Affordable Legal Help......Possible?

REALLY?

So why is the question even asked? Probably because some people believe legal help should not be affordable, legal help should only be for rich people, or anything affordable simple cannot be any good?  REALLY?!

Everyone knows that money talks. Everyone knows that in personal injury, your attorney will not even charge you upfront for most things; they will take a lien. Why?  Because they will be paid later since your case is so good, supposedly.  In fact, they may end up taking up to 40% of your settlement depending on what is done.  But in family law, and criminal law, such contingency upfront liens are not used.  Most can possibly get a real property lien for attorney fees, so something similar. But not an actual contingency lien. (Those are the ads for if you don't win you don't pay...)  In family law, you will likely end up paying unless there is a way your attorney can get the fees from the other party.

Family law rules have certain criteria on who can get paid their fees, and from where. In many instances, it is the female who does not work, being paid by the male who does work. But not always.  We have seen attorneys implicating that "affordable" is not good, but that a standard is good. Surely most attorneys do not believe that simply because something is affordable, it cannot be up to standard?  That is simply wishful thinking. In family law, we have seen attorneys easily charge $3,000, $4,000, $5000, and client never gets a dime, never even gets into court to be heard, and the paperwork filed probably took about an hour to prepare.

Majority of graduates of national Ivy League colleges or law schools normally don't even bother to practice Family Law in the first place. Family law is a very different type of practice because it requires an incredible amount of people skills, patience, and to some degree, extra effort in the compassion department. It also requires one to be able to handle very difficult emotional clients--which many attorneys simply cannot, will not, or choose not to engage with........

Family law has a very high rate of "burnout" meaning, it is taxing in part, due to the emotional situations that are commonly seen. Clients are usually mad, sad, crying, fighting, bitching, moaning, complaining. That is par for the course-- professional people in divorces, non professional,  all of them.  95% of them are mad. Money issues make them mad, custody law makes them mad. Can we blame them?  Not really.

Just remember that few attorneys want to actually "be" affordable. Many people realize that most attorneys are not poor, and it's not because they charge a lower rate.  Some people believe that people who engage in document prep for pro se clients, or those individuals that function as LDAs (legal document assistants) or anyone that does unbundled work for clients must not be worthy. That is just a biased view against anyone who has ever helped clients who have less money; the state of CA has purposely set up the Family law Facilitator and SHARP (to name a few) in order to help with the increasing amount of people who cannot afford attorneys at all.

And with 75 to 80% of clients in pro se status in Family law cases, this has caused a huge backlog in the courts, for example, in the Bay Area, several court houses closed and divorces take 2 years to finalize; in Sacramento, the backlog is estimated at 1.5yr to get a judgment.  Much of that is because the paperwork needed for the cases is not prepared correctly and keeps getting sent back.

Therefore, having the paperwork done correctly will lessen the time it takes to process it--and guess what?  Few attorneys actually prepare paperwork when it comes to forms, most is done by the paralegal or assistant. Those forms are mostly free online, but one does have to know what to do with the forms.For example, failure to properly list an asset as a separate asset may cause the Court to believe it is a community asset.  Attorneys may devise the pleadings and the content and will review everything. However, don't believe that attorneys sit at the computer and fill out the forms, because at $350-$500/hr, they should be doing something else.

*We note that IF a specific case is dealing with exceptionally complicated assets, buyouts, commingled assets, premarital documents, exceptional contested facts like a movie star might have, physicians that own 7 separate medical companies, and cases involving multi-national corporations, or multi-national IP offerings--yes--those cases will take a lot of work, normally working with accounting forensics, maybe a special master. (Attorney herein used to be in an office with special master.)  But for most of the average divorces, those situations do not happen frequently unless one lives in Silicon Valley or Hollywood. 

Right of Reimbursement for Separate Property Contributions

Years ago, the Lucas case decided that a spouse contributing her or her separate property funds toward a community asset meant that it was a "gift" to the community, and basically, the contributing spouse did not receive back the amount contributed.  That is the short version of how it used to be.

Then the California Legislature codified Civil Code Sections 4800.1 and 4800.2 into Family Code Sections 2581 and 2640, whereby a right of reimbursement for separate property contributions (absent express agreement otherwise) come off the top of community property, as the characterization and reimbursement must be determined before the community property is divided. Often the community property is held in joint tenancy but not always. There are many variations between cases as to how spouses held title, the year it was first purchased, or refinanced, or subsequently re-titled to some degree.  Further, case law indicates evidence where money from various sources are used for obtaining assets, then commingled to some degree, then sold and used to buy yet another property with even additional funds from different sources (inheritance, loan payoff, refinance, sale, etc.)

The difficult cases usually involve a series over a number of years whereby the parties have bought and sold businesses and real estate and then changed the way title was held, and spent some of the proceeds but then used part of the proceeds for different things.  As expected, tracing large or numerous transactions can be quite a bit of work.

IN some cases the tracing is not exactly obvious or clear, or title is not exactly clear. Also under FC Section 2640, without a clear written waiver of the reimbursement, the community does not simply get to keep that separate proceed, such as a traceable down payment.  There are many published cases on Section 2640 cases, and quite a few involve convoluted tracing.

The reason that this Code Section is hazardous, is mainly because if one spouse thinks the contributing spouse donated the payment to the community (even if there was no clear waiver of the reimbursement right) then the community proceeds may be much larger or smaller than anticipated, because either the waiver was or was not executed sufficiently.

        

An example: Susan and Bill are to be married, and prior to marriage, Susan already owned a home worth $500,000, with $500,000 equity. During marriage, Susan deeds the house to Susan and Bill, as community property and records the new deed. At that time, the house equity had increased to $700,000.

Several years later they get divorced. The value of the house is still $700,000. No new loans were taken out on the house, and it was not refinanced or used for collateral on any other property.

So the question is:  Does the community now obtain any of the gained equity? Meaning, does Bill get any proceeds from it?  The answer is probably no. As can be seen this Code Section can be a trap for the unwary. Appreciation (if any) from point A forward is not necessarily the same as one half of the equity (in the home) when considered under FC Section 2640.  If you suspect you have this issue and do not want to guess or make a mistake, make sure you talk to an attorney that is familiar with this.