DAVID
F. BLAISDELL
Attorney at Law
23020 Atlantic Circle
Moreno
Valley, CA 92553
Phone: 951-247-1977
David F. Blaisdell
Attorney at Law (Lawyer)
Family Law - Free Consultation
You
or someone you know probably has family law questions or problems you want
to get information on. The fact that you are reading this web site shows
that. If you need help then I am here to help. I want to help you! I do
care about you and your case. Please call now to Dave Blaisdell, Attorney,
951-247-1977. No charge for the first consultation.
"The other side is Goliath. You are David. This office is your
slingshot."
| Home |
| Family Law Pleading Tables |
| Family Law |
| QDRO Retirement Orders |
| 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 |
This office does family law. This includes divorce, child custody, child
support, spousal support (this is called "alimony" in many
states), property division and other aspects. One of the features of this
office is that we do retirement plans also (These QDRO type retirement
plan orders are mentioned elsewhere on this web site).
IN THE BELOW, WE MAY NOT BE TOTALLY CURRENT. WE MAKE EVERY
EFFORT TO DO SO, BUT THE LAW AND OTHER INFORMATION IS SO FAST CHANGING THAT WE CANNOT GUARANTEE
THE ACCURACY OF EVERYTHING BELOW.
In the below certain articles that we frequently refer
the public to are highlighted. Articles on custody and visitation
are
in blue. Articles on money and property
are
in green. Articles of other specially helpful subjects
are in yellow. All
others are helpful but not highlighted.
-
WHAT TO LOOK FOR IN CHECKING OUT A DIVORCE ATTORNEY (Checklist on how to evaluate a divorce attorney)
THERE IS MUCH INFORMATION ON
THIS SECTION. YOU MIGHT WANT TO USE "CONTROL + F" TO FIND WHAT
YOU ARE LOOKING FOR.
We may add more information in the future. We are always under
further construction.
Return to Top
Free consultation. 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@gmail.com. Any
suggestions you have would be greatly appreciated.
Why don't you add this to your
Favorites or as a link on your web site?
We realize that many people have never had a consultation with an attorney.
The checklist is below. You may skip this "Links"
introduction section but we urge you to return and read it later.
Since you are reading this on the internet there are some things you might
do to help the attorney as well as yourself. Please go to the
"links" section on the left of the screen. There is a wealth of
information that is available on the internet that there is no fee for.
Examples are:
Section 1 and 2 for court records in Riverside and San
Bernardino. You can track your case from these sites. Keep up on what is
happening in your case. You also might want to be sure your current spouse had a final
dissolution of marriage decree before you married that person or to be
sure a future spouse is really fully divorced. Section 25 is for Los
Angeles County court records.
Section 20 on values of cars and other vehicles. This is
important because in the division of property we need to know the value of
all the property.
Section 27 on imputed income if your spouse is not working
or you feel could be making more. See what others in that field are able
to earn.
Section 37 on the value of your home. You can get comps
immediately over the internet on what homes of a similar type are selling
for in your area.
Section 45 and 49 on what realty your spouse may own that
you have no knowledge of. Also look at relatives of your
spouse.
Section 61 is for getting a free credit report from Experian, Equifax or
TransUnion. It is a help to know your true
debts.
Before calling the attorney for a consultation first make
sure that the "attorney" is really a California Licensed
Attorney. Some people say that they are attorneys and are not. See Section
12 on links.
There is something else you might do if you are still in the
same house as your spouse. Take photos of each room. Stand in one corner
and take a photo. Do this to all four corners of each room in the home.
Take photos of the cars, outside of the home, garage and even the
bathroom. There are two reasons for this. One is in case things start to
disappear you will have a photographic inventory of the entire house
contents. The second reason is that in negotiation for division of
household items we can be sure we are all talking of the same item. It is
so there will be no misunderstanding as to who is getting which lamp in
the living room, etc.
The above is just on a few highlights. Please review the links
section. There may be other information that may help your case. By you
doing the work you are helping the attorney.
What To Look For In Sizing Up And Checking Out A Divorce Attorney
Below are some things to look for in evaluating a divorce attorney: If you know anyone with family law questions please mention this site to them. Let them know the first consultation is free. If you live in or your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. Thank you. www.BlaisAtty.com
Before Calling The Law Office:
a) Did you check with friends, co-workers, neighbors or relatives about the reputation of the law office? Of greatest importance is to check the State Bar web site to be sure this person really is an attorney. You can link to it right here and now. Just click http://members.calbar.ca.gov/search/member.aspx and follow the instructions. Keep in mind there are over 200,000 licensed attorneys in California. There may be several with the same name. (I have been in practice since 1975 and have no disciplinary action against me.)
b) How long has the attorney been in practice? (Since 1975)
c) If there is an advertisement, does it list several different practice areas or just one or two? Is the law office near you? (I only practice family law. My office is in Moreno Valley CA)
d) Is the office in the same county or not to distant from the court? Is the office near your work or home? Is the location of the office convenient for you if you need to go by before or after work? (You can use MapQuest or Google to find out how to get to my office. It is just off Frederick Street on Atlantic Circle. Additional directions are on the front page of this web site)
When You Called The Other Law Office:
a) After how many rings was the phone answered? (Call me and find out. You may get an answering machine if we are serving other clients or during non business hours)
b) Were you able to talk to the attorney right then and there? It may have just been for some minor questions but still a brief talk with the attorney. Did the attorney take the time to personally request you bring certain documents to the consultation? (Yes, you will talk to the attorney. Call the office and find out if it is true)
c) If no one was there to answer your call, how long did it take for someone to return your call? Did a secretary or the actual attorney return the call? (Test us out. Call during non business hours, leave your phone number and see how long it takes to get a return call)
d) Did the law office check the other party's name on the conflict list? If the law office had a consultation with your spouse they might have to withdraw as your attorney because it would be a conflict of interest. Wasted money and time. (We always check the conflict list on the phone when you first call. We do not wait till you show up at the first consultation)
e) Before booking you to come in for a consultation did the office ask brief background questions to be sure it is the type case they could handle? (Yes we do. Call for a first consultation and find out)
f) If it is not a case the office can handle did they refer you to an attorney who can help with your case? If you asked for a referral did they give you one? (Yes we do. Call and find out)
g) How much is the charge for a consultation and how long is the typical consultation? How soon could the office get you in for a consultation? (Most consultations are from 45 minutes to an hour or longer. There is not charge for the first consultation. We can usually get you in within 48 hours)
h) Do they have expensive TV, radio, large or full pages ads or other expensive advertisements? (You may not want to spend your money paying the law office's large advertising budget and overhead).
The Consultation:
a) Did you fill out an intake sheet on the very basic nature of your problem? Did they provide a pen to fill this out? If you had a question on the intake sheet did they take the time to explain it? Were they gracious or abrasive with you? (Come on in and find out)
b) How long do you have to wait in the waiting room to talk to the attorney? While waiting could you sit down in a comfortable chair? Get a drink of water? Use the restroom? (Does the office have separate restrooms for men and women?) Use the phone? (Yes we have separate restrooms for men and women)
c) Did you talk to the attorney or a paralegal or secretary? How long did the consultation last? Were your questions answered? What percent of the attorney's cases involve family law? (Your consultation will be with an attorney)
d)
Is
the attorney you had a consultation with the same attorney who would represent
you in court? Did the attorney LISTEN to what you had to say?
Some law
offices have a different attorney for court and the office. If there is
any miscommunication it can be a disaster. Be sure the attorney you had the
consultation is the same attorney who will represent you in court. (The
same attorney you have a consultation with will be the same attorney to
represent you in court)
e) Were you given written informational materials that apply or may apply to you? (Yes, you will receive an entire kit of materials)
f) If it was obvious you did not have much money and could not retain the services, did the attorney give you the "rush treatment" to get you out of the office? (I do not give the "rush treatment" to anyone)
g) Do you feel that the attorney is emotionally understanding with you and has real feelings for you and what you are going through? That is to say, the attorney is not just doing this as a job. (Come in for a consultation and find out)
h) Did the attorney give you a written fee estimate that you could take with you and review? (Yes. We always give a written fee estimate)
i) Were you basically satisfied with the consultation? Did you learn from it? Does the office have a shredder to protect the privacy of your documents and to prevent identity theft of stolen documents? (Yes we have a shredder)
j) Did the attorney provide a satisfaction questionnaire for your evaluation on the consultation? (Yes, the satisfaction questionnaire is part of the kit of materials that will be given to you)
k) Does the attorney provide free responses to follow up questions you may have the next day or soon after? (Yes, we provide this)
l) Did the attorney "bad mouth" other law offices who they are in competition with? Bad mouthing another attorney usually indicates some deep insecurity in the attorney or fear that he or she does not measure up. They think they can build themselves up by tearing others down. At core center the bully is usually very insecure. Nothing new about this. Most people with any life experience have encountered this with other people in other situations.
Services Offered:
a) Are there certain minimum "talk time" fees? An example is in calling the attorney, the attorney has a minimum time of at least 6, 10 or 15 minutes (We don’t do this. The attorney charges only for the discussion time incurred. Not minimum time). Is there a minimum fee for a court appearance? (We do not charge for a minimum court appearance. Only the time incurred. For example, if we continue a case in court we only charge for a few minutes. Not a minimum of hundreds of dollars). Does the office charge for travel and drive time? We do not charge for travel and drive time unless over 40 miles one way.
b)
Does
the law office do retirement plan QDRO type orders? These QDRO orders are
specialized orders to divide retirement type plans. Often, especially in
long term marriages, this is a very valuable asset. You MUST SPECIFICALLY
ASK if the office does QDRO orders. Asking as soon as possible
is best. Often the office will
have another attorney do this, at added expense. (We almost
always do our own QDRO retirement plan orders). In many marriages the
retirement plans are a very valuable asset. Just reserving jurisdiction on the retirement plans is not a
wise idea. It is better to do the work now than off in the future. The
beneficiary may also change by remarriage. Joinder is not full protection.
Do you know of anyone going thru a divorce who
has a retirement plan? Does the spouse have a retirement plan? Please
mention this web site to them. They will thank you. I thank you also!
c) Does the law office do other family law related tasks, like drawing up deeds, wage assignment orders, proposed judgments to encourage settlement or other services? Does the office have a computer program for figuring arrearages (past payments due that have not been paid) in child or spousal support or debts owed? If the office does have such a program do they know how to use it? Does it figure interest on monies owed also? You might be surprised at the number of law offices that have fancy computer programs that they don't know how to use. Does the office know how to do graphs and tables for briefs to make data easier for the judge to understand? (Yes, we know how our computer systems work. At the first consultation you will see this)
d) Will the same attorney represent you throughout the proceeding? Do they "switch" attorneys during the representation process and use a substitute? At our office we do not use substitute attorneys. The same attorney you have a consultation with will represent you in the entire court process. It is common for some offices to have an "office attorney" and a "court attorney." (The same attorney at the first and all other consultations will be the same attaorney representing you in court)
e)
Did
the attorney make it clear that they return phone calls in 24 hours and send
you copies of all correspondence and other documents?
Does the office
have a web site with family law links? Are there instructions on what to
do when you do get to the linked site? The internet has many web sites of
help to parties in a family law situation. These include, but are not
limited to, tracking your case as it goes thru the court system, getting a
free credit report from one of the three major credit reporting agencies,
getting information on the potential earnings of the other party, and
other information.
f) Does the office have elaborate rules on if a fee dispute or malpractice arises? Often the office will want to protect themselves as much as possible.
g) Do the attorney's file documents belong to you? That is, when the case is over or they no longer represent you, do you receive the actual original file documents or just copies of documents? Do they charge you for the copies? We give you the originals at no charge and do not charge for any copies we make at the close of the case.
Your General Feelings Toward The Attorney:
a)
Does
the attorney have a large
advertising budget and a high overhead. Keep in mind you are the one
paying for these things.
Many potential clients would have more trust and confidence with an
attorney who has a modest ad and relies for new clients more on Word of
Mouth from past satisfied clients and members of the community.
b)
Ultimately
one of the best ways to tell if you will work well with the attorney is to
take the "sniff" test. This is also called the "gut
instinct" or "personal chemistry" test. That is to ask yourself if you feel you will work
well with this attorney. Do you trust him or her? How comfortable are you
with this attorney? Obviously we hope our office passes these tests
with you.
If you know of anyone else with family law questions
please fax, send, e-mail or pass this on to them. They will be interested.
Please note: Some attorneys may feel uncomfortable
discussing the
checklist items above because they do not like "comparison
shopping" by clients. They may feel intimidated by them. Rather than
discussing the points made 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 and suggest they discuss the issues.
A suggestion: Please read "A Dozen Reasons Why This Office Will
Better Serve You" from the home page.
ANOTHER SUGGESTION: IF YOU KNOW OF ANYONE
WITH A FAMILY LAW PROBLEM OR QUESTIONS WHY DON'T YOU TELL THEM ABOUT THIS
WEB SITE? YOU MIGHT URGE THEM TO CALL THIS OFFICE FOR A FREE CONSULTATION.
Remember: "Friends help friends in a time of crisis." THANK YOU www.BlaisAtty.com
The mediation office for Downtown Riverside is on the second floor You should check in there. If for some reason you cannot make mediation or will be late you can call the mediation office at 951-955-6986 or 6987.
If you have a declaration or other documents to show the mediator be sure you show the other parent these documents first. Show the documents to the other parent immediately after you arrive at court. Be sure the mediator also sees it before the mediation appointment. You should bring three copies. One for the mediator, one for the other parent and one for you. Hand one in to the mediation office immediately after you give a copy to your spouse. The mediation clerk may ask if the other parent has seen the documents. If you gave the documents to the other parent you can answer “yes”. Otherwise they may not let you hand the documents in. Do not misrepresent the truth because the mediator will find out when the case is called and the other parent says they never received the documents. Keep in mind the documents may have been mailed to the other attorney and the other attorney may have given the documents to their client. Ask the other parent to be sure anyway.
The mediator usually will have the two of you in a small office room. It will not take place in the courtroom itself. The mediator will try to get the two of you to agree on issues relating to custody and visitation. If an agreement between the two of you cannot be agreed upon the mediator will usually make a recommendation on custody and visitation. The recommendation is just that. It does not become an order unless the judge signs it at the court hearing a few days later. At the mediation be yourself. Wear clothes that you feel comfortable in as long as they are not tanker tops, shorts or anything too unusual. Be sure to stress, not so much about what you want, but what is in the best interests of the children. Be verbal and express your feelings. However do not "come on strong" and be overly aggressive. The best preparation for mediation is to get a good nights sleep the night before.
If you absolutely cannot be present at mediation you can do a “telephonic mediation”. For this you call the office at the above phone of 951-955-6986 and ask for a telephonic mediation. You should make this arrangement several days before the actual mediation appointment. At mediation be yourself. You may want the information the attorney has on visitation to read over before your appointment. It is best not to bring any boyfriends or girlfriends or others that may make the other side angry.
The first mediation appointment is free. Any subsequent mediation appointments will have a fee of $50.00 from each party. You must have the money on the same date as the mediation.
· Advice To Clients: When you see mediator you should:
a) Say "our" children or "our" child. Not "my" child, etc.
b) Stress what is best for the children and not what you want
c) Have a parenting plan for the other to visit, etc.
d) Stress positives of yourself more than the negatives of the other party.
Helping Your Children Through Divorce
1. Tell your children the truth, with simple explanations.
2. Tell them where their other parent has gone.
3. Reassure your children that they will continue to be taken care of and that they will be safe and secure.
4. Your children see that parents sometimes stop involving each other; explain that a parent's love is a special kind that never changes.
5. Spend time every day with each child individually.
6. Children may feel responsible for causing the divorce. Reassure them they are not to blame. They may also feel responsible for bringing parents back together. Let them know your decision is final and will have to be accepted.
7. Often divorcing parents feel guilty and become over indulgent because their children have to go through a divorce. Give your child love and limits.
8. Your child is still a child and can't become the "man of the house" or a "little mother". Continue to be a parent to your child. Seek other adults to fill your needs for companionship.
9. Avoid situations which place children in the impossible position of choosing between parents.
10. Don't use your child as a way to get back at your former spouse. Children can be terribly wounded when caught in a "cross-fire".
11. Throughout life you and your former spouse will continue to be the parents of your children. Pledge to cooperate responsibly toward the growth and development of your children as an expression of your mutual love for them.
12. A divorce can be a time of loss for each member of the family. You are entitled to reach out for help and support.
13. Be patient and understanding with you child. Be patient and understanding with yourself.
Possible Direct Examination Of A Parent Checklist (Questions that might be asked of you. Be sure to have answers.)
1. Please state your name for the court.
2. What is your date of birth?
3. Where did you live before you were married?
4. What is the highest level of education you have attained?
5. What date were your married to your spouse?
6. Were you employed at the time of your marriage? Have your been employed since that time? When did you first begin working?
7. How many children have you and your spouse had? Give names and dates of birth.
8. Did you and your spouse plan to have children? Was yours a planned pregnancy, reaction when you discovered you were pregnant, what was reaction of spouse?
9. Who took care of the children during infancy? Describe the types of activities you performed. Did your spouse help at all during the infancy? How? Who obtained baby-sitters? Who took the children to the doctor for shots and checkups? Did your lifestyle change after the birth of your child? How?
10. How soon after the birth of the child did you return to work? Who took care of the children while you worked? Who located this person or agency?
11. Where are your living? How long have you lived there? Describe your home?
12. Describe your neighborhood.
13. What play facilities are available nearby?
14. How far from your home is the school(s) of the children attend?
15. Are there other children in the neighborhood close in age? Do your children play with these children? How often?
16. When did you and your spouse separate?
17. When you separated, how was it decided who moved out?
18. How long has the child been in your sole custody?
19. How often has your spouse visited the child?
20. Have there been any problems in visitation?
21. What school does your child attend? Who is the child’s teacher?
22. How is your child doing in school or preschool?
23. What activities is your child involved in?
24. What activities do your participate with your child in?
25. What do you usually do on weeknights?
26. What do the children do?
27. What do your usually do on weekends?
28. Who transports the child to these activities?
29. Did your child have a birthday party on his or her last birthday? Who made the arrangements for the party? Who transported other children to and from the party?
30. What is your state of health?
31. Do any of the children have health problems? Who generally takes the child to the hospital or doctor? Who keeps track of the medication schedule?
32. Do your or your spouse generally get up with the child in the night?
33. Do you feel it is important for your children to maintain contact with both parents?
Questions that a surprising number of parents do not know. Please know the answers.
What is your child’s middle name? --- What is the birth date of the child? --- What color eyes does the child have? --- Brand of diapers or baby food. --- Does the child have any birthmarks or other marks on the body? --- What school does child go to? --- Name of teacher? --- Directions of getting to the school? --- Child’s favorite friends at home and at school. --- Favorite colors --- Favorite foods, dress, etc. --- Pet peeves of the child. --- Name of child’s doctor or medical treatment center. --- Medical problems of the child. --- Allergic reactions to things. --- Medication schedules.What Is The Mediation Process For Custody And Visitation And What Should I Know About It?
Before court there will be an appointment with the mediator if custody or visitation is disputed. It is done in a informal way with the parents alone. Usually there are no attorneys present. The mediator will try to get an agreement going with the parents about custody and visitation. If the mediator cannot do this the mediator will make a recommendation as to custody and visitation. It is a recommendation only. If we do not agree with the recommendation we can put on a case and present evidence why it is not an appropriate recommendation and should not be made a court order by the court. Once again the mediator makes a recommendation only. Only the court can make an actual custody or visitation order.
Usually mediation will take anywhere from
fifteen minutes to over an hour in a small informal office. The mediator
does not usually talk to the children but has the right to do so. If the
mediator does choose to talk to the children the mediator will almost
certainly not ask the children which parent the child wants to live with.
The mediator will possibly ask the child questions like: "If you had
a special secret to tell who would you tell, Mom or Dad?" or "If
you had a friend at school who no longer liked you who would you talk to
about it for advice, Dad or Mom? or "Who helps you more with your
homework?" or "What
things do you like about Dad and what things do you like about Mom?"
Usually you do not have to bring the children to mediation unless the
mediator requests their presence.
If
you know anyone with family law questions please tell them about this
site. You might, in turn, urge them to call others that they know to see
this site and for a free consultation. "Friends help friends going
thru the heartache of divorce." If you live in or your case is
in the Inland Empire of Southern California please call for a free
consultation at 951-247-1977. Thank you. www.BlaisAtty.com
CLIENT "TO DO" LIST IN PREPARING FOR MEDIATION INVOLVING CUSTODY
Below are various thing you should think over before your interview with a custody investigator.
1. What is your proposed agreement for time sharing/visitation and why.
2. If your spouse has proposed a particular time sharing plan, what is it and what objections (if any) do your have to it and why.
3. Do your have any specific arrangements (holidays, birthdays, pick up or delivery time, decision making areas) that are particularly important to you? If so, what are they?
4. Compare your parenting skills to your spouse’s. List both you and your spouse’s strengths and weaknesses.
5. Compare your lifestyle to your spouse’s in view of the advantages and disadvantages it has. Life style includes work time, parenting time and plan time.
6. Describe the schedule you will keep with your child (time you will actually spend with the child) and compare it to your spouse’s.
7. Compare the types of things you do with your child to the types of things your spouse does (both positive and negative). School related activities are particularly helpful.
8. What complaints do you have about your spouse that reflect on his or her ability to be a good parent? Give specific items, including dates and incidents if possible.
9. What are the things your spouse will try to use against you and what factual basis, if any, is there to his or her claims?
10. What special needs, if any, does your child have and what have you and your spouse done to work with them.
11. It is helpful to have school records or any records verifying and negative behavior of your spouse or positive behavior of yours that reflects on your ability to parent.
How Much Do You Know About Divorce Law? A Quiz
The below is based on California family law. There are many misunderstandings and this helps for a better understanding. Just answer true or false to the below.
1. Physical custody of children under the age of 10 always goes to the mother. [] True [] False
2. The spouse who made most of the money during the marriage will receive most of the community property assets in a dissolution of the marriage. This is because the assets were mostly acquired with that parties income. [] True [] False.
3. Children over the age of 12 can freely choose which parent they want to live with. [] True [] False
4. The court will not make any orders concerning pension plans unless the party is vested in the plan. [] True [] False
5. A marriage in Mexico is not valid in California. [] True [] False
6. Currently in Riverside County the major asset in most marriages is the family home.[] True [] False
7. Usually the party with the highest income will receive custody of the minor children because that party can better provide financially for the children's needs. [] True [] False
8. If the party filing first wants a legal separation the court will have to order a legal separation. [] True [] False
9. If you fail just to pay spousal support you can lose your license to drive a car. [] True [] False
ANSWERS: The answer to all is false. 1 It is on the best interest of the children and not if the parent is the father or mother. 2 Each party has a one half interest in the community property built up during the time of the marriage. It does not matter who the main wage earner was. 3 The older a child is the greater the deference given to that child's wishes, however the order is still going to be in the best interests of the minor. An exaggerated example is if the 16 year old says he wants to live with one parent because that parent lets him smoke pot, drink beer and not do his homework. Obviously the court would award custody to the other parent in spite of the minor's wishes. 4 Even if the party is not vested orders can be made. At the very least the court will reserve jurisdiction over the pension plan. 5 If a marriage is valid in the place where the marriage took place then it is valid in California. This is called reciprocity. An exception is that in the past Hawaii was considering legalizing same sex marriages. There was a bill in congress that the states will not have to recognize such marriages. No such law was passed in Hawaii. 6 The major asset is the retirement plan. Many of the homes have huge debts on them and the debt cancels out or greatly reduces the equity. 7 Child support is used to help equalize out the incomes of the parties for the benefit of the children. 8 If the other party wants a dissolution the court will have to grant a dissolution. Only if the other party agrees or defaults will a legal separation be ordered. 9 For failure to pay child support the DA can revoke your license. Not just spousal support alone. Only when the child and spousal support are related or combined you can lose your license for failure to pay spousal support.
How Much Do You Know About Divorce Law? Quiz Number 2
The below is based on California family law. There are many misunderstandings and this helps for a better understanding. Just answer true or false to the below. I
1. Once the income data of both parties is correctly entered into the computer, then the court is always bound to use the result on child support. [] True [] False
2. Overtime pay in figuring child support will not be considered by the court, since it is not reliable as to how often it will be earned. [] True [] False
3. California requires a six month wait for the dissolution to be final. [] True [] False
4. Once the divorce, nullity or legal separation is final, health insurance for the ex-spouse ends. True [] False []
5.
Once a party files in court for a dissolution and the other
party is served neither can take the minor children out of the state.
True
[] False []
6. If a child is taken out of state and you can use the federal courts to adjudicate the case since federal courts are involved with diversity jurisdiction. True [] False []
Answers: 1 is false. Where the obligors net income is less than $1,000 per month the court may make a special adjustment as per FC 4055(b)(7). Where the obligor's income is very high as per FC 4057(b)(3) the court may not follow the guideline. FC 4057 lists other exceptions. 2 is false. In Riverside Family law the base pay is frequently used. However a percentage ratio is used for all income over the base pay for additional support. 3 is true. The six month clock starts ticking from when the documents are served on the respondent or from when respondent files a response. The six months is a minimum time. It can be extended by the parties. It is often extended so that the other party has time to get medical insurance or to find out about COBRA benefits for continued health insurance coverage. 4 is usually true. Almost all health insurance plans will end the medical plan coverage for the other spouse once the judgment is final. This is not true for minor children who may stay on the plan till they are no longer minors. The former spouse may get continued benefits under COBRA continuation coverage but that former spouse must usually pay the premiums themselves. 5 is true. The standard restraining orders in family law prohibit the filing party and spouse from removing the minor children from the state without the prior written consent of the other party or an order of court. 6 is false. Rarely are federal courts involved in custody matters. The states have interstate agreements on the jurisdictional issues.
How A Private Investigator Might Do A "Pretext Search"
A private investigator (PI) may be hired to find out where someone has a checking account and the account number. How do they often find out? Do they have some sort of secret access to computer information? Usually not. Often the information is obtained from a pretext search. This is an example. Please try to follow.
If they are hired to find out where Ms. Jones has a checking account they would want to know some background information about her. It might go something like this.
· The PI finds out where Ms. Jones lives and who her utility providers are. Like the gas company, electric provider, trash hauler, etc. This is usually very easy to find out since everyone in that area usually uses the same one.
· The PI then calls the utility provider (the gas company in this example) and says: "Hello, I am Ms. Jones and I paid my gas bill but did not write it down in the check register. I am embarrassed to say that I cannot reconcile the checks unless I know how much the bill I paid was for. Would you please tell me how much the bill was for that I paid."
a) The gas company will be courteous and tell her something like: "You paid your gas bill of $18.53 and we received it on June 9."
· The PI then calls Ms. Jones and says:
a) "I am calling from the gas company and we did not receive your payment for last month. You were billed for $18.53 and we have no record that you paid it. We may have to shut off gas service to your home." (knowing the exact amount builds credibility for the PI)
b) Ms. Jones says: "But I know I paid the bill. I even recall writing the check."
c) The PI then says: "Well let me check another screen on my computer (Then Ms. Jones hears some clicking of a computer keyboard over the phone). "No, we do not show you have paid it. I am afraid we will have to cut off service."
d) Ms. Jones states: "Oh no, please don’t do that. I know I paid." The PI then says "Let me check my bank screen. The gas company deals with many banks and the payment may show up on the bank screen of cleared checks. What bank do you have an account at and what is the account number?" Ms. Jones responds in desperation: "My checking account is at Bank of America. The account number is --------. I have had the account there for years. In fact I have my cancelled checks out and I know it cleared."
e) The bottom line is that the PI knows the bank that Ms. Jones has a checking account and the account number. Ms. Jones has told her. Even though Ms. Jones did not realize she was telling it to a PI.
f) The PI then ends saying: "Oh my, you are right. You have paid the bill for $18.53. I am so sorry. On behalf of the gas company we apologize for any inconvenience this may have caused to you. Once again I am sorry and have a nice day." (In two days Ms. Jones will probably forget the entire conversation).
Obviously if the PI just called up Ms. Jones and said: "I am a private investigator who has been hired to find out where your checking account is at. Will you please tell me where you have your checking account?" Ms. Jones would probably just hang up.
A pretext search can be done in other ways and in other situations. The investigators can be very innovative in getting the information. You should be aware that these things happen. The above scenario is very simple. It is just one of many.
If You Are "Kicked Out" Of The Home
This is information, mostly for men, on what to do it you are ordered to vacate the residence. Often called a "kick out" order. If you have lots of money it is not difficult to reestablish yourself. The below is for those without a huge income on getting by with a kick out order.
· You usually have the right to go to the house to get your things. Get what you think you will need for whatever time you may have to be out of the house. Bathroom articles, recreational and work clothes, address book and other things.
· Try to have a cell phone or pager for contact with others. You can use your job address and phone for contacts also.
· You may have to sleep in your car. Try to contact family and friends to stay over. You may have enough money for a motel the first night. However this can get expensive. Usually the main expenses will be shelter and food. If you sleep in your car or van you can save on shelter.
· You might rent a small storage shed to keep your things in. You can turn a small one into a closet and storage place.
· If you have no place to shower you might join a gym. Often they are open 24 hours a day or close to it. They have exercise equipment. More importantly they have lockers, showers and a place to clean up. If you plan to use one for an extended time you might find one with a sauna, steam room, pool, etc. As long as you’ve been kicked out of the house you want to pamper yourself somewhere along the line.
· Since you won't be in the house you can actually save much money. If you live out of your car or van your expenses for shelter will be minor.
· Find an inexpensive dry cleaners and coin operated laundry for your clothes.
· In your off time go to places that may not be expensive. Movies, the library, watching people in the mall. You might even want to go to court to just watch the cases.
· Loneliness can be a problem. Friends and relatives are a help. Hobbies or special interest you might look into. There are sports groups of all types. Volleyball, basketball, baseball and other sports. Church groups and various other special interests groups can be a help getting to find new people. If you have children call Parents Without Partners. Often they have a full calendar of things to do.
· Being made to leave your home is no fun. Try to look upon it as a camping trip away from home. Hopefully it won't last long.
How To Make Your Marriage Last A Long Time
The is from an article in the August 3, 2003 Press Enterprise. Please read the article for full details.
Below are some strategies for saving a marriage:
· STEP INTO YOUR SPOUSE'S SHOES. Empathy helps you experience your spouse in another way. Think about what is like being married to you, living with you day in and day out. Are you a perfect prize package?
· LISTEN. Some people become so engrossed in arguing their point that the don’t hear what their partners are saying. Unless you can understand how the other person sees a problem, you can't find common ground.
· REVISE YOUR EXPECTATIONS. We grow up learning certain values and habits, but we shouldn't expect the same patterns from our partners.
· COMPROMISE. Too often people go into a conflict with a win or lose mentality. If one person wins and one loses, then both have lost. You need to find common ground that respects the needs of both people.
· TAKE TIME TO HAVE FUN WITH EACH OTHER. We all have jobs, kids, errands, schedules, etc. It is no excuse. Have a date night once a week or so. Marriage is like a plant. If you put it in the corner and walk away, it will wither.
· HERE ARE SOME THINGS YOU SHOULD NEVER SAY IN AN ARGUMENT:
a) "This is just like the time last year when you…" reeling off past transgressions means you never forget or forgive.
b) "My mother always said you'd never amount to anything." Third party criticism is inflammatory and destructive.
c) "And you're a lousy lover, too." Demeaning, hostile or sarcastic remarks will cast a shadow on your relationship long after the argument.
d) "Well, if you can, I can too." Tit for tat argument is kid stuff.
e) "I want a separation (or divorce)." Threatening to abandon the marriage tells your mate you don’t think he or she or the marriage is important.
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If
you know anyone with family law questions please mention this site to
them. As you can see there is a lot of information at this site. By
suggesting they visit this site you are helping them get more information
to help in these trying times. If you live in or your case is in the
Inland Empire of Southern California please call for a free consultation
at 951-247-1977. Thank you. www.BlaisAtty.com
PURSUE PEACE IN YOUR RELATIONSHIP
The below is from an article in the 08-04-2003 edition of the Press Enterprise. Please read the article for full details
Here are some suggestions on getting relationships back on track:
· Live in the present. Don’t rehash the past or project into the future.
· Put yourself in the other person's shoes.
· Don’t expect one relationship to meet all your needs. Surround yourself with people who bring different perspectives.
· Recognize your own weaknesses and limits. Look at how they affect the other person.
· If you know you're never going to agree on an issues, accept the difference and learn to function in spite of it. If necessary flip a coin to resolve disputes.
· When you feel defensive, excuse yourself and take a moment to regroup. Don’t make impulsive statements.
· Don't assume that the passion you felt in the beginning of a relationship will last forever. Staying close takes work.
· Ask: "What am I looking for from this relationship? What do I expect from the other person? Are these expectations reasonable?" Discuss your expectations with a neutral person.
· Have fun together. Use a sense of humor to add perspective.
· Ask what you want; don’t assume others already know.
· Don't discuss weighty issues when either person has been drinking.
· When the relationship affects your children, consult them.
· Use "I" statements ("I feel…" and "I would like…" – not "You make me feel…")
· Designate a regular time to discuss the relationship and issues as they come up. Limit that time so it doesn’t drag on.
· Get input from family members and neutral friends.
· Spouses: "Touch often.
· If necessary, consult a professional arbiter. Look in the phone book or online.
· When in doubt: Communicate!
GETTING INFORMATION ON BANK ACCOUNT ACTIVITY
Often people have had a joint account with their spouse and the money has just disappeared. It may be important to get information on the account and the monies taken out. Below are some suggestions:
· Most of the below applies to savings accounts, checking accounts and other accounts at banks, savings and loans, credit unions and other savings institutions.
· Keep in mind that each bank or financial institution has their own rules. The below may or may not be true for certain banks.
· If it is or was a joint account either party can do anything they want. Withdraw, deposit, close out or whatever.
· Try to have as much information as possible about the account, number, date opened, names, etc. It is best to go to the bank personally to get the information. Be sure to have photo identification.
· If you don’t have any paperwork on the account, don’t know the number or anything, then have the bank do a name check on you. If the account was closed out long before you may have to contact the headquarters bank for past records.
· If it was a joint account you have rights to full information on the account activity. Just like the other account holder.
· At the bank itself they usually just have the account statements going back one or two cycles.
· The account statements are limited pretty much to the check number, date the check cleared and the amount. Deposits are also shown. This is all still valuable information. The bank can usually copy out statements from the past. If it is for a long time ago they bank may have to contact their research department.
· If you want copies of individual checks front and back you can usually get this. There may be a fee.
· If the account is not active this may be a problem. Banks usually keep information on the account to the end of the year for 1099 reporting to the IRS.
· Be assertive at the bank. If they say they don’t have the records ask where you can get it. Don’t just simply roll over if they say they cannot get the information.
· If you can get the information from the bank do not just jot it down. Ask for a print out or copy of what the bank has. If there were large check withdrawals get the actual checks front and back. They bank may have copies.
HELP IN SPOTTING A FORGED DOCUMENT.
This is a condensation from an article in "California Paralegal" for July-September 1991. The author is Marcel Matley, is owner of Handwriting Service of California. He has been a documents examiner since 1985.
Think of all the many documents you see every day and how much money rides on them. Does anyone really think no one involved in all those cases will be tempted to "improve" the documents or even create new and better ones? Skepticism can be a virtue.
There are some things about documents that tell us when to be suspicious. Of course, one would know that no amount of suspicion is proof, but one would be a babe in the woods not to know when to be suspicious and would be imprudent not to allay or verify such suspicions. The following are the most important clues to suspicious documents. Proof of falsity involves a lot more.
The clues can be grouped as follows: 1. Circumstances surrounding the document. 2. The persons involved with the documents. 3. The alleged maker of the document. 4. The document itself: material nature. 5. The documents itself: contents.
Circumstances Surrounding The Document:
· The document was found in the most amazing way.
· There is no information available on the origin or care and keeping of the document. No one saw it being made. No one ever knew it existed or can say who possessed it.
· Serendipity is cause for suspicion. Just when the claimant's cause seems hopeless, the perfect proof turns up like magic. This is entirely different from the conscientious person who researches papers and brings forth all relevant material.
· For all its worth the document was casually treated until now.
· The maker of the document and the history of its making is simply unknown. It appears without parentage or history.
· The original is now lost. Beware of any photocopy, particularly when you are told the original no longer exists but are assured the copy is perfect. Even more wariness is called for when an undoubtedly genuine original would prove the claimant's case, but that very claimant lost that original. Photocopies are easy avenues for forgery!
Persons Involved:
· Witnesses to the document, though not beneficiaries, are under the power or influence of the beneficiary. If the claimant brings forth witnesses who depend on him for their livelihood, they may not be entirely disinterested in the results of their testimony. In one case one witness to a will was deceased and the other was not permitted to be deposed, much less interviewed, without the beneficiary being present. A strange procedure.
· The claimant mounts a defense of the document before you can ever challenge it. Such people will seem to be compelled to keep pointing out to you what proves the genuiness of the document. They try to anticipate your every doubt and press for a commitment that you accept their position.
· Right after they first learn what is needed to support their claim, they find just the document to do the trick.
· Their behavior rouses suspicion.
· You are not given access to the originals. Opposing parties or attorneys either deny access or always come up with reasons why it cannot be now. You are assured that the nice photocopies are perfect copies and all you will ever need.
The Maker Of The Document:
· The maker is simply unknown.
· The document is contrary to the maker's known habits. A man's mother died. Someone cashed a large check immediately afterwards, claiming it had been a generous gift from her just prior to her death. The lady had never made such gifts, ever in her life. That aroused suspicion, and a documents examination revealed the check was forged.
· Facts and events mentioned in the document that were probably unknown to the maker.
· The document contradicts unquestionably genuine documents by the same person, and there is no reasonable explanation for the difference.
The Document Itself: Material Nature:
· Paper, form, ink, etc. are either inappropriate or unusual for such a document.
· Indications of possible deletions, alterations or additions. To discuss this fully would require volumes. The most obvious indicators are erasures, white outs, change in color of ink or style of type and improperly aligned text.
· Either that the form, typewriter, kind of paper or pen and so on did not exist at the date of the document or may not have been readily available to the maker. Ball points are from the twentieth century.
· There is unevenness in the cut of the paper.
· A multiple page document may have been reassembled. Staple holes can indicate this as well as change in color, wear or kind of paper in one or more pages.
· Watermarks differ on various pages of the document.
The Document Itself: Contents:
· The text anticipates arguments that might be raised against the document and its own genuiness, particularly if these are unusual.
· The text makes statements whose sole purpose seems to be to justify the document. False wills can be very creative in this regard.
· Statements in the document contradict either statements in genuine documents from the same person or known facts.
What To Do With Your Suspicions?
There are several main steps to take when faced with a suspicious document.
Inform the attorney in charge of the case of your suspicions and suggest an appropriate course of action.
The next two suggestions are always in order; three and four should be considered.
1. Obtain a competent document examiner to verify or allay your suspicions. Do so promptly! Do not play document examiner yourself; the work requires extensive knowledge of many things and years to master.
2. Amend the clients claim to include new damages arising from any false document put forth by the opposing party.
3. Examine under oath or depose the person involved.
4. If appropriate, press criminal charges for forgery, fraud, perjury or other criminal act involved.
Getting Case Information From The Internet
Riverside county has started a new program to get information on cases directly from the internet. You can get minute orders, case prints and other information. You can use a name check or case number check to trace the case down. It is for all courts in Riverside County.
The web site is at:
www.co.riverside.ca.us/depts/courts
Please feel free to use it for information. You can get the notes (minute orders) made by the court clerk. You can see a list of all the documents filed and what has happened in the case (case print). You cannot see the actual documents filed or get the court reporters transcripts of the proceedings.
Instructions when at the web site:
· Go to the above web site
· Double click on "case information" at the top of the middle row
· Near the bottom double click on "Court Case Information" OR go to the navigation instructions at the bottom if you think you may need help
· Choose civil or criminal and double click
· At the top drop down menu choose the type Riverside Court
· Type "guest" in operator code box, then click "log on"
· Search whatever you choose (name, case number, etc.) The easiest way as of 10-29-02 is to do a "Master Name Search"
Los Angeles county has something similar to this. As of 12-09-2002 you can just do a search by case number. The location is:
Unusual Laws
The below are taken from various books written by Dick Hyman, Robert Pelton and others. If you are interested contact a book store. Some of the laws may be out of date. However they do reflect our society and the attitudes of our society. Most of the below are from a book copyrighted in 1949 by Dick Hyman. Friends and co-workers may be interested in this. Why not pass it on to them?
· Unusual laws in the District of Columbia follow:
· It is against the law to eat while driving a car on the streets of Washington.
· Along the Washington waterfront, the law says that skippers must remove their boats within five days after they sink.
· All taxicabs must carry a broom and shovel.
· You cannot pawn a wooden leg.
· It is against the law to fasten a horse to a tree.
· In Anacostia, chickens are not allowed as pets, or to be raised.
· It is the law that if you have lost more than $26.67 in any fair game you can sue the "lucky" winner for the amount lost.
· It is against the law for a person to collect bird's eggs without a permit.
· It is against the law for parents to allow children under age 14 years to be employed as either a rope walker or an acrobat or a contortionist.
· It is against the law for property owners to have weeds more than four inches high.
· It is illegal to flick ashes from your cigarette into the Potomac River.
· It is illegal to enter a public vehicle by way of the rear or middle door.
· No Latin or French may be spoken by judges in the courts.
· It is illegal to repair an automobile on a public highway.
· It is against the law for any grocer to sell kerosene after dark.
· It is against the law for small boys to throw stones any time and any place.
· It is unlawful to table hop in night clubs
· You can't milk a cow unless a three legged stool is used.
· A man may not engage in a pugilistic encounter with a bull.
· It is against the law to play cards in a park.
· You can't fly parachutes over Washington.
· Snipe hunting is illegal
· It is illegal to throw anything into the river.
· A law states it is illegal for any person or persons, "within the District of Columbia, to throw any stone or other missile in any street, avenue, alley, road or highway, or open space or public square."
·
Pedestrians who leap over passing autos to escape injury, and then
strike the car as they come down, are liable for any damage inflicted on
the vehicle.
If
you know anyone with family law questions please mention this site to
them. If you live in or your case is in the Inland Empire of Southern California
please call for a free consultation at 951-247-1977. Thank you. www.BlaisAtty.com
HOW TO KEEP THE HOME AND MAKE THE PAYMENTS ON THE HOUSE WHEN YOUR INCOME IS LOW.
There are no magic answers. Below are just some suggestions and things to keep in mind. The below points are in no special order. They are just things to keep in mind in deciding if you want to keep the home or not.
There is another option that is the Family Use of Home Award in which the house stays in joint names for a period of time. Usually till the last child reaches the age of 18. There are problems involved in such an order. Some of the problems are, maintenance on the house, remarriage or when someone moves into the house, insurance and paying the debt on the house, decisions to sell and the amount.
· Realize that usually most of the payments on the house are taxes and interest which are tax deductible.
· If there is extra room look into renting a room out to someone. There are ads in the newspaper and other places for rooms for rent. Usually the rent has the utilities as an extra expense.
· Doing a home business like child care can be an income help.
· Foster care for minor children for extra income.
· A board and care home for aged or handicapped people.
· Use one of the bedrooms for a home office for extra income.
· Raise AKC dogs in the backyard for extra income
· Have foreign students in the house for extra income
· Students from UCR may rent rooms for extra income.
· Always find out what a rental would cost. It could be that the lower rental value is not justified when the tax aspects of the house are figured in. Figure how many bedrooms the rental would have to have.
· Keep in mind that if worse comes to worse, you can just stay in the house and not make payments. Eventually you will be evicted when foreclosure proceedings take place. This would do damage to your credit rating.
· Having relatives, grown children and other move in may save money.
· Be as creative as possible in trying to keep the home.
· Keep in mind that if the house is sold or deeded over to someone else your income may not be enough to get a loan for another home.
· Buy a book on having a home office.
· Contact relatives who may help you with the home payments. Offer to put them on the deed if necessary.
· Realize that when you own the house it if more difficult to get up and move clear across the state or country if another opportunity comes up.
· You may have bad feelings and bad memories about the house.
· As a single person if all the neighbors are married you may feel isolated
Often it happens in a dissolution that there is an issue about one party taking assets, hiding assets or on reimbursement of separate property used to pay community debts. These are the most common. There are many others.
It is key to get documentation as to where the money or asset went. Usually assets and monies in accounts leave a paper trail as to where they have been. Deposit records, canceled checks, checking account statements, withdrawal forms, etc.
Here are some tips as to finding the "paper trail"
1. We basically want to show that a certain item of property, usually money in a check, securities or whatever, went from one place to another. There are usually documents of some sort when large items of money or valuable property goes from one place to another. These documents showing the transfers or movement of the items is referred to as a "paper trail."
2. Photocopies are perfectly adequate. The bottom line is that you do need some sort of piece of paper showing the existence of the transaction or whatever. Just knowing what happened to it is not usually enough. We must be able to show with a business or transaction record what happened to it.
3. Be creative in spotting the paper trail. As an example $3,457.43 was taken from a bank account and another account shows that $3,257.43 was deposited into it. This may show that this is the same money and the person doing it just took out $200 in cash since the other figures are identical.
4. Keep record or a diary of any money transactions. Even if it was in the past and there is no record. A declaration concerning the incident can be made. "The most faded ink is better than the best memory." It is also more believable than the best memory.
5. The absence of a record can often be used to prove the matter. If there should have been a business record of some sort and there is none it may be used to prove the event did not happen or was covered up. EC 1272
6. Even if a certain document does not exist it may be proven by a reply to the document that does exist even though it has been lost. EC 1420
7. Do not rely on a subpoena to get documents. It is much easier and faster if you can get the documents themselves. If a business says they will send a document or records ask them for a letter or fax saying so. At the very least get the name of the person you are dealing with and write it down with the time, date and phone number you called.
8. Credit card statements usually show what the debt was made for, where it was spent and how much it was for.
9. Banks can make copies of canceled checks that went through their bank long ago. Records may be kept for years.
Even if the record is confidential often a written release can be made authorizing the information to be released.HOW TO FIND YOUR SPOUSE AND OTHER MISSING PEOPLE
Sometimes your spouse or someone may be missing. You want to find them. The below are suggestions on finding a missing person. You can hire a private investigator also but the below is a good start and will not cost that much money.
LOCATING A MISSING PERSON (Much of this relates to finding hidden assets also). SOME OF THE ADDRESSES AND PHONES MAY BE OBSOLETE. THE ADDRESSES AND PHONES ARE CONSTANTLY CHANGING.
· Sometimes you may not know where your spouse or someone is located. It is a help to contact relatives and friends as to his or her location. Voter registration lists are used to find someone by name, city, zip code, date of birth, post office box (if applicable) and party affiliation. Other data may be confidential. The Registrar of Voters for Riverside is at 1260 Palmyrita Avenue (this office will soon move) (1-800-773-8683 or 951-275-8700). The office provides information over the phone and has a computer for use of people making inquiries.
· The California Department of Motor Vehicles has a form called “Driver License/Identification Card Record Request”. You fill this out and they run a check on where your spouse is at. You generally need the legal name and the California drivers license number OR the date of birth. Notice will be sent to your spouse of this request for information. Your spouse must state reasons why the information should not be released. The bottom line is that your spouse will know your are looking for him or her. You may also be able to request vehicle registration records.
· The Parent Locator System has both a State of California section and federal system. The basic function is to locate parents not paying support. You may only use the state parent locator system through the District Attorney. Also keep in mind that only the State Parent Locator System can request information from the Federal Parent Locator System. You should contact the District Attorney to utilize the parent locator system. The District Attorney will help even if you don’t use other District Attorney services.
· It is a help to have as much information about your spouse as possible. In case your spouse suddenly disappears you want to be able to find your spouse. Present and past names, date of birth, social security number, drivers license number, vehicle license number, names and addresses of relatives or friends or any other methods to trace a person. Don’t forget a simple thing like a photograph, groups or organizations that the spouse may be interested in, etc.
· The State of California Offices maintain records on people employed in many professions. If the business your spouse is in requires state licensing for anything the chances are good that the State of California has an address. You may have to call or write Sacramento to get this information.
· Be sure to contact family members, friends and enemies of your spouse for information as to location. Former employers can be a good source of information. Prospective employers often request references from previous employers. Therefore, a former employer is in the unique position of having future employers of your ex check with him as a reference. If possible, stop by to see him or her and while there talk to your ex’s old fellow workers. People who once worked together often keep in touch for years afterwards, and you may find that they can tell you exactly where your ex is at. If your spouse is involved in a special hobby there may be an organization that has records on your spouse. High schools and colleges may have reunions. You ex will want to go to his reunion and check with the old high school to see if he or she will be there. College placement services for employment may be a source of information.
· The Fictitious Business Name Index for Riverside County provides the business address and names of all partners. It has the address of the owner. The address cannot be a post office box. The index lists when the business started. You can call for information at (951) 275-1996. They will not provide information over the phone. You can go there and search or do a request by mail. The office is at 3470 12th Street in Riverside. It is right next to the new bankruptcy courts. It also has the marriage license bureau and passport office.
· Telephone “criss-cross” directories will give you a telephone number if you have the address, or vice versa. You can also call directory assistance for the area code you think the person is in and simply ask for the name. If it is a listed phone number you can get the number.
· In a previous divorce case there should be information on what property your spouse received in the prior divorce. If the party has been sued or sued someone in the past there may be valuable records at the courthouse. At the criminal courts you can obtain criminal case records. Usually for criminal records you need the persons name at least. It is a help to have a date of birth also.
· The local post office will give a person’s forwarding address for a small fee ($3.00). This assumes that the person has filed a change of address form with the post office. If a change of address form has been filed the Postal Service will release the persons new address to people who send that person mail at the old address, for up to 18 months, if the sender specifies “address correction requested” on the envelope of the letter sent.
· If you think your spouse may be in State prison you can call and get information on if he or she is a prisoner and when released as well as what crime he or she was sentenced for. This only applies to the California State Prison system. For women call (909) 597-1771. For men call (916) 445-6713. For information on federal prisons anywhere in the United States you can write to: U.S. Bureau of Prisons, Western Regional Office, Crocker Financial Bldg. 5th Floor, 330 Primrose Road, Burlingame, Cal. 94010 (This Federal address is a bit old. You may cross check it).
· The Social Security Office (Phone 1-800-772-1213) in Riverside is at 1860 Chicago Avenue , Suite G-13, Riverside, Cal. They also have an office at 1655 East Sixth Street in Corona, Cal. They can look up anyone by their social security account number (SSAN). They can just punch in the SSAN and come up with who employees the person with that SSAN. The problem is that they will not tell where or who they work for. They will forward mail to the person with that SSAN. This method is useful to contact a person who wants to be in contact with you for whatever reason.
· The District Attorney has the “parent locator service”. This uses the SSAN of someone to locate them. Only the District Attorney can use this. The District attorney can also revoke the drivers license of someone behind in child support. If the person is licensed like a contractor, attorney, medical doctor, barber or other licensed person the license can be revoked for failure to pay child support. Usually the District Attorney is the one authorized to do this.
· Marriage certificates are usually filed in the County Clerk ’s office where the marriage application was filed and in the State Registrar’s office in Sacramento. An index is available to the public. It contains the bride and groom’s names, the county where the application was filed and the date of the marriage.
· In California a couple may file for a confidential marriage certificate which is not placed in the index and is not a public record. A confidential marriage license is open only to the bride and groom or by court order.
· You can find property records at the tax assessor’s office. An easier way is to call a title company. They will provide the information over the phone on real estate owned in most counties in California . Litigation records may be in court files.
· The Polk Directory, if maintained by the public library, lists every United States resident by county, with address, telephone number and occupation. There are CD-ROM programs that provide this information.
· For additional information on birth, death and marriage certificates, contact: Office of State Registrar, Department of Health Services, 304 “S” Street, P.O. Box 730241, Sacramento, CA 95814-0241. Telephone: (916) 445-2684 (recorded message).
· You can call the Coroners Office of San Bernardino County at 909-387-2978. They have a computerized list of people who have died in their county. There is no charge and you can get the information over the phone. Riverside County call 951-358-5068. That office has death records in Riverside County for 1996 to date. They charge a small fee for the service. For death records prior to 1996 call 951-486-7000.
· Other documents and records you feel may be helpful to our office in this case.
LOCATING MISSING PERSONS LIST
The below is taken from a list of what to check for in locating a missing person. Much of it is a repeat of the above but it still may be a help.
1. Go to the person’s last know address.
2. Check with the current occupant and the neighbors.
3. Find friends, family and relatives.
4. Ascertain all jobs for the last ten years; check with the employers and other employees.
5. Use post office tracers, letters; ask postman.
6. Check voter registration; registrar of voters.
7. Utility companies: electric , gas and telephone.
8. Credit reference bureaus, such as TRW.
9. Business license and other licenses.
10. New spouse and children.
11. Department of Motor Vehicles: license, violations, registration and vehicle ownership.
12. Social Security.
13. Girlfriend or boyfriends.
14. Police department; crime reports. See criminal courts.
15. Recorders office: ownership of property or conveyances.
16. Court recorders: purchases or sales, etc.
17. Immigration office
18. Accident report.
19. Telephone books and city directories.
20. Advertise: use major and local newspapers; leaflets, notices at neighborhood supermarket, etc.
21. How did the person move: moving van (check with moving company) car (friends car? check with the friend). Which way did they go? How many articles?
22. Vital statistics.
23. Usual places of hang out and visitation (clubs, gym, bars, etc.)
24. Insurance companies.
25. Secretary of State of California for corporation information.
HOW TO FIND DOCUMENTS AND ASSETS WHEN THE OTHER SIDE MAY BE HIDING ASSETS
Please keep in mind that in court it is a help to have the actual documents to prove the case. Having actual statements on assets or debts from the business itself is of great benefit. If you cannot get the original then photocopies should be adequate. SOME OF THE ADDRESSES AND PHONES OF WHERE TO GET INFORMATION MAY HAVE CHANGED. THEY ARE CONSTANTLY CHANGING.
1. If your spouse has not appeared in the action we will need his or her description for a process server. A recent photo along with physical description and type clothes worn. Include the type car your spouse drives, color and license plate number. The home and work phone of your spouse as well as the home and work address. Suggestions on the best time and place to make service of the documents.
2. Copy of deed to house and any other real estate. Try and get copies of any loan documents. If you cannot get a deed to the house the attorney often can. It is easier if you can get one. The deed is necessary in case there is any conveyance of the house or encumbrances on it. Deeds are made out in legal description and not the street address. It would be easier to get a “Market evaluation on the home and a sellers proceeds statement” (along with a “Property Profile” also called a "Comparative Marketing Analysis") from a Realtor. There is no cost for this. You might call two or three Realtors to do one. The Realtor has the title company do most of the work. The Realtor should not charge a fee for this. This is much less expensive than having a formal appraisal done on the home. Please ask the Realtor to state what he or she feels is a “fair rental value” as well as the “walk away” proceeds on the house if it were sold. Don’t forget copies of any debts on the house or real estate. If possible try to get purchase documents on the realty such as FHA or escrow company closing statements. Get information on any time share interests or other realty interests.
3. If you think your spouse may own realty in another county that you don’t know about or your spouse has kept secret from you there is a way to check. Call a title company for that county. They are able to search their computer for names and/or addresses of property. The name of your spouse may show up. The title company can do the same thing if you know an address but are unsure of who owns the title to the realty. The title company for that county can check it. When you call ask for the “title information” desk. Use tact in dealing with the title company. They are not obligated to do this. If one will not do a search then call another. Be very frank about the reason you are checking.
4. If you want to find the purchase price of a piece of realty look at the Grant Deed. Somewhere at the top of the Grant Deed is stamped and filled out a Documentary Transfer Tax. This is a fee paid to transfer property based on the price paid for the property. The tax is computed one of two ways, in either A or B below:
A. The tax charged is $1.10 per thousand dollars of the full value of the property, less liens, mortgages and encumbrances remaining at the time of the sale. This is true thruout Riverside County . However in Riverside City the Tax is $2.20 per thousand dollars. Usually the mortgage or trust deed will be recorded immediately after the deed itself. However there may be a prior trust deed recorded on the realty. AS AN EXAMPLE: If $5.50 is indicated as the Documentary Transfer Tax on the grant deed. Take the amount of $5.50 (or whatever it shows) and divide it by $1.10, which in our example is 5. Then multiply 5 times $1,000 (each $1.10 paid is for $1,000 of purchase money), which equals $5,000. Assume you have found a prior trust deed recorded for $32,000. That is the mortgage on the property. If you take the $5,000 you computed above and add it to the $32,000 owed on the mortgage, you know he or she paid $37,000 for the property. For property in Riverside City you would use $2.20.
B. Or the tax is charged at $1.10 per thousand dollars of the full value of the property sold, if there are no liens or encumbrances (mortgages) assumed. Once again in Riverside City the rate is $2.20 per thousand dollars. AS AN EXAMPLE: In this situation the Documentary Transfer Tax is much larger and there is no trust deed recorded. $55.50 is indicated as the amount of Documentary Transfer Tax paid on the Grant Deed. There are no Trust Deeds recorded in your ex’s name. Divide $55.50 by $1.10. The answer is 50. Multiply 50 times $1,000 and you get a purchase price of $50,000, and you know he or she paid cash for it.
5. Any information on pension or retirement plans. This includes IRA’s, SEP’s, 401 (k) plans, regular retirement or pension plans, stock options, annuities, savings plans, bonus plans, thrift plans, vacation pay and any other form of deferred or fringe benefit. These are an often over looked asset and can be valuable. The fact that the party has only worked at the employment a short time and that it is not “vested” is not important. Please get information on any and all plans. Any loans on the plans are important also. Try to get the actual statements. Call the company payroll and/or benefit department to request information. The union may have information. Try to get a description (usually a booklet) on the plan and any other benefits. Try to get the most recent statement from the plan or from the employer, the name, address and phone number of the plan trustee or administrator.
For general questions about pension rights you can contact the Pension and Welfare Benefits Administration at 790 E. Colorado Blvd., Suite 514, Pasadena, Cal. 91101. If you are not sure about which company is responsible for the pension because of a corporate takeover, you can contact the federal government’s Pension Benefit Guaranty Corporation, which has a special office to help workers, their spouses and other beneficiaries trace the pension plans that have been closed, taken over by a federal agency or otherwise transferred. Write to the: Pension Benefit Guaranty Corporation, Missing Participant Program, 1200 “K” Street N.W., Washington DC 20005
6. Pay stubs of both you and your spouse. Evidence of income is very important. You should try to get the last three pay stubs if possible. Also try to get the last three years tax returns. Often people who are self employed will make money “under the table”. Try to get any credit applications they may have made, profit and losses from businesses, evidence as to lifestyles indicating income and other evidence.
7. Get copies of the last three years tax returns. Tax returns are signed under penalty of perjury with governmental agencies and as such are significant documents. It is also of value to compare what is reported on the tax returns with that which is reported as an expense on the Income and Expense Declaration and other financial statements. You can get copies of your past tax returns by filling out a Form 4505 (IRS) and a Form 3516 (CAL ). You can call the IRS at 1-800-829-3676. You can call the California State Franchise Tax Board at 1-800-338-0505 to get the forms. You may also get the forms from your accountant or tax preparer.
You can also get past tax returns from the IRS office at 290 North "D" Street, San Bernardino, CA 92401. They will provide a print out back to 1994 and forward. To get there take the 215 north and exit on 2nd Street, east on 2nd to "D" Street and left on "D". Be prepared for a wait. Take a numbered ticket. Have picture identification so they will know who you are. They will give you a print out of your tax returns back to 1994 right then and there from their computers.
8. Also try to get records of all other income (with associated expenses) from sources other than mentioned above. For example, worker’s compensation, disability income, trusts, social security and scholarships.
9. The fictitious business name statement index is kept in the county offices and can have information in it. They are indexed by both business name and the holder of the fictitious name.
10. The county tax assessor will have information on property that people are paying taxes on. In general people do not pay property taxes on property in which they do not have an interest.
11. If the other party is self employed gather information as to income from the business. Profit and loss statements, balance sheets, checking account statements, appraisals on the business or other indications of income from a business. The California Contractors License Board may have information that could be useful. Look them up in the phone book.
In court self employed people may try to make themselves out to be as poor as possible. Loan application statements may be a help. Often people will put their income as being very low on court documents and on tax returns yet state their true income on loan applications for credit cards, lines of credit and other loan application forms. Keep copies of the loan applications.
If the self employed person is living well in a new house, new car, expensive vacations, etc., this is all evidence the self employed persons income may be higher than the tax return indicates. The attorney does have a “Business Entity Document and Information checklist”. This covers very large businesses as well as smaller ones. If you feel it may be helpful ask the attorney for a copy. The code is F-3 “business”.
If you want to know where the business has a checking account at you can write the business a check. When the check is returned look at the back as to which bank it was deposited in.
Often the costs of auditing a small business can be quite high. A way to short circuit this expense is to contact a disaffected employee who formerly worked for the owner of the business. A disaffected employee is a current or former employee who is under less than friendly terms with the employer spouse. Usually the disaffected employee has been fired or has been terminated and has negative attitude to the employer. It is best for a spouse to make the initial contact of the disaffected employee. People are frequently afraid of attorneys The former employee may have all kinds of information that may be useful in finding assets and true income. The former employee may not have to testify and may remain anonymous. It is the other information about true income or assets of the business owner that he has that can be used to find other information that is key.
12. Any trust deeds you may have. Often people sell a previous home and “take back a second”. That is to say the new owners will pay them money for the home on a monthly basis over a period of time.
13. Vehicles. Get the year, make, model and other information. Try to get the mileage of the vehicle. Motorcycles, campers and vans are included here. Know the license plate number if possible. Write down the mileage. Have the loan related documents and purchase documents which should include present balance and monthly payments. You can usually get this from the lender. Purchase or lease documents, amount of current monthly payment (if any), ownership and/or registration documents. In reference to vehicles and boats DMV has special forms for vehicle or boat (vessel) transfers of ownership. The DMV office has these forms. You may want to find the new owner of a vehicle or boat.
Motor vehicle registration records can sometimes provide lien holder information. This is an excellent way to identify banking relationships.
14. Boats. Year and type boat, model, etc. Know the registration number if possible. Contact a boat dealer to find the value. Don’t forget the value of the boat trailer.
15. Airplanes. Year, type, model, etc. Contact a dealer to find a value.
16. Bonds. Whose names are the bonds in? Is there a payable on death clause? What is the present cash value? Your local bank branch should have Savings Bond redemption tables available for your use. Give them a call. Or you may get your own by calling the Federal Reserve Bank of Kansas City at (800) 333-2919. This number is valid only for the residents of the central and western United States. It’s lines are staffed from 6 a.m. to 3 p.m. Monday through Friday. You may also write for a copy of the table at: Treasury Department, 200 3rd St. Parkersburg, West Virginia, 26101 . The easiest way is to simply call your bank.
17. Life Insurance. Include both “Term Insurance” that usually has no cash in value as well as “Whole or Universal Life” that usually has a cash in value. Try to get copies of the actual policies. Also get copies of health, disability or other insurance policies on your or your spouse. Your insurance agent should have access to this information. Get documents showing premium payments, cash value (if any) and coverage or benefits. The policies may be on yourself, your spouse and/or the children. Get the name of the agent (if known), the address and telephone number of the agent. Any up to date or most recent date policy statement if available. Find out if any prepayments were made on insurance policies. Prepayment can be made on most whole life or universal life insurance policies. These policies are interest bearing just like a savings account. The deposits do not show up on records anywhere except inside the insurance policy itself.
Even if the life insurance policy is term insurance it may be of future interest. One spouse may have an insurable interest and keep the premiums up in case of the death of the party paying child or spousal support.
18. Bank savings and checking accounts. Try to get the actual monthly or quarterly statements with the account numbers. Are the accounts in anyone else’s name? Include Money Market accounts and Certificate of Deposit accounts and any long term accounts. Try to get them for the last twelve months, especially the month of separation. Check registers, statements, passbooks or other documents indicating the names in which the accounts are held and the balance in each account at the date of separation and at the present time. If you have the account number, most banks will provide this information over the phone on their 24-hour computer lines with the telephone. Call the banks for this phone number. When contacting banks or other places that have accounts it is a help to know your spouses mothers maiden name, date of birth, PIN number, secret number or codes, social security numbers, account numbers and any other information. Something that may be a help is to write a check to your spouse. When your spouse cashes or deposits the check it will probably be at their bank. Look on the back of the check and it will tell you where your spouse has their checking or savings account at.
You can talk to the spouse’s friends, business associates, landlord or others who deal with the spouse as to where the checking or savings account is at.
If you subpoena any documents or serve a restraining order on a bank you can have it on any and all accounts with his or her social security number. This would not be possible if there is a tax payer identification number which may be different from a social security number. Usually a tax payer identification number is just where there is a business.
19. Often there are various social security benefits. The rights of a former spouse are rather involved. There is a pamphlet No. 05-10084, entitled, “Survivor’s Benefits”. You can get the booklet by calling (800) 772-1213.
It may be a help to know what your personal earnings and benefits are. Call social security for the application form to obtain “Your Personal Earnings and Benefit Estimate Statement”. The basic toll free information number for social security is 1-800-772-1213. The Social Security Office (Phone 1-800-772-1213) in Riverside is at 1860 Chicago Avenue, Suite G-13, Riverside, Cal. They also have an office at 1655 East Sixth Street in Corona, Cal. You can go to those places personally and get “Your Personal Earnings and Benefit Estimate Statement.”
20. Tax refund information. If you received a tax refund in previous years you may also receive one this year. Try to get copies of tax returns going back three years. Call your tax preparer for copies or see the above on contacting IRS or the State of California for copies.
21. Tools or computers. Some people collect tools that fill their entire garage. Take photos if there are many tools. Not individually but one side of the garage and the other. This is to get a photographic inventory of the tools. Know any information on the computer or the software that may make it valuable.
22. Stocks and Mutual Funds. If you can get the actual certificates fine. However any account statements are usually as good. List all the stocks owned at separation including the number of shares, corporation name, present value, broker and certificate number. Your broker should have most of this information. Records on other types of investments such as limited partnerships. If you know the name of a mutual fund but are not sure of the phone number simply call 1 (800) 555-1212 and ask the directory assistance. This is because most funds have toll free numbers. If you are not sure of a name or cannot find a phone number several directories can be found in local libraries or bookstores.
23. Household Furnishings, Fixtures and Appliances. Know the major items of furniture. The brand names of stereos, TV’s and major appliances. If you feel the other party may take things, take photos of the entire household and the garage. Use a simple camera with negative film. Do not use a VCR or motion picture camera. Stand in one corner of a room and take a photo. Then stand in the other corner and do the same. Do this to every room and the garage. If gives a photo inventory of the household furnishings and the contents of the home. Have any appraisals on the furnishings or contents of the home done for insurance purposes.
24. Hobbies. Coin collections, Stamp collections, Baseball cards, Plate collections, Photo gear. Any information on hobbies that may be valuable.
25. Pets. Mention only those where there will be an ownership issue or where they are valuable on the open market. Examples might be an AKC registered dog or horses.
26. United States Government patents, copyrights or trademarks.
27. Books written or records or tapes made, whether published or not.
28. Information on any business partnerships or businesses that either of you may be involved in. Formal partnership agreements, business licenses, profit and loss sheets, incorporation documents, etc. Any financial statements in reference to the business. Company brochures and advertisements or other documents that indicate the status of the company in the industry (For example: “We are #1 in sales in Southern California”).
29. Legal Actions. Are either of you suing someone else? Contact the attorney who is representing you for more information.
30. Accounts receivable. Does anyone owe either of you any money? Did either of you lend any money or property to a friend, relative or neighbor that has not been repaid. If you don’t have the copies of the loan documents the person who owes the money should have a copy.
31. Did either of you help put the other through school in the past? Payments for tuition, books and other direct educational expenses.
32. Debts. Try to get the last twelve months statements for every debt that is still outstanding, whether you or your spouse actually incurred the debt. This includes credit cards, bank loans, charge accounts, car loans, mortgages, life insurance loans, personal loans and any other debt that is not a monthly living expense. You can get statements from the creditors directly by calling them. Try to have statements indicating the amount due at separation, the amount due at present and the current required minimum monthly payment.
33. Inheritance or personal injury monies. Documents related to any inheritance or personal injury awards received by you and/or your spouse during the marriage. Include the disposition of the funds.
34. Any interlocutory or final decrees or judgments received from any prior marriages or any other orders regarding the prior marriage of either you or your spouse.
35. Documents indicating the amount of money or property you or your spouse may have had prior to the marriage which was later invested in community assets. Examples might be a home or down payment for a home or an auto owned prior to marriage which was traded in for a newer auto after the date of marriage. Documents which can trace these funds into assets currently held of either you or your spouse.
36. International asset locating and recovery. Best call: International Research Group, Inc., 700 E. Palmetto Park Road, Boca Raton, FL 33432 Phone: 561-347-0588. Fax 561-347-7308. Web site: http://members.aol.com/IRGGLOBAL.
37. Any papers which may have been served on your by your spouse’s attorney or agent.
38. An inventory of the contents and location and number of any safe deposit boxes. The location of the keys to the box.
39. If we are succeeding another attorney, all correspondence and documents exchanged between you and your former attorney.
40. If you are a student and seek spousal support, most recent transcripts or summary of grades received and classes taken, as well as any items relevant to your career planning.
41. If you or your spouse are seeking a job, please provide relevant notes and correspondence.
42. Documents indicating possible mis-uses of community assets. For example: gambling, hidden assets, incurring debts by taking a friend of the opposite sex to Las Vegas or money or gifts given to another (all of these must have been incurred before the date of separation).
43. Records of opinions, diagnoses, bills and other substantiation of health problems (including medical, dental, orthopedic and psychological), creating partial or total disability or special needs for financial support or insurance for either you or your spouse or any child of either of you.
44. Any pre-marital or post-marital contracts or deeds between you and your spouse whether now in force or revoked.
45. Records of loans for third parties or businesses on which either party has co-signed.
46. Information on any privately held corporations in which either spouse is a principal
47. Look for assets being transferred to relatives, business or trust entities or friends. Also look for off shore or Swiss bank accounts.
48. UCC (Uniform Commercial Code) financing statement records are a help and will identify the debtor's lenders ands specify the collateral used to obtain the loans.
49. Stock or stock option holder. Please provide the corporate minutes, articles, by-laws and share certificates.
50. The probate index at the courthouse. This lists all probate cases started in the county. If the debtor has an unusual last name, it may lead to the discovery of a future inheritance or executor's fee to be derived from an existing probate estate.
51. Secretary of State. Corporate records maintained by the Secretary of State will reveal whether the judgment debtor is a principal in any corporation. Limited partnership interests, limited liability partnerships interests and limited liability company interests are also filed with the Secretary of State. The UCC-1 index may reveal another business the debtor owns and other judgments against the debtor when another creditor has filed a personal property lien (UCC J-1). The main phone is 916-653-6814. The also have an internet site at www.ss.ca.gov
52. State Board of Equalization. Any resale permits held by the judgment debtor. This may leads to other businesses owned by the judgment debtor.
53. Any property division and other proposals, recent or otherwise, set forth by either you or your spouse or a third person.
54. Wills, trusts and estate planning documents for either you or your spouse, whether in force or revoked.
55. Look for paper trails. Credit card statements follow us around the world. Like an expense account, a credit card statement lists where we eat and make purchases. Phone records can develop leads. Cellular and mobile phone records should not be overlooked. Remember that standard phone records only record long distance calls, but mobile phone records document all calls both local and long distance for billing purposes. Passport stamps may show trips to the Cayman Islands, Bahamas or to Switzerland which may have hidden bank accounts. By documenting withdrawals from bank account and timing these with trips to foreign countries, you can often discover and document off-shore fund transfers. Hotel records of bills at the hotel will include any long distance phone calls made from a room. Those calls may list business associates, out of town banks or other financial institutions.
56. Records of any lawsuit or legal proceeding in which either party has been involved during the marriage. The best place to look is the county courthouse where the divorce was granted. You may contact both the criminal and civil courts. Past divorce cases your spouse was involved in frequently have information on assets. Another option is to write: STATE OF CALIFORNIA, Vital Statistics Branch, Department of Health Services, 410 N Street, Sacramento, Cal. 95814. They will have marriage records going back to 1905.
57.
The internet has many data bases. There are patent records,
import-export records, professional and business licenses, newspapers, UCC
records and sometimes the courts will have the court records there.
Frequently these records are not free.
If
you know anyone with family law questions please mention this site to
them. You might encourage them to call their other friends about the
information on this site. If you live in or your case is in the Inland
Empire of Southern California please call for a free consultation at
951-247-1977. Thank you. www.BlaisAtty.com
I KNOW MY EX-SPOUSE IS LIVING WITH SOMEONE. DO I STILL HAVE TO PAY SPOUSAL SUPPORT?
If you are paying spousal support and your former spouse is living with someone in a romantic relationship there is a remedy. Family code section 4323, which is printed below, is the remedy. Although it says “person of the opposite sex” the courts generally consider gay or lesbian relationships to the same as living with a person “of the opposite sex”.
Currently courts are more concerned with whether the person the other is living with is contributing to the expenses of the home and family. That is, is the person the other is living with, helping to pay for the mortgage or rent, food, utility bills and other costs of living.
FAM §4323. Modification When Party Cohabiting With Person of Opposite Sex
(a)(1) Except as otherwise agreed to by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex. Upon a determination that circumstances have changed, the court may modify or terminate the spousal support as provided for in Chapter 6 (commencing with Section 3650) of Part 1.
(2) Holding oneself out to be the husband or wife of the person with whom one is cohabiting is not necessary to constitute cohabitation as the term is used in this subdivision.
(b) The income of a supporting spouse's subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.
(c) Nothing in this section precludes later modification or termination of spousal support on proof of change of circumstances. [Added 1992 ch. 162, operative January 1, 1994; amended 1993 ch. 219]
WHAT EVIDENCE TO GATHER:
First of all the other party may admit that they are living in a romantic relationship with a member of the opposite sex. They would be especially foolish to deny this if the children knew of it and they forced the children to testify.
A private investigator could be hired to stake out the home and see who comes and goes and how long they stay. The private investigator will usually cost between $500 to $800. This can be very expensive. Other, inexpensive, methods are:
1. Admissions the party may make.
2. The fact that they both use the same address
3. The fact that they both use the same phone number
4. Both their voices are on the answer tape.
5. They are both on a joint savings or checking account. Look for checks and checking account statements in the trash. Marriage of Bower, filed 3-4-02
6. Check with the registrar of voters on if both are registered at the same address.
7. Check with a title company if one or both owns the home they are in.
8. Check with other people in the area who would know.
9. Do they take vacations together.
10. Gift giving between one and the other.
11. If there is a car in the driveway belonging to the other person mark its tire with chalk in the evening and see if is still there in the morning. Record all this. Do this two or three days one week and then two or three days the next week. Record all the information. Try to observe and describe the person getting in or out of the car and describe that person in writing.
12. Sometimes they will say that one is renting from the other. Ask for canceled checks. They may produce rental receipts. They can be made up the night before. If the rental receipts are spaced out with different numbers ask who the others were for.
13. Does the other party claim the alleged rental income on their taxes or not.
14. The above is just a starting off point. Be creative in looking for evidence they are living together on a romantic basis.
If you know anyone with family law questions please mention this site to them. You might, in turn, urge them to call others that they know to see this site and for a free consultation. If you live in or your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. Thank you. www.BlaisAtty.com
IS THE BABY REALLY MINE? BLOOD TESTS (DNA) TO DETERMINE PATERNITY
This is a general introduction to DNA (deoxyribonucleic acid) tests to determine paternity.
C.C.P. 2032 provides for blood tests to determine paternity. The blood sample affidavit is provided for in Evidence code section 712. Most information on blood tests to determine paternity is found in Family Code section 7540 and following. The codes refer to “blood tests” or "genetic tests". Today DNA is used as the standard test. The codes have kept the same “blood test” designation. Please realize that even though the codes may refer to “blood tests” or "genetic tests" the actual test used today is almost always DNA.
In reading the following keep in mind that different labs may use different procedures.
The most common form of blood test now is the DNA test to determine paternity. This is a very brief introduction to that test.
The DNA paternity test is based on the fact that each child’s unique genetic blueprint is stored in material known as DNA. This DNA, which determines characteristics such as eye color and blood type, exists in two sets. One set of DNA is inherited from the mother and one from the father. By comparing the DNA patterns, the experts can either include or exclude an alleged father as being the father of the minor child.
DNA tests can be used to determine a number of things besides paternity. It can also be used to test maternity (who the mother is), grandparentage test, sibling relationships, missing family members, identical or fraternal twins and paternity determination of deceased alleged father (genetic reconstruction from the living relatives).
Since DNA is contained in every nucleated cell of the body, sampling is relatively simple procedure. In fact, analysis requires only a small quantity of either blood or tissue cells. Buccal cells, most commonly used tissue cells are collected with a soft item and blood cells by routine veinpuncuture. Such small amounts required make it possible to test babies, even newborns, safely. Moreover, the fact that the sample need not be collected at the same time or in the same place greatly simplifies scheduling.
The laboratory procedure is based on the use of DNA probes. Each probe is a small segment of DNA developed specifically for use in testing. The particular patterns of an individual probe enables it to link up with and identify specific segments of DNA from each sample, facilitating comparison of the mother’s, child’s and alleged father’s DNA. After the first probe is applied, the process if repeated using another probe which identifies a different pattern, By using several probes, it is possible to achieve very high levels of exclusion or probability of paternity. In fact, with just two probes the average can exceed 99.0%.
SOME FREQUENTLY ASKED QUESTIONS
· Why use DNA analysis? DNA is the most powerful identity test currently available for paternity testing.
· How accurate is the test? Over 99% of falsely accused men will be excluded by these tests. If not excluded, a probability of paternity greater than 99.0% will be reported.
· Who needs to be tested? The ideal test will be performed with specimens from the Mother, the Child and the Alleged Father. However, testing can be performed with specimens from the Child and the Alleged Father only.
· Can testing be performed if one of the parties resides in another city or state? Yes.
· How soon are the results available? 4 to 6 weeks.
· Can results be available quicker? Yes, but the price is greater.
· How soon can I get an appointment? It varies with different testers.
· What is the minimum age of the child to be tested? There is no minimum age. Prenatal or neonatal testing is available.
· Do I have to have a doctor’s order? No.
· Do I need an attorney and/or court order? No.
· Can the testing differentiate identical twins? No, by definition they are “identical”. Testing can differentiate fraternal twins and related individuals.
· Must the samples be drawn at the same time? No.
· Can an accurate test be performed without the mother’s sample? Yes.
· Can an accurate test be performed if the alleged father is deceased? Yes.
· Are results confidential and is the chain of custody maintained? Yes. Results are mailed to the adults tested or their attorneys.
· What type of samples are required? Whole blood and tissue such as Buccal cells are the most widely used samples.
· Can DNA testing differentiate related individuals? Yes. The laboratory must be made aware of the relationship before testing begins.
· Can DNA be changed? Yes and no. DNA from tissue calls can’t be changed. DNA from peripheral blood can be changed with a bone marrow transplant. Drugs, alcohol, or diet will not affect the test.
· Does insurance or Medicare of Medi-Cal cover the cost of testing? Generally, no. However there may be some exceptions. Check with your carrier.
A company that provided most of this information has a toll free number. Call 1-800-DNA-TEST. (1-800-362-8378).
There is another company that cost less. It is Genetica DNA Laboratories, Inc. Their phone is 1-800-IDENTITY or 1-800-433-6848. Their internet E mail address is: http://www.genetica.com
The Family Court Mediation Service has two on its list. You may call the mediation office for more information at: 951-275-6985. It is usually best to call the mediation office since you want to be sure the testing service results will be accepted in court.
They
are:
* LONG BEACH
GENETICS,
2384 E. Pacifica
Place, Rancho Dominquez,
CA 90220
- 310-632-8900,
800-824-2699
* GENETIC DESIGN, 7017 Albert Pick Road, Greensboro, NC 27409 (Testing is done locally in Riverside ), 910-688-3210, 800-247-9540, 910-665-3993 (fax)
HOW WILL WE DIVIDE OUR HOUSEHOLD FURNITURE AND FURNISHINGS?
One issue which is within the control of the parties to a dissolution of a marriage more than any other is the valuation of the household effects, furnishings and appliances. There is nothing that runs up the attorney’s fees more needlessly than this aspect of the case.
Why is this so much of a problem? Although you know what you purchased the furniture for, you also realize that it depreciates rather rapidly after you leave the store with it. Usually neither of the parties, and neither attorney, has any real solid idea of the value of the items. If you ask a used furniture man to come into your house and give you a “lot” sale value, he’ll probably give you five cents on the dollar. If you take the items, piece by piece, and sell them a garage sale, you will probably achieve a value somewhat near to the fair market value of these items. But, who wants to go to this trouble, when each party is going to need some of these items to “start up” with again?
As a preliminary note the court usually sets values on assets at the “sale” price and not the price it would take to purchase the item. This is the fair market value that the courts use it the court has to value the item. You might ask yourself what the price for this item would be at a garage sale. There are exceptions to this that are noted in the following.
So, what shall we do?
1) The easiest is for the parties to agree to an equal division of the community household furniture and appliances. It would be listed as to what each would take.
2) Another approach is for one of the parties to draw up two lists (or piles) of the furniture as to what he or she feels is an equal division. The other party then gets first choice on which list (or pile) to take. This goes back to the old concept mom had that your brother could cut the piece of pie in half but you would have first choice as to which half you wanted. It forces the party making up the list to be fair.
3) List each and every item of household effects, furnishings and appliances. Make two complete lists. One list of the items that are in your possession and one list of the items that are in your spouse’s possession. Don’t list every pot and pan, etc. unless there are some exceptionally expensive items. Usually these are simply listed as “cooking utensils”. You may, however, want to list the power appliances used in the kitchen.
a) After each item set a value. What value do you place after the item? The value at which you would either be willing to take the item (as a credit against your share of the community property), or give the item to your spouse. In short, let’s say you are trying to set down a value for a refrigerator. If you put down $200, then this means two things: (a) you will be willing to accept the refrigerator for a charge against your share of the community assets for $200, or (b) you will be willing to give the refrigerator to your spouse for exactly that price, for a charge against his or her share of the community property. For example, you are in a position to avoid all argument. Your position is; “Look, this is the price. I’m not arguing whether the price is fair.” This means that you don’t make the mistake of valuing the refrigerator at only $50 because you think you’re going to get it. If the court should award the refrigerator to your spouse, you would not be very happy. Accordingly, you value each item as a “give or take” price. This is similar to a “buy-sell agreement” in the business world.
i) If your original values on this “give or take” price are good, we can probably avoid the alternative procedures set forth in the below paragraph. Moreover, if your original figures are good, I can guarantee you that the attorney’s fees for this divorce will be considerable less than if we have to go to court and fight over each item.
4) If, for some reason the above does not work there are some alternatives.
a) One is to simply sell all the furniture and appliances and divide the proceeds.
b) Another is to make a list of all items of household effects, furnishings and appliances. Flip a coin to see who goes first, and then alternately you and your spouse choose one item from the list. By this method, the items are approximately evenly divided.
The third method is for you and your spouse to bid on each item. Let’s say that we are concerned, again, with the refrigerator. You may bid $100, and your spouse may bid $200, and you make no further bid. In that case, your spouse gets the refrigerator and is credited with $200 towards his or her share of the community estate. The figures, after the bidding procedure, are then totaled up, and then it can be determined if one party owes the other party something, because of a an unequal division.
FINAL NOTES
If we end up going to trial over the issue of valuing household effects, furnishings and appliances, the court may require that we have appraisers come in to testify, which will also run up the costs of your case.
If an item was purchased with funds that a party had before marriage, or with funds that were a gift to a party, or if an item of property was given to a party during the marriage, it is separate property. This often includes gifts from one party to the other during the marriage.
In cases where children are involved, please consider their furniture, toys, bicycles, camping equipment and other sports equipment to be theirs. Those items should go with the children, and whichever party has custody of the children would not be charged with the value of those items (See FC 7502).
Theoretically, each wedding gift given to the couple is half hers and half his as community property. Although the law would call for an equal division of wedding gifts the parties may agree that each keeps those items given by his or her family and friends.
Family Photos and slides should be divided according to preference. Those photos desired by both parties may be duplicated at the expense of both parties.
Things that neither party wants can be disposed of in several ways: garage sale (split the proceeds), donation to a worth cause (split the tax credit), or by dividing them equally according to value.
CONCLUSION
Before you begin, carefully plot out the method you will use so that there will be no misunderstandings. If extraordinary values are involved, check with this office. If you are able to complete the process without substantial attorney time, you will have saved yourself substantial fees and freed your attorney to work on more demanding and complex issues on your behalf.WHAT ABOUT MY HEALTH INSURANCE BENEFITS AFTER THE MARRIAGE IS OVER? (INFORMATION ON COBRA BENEFITS)
COBRA is an acronym for Consolidated Omnibus Budget Reconciliation Act. It is a federal law that was passed in 1986. This federal law generally just applies to employers with 20 or more employees. Cal-COBRA mentioned below is for smaller employers. COBRA provided that terminated employees or those who lose coverage because of reduced work hours may be able to buy group coverage for themselves and their families for a limited period of time. If the individual is entitled to COBRA benefits, the health plan must give notice stating the right to choose to continue benefits provided by the plan. There is a limited time to accept COBRA coverage. If it is not exercised in time the party will lose all rights to benefits. Once COBRA coverage is chosen the party may be required to pay for the coverage. In 1994 the time period was 60 days to accept COBRA coverage or lose all rights to benefits.
COBRA contains provision giving certain former employees, retirees, spouses and dependent children the right to temporary continuation of health coverage at group rates. This coverage, however, is only available in specific instances. Group health coverage for COBRA participants is usually more expensive than health coverage for active employees, since usually the employer pays a part of the premium for active employees while COBRA participants generally pay the entire premium themselves. It is ordinarily less expensive, though, than individual health coverage.
“Qualifying events” are certain types of events that would cause, except for COBRA continuation coverage, an individual to lose health coverage. Divorce or legal separation of the covered employee is one of the qualifying events. As of 1994 the ex-spouse has coverage of up to 36 months on COBRA. Plan administrators, upon notification of a qualifying event, must automatically provide a notice to employees and family members of their right to elect COBRA coverage. The notice must be provided in person or by first class mail within 14 days of receiving information that a qualifying event has occurred.
Beneficiaries may be required to pay the entire premium for coverage. The premium cannot exceed 102 percent of the cost to the plan for similarly situation individuals who have not incurred a qualifying event. Premiums reflect the total costs of group health coverage, including both the portion paid by employees and any portion paid by the employer before the qualifying event, plus two percent for administrative costs.
As the law stands now the person who wants COBRA coverage has 60 days from the date of entry of the final judgment to give written notification to the administrator of the insurance plan that the divorce or legal separation has occurred, and then you may be entitled to continued coverage. You, the person who wants the coverage, are responsible for notifying the insurance carrier. It does not happen automatically. You must notify the insurance carrier within the 60 day limit or lose your entitlement to these benefits. You should make a copy of the letter you send to the insurance carrier for your personal records.
To summarize, there are two important functions which you must perform with regard to your continued COBRA benefits. First, you should confirm coverage under your spouse’s group plan just prior to entry of judgment. Second, you must notify the insurance company of the termination of your marital status (entry of judgment) within sixty days of the entry of such judgment.
The information in this sheet on COBRA coverage may be out of date. You should call the health insurance plan you have know to find out more information. If further information on election or notification rights with a private sector plan write: United States Department of Labor, Pension and Welfare Benefits Administration, Los Angeles Area Office, 790 East Colorado Blvd., Suite 514, Pasadena, Cal. 91101.
For further information you can also contact the Employee Benefits and Exempt Organizations Division, Office of Chief Counsel, Internal Revenue Service, 1111 Constitution Avenue N.W., Washington, DC 20224 (attention: CC:EBO, 5214). You can also call (202) 622-6000.
CAL-COBRA
California has instituted a COBRA like plan. It requires that health plans offer to continue the group coverage of employees and dependents of small employers with 2-19 eligible employees who would otherwise lose coverage because of a "qualifying event." Under Cal-Cobra the notification process for continuation of benefits is up to the party to notify the health carrier. Further information on Cal-COBRA is at Health and Safety Code section 1366.20 and following and Insurance Code section 10128.50 and following.
MY SPOUSE WAS ORDERED TO PAY A COMMUNITY DEBT. WHAT WILL HAPPEN IF MY SPOUSE DOESN'T PAY THAT DEBT?
This is a common situation. Often the debt is in both parties names (such as a credit card debt). One party may be ordered to pay the particular debt in the dissolution judgment. If that party who is ordered to pay the debt does not do so the creditor can sue either or both parties if the debt was in joint names. Obviously if the debt is just in one persons name the creditor can just sue that one party. However, in many marriages the credit cards and other debts are in both parties names.
If your spouse was ordered to pay a joint name community debt and does not pay it you may be sued for the debt. It will probably do no good to go into court and tell the judge that, as per the judgment of dissolution, your spouse was ordered to pay that debt. If the debt is in both your names the judgment can be against both of you and usually is. The fact that there is a "hold harmless clause" in the judgment that the spouse getting the debt will hold the other harmless from the debt is no defense. (We still urge you to try to get the lender to get the money from the other party. Send a copy of the judgment that the other party was to pay. Some lenders will accept this.) The creditor can still collect from the other party if it is a joint debt. Your remedy is to wait till the money has been garnished from your pay or you have paid it under the judgment. Once the money has been paid for the debt go back into the family law court and ask the judge to order your spouse to reimburse for the money you had to pay when your spouse was supposed to pay for it.
The going back to court and getting an order for reimbursement is something you generally want to avoid. It is costly and time consuming. In addition you may have problems getting the money from your former spouse. The order for reimbursement will not be for child or spousal support. This means it is just like a money judgment. Usually you cannot get a wage assignment for a regular money judgment as easily as you can with child or spousal support.
Another result is that your credit history may be hurt because your spouse has not paid the debt.
On the bottom of the judgment there is a notice that states: "A debt or obligation may be assigned to one party as part of the division of property and debts, but if that party does not pay the debt or obligation, the creditor may be able to collect from the other party." This was put on the bottom of all judgments because it is such a problem.
Are there ways to prevent this from happening? The most secure option is for you to take all the bills and make sure they are paid off. Of course, you would receive more than half of the community assets to make up for the community bills being paid. Just having confidence that your spouse will pay the bills ordered is a big help. Keep in mind your spouse will also be sued and your spouse's credit history will also be injured. A joint bankruptcy is another option.
There are special rules for if your spouse goes bankrupt on the debts your spouse is ordered to pay.
Division of community debts is covered in Family Code section 2600 through 2627. If the community estate is "upside down" when there are more community assets than debts there is a special rule. Family Code section 2622 (b) allows the court to award the debts to the party most likely to have the ability to pay. However, usually Community Property debts are divided one half each.
FINDING INFORMATION ON TRUE INCOME OF THE SELF EMPLOYED
The below is just a guideline only. There may be other ways. These are just suggestions to help you at. The critical factor is that often the self employed don’t state their true income on tax returns.
· Be careful if you file a joint tax return. You may be committing tax evasion by filing a joint tax return with someone who does not state their correct income.
· Look for the average of earnings from the past years.
· Refer to what a person in a similar occupation with a similar number of years of experience would make. You can check the Bureau of Labor Statistics Web site on this at www.bls.gov
· What has the person said they made to other people? He or she may have bragged to others on their earnings. Try to contact past employees, etc.
· Look to the life style. Does he or she have a new car, take vacations and travel, have a new house, flashy clothes or whatnot.
· Whenever there is a loan there is almost always a loan application form. This may state the income of the self employed person.
· If real estate was purchased or a loan taken out on realty look for the loan application. Frequently a high income is stated for the self employed to get the loan.
· Credit card statements. Often a person seeking credit will overstate his or her income on the application hoping to get credit.
· Look for "life style analysis" if they claim very low income and still have a high expense life style.
· If the person is self employee see "4tax" for analyzing a tax return. The below is from the section on the self employed from 4tax:
a) Schedule C will tell the investigator of the taxpayer’s success of failure as a sole proprietor. He will also be able to discover the name of the business and its location. He will see what the taxpayers makes, deals in or what service he provides. The depreciation computation on the back of the Schedule should be studied too. It should provide the investigator with a basis for measuring the value of the fixed asset used in the business and hence a hint as to its value. Schedule C will also list depreciation which can be added in on the Dissomaster under “other nontaxable” income.
b) Sole proprietorships are on an accrual or cash basis. Accrual means that income is treated as in full existence even if not yet received. It is easier to hide true income in an accrual basis. Cash basis is very common in service businesses or professional practices. Look at schedule item F on schedule C which is “Profit or loss from business”.
· More information on schedule C
a) Schedule C does not include an asset and debt balance sheet. No indication of assets, liabilities and net worth.
b) Look for "lifestyle analysis" for when claims of income are very low and level of spending high.
c) Look for employee benefits that may be for a relative. This is from line 14
d) Line 16 see mortgage interest. The home may be listed here. Also look for loan applications on any debts incurred like a mortgage.
e) Look for the business paying for attorney fees in the dissolution case.
f) If property in line 20 is being leased from a friend it may be at discount. Contact realtors on going rates for leases of that type.
g) Look for friends and relatives on the payroll who do not really work there. This is in line 26. Also payments may be made to friends and relatives.
THE CHILDREN ARE WITH ME NOW AND I THINK IT IS BEST THAT THEY STAY WITH ME MOST OF THE TIME. DO YOU HAVE ANY SUGGESTIONS?
· Advice to clients: When you see mediator you should:
a) Say "our" children or "our" child. Not "my" child, etc.
b) Stress what is best for the children and not what you want
c) Have a parenting plan for the other to visit, etc.
d) Stress positives of yourself more than the negatives of the other party.
The following are suggestions to the client involved in a contested custody case. Always remember that there may be a change in custody in the future and therefore, the following suggestions should be taken into consideration.
These suggestions are made for the present and future benefit of your children and the goal should always be to improve the children's life and to better provide for their needs. You should not expect to accomplish all these suggestions in a week or a month. We encourage you to supplement this list with items which you find appropriate, and in the best interest of the children. Write these down on the back of these pages as they come to your attention. Do it when the thoughts enter your mind and then, periodically, read again this entire list of suggestions.
Remember: everything you do or do not do as a parent may have an effect on your children and their future. All you can do is try to act in the children's best interest as you should always do.
FOR THE PARENT SEEKING TO CONTINUE AS THE PARENT WITH PRIMARY PHYSICAL CUSTODY:
If you already have physical custody, then the burden will not be quite as heavy, but you still will be required to show the kind of care, custody and attention you have and are giving to your children and that your children will be better off being with you most of the time.
1. This office has information on children and custody (kids). Ask the attorney for this. This office also has information on mediation. It is on the process of mediation (med) and what you should know for the mediator (kidsm). Ask the attorney for this.
2. Prepare a detailed list of logical, factual, and provable reasons why there should not be a change in custody. Make an orderly itemization of all reasons why it is more beneficial for the children to remain where they presently reside and include in this list factual reasons why the other parent should not be granted custody. After preparing this list, check and recheck it to ascertain if in fact you are providing, on a daily basis, the advantages you claim - if not, do so! Next, add to the bottom of this list the names and addresses of all witnesses who can and will testify or make a declaration as to these facts. Doing this is most important insofar as the court is concerned. It has to be seen and noticed by others and they have to be willing to come to court and testify as to the good care, love, supervision, discipline and devotion of time provided by you for the children
3. Make a list of the playmates and close fellow classmates, together with their ages, who play or have played with or have close association and ties with the children and include all the school, social and church activities and organizations the children participate in and the frequency of these activities. Be prepared to show the disruption which would occur in the life of the children should there be a change of custody.
4. Take photographs of the home where the children live, their play area (yard), the living quarters (inside and out), the neighborhood in general, the parks in the area, the school, etc. Be prepared to show and prove that these surroundings are beneficial for the children.
5. Obtain a copy of the children's health record from the attending physician and have this medical expert be ready to make a declaration as to the health care the children receive, if necessary.
6. Have, maintain and show an open healthy attitude toward visitation for the other parent. The children need the love of both parents and your own attitude in this respect is important to the children and will be noted and given weight by the court. Above all, do not frustrate visitation by the other party.
7. In addition, your own emotional and physical health is an important factor which will be considered by the court. It is therefore, most important for you to be composed and in full control at all times and to be able to prove your maturity, responsibility and control
8. As a follow-up on the above, your outlook on life, your philosophy of living, and your sense of values, together with your ability to live a reasonably "normal" and hopefully most happy life and to provide a reasonable happy home atmosphere are other items which will be looked for by the court. Your zest for living and for life and your ability to adjust to the demands of life are important parts of this whole picture we are attempting to paint for the court.
9. Up to this point nothing has been specifically mentioned about material matters (money). This has been on purpose. Of course, there must be sufficient funds and support available to adequately provide shelter, food clothing, some recreation and some small luxuries. These things are deemed but the mere fact that one parent can "outdo" the other in this area is not the sole test or a deciding factor. Keep in mind that child support can be used to help out the custodial parent. The other items listed and suggested herein are also important. A balance is what is sought and desired. Remember, you need dollars but you cannot buy happiness for the children.
10. Discipline is also very important. Saying "yes" all the time would be just as wrong as saying "no" consistently. So long as you are consistent, reasonable, and fair, discipline at the right time for the right reason is not only important but also vital.
11. What about your needs? These also have to be considered. The court will recognize that as a human being you too have needs. It is how you fill these needs that is important. In short, do not ever forget that your first duty and responsibility should be to adequately provide for the children's security, safety, and the necessities of life. However, as an adult, you should be capable of and are required to intelligently make sure that your own needs are fulfilled. You are able to be a better parent when you are also enjoying life and are not hostile toward or frustrated with the world and life in general.
12. At the end of this are the suggestions for parents who do not have primary physical custody. They want to change the situation and have primary physical custody. The suggestions to them are in "bullets" for your information. Many of the suggestions for parents seeking custody are similar, as you can see. ABOVE ALL DO NOT TRY TO ISOLATE THE CHILDREN FROM THE OTHER PARENT. A NEGATIVE APPROACH LIKE THAT WILL FAIL. INSTEAD BE AS CLOSE TO YOUR CHILDREN AS POSSIBLE.
We hope the above suggestions will serve as a starting point for your never ending study of how to become a better parent. Keep in mind that you will always be a parent and, as such, are vital to your children and their future development.
THE BELOW IS THE "OTHER SIDE OF THE COIN" AS TO WHAT THE OTHER PARENT WILL BE LOOKING TO. IT IS ADDED HERE FOR YOUR INFORMATION.
FOR THE NON-RESIDENTIAL PARENT SEEKING CUSTODY
· Exercise your visitation right to the maximum. See, visit, and really get to know your children. Study the real needs of your children and really listen to what they have to say and, equally important, what they are not saying. Do not pry or attempt to become a private investigator and do not talk disparagingly of or belittle the other parent. Enjoy the time you spend with the children and allow them to enjoy you.
· Start and keep a diary of events in order to remember and be able to point out dates, witnesses, facts, etc., when necessary.
· Study and learn from your study how to be a better parent. Begin by selecting, from the bookstore or library, one or two books on child care, child raising, and parenthood. You can subscribe to Parent's Magazine or other specialized publications. Read all you can on the subject of children, children's development, parenting and how to be a good parent. If a class or study course in the general area becomes available, attend it. The local library has excellent books on developing parenting skills.
· Attend the church, mosque or temple activities of your choice. Become active in the affairs and social activities of your religious group. Get to know and be known by those who do actively participate. Take the children with you to these activities whenever possible. If you are not religious then look to civic activities with youth.
· Devote part of your spare time to civic activities and work with youth groups such as the Boy Scouts, Girl Scouts, Little League, Campfire Girls, YMCA or group sports for children. Make your contributions to these or other worthwhile organizations and groups. Actively participate and get to know your children and how they play, develop and grow. Became a student of children and learn from them.
· If the child is sickly or his or her grades are down in school get copies of the medical records or the school records if you cannot get them from the custodial parent. Get the records only if you feel that the parent with custody is not caring for the child or the child's grades are down because of the custodial parent. You have a right to these even if you don’t have primary custody. Family Code section 3025 says so. It is printed below:
FAM §3025. Access to Records and Information
Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent. [Added 1992 ch. 162, optve. January 1, 1994.]
· You should consider joining one or more organizations such as Parents Without Partners or some similar group whose objective is to assist individuals who are parents but not living with the other parent. Find a person or group with whom you can talk and discuss your feelings, frustrations and problems without embarrassment.
· Work up a plan as to how you would provide care, love, guidance and meet the needs of your children if you should be awarded primary physical custody. Examples: Where the children would live, their daily routine, who would care for them when not in school and when you are not physically present; educational and recreational plans; work out visitation plans with the other parent (be flexible in your thinking and planning); develop a workable, reasonable and logical daily routine for the care of your children and if possible, point out how your plan, care and attention to the needs of the children is better than the existing one and how it will be better and more beneficial for the children in the future.
· Work up a list of relatives, close friends and neighbors who will actively assist you in providing for the needs of the children. Enlist these people and involve them with you and the children. Have your children get to know these people and establish and nourish a real meaningful relationship between the individuals, the children and yourself. This must be a real thing. The children know who is and is not interested in them. Remember, it is the children's welfare that is at stake and the object is what is in the best interest of the children.
· Make sure the physical facilities of your home are totally adequate for the children. Try to step outside yourself and view the situation from a neutral vantage point. Look at it with a critical eye to be able to realize where improvements and changes are needed and make them. A clear and well organized home is necessary. The children must have adequate shelter, food and around the clock care, attention, love, supervision and discipline.
· Develop common interests with your children. Become a part of, share, and enjoy their world with them. Do not forget their birthdays, Christmas and other special occasions which mean so much to children. It is not just gifts, but it is also the giving of yourself and your home. Be a real parent and be interested in their school work, outside school activities, their sports, clubs, organizations, friends and their plans for the future.
· Make a study of schools your children would be attending if living with you. Know and familiarize yourself with bus services or other transportation, etc. and have a general knowledge of this important area of your children's development.
· Obtain names, addresses and phone number of friends, relatives, neighbors, bosses, fellow employees, and others who would be willing to testify or make a declaration as to your character, behavior patterns, reputation, responsibility and fitness as a parent. You will need to discuss this frankly with each of these people. Give this law office their names, addresses and a brief statement as to what they are able and willing to testify to in the actual court hearing of your case or in a declaration for the court.
· You need to honestly prepare a statement of constructive criticism of the parent having primary physical custody. Be fair, accurate and put down facts and circumstances that can be proven or on which proof could be obtained. This is a list of why a change in custody is necessary. This should be detailed and should be in readable form. You should forward the list to this office as soon as possible.
· During the time the children are with you, try out and put into effect all you have learned about being a better parent. Get to really know your children. Observe how you and they interact with others, including friends, relatives, the neighbors, and even strangers. Find out if you really believe you can do a better job as a parent and custodian that is being or has been done by the other parent.
· Have, maintain and show an open healthy attitude toward visitation for the other parent when you have custody. The children need the love of both parents and your own attitude in this respect is important to the children and will be noted and given some weight by the court. Above all, do not frustrate the other parent's bond with the children.
· In addition, your own emotional and physical health is an important factor which will be considered by the court. It is therefore, most important for you to be composed and in full control at all times and to be able to prove your maturity, responsibility and control
· As a follow-up on the above, your outlook on life, your philosophy of living, and your sense of values, together with your ability to live a reasonably "normal" and hopefully most happy life and to provide a reasonable happy home atmosphere are other items which will be looked for by the court. Your zest for living and for life and your ability to adjust to the demands of life are important parts of this whole picture we are attempting to paint for the court.
· Up to this point nothing has been specifically mentioned about material matters (money). This has been on purpose. Of course, there must be sufficient funds and support available to adequately provide shelter, food clothing, some recreation and some small luxuries. These things are deemed but the mere fact that one parent can "outdo" the other in this area is not the sole test or a deciding factor. Keep in mind that child support can be used to help out the custodial parent. The other items listed and suggested here are also important. A balance is what is sought and desired. Remember, you need dollars but you cannot buy happiness for the children.
· Discipline is also very important. Saying "yes" all the time would be just as wrong as saying "no" consistently. So long as you are consistent, reasonable, and fair, discipline at the right time for the right reason is not only important but also vital.
· What about your needs? These also have to be considered. The court will recognize that as a human being you too have needs. It is how you fill these needs that is important. In short, do not ever forget that your first duty and responsibility should be to adequately provide for the children's security, safety, and the necessities of life. However, as an adult, you should be capable of and are required to intelligently make sure that your own needs are fulfilled. You are able to be a better parent when you are also enjoying life and are not hostile toward or frustrated with the world and life in general.
OUR CHILDREN ARE WITH THE OTHER PARENT MOST OF THE TIME. I FEEL THEY WOULD BE BETTER OFF BEING WITH ME MOST OF THE TIME. DO YOU HAVE ANY SUGGESTIONS?
· Advice to clients: When you see mediator you should:
a) Say "our" children or "our" child. Not "my" child, etc.
b) Stress what is best for the children and not what you want
c) Have a parenting plan for the other to visit, etc.
d) Stress positives of yourself more than the negatives of the other party.
The following are suggestions to the client involved in a contested custody case. Always remember that there may be a change in custody in the future and therefore, the following suggestions should be taken into consideration.
These suggestions are made for the present and future benefit of your children and the goal should always be to improve the children's life and to better provide for their needs. You should not expect to accomplish all these suggestions in a week or a month. We encourage you to supplement this list with items which you find appropriate, and in the best interest of the children. Write these down on the back of these pages as they come to your attention. Do it when the thoughts enter your mind and then, periodically, read again this entire list of suggestions.
Remember: everything you do or do not do as a parent may have an effect on your children and their future. All you can do is try to act in the children's best interest as you should always do.
FOR THE NON-RESIDENTIAL PARENT SEEKING CUSTODY
1. This office has information on children and custody (kids). Ask the attorney for this. This office also has information on mediation (med). It is on the process of mediation and what you should know for the mediator (kidsm). Ask the attorney for this information.
2. Exercise your visitation right to the maximum. See, visit, and really get to know your children. Study the real needs of your children and really listen to what they have to say and, equally important, what they are not saying. Do not pry or attempt to become a private investigator and do not talk disparagingly of or belittle the other parent. Enjoy the time you spend with the children and allow them to enjoy you.
3. Start and keep a diary of events in order to remember and be able to point out dates, witnesses, facts, etc., when necessary.
4. Study and learn from your study how to be a better parent. Begin by selecting, from the bookstore or library, one or two books on child care, child raising, and parenthood. You can subscribe to Parent's Magazine or other specialized publications. Read all you can on the subject of children, children's development, parenting and how to be a good parent. If a class or study course in the general area becomes available, attend it. The local library has excellent books on developing parenting skills.
5. Attend the church, mosque or temple activities of your choice. Become active in the affairs and social activities of your religious group. Get to know and be known by those who do actively participate. Take the children with you to these activities whenever possible. If you are not religious then look to civic activities with youth.
6. Devote part of your spare time to civic activities and work with youth groups such as the Boy Scouts, Girl Scouts, Little League, Campfire Girls, YMCA or group sports for children. Make your contributions to these or other worthwhile organizations and groups. Actively participate and get to know your children and how they play, develop and grow. Became a student of children and learn from them.
7. You should consider joining one or more organizations such as Parents Without Partners or some similar group whose objective is to assist individuals who are parents but not living with the other parent. Find a person or group with whom you can talk and discuss your feelings, frustrations and problems without embarrassment.
8. Work up a plan as to how you would provide care, love, guidance and meet the needs of your children if you should be awarded primary physical custody. Examples: Where the children would live, their daily routine, who would care for them when not in school and when you are not physically present; educational and recreational plans; work out visitation plans with the other parent (be flexible in your thinking and planning); develop a workable, reasonable and logical daily routine for the care of your children and if possible, point out how your plan, care and attention to the needs of the children is better than the existing one and how it will be better and more beneficial for the children in the future.
9. Work up a list of relatives, close friends and neighbors who will actively assist you in providing for the needs of the children. Enlist these people and involve them with you and the children. Have your children get to know these people and establish and nourish a real meaningful relationship between the individuals, the children and yourself. This must be a real thing. The children know who is and is not interested in them. Remember, it is the children's welfare that is at stake and the object is what is in the best interest of the children.
10. Make sure the physical facilities of your home are totally adequate for the children. Try to step outside yourself and view the situation from a neutral vantage point. Look at it with a critical eye to be able to realize where improvements and changes are needed and make them. A clear and well organized home is necessary. The children must have adequate shelter, food and around the clock care, attention, love, supervision and discipline.
11. Develop common interests with your children. Become a part of, share, and enjoy their world with them. Do not forget their birthdays, Christmas and other special occasions which mean so much to children. It is not just gifts, but it is also the giving of yourself and your home. Be a real parent and be interested in their school work, outside school activities, their sports, clubs, organizations, friends and their plans for the future.
12. Make a study of schools your children would be attending if living with you. Know and familiarize yourself with bus services or other transportation, etc. and have a general knowledge of this important area of your children's development.
13. Obtain names, addresses and phone number of friends, relatives, neighbors, bosses, fellow employees, and others who would be willing to testify or make a declaration as to your character, behavior patterns, reputation, responsibility and fitness as a parent. You will need to discuss this frankly with each of these people. Give this law office their names, addresses and a brief statement as to what they are able and willing to testify to in the actual court hearing of your case or in a declaration for the court.
14. You need to honestly prepare a statement of constructive criticism of the parent having primary physical custody. Be fair, accurate and put down facts and circumstances that can be proven or on which proof could be obtained. This is a list of why a change in custody is necessary. This should be detailed and should be in readable form. You should forward the list to this office as soon as possible.
15. During the time the children are with you, try out and put into effect all you have learned about being a better parent. Get to really know your children. Observe how you and they interact with others, including friends, relatives, the neighbors, and even strangers. Find out if you really believe you can do a better job as a parent and custodian that is being or has been done by the other parent.
16. Have, maintain and show an open healthy attitude toward visitation for the other parent when you have custody. The children need the love of both parents and your own attitude in this respect is important to the children and will be noted and given some weight by the court. Above all, do not frustrate the other parent's bond with the children.
17. If the child is sickly or his or her grades are down in school get copies of the medical records or the school records if you cannot get them from the custodial parent. Get the records only if you feel that the parent with custody is not caring for the child or the child's grades are down because of the custodial parent. You have a right to these even if you don’t have primary custody. Family Code section 3025 says so. It is printed below:
FAM §3025. Access to Records and Information
Notwithstanding any other provision of law, access to records and information pertaining to a minor child, including, but not limited to, medical, dental, and school records, shall not be denied to a parent because that parent is not the child's custodial parent. [Added 1992 ch. 162, optve. January 1, 1994.]
18. In addition, your own emotional and physical health is an important factor which will be considered by the court. It is therefore, most important for you to be composed and in full control at all times and to be able to prove your maturity, responsibility and control
19. As a follow-up on the above, your outlook on life, your philosophy of living, and your sense of values, together with your ability to live a reasonably "normal" and hopefully most happy life and to provide a reasonable happy home atmosphere are other items which will be looked for by the court. Your zest for living and for life and your ability to adjust to the demands of life are important parts of this whole picture we are attempting to paint for the court.
20. Up to this point nothing has been specifically mentioned about material matters (money). This has been on purpose. Of course, there must be sufficient funds and support available to adequately provide shelter, food clothing, some recreation and some small luxuries. These things are deemed but the mere fact that one parent can "outdo" the other in this area is not the sole test or a deciding factor. Keep in mind that child support can be used to help out the custodial parent. The other items listed and suggested here are also important. A balance is what is sought and desired. Remember, you need dollars but you cannot buy happiness for the children.
21. Discipline is also very important. Saying "yes" all the time would be just as wrong as saying "no" consistently. So long as you are consistent, reasonable, and fair, discipline at the right time for the right reason is not only important but also vital.
22. What about your needs? These also have to be considered. The court will recognize that as a human being you too have needs. It is how you fill these needs that is important. In short, do not ever forget that your first duty and responsibility should be to adequately provide for the children's security, safety, and the necessities of life. However, as an adult, you should be capable of and are required to intelligently make sure that your own needs are fulfilled. You are able to be a better parent when you are also enjoying life and are not hostile toward or frustrated with the world and life in general.
23. At the end of this sheet is information for parents who have present primary physical custody and want to keep it. The sheet is in "bullets" and is for your information. As you can see much of the information is similar. ABOVE ALL DO NOT TRY TO ISOLATE THE CHILDREN FROM THE OTHER PARENT. A NEGATIVE APPROACH LIKE THAT WILL FAIL. INSTEAD BE AS CLOSE TO YOUR CHILDREN AS POSSIBLE.
We hope the above suggestions will serve as a starting point for your never ending study of how to become a better parent. Keep in mind that you will always be a parent and, as such, are vital to your children and their future development.
THE BELOW IS THE "OTHER SIDE OF THE COIN" AS TO WHAT THE OTHER PARENT WILL BE LOOKING TO. IT IS ADDED HERE FOR YOUR INFORMATION.
FOR THE PARENT SEEKING TO CONTINUE AS THE PARENT WITH PRIMARY PHYSICAL CUSTODY:
If you already have physical custody, then the burden will not be quite as heavy, but you still will be required to show the kind of care, custody and attention you have and are giving to your children and that your children will be better off being with you most of the time.
· Prepare a detailed list of logical, factual, and provable reasons why there should not be a change in custody. Make an orderly itemization of all reasons why it is more beneficial for the children to remain where they presently reside and include in this list factual reasons why the other parent should not be granted custody. After preparing this list, check and recheck it to ascertain if in fact you are providing, on a daily basis, the advantages you claim - if not, do so! Next, add to the bottom of this list the names and addresses of all witnesses who can and will testify or make a declaration as to these facts. Doing this is most important insofar as the court is concerned. It has to be seen and noticed by others and they have to be willing to come to court and testify as to the good care, love, supervision, discipline and devotion of time provided by you for the children
· Make a list of the playmates and close fellow classmates, together with their ages, who play or have played with or have close association and ties with the children and include all the school, social and church activities and organizations the children participate in and the frequency of these activities. Be prepared to show the disruption which would occur in the life of the children should there be a change of custody.
· Take photographs of the home where the children live, their play area (yard), the living quarters (inside and out), the neighborhood in general, the parks in the area, the school, etc. Be prepared to show and prove that these surroundings are beneficial for the children.
· Obtain a copy of the children's health record from the attending physician and have this medical expert be ready to make a declaration as to the health care the children receive, if necessary.
· Have, maintain and show an open healthy attitude toward visitation for the other parent. The children need the love of both parents and your own attitude in this respect is important to the children and will be noted and given weight by the court. Above all, do not frustrate visitation by the other party.
· In addition, your own emotional and physical health is an important factor which will be considered by the court. It is therefore, most important for you to be composed and in full control at all times and to be able to prove your maturity, responsibility and control
· As a follow-up on the above, your outlook on life, your philosophy of living, and your sense of values, together with your ability to live a reasonably "normal" and hopefully most happy life and to provide a reasonable happy home atmosphere are other items which will be looked for by the court. Your zest for living and for life and your ability to adjust to the demands of life are important parts of this whole picture we are attempting to paint for the court.
· Up to this point nothing has been specifically mentioned about material matters (money). This has been on purpose. Of course, there must be sufficient funds and support available to adequately provide shelter, food clothing, some recreation and some small luxuries. These things are deemed but the mere fact that one parent can "outdo" the other in this area is not the sole test or a deciding factor. Keep in mind that child support can be used to help out the custodial parent. The other items listed and suggested herein are also important. A balance is what is sought and desired. Remember, you need dollars but you cannot buy happiness for the children.
· Discipline is also very important. Saying "yes" all the time would be just as wrong as saying "no" consistently. So long as you are consistent, reasonable, and fair, discipline at the right time for the right reason is not only important but also vital.
· What about your needs? These also have to be considered. The court will recognize that as a human being you too have needs. It is how you fill these needs that is important. In short, do not ever forget that your first duty and responsibility should be to adequately provide for the children's security, safety, and the necessities of life. However, as an adult, you should be capable of and are required to intelligently make sure that your own needs are fulfilled. You are able to be a better parent when you are also enjoying life and are not hostile toward or frustrated with the world and life in general.
WAGE ASSIGNMENTS ON THE SELF EMPLOYED
Wage assignments are orders for Child Support or Spousal Support that are served on the employer. The money is taken out of the pay and mailed directly to the person entitled to receive the Child Support or Spousal Support. This is much more reliable than having the party pay. The checks don’t bounce and, once they start arriving, they are not late.
When a person is self employed it is more difficult. They usually won't take the money out of their own pay to pay to the person entitled to the support.
There is a possible remedy. You can serve the wage assignment on the places where the self employed person does business. They will send the money to you. If there are many places he or she does business with this is hard to do. However when the person to pay support only deals with four or five businesses it is a lot easier. This assumes he is paid by these businesses for work he did.
FAM §5206. Earnings
"Earnings," to the extent that they are subject to an earnings assignment order for support under Chapter 4 (commencing with Section 703.010) of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure, include:
(a) Wages, salary, bonus, money, and benefits described in Sections 704.110, 704.113, and 704.115 of the Code of Civil Procedure.
(b) Payments due for services of independent contractors, interest, dividends, rents, royalties, residuals, patent rights, or mineral or other natural resource rights.
(c) Payments or credits due or becoming due as a result of written or oral contracts for services or sales whether denominated as wages, salary, commission, bonus, or otherwise.
(d) Payments due for workers' compensation temporary disability benefits.
(e) Payments due as a result of disability from benefits described in Section 704.130 of the Code of Civil Procedure.
(f) Any other payments or credits due or becoming due, regardless of source.
FAM §5210. Employer
"Employer" includes all of the following:
(a) A person for whom an individual performs services as an employee, as defined in Section 706.011 of the Code of Civil Procedure.
(b) The United States government and any public entity as defined in Section 811.2 of the Government Code.
(c) Any person or entity paying earnings as defined under Section 5206.
FAM §5241. Employer's Failure to Comply with
Assignment Order
(a) An employer who willfully fails to withhold and forward support
pursuant to a currently valid assignment order entered and served upon the
employer pursuant to this chapter is liable to the obligee for the
amount of support not withheld, forwarded, or otherwise paid to the
obligee, including any interest thereon.
(b) If an employer withholds support as required by the assignment order, the obligor shall not be held in contempt or subject to criminal prosecution for nonpayment of the support that was withheld by the employer but not received by the obligee. In addition, the employer is liable to the obligee for any interest incurred as a result of the employer's failure to timely forward the withheld support pursuant to an assignment earnings order.
(c) In addition to any other penalty or liability provided by law, willful failure by an employer to comply with an assignment order is punishable as a contempt pursuant to Section 1218 of the Code of Civil Procedure.
(d) If an employer withholds support, as required by the assignment order, but fails to forward the support to the obligee, the local child support agency shall take appropriate action to collect the withheld sums from the employer. The child support obligee or the local child support agency upon application may obtain an order requiring payment of support by electronic transfer from the employer's bank account if the employer has willfully failed to comply with the assignment order or if the employer has failed to comply with the assignment order on three separate occasions within a 12-month period. Where a court finds that an employer has willfully failed to comply with the assignment order or has otherwise failed to comply with the assignment order on three separate occasions within a 12-month period, the court may impose a civil penalty, in addition to any other penalty required by law, of up to 50 percent of the support amount that has not been received by the obligee.
(e) To facilitate employer awareness, the local child support agency shall make reasonable efforts to notify any employer subject to an assignment order pursuant to this chapter of the electronic fund transfer provision and enhanced penalties provided by this act.
(f) Notwithstanding any other provision of law, any penalty payable pursuant to this subdivision shall be payable directly to the obligee. The local child support agency shall not be required to establish or collect this penalty on behalf of the obligee. The penalty shall not be included when determining the income of the obligee for the purpose of determining the eligibility of the obligee for benefits payable pursuant to state supplemental income programs. A court may issue the order requiring payment of support by electronic transfer from the employer's bank account and impose the penalty described in this subdivision, after notice and hearing. This provision shall not be construed to expand or limit the duties and obligations of the Labor Commissioner, as set forth in Section 200 and following of the Labor Code.
ample letter to employer is below:
Dear Sirs:
· Enclosed is a Wage Assignment for Child Support and Spousal Support. We realize that Mr. ---- is not an employee or yours in the strict sense. However he is classified as a person who is entitled to earnings from you in that you owe him money for something he has done. Please note the attached code sections from the California Family Code.
· Please also review the back of the Wage Assignment form. Last, but not least, notice the penalties for not complying with the law which are attached.
· IF YOU ARE NOT SURE OF WHAT TO DO PLEASE FAX THE WAGE ASSIGNMENT AND THIS LETTER AND ATTACHMENTS TO YOUR ATTORNEY.
· If you do not comply you are taking a great risk. You may owe the money with interest added on and may be guilty of contempt of court.
· No doubt the person who owes the support money will object and say that you should not take it out for one reason or another. Give him or her the "Request for Hearing Regarding Wage Assignment" form. Let him or her take it to court. You are not the judge. You should take the money out and send it on as per the Wage Assignment order.
· Last but not least. Keep in mind that this is for child support. You were also once a child. Children need to be protected and cared for. In all good conscience you should fully comply with this order to benefit the minor children.
If you know anyone with family law questions please mention this site to them. If you live in or your case is in the Inland Empire of Southern California please call for a free consultation at 951-247-1977. Thank you. www.BlaisAtty.com
YOUR FIRST COURT APPEARANCE
This may be a Motion, Order to Show Cause or a Mandatory Settlement Conference. The purpose of this letter is not to tell you the differences but rather to give you a background feel as to what your first appearance in family law court will be like. There are certain words in parenthesis that indicate the information sheet on the attorney's computer. If you want the sheet just call in and let us know.
The address of the Family Law Courts is 4175 Main Street, Riverside , CA
If you ever have a court date and for some reason you are late or whatever you can call the court room itself. The phone number for court room F-1 is (951) 955-1421. The phone number for F-2 is (951) 955-1420. The phone for F-3 is (951) 955-6970. The phone number for F-4 is (951) 955-1930. F-1 and F-2 are on the fifth floor. F-3 and F-4 are on the fourth floor. If you will be unusually late or for some reason will not be there call the applicable court room and talk to the clerk. The phone number for the mediators office is (951) 955-6985. Mediation is on the second floor. If you need more specific instructions on how to get to the family law courts ask the attorney for directions
WHAT TO WEAR: Wear clothing that you are comfortable in, both mentally and physically. You do not need to wear a suit and tie if you do not feel comfortable in that. However do not wear a tanker top with shorts. Work clothes are fine.
TIME TO BE THERE: Most court cases are set at 8:30 a.m.
DO NOT BRING: Knives or even nail clippers. There is a metal detector at the front. If you have any sharp instruments they will not let you in and you must either throw it away or take back to your car. They will not let you keep it there. All bags will be x-rayed.
MEDIATION: If there are minor children there will usually be a mediation appointment about a week or two prior to the court date. Usually the attorney is not present for this. For more information ask the attorney for the information sheet on mediation At mediation simply be yourself. Do not feel you have to come on strong. However you must be able to communicate what you want to say. If you have any documents to show the mediator make sure the other spouse has seen it also. The mediator will want both of you to have seen any documents before the mediator sees it. Ask the attorney for the information on mediation rules (med).
COURT ITSELF: Outside the courtroom they have a list of the cases. This is called a called a "calendar". Check your name and the calendar number on the list. Then go in and check in with the court clerk in the courtroom. Just walk in the courtroom. If the judge is not on the bench then go up front of the bar and tell the clerk that you are present. If the judge is on the bench then give the bailiff a slip (there is a podium with paper slips on it) with your name and write on it that you are present and give it to the bailiff. Obviously put the case number and number on calendar on it also. There are usually about 20 or 30 cases set for the courts calendar each day.
If you do not know what courtroom you are assigned to there is a calendar on the bottom floor on the wall to the left by the bathrooms. You will see it to your left after you come in past the metal detectors. It will have the calendars of all four courtrooms. You can usually find your case there. Otherwise go to the clerks office and ask them to look up the case on their computer. Try to have the case number for a simple check.
PROCEDURES: Much of court is hurry up and wait. Usually the attorneys and parties will try to work out agreements or stipulations before going in to court. The judge will just hear matters that the parties cannot agree on. Bring a book to read because there may be much waiting. You will usually be able to get out by noon if the case is set in the morning.
IN COURT PROCEEDINGS: The judge will just be making rulings on the issues the parties cannot agree on. Agreement will be reached on a surprising large number of issues. You will probably not be called upon to testify. Most Motions and Orders to Show Cause are held on the pleadings and not with testimony. It takes too much court time to hear testimony for the court usually. If you think you will have to testify ask the attorney for the information sheet on testimony in court (4testify). You are urged to go into the court room before the case is called and just sit and listen to what goes on. You want to get a "feel" for the courtroom so when our case is called you will not feel totally ill at ease.
If you have a pager or cell phone put it on vibrate.
WHAT HAPPENS AT THE "FIRST CONSULTATION" IN A FAMILY LAW CASE?
This office is one of the few in Moreno Valley that has a free first consultation. Some people may be curious as to what is discussed at the first consultation. The below is just an outline, correct grammar is not used. The consultation usually lasts 45 minutes to 1 hour.
INITIAL CALL: Get consultee's name, check name on the conflict list to be sure we haven't had a consultation with the spouse or other party, very brief questions to determine basic facts and request that party make list of questions to be answered or issues they want to talk about when they come into the office. Many people want a consultation, not to file a case but to know what their rights and duties would be if they did file or if the spouse filed. Many people also seek information if they want to represent themselves. Set an appointment.
FIRST CONSULTATION NEW CASE: Discuss possibility of reconciliation, violence problems and restraining orders, change of wife's name, discuss types of custody and visitation possibilities, "move away" situations, pick up and drop off of children, 730 custody evaluations, how the mediators office works and dealing with the mediator, importance of not moving out of the house at the present time, what factors courts look to in ordering custody and other custody or visitation issues.
Child and spousal support information entered on computer based on incomes of parties and other factors ("Other factors" might include child care expenses, other children from other relationships, "under the table" income, health insurance, retirement contributions, work related expenses, union dues, child or spousal support paid other relationship, romantic live in's for parties both homosexual and heterosexual, tax exemptions for children, private school or child care for children, property tax and interest payments on homes, payment of and deductions from income, and other factors), preliminary highs and lows on both child and spousal support and other issues.
Property issues are also discussed on use or ownership of the home, interests in retirement or deferred compensation plans (currently the main asset in most Moreno Valley marriages), cars and their use, division of household furniture and furnishings, business interests and other property issues. Also discussed are payments on the debts and division of the debts, credits for payments made after date of separation, tax aspects of division, rental value of house if one party just camping out and not making payments, discuss how property is divided and other property issues.
FIRST CONSULTATION MODIFICATION OF CASE: Depending on the facts it is very similar to the above. However the issues will be more narrow since the modification will probably not involve the entire case but only problem aspects of the case.
NOTE: Please get evidence on any and all the above. Things like pay stubs and past tax returns. One of the biggest problems is that people don't go to an attorney to review anything proposed by the other side. They simply want to "get on with their lives" and get the case over. They sign an agreement and a few years later regret it. They come into this office and ask about changes. Had they come in before signing the proposed judgment it would have been the "stitch in time that saved nine." At this office we will not bite you or twist your arm. For some reason some men are hesitant to call. Often they have their mothers or girl friends call for them. We welcome calls from men directly.
HOW TO GET YOUR CREDIT REPORT AND INFORMATION ON CREDIT AND CANCELING CREDIT CARDS
CREDIT REPORTS
Consumers have a right to a copy of their credit report. There are three major credit reporting agencies. Equifax is at 1-888-202-4025 or 1-800-685-111 or their web site at www.Equifax.com or call 1-800-685-1111. Trans Union is at 1-800-916-8800 or 1-800-851-2674. TRW (now called Experian) is at 1-800-422-4879 or 1-800-682-7654. With Experian you get one free report once a year.
APPARENTLY TRW HAS CHANGED IT’S NAME TO “EXPERIAN”. APPARENTLY THEY NO LONGER DO A FREE REPORT AS MENTIONED BELOW. YOU MIGHT TRY ANYWAY.
As a courtesy TRW will send a free copy of your credit report once a year. You have to call them at the above number. They have elaborate rules on how this is done.
There is a company called “Credentials” which will reveal if anyone has requested and received copies of your credit files. You may call them at 1-800-262-7432.
In addition the California Civil Code has specific statutes on obligations of consumer credit reporting agencies. See Cal Civil Code section 1785 et seq.
If you have questions about student loans, unsure who the lender is or if your school has no record of your loan, help is available from the Debt Collection Services for Student Loans at (800) 621-3115.
For information about credit rebuilding and budgeting techniques,
call Consumer Credit Counseling Services at (800) 388-2227. Another very
good informational source is “Money
Troubles: Legal Strategies to Cope with Your Debts” by Robin Leonard,
published by Nolo Press. You can contact Nolo Press at (800) 992-6656.
The Federal Trade Commission publishes an extensive array of
information on credit issues, all of it free. Write to the FTC, Public
Reference, 6th and Pennsylvania, NW,
Washington D.C.20580
RAM Research Corporation issues and exhaustive monthly survey with separate tables of low rate cards, no annual fee cards, gold cards and secured cards. Send a $5 check to P.O. Box 1700, Frederick MD 21702
Consumer Action issues a free annual comparison of 42 standard and 14 secured cards. Send a Self addressed, stamped envelope to CA Credit Card Survey, 116 New Montgomery Street, Suite 233, San Francisco, CA 94105
For a copy of “Managing Your Debts: How to Regain Financial Health,” send a self addressed, stamped envelope to: CFA’s Managing Your Debts, P.O. Box 12099, Washington DC, 20005-0999
CREDIT CARDS
Often one spouse wants to cancel or take his or her name off a credit card. In reference to this issue there are basically three types of credit cards. These are discussed in paragraphs 1, 2 and 3. Different companies may use different names but the concept is the same. Keep in mind in reading this that not all credit card companies have the same rules.
“Canceling” a credit card means to end the credit card so nobody can use it. The account is totally closed. The number is no longer valid for any reason. It cannot be reopened again. “Freezing” the account means the account is still there but nobody can incur any more charges on it (Also called a blocked account).
1. An individual account is in the name of one party only (primary card holder). Nobody else is authorized to use or sign on that account. If the individual account holder wants to cancel, or freeze the credit card he or she can easily do so. It is often wise to cancel the card and open up a new one even though the other spouse has no rights to use the card. The other spouse may use it anyway or have a friend use it and incur debts without your consent. Sometimes this could be done with telephone orders for items over the phone. Technically you may not be liable for this since you are the only user. However you want to avoid the hassle. If you suspect your spouse may do something with your individual account you should cancel it and open up a new one with a different number. This is true even though the other spouse it not an authorized signer or user of the card.
2. An individual account with an authorized signer is in the name of only one spouse but the other is authorized to use the card. The individual account holder (primary card holder) can have the name of the authorized signer taken off. The authorized signer can also have his or her name taken off. The primary card holder can freeze the account. The authorized signer cannot freeze the account.
Of importance is that even though the authorized signer’s name is taken off he or she may still be able to incur debts with the card if he or she still has possession of the card.
3. A joint account is in the name of both spouses. Neither party can remove the other parties name. However either party can freeze the account or cancel the account and open up an entirely new account just in that parties name alone.. The best thing to do is to cancel the account and then each open a new account in the individual name of the party.
In almost all situations, if you think the other spouse may do something unauthorized with the credit card, the best thing to do is to cancel the account as a first choice or freeze the account as a second choice and open a new account in your name alone. If you can cancel the account do so. Do not let the other party know what the new number is because he or she probably knows your social security number, address, date of birth and mothers maiden name and may incur charges on the account or have someone else do so just to “get back” at you. Many charges can be made over the phone with just the number and some personal information.
One of the best things to do is simply call the 24 hour toll free number on the back of your card and get more facts from the credit card company. At the very least find out if you have a joint, individual or individual with an authorized signer type card. Keep in mind different companies may use difference words for these same things. Also keep in mind the rules stated above may not apply to all credit card companies.
A final factor to keep in mind involves liability for credit card debts. Usually the credit card company will try to keep both parties “on the hook” for liability for the debt. Sometimes one party can take over the card and full liability for the debt on the card. However this is rare. Usually the credit card company wants to be able to sue both parties for the debt if they can. Call the credit card for full information on liability.
· TO CANCEL YOUR CREDIT CARD: You must write to the credit card company. Write to the special billing error address on the statement and tell the company you want to cancel your account. Keep a copy of the letter. There is a way to prove the credit card company received it if they deny this. Enclose a check. In the letter mention that you are enclosing the check with the check number 000 stated in the letter. On the check itself write that this is with the letter to cancel the credit card. That way, by depositing the check, they cannot deny that they received the letter. Both the check and letter should reference each other and the check should spell out that you want to cancel as well as the letter.
a) Do not just stop using your credit card. Your name is still on it and it may hurt your credit report.
· Record keeping with credit cards:
a) Save all your bills and charge cards for at least a year. Six years is better .
b) Hang on to the envelopes if they have a postmark date on them.
c) Write the date you get each bill or letter from a credit card company on the envelope and intitial the note.
d) Keep copies of all letters the credit card companies send you and all letters you send them.
e) Keep those bills and letters in a rubber banded bundle by year so you can find them when you need them.
f) Keep a list of all disputed accounts.
TIPS FOR CUTTING DEBT
THIS WAS TAKEN FROM AN ARTICLE IN THE PRESS ENTERPRISE ON 11-20-95 . THERE ARE A FEW SUGGESTION THAT ARE ADDED.
* FIGURE OUT EXACTLY WHAT YOUR DEBT IS. “Most people have no idea exactly how much they owe”, says Ruth Susswein, executive director of Bankcard Holders of America, a consumer advocacy group.
* DO A MONTHLY BUDGET. Track expenses and spending. “People don’t realize where their money goes and they lose track of how much they’ve charged,” says Durant Abernethy, director of the National Foundation for Consumer Credit.
* LOWER YOUR COSTS. Consolidate loans and shift credit card balances to a lower rate card. Ask lenders to reduce or waive the interest you pay and to help you work out a repayment plan. For a list of low interest and no fee credit cards, send a $4 check to Bankcard Holders of America, 524 Branch Drive, Salem, Va. 24153
* PAY AS MUCH AS YOU CAN. If you pay only the minimum payment due each month - typically 2.5 percent of a credit card balance - you will be in debt for years. At an interest rate of 17.9 percent, it will take 29 years to pay off a $10,000 card balance that way, and you’ll pay $12,745 in interest on the $10,000. Add just $25 a month to your payment, and you’ll cut the time to about 13 years and the interest to $8,049.
* CUT UP YOUR CREDIT CARDS. Half of the more than 806,000 people expected to file for bankruptcy this year will be current on their credit card payments. But “they’re robbing Peter to pay Paul” by taking cash advances on one credit card to pay another, says Abernethy.
* TRASH THE NEW CARD OFFERS YOU RECEIVE. Too often, people get new cards and continue to use their old cards.
* SEEK HELP. The Riverside area Consumer Credit Counseling Service can be reached at (800) 655-0114, 781-0114 or 781-5858. There is no charge for debt counseling. There may be a minimal monthly charge if the office handles your debt repayment plan. For help in developing a debt repayment plan, send a check for $15 to BHA Debt Zapper, 524 Branch Drive, Salem VA 24153.
* USE DEBIT CARDS, checks or cash. That should help you control your spending. “We don’t have to stop spending - we just have to spend within our means,” Susswein says.
OTHER SUGGESTIONS: * DON’T IMPULSE BUY: Whey you see something you hadn’t planned on buying then don’t purchase it on the spot. Go home and think it over. It is unlikely you will return to the store and buy it.
* AVOID SALES: Buying a $500 item on sale for $400 is not a $100 savings if you don’t need the item to begin with. It is spending $400 unnecessarily.
* GET MEDICAL INSURANCE IF AT ALL POSSIBLE: Even a stopgap policy with a large deductible can help if a medical crisis comes up. You can’t avoid medical emergencies, but living without medical insurance is an invitation to financial ruin.
* AVOID COSIGNING OR GUARANTEEING A LOAN FOR SOMEONE: Your signature obligates you as if you were the primary borrower. You can’t be sure that the other person will pay.
* AVOID JOINT OBLIGATIONS WITH PEOPLE WHO HAVE QUESTIONABLE SPENDING HABITS: Even a spouse or significant other. If you incur a joint debt, you are probably liable for all of it if the other person defaults.
LOW RATE CARDS
If it is difficult to pay off a large balance, switch to a credit card with a low annual percentage rate (APR). For a modest fee, Bankcard Holders of America (703-389-5445) and RAM Research Corp. (800-344-7714) will send you a list of low rate cards.
TIPS ON NEGOTIATING WITH CREDITORS
You are most vulnerable at this time. Be sure you truly understand any new loan terms and can afford to make the payments under a new agreement. The below is from a publication from other attorneys. You may or may not want to use the information.
· Get outside help negotiating if your need or want it.
· If you are told “no” in response to any request, ask to speak to a supervisor.
· Adopt a plan and stick with it. If you owe $1,100 but can’t afford to pay more than $600 then don’t agree to pay more.
· Try to identify the creditor’s bottom line. For example, if a bank offers to waive two months interest if you pay the principal due on your loan, perhaps the bank will actually waive three or four months of interest. If you do need to, push it.
· Don’t spilt the difference. If you offer a low amount to settle a debt and the creditor proposes that you spilt the difference between a higher demand and your offer, don’t agree to it. Treat the split the difference number as a new top and propose and amount between that and your original offer.
· Don’t be intimidated by your creditors. If they think you can pay $100, they will insist that $100 is the lowest amount they can accept. Don’t believe them. It is fine to hang up and call back a date later. Some of the best negotiations may take weeks.
· Try to settle with a lump sum. Many creditors will settle for less than the total debt if you pay in a lump sum, but will insist on 100% if you pay over time. If so, try to get the money to settle the matter.
· Get a signed release. If you settle for less than the full amount owed, make sure the creditor signs a release stating that your partial payment excuses you from the remaining balance.
· Be careful not to give up more than you get. A creditor may waive interest, reduce your payments or let you skip a payment and tack it on at the end. But tread cautiously. She is likely to ask for something in exchange, such a getting a cosigner (who will be liable for the debt if you don’t pay, even if you erase the debt in bankruptcy), waiving the statute of limitations (the number of years the lender has to sue you if you stop making payments), paying the higher interest, paying for a longer period or giving a security interest in your house or car.
· If you send letters to the credit bureau or other creditors try to adhere to the following suggestions: (1). Type your letters or neatly fill in the blanks of the letters. (2). Keep a copy for yourself. (3). Send by certified mail, return receipt requested, and (4). If you are enclosing money, use a cashier’s check or money order if you have any debts in collection. Otherwise the recipient of the check could pass your account number to any debt collector, which will make it easier for the collector to grab your assets to collect the debt.
GETTING YOUR FILE FROM YOUR PREVIOUS ATTORNEY
This is information on getting the file from your previous attorney.