Divorce

Divorce

Monday, May 20, 2019

Attorney C. Chan = The Fixer of Bad Cases!

Attorney has seen many, many cases that never had to get to the point that they are at--IF at least one client had changed some key methods. But it is to be expected that clients can't always fix their cases since they are wound up in the turmoil... right?

From attorney's outside view....fixing most cases is possible. It may not be fast. But it is likely doable over time. Also attorney finds that clients must sometimes modify their own actions and that of the kids as well. Apparently attorney herein is not alone when realizing that the FIXER name is known even by other attorneys, for example.... attorney just saw this online, and it is exactly the view of attorney herein........ at https://njfamilylaw.foxrothschild.com/2018/10/articles/general-new-jersey-family-law-news-updates/when-you-cant-find-a-better-man-five-tips-to-consider-when-preparing-for-divorce/

  1. Find the right “Fixer”:  The divorce process can be beyond overwhelming for countless reasons.  When searching for a divorce attorney, consider not just looking for someone who is experienced in family law.  Also consider retaining an attorney who you feel comfortable talking to.  Who you can trust.  Who you can confide in and discuss certain aspects of your life and your marriage that you may not ordinarily feel comfortable speaking about with anyone else.  Who is responsive and reliable.  Who can ultimately advocate for you in the way that you believe best serves your interests and those of your children.  Who will listen to you and be mindful of what you are looking to achieve.

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There is no point to keep doing the same mistakes over 
and over and expecting a different result?

Therefore if the thing that needs changing just happens to be under your authority, then that's likely where the change needs to be made.  Judges get tried of hearing the same old stuff every day in court.  Pretty soon they are on auto pilot and send everyone to mediation.  But mediation doesn't change people.  

BE VERY VERY AWARE: MEDIATION IS A PROCESS BUT IT IS NOT NECESSARILY A SOLUTION IN MANY CASES. THERE ARE MANY DIFFICULT SITUATIONS THAT WE HAVE SEEN, WHICH SIMPLY CANNOT BE "MEDIATED" AWAY FOR A RESULT.

Judges should not be allowing defendants who are under Criminal Protective Orders to have custody of kids that they have abused....but that is what we are seeing?



Change cannot take place unless someone or something makes a change--it likely won't happen by itself. So in mediation, judges just read what the mediators have written down. When and if the clients don't follow what they are to do, we see repeated issues over and over and over.  Clearly the parties MUST implement some change somewhere.

So the biggest problems are usually that all of the parties:
1.  Don't want to change their behavior
2.  Don't want to jump through hoops
3.  Don't want to have to do anything that is inconvenient
4.  Don't want anyone telling them what to do.

It's pretty simple that if your other spouse or live in, is a difficult personality, takes meds for behavioral issues, or has been diagnosed with A B or C,  your case will take more work. Not every child should be raised primarily with a parent that has NO parenting skills at all.

But sometimes we have to make the best out of a bad situation. And sometimes that may mean we will be required to jump through a few hoops also. For most parents, this is doable. For some parents that have mental issues/or blocks, they will refuse to do whatever it is.  In those cases, the parent that won't comply will inevitably suffer in the long run. Because it isn't about you so much, as whether your behavior will or will not affect the kid or kids to a large degree.

As an example, a couple with kids  where one parent has serious issues and is not suitable as the
primary parent, will continue to battle the other parent for years in trying to keep his/her domain over the kids.

Obviously this person should not be primary custodial nor should he/she even have the kids overnight--that's when we start to have some really large damage with the kids... and to prevent that from being a vicious circle, someone has to step in.

Minor's counsel is NOT always the answer, and attorney has seen that minor's counsel is often given cases that will not change. Reason being, not all parents should be using "co-parenting".  Attorney has seen some pretty bad cases and co-parenting simply doesn't work well in really bad cases.  If you have that situation, call attorney--she may be able to restructure your case.


Wednesday, May 1, 2019

TRUE: DV Convictions Can Possibly Take Abuser's Pension!!

CALIFORNIA FAMILY CODE
NO SPOUSAL SUPPORT TO ABUSIVE SPOUSE
Family Code Section 4325
(a) In any proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply:

(1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.
(2) If economic circumstances warrant, the court shall order the attorney's fees and costs incurred by the parties to be paid from the community assets. The injured spouse shall not be required to pay any attorney's fees of the convicted spouse out of the injured spouse's separate property.

(3) At the request of the injured spouse, the date of separation, as defined in Section 70, shall be the date of the incident giving rise to the conviction, or earlier, if the court finds circumstances that justify an earlier date.

(b) The court may consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse, or any other factors the court deems just and equitable, as conditions for rebutting this presumption.

(c) The rebuttable presumption created in this section may be rebutted by a preponderance of the evidence.

(d) The court may determine, based on the facts of a particular case, that the injured spouse is entitled to up to 100 percent of the community property interest in his or her retirement and pension benefits. In determining whether and how to apportion the community property interest in the retirement and pension benefits of the injured spouse, the court shall consider all of the following factors:

(1) The misdemeanor domestic violence conviction, as well as documented evidence of other instances of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party's child, including, but not limited to, consideration of emotional distress resulting from domestic violence. The court shall also consider documented evidence of a convicted spouse's history as a victim of domestic violence, as defined in Section 6211, perpetrated by the other spouse.
(2) The duration of the marriage and when, based on documented evidence, incidents of domestic violence, as defined in Section 6211, occurred.
(3) The extent to which the convicted spouse's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the convicted spouse to devote time to domestic duties.
(4) The extent to which the convicted spouse contributed to the attainment of an education, training, a career position, or a license by the injured spouse.
(5) The balance of the hardships to each party.
(6) Any other factors the court determines are just and equitable.

(e) As used in this section, the following definitions apply:

(1) "Domestic violence misdemeanor" means a misdemeanor offense for an act of abuse, as described in paragraphs (1) to (3), inclusive, of subdivision (a) of Section 6203, perpetrated by one spouse against the other spouse.
(2) "Injured spouse" means the spouse who has been the subject of the domestic violence misdemeanor for which the other spouse was convicted.

(f) The changes made to this section by the bill that added this subdivision shall only apply to convictions that occur on or after January 1, 2019.

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Potential Huge Issues for Domestic Violence Cases in Regard to PENSIONS

IF there is any abuser who is violent--and yet maintains a good job--- he or she is most at risk, especially if a conviction for domestic violence happens. THIS IS VERY HUGE for anyone who already is on the edge of being convicted of domestic violence.

Attorney does work on both family law and criminal cases.  If you are in the bad position of
being accused of Domestic Violence, and you have a good job, you better not be convicted of the domestic violence.  For legal help on domestic violence, call attorney ASAP!

Tuesday, March 19, 2019

Child Support-- Do you Need to Increase or Decrease It??


California Child Support Guidelines


After the determination of a parent–child relationship, the next step is to calculate the appropriate    amount of child support. The formula used to calculate the appropriate amount of support is known          as the child support guidelines. California law provides guidelines to courts for setting the child        support payment amount. 
Child Support guidelines are based on each parent’s net disposable monthly income and the amount of time the child is cared for by each parent. For the purpose of deciding child support payment amounts,    the court considers income from all sources, whether or not it is reported or taxed under federal law.      The guidelines came into effect as part of an effort to make the calculation less of a judgment call and more of a mathematical equation.  Examples of circumstances that can affect the calculated child support      amount include a child’s educational expenses, special needs expenses, or travel expenses for a distant parent.
The income can be in the form of money, property or services, and includes:
  • 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 credit due or becoming due, regardless of the source, including lottery and prize winnings
  • Usually, a new spouse's income is not considered in setting support, however, we have seen judges consider      the effect that such income has on the net disposable income; therefore, it's probably worth a shot to mention    it if you are the receiving party, or where the difference in incomes between the two parents is vastly different.
The court determines net disposable income for each parent by considering certain items form his or her income, including:
  • Taxes
  • Ordinary union dues
  • Ordinary retirement contributions
  • Health premiums
  • Child or spousal support actually being paid
  • Costs of raising children from another relationship
The court uses the net disposable income for each parent
 and the percentage of time each parent spends with kids:

child support calculator



Friday, March 8, 2019

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?  **Note: in one mediation case, a mediator told a client that because MJ smoking is legal, to drop the issue...quite frankly, the actual smoking or use of the drug (even where legal) is not necessarily proper inside, where kids are, or in cars and other certain places? or where kids have any type of respiratory issue/other ailments? In any event, despite the mediator, it is NOT a good idea for MJ to be used around kids, period. Don't care if it's legal.

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.

http://reason.com/blog/2014/03/07/daisy-bram-a-witness-in-federal-case-aga

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.//

https://buttecountyfamilylawlawyer.blogspot.com/  Another site by attorney C. Chan
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