Saturday, February 29, 2020

Strategy Can sometimes Mean Everything--Almost!!

Attorney herein has this site, https://gotigerlegalfamilylawchicoattorneycchan.wordpress.com/, which explains how (in theory at least) a "Tiger Team" works...it is not a joke, there is such an actual thing in use over many years. Some of attorney's clients liked to say "Go Tiger" to attorney prior to trials, and then attorney (me) decided to look up the background of what a Tiger Team actually meant.



Basically, every case has components, and every issue will have facts. In some cases there are very few facts, and MOSTLY lies?? So if that's your case, then you need some evidence to prove what you are claiming, or defending, or whatever you are doing--there is a method for everything basically. Like in the military, there are rules for everything, and in family law cases, most of the issues and problems are due to the people, not the law, right?  Therefore, we have to work around the people and their claims, defenses, and nonsense in some cases? It is common for some cases to be more expensive than they should be, if one client is exceptionally difficult to work with.

Attorney has seen so much garbage in family law over the years, nothing surprises attorney these days. Drugs, lies, story-telling, paranoia, claimed "abuse", non-abuse, actual abuse,  being a witch, or being an ass, is very commonly seen in many cases. People are at their worst. Alcohol, and marijuana are frequent topics, bad texting, posting bad photos, posting on Facebook (definitely wrong)--none of this should be used for Family law. UNLESS-- we have to use it. Most judges don't like Facebook to be used for this, but attorney herein already knows, sometimes we need to use it, and we do. The steps required to get data [i.e. Facebook, online data,photos that are not authenticated, etc.] into court properly-- is not easy or fast; in family court, judge may not be too harsh but in civil court, all the rules have to be met. It gets expensive very quickly.

Attorney actually has a group of computer people that are pretty high on the chain of knowledge of how forensic computer stuff works, so this is very helpful. Attorney is very strategy oriented and to be honest, is hard to beat when it comes to planning and strategy. It is not necessary to remember every rule for everything as anyone can look up all those things, but after you have seen it for so many years, it's kinda like baking a cake.

Just remember this: if attorney's Tiger Team strategy can work for you, your chances of winning are improved. Not guaranteed, but we have a plan for that also. Never give up!

Friday, February 28, 2020

Custody and TRO Temporary Restraining Orders (707) 242-1855

Originally posted 1/19/15
Domestic violence related Restraining Orders are a huge problem, and if you either need to fight one, or obtain one, be forewarned-- it's rather easy to GET a TRO, and defending against them is best reserved for defense attorneys or at least attorneys who know litigation and not just "settlement."

From a defense perspective, very few TRO claims are readily settled--clients are either too upset, too physically harmed, or they made up facts in order to get back at a spouse. Attorney has seen plenty of vindictive TROs over the years. Often Judges just rubberstamp them, and issue them for 3 years.

Beware if you need to defend against a DV TRO, because a spouse or partner can be most difficult to work with. Knowing that, you will need a lot of help to prevail.
Make sure your attorney can properly defend and fight for you.  If not, you stand to lose quite a bit, both financially, and emotionally.   

If the DV TRO is issued against a party, that party cannot presumptively be the custodial parent, especially if criminal charges are filed.
This means that automatically, unless proven otherwise, you are likely out of the picture as custodial parent, even if you already were the custodial parent. This would probably require a trial to change that.  And depending on how bad you lose the case--- you may be in for a real shock to find that you will not be getting what you want visitation wise, especially if you have engaged in physical violence or otherwise illegal conduct which rises to a level that is not acceptable.

Attorney has seen rather worthless DV TRO cases filed, but has also seen plenty of viable cases filed for good cause. IF you have found that a DV TRO was filed against you, be very careful in your methods of trying to solve the problem. Attorney has seen some litigants resort to horrendous behavior that borders on extortion or attempted bribery.

This should never happen and will definitely not make your case easier. If the case is litigated, you better obtain someone who knows family law and restraining orders, and has done a lot of them. Especially if you actually have caused harm, and it is not disputable, you will be in for a very rude awakening the hard way.
This is not new to attorney herein.  Even if judges have tightened up on handing out DV TROs, the majority of judges know bad or illegal behavior when they see it.

The best defense in such a case is to be prepared ahead of time, not after the fact. Make sure your attorney is not simply focused on settling everything while you lose out. Much of divorce these days requires the ability to litigate for the client. Settling does not always work. While some cases might result in a modification of the order, many of the cases do not, and many litigants attempting to win at trial on these cases will in fact, lose.

Sunday, February 23, 2020

DV TRO Links-- Without An Attorney

The CA Courts website has plenty of instructions on how to do it yourself, which many litigants do.

The forms themselves are a little confusing but nonetheless we have seen many litigants file these cases and obtain relief.

Ask for a Restraining Order

To ask for a domestic violence restraining order there are several steps you have to take. But first make sure that:

A restraining order is right for you....... Read Can a Domestic Violence Restraining Order Help Me? (Form DV-500-INFOPDF )
You qualify for a domestic violence restraining order.You and the person you want to restrain must be:
married or registered domestic partners,
divorced or separated,
dating or used to date,
living together or used to live together,
parents together of a child, OR
closely related (parent, child, brother, sister, grandmother, grandfather, in-law).

You can get legal help from a local domestic violence agency in your county/or consult the Self Help
Center in your county.
Once you are sure you qualify for a domestic violence restraining order, you are ready to fill out the forms (or have a lawyer or domestic violence clinic help you with the forms). If you are not sure you qualify, ask your local domestic violence agency (such as Catalyst in Chico) Your court’s family law facilitator or self-help center may also be able to help you with the restraining order.

---To see the entire directions you will need to click the link here:

https://www.courts.ca.gov/1264.htm?rdeLocaleAttr=en


Note, this is NOT for a criminal protective order which is very different and usually used for cases that violate criminal laws.

------------------------------------------------------------------------

----------------  How can a DVTRO help me?

A Domestic Violence Restraining Order may:


Order the abuser not to assault, threaten, abuse, follow, harass, or interfere with you, your children, or people you live with in person, at work, on the telephone, or by other means;

Order the abuser to stay away from any place you request including your school, your children's school, your work place, your friends' homes, or any place where you are seeking shelter;

Prohibit the abuser from possessing or purchasing a firearm;

Tell the police to remove the abuser from the home and help you to return to the home;

Grant you temporary full control over things that you own together such as a car, a truck, a boat, a computer, tolls, electronic equipment, bank accounts, or household appliances;

Order the abuser to continue to make the loan payments (be sure to specifically ask for this if you need it);

Order the abuser to return your personal belongings;

Order the abuser to pay certain bills, pay back money you lost for missing work or other expenses (such as ambulance, medical, dental, shelter, counseling and/or legal fees);


Order the abuser to pay your attorney fees; program or other counseling service;

Anything else you ask for any the judge agrees to.

If you and your abuser have children together, you may also ask the judge to grant additional things such as:

Child custody and visitation - If you and your abuser have children together, the judge can decide where the children will live, which parent will make decisions affecting the children, and how the children will spend time with each parent (where, when, and whether supervised).

Removal of child - You may ask the judge to keep either or both parents from traveling or moving outside the city, county, area, or state with the children.


Child support payments - You may ask the judge to order your abuser to pay child support according to California’s guidelines.
Whether a judge orders any or all of the above depends on the facts of your case.
           **On this particular issue, while it is possible that support can be ordered, usually parents can work with DCSS at no cost, and if DCSS is collecting support for you, there are certain rules
that apply when using DCSS to collect support for you. https://www.lawyers.com/legal-info/family-law/child-support/child-support-and-public-assistance.html

It is too complicated to explain here, but generally, if you have a high wage earner ex spouse or parentage parent, you have to decide whether using DCSS is in your favor.

In some cases it is and in others it might not be. You would have to consult an attorney that does child support cases. (In general, attorney herein does not work on child support cases, and most definitely does not attend DCSS cases which uses a Commissioner, and not a Judge.) Parents that get help from the government (medi-cal or food stamps,etc) but use DCSS to get child support will find that the money collected from the parent will be impacted, and usually most of the money collected will go to DCSS and not the parent.










Saturday, February 15, 2020

Attorney's Favorite Case showing How Fiduciary Duty Went WRONG


This is the case where the wife won the CA lotto,  but never told the husband, and they
were married apparently, when she bought the winning ticket, and had not yet separated.
https://law.justia.com/cases/california/court-of-appeal/4th/90/34.html

Fiduciary duties between spouses may end up in a breach of fiduciary duty, especially where the financials are not listed in the divorce documents.

Thus if one won the CA lotto, one would supposedly list that one had won the lotto, on the proper forms, since it occurred during the marriage and would have to be listed on the forms that we use for dissolution, under the asset/debt sections.

Image result for photos lotto winning

Eventually, the husband found out accidentally, that the wife had won the lotto, and he filed a motion to set aside the divorce decree, and for damages for the wife's fraud and breach of fiduciary duty. Unfortunately for the wife--the court ordered her to give all of the lotto winnings, 100%, to the husband.  

The separation date was thus crucial, because once the parties separate, all the earnings and everything acquired after date of separating, are then normally --- the separate property of each spouse.
 ---->   But the separation date isn't just for lotto wins--- reimbursement claims relating to payment on separate or joint debt, or in fixing rights to real property can come into play. CA law provides the community does have an interest in appreciation of an owned residence, such as where title is only in one spouse's name--the spouse owning the property could plausibly argue that the appreciation belongs only to that spouse--and there are a number of facts that could impinge on that theory. The separation date can also impacts the principal loan amounts. Businesses which were established before or during marriage which continue to derive income after separation can be impacted (valuation, up or down,etc.) Importantly , the date of separation is of huge impact for spousal support, or alimony rights. Its continuation or termination is of huge concern due to the length of the marriage.