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.

Examples of bad cases:  The father had apparently used inappropriate sexual conduct with minor female kids, kids taken to SCAN clinic in Sacramento, verifying abuse; father ended up with no contact, case was in the newspaper (all data changed for privacy) Father was forcing kids to watch sex videos with him...
                     
                                   Mother was a drug user but able to outfox drug testing; father installed
hidden camera and was able to gain proof, leading to father obtaining the kids legally.

                                   Mother absconded with minor kids to another state; we hired a P.I. and locator to find location from cell phone data. Court ordered the Mother to return with child; in another case, Father hid minor children in Bay Area, changed their appearances. We obtained ex parte order for Father to return kids or be arrested. He returned the kids, Mother took back custody.

                                   Father believed Mother was allowed minor kids to be molested by either boyfriend or other male. Hired P.I. to assess Mother's whereabouts and meetups, determined which males were staying with Mother. Then had uninvolved trusted third party query kids and found out which person was the suspect. After this, the kids admitted it was happening. Mother lost custody.

One of the worst things that can happen to unprepared clients is to ignore the fact that if they are not married, and fail to file a paternity action in court, the other party can simply take the kids and leave the city, county or country, without the other parent knowing. Obviously this is kidnapping on a different level--but it is easier to get kids back if there is already a paternity action filed, because usually the District Attorney (which has government ability) can use their authority to expedite the search, since the paternity filing typically asks extensive background questions as to the parents.  And if the parents had told the truth on the initial documents, the police authority and FBI have more data at hand.
                                  Worst case: this was not attorney's case--BUT--a Father married to a former citizen of a European country, had two sons with the wife. The wife later absconded with both children, and although it was known what country they went to initially, it cost so much money that eventually the Father had to give up. He has never found the kids. [It might be when the kids are adults they might locate the Father on their own..]

                                   Non custody case: Mother and Father owned several houses, upon separation they lived in the separate houses; the court in Butte never got the case to trial, despite the so-called "track" program that had a rule that each party must agree to a certain date; so when parties did not agree, the case went back on the "track." Unfortunately, that system was not really how legal cases should get to trial (there are actually rules)--so the Mother did not get to trial until 7 (yes seven) years after the divorce was filed. On the stand at trial, attorney herein caught the Father lying about his bankruptcy petition (we had a copy of it)--and that was when the Father's attorney called time out, and offered us a deal giving the Mother a large sum of cash to end the case. It was a glorious day! 

NOTE: if you and/or spouse intend to file bankruptcy and you will be in the divorce at that time, you should seek counsel from a bankruptcy attorney. Nearly all of the bankruptcy documents are filed online and normally you will need a PACER account to view online data.  Attorney herein is licensed in the following CA federal courts (Eastern District, Southern District, and Northern District; and the State of Colorado Federal District Court.)
                                     


Friday, May 17, 2019

Mandated Mediation in Custody and Visitation Cases

    In most cases, the parents are required to go to a mandated mediation session where a mediator
will conduct an assessment of the situation overall-- in most cases the parents have not reached an agreement on visitation.  If they did reach an agreement, the mediator might add additional provisions.

   In addition, especially in cases which are problematic, the parents are told to use "Talking Parents" which is a website that allows the conversations between the parents to actually be SEEN by the judge.....there is no cost in most cases to use this service. Parents are given instructions when they sign up for the mediation appointment.


   Most parents go into mediation blind, meaning, they have no idea of what is going to happen, so they tend to just try and argue about various issues.  This is not the best approach obviously because the mediator's job is to create a workable solution that is somewhat fair given the specific circumstances.  Many parents are very unhappy with results of mediation, this is very common.

If you have read this far, then you may be interested to know that attorney herein actually helps clients prepare for mediation. Each case is different, and attorney wants to make sure the client knows what not to do, and what is either productive conduct, positive, or helpful. Many clients have no idea that what they may do is actually harmful to their case.  This should be avoided obviously, if one is trying to get another to see their "side."  This type of situation always comes up, because if you are going to mediation obviously there is some disagreement. Attorney has been doing these types of cases for more than 20+ years and can likely even predict which parent has a better chance of getting what they want for the kids.

If you are going to mediation and have a situation which is difficult, you will definitely need help preparing for mediation. Attorney has much experience in this area,  so call today to find out if we can help you on 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!