Without a doubt, the first question I am usually asked by a potential client is: do I qualify to file for bankruptcy. Now, there are several different chapters under which a bankruptcy can be filed, but we will be focusing on the most common filing chapter; a chapter 7 (liquidation).
Bankruptcy laws are found under title 11 of the United States Code. This section is further divided up into chapters and it is under these chapters that people determine what type of bankruptcy filing they desire to pursue. Chapter 7 refers to liquidation of debts, meaning that all discharged debt will become non-collectable upon the discharge of the debtor from bankruptcy.
To determine whether or not a person qualifies to file for bankruptcy under chapter 7, the courts use a means test, based upon the median income of each state, to determine if a person has sufficient funds to repay the debt they have acquired. If a person is below the median income threshold, then they automatically qualify and no further analysis is needed. If the person's income is above the median income for their state, then a further analysis as to income versus debt is needed. Not everyone qualifies for a chapter 7 filing, as a result.
Effective May 1, 2012, the courts have adjusted the median income for chapter 7 filers. The median income has gone up in California, meaning that more people will now qualify to file, if they need to do so. The increase ranges from $125.00 per month to $197.00 per month, depending upon the number of household members. If you have been thinking about filing but are unsure if you qualify, now may be the time to pursue a bankruptcy filing.
Monday, April 30, 2012
Friday, April 27, 2012
Change of School
With summer rapidly approaching, many children will be finishing instruction at the school they now attend and "promoting" to another school, be it middle school, junior high, high school or college. Most parents are well aware of the upcoming change, but give little thought to how it impacts their custody and visitation schedule. In fact, the courts are almost always clogged in August and September with last minute motions for a change of the order to accommodate their vision for the schedule when their child changes school.
Now not every case requires a change. If both parents live a short distance from each other, and the new school isn't far away, then keeping the status quo may be appropriate. However, when two parents live in different school districts or in the same district but the area of different schools, problems often arise as to where the child will go.
Courts will give deference to who has historically made that decision and who is the primary physical custody parent, however that is not always the case. As with all custody orders, the best interests of the child are the paramount concern of the court. If you think that your case will require a modification of custody and visitation, now is the time to file your motion, so as to avoid a last minute rush which may anger your judge.
Now not every case requires a change. If both parents live a short distance from each other, and the new school isn't far away, then keeping the status quo may be appropriate. However, when two parents live in different school districts or in the same district but the area of different schools, problems often arise as to where the child will go.
Courts will give deference to who has historically made that decision and who is the primary physical custody parent, however that is not always the case. As with all custody orders, the best interests of the child are the paramount concern of the court. If you think that your case will require a modification of custody and visitation, now is the time to file your motion, so as to avoid a last minute rush which may anger your judge.
Thursday, April 26, 2012
The Duty to Disclose
Civil litigation is often described as a treasure hunt, in which you get the right information only if you ask the right questions. Family law is different in that each party has an affirmative duty to provide information to the other side at the earliest stages of the case. Family Code Section 2103 provides that "in order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to a proceeding for dissolution of the marriage
or legal separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104 and a final
declaration of disclosure under Section 2105, unless service of the
final declaration of disclosure is waived pursuant to Section 2105 or
2110, and shall file proof of service of each with the court."
Often, the parties see this step as a formality and give little attention to the accurate preparation of the two documents which comprise the Declarations of Disclosure: the Income and Expense Declaration and the Schedule of Assets and Debts. Failure to accurately and thoroughly disclose the assets and the debts of the community, even if the other side knows about them, can have serious penalties for the disclosing party. Penalties can include attorney's fees, sanctions (paid to the court) or an unequal division of property.
The time you spend on accurately and properly gathering and disclosing the assets and debts that are known to each party can help settle a case, avoid attorney's fees and costs, and prevent you from losing your property. It is always time well spent.
Often, the parties see this step as a formality and give little attention to the accurate preparation of the two documents which comprise the Declarations of Disclosure: the Income and Expense Declaration and the Schedule of Assets and Debts. Failure to accurately and thoroughly disclose the assets and the debts of the community, even if the other side knows about them, can have serious penalties for the disclosing party. Penalties can include attorney's fees, sanctions (paid to the court) or an unequal division of property.
The time you spend on accurately and properly gathering and disclosing the assets and debts that are known to each party can help settle a case, avoid attorney's fees and costs, and prevent you from losing your property. It is always time well spent.
Tuesday, April 24, 2012
Custody and Visitation
To many people, the term Custody and Visitation seems repetitive. To
the average family law client, custody means when they have the child
in their care and visitation is when the child sees the other parent.
In the family law courts, however, the term custody has a different
meaning and, in fact, is broken up into two parts: legal custody and
physical custody.
Legal custody is defined as decision making authority relating to the child's health, safety, education, and welfare. The parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).
Physical custody is defined as where the children live. Again, parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).
Visitation refers to both parents and is the timeshare between the parties.
In California, it is the goal of the legislature to establish orders which generally provide for close and continuous contact between both parents and the minor children. As a result, the default custody position for the courts is joint legal and physical custody with a timeshare as close to equal as possible. Realistically, may factors can move the needle in favor of one parent, resulting in a deviation from an equal timeshare and joint custody. Those factors can include (but aren't limited to): domestic violence issues, criminal charges, and alcohol and drug abuse issues.
When establishing order for custody and visitation, the needs of the minor children should be strongly considered in light of the legislative intent. By keeping that in mind, the parties can often settle this issue without court intervention. The best custody orders are the ones the parties themselves make, rather than judicially imposed orders which leave one or both sides feeling like they got taken to the cleaners.
Legal custody is defined as decision making authority relating to the child's health, safety, education, and welfare. The parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).
Physical custody is defined as where the children live. Again, parties can share legal custody (joint custody) or one party can have this by themselves (sole custody).
Visitation refers to both parents and is the timeshare between the parties.
In California, it is the goal of the legislature to establish orders which generally provide for close and continuous contact between both parents and the minor children. As a result, the default custody position for the courts is joint legal and physical custody with a timeshare as close to equal as possible. Realistically, may factors can move the needle in favor of one parent, resulting in a deviation from an equal timeshare and joint custody. Those factors can include (but aren't limited to): domestic violence issues, criminal charges, and alcohol and drug abuse issues.
When establishing order for custody and visitation, the needs of the minor children should be strongly considered in light of the legislative intent. By keeping that in mind, the parties can often settle this issue without court intervention. The best custody orders are the ones the parties themselves make, rather than judicially imposed orders which leave one or both sides feeling like they got taken to the cleaners.
Monday, April 23, 2012
How Can I Serve Him/Her When I Don't Know Where He/She Lives?
A common issue that arises when parties who are long separated (often without children) ultimately decide to seek a divorce is that they may no longer know where the other side lives. The standard rule is that in order for a lawsuit to proceed, the Respondent must receive actual notice of the pendency of the action which has been filed against them. In simple terms, they must be personally served with a copy of the Summons and Petition for Dissolution of Marriage (and supporting documents).
When one side doesn't know whether the other lives, however, this can present a significant problem in that if the Petitioner doesn't know where the Respondent lives, how can they give them a copy of the documents, effectuating "good" service? Luckily, alternatives do exist.
The court does provide for Service by Publication, whereby a copy of the Summons and Petition is published in a local newspaper once per week for four consecutive weeks, but in order to do this, permission from the court is required. Before the court will give permission to serve by publication, you must show that all reasonable efforts have been made to locate the Respondent, including but not limited to, a records search of the local area (or area where they last lived) and a skip-trace (which is done by a private investigator or other type of business which provides locate services). Proof of your attempts will be required.
The process can be a little complicated, so the services of an attorney experienced in doing this type of work can help resolve a long dormant divorce and allow for the case to be resolved.
When one side doesn't know whether the other lives, however, this can present a significant problem in that if the Petitioner doesn't know where the Respondent lives, how can they give them a copy of the documents, effectuating "good" service? Luckily, alternatives do exist.
The court does provide for Service by Publication, whereby a copy of the Summons and Petition is published in a local newspaper once per week for four consecutive weeks, but in order to do this, permission from the court is required. Before the court will give permission to serve by publication, you must show that all reasonable efforts have been made to locate the Respondent, including but not limited to, a records search of the local area (or area where they last lived) and a skip-trace (which is done by a private investigator or other type of business which provides locate services). Proof of your attempts will be required.
The process can be a little complicated, so the services of an attorney experienced in doing this type of work can help resolve a long dormant divorce and allow for the case to be resolved.
Saturday, April 21, 2012
Your relationship with your Ex
I read an article today about how ex's treat each other when children are involved and how that impacts their children's lives. An excellent read and it provides some important information for all parents who have gone through divorce, are going through a divorce now, or are contemplating divorce in the near future:
Why I Wish My Husband Were My Ex Husband
Why I Wish My Husband Were My Ex Husband
Friday, April 20, 2012
Medical Marijuana and Custody Orders
California is a bit unique when it comes to the issue of Marijuana. Under Federal law, possession of Marijuana for any purpose (absent a license to create clothing using hemp) is illegal. In California, however, possession of Marijuana for medicinal purposes (dispensing and use) are permitted due to the passage of Proposition 215. As a result, we have competing laws at the Federal and State level. The question of "is it legal" truly depends upon who you are talking to in law enforcement.
When the issue turns to custody and visitation, the courts generally are harsh on drug users and limit or prevent visitation between a using parent and their child. However, because medical Marijuana is legal (at least from a California perspective), applying the same standard to parents as other clearly illegal drugs would likely be a violation of the parent's rights.
The result has been that courts, at least in Ventura County, have chosen to ignore the issue of medical Marijuana usage unless it impacts that parent's ability to care for the child during their custodial time. While the mediators (and thus the Judges) may be willing to put language into custody and visitation orders that state that the parent cannot use or be under the influence of any illegal controlled substance or alcohol 24 hours prior to or at any time during their custodial time, they have so far appeared unwilling to create any language regarding the use of medical Marijuana.
If you are the using parent, despite the law, it would be advisable to consider whether your use impairs your ability to care for the child during your custodial times and, if so, abstain from using during that time (perhaps even volunteer to do so if you can). If you are the other parent and are concerned about use during custodial time, you should be armed with specific facts as to how the apparently legal usage of medicinal Marijuana impacts the other parent's ability to care for the child during that parent's custodial time.
Until such time as the US Supreme Court resolves the apparent Federal and State conflict as to laws, family law courts will likely continue to step lightly around the issue of medical Marijuana, even in custody and visitation cases.
When the issue turns to custody and visitation, the courts generally are harsh on drug users and limit or prevent visitation between a using parent and their child. However, because medical Marijuana is legal (at least from a California perspective), applying the same standard to parents as other clearly illegal drugs would likely be a violation of the parent's rights.
The result has been that courts, at least in Ventura County, have chosen to ignore the issue of medical Marijuana usage unless it impacts that parent's ability to care for the child during their custodial time. While the mediators (and thus the Judges) may be willing to put language into custody and visitation orders that state that the parent cannot use or be under the influence of any illegal controlled substance or alcohol 24 hours prior to or at any time during their custodial time, they have so far appeared unwilling to create any language regarding the use of medical Marijuana.
If you are the using parent, despite the law, it would be advisable to consider whether your use impairs your ability to care for the child during your custodial times and, if so, abstain from using during that time (perhaps even volunteer to do so if you can). If you are the other parent and are concerned about use during custodial time, you should be armed with specific facts as to how the apparently legal usage of medicinal Marijuana impacts the other parent's ability to care for the child during that parent's custodial time.
Until such time as the US Supreme Court resolves the apparent Federal and State conflict as to laws, family law courts will likely continue to step lightly around the issue of medical Marijuana, even in custody and visitation cases.
Thursday, April 19, 2012
Self Employment Income
Few support cases are more difficult that when one of the parties runs her own business. Pinning down what a self-employed person's income is can be extremely tricky and it is almost never the amount reported on their tax return. When dealing with a self employed party, the term "cash flow available for support" becomes important. Many expenditures, which can legally be taken out of gross receipts, must be added back as non-taxable income when calculating support.
I have found it extremely helpful in situations like this to use a CPA to conduct both a business valuation and a cash flow analysis. While the cost can be high (the usual retainer will start at $3,000), the evaluation they provide can have a significant impact on any case involving a self employed party.
Notwithstanding the cost, every case in which one or more of the parties is self-employed should hire a CPA to do this work on their case. When looking for a CPA to review the business, it is additionally important to find someone who can be classified as a forensic accountant. This is someone who has not only valued businesses and done a cash flow analysis, but has also testified as an expert in court. The more times they have testified in the courthouse where your case is located, the better.
Oftentimes, after the analysis is complete, I have found that settling a case becomes much easier, as each side understands the income of the other as well as the value of the business (often a key component in dividing up property). Other than an experienced family law attorney, your case cannot have a better friend than a quality forensic accountant.
I have found it extremely helpful in situations like this to use a CPA to conduct both a business valuation and a cash flow analysis. While the cost can be high (the usual retainer will start at $3,000), the evaluation they provide can have a significant impact on any case involving a self employed party.
Notwithstanding the cost, every case in which one or more of the parties is self-employed should hire a CPA to do this work on their case. When looking for a CPA to review the business, it is additionally important to find someone who can be classified as a forensic accountant. This is someone who has not only valued businesses and done a cash flow analysis, but has also testified as an expert in court. The more times they have testified in the courthouse where your case is located, the better.
Oftentimes, after the analysis is complete, I have found that settling a case becomes much easier, as each side understands the income of the other as well as the value of the business (often a key component in dividing up property). Other than an experienced family law attorney, your case cannot have a better friend than a quality forensic accountant.
Wednesday, April 18, 2012
Income and Expense Declaration
In California, it is required that each party prepare, file, and serve an Income and Expense Declaration whenever they are seeking orders for support or attorney's fees. Oftentimes, the party preparing this document creates is quickly and doesn't put a lot of thought into what figures are used. I cannot stress how important this document is and that attention to detail is of the utmost importance.
As an attorney, I am as interested in the party's monthly expenses as I am in reported income. For one, I can quickly determine if a party has been lying about their income by reviewing their pay stubs, their tax return, and other documents they are required to provide as part of their Income and Expense Declaration. What can show an additional source of income is their monthly expenditures and, more specifically, who pays them.
In a recent case, the father reported that he was unemployed and had no income. On his expense declaration, however, he reported that he paid $3,100 in monthly expenses, including over $900 per month for his truck and an additional $150 per month for a motorcycle. All of these expenses were paid by his mother, who had supported him for years. Because of careful attention to this detail, the court was able to impute not only minimum wage at 32 hours per week for this person, but they also imputed $1,000 per month as non-taxable income for this reoccurring monthly gift. The end result was that the amount of support tripled for my client.
While the Income and Expense Declaration may be a short document, it is of great importance and attention should be paid to ensuring that it is completed accurately.
As an attorney, I am as interested in the party's monthly expenses as I am in reported income. For one, I can quickly determine if a party has been lying about their income by reviewing their pay stubs, their tax return, and other documents they are required to provide as part of their Income and Expense Declaration. What can show an additional source of income is their monthly expenditures and, more specifically, who pays them.
In a recent case, the father reported that he was unemployed and had no income. On his expense declaration, however, he reported that he paid $3,100 in monthly expenses, including over $900 per month for his truck and an additional $150 per month for a motorcycle. All of these expenses were paid by his mother, who had supported him for years. Because of careful attention to this detail, the court was able to impute not only minimum wage at 32 hours per week for this person, but they also imputed $1,000 per month as non-taxable income for this reoccurring monthly gift. The end result was that the amount of support tripled for my client.
While the Income and Expense Declaration may be a short document, it is of great importance and attention should be paid to ensuring that it is completed accurately.
Tuesday, April 17, 2012
Help! My Judge is biased against me.
One of the most common statements I hear from prospective clients is that the Judge they have on their case is biased against them. This usually stems from the fact that the Judge has not ruled in their favor, so of course, they must be biased, right?
This is generally not the case, however. Our system of law provides for reasonable people to disagree as to an interpretation of laws and it is the job of a judicial officer, such as a Judge, to determine the correct intepretation. Sometimes the ruling is in your favor, and sometimes not. A negative ruling doesn't necessarily mean that the Judge is biased against you. A more appropriate assessment focuses on the Judge's conduct towards you. Is he/she polite? Do they make rude comments? Does the Judge seem upset that you are in their courtroom?
While most Judicial officers are impartial and committed to fairness, if your truly have a situation where a Judge is biased against you, then hiring a new attorney may allow for a change. While you cannot normally obtain a change of judicial officer whenever you want (this is called forum shopping), hiring a new attorney will allow that attorney to file for removal of one judicial officer under California Code of Civil Procedure Section 170.6.
If you truly believe that you are being treated unfairly, then this may be another reason to hire a new attorney.
This is generally not the case, however. Our system of law provides for reasonable people to disagree as to an interpretation of laws and it is the job of a judicial officer, such as a Judge, to determine the correct intepretation. Sometimes the ruling is in your favor, and sometimes not. A negative ruling doesn't necessarily mean that the Judge is biased against you. A more appropriate assessment focuses on the Judge's conduct towards you. Is he/she polite? Do they make rude comments? Does the Judge seem upset that you are in their courtroom?
While most Judicial officers are impartial and committed to fairness, if your truly have a situation where a Judge is biased against you, then hiring a new attorney may allow for a change. While you cannot normally obtain a change of judicial officer whenever you want (this is called forum shopping), hiring a new attorney will allow that attorney to file for removal of one judicial officer under California Code of Civil Procedure Section 170.6.
If you truly believe that you are being treated unfairly, then this may be another reason to hire a new attorney.
Friday, April 13, 2012
Child Support
Often, when people have a case open with the Department of Child Support Services, they believe that this agency "represents" them. This is sadly not the case. The goal of this agency is to establish orders which they believe are easy to enforce. As a result, they will not fight for the amount you may be entitled to receive.
An excellent example of this was a case I worked on yesterday. My client was the one who opened a case against the dad, requesting child support. Dad doesn't work but is fully supported by his mother, who gives him $3,100.00 per month to pay his bills. The Department of Child Support was willing to impute minimum wage at 32 hours per week to dad but made no mention of the reoccurring monthly gift that dad received from his mother.
A recent case appellate court decision states that such reoccurring monthly gifts can be considered as income for support purposes. Because we argued that this should be included as income, my client's support was trippled from what the Department of Child Support Services had requested. This would not have happened if my client was not represented by an attorney (she had no knowledge of this recent appellate decision).
If you have a case with the Department of Child Support Services, either seeking child support or having it sought from you, the services of an experienced Family Law Attorney can be invaluable in getting you everything you are entitled to receive.
An excellent example of this was a case I worked on yesterday. My client was the one who opened a case against the dad, requesting child support. Dad doesn't work but is fully supported by his mother, who gives him $3,100.00 per month to pay his bills. The Department of Child Support was willing to impute minimum wage at 32 hours per week to dad but made no mention of the reoccurring monthly gift that dad received from his mother.
A recent case appellate court decision states that such reoccurring monthly gifts can be considered as income for support purposes. Because we argued that this should be included as income, my client's support was trippled from what the Department of Child Support Services had requested. This would not have happened if my client was not represented by an attorney (she had no knowledge of this recent appellate decision).
If you have a case with the Department of Child Support Services, either seeking child support or having it sought from you, the services of an experienced Family Law Attorney can be invaluable in getting you everything you are entitled to receive.
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