Attorney Chan has been very responsive to our calls and provides excellent service and advice. Her fees are great and she is very easy to work with. Thanks Carolyn! Review Left On 02/27/2020 RORY HICKS
Sunday, September 19, 2021
Attorney Reviews by Clients-- Need Legal Help?! Free Consultation Call Today!
Attorney Chan has been very responsive to our calls and provides excellent service and advice. Her fees are great and she is very easy to work with. Thanks Carolyn! Review Left On 02/27/2020 RORY HICKS
Wednesday, September 15, 2021
Family Law Issues, Custody Disputes, Mediation: Most Affordable! Solano County Cases (707) 344-9193
Do You Have a Custody, Spousal, or other Family Law Problem?
Attorney offers free consultations on family cases-- call anytime!It is common to see clients wade through a host of problems when there is a divorce taking place; however, obtaining results that you want-- is why you hire an attorney? Therefore it's logical that whoever you hire must understand that to get your desired result, either the legal, factual or other circumstances are on your side.....in many cases, this won't be a cake walk?
Some may laugh, but in reality, life is not always fair-- right? Which will mean you need an attorney who has had a lot of experience with some various cases that cover a lot of territory. Attorney herein has been involved with family law cases, criminal cases, domestic violence cases, animal law cases, bankruptcy cases, civil law cases, and more. Some of attorney's cases have been on the news, TV, and online due to their high profile nature. Most of those cases involve constitutional law issues or family law cases.
Whatever type of issues you have in a divorce case, attorney has probably seen it in the past. Because attorney also can handle criminal law cases, it has helped clients in part because there can be cross over related issues in certain cases, including fraud, bankruptcy and other financial situations.
Attorney has one of the most competitive rates available, especially if your case
is difficult, involved, in court for years, or seems unsolvable. SEE attorney's site from Butte County which has extensive data, cases, and examples of accomplished wins in various cases, which include Northern CA, Southern CA and more:
https://affordablefamilylawattorneychico.blogspot.com/Attorney guarantees to be the most competitive rate of any attorney with similar years of service and will match a lower rate of proven comparable service
Atty. C. Chan, Esq.
Butte County 530.497.0777 Chico; Solano County Fairfield (707)344-9193
Sunday, May 3, 2020
Different Than the Average Attorney? Yep!
When you need someone with common sense, a sense of humor, and the ability to be down to earth but straightforward, and someone who is used to working with males in general, then you might want to consider attorney herein. Women and men tend to think differently, and although attorney has a social work background and is very aware of issues within family law, attorney also has done criminal and civil litigation, in addition to animal law cases in federal courts.
Once in awhile we will settle cases, but most of the difficult cases require substantial time in court. Not to say that court is the answer, as it's not always the answer--it's just there are hoops to jump through. Having practiced in larger areas such as San Diego, attorney has seen more than her share of difficult cases. Attorney is willing to work deals if the clients knows for sure that is what client wants or needs. In particular, attorney has done many Domestic Violence TRO cases with good results, including trials.
Additionally, attorney provides one of the best cost-savings (as far as fees go) in the entire county. How attorney knows this is because we have a lot of years of litigation in representing those of modest means. That will enable client to get more work done in the case.
Call today for consultation. There is no obligation.
Once in awhile we will settle cases, but most of the difficult cases require substantial time in court. Not to say that court is the answer, as it's not always the answer--it's just there are hoops to jump through. Having practiced in larger areas such as San Diego, attorney has seen more than her share of difficult cases. Attorney is willing to work deals if the clients knows for sure that is what client wants or needs. In particular, attorney has done many Domestic Violence TRO cases with good results, including trials.
Additionally, attorney provides one of the best cost-savings (as far as fees go) in the entire county. How attorney knows this is because we have a lot of years of litigation in representing those of modest means. That will enable client to get more work done in the case.
Call today for consultation. There is no obligation.
Saturday, March 28, 2020
CALIFORNIA SPOUSAL SUPPORT FACTORS
When it comes to spousal support, ---it's usually the husband having to support the wife in most cases, but not all. The Court (and you) should consider all of the following circumstances according to FC4320:
The extent to which each party's earning capacity is sufficient to maintain the standard of living established during the marriage, taking into account FC4320(a)(1),(2)
The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote tiem to the family
The extent to which the supported spouse contributed to the attainment of an education, training, a career position or a license by the supporting spouse FC4320(b)
The supporting spouse's ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living FC4320(c)
The needs of each party based on the standard of living established during the marriage FC4320(d)
The obligations and assets of each party, including separate property FC4320(e)
The duration of the marriage FC4320(f)
The supported spouse's ability to be employed without interfering with the interests of any dependent children who are in his or her custody FC4320(g)
The parties' age and health FC4320(h)
Documented evidence of any domestic violence, including consideration of emotional disteess from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence by the supported party against the supporting party FC4320(i)
The immediate and specific tax consequences to each party FC4320(j)
The balance of the hardships to each party FC4320(k)
The goal that the supported spouse shall be self supporting within a reasonable period of time FC4320l
The criminal conviction of an abusive spouse and the reduction or elimination of any award to an abusive spouse under FC4325 [FC4320(m)]
Any other factors that you determine are just and equitable FC4320(n)
Note: "any other factors" kind of leaves the door wide open if you ask me?!
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Litigation involving spousal support can be affected by how your attorney sets up the case. Some attorneys simply do not exert a lot of effort and will just want to settle the case, the better attorney will realize all of the data in the case can make a HUGE difference, and that settling the case may not actually be helpful strategy wise? (If you do not understand this, don't worry.)
Using all of the above factors, attorney can assess the potential liability, the possible outcomes, and the known propensity of various judges to determine the strategy needed for best outcome.
Attorney herein has strategy tactics, and uses them, in order to obtain superior results. Provable at that! Difficult fact patterns call for those who can think outside the box!
If you need an affordable attorney, please consider that it's better to get more than you paid for, than to pay too much-- and still lose your case!
The extent to which each party's earning capacity is sufficient to maintain the standard of living established during the marriage, taking into account FC4320(a)(1),(2)
The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote tiem to the family
The extent to which the supported spouse contributed to the attainment of an education, training, a career position or a license by the supporting spouse FC4320(b)
The supporting spouse's ability to pay, taking into account his or her earning capacity, earned and unearned income, assets, and standard of living FC4320(c)
The needs of each party based on the standard of living established during the marriage FC4320(d)
The obligations and assets of each party, including separate property FC4320(e)
The duration of the marriage FC4320(f)
The supported spouse's ability to be employed without interfering with the interests of any dependent children who are in his or her custody FC4320(g)
The parties' age and health FC4320(h)
Documented evidence of any domestic violence, including consideration of emotional disteess from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence by the supported party against the supporting party FC4320(i)
The immediate and specific tax consequences to each party FC4320(j)
The balance of the hardships to each party FC4320(k)
The goal that the supported spouse shall be self supporting within a reasonable period of time FC4320l
The criminal conviction of an abusive spouse and the reduction or elimination of any award to an abusive spouse under FC4325 [FC4320(m)]
Any other factors that you determine are just and equitable FC4320(n)
Note: "any other factors" kind of leaves the door wide open if you ask me?!
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The Dad's Car !
The Mom's Car?
*Let's say that if you got a particular reaction just out of looking at pictures
of two different cars,
imagine what could be done with court exhibits at trial??
Litigation involving spousal support can be affected by how your attorney sets up the case. Some attorneys simply do not exert a lot of effort and will just want to settle the case, the better attorney will realize all of the data in the case can make a HUGE difference, and that settling the case may not actually be helpful strategy wise? (If you do not understand this, don't worry.)
Using all of the above factors, attorney can assess the potential liability, the possible outcomes, and the known propensity of various judges to determine the strategy needed for best outcome.
Attorney herein has strategy tactics, and uses them, in order to obtain superior results. Provable at that! Difficult fact patterns call for those who can think outside the box!
If you need an affordable attorney, please consider that it's better to get more than you paid for, than to pay too much-- and still lose your case!
Wednesday, March 25, 2020
How Can I Fix My Current Custody Situation?
Generally in California, the counties provide family law mediators at little to no cost to litigants; you are not forced to use the service, and can usually obtain your own services by paying for the service.
Usually, the parties agree that they will not use the mediation services of the court and will obtain a private mediation person or group that has such a mediator.
Many of the mediators that work for the court system have seen many cases, and because they are human, they may make mistakes. That is not to say a private mediator can't also make a mistake. The mediator's job is to do the evaluation and then make a "recommendation" to the court. The recommendation is NOT an order. The court is NOT required to "adopt" the mediation, and the parties are NOT required to accept the mediation recommendation themselves.
Thus, the recommendation, if not accepted by at least one of the parties, can result in a trial.
In about 75% of cases (not an exact percentage) judges will tend to adopt the recommendation of the mediator.
But as stated, if a party objects to that recommendation being adopted, a trial can be held, OR it's possible the parties can work out something different. Some recommendations may have clauses which give review dates in the future, others may not. If in your jurisdiction, you know you do not want the court mediator(s), then you must tell the court that you wish to have private mediator services, and should discuss that in advance with the other party.
In high conflict cases, mediation may be the tip of the iceberg...extremely high conflict cases are not usually solved by using a mediator no matter what recommendation is given, the parties will continue to not get along and will have issues.
It is this attorney's belief that in some high conflict cases where neither party is represented, the judges simply assume that minor's counsel can fix the problem. This is not necessarily true for all cases, especially when there has been one sided action (criminal, quasi-criminal, mental illness, imprisonment/other facts which cause one party not to work, and etc.) In these cases, it can be that no amount of minor's counsel will be solving anything.
Usually, the parties agree that they will not use the mediation services of the court and will obtain a private mediation person or group that has such a mediator.
Many of the mediators that work for the court system have seen many cases, and because they are human, they may make mistakes. That is not to say a private mediator can't also make a mistake. The mediator's job is to do the evaluation and then make a "recommendation" to the court. The recommendation is NOT an order. The court is NOT required to "adopt" the mediation, and the parties are NOT required to accept the mediation recommendation themselves.
Thus, the recommendation, if not accepted by at least one of the parties, can result in a trial.
In about 75% of cases (not an exact percentage) judges will tend to adopt the recommendation of the mediator.
But as stated, if a party objects to that recommendation being adopted, a trial can be held, OR it's possible the parties can work out something different. Some recommendations may have clauses which give review dates in the future, others may not. If in your jurisdiction, you know you do not want the court mediator(s), then you must tell the court that you wish to have private mediator services, and should discuss that in advance with the other party.
In high conflict cases, mediation may be the tip of the iceberg...extremely high conflict cases are not usually solved by using a mediator no matter what recommendation is given, the parties will continue to not get along and will have issues.
It is this attorney's belief that in some high conflict cases where neither party is represented, the judges simply assume that minor's counsel can fix the problem. This is not necessarily true for all cases, especially when there has been one sided action (criminal, quasi-criminal, mental illness, imprisonment/other facts which cause one party not to work, and etc.) In these cases, it can be that no amount of minor's counsel will be solving anything.
Attorney has seen plenty of high conflict cases over the years.
If you feel you need help on your case that might involve unsettled issues, call attorney 916-794-5557. There is no charge for the consultation.
Wednesday, March 18, 2020
The Published DV Case From Sacramento
Please bear with us---before we get to the published case from Sacramento, which was not our case, but shows what we often talk about, thank you...................
WOO HOO!! Just won another DV in an unusual case in Northern CA, where the female had two pets in her custody and got sued for having them, or taking them, by the ex live in--who lives at other end of the USA...
We helped her file the DV as she had prior DV case in another state, and asked that pets be under the protection order.
Despite our doubts, the Court awarded her the order for 5 years (not 3) and she thus has DV protection as to the pets. Meanwhile, the ex is actually suing to gain something out of the pets, there is nothing to gain actually. And even though he hired an "animal law attorney" from another state, all we can say is, good luck on that one.
They might as well have flushed that case down the toilet. (Attorney herein does animal law and for longer than most attorneys that know animal law...)
Second DV case-- just settled another DV case!! It does happen from time to time!!! [If we did not settle we would have won the case anyway...facts were in our favor....]
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Below is a published case from Sacramento involving domestic violence from 2018
https://cases.justia.com/california/court-of-appeal/2018-c082857.pdf?ts=1519675297
....[D]uring a child custody hearing a year later in June 2012, Judge Kevin Culhane found that Riley still failed to comprehend the nature and gravity of his conduct.
According to Judge Culhane, Riley involved a number of third parties, including his family members, in private parenting issues.
The court found that Riley was the source of threatening e-mails Rybolt received from Riley’s sister and that his family members had followed her and copied private parenting documents. “Such controlling and intrusive conduct,” in the court’s view, “[wa]s fundamentally inconsistent with any finding that the [Family Code section 3044]6 presumption ha[d] been rebutted.”
(the photo above is not the victim, this is photoshop)
[J]udge Culhane further found that, “[m]ost fundamentally the evidence demonstrates an ongoing course of conduct whereby father attempts to blame multiple third parties, includ[ing] mother, mother[’]s boyfriend, other parties, the co-parent counselor, the former lawyer, mediator, and others for the continuance of father[’]s own activities.” Riley had also “drawn the child into these disputes on a number of occasions.”
This case is indicative that the courts are not wavering on protecting domestic violence victims.
It is in the DV victim's best interest to obtain a litigator that can best protect those rights. If you need help, call today. Waiting can ruin your case as has been seen in the past for those who do not listen to good advice.
WOO HOO!! Just won another DV in an unusual case in Northern CA, where the female had two pets in her custody and got sued for having them, or taking them, by the ex live in--who lives at other end of the USA...
We helped her file the DV as she had prior DV case in another state, and asked that pets be under the protection order.
Despite our doubts, the Court awarded her the order for 5 years (not 3) and she thus has DV protection as to the pets. Meanwhile, the ex is actually suing to gain something out of the pets, there is nothing to gain actually. And even though he hired an "animal law attorney" from another state, all we can say is, good luck on that one.
They might as well have flushed that case down the toilet. (Attorney herein does animal law and for longer than most attorneys that know animal law...)
Second DV case-- just settled another DV case!! It does happen from time to time!!! [If we did not settle we would have won the case anyway...facts were in our favor....]
-----------------------------------------------------------------------------------------------------------------------
Below is a published case from Sacramento involving domestic violence from 2018
https://cases.justia.com/california/court-of-appeal/2018-c082857.pdf?ts=1519675297
....[D]uring a child custody hearing a year later in June 2012, Judge Kevin Culhane found that Riley still failed to comprehend the nature and gravity of his conduct.
According to Judge Culhane, Riley involved a number of third parties, including his family members, in private parenting issues.
The court found that Riley was the source of threatening e-mails Rybolt received from Riley’s sister and that his family members had followed her and copied private parenting documents. “Such controlling and intrusive conduct,” in the court’s view, “[wa]s fundamentally inconsistent with any finding that the [Family Code section 3044]6 presumption ha[d] been rebutted.”
(the photo above is not the victim, this is photoshop)
[J]udge Culhane further found that, “[m]ost fundamentally the evidence demonstrates an ongoing course of conduct whereby father attempts to blame multiple third parties, includ[ing] mother, mother[’]s boyfriend, other parties, the co-parent counselor, the former lawyer, mediator, and others for the continuance of father[’]s own activities.” Riley had also “drawn the child into these disputes on a number of occasions.”
This case is indicative that the courts are not wavering on protecting domestic violence victims.
It is in the DV victim's best interest to obtain a litigator that can best protect those rights. If you need help, call today. Waiting can ruin your case as has been seen in the past for those who do not listen to good advice.
Friday, February 28, 2020
Temporary Spousal v Ongoing Support
There is a Major Difference Between Temporary Spousal and Ongoing Spousal...do you Need to Win your Case?!
Basically, temporary spousal support is done by using the Dissomaster program; ongoing or sometimes called permanent spousal support, is not done by using the Dissomaster, and requires the Court to use certain factors in deciding just how much should, if at all, be paid. Because there are 14 factors to be considered, it is pretty obvious that an attorney who has experience in figuring out how to best defend the paying client-- this is what you would need if you are the "paying" client. In most cases, it will be the husband or the spouse that earned more during the marriage.
Conversely, the person who is attempting to get or keep the ongoing spousal will need an attorney who can prove that the client basically needs the support, and that it is warranted under the circumstances. These days, many people are living far past retirement age, and many people will be working or are forced to work past retirement age. This could have some interesting ramifications on spousal support, because many more women who may not have worked in the past, are now working. Because the family code expects that each person (wife or husband) post separation, is to make efforts to become self supporting if not already doing so, this means that the stay at home person must make those efforts to become gainfully employed.
Attorney herein has had plenty of cases both for the worker spouse, or the non worker spouse. Also because attorney is basically a defense attorney, it is much easier to raise defenses in many areas from a logistical view, factual view, and legal view. In part, this may be why attorney has such a high win rate in contested cases.
If you have a difficult case, attorney encourages you to call for your free consultation!
Thursday, October 17, 2019
Do You Want to Win Your Case?
Attorney herein always sizes up each fact pattern of all cases, because unless you have a definite slam-dunk case (you likely wouldn't need an attorney) but many cases are NOT as slam dunk as we like? Therefore, it makes sense that to win a case, not only must we have some law on our side, but we must be the better presenter, have the better argument, or be more persuasive than the average Joe, PLUS, be able to give client the confidence showing it can be done.
The client must believe in the attorney for the best result, and issues below indicate there might be spousal support (alimony); so as an example, let's say we were concerned with the "Modifiability" of the spousal support, or the NONMODIFIABLE spousal support order; or of the modifiability of such support orders in another state? Or it could be the BASIS for modification, and if there was a material change of circumstances...Yes there is case law on all these issues at the appellate level. Therefore, even if new case law comes up on the subject, it may or may not affect your case. That is why we do legal research to make sure nothing has changed in the law that might affect our facts.
Family Codes such as FC3603, 3651(c)(d), 4333, 4335, 4336, 4336(a)(b)(c), 3591(e),3590,3591(a)(b)(c),4909(f) and far more, can pertain to many cases involving modifiability of spousal support, basis for modification, and material change in circumstances.
CASE EXAMPLE INVOLVING FEES/SUPPORT
As just a personal example, attorney's client was over age 65 and he was retired; the wife was also retired. In our attempt to be awarded attorney fees, we also requested spousal support because the wife made about 3x the income of what the client made, BUT the client had a pending "TRO DV" in another county that was not yet litigated, and the court allowed the wife's attorney to keep the TRO issue open for at least a year? Now most attorneys would instantly tell you-- your client ain't gonna get fees or support because of the pending TRO DV in another county? [Pending does not mean conviction obviously!]
Under the law, the court can consider not awarding spousal to someone who has a conviction under a TRO DV...However, the client here, had a pending TRO DV case, and nothing had moved forward on it? FC4320(m)
Attorney herein believed that attorney might be awarded a small amount of legal fees, but not likely the spousal support. Surprisingly, the Court awarded the client spousal support, after the opposing attorney went off (in front of at least 30 attending attorneys) and claimed that attorney herein "did not know Family law?!" LOL Biggest joke ever, the opposing attorney should be retired because he's a know it all that just lost the case because he couldn't keep his mouth shut?
Attorney laughs every day at that incident, and is now good friends with the client for years. OH--and this isn't legal jargon--but attorney herein has a down to earth friendly, social personality, and is not overly bookish or serious. Attorney does research technology regularly. Must be from working with so many male contractors over the years! We really don't need overly serious attitudes for every aspect of divorce. Really.
The client must believe in the attorney for the best result, and issues below indicate there might be spousal support (alimony); so as an example, let's say we were concerned with the "Modifiability" of the spousal support, or the NONMODIFIABLE spousal support order; or of the modifiability of such support orders in another state? Or it could be the BASIS for modification, and if there was a material change of circumstances...Yes there is case law on all these issues at the appellate level. Therefore, even if new case law comes up on the subject, it may or may not affect your case. That is why we do legal research to make sure nothing has changed in the law that might affect our facts.
Family Codes such as FC3603, 3651(c)(d), 4333, 4335, 4336, 4336(a)(b)(c), 3591(e),3590,3591(a)(b)(c),4909(f) and far more, can pertain to many cases involving modifiability of spousal support, basis for modification, and material change in circumstances.
CASE EXAMPLE INVOLVING FEES/SUPPORT
As just a personal example, attorney's client was over age 65 and he was retired; the wife was also retired. In our attempt to be awarded attorney fees, we also requested spousal support because the wife made about 3x the income of what the client made, BUT the client had a pending "TRO DV" in another county that was not yet litigated, and the court allowed the wife's attorney to keep the TRO issue open for at least a year? Now most attorneys would instantly tell you-- your client ain't gonna get fees or support because of the pending TRO DV in another county? [Pending does not mean conviction obviously!]
Under the law, the court can consider not awarding spousal to someone who has a conviction under a TRO DV...However, the client here, had a pending TRO DV case, and nothing had moved forward on it? FC4320(m)
Attorney herein believed that attorney might be awarded a small amount of legal fees, but not likely the spousal support. Surprisingly, the Court awarded the client spousal support, after the opposing attorney went off (in front of at least 30 attending attorneys) and claimed that attorney herein "did not know Family law?!" LOL Biggest joke ever, the opposing attorney should be retired because he's a know it all that just lost the case because he couldn't keep his mouth shut?
Attorney laughs every day at that incident, and is now good friends with the client for years. OH--and this isn't legal jargon--but attorney herein has a down to earth friendly, social personality, and is not overly bookish or serious. Attorney does research technology regularly. Must be from working with so many male contractors over the years! We really don't need overly serious attitudes for every aspect of divorce. Really.
Saturday, October 12, 2019
Do You Have a Non-Winnable Case?
There are some instances which present facts that are, realistically speaking, not winnable.
At least not at first.
If your case is not difficult, then it likely to be one where you can win something, as opposed to nothing. Some difficult cases are not really something you can win, and will be forced to settle. Other cases could be settled but the clients don't necessarily want to do that.
The difference between what the client wants and what the client can get is one thing. However, attorney herein will often get what the client wants simply because attorney will not give up when there is a possibility of changing something important.
What attorney has seen in various cases, is that many people don't want to settle their cases and don't want to lose either. Some of the more difficult cases usually involve fighting over time share of kids, and then the division of property. While it doesn't usually make a lot of sense to go too far overboard, it is true that some things can be won, but it may depend on the costs. Also, some clients just want to roll over the other party just "because"----???
Regardless of client's choices or desires, attorney has worked on some of the most difficult cases ever imagined over the years, including civil and criminal litigation, and cases in the news, newspapers (family law --and criminal law--when there were printed newspapers!), and precedential decision at SPB (on sexual harassment) plus federal litigation both in California and Denver, Colorado. Additionally attorney is well versed in animal law and litigation on various animal law issues.
At least not at first.
If your case is not difficult, then it likely to be one where you can win something, as opposed to nothing. Some difficult cases are not really something you can win, and will be forced to settle. Other cases could be settled but the clients don't necessarily want to do that.
The difference between what the client wants and what the client can get is one thing. However, attorney herein will often get what the client wants simply because attorney will not give up when there is a possibility of changing something important.
What attorney has seen in various cases, is that many people don't want to settle their cases and don't want to lose either. Some of the more difficult cases usually involve fighting over time share of kids, and then the division of property. While it doesn't usually make a lot of sense to go too far overboard, it is true that some things can be won, but it may depend on the costs. Also, some clients just want to roll over the other party just "because"----???
Regardless of client's choices or desires, attorney has worked on some of the most difficult cases ever imagined over the years, including civil and criminal litigation, and cases in the news, newspapers (family law --and criminal law--when there were printed newspapers!), and precedential decision at SPB (on sexual harassment) plus federal litigation both in California and Denver, Colorado. Additionally attorney is well versed in animal law and litigation on various animal law issues.
If you have a difficult case, feel free to call attorney Chan at 916.794-5777. One of the few attorneys known for taking the cases other attorneys won't touch!
Sunday, September 29, 2019
Spousal Support "Exempted" in Bankruptcy?
SO..when is spousal support "exempted" in Bankruptcy? How about under CCP 703.140?
.......... What if the "MSA was purportedly ambiguous?"
.......... What if the court thinks the MSA lists the spousal support--- but it's really not spousal?
.......... What if the alleged support was not reasonably necessary for such support?
-------> Must the Court look beyond the labels provided for in the Marital Settlement Agreement?
An evidentiary hearing in Bankruptcy Court is very interesting. (See ftp://38.98.2.146/DKupetzArticle.pdf )
...............["While there are significant differences between adversary proceedings and contested matters, the similarities between them are greater than appellant assumes.
In a contested matter, there is no summons and complaint, pleading rules are relaxed, counterclaims and third-parties practice does not apply, and most pre-trial procedure is either foreshortened or dispensed with in the interest of time and simplicity.
...Nevertheless, . . . discovery is available, testimony regarding contested material factual disputes must be taken in the same manner as in an adversary proceeding, and the court must make findings of fact and conclusions of law before entering an order that has the status of a judgment." ]
In this particular case, the Trustee objected to the purported spousal support exemption under the CCP code cited above. Also noted, Trustee mentioned that the item was purportedly concealed before, but that was not made very clear.
Both parties had attorneys, both parties had attorneys during the MSA process, and the wife had expert. Wife stood to lose about $200,000. and yes,
she did lose it.
...[T]he court initially noted that nearly all cases regarding whether an award is in the nature of spousal support are in the context of nondischargeability under § 523(a)(5), as opposed to an exemption, which was "a different situation." Hr'g Tr. (Jan. 20, 2012) 88:2. Nevertheless, the court proceeded to discuss In re Combs, a nondischargeability case, and the factors a court can consider in determining whether an award in a divorce decree is in the nature of spousal support or a property settlement.
In considering the Combs factors, the court concluded that the Met Life Account was not spousal support; it was a division of property, and therefore not exempt under CCP § 703.140(b)(10)(D).
The court further noted that the MSA's express provision for spousal support which, under Stout, could be considered in determining whether an award in a divorce decree is support or property division, was an important factor in its decision to disallow the exemption.
The bankruptcy court entered an order sustaining Trustee's objection and disallowing Diener's exemption of the Met Life Account as spousal support under CCP § 703.140(b)(10)(D) on February 10, 2012. Diener timely appealed.
http://www.leagle.com/decision/In%20BCO%2020121128926.xml/IN%20RE%20DIENER (read case at this link)
You will likely need to be an attorney to understand it, but then again, maybe not.The bottom line is-- if your client may end up in bankruptcy court to salvage assets, you better be sure that the MSA will work under bankruptcy rules and state exemptions, otherwise, as can be seen here, it can open a brand new issue never decided by a bankruptcy court before, and your client is the guinea pig.
Had the wife accepted payments of support without the need for later claiming that the award was an intended buy out for spousal (which was not apparently stated) in the MSA, perhaps she could have left that provision subject to open jurisdiction to enforce; but by taking the money all at once, and since it was not deemed spousal (which would make it taxable to wife) it appears that the Trustee realized this, because the debtor kept amending the Schedule C Exemptions.
Which is likely a red flag in our opinion....Oops......
Using "Limited Scope" Designation with Attorney..........Should You?
Many clients simply cannot afford full scope representation by hiring an attorney for every single issue in the divorce. This is understandable; however, an attorney who is willing to do only certain
issues in the case might be able to handle those issues which are important, while not representing clients on every single issue in the case.
As an example.... if you are using DCSS for child support-- you may not actually need an attorney, unless you have some issues which are not ordinary within the child support issue.
Or if you only have a TRO but expect that it might resolve with a no negative conduct, you may only need help with a custody order.
Or, let's say you have finished mediation and only want to contest the mediation recommendation--and it requires a trial; or the opposite, your spouse wants to contest the mediation report but you want to keep it as an order?
Or, let's say your ex did the calculation re spousal support, but made an error and it must be changed, but to what degree and why?
Many issues that come up during divorces are not especially difficult because the law only allows one way to do something (such as splitting an asset 50/50) but in the cases where such things can be evaluated according to facts, circumstances, and behaviors, i.e. FC 3044, then see: https://www.courts.ca.gov/documents/3044sheetEN.pdf
Attorney has done many of these types of cases both as Petitioner's Counsel and as Respondent's. and because attorney has been involved in criminal law cases (i.e. such as defending an alleged gang member, criminal protective orders, alleged stalker, etc.) attorney has seen both sides, pro and con. Strategy is an important part in family law, and many attorneys simply waste time and client's money.
Attorney herein does not like to waste money on non-needed legal maneuvers; attorney has routinely worked with contractors, who are mostly men, and easily relates to those working in the trades. Primadonnas are not attorney's preferred client. Now we know most attorneys would never say this, but since millions of people these days put their personal/business data out there, such as on Facebook, attorney will never be on Facebook. Therefore, take that for what it's worth. And attorney just saw on another attorney's website, they WILL NOT TAKE YOU AS A CLIENT, if you have a DV TRO against you, or if you have had two attorneys in the past on your case, or if you are not current on support. WOW, that's rather prejudicial IMHO......
Attorney has been highly sought after for many difficult cases and has to turn down many cases due to a limited work load. Attorney's comparative fee scale is also considered the most affordable. Additionally, attorney has appeared in many different jurisdictions over the years including San Diego (Facilitator's), San Mateo, Denver CO, Sacramento Federal Court, Los Angeles Superior Court, etc. So if you believe you may need help in your case, consider calling attorney. It cannot be guaranteed that attorney can do your case however, 😊 ... attorney is not judgmental, and is friendly.
issues in the case might be able to handle those issues which are important, while not representing clients on every single issue in the case.
As an example.... if you are using DCSS for child support-- you may not actually need an attorney, unless you have some issues which are not ordinary within the child support issue.
Or if you only have a TRO but expect that it might resolve with a no negative conduct, you may only need help with a custody order.
Or, let's say you have finished mediation and only want to contest the mediation recommendation--and it requires a trial; or the opposite, your spouse wants to contest the mediation report but you want to keep it as an order?
Or, let's say your ex did the calculation re spousal support, but made an error and it must be changed, but to what degree and why?
Many issues that come up during divorces are not especially difficult because the law only allows one way to do something (such as splitting an asset 50/50) but in the cases where such things can be evaluated according to facts, circumstances, and behaviors, i.e. FC 3044, then see: https://www.courts.ca.gov/documents/3044sheetEN.pdf
Attorney has done many of these types of cases both as Petitioner's Counsel and as Respondent's. and because attorney has been involved in criminal law cases (i.e. such as defending an alleged gang member, criminal protective orders, alleged stalker, etc.) attorney has seen both sides, pro and con. Strategy is an important part in family law, and many attorneys simply waste time and client's money.
Attorney herein does not like to waste money on non-needed legal maneuvers; attorney has routinely worked with contractors, who are mostly men, and easily relates to those working in the trades. Primadonnas are not attorney's preferred client. Now we know most attorneys would never say this, but since millions of people these days put their personal/business data out there, such as on Facebook, attorney will never be on Facebook. Therefore, take that for what it's worth. And attorney just saw on another attorney's website, they WILL NOT TAKE YOU AS A CLIENT, if you have a DV TRO against you, or if you have had two attorneys in the past on your case, or if you are not current on support. WOW, that's rather prejudicial IMHO......
Attorney has been highly sought after for many difficult cases and has to turn down many cases due to a limited work load. Attorney's comparative fee scale is also considered the most affordable. Additionally, attorney has appeared in many different jurisdictions over the years including San Diego (Facilitator's), San Mateo, Denver CO, Sacramento Federal Court, Los Angeles Superior Court, etc. So if you believe you may need help in your case, consider calling attorney. It cannot be guaranteed that attorney can do your case however, 😊 ... attorney is not judgmental, and is friendly.
Saturday, September 28, 2019
Why Pay to Settle if You Can Win Your Case Without Trial
Let's be honest, no one enjoys having to hire an attorney for the most part; yet we see clients on an almost daily basis, fritter away legal money spent for no actual good reason?
Attorney herein operates FAR differently than most attorneys.
Rather than focusing on how many billable hours attorney can bill for, attorney instead sizes up each case on factual basis (and much experience) -- and makes some type of estimate on what could happen (and why..) and what might NOT happen (and why..)...then taking into account the variables that have been made known, attempts to best determine the pros and cons of each, in part, based upon the past conduct, the past hearings (if any) and the potential hearings if applicable.
Because attorney has done family law for many years, attorney has seen many, many variables in human behavior; in wage income disparities; in prolonged custody issues; in bad human behavior- including handling criminal case issues; scads of mental issues including anxiety, bi-polar, narcissism, you name it; even with both parties being afflicted....criminal protective orders, domestic violence requests, supervised visitation, no contact orders, prolonged litigation by other party's attorney or even the opposing client themselves...... attorney has huge experience in cases involving animal law (even in federal court) and is competent on animal placement, even within a dissolution case (since CA law now provides that Judges can award custody of pets..)
If you would NOT like to have protracted litigation then it does pay to think ahead, even far ahead.
Some parents are honestly not suitable for being the custodial parent; and it will be obvious. Other parents know they are NOT the suitable parent and really doesn't even like watching the kids, but will pretend to be suitable to save on paying support. Inasmuch as shared custody is common, all of the aforementioned situations are things that will cost more money, usually, for nothing to be gained as far as proper parenting is concerned. Therefore, doing such things is a waste of money?
While attorney herein cannot stop this entirely, attorney makes no effort to hide these facts and will actually simply call out those facts throughout the case since litigation does take time if the parties continue to disagree.
Trial should be avoided unless absolutely required. As an attorney in family law, trial should usually be reserved only for issues that are a complete dead end, and there is a possibility of gaining something. It is a bad idea to do this just to raise the other side's costs. It is rather unethical actually, and attorney herein would not make that choice.
Attorney herein operates FAR differently than most attorneys.
Rather than focusing on how many billable hours attorney can bill for, attorney instead sizes up each case on factual basis (and much experience) -- and makes some type of estimate on what could happen (and why..) and what might NOT happen (and why..)...then taking into account the variables that have been made known, attempts to best determine the pros and cons of each, in part, based upon the past conduct, the past hearings (if any) and the potential hearings if applicable.
Because attorney has done family law for many years, attorney has seen many, many variables in human behavior; in wage income disparities; in prolonged custody issues; in bad human behavior- including handling criminal case issues; scads of mental issues including anxiety, bi-polar, narcissism, you name it; even with both parties being afflicted....criminal protective orders, domestic violence requests, supervised visitation, no contact orders, prolonged litigation by other party's attorney or even the opposing client themselves...... attorney has huge experience in cases involving animal law (even in federal court) and is competent on animal placement, even within a dissolution case (since CA law now provides that Judges can award custody of pets..)
If you would NOT like to have protracted litigation then it does pay to think ahead, even far ahead.
Some parents are honestly not suitable for being the custodial parent; and it will be obvious. Other parents know they are NOT the suitable parent and really doesn't even like watching the kids, but will pretend to be suitable to save on paying support. Inasmuch as shared custody is common, all of the aforementioned situations are things that will cost more money, usually, for nothing to be gained as far as proper parenting is concerned. Therefore, doing such things is a waste of money?
While attorney herein cannot stop this entirely, attorney makes no effort to hide these facts and will actually simply call out those facts throughout the case since litigation does take time if the parties continue to disagree.
Trial should be avoided unless absolutely required. As an attorney in family law, trial should usually be reserved only for issues that are a complete dead end, and there is a possibility of gaining something. It is a bad idea to do this just to raise the other side's costs. It is rather unethical actually, and attorney herein would not make that choice.
Wednesday, July 31, 2019
Marijuana Issues Within Custody Cases-- Big Deal Lately
Could you lose custody of your children due to smoking marijuana?
Most county employed mediators have standard provisions that parents should adhere from smoking in presence of children, or sometimes even when the kids are under the control of that specific parent. Further, even if smoking is allowed in certain areas, many mediators don't want kids near second hand smoke, period. EVEN if it's inside the house in another room...EVEN if it's anywhere near where the kids might be, play, or access? Like outside?
The "smoking" will generally cover most forms of tobacco and possibly edibles.... (cigar, cigarette, vape, medical MJ, etc...) And many times, smoking by third parties in the home may not be a good idea due to secondhand smoke. VAPING is almost worst because it is becoming well known, that the nicotine involved, is fused with scents (i.e. cherry,etc) that the teens are running to buy/try? https://vaping360.com/how-old-to-vape/
In Butte County, a jury has previously returned a guilty verdict over an issue of whether medical marijuana is a defense (to child endangerment charges)--- the long contested case of Daisy Bram, where allegedly, the lesser count of misdemeanor child endangerment was found (as opposed to child endangerment likely to cause great bodily harm)... Judge Glusman ruled that no valid evidence was presented as to the certified use of medicinal marijuana and thus it was not available as a defense. Ms. Bram was not represented by counsel, which obviously hindered her defense.
http://reason.com/blog/2014/03/07/daisy-bram-a-witness-in-federal-case-aga
Child Endangerment in California...
Under Penal Code section 273a there is a possibility of criminal prosecution whenever a child is under your care or custody and you:
- Willfully permit the child to suffer;
- Inflict unjustifiable physical or mental pain upon any child; or
- Willfully endanger the health of a child.
If the prosecuting agency in your county believes that you are “endangering the health of your child” by smoking marijuana or growing it in a home where your children reside, you may face criminal charges....
These charges may be filed as a misdemeanor or as a felony. Of course, if the court order stated that any type of smoking or use of same is not allowed while child is under your care, a violation might be a contempt charge potentially, if the other spouse or another was to bring that claim forward?
These charges may be filed as a misdemeanor or as a felony. Of course, if the court order stated that any type of smoking or use of same is not allowed while child is under your care, a violation might be a contempt charge potentially, if the other spouse or another was to bring that claim forward?
If convicted of felony child endangerment, you could be sentenced to up to six years in prison and ordered to pay a maximum $10,000 fine. A misdemeanor conviction is punishable by up to one year in county jail, up to a $1,000 fine, or both.
Why is Alcohol Allowed But Not MJ?
Generally, no courts like the idea of alcohol, tobacco, marijuana, edibles, cigarettes, cigars, etc. when it comes to kids. Although there are tons of rules regarding drunk driving, there are not tons of rules for intoxication at home due to getting high on drugs, including legal marijuana and the like. While the hearsay out there is that MJ will be used, consumed and grown by large business, including beer companies, and that the feds will be changing those laws, it is a possibility, but we wouldn't bet your life on it happening super soon.
The banks and other super duty corporations always want to benefit themselves first. BUT if they manage to do it, we can be assured that they will have already thought of safer ways to tone down common marijuana so that it would be as common as alcohol, and treated closer to the way alcohol is regulated.
OTOH, the presence of nicotine in the vaping formulas which are targeting teens (and apparently succeeding)-- is something that relies on curiosity and being popular, because "everyone" is trying it. However one is supposed to be 21 to be "vaping"....well, we are sure that plenty of people are ignoring that there law?? LOL
The banks and other super duty corporations always want to benefit themselves first. BUT if they manage to do it, we can be assured that they will have already thought of safer ways to tone down common marijuana so that it would be as common as alcohol, and treated closer to the way alcohol is regulated.
OTOH, the presence of nicotine in the vaping formulas which are targeting teens (and apparently succeeding)-- is something that relies on curiosity and being popular, because "everyone" is trying it. However one is supposed to be 21 to be "vaping"....well, we are sure that plenty of people are ignoring that there law?? LOL
Parents that are smoking or vaping, your kids are watching you.
Note: //The courts generally do not favor the smoking of MJ, even if it is medically prescribed.
People with chronic anxiety often resort to marijuana use, or prescription meds. The meds only do so much, the overly anxious client will still be overly anxious, but somewhat better than with no meds at all.//
https://buttecountyfamilylawlawyer.blogspot.com/ Another site by attorney C. ChanPeople with chronic anxiety often resort to marijuana use, or prescription meds. The meds only do so much, the overly anxious client will still be overly anxious, but somewhat better than with no meds at all.//
Monday, May 13, 2019
Roseville Divorce Family Law Attorney C. Chan
Examples of Cases attorney has done..................
Case against Chase Bank, mortgage fraud, prevailed; PGE, violation of bankruptcy statute, prevailed; the American Kennel Club, [as to whether the entry form is an actual contract]--via summary judgment, we proved it was and won right to trial;
Los Angeles District Attorney (involving non profit corporation; all charges dismissed), San Diego's illegal law involving the structured positioning of what entities can or may sell animals, the illegal treatment of TV performing animals; the denial of DV TRO cases because one parent is an informant
(informants aka snitches, are given favors by government)...
CA State Personnel Board Published Decision on what is not sexual harassment (1993) involving top computer employee at the State Dept. of Technology Services [attorney used to work there], News article on attorney's case involving molestation case by the father in Sacramento, mid 1990's [all names/info were changed to protect family],
Denver Federal Court, and San Francisco Federal Court--on the issue of whether under Federal law, canines can be labeled as dangerous strictly by breed, and not allowed to own? [Known as breed bans..] Unfortunately, despite this having been tested in 2007, the courts today still find a rational basis for discriminating by breed in many jurisdictions, especially in Federal Courts........attorney has huge experience in this area of law......... and insurance companies will also name breeds and not insure them typically................
Representing Jack Russell [of the metal band original Great White, now renamed Jack Russell's Great White] on disputed contract/fallout from same, against his former manager's claims [Jack got rid of him!]
News article Butte County, as defense counsel for purported shooter in alleged gang related case [client got out after 4.5 years and is now successful construction foreman], attorney has tons more of winning cases in family law in various jurisdictions! This includes technology issues, stalking, invasion of privacy, representation of law enforcement employees, holders of advanced degrees, etc. Basically, attorney has done a lot of family law cases, and was in an office prior with a Special Master. However attorney has done plenty of civil and criminal cases as well. So if you have a case or know someone that needs help, feel free to refer them to me. I do consultations at no charge!
Monday, October 1, 2018
Saturday, July 29, 2017
This is interesting below--not new, but interesting.......but when Hollywood media takes hold, there is seldom, if ever, any repercussions for most of the conduct; there might be slight damage, but clients actually like it when attorneys take more strides to to their job. Obviously, we can't so far as to go over the top and do just what this attorney did, since it likely was beyond what is expected of attorneys [since we are not supposed to lead people into breaking laws] However, it's interesting because it's doubtful that in CA the attorney would have been completely disbarred.
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POSTED JUL 08, 2015
BY DEBRA CASSENS WEISS
A divided Louisiana Supreme Court has disbarred a lawyer who used Twitter and an online petition to urge readers to contact two judges she accused of being unwilling to consider the evidence in two custody cases involving allegations of child sexual abuse.
The supreme court disbarred 52-year-old lawyer Joyce Nanine McCool in a June 30 opinion (PDF), noted by the Legal Profession Blog. A hearing board and the disciplinary board had recommended a suspension of a year and a day, but the four-justice majority on the state supreme court said disbarment was warranted. Three dissenters would have imposed lesser discipline.
The majority opinion said McCook displayed an “utter lack of remorse” and a “defiant attitude” by asserting her actions had First Amendment protection.
According to the court, McCool’s social media postings contained many “false, misleading and inflammatory statements” about the way two judges were handling the cases. Among the untrue statements were assertions that judges had refused to admit audio recordings of children talking about alleged abuse, although the recordings were not offered into evidence at that time.
The court also said McCool had solicited others to make ex parte contact with the judges—and with the state supreme court—to express their feelings about the cases, which were sealed domestic proceedings.
The court cited several examples of McCool’s advocacy, including this tweet: “GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition.”
Another example was this blurb: “Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!”
McCool had claimed her actions were protected by the First Amendment, but the argument didn’t persuade the supreme court majority. “We disagree and take strong exception to respondent’s artful attempt to use the First Amendment as a shield against her clearly and convincingly proven ethical misconduct,” the court said.
“The appropriate method for challenging a judge’s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz to influence the judges’ and this court’s rulings in pending matters and then claiming immunity from discipline through the First Amendment.”
McCool told the ABA Journal in February, after the disciplinary board recommended a suspension, that she “was willing to stand up to two judges who ignored the law. … I thought that was what our oath demanded of us and it is why I became an attorney.”
The suspension recommendation, she said at the time, doesn’t do “anything to protect the profession or make it more ‘honorable.’ ”
https://www.justia.com/lawyers/family-law/california/chico
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Lawyer is disbarred for 'social media blitz' intended to influence custody case and top state court
http://www.abajournal.com/news/article/lawyer_is_disbarred_for_social_media_blitz_intended_to_influence_custodyPOSTED JUL 08, 2015
BY DEBRA CASSENS WEISS
A divided Louisiana Supreme Court has disbarred a lawyer who used Twitter and an online petition to urge readers to contact two judges she accused of being unwilling to consider the evidence in two custody cases involving allegations of child sexual abuse.
The supreme court disbarred 52-year-old lawyer Joyce Nanine McCool in a June 30 opinion (PDF), noted by the Legal Profession Blog. A hearing board and the disciplinary board had recommended a suspension of a year and a day, but the four-justice majority on the state supreme court said disbarment was warranted. Three dissenters would have imposed lesser discipline.
The majority opinion said McCook displayed an “utter lack of remorse” and a “defiant attitude” by asserting her actions had First Amendment protection.
According to the court, McCool’s social media postings contained many “false, misleading and inflammatory statements” about the way two judges were handling the cases. Among the untrue statements were assertions that judges had refused to admit audio recordings of children talking about alleged abuse, although the recordings were not offered into evidence at that time.
The court also said McCool had solicited others to make ex parte contact with the judges—and with the state supreme court—to express their feelings about the cases, which were sealed domestic proceedings.
The court cited several examples of McCool’s advocacy, including this tweet: “GIMME GIMME GIMME Evidence! Want some? I got it. Think u can convince a judge to look at it? Sign this petition.”
Another example was this blurb: “Please sign the petition, circulate it to all of your friends and families and call Judge Amacker and Judge Gambrell during the hours of 8:30 to 5:00 starting Monday, August 15 to ask why they won’t follow the law and protect these children. Let them know you’re watching and expect them to do their job and most of all, make sure these precious little girls are safe!”
McCool had claimed her actions were protected by the First Amendment, but the argument didn’t persuade the supreme court majority. “We disagree and take strong exception to respondent’s artful attempt to use the First Amendment as a shield against her clearly and convincingly proven ethical misconduct,” the court said.
“The appropriate method for challenging a judge’s decisions and evidentiary rulings, as respondent even conceded, is through the writ and appeal process, not by starting a social media blitz to influence the judges’ and this court’s rulings in pending matters and then claiming immunity from discipline through the First Amendment.”
McCool told the ABA Journal in February, after the disciplinary board recommended a suspension, that she “was willing to stand up to two judges who ignored the law. … I thought that was what our oath demanded of us and it is why I became an attorney.”
The suspension recommendation, she said at the time, doesn’t do “anything to protect the profession or make it more ‘honorable.’ ”
https://www.justia.com/lawyers/family-law/california/chico
Thursday, September 29, 2016
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.
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.
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.
Tuesday, May 13, 2014
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