Tuesday, September 18, 2018

Best Attorney? What You Want May or May Not Work for Your Case

The correct word is probably more like "appropriate", since each case has the claimed facts, and each side has some type of emotional deal that goes with it.

Family law attorneys may focus on divorces, but child custody does not require a divorce in the first place?  Whether married or unmarried, the issue of kids is common, and the issues involving kids is also commonly a point of problematic issues.

While many attorneys can handle custody issues, and financial issues, and legal issues, there really is not one type of person,  attorney wise, that will be the best fit for all clients. Having knowledge of procedure in family law is a given, but pretty much the way family law attorneys handle divorces and cases can vary.  Some may like to focus on mediation and settlement, and that's pretty much what they do.

It does not take a litigator to focus on settlement. It does not take a real fighter to focus on mediation.

So for those who wish to settle everything, and they can actually agree to work out something, that's great. Should they have to pay $3k, $5k; or even $60k, $200k, or close, to work it out? Maybe, if there are serious numbers in the portfolio, many issues with properties, and tax issues. Or large businesses and valuations (let's say a dentist wants to sell the practice; or doctor wants to divide the practice,etc.) Would that require an attorney or a tax person? Could be both but seems more like tax to me.....

However, for the not so rich  people who don't get along and couldn't work out a plan if you paid both of them, and for any couple that has long been fighting about various issues, of which money might only be one small issue, it may not be the mediator type attorney that can work anything out.
In many cases, clients will not back down for varying reasons, and some of those reasons are definitely valid? and why not? Maybe they are actually being ripped off? Maybe one party has no parenting skills whatsoever? Maybe one parent is on drugs?

What attorney commonly sees, is that one parent is really off base in his or her attitude toward the kids, or whatever they are fighting about, and the other parent will not give in-- and often times, rightly so...  On the other hand, sometimes one person is dead set on some type of action he or she wants, and will not let that go (say, one wants to keep a house but the other wants it..) Or, commonly seen, is that one parent is the better caretaker of kids but is always working, leaving the not so good parent taking care of the kids--but doing a terrible job?

Then there could be domestic violence issues and not any money issues? OR one or both parents have their own issues inherent to their personalities, and that will fuel more fighting.

For the most part, the non financial workouts are often much more difficult emotionally, and the financial ones can be maddening rather than depressing.  You don't usually need litigation for financial workouts if people can agree upon numbers or certain assets. Sometimes there will be fighting because no one will agree on actual numbers, thus there is no agreement on who gets what.

There could be deceit or huge discrepancies used in the financial holdings, in which case tracing would be used and investigators or CPAs if needed. Litigation might have to be used if there is fraud or something close. It could be that spousal support would be an issue as one side claims he/she doesn't make the amount the other side claims?     

Normally -- fraud doesn't just get mediated away? There is a lot written in the family code concerning finances because historically, some people have chosen to try and swindle the spouse; therefore, litigation is usually required. Large dealership sales, acquisitions and larger transfers can be very big litigation issues, especially if they were done without oversight.

As for the children and custody fights, sometimes both parents have some fairly common beliefs and not every parent is wrong. Sometimes a mediator can decide what is in the best interest of the kids, but other times we have seen some decisions that are not exactly what we would call fair...

It might be when some people look for attorneys, they really want a fighter and not a weak advocate. It is true that some attorneys are not able to actually litigate because they really have little skill at trial advocacy. Others may have better skills at settling issues, because they can find some common ground to parcel out to each side.  In choosing an advocate, each client probably needs to feel confident to some degree, that whatever type of action they are trying to get--that the attorney can actually do that action for them.  

The best way for an attorney to find out whether they are suited to a case is to ask a lot of specific questions.  It takes more time, but in the long run it will help the client, and the attorney can better perform the duties required. Hopefully that would lead to success for the client's case!

Monday, September 17, 2018

Pro Se Family Law Case of the Century-- Court Finds for Husband

In this case the trial court had ordered $9,000 in attorney's fees to a wife during a divorce case, citing disparity in the wife's gross income as a court clerk of $5,135/mo and that of her husband, who grossed $8,333/mo. as a law librarian. 

When the husband appealed the fee order, he pointed out that not only was his income not substantially greater so as to support such a large attorney fee award, but that he has significant costs and expenses including child support and spousal support, after which he was not left with enough income to pay attorneys fees.

Past cases have clearly emphasized that the court should consider need and ability to pay, but this case is unique in that the court specifically considered the husband's actual expenses and also considered his hefty child and spousal support obligations in determining that it was unfair to make him pay attorneys fees under these circumstances.
If your spouse is requesting that you pay his or her attorneys fees, you should definitely cite this case and argue the same logic, that after you are ordered to pay child support and spousal support that you just don't have money to meet your monthly budget --- and then pay your spouse's attorneys fees on top of all that. 

                         [full text]

Court of Appeal, Fourth District, Division 3, California.

ALAN S., JR., Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Mary T., Real Party in Interest.

No. G041034.

    Decided: March 18, 2009

Click either to read the case. You will almost never find a case like this.
It's almost enough to make one cry in realizing sometimes there is Justice in this world today but it doesn't come easy..... and NOTE-- the Husband was making over $8,000 a month (which in Los Angeles area, doesn't go too far. ]


Parents, Marijuana Use and Custody in California

Could you lose custody of your children due to smoking marijuana?

Most county employed mediators have standard provisions that parents should adhere from smoking in presence of children, or sometimes even when the kids are under the control of that specific parent. Further, even if smoking is allowed in certain areas, many mediators don't want kids near second hand smoke, period. EVEN if it's inside the house in another room...EVEN if it's anywhere near where the kids might be, play, or access? Like outside?

The "smoking" will generally cover most forms of tobacco and possibly edibles.... (cigar, cigarette, vape, medical MJ, etc...)  And many times, smoking by third parties in the home may not be a good idea due to secondhand smoke. VAPING is almost worst because it is becoming well known, that the nicotine involved, is fused with scents (i.e. cherry,etc) that the teens are running to buy/try?   https://vaping360.com/how-old-to-vape/

In Butte County, a jury has previously returned a guilty verdict over an issue of whether medical marijuana is a defense (to child endangerment charges)--- the long contested case of  Daisy Bram, where allegedly, the lesser count of misdemeanor child endangerment was found (as opposed to child endangerment likely to cause great bodily harm)... Judge Glusman ruled that no valid evidence was presented as to the certified use of medicinal marijuana and thus it was not available as a defense. Ms. Bram was not represented by counsel, which obviously hindered her defense.


Child Endangerment in California...

Under Penal Code section 273a  there is a possibility of criminal prosecution whenever a child is under your care or custody and you:
  • Willfully permit the child to suffer;
  • Inflict unjustifiable physical or mental pain upon any child; or
  • Willfully endanger the health of a child.
If the prosecuting agency in your county believes that you are “endangering the health of your child” by smoking marijuana or growing it in a home where your children reside, you may face criminal charges....

These charges may be filed as a misdemeanor or as a felony. Of course, if the court order stated that any type of smoking or use of same is not allowed while child is under your care, a violation might be a contempt charge potentially, if the other spouse or another was to bring that claim forward?
If convicted of felony child endangerment, you could be sentenced to up to six years in prison and ordered to pay a maximum $10,000 fine. A misdemeanor conviction is punishable by up to one year in county jail, up to a $1,000 fine, or both.

Why is Alcohol Allowed But Not MJ?

Generally, no courts like the idea of alcohol, tobacco, marijuana, edibles, cigarettes, cigars, etc. when it comes to kids. Although there are tons of rules regarding drunk driving, there are not tons of rules for intoxication at home due to getting high on drugs, including legal marijuana and the like. While the hearsay out there is that MJ will be used, consumed and grown by large business, including beer companies, and that the feds will be changing those laws, it is a possibility, but we wouldn't bet your life on it happening super soon. The banks and other super duty corporations always want to benefit themselves first. BUT if they manage to do it, we can be assured that they will have already thought of safer ways to tone down common marijuana so that it would be as common as alcohol, and treated closer to the way alcohol is regulated.  OTOH, the presence of nicotine in the vaping formulas which are targeting teens (and apparently succeeding)-- is something that relies on curiosity and being popular, because "everyone" is trying it. However one is supposed to be 21 to be "vaping"....well, we are sure that plenty of people are ignoring that there law?? LOL
Parents that are smoking or vaping, your kids are watching you.

Note:  //The courts generally do not favor the smoking of MJ, even if it is medically prescribed. People with chronic anxiety often resort to marijuana use, or prescription meds. The meds only do so much, the overly anxious client will still be overly anxious, but somewhat better than with no meds at all.//

Friday, September 14, 2018

Spousal Support-- Too Much or Too LIttle?

Ar you paying too much or conversely, receiving too little?

Attorney has not lost many of these types of cases involving spousal support.
To best of attorney's knowledge, she may have lost one. But not usually.
It is imperative that planning take place, preferably long before you need it.
Of course, many people have not planned anything at all. Ever.

Spousal support and legal fees toward obtaining and enforcing support/arrears
are not wiped out by bankruptcy generally. Also any bankruptcy filed during
a divorce can be dangerous; it is best to get both the divorce/bankruptcy attorneys
advice before proceeding, especially if your divorce is ongoing; bankruptcy errors
are expensive to remedy.


Are you certain you have a valid marriage--CA does not recognize
common law

Do you have instead, a domestic partnership?

How long were you married?

How long were you separated when your divorce was filed?

How much time went by without any support?

How long has the ex worked? What type of work/pay?

Did spouse stay home entire time of marriage, and not work? Why?

Did spouse live with a boyfriend/romantic relationship partner?

Did spouse pay his/her own bills?

Did spouse move out or did you move out?

Was one spouse far more educated than the other?

Was one spouse always rich from date of marriage?

Was one spouse in possession of inheritance money during marriage?

Was either party divorced and then got married again? Do you have
the final judgment? Were you married/divorced from same spouse and
then got married again?

Was there an agreement to pay the spouse in lieu of spousal?
Was there an agreement to give the spouse some form of property
  in exchange for doing away with spousal?

Is there any type of military compensation being paid to one spouse?
Is that spouse retired?
Is there a personal injury award, workers comp, or other legal
  claim out there that the spouse has, but not filed yet?
Is there a chance the spouse bet on a winning lotto but has kept the
  win itself hidden to you? (don't laugh, there is an actual case on this)

Do you know what credit cards your spouse has? Have you ever
checked to be sure? Have you checked your own credit to make sure?

Do you have joint savings, checking, or other assets where the spouse
could have sold it off without you knowing?  Have you checked?


Wednesday, September 12, 2018

Winning v. Settling ... What is the Difference?

In family law, it's often stated there are no winners?

...  HOWEVER when it is YOUR case in family law, do you WANT to be the loser?

Probably not.

Therefore it makes sense that "settling" a case involves some concessions, right? Well, conceding something that is not important, doesn't amount to much simply because it doesn't matter so much. So we are left with either wanting to win something key, and important in most cases?
Attorney herein doesn't believe that any parent should just give up on something
 important, if in fact it is rationale and not errant, unproductive, or just plain crazy.

 Winning rationally is not problematic.

What is problematic is when entrenched parents simply insist on something that is not key, or they are very selfish and small minded, or they are possibly narcissistic and possibly bi polar.

In the last case, if either parent has mental issues [which is more common that you know] involving anxiety, OCD and the like, we will find issues that may not be actual issues, but will appear to the parent focusing on "it", to be an issue that expands or blows up out of control. Winning at all costs is not usually what should be done..in cases like these.

High conflict cases are usually entrenched parents
 that have issues of their own
OR they had issues before, 
OR they make mountains out of molehills 
until it is way, way, way out of control...

Parents that spend $25k or $125k on obtaining custody may or may not be justified. Some parents are only fighting over custody to save money in support, but others may be doing it to gain a "one up" on the other parent.

And some attorneys will keep the case going because the fighting is paying them more money, and attorney herein has seen other attorneys file MANY meritless motions simply to apparently get paid more, and instead of explaining to their client the truth, the attorney gets paid and the client doesn't get any relief obviously.  How does attorney know this?  Because attorney herein has witnessed it, it's that simple.

 Attorney's goal is  to get the client what the client deserves and each case is different.