal with the court of appeals. Such appeals must be filed within 60 days. Writs must be filed within a reasonable time limit. Appeals are confined to the record and pleadings. Writs allow more broad discussion.

All of the above-discussed motions etc. are technical in nature and you would be well-served to be represented by a licensed attorney.

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Filing a Writ

When do I file a writ and what kind should I choose?

A writ is similar to an appeal in that it is a directive from a higher court to a lower court to do something – or not do something.

While appeals are a matter of right, writs are a matter of equity, are granted on a discretionary and extraordinary basis. In fact, appellate courts usually won’t grant a writ request unless the party requesting relief has no other adequate remedy and will suffer irreparable harm if writ relief is not ordered. Determining whether there is alternative relief available is often a matter of determining if the judgment or order is appealable. For that, check Code of Civil Procedure section 904.1 as well as applicable case law.

Here are some writ titles to consider:

Writ of Mandate: This type of writ is appropriate where one seeks an order for a lower court or administrative agent or agency of government to perform a specific act.

Writ of Prohibition: This type of writ is appropriate where one seeks an order directing any official body not to do something the appellate court deems illegal.

Writ of Supersedeas: This type of writ is appropriate where one seeks an order staying (halting from taking effect) an order or judgment – perhaps while an appeal or writ of undertaken.

Writ of Review: This type of writ is appropriate where one seeks an order for review of a lower court’s decision where one alleges that the court exceeded its jurisdiction by performing judicial functions illegally or contrary to proper procedure. A writ of certiorari is a type of writ of review.

Writ of Habeas Corpus: This type of writ is appropriate where one seeks an order for an entity holding a prisoner to justify the lawfulness of the detention.

Writs are a technical pursuit best conducted by or under the supervision of a licensed attorney.

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Timeline for a Writ

What is the timeline for my writ?

While common law writs typically carry a 60 day filing limit from the date the judgment was entered, upon explanation of further delay and absence of prejudice to the opposing party, the filing deadline way be excused. There are some circumstances where an appellate court may find your writ untimely even within the 60 day period – for instance, if the order appealed was entered some time ago, yet you have strategically chosen to wait until the day before trial to seek a writ and also to stay the order.

legal_writ

However there are also statutory writs in California – that is, legislative statutes specifying certain types of ruling which may be reviewed by writ. Statutory writs may have deadlines specified by the applicable statute, and where no statutory timeline exists, the equitable principle of laches still applies.

Examples of statutory writs include:

Civil Cases

  • CCP 170.3(d) – Denial of motion to disqualify a judge
  • CCO 418.10(c) – Denial of a motion to quash service of process
  • CCP 473(c) – Summary adjudication of issues or denial of summary judgment
  • CCP 404.6 – Coordination motion
  • CCP 405.39 – Motion to expunge lis pendons
  • CCP 877.6(e) – Good faith settlement determination
  • CCP 400 – Motion for change of venue

Criminal Cases

  • CCP 170.3(d) – Denial of motion to disqualify a judge
  • PC 995, 999(a) – Order denying motion to dismiss
  • PC 1538.5(i) – Order denying motion to suppress
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advocacy, patience and support

The experienced attorneys and knowledgeable staff at Hershon Law, provide a personalized brand of cost-effective legal services. Based out of San Diego’s beautiful north county beach community Carlsbad, we are here to offer advice and legal support for members of our local community.










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