DAVID
F. BLAISDELL
Attorney at Law
23020 Atlantic Circle
Moreno
Valley, CA 92553
9:00
a.m. to 5:00 p.m.
Monday thru Friday - Please phone for a free consultation
Phone: 951-247-1977
David F. Blaisdell
Attorney at Law (Lawyer)
Phone: 951-247-1977
www.BlaisAtty.com
| Home |
| Family Law Tables - These are helpful in that you can copy and paste them directly into your pleadings. The tables have built in checklists. The graphics may take time to load. |
| Family
Law Over 60 articles including What To Look For In Checking Out A Divorce Attorney! Lots of material and it may take time to load. |
| QDRO
Retirement Orders You may be entitled to a percentage of the retirement plan but how to you actually get it? |
| Links Excellent selection of family law related links. |
| If you know anyone with a family law question, please refer them to this office. |
| Free consultation |
B. THREE COMMON MISTAKES IN HIRING AN ATTORNEY
C. WHY THIS LAW OFFICE WILL BETTER SERVE YOU (How our office differs from other offices - A dozen reasons)
D. MAP TO OFFICE
E. CURRENT NEWSLETTER
F. PAST NEWSLETTERS and "You be the Judge" articles on cases.G. FAQ -
Frequently Asked Questions in California Family Law.
I
am a Moreno Valley divorce attorney. My first consultation is free.
There is no time limit. I do most
QDRO retirement plan orders as part of the divorce case. If
you have any comments or suggestions on how to improve this web site
please call and let me know at (951) 247-1977 or E-Mail me at BlaisAtty@yahoo.com.
Any suggestions you have would be greatly appreciated.
SPECIAL NOTE: The Family
Law section and Links section are very good for anyone going thru a
divorce. It is also very useful for women's shelters, religious
organizations, paralegals, law firms and other support groups. You might
add this entire web site or the above mentioned sections to your
"Favorites or Bookmarks" on your computer. If you have a web
site you might do a link directly to this site or the above mentioned
Family Law or Links section. If you feel that your web site or know of another
web site that would be helpful in this context, please let me know. Thank
you for reading this. Below is information on the office and the
attorney.
- Family Law - Practicing law since 1975 - Located in Moreno Valley - Custody, visitation, support, property division, modifications and other family law matters.
- QDRO (Qualified Domestic Relations Order) type retirement plan orders. These are orders used to divide retirement plans. Very few family law attorneys do these QDRO orders. A few of the plans we have experience or knowledge about are: Federal Civil Service (FERS and CSRS), CalSTRS, CalPERS, Military retirement, Boeing, Railroad retirement, University of California, Fleetwood, United Food and Commercial Workers, Los Angeles City for Fire and Police, Verizon, Costco, Electrical Workers (NEAP), San Bernardino County, Operating Engineers, SCE, Unocal and others.
- You may ask, "Why should I hire this office? What can this office do for me that a paralegal could not do? What can this office do that another law office could not do?" We will answer these questions.
- Who is David Blaisdell? Dave was born in Indiana. As a baby he and his parents came out to California pulling a trailer. His parents heated his bottle on the hot radiator when they had to pull over to cool the engine in driving across the desert. Dave attended schools in Southern California. He graduated from Los Altos High School. He attended both San Diego State and San Jose State. In the army he was stationed at Fort Ord, Fort Gordon, Killeen Base (now West Fort Hood) and Presidio of San Francisco. After service in the army Dave graduated from California State University, Los Angeles with a bachelor's degree in history in June 1971. He graduated from Southwestern Law School in December 1974. Dave was admitted to the California State Bar and has practiced law since 1975. For over ten years he practiced law in Orange County. Married for the first time at the age of 40 he and his new wife moved to Moreno Valley. Dave and Patty have two children, a son and daughter. Besides helping to raise the children his hobbies are walking exercise, reading and living. As an aside, Dave is the tallest attorney in Moreno Valley.
- This web site is not intended to create
an attorney-client relationship. You should not act on any information
on this web site without seeking the advice of an attorney. The
materials on this site are provided for informational purposes only
and do not constitute legal advice. Please keep in mind that
almost all family law is state specific. This web site is for
California Family Law.
Return to top
NOTE TO PEOPLE WHO DON'T WANT TO HIRE AN ATTORNEY: So often people come into the office who have signed a judgment. They later regret it and come in to this or another law office to talk to a lawyer. Sometimes it is difficult to modify the judgment. This or that has to be done and it all involves more time, hassle and/or money. If they had taken the proposed judgment to an attorney before signing it they might have been far better off. So often the reason stated is "I can't afford an attorney." or "I just wanted to get this over with on get on with my life." or "It seemed OK to me so I signed." So often they just make things more complicated and hurt themselves. Whether you can afford an attorney or not is not the issue. Almost any family law attorney could simply look over the proposed judgment and make suggestions. Many family law attorneys do not charge for the consultation. For some reason far more men are afraid to go to an attorney than women. Any experienced family attorney could give you advice and make suggestions right off the top of his or her head that would benefit you. The attorney will not twist your arm.
A suggestion for when you do have a consultation. Bring the paperwork having to do with the case with you. Pay stubs, past judgments or modification orders are just examples. You might look at the case file at the courthouse. Get a case print from the court or over the internet.
Your spouse, friends at work or relatives will often make suggestions on what to do. A few of the people you talk to will be very sure of themselves and definitely think they know what they are doing. They are brimming with self confidence. With total sincerity and eye contact they will claim they know what is best for you. They are probably somewhat cocky in their attitude. You, in turn, are going thru a real crisis in our life. "Save money. Don't go to one of those attorneys. They just want your money."
What I suggest is to go to at least two attorneys for a free consultation. You will be amazed at the different styles of attorneys at a consultation. You will also be amazed at what you will learn. Even if you don't hire the attorney you will learn a lot. Make sure it is for a free consultation. How many of those friends of yours made a suggestion like that?
Return to topEIGHT QUESTIONS TO ASK THE ATTORNEY WHEN HAVING A DIVORCE CASE FIRST CONSULTATION.
1. Are you an attorney licensed to practice in California? Often the law office will have you interview with a paralegal and not an attorney. If the attorney is going to represent you in court you want to be sure your consultation is with an attorney.
2. If I hire you as my attorney will you personally represent me in court? You don't want to get switched. Often you only find out after you pay the retainer that the consultation attorney may not be representing you in court. "We'll see you in court. Either Sam or I will be there to represent you." You can be sure it will be Stranger Sam to see you in court. Before you pay, get it added in to the retainer in writing that that consultation attorney will be there to represent you and not a stranger.
3. Do you do family law or other fields? How many other fields? What percent of your practice is in family law? – The more other fields they do they less likely they will be skilled in family law. Just look in any advertising or phone book. What other fields are listed?
4. How long have you been in practice? How many of those years have been in family law?
5. How do you bill your time? Almost all family attorneys bill by the hour. How that hour is figured can be very convoluted. Do they track time by the minute, tenth of an hour, quarter hour or what? Do they round up or down? As an example, if they charge by tenths of hours and the time incurred is 4 minutes, do they round up to ten or down to zero? If they tell you they round down to zero it would be very questionable.
6. Does your office charge minimum time? Certain pleadings the office may have templates for and just fill in the blanks with information on your case. Do they charge as if they were drawing up the pleadings up for the first time? Something you will hear is: "We charge minimum time of 10 minutes for any telephone call to an attorney. We have done intensive research on this and we usually use about 10 minutes in a client phone call. We are actually saving you money in charging a minimum of 10 minutes because for us to keep the actual minutes would take more time." They will tell you this with eye contact and total sincerity. The bottom line is if they can keep track of time for up to ten minutes they should be able to keep track of the minutes themselves. Be sure to ask: "If the call goes for over ten minutes. Like for 12 or 15 minutes do you charge another ten minutes on top of the original ten minutes?" Also ask about minimum time for court appearances. If the case just lasts five minutes or is continued they may charge a minimum fee of several hundred dollars. Attorneys who charge minimum time or minimum fees will be very uncomfortable at questions like this. Notice the facial twitch, nervous movements, raised voice, averting of the eyes or shifting in the chair.
7. Do you do a joinder on retirement plans or QDRO orders? Many attorneys do a joinder of the retirement plans but few do the QDRO orders. When you ask about the attorney doing QDRO orders they will come on strong that "There is no way I do those! We have another attorney do those. I know what I am good at and what I shouldn’t do. We are saving you money by not doing QDRO orders because the cost of doing the research would be too great." Bottom line, when all is said and done is that they don't know how to do them, have not taken the time to study them and simply will not do it. You should keep this in mind. So often when people first go to a divorce attorney the retirement plan is the last thing on their minds. This is true even though it is often the major asset in a long term marriage.
8. Do you care about me and my case? Obviously the attorney is going to say he/she does care about your case. This question is not to be directly asked. The answer will be in the personality and style of the attorney. The reader has enough life experience to be able to tell if a person really cares about them or is just out for the money. The answer to this question is determined by your interpretation of the attorneys style, mannerisms and personality.
THREE COMMON MISTAKES IN HIRING AN ATTORNEY
1. HAVING A CONSULTATION WITH ONLY ONE ATTORNEY. You want to have a consultation with two or three. Many attorneys do not charge for the first consultation. You will be amazed at the different styles of attorneys.
2. ASSUMING THAT THE BEST ATTORNEY WILL HAVE THE LARGEST AD IN THE PHONE BOOK. Having a large full page ad in the phone book does not mean that the attorney is skilled. What it means is the the attorney has to use expensive full page ads to attract clients. Some attorneys do not even use phone book advertising. Many, including this office, use a modest ad and also rely on word of mouth from past satisfied clients and members of the community. When you see a huge full page expensive phone book ad in the yellow pages, keep in mind that you as the client are paying for that. You might ask other attorneys if they think that having a full page ad means that the attorney is more competent than others. Better yet, show the full page ad to the other attorney. Ask the attorney if an ad like that makes him or her proud to be an attorney.
3. HIRING AN OUT OF TOWN ATTORNEY. You usually want the law office close to your work or home. Not just for consultations. Drop off and pick up of papers and other things. Faxes are not always adequate.
If you know anyone, friends, family or whatever, with family law questions please tell them about this web site. Be sure to let them know the first consultation is free. Why not call now for a free consultation at 951-247-1977. "Friends help friends in a time of crisis to get helpful information." Thank you. www.BlaisAtty.com
A DOZEN REASONS WHY THIS LAW OFFICE WILL BETTER SERVE YOU
1)
We get you in for a
free consultation fast. Usually you can have an appointment within two business days. Often the
same day as your call.
Attorney Dave Comments: "Most people
contemplating or going through a divorce have very little experience with attorneys. Many have never had a consultation before. In my opinion the
biggest single mistake is having only one consultation and hiring that attorney. It is best to have two or possibly three consultations so you can
compare the quality of the attorney and the type services offered. We
welcome second opinion consultations. I must tell you that we will give
you an honest assessment of your case. I do not just tell you what you
want to hear!"
2)
Free first consultation. No charge or
obligation. Good opportunity to check us out. Even if you don’t plan to
hire an attorney you will still learn a lot. You really have little to lose
since the consultation is free.
Dave comments: "A surprising
number of people, especially men, are afraid of attorneys. We do not bite.
Even if you want to hire a paralegal you can still learn a lot from a
consultation. Please see ''What To Look For In Checking Out A Divorce Attorney" under family law. Just click on the left side upper part of this page
under family law and it
is the first article. There is much self help type information under
family law to the left. We suggest you check it out after reading this
information."
3)
We do most QDRO type retirement orders. The
retirement plans can be a major asset. The division of the retirement plan
requires a specialized order called a QDRO order. Many family law offices do not do
these specialized orders. They will refer them out to other attorneys at
extra cost. By using this office you save time, money and the hassle of
having to pay yet another attorney. We have some of them on the computer as
model templates. We do not charge extra for these orders. In reference to QDRO
orders our office motto is:
"Our office does most QDRO type retirement plan orders as part of the
divorce case, at no extra expense." -- For a limited time only
we will do a CalPERS or CalSTRS retirement order at the first
consultation. Obviously, if you retain our office, you would not have to
pay for this since we did it at the free first consultation (We do many
other retirement plan orders. We are not limited to CalPERS or CalSTRS).
In calling a law office you MUST SPECIFICALLY ASK
if that office does QDRO retirement orders. Otherwise at the end of your case you will find you have to
pay another attorney to do the
QDRO. At extra cost, of course.
We do child custody, visitation, child support,
alimony, property division, modifications and other issues. We just stress QDRO orders
here because we are one of the few offices that do these orders as a part
of the divorce case.
Dave comments: "I enjoy helping clients with their
case. Custody, visitation, support, property division and more. Doing these QDRO orders
is a special benefit I provide my clients. I am doing a service very few attorneys do. In the
legal profession, as in life itself, doing extra help for others makes you
a better person. Once again, I feel good about doing the extra service of
QDRO orders.
"Do you know of anyone going through a divorce or
thinking of one who has a retirement plan? Does their spouse have a
retirement plan? I would appreciate you telling them about my web site. I
think they would learn from it. Thanks!"
4)
We do not switch attorneys.
At our office the same attorney you
have the first consultation with is the same one who will represent you in all
further proceedings. This means that no extra time is expended for one
attorney to get the other attorney up to speed on case facts. This saves
you time and money. We actually put it in our retainer agreement that
we do not switch attorneys.
There is no substitute
for attorney preparation. The best preparation is being involved directly
in the case from the first consultation. That's the way this office does
it, always has and always will.
5)
We do not charge minimum time for attorney discussion
time or court time. We charge only for the actual time incurred.
No more. Some attorneys charge a minimum of 5, 10 or 15 minutes for a phone
call, letter or whatever. We do not do this. Once again we charge only for the
actual time incurred. As an example: If we spend two minutes on a
phone call we only bill for the two minutes and no more. If court lasts 32
minutes we only bill for 32 minutes. Last, but not least, we do not
charge for travel time when the distance is less than 40 miles one way. When we are on the freeway, stuck in traffic on
the way to court or whatever, your time clock is not running unless the
court is over 40 miles away. The clock starts ticking only after 40
miles. Not before.
Dave
comments: "I have heard of situations where the law office actually
charges for a file set up fee or a case ending fee. We do not do this. We do an excellent file
set up ourselves. We do not charge for this. We also do not have a charge
at the end of the case. How would you feel it you
went to a restaurant and they charged for a ''silverware set up fee"
in addition to the cost of the meal, or after the meal they charge you a
"table clean up fee"? Also
we do not charge for
secretarial time. We have templates of many pleadings and QDRO orders. All
this prior preparation and research is a benefit to you the client. We do
not charge minimum time for our templates and past research.
"I have also heard of law offices that charge minimum
time for a court appearance. It is usually a minimum of one to two hours
or a set amount. This office simply does not do this. Often there may be
more than one case the attorney is handling. Just to go to the court and
continue the case or another minor administrative matter, should not take
that much time. The attorney may spend 2 minutes continuing the case or another
minor function and
charge for two hours of time. Then the attorney goes to another courtroom
in the same building to handle another case.
"The charge time of 5, 10 or 15 minutes also makes
little sense. If the attorney can keep track of the time for 5, 10 or 15
minutes he or she can also keep track of the actual time involved. Some
offices will round up the time in increments of 5, 10 or 15 minutes. It would be easier, with fewer steps
involved, for the attorney just to keep the correct time rather than
keeping the time in increments and then having to round up. It would also
be less expensive for the client. You should SPECIFICALLY ASK the attorney
about the billing and court appearance fees. Do not be embarrassed about
doing this. You may feel ill at ease in the attorney's office. After all
you are on the attorney's turf and not your home ground. You should be
proactive in asking about your rights and the billing procedure. If the attorney says anything different than what the retainer
agreement says, then have it added in writing to the retainer agreement.
Just a suggestion."
6) We have only modest advertising, not expensive full page "bully boy" TV, radio or large ads. This saves you money in that your fee does not go to pay for expensive ads and overhead for the attorney. Do you want to spend your money paying for an attorney's expensive advertising program?
7) We rely on Word of Mouth for clients and not expensive advertising. We have to do a better job. If we did not do a great job of attorney service, our former clients would not refer others to our office. If you had a choice between two attorneys. One attorney draws in clients with huge full page ads. The other attorney has only a modest ad and the public comes from word of mouth from past satisfied clients and members of the community. Which attorney would you have more respect for? Which attorney would you have more trust and confidence in? Which attorney would you want to have represent you?
8)
We are conveniently located in Moreno Valley.
Even if you are from out of town, the freeway off ramp is only a short
distance away. You can drop by pleadings or other documents much more
easily since we are right in town and conveniently located about a quarter
mile from the Frederick Street 60 freeway exit.
If you have read this far you have probably learned a lot
about the law and what to look for in divorce attorneys. Why don't you
contact others and tell them about this site? Anyone going through a
divorce or thinking about one would be interested. Thanks!
9) We return phone calls in one business day. Often the calls are returned even sooner. Please keep in mind this is a business day. Weekends and holidays would be only in an emergency. Almost always the calls are returned by the attorney handling the case. This way there is no possibility of a mix up in a message to the "office attorney" or a paralegal. The call will be directly by the single attorney representing you in court AND at the office.
10) We have a simple one page retainer agreement. Not a long document with lots of legal mumbo jumbo. We stress services we provide. Not services we don't provide. We also provide written fee estimates. Our retainer is simple and fair. We do not create a wall between us and our clients by making the agreement one sided with excessive protections to the law firm.
11)
We give you extensive information on your case. Even if you don't retain our office it is still
worth the consultation time. You will leave with much printed information
on family law and related topics.
We welcome second opinion consultations. If you
had a consultation with another office and want to check us out then
please call to come in for a free consultation. We also invite
you to have a consultation with our office and then go to another office
for a consultation. You can compare the quality of the consultation, the
caliber of the attorney, information given and the terms of the retainer agreement. Dave
comments: "We actually have a sheet for grading and comparing this
office and other law offices. You may feel like a teacher grading
students."
12)
We do proposed stipulated judgments in most cases.
This is to try to work out the issues without having to go to court.
Obviously if negotiation fails we go to court. However the stipulated
judgments are directly on the computer in template form.
Dave comments: "If
you wish we can start on a stipulated judgment right in the office at the
first consultation. It helps to get the case moving, so we can be sure
where we are going with the case. What I mean by this is that it is a help to
put what you want in writing rather than just talking about
it." -- WHY DON'T YOU NOW CLICK ON THE FAMILY LAW PAGE. THERE
ARE OVER 60 ARTICLES THAT MAY BE OF INTEREST TO YOU. BE SURE TO READ
"WHAT TO LOOK FOR IN SIZING UP AND CHECKING OUT A DIVORCE ATTORNEY." CLICK HERE
IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. If you have a question, why not call now for a free consultation at 951-247-1977. www.BlaisAtty.com
Please Note: Some attorneys may not like the checklist items above because
they feel intimidated by them. Many attorneys do not like "comparison shopping"
by clients. Rather than discussing the points they feel
uncomfortable with they may
criticize the author. This is a "diversion strategy". They seek to divert your attention from the
issues on the checklist. Please realize this. Get the attorney to discuss
the issues and answer your questions about the issues.
A
suggestion: Why don't you read "What To Look For In Sizing Up And
Checking Out A Divorce Attorney" at the top of the family law
section.
HOW TO GET TO THE LAW OFFICE OF DAVID F. BLAISDELL
The directions below will use
FROM
ROMOLAND OR PERRIS: Go north on the 215 and get off on
FROM ALESSANDRO AND
FREDERICK: Go north on
FROM THE 60 FREEWAY FROM
FROM SUNNYMEAD AND
FREDERICK: Go south on
This is our office newsletter. It consists of articles and/or cases.
I give lectures to high school students and others who may want to be attorneys. Below is an article for all those who are interested in becoming
attorneys.
SO
YOU WANT TO BE AN ATTORNEY!
WHAT TYPE PERSON WOULD BE HAPPY AS AN ATTORNEY:
· The most important thing to being an attorney is that you like to help people. Whether helping around the house, helping a little old lady across the street or helping a fellow student with homework or with a ride home. The critical factor is that you want to help people and enjoy it.
· It is a great help to enjoy reading. Law school and practice involves a lot of reading. If you look upon reading as a chore it is difficult to succeed in law school or practice.
I
WANT TO BE AN ATTORNEY TO MAKE A LOT OF MONEY:
· This is the worst reason in the world to want to be an attorney. If this is your attitude you will either fail, end up in jail or both. Why?
a) Many attorneys will handle other people's money. If you are greedy it will get you in trouble. You will end up taking money that does not belong to you. After all there is nobody looking over your shoulder right then and it is so easy to steal the money. Sooner or later it catches up and the attorney ends up in trouble with the state bar or law enforcement.
b) In dealing with clients if you are only interested in the money it will come out. The client will realize you are not really interested in helping him or her with their legal problem. You just want their money. Being able to detect this is a sixth sense built up through life experience.
IF
I LIKE TO ARGUE WILL I BE A GOOD ATTORNEY?
· Probably not. Far more cases are settled in negotiation than in court argument. Negotiating skills are more important. In negotiation, and in court, you often accomplish more by using tact and consideration than coming on strong with bluster.
· By its very nature law practice is somewhat confrontational. However it is not nearly as much so as indicated on TV and other popular media. However keep in mind that in law, as in every other field, there are some attorneys who are jerks (very few).
· Even if you are in court there is a lot of time at the office doing the paper work of preparation for court and documents that need to be prepared after court.
IF
I BECOME AN ATTORNEY WILL I BE IN COURT VERY OFTEN?
· Possibly. Many attorneys hardly ever set foot in court. They may do research or not be involved in law practice at all. Law school is a great background for many different occupations or fields. As an example more presidents of the United States have been attorneys than any other occupation. Business leaders may be attorneys who are not involved in law practice but in the business field.
WHAT
TYPE OF SCHOOLING DO I NEED TO BE AN ATTORNEY?
· Usually you will have a Bachelor's degree from a four year college in any subject.
· Law school usually lasts another three full time years.
·
You still have to pass a bar exam
to practice. This is similar to the high school exit exam but far more
difficult. It is a two and a half day test. If you pass or fail any one
section you still have to take it all over again. Even those sections you
passed.
·
If you are interested in law
schools go to http://stu.findlaw.com/schools/
which has links to most law schools and paralegal programs. They are by
state or alphabetical order.
PAST
NEWSLETTERS AND "YOU BE THE JUDGE" CONDENSED
CASES
The
below are copies of our past office newsletters.
Below are cases that you may be interested in. They may or may not
apply to the situation you are in. The below are actual California
cases that went
to the court of appeal. Some are old and some new. Please review them and try to decide how you would
rule. What do you think is fair? The official citation of the case is at
the end. You should review the case itself if you think it applies to you.
The numbers are identification control numbers for our office. If you
think the case applies to you remember the number. We can research the
case and issues based on the control number.
YOU
BE THE JUDGE!
The law can be involved. The below
simplified fact situation is based on
You should read the instructions on legal
research in section 1 of QDRO orders.
Some of the below are done in groups of two. The case is on top and the court decision below for both. Please refer to the numbers. There are so many here we suggest you use Control + F to use a key word search. If you think the case applies to you then read the case. Don't rely just on the below.
1. THE CASE OF THE TRIVIAL PURSUIT OF MONEY. Husband wrote two trivia books. As per their divorce settlement agreement wife was entitled to one half of the royalties from the books. After the divorce ex-husband sued the producers of "Trivial Pursuit" for copyright infringement based on his book. Should ex-wife be entitled to part of the proceeds from the copyright infringement action? He says "no" because all this happened after the divorce was final and copyright belongs only to the author. You be the judge. What would you do?
2. THE CASE OF CHILDREN HAVING CHILDREN. Two minor teens (Rodney and Cynthia) had voluntary sexual relations and Cynthia became pregnant and had a baby. There were various medical bills for the birth not covered by insurance. Cynthia's parents got stuck for the bill. They sue the parents of Rodney for reimbursement of the bills. They claim that under Civil Code section 1714.1 that parents are liable for the willful misconduct of their minor child. Cynthia's parents argue that Rodney's parents should have to pay for at least half the bills. It was their minor son Rodney who committed willful misconduct in getting the teen mom Cynthia pregnant. What would you do. You be the judge!
HOW THE COURT DECIDED
1. The court of appeal held that the royalties from the books were community property. If he wrote the books during the marriage they are community property. If he had a cause of action arising from the community property copyright interest she should share in it one half. Bottom line is she received a one half interest in the copyright infringement action. Marriage of Worth (1987) 195 Cal.App.3d 768.
2. Parents of teen mom Cynthia lose. Consensual intercourse with a minor is not "willful misconduct" within the meaning of Civil Code section 1714.1. There could be criminal and child support obligations against teen dad Rodney but not his parents. Cynthia M v. Rodney E. (1991) 228 Cal.App.3d 1040. Keep in mind that these were just medical bills for Cynthia and not the minor baby. Under Family Code 3930 the grandparents would not be liable for child support for the grandchild when the mother is a minor.
3. THE CASE OF THE GAY DAD. Divorce case and dad is gay. Mom wants order that he cannot have his son stay overnight with him when there is another homosexual in the house besides dad. Mom argues: "Homosexuality is prohibited in our religion and our son is receiving religious instruction. Staying overnight with his dad is a bad influence." Dad argues: "I am not raising my son to be homosexual. I should be able to have my son overnight even when there is another homosexual in the house. It does not do damage to our son." How would you rule. You be the judge!
4. THE CASE OF THE BROKE
MOM. Dad gets mom
pregnant and she has the baby named
HOW THE COURT RULED
3. Ruling for dad. Visitation with the other parent is encouraged in our law. An affirmative showing of harm or likely harm to the child is necessary in order to restrict parents visitation. The court could find no evidence of detriment to the child to support restricted visitation with dad. Marriage of Birdsall (1988) 197 Cal.App.3d 1024. What if Dad had AIDS? Would that change things? The court is silent on this matter.
4. Ruling for mom. The agreement is not
enforceable. The money was originally for the minor
IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. If you have a question, why not call now for a free consultation at 951-247-1977. www.BlaisAtty.com
5. THE CASE OF THE TWO RELIGIONS. Before marriage husband and wife made a written pre-nuptial agreement that the children would be raised in a certain religious faith. Both signed the agreement. Divorce takes place. Parties have joint legal and joint physical custody. Mom says: "I want to raise our son in a different religious faith. It will do no harm to our son to learn two religions." Dad says: "We made a solemn written agreement before we ever married to raise our son in a certain religious belief. This written agreement should be enforced." How would you rule? You be the judge!
6. THE CASE OF THE LAZY TEACHER. Mom had custody and was a license public school teacher. She could have gotten a job teaching full time in a public school like her ex-husband. She did not and got a part time job paying much less. Dad argues: "The court should impute a higher income to her (so he is able to pay less child support) because she could easily get a job paying much more than the present job. Mom argues: "I should not be forced to take a certain job. My part time job enables me to be with our child more, be a more loving parent and I am able to pursue an advanced degree." How would you rule? You be the judge!
HOW
THE COURT DECIDED
5. Mom wins. A parent will not be prevented from involving the child in the parents religious activities absent a clear affirmative showing of harm. The pre-nuptial written agreement is not enforceable. It violates the United State Constitution's first amendment in that a person is free to change their religion. Keep in mind this was both joint legal and joint physical custody. If child was with one parent most of the time the ruling might be that the party with physical custody could establish religious upbringing. Marriage of Weiss (1996) 42 Cal.App.4th 106
6. Mom loses. If a parent is unwilling to
work despite the ability and the opportunity, earning capacity may be
imputed.
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7. THE CASE OF WHO IS THE DAD? Mom had sexual relations with several different men in the same time period. Years later, she identified "dad" as the father of the child. The blood test indicates that there is a 99.69 percent chance that he is the father of the child. Dad argues: "Yes we did have sex and the tests indicate that I am probably the father. However this is of such importance and the financial obligation for support are so great that the other men should be tested also." Mom argues: "The evidence is so strong that we should not have to test the other men and disrupt their lives." How would you rule? You be the judge!
8. THE CASE OF THE AMENDED PENSION BENEFITS. Husband and wife were divorced. They divided the interest in husbands retirement plan one half each. Later the plan is amended so that it is worth much more than expected. There were additional pension benefits later that neither, apparently, knew of. Ex-wife argues: "We did not know of these additional benefits that later came to light after the plan was amended. I should have one half." Ex-husband argues: "We made the division in the judgment in the past. The plan was amended after the judgment and so I should be the only one to benefit from the additional benefits after the judgment." How would you rule? You be the judge!
HOW THE COURT DECIDED
7. Dad lost. The likelihood is so great that it triggers the statutory presumption of paternity. It is established that the mother had sex with the dad here. The fact that there are other men is a factor but with the likelihood of fatherhood in the man here so great it is not necessary to test the other men. This case has an excellent discussion of blood, DNA and HLA tests. El Dorado v. Misura (1995) 33 Cal.App.4th 73
8. Ex-wife wins. The order was that she receive one half the plan. The fact that other interests came out later is just as if they had been omitted in the judgment. Neither party could see that the plan would be amended to benefit the ex-husband. She should be able to claim her one half just as if the parties accidentally omitted this interest in the first place. Marriage of Melton (1994) 28 Cal.App.4th 931.
9. THE CASE OF THE LOW
PAYING BUSINESS VENTURE. Dad
is well paid in a salaried job. He quits to start his own business. He
believes that at first he won't make that much but soon he will make more
than before and increase child support. This doesn't happen. He seeks to
lower child support. Mom wants the court to "impute" the higher
income he was making before for support. He says: "I am not trying to
ignore my children. I really believed I could make more money and pay more
support. I should not be penalized for this temporary downturn in
business. I wanted the freedom of self employment and the chance to make
more money" She says: "Child support comes first. Your freedom
is restricted by your need to pay child support. Therefore the court
should impute your previous high income for child support purposes."
How would you rule? You be the judge!
10. THE CASE OF THE VICTIM WITH RESPONSIBILITIES. A 34 year old woman seduced a 15 year old boy and became pregnant. She gave birth to a daughter and later applied for welfare. Should the father be obligated to pay child support even though he is a victim of "statutory rape" when she had sex with a minor? Father argues: "To force me to pay child support when I am a victim of statutory rape violates public policy. I should not have to pay for being sexually exploited by this adult woman. To make me pay violates the California Constitution that provides that 'all person who suffer losses (here having to pay child support) as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for the losses they suffer.' It is not fair that I be a victim and pay child support also. Let welfare pay for the child" Mom argues: "He consented to sex. The child needs to be supported regardless." How would you rule? You be the judge!
HOW THE COURT DECIDED
9. Court rules for mom. Child support will be figured on the previous high paying job. His child is not a voluntary participant in his risk taking. His actions may be sincere but the bottom line is the children need the support. He should have put extra child support money away in the bank before he started his business. The children's interests are top priority. Marriage of Padilla (1995) 38 Cal.App.4th 1212.
10. Court rules for mom. He has to pay
child support (welfare reimbursement).
11. THE CASE OF THE EMBEZZLING TICKET TAKER. During marriage wife works for Palm Springs Aerial Tramway and embezzles large amounts of money. She uses the money for expenses of maintaining her family. Husband does not know she is embezzling the money. Wife is caught and a settlement is entered into that she repays the Tramway $150,000. Parties get divorced. Should the entire $150,000 repayment to the Tramway be allocated to wife? Husband argues: "I had no idea she was doing this. She is a thief and should pay the entire amount." Wife argues: "I used all the money I embezzled for both of us. We both benefited from my dishonesty. Because we both shared in the benefit we should share some of the debt and not have it entirely dumped on me!" How would you rule? You be the judge!
12. THE CASE OF THE UP AND DOWN INCOME OF TV. Dad is a TV personality. At the time of the order on child and spousal support he was making good money. He goes back to court and requests that it be lowered because his income is about half of what it was. Dad argues: "I am looking for jobs and trying to make more money. I am not deliberately shirking in getting a better paying job. The TV personality market is not that good now. Child and spousal support should be reduced." Mom argues: "This is for support of his child and me. It is special and he should be ordered to pay. I suspect he is not making more just to hurt me and our child." How would you rule? You be the judge!
HOW THE COURT DECIDED
11. Wife wins. Although the wife was the thief, the fact is that the community (both parties) shared in the benefit of her dishonesty. Therefore the community should have to share part of the cost of the repayment. Marriage of Bell (1996) 49 Cal.App.4th 300.
12. Dad wins. The court lowered both child and spousal support. There was no evidence of dad deliberately shirking his support obligations. There was no evidence that he had failed to make reasonable efforts to obtain employment that would pay more. Bottom line is that his income is lower so support should be lowered. Marriage of Philbin (1971) 19 Cal.App.3d 115.
13. THE CASE OF STAR TREK IN THE COURTROOM. Husband developed TV series called Star Trek. The series is a commercial failure. In divorce husband gets copyright and other rights. Wife gets one half interest in all future profit participation income from Star Trek to which they are entitled. Later Star Trek makes huge profits from two later ventures called The Next Generation and Deep Space Nine and various movies. Wife argues: "I should receive half the profits from the later ventures and the movies. They are a continuation of the original future profit participation income." Husband's estate argues: "She should only receive profit participation income from the original Star Trek and not the later movies and TV programs. The court agreement was too vague for her to get an interest in all the later developed programs." How would you rule? You be the judge!
14. THE HIGH PAYING DAD WHO BECOMES A PRIEST. Husband is ordered to pay spousal support. He later quits his high paying job (too much stress and depression) to become a priest. His income is zero. He does have about $70k in assets. Ex-husband goes to court and requests that Spousal Support be reduced to zero. He argues: "This is Spousal Support and not child support. Her income has gone up. I am acting in good faith and not just to avoid paying Spousal Support." She argues: "He just doesn't want to pay Spousal Support. It is no different than if he wanted to stop all work and spend the rest of his life surfing. The court should impute the income he could be making. Also a lien should be set up from those $70k in assets to pay me Spousal Support." How would you rule? You be the judge!
HOW THE COURT DECIDED
13. For husband's estate on the issue above. She only gets an interest in the original Star Trek and not later developed programs. The agreement was vague. Wife has failed to show that the later developed Star Trek profits were included in the original divorce agreement. Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634
14. Ex-wife lost. Spousal Support lowered to zero and no lien on his $70k. The evidence was that he did not quit his job to avoid Spousal Support and he was acting in good faith. Marriage of Meegan (1992) 11 Cal.App.4th 156. The court might have decided differently if the money was for child support rather than spousal support.
15. "I'VE ALWAYS
WANTED TO GO TO
HOW THE COURT DECIDED
15. Dad lost. Good faith has nothing to do with it. He has kids to support. We look to his ability to work, his willingness to work and an opportunity to work. All three are present. The court will apply the earning capacity standard to derive the amount of support for the children (and the ex-wife here). Marriage of Ilas (1993) 12 Cal.App.4th 1630.
18. THE CASE OF THE SEALED FILE. Journalist wants to see the divorce file of the respondent elected judge. The court has sealed the file. Journalist argues: "It should be unsealed because of freedom of the press and the public's right to know the facts of these public proceedings concerning an elected public official." Respondent argues: "There is no compelling right for the public to know of the 'dirty linen' in the divorce file. Both my wife and I wanted it sealed and the judge ordered it. The journalist just has it out for me. By their private nature divorce files should be sealed against the public." How would you rule? You be the judge!
HOW THE COURT DECIDED
18. Journalist wins. The law favors maximum access to judicial proceedings and court records. Marriage of Lechowick (1998) 65 Cal.App.4th 1406. Parties could ask for restricted viewing of the file so prying high school students could not see the file. The court clerk would stand there and check their ID cards. Be careful about what goes in the court file. A presentation of evidence could be made and the documents returned at the end of the proceeding upon request usually. If they won't seal the file for a judge then they probably won't seal the file for you.
19. "I WANT TO VISIT WITH MY CHILD AS A DAD" Dawn and Frank are married and then separate. Dawn moves in with Jerry and gets pregnant by him. Dawn returns to her husband and resumes her marriage. Jerry's baby is born to Dawn and Jerry wants visitation. There is no conclusive presumption of paternity in Frank since the parties were not cohabiting at time of conception. Jerry argues: "I should have visitation with my son. A biological father has a liberty interest, protected as a matter of substantive due process, in being permitted to develop a parental relationship with his son. I have even taken a parenting class." Dawn and Frank argue: "Jerry does not meet any of the statutory criteria for presumed fatherhood. Even if he is the biological father the law gives him no relief. The sanctity of the family must be preserved." What would you do? You be the judge!
20. "PAYING
CHILD SUPPORT IS A FORM OF SLAVERY" Dad is not working. The
court orders him to pay child support based on his ability to earn money.
He fails to pay. A contempt action is brought. Issue is: can he be put in
jail for failure to pay child support. Dad argues: "Going to jail for
failure to pay support is involuntary servitude prohibited in the
constitution's thirteenth amendment as slavery. I am being imprisoned for
failure to pay a debt which is prohibited in the California Constitution.
Lastly, mom has the burden of proof that I have sufficient income to pay.
This is a quasi criminal proceeding and I am presumed innocent until all
the elements, including ability to pay, are proven beyond a reasonable
doubt." Mom argues: "Hogwash! It is no more slavery than the
military draft or compulsory jury service. Child support is not an
ordinary debt covered by the
HOW THE COURT DECIDED
19. Jerry loses. All the statutory
provisions of
20. Mom wins for the reasons she stated. The importance of this case is that the California Supreme Court reversed the burden of proof on ability to pay the support. The new rule is that the alleged contemner (Dad here) must prove inability to pay the money by a preponderance of the evidence. Moss, et al (1998) 17 Cal.4th 396.
21. "CHILD SUPPORT OF OVER $11,000 IS SIMPLY NOT ENOUGH!" Dad is a professional basketball player who had sexual relations with Mom that resulted in a baby. They are not married. Mom sues for paternity and child support. Dad admits he is the father and agrees to pay any amount of child support the court determines is reasonable. He admits he makes $1,000,000 per year. The court orders child support of $8,850 per month with an additional $2,500 monthly for a nanny. Mom argues: "Our child deserves more. Dad really makes about $12,000,000 per year. I want full information as to his lifestyle and other sources of income." Dad argues: "Hold on, Mom is getting way over what it costs to raise a single child. She is benefiting from this. She should not be able to pry into my personal finances." What would you do? You be the judge!
22. "IS THERE GENUINE JOINT PHYSICAL CUSTODY" Very complex case on burdens of proof and what real physical custody is. Current California law is that the party with genuine physical custody (rather than just the label of "joint or primary physical custody") has the presumed right to move out of state unless the non-custodial parent can show that, due to a change in circumstances, it would be in the best interest of the child to change the custody order. In other words the non-custodial parent has the burden of proof to change the custody order or proving that the parent with physical custody should not move. However if there is a genuine joint physical custody situation and one parent wants to move a long distance away then the court must have a totally new hearing to determine custody of the child as if the previous order did not exist. Neither party has the burden of proof since it is an entirely new hearing for a new determination of custody in light of the planned move. Dad argues: "I have genuine joint physical custody. I have our child every Thursday p.m. until Friday a.m. and on alternate weekends from Friday p.m. until Monday a.m. This is true joint legal custody and we should have a "de novo" hearing to determine custody all over again before her move." Mom argues: "The amount of visitation Dad has is not true joint physical custody. Consequently I have true physical custody and presumptively should be able to move out of state. Dad has the burden of proof that there is a change of circumstances that he should receive custody. He has not done so." Is Dad's visitation true joint physical custody? You be the judge!
HOW THE COURT DECIDED
21. For Dad. When the non-custodial parent has ability to pay any reasonable child support the evidence of detailed lifestyle is irrelevant to the issue of the amount of support. Mother is also greatly benefiting from this. Johnson, et al (1998) 66 Cal.App.4th 68. As an aside this attorney ran an income of $12,000,000 per year on the Dissomaster computer. Child support would be $61,029 per month.
22. For Mom for the reasons stated. Court
does not look at labels of custody but rather to the de facto situation of
where the child is at most of the time. Dad does not have true joint
physical custody. Appellate court remands the case to the trial court for
a proper hearing. This is an important case for
24. "I'M AGE 65 AND WANT TO RETIRE." Ex-husband medical doctor is paying spousal support to ex-wife after a 37 year marriage. He is over age 65 now and wants to retire. He has retirement assets of over $450,000. He wants to pay less spousal support. Ex-wife argues: "It is common for medical doctors to worked past retirement age. The trial court made a finding that he has the ability to work. He has all that retirement IRA money also. He just wants to dump me!" Ex-husband argues: "I don't care if I could work and make as much money. The point is that I want to retire. I do have a lot of money in my retirement plans but that is for my retirement and I want to use it. I should not have to pay as much spousal support" What would you do? You be the judge!
HOW THE COURT DECIDED
24. Ex-husband wins for reasons he stated. Court specifically held that no one may be compelled to work after the usual retirement age of 65 in order to pay the same level of support as when he was employed. He should not be required to exhaust his retirement assets in order to pay wife. Only investment income and not investment principal should be available to pay spousal support. Bottom line is that he can still be ordered to pay spousal support but it is based on the retirement income and not the principal. Possible issue is that this might not apply if the obligation was for child support. Marriage of Reynolds (1998) 63 Cal.App.4th 1373
IF YOU KNOW OF ANYONE WITH FAMILY LAW QUESTIONS, WHY DON'T YOU TELL THEM ABOUT THIS WEB SITE? THIS MAY BE A HELP TO THEM. "FRIENDS HELP FRIENDS IN A TIME OF CRISIS." YOU MIGHT URGE THEM TO CALL IN FOR A FREE CONSULTATION. If you have a question, why not call now for a free consultation at 951-247-1977. www.BlaisAtty.com
25. "SHE'S CAMPING OUT IN OUR HOUSE" Parties own a home. Court orders the home to be sold at the "best price reasonably obtainable." Ex-wife gets exclusive use of the house. She hems and haws and delays the sale. House does not sell for about 18 months. House finally sells at much less than what the price would have been at the start of the 18 month period based on testimony of Realtors. Ex-wife argues: "Even though I did delay the sale I should still receive the agreed amount from the sale of the house that is my share." Ex-husband argues: "She delayed the sale, the market kept going down and the Realtors advised her of this. I should receive a credit against any monies owed her as an equalization payment in the divorce. The credit she should pay me is what my share would have been had the house sold before she started the delays." What would you do? You be the judge!
HOW THE COURT DECIDED
25. Ex-husband wins for reasons he stated. Case is remanded to trial court to determine the correct credit. Marriage of Hokanson (1998) 68 Cal.App.4th 987. An interesting side note is that Realtors were allowed to testify as to sales prices and an appraiser was not necessary.
27. "I DON'T WANT TO BE LIMITED TO FAMILY COURT" Thomas and Joanne were divorced in 1985. Many years later Joanne discovers that Thomas hid certain assets and cheated her. She sues in civil court for fraud, and other claims. Issue is: can she sue in civil court. Does she have to return to family court to litigate these issues. Thomas argues: "This should be heard in family court. It arose out of the dissolution and the family courts have proper continuing jurisdiction." Joanne argues: "Continuing jurisdiction is not exclusive jurisdiction. The dissolution case is long over. There is no reason why I cannot make my claim in civil court." What would you do? You be the judge!
28. I'VE
GOTTEN PART OF MY MONEY. NOW I WANT IT ALL" Ex-husband owes
$357k to ex-wife in dissolution. To secure her interest ex-husband moves a
promissory note and second trust deeds covering the realty. He fails to
make the payments. Ex-wife does nonjudical foreclosure and gets only $110k
from the foreclosure. She now goes to court and wants an award for the
balance of $247k. Ex-wife argues: "He still owes me the money. The
foreclosure did not bring as much as expected.
If he owned a car and the car was repossessed then the lender could
get a deficiency for the difference between the underlying debt and the
value of the car. I should be entitled to the same." Ex-husband
argues: "That is not the law in
HOW THE COURT DECIDED
27. Joanne wins. When the dissolution is
pending the family court has exclusive jurisdiction. One the dissolution
is over then she can sue in civil court for tort damages. Dale v. Dale
(1998) 66 Cal.App.th 1172. It is unclear why Thomas was not willing to have the civil
court hear this. A possible reason is that in civil court Joanne could get
punitive damages for fraud which could be far more than any sanctions the
family law court might impose. A jury in civil court would hear the case.
A jury might be more incensed at Thomas' actions and award more damages
than a family law judge would award sanctions in a non-jury family law
case.
28. Ex-husband wins.
29. "MY LOAN IS NOT FOR SUPPORT" Dad is in school full time. He received student loans. The lower court held that the loan money, over and above the costs of books and tuition, is a form of income to be looked to in payment of child support. Dad argues: "These are loans. They must be repaid by me. Since they are subject to repayment they should not be considered as income in establishing child support." Mom argues: "We're just using the monies above the costs of books and tuition. Family Code section 4058 gives a very broad definition of income for figuring child support. While student loans are not specifically mentioned it does not mean that they cannot be considered as income. After all the section includes income from whatever source derived,...'" What would you do? You be the judge!
30. HOW
FAR BACK CAN CHILD SUPPORT BE ORDERED
This involves paternity cases instituted by the District Attorney.
HOW THE COURT DECIDED
29. For Dad for the reasons stated. Marriage of Rocha (1998) 68 Cal.App.4th 514. The court of appeals limited its decision in reference to student loans. They are difficult to be discharged in bankruptcy. It might be different if the money was a "family loan" from a family member gift with the label of "loan."
30. For Dad. Family Code section 4009 applies to both. Section 4009 is broad enough to cover both types of actions. This is consistent to W and I section 11475.1 that references the Family Code. Riverside, et al (1998) 18 Cal.4th 435.
31. "I CAN'T FIND
WORK SO DON'T IMPUTE A
There are three children. Dad at one time earned $28k per month. His employer went bankrupt and he had stress related emotional problems. How much income should the court impute, if any? Dad argues: "I want to work but there are not that many openings. Earning capacity is composed of the ability to work, the willingness to work shown by good faith attempts to get a job and opportunity to work. The court should not have imputed $40k earning capacity to me." Mom argues: "This is for support of three children. The court should be able to pick a number out based on past earnings and set that as imputed income." What would you do? You be the judge!
32. THE
INTERRACIAL REMARRIAGE AND CUSTODY Mom and dad are both white.
They divorce in
HOW THE COURT DECIDED
31. For Dad. There was not real evidence on how the trial court came to rely on the earning capacity in lien of actual income. The earning capacity should be imputed as the reasonable amount of money that Dad could make. Not a pie in the sky amount as to what he made in the past. Marriage of Cohn (1998) 65 Cal.App.4th 923. Good case for how the courts should impute income and what can be done to show imputed income or lack of income.
32. Mom wins. This case went to the United States Supreme Court and was a unanimous decision. The reality of private biases and the possible injury that they might inflict is not a permissible consideration for the removal of an infant child from the custody of the natural mother. The court felt that the constitution cannot control such racial prejudices, but neither can it tolerate them. Palmore v. Sidoti (1984) 466 U.S. 429.
33. "I'M GETTING
MARRIED AND WANT TO MOVE WITH OUR CHILD"
Mom and Dad are divorced with one child (Natalie). Real primary
physical custody is with mom (rather than just the label of physical
custody). Divorce order says she can't move out of three local counties.
Mom is engaged to marry a man in
34. "THE
REIMBURSEMENT FOLLOW THROUGH"
HOW THE COURT DECIDED
33. Mom wins. Mom has shown that she has sound, good faith reasons for the move. Noncustodial parent Dad has not met his burden of showing that Natalie will suffer detriment rendering