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Sunday, May 30, 2021

Spousal Support and Misdemeanor Domestic Violence Conviction--Will It Affect Spousal Support??

https://domesticviolencelegalchico.blogspot.com/
An actual conviction of misdemeanor domestic violence against the other spouse within 5 years prior to the dissolution proceeding being filed, or after-- there does exist a possibility via rebuttable presumption, that the spouse who was convicted--is not entitled to receive spousal support under CA Family Code section 4325. Under CA PC1203.097, if such abuse is done by a spouse against the other party (within 5 yr prior to the divorce filing or during the divorce), there is a rebuttable presumption that convictions which occur on or after Jan 01 2019, are applicable...)
It is stated under that specific code, that an injured spouse should not be required to pay any attorney fees of the convicted spouse out of the injured party's separate property. It is suggested that IF you are an injured spouse, due to the domestic violence of your former spouse, to look at this law in detail to see if you qualify for not having to pay spousal support.....felony convictions are even more severe under FC4324.5. In addition, if you need monetary help, the State Board of Control in Sacramento handles some of the monetary aspects for crime victims. They can also help victims get more protection through criminal protective orders instead of just a "DV TRO" which in some cases, is not enough of a deterrent to stalkers, for example, or those with mental illness, serious drug use, etc.

Custody and TRO Temporary Restraining Orders

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 sometimes 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." Attorney herein has criminal defense experience (i.e., handling gang case, accusations of crimes, criminal informant cases, wrongful DV cases, etc. etc.)

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.

Note: We always notice when there is a spike in readership on TRO DV cases, because the litigants will usually look at attorney's blog for information. This has happened for many years, as attorney has done DV TRO cases for quite some time. DV TRO cases are supposed to be heard by Judges, but if a commissioner is assigned, especially for trial, this normally  requires a specific stipulation  You can check the case of Settlemire in San Luis Obispo. 










Sunday, May 16, 2021

DID YOU LOSE YOUR CASE AND DON'T KNOW WHY??

In some instances, clients do lose their cases, especially when it comes to Family law, of that there is little dispute. WHY you may have lost, even if temporarily--can be due to more than several reasons.

Some common issues involve being unprepared, having the wrong evidence, misleading the court, not following the rules, ignoring what Judge had said, not liking the "mediator" and the report, ignoring the court rules for dates (and you missed hearings), having judge yell at you because of some of the above, failing to show up for court, arguing in court after judge told you to stop talking, ignoring the FOAH of the case and doing whatever you wanted instead, failing to provide adequate supervision of kids, allowing kids to be there when drugs are present,
.....allowing a dangerous animal to be with kids and one kid is harmed, failing to tell other parent when child is sick, failing to get child doctor appointments, failing to have the child's teeth fixed, or any other health problems, claiming you were too sick to do something yet you were partying and people put it on Facebook (people should not be using Facebook if they want to win their family law cases..), using drugs then expecting your kid won't see you but he/she sees and rats you out, ignoring the laws re drugs, drinking and partying and allowing children to be there WATCHING you???

Saturday, May 8, 2021

NEW CASE, NEW WIN!!

Sometimes we find that certain cases are fairly egregious--meaning that they are bad and worse, and even with several years or many months of waiting and litigation, there is just no good ending?

However, in a recent case, not only was there a great ending, custody (physical) and full LEGAL custody of the minor child was changed from one parent to the other under fairly bad circumstances, and only after both the county and other government agencies decided that the PARENT who had actual physical custody...should likely NOT maintain that custody?

Most of us realize that certain parents are not good parents....and even if given many chances, some parents simply ruin their own kids' lives? Thankfully, in this case, the governnmental agencies got to the bottom of what was actually transpiring, and recommended that the child be moved from the custodial parent, and placed with either family members, or similar? After this occurred, the custodial parent sill did not parent the child effectively, and subjected the child to numerous situations which included living in a place with no electricity, no water, no electrical power, etc. Of course, this is not legal. Instead of getting help, that parent did not rectify the situation.
Often in a case such as this, CPS is forced to take action, obviously. However, if other family members are available, the child can be moved out of the bad situation and be adequately placed with family rather than foster care. When an errant parent then hires an attorney to defend bad behavior, it goes without saying that such tactics are not only wrong, but will likely result in more harm to the child.

Such was the recent case we just saw, but thanks to the cooperation of the family members, and Judge realizing the child should be placed elsewhere, custody (legal/physical) was given to the other parent, with very minimal visitation rights to the former custodial parent!! This is a sad but true scenario...no one likes to see children harmed. In this case with a happy ending, at least one child was saved from further abuse and lack of care from his or her own parent!