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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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Divorce in Default

If you or someone you know has been served with divorce paperwork and that party hasn’t replied to the paperwork, then an ex-spouse may have already received the default Judgment of Divorce. This Judgement can stick the other party with unfair terms of property division, spousal support, child support and child visitation rights.

What Do I Do if the Judgement Has Already Been Filed

If the Judgement of Divorce has already been filed, then one must file a motion to set aside the judgement. The motion can almost certainly be granted as  a matter of law, but the motion cannot be granted unless you file it!

– Joshua Hershon

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Calculate Spousal Support

During a Divorce, the California Courts will use the “guideline calculation formula” (that stems from the legislature) to set Spousal Support. When a divorce fails to settle through negotiation or mediation, the Divorce will then go to Trial. At Trial California Judges and Commissioners are supposed to consider the following factors:

Guidelines to Calculating Spousal Support

  • The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
    1. The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
    2. The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
  • (b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
  • (c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
  • (d) The needs of each party based on the standard of living established during the marriage.
  • (e) The obligations and assets, including the separate property, of each party.
  • (f) The duration of the marriage.
  • (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
  • (h) The age and health of the parties.
  • (i) Documented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.
  • (j) The immediate and specific tax consequences to each party.
  • (k) The balance of the hardships to each party.
  • (l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
  • (m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4325.
  • (n) Any other factors the court determines are just and equitable.
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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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Airport Rights

The 4th amendment protects citizens from unreasonable searches of their persons, houses, papers, and effects. At the airport, however, the 4th Amendment is slowly dying.

What Are Your Rights at the Airport?

Federal law requires that any passenger boarding a commercial airline must be searched prior to entering the aircraft. (See 49 U.S.C. § 44902.) These warrantless searches are deemed constitutional administrative searches because of the unique dangers at the airport such as hijackings and other terrorist activities. Previously, if passengers did not want to subject themselves to a search prior to entering the secure area of the airport they had the right to refuse to consent to the search and leave on their own accord.
Not anymore.

In United States v Aukai (9th Cir. 2007) 497 F.3d 955, the court ruled that when an airport screening is reasonable and conducted under regulatory authority, a passenger cannot revoke their implied consent to be searched once the person attempts to enter a secure area of the airport, or even places a bag on the conveyor belt before they attempt to enter. To justify this decision, the Ninth Circuit found the policy of allowing a person to simply leave the airport after being confronted with a search was ridiculous. Further, the court held that allowing a person to refuse a search and leave the airport would allow multiple opportunities to penetrate airport security and this would pose an unacceptable risk in a post-9/11 world.

Your 4th Amendment rights, however, do not completely disappear once you try to enter the secure area of an airport. Searches are only reasonable “so long as they are no more extensive or intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives, and that it is confined in good faith to that purpose.” This also raises privacy issues.

Many airports require passengers to step through full body scanners that provide security agents with a full view of your naked body. People may opt out of the body scans. But if they do, they get a full-body pat down which many claim is more intrusive and humiliating than the body scan itself.

Are these body scanners the least extensive and intensive way to detect explosives given current technology? With terrorists utilizing sophisticated plastic explosives and reports of them going so far as to use breast implant explosives they may well be. On the other hand, countries such as Holland are utilizing body scanners that hide the contours and face of the human body but still detect objects that could be weapons.

With technology rapidly evolving, the meaning of the 4th amendment in the context of the airport is sure to evolve as well. In a society that takes individual rights very seriously, many are worried that fear is causing an erosion of our most fundamental liberty rights. On the other hand, others believe that giving up some of these rights is necessary to ensure safety and to prevent a tragedy such as 9/11 from happening again. Whichever side you stand on, 4th amendment rights in the airport setting following 9/11 is certain to be a controversial legal issue and one to keep an eye on as it will affect the way we travel for years to come.

What would you prefer: Heightened security? Or faster lines at the airport?

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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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