Saturday, October 12, 2019

Different Than the Average Attorney? Yep!

When you need someone with common sense, a sense of humor, and the ability to be down to earth but straightforward, and someone who is used to working with males in general, then you might want to consider attorney herein. Women and men tend to think differently, and although attorney has a social work background and is very aware of issues within family law, attorney also has done criminal and civil litigation, in addition to animal law cases in federal courts.

Once in awhile we will settle cases, but most of the difficult cases require substantial time in court. Not to say that court is the answer, as it's not always the answer--it's just there are hoops to jump through. Having practiced in larger areas such as San Diego, attorney has seen more than her share of difficult cases. Attorney is willing to work deals if the clients knows for sure that is what client wants or needs. In particular, attorney has done many Domestic Violence TRO cases with good results, including trials.

Additionally, attorney provides one of the best cost-savings (as far as fees go) in the entire county. How attorney knows this is because we have a lot of years of litigation in representing those of modest means.  That will enable client to get more work done in the case.

Call today for consultation. There is no obligation.

Do You Have a Non-Winnable Case?

There are some instances which present facts that are, realistically speaking, not winnable.
At least not at first.

If your case is not difficult, then it likely to be one where you can win something, as opposed to nothing. Some difficult cases are not really something you can win, and will be forced to settle. Other cases could be settled but the clients don't necessarily want to do that.

The difference between what the client wants and what the client can get is one thing. However, attorney herein will often get what the client wants simply because attorney will not give up when there is a possibility of changing something important.

What attorney has seen in various cases, is that many people don't want to settle their cases and don't want to lose either. Some of the more difficult cases usually involve fighting over time share of kids, and then the division of property.  While it doesn't usually make a lot of sense to go too far overboard, it is true that some things can be won, but it may depend on the costs. Also, some clients just want to roll over the other party just "because"----???

Regardless of client's choices or desires, attorney has worked on some of the most difficult cases ever imagined over the years, including civil and criminal litigation, and cases in the news, newspapers (family law --and criminal law--when there were printed newspapers!), and precedential decision at SPB (on sexual harassment) plus federal litigation both in California and Denver, Colorado. Additionally attorney is well versed in animal law and litigation on various animal law issues.

If you have a difficult case, feel free to call attorney Chan at  916.794-5777.

Sunday, September 29, 2019

Spousal Support "Exempted" in Bankruptcy?

SO..when is spousal support  "exempted"  in Bankruptcy?  How about under CCP 703.140?

.......... What if the "MSA was purportedly ambiguous?"

.......... What if the court thinks the MSA lists the spousal support--- but                        it's really not spousal?

.......... What if the alleged support was not reasonably necessary for such                      support?

-------> Must the Court look beyond the labels provided for in the Marital Settlement Agreement?

An evidentiary hearing in Bankruptcy Court is very interesting. (See )
...............["While there are significant differences between adversary proceedings and contested matters, the similarities between them are greater than appellant assumes. 
In a contested matter, there is no summons and complaint, pleading rules are relaxed, counterclaims and third-parties practice does not apply, and most pre-trial procedure is either foreshortened or dispensed with in the interest of time and simplicity.

 ...Nevertheless, . . . discovery is available, testimony regarding contested material factual disputes must be taken in the same manner as in an adversary proceeding, and the court must make findings of fact and conclusions of law before entering an order that has the status of a judgment." ]

In this particular case, the Trustee objected to the purported spousal support exemption under the CCP code cited above.  Also noted, Trustee mentioned that the item was purportedly concealed before, but that was not  made very clear.

Both parties had attorneys, both parties had attorneys during the MSA process, and the wife had expert. Wife stood to lose about $200,000. and yes,
she did lose it.

...[T]he court initially noted that nearly all cases regarding whether an award is in the nature of spousal support are in the context of nondischargeability under § 523(a)(5), as opposed to an exemption, which was "a different situation." Hr'g Tr. (Jan. 20, 2012) 88:2.      Nevertheless, the court proceeded to discuss In re Combs, a nondischargeability case, and the factors a court can consider in determining whether an award in a divorce decree is in the nature of spousal support or a property settlement. 

     In considering the Combs factors, the court concluded that the Met Life Account was not spousal support; it was a division of property, and therefore not exempt under CCP § 703.140(b)(10)(D)

The court further noted that the MSA's express provision for spousal support which, under Stout, could be considered in determining whether an award in a divorce decree is support or property division, was an important factor in its decision to disallow the exemption.

The bankruptcy court entered an order sustaining Trustee's objection and disallowing Diener's exemption of the Met Life Account as spousal support under CCP § 703.140(b)(10)(D) on February 10, 2012. Diener timely appealed.  (read case at this link)

You will likely need to be an attorney to understand it, but then again, maybe not.The bottom line is-- if your client may end up in bankruptcy court to salvage assets, you better be sure that the MSA will work under bankruptcy rules and state exemptions, otherwise, as can be seen here, it can open a brand new issue never decided by a bankruptcy court before, and your client is the guinea pig.

Had the wife accepted payments of support without the need for later claiming that the award was an intended buy out for spousal (which was not apparently stated) in the MSA, perhaps she could have left that provision subject to open jurisdiction to enforce; but by taking the money all at once, and since it was not deemed spousal (which would make it taxable to wife) it appears that the Trustee realized this, because the debtor kept amending the Schedule C Exemptions. 
                                 Which is likely a red flag in our opinion....Oops......

Using "Limited Scope" Designation with Attorney..........Should You?

Many clients simply cannot afford full scope representation by hiring an attorney for every single issue in the divorce. This is understandable; however, an attorney who is willing to do only certain
issues in the case might be able to handle those issues which are important, while not representing clients on every single issue in the case.

As an example.... if you are using DCSS for child support-- you may not actually need an attorney, unless you have some issues which are not ordinary within the child support issue.

Or if you only have a TRO but expect that it might resolve with a no negative conduct, you may only need help with a custody order.

Or, let's say you have finished mediation and only want to contest the mediation recommendation--and it requires a trial; or the opposite, your spouse wants to contest the mediation report but you want to keep it as an order?

Or, let's say your ex did the calculation re spousal support, but made an error and it must be changed, but to what degree and why?

Many issues that come up during divorces are not especially difficult because the law only allows one way to do something (such as splitting an asset 50/50)  but in the cases where such things can be evaluated according to facts, circumstances, and behaviors, i.e. FC 3044, then see:

Attorney has done many of these  types of cases both as Petitioner's Counsel and as Respondent's. and because attorney has been involved in criminal law cases (i.e. such as defending an alleged gang member, criminal protective orders, alleged stalker, etc.) attorney has seen both sides, pro and con. Strategy is an important part in family law, and many attorneys simply waste time and client's money.

 Attorney herein does not like to waste money on non-needed legal maneuvers; attorney has routinely worked with contractors, who are mostly men, and easily relates to those working in the trades. Primadonnas are not attorney's preferred client. Now we know most attorneys would never say this, but since millions of people these days put their personal/business data out there, such as on Facebook, attorney will never be on Facebook. Therefore, take that for what it's worth. And attorney just saw on another attorney's website, they WILL NOT TAKE YOU AS A CLIENT, if you have a DV TRO against you, or if you have had two attorneys in the past on your case, or if you are not current on support. WOW, that's rather prejudicial IMHO......

Attorney has been highly sought after for many difficult cases and has to turn down many cases due to a limited work load. Attorney's comparative fee scale is also considered the most affordable. Additionally, attorney has appeared in many different jurisdictions over the years including San Diego (Facilitator's), San Mateo, Denver CO, Sacramento Federal Court, Los Angeles Superior Court, etc. So if you believe you may need help in your case, consider calling attorney. It cannot be guaranteed that attorney can do your case however,  😊 ... attorney is not judgmental, and is friendly.

Saturday, September 28, 2019

Why Pay to Settle if You Can Win Your Case Without Trial

Let's be honest, no one enjoys having to hire an attorney for the most part; yet we see clients on an almost daily basis, fritter away legal money spent for no actual good reason?

Attorney herein operates FAR differently than most attorneys.
Rather than focusing on how many billable hours attorney can bill for, attorney instead sizes up each case on factual basis (and much experience) --  and makes some type of estimate on what could happen (and why..) and what might NOT happen (and why..)...then taking into account the variables that have been made known, attempts to best determine the pros and cons of each, in part, based upon the past conduct, the past hearings (if any) and the potential hearings if applicable.

Because attorney has done family law for many years, attorney has seen many, many variables in human behavior; in wage income disparities; in prolonged custody issues; in bad human behavior- including handling criminal case issues;  scads of mental issues including anxiety, bi-polar, narcissism, you name it; even with both parties being afflicted....criminal protective orders, domestic violence requests, supervised visitation, no contact orders, prolonged litigation by other party's attorney or even the opposing client themselves...... attorney has huge experience in cases involving animal law (even in federal court) and is competent on animal placement, even within a dissolution case (since CA law now provides that Judges can award custody of pets..)

If you would NOT like to have protracted litigation then it does pay to think ahead, even far ahead.

Some parents are honestly not suitable for being the custodial parent; and it will be obvious. Other parents know they are NOT the suitable parent and really doesn't even like watching the kids, but will pretend to be suitable to save on paying support. Inasmuch as shared custody is common, all of the aforementioned situations are things that will cost more money, usually, for nothing to be gained as far as proper parenting is concerned.  Therefore, doing such things is a waste of money?

While attorney herein cannot stop this entirely, attorney makes no effort to hide these facts and will actually simply call out those facts throughout the case since litigation does take time if the parties continue to disagree.

Trial should be avoided unless absolutely required.  As an attorney in family law, trial should usually be reserved only for issues that are a complete dead end, and there is a possibility of gaining something. It is a bad idea to do this just to raise the other side's costs. It is rather unethical actually, and attorney herein would  not make that choice.

Sunday, September 1, 2019

How Can I Fix My current Custody Situation?

Generally in California, the counties provide family law mediators at little to no cost to litigants; you are not forced to use the service, and can usually obtain your own services by paying for the service.
Usually, the parties agree that they will not use the mediation services of the court and will obtain a private mediation person or group that has such a mediator.

Many of the mediators that work for the court system have seen many cases, and because they are human, they may make mistakes. That is not to say a private mediator can't also make a mistake. The mediator's job is to do the evaluation and then make a "recommendation" to the court. The recommendation is NOT an order.  The court is NOT required to "adopt" the mediation, and the parties are NOT required to accept the mediation recommendation themselves.

Thus, the recommendation, if not accepted by at least one of the parties, can result in a trial. In about 75% of cases (not an exact percentage) judges will tend to adopt the recommendation of the mediator.  But as stated, if a party objects to that recommendation being adopted, a trial can be held, OR it's possible the parties can work out something different. Some recommendations may have clauses which give review dates in the future, others may not.  If in your jurisdiction, you know you do not want the court mediator(s), then you must tell the court that you wish to have private mediator services, and should discuss that in advance with the other party.

In high conflict cases, mediation may be the tip of the iceberg...extremely high conflict cases are not usually solved by using a mediator no matter what recommendation is given, the parties will continue to not get along and will have issues.  It is this attorney's belief that in some high conflict cases where neither party is represented, the judges simply assume that minor's counsel can fix the problem.  This is not necessarily true for all cases, especially when there has been one sided action (criminal, quasi-criminal, mental illness, imprisonment/other facts which cause one party not to work, and etc.)  In these cases, it can be that no amount of minor's counsel will be solving anything.

Attorney has seen plenty of high conflict cases over the years.  If you feel you need help on your case that might involve unsettled issues, call attorney 916-794-5557. There is no charge for the consultation. 

Saturday, August 31, 2019

Temporary Spousal v Ongoing Support

There is a Major Difference Between Temporary Spousal and Ongoing you Need to Win your Case?!

Basically, temporary spousal support is done by using the Dissomaster program; ongoing or sometimes called permanent spousal support, is not done by using the Dissomaster, and requires the Court to use certain factors in deciding just how much should, if at all, be paid.  Because there are 14 factors to be considered, it is pretty obvious that an attorney who has experience in figuring out how to best defend the paying client-- this is what you would need if you are the "paying" client.  In most cases, it will be the husband or the spouse that earned more during the marriage.

Conversely, the person who is attempting to get or keep the ongoing spousal will need an attorney who can prove that the client basically needs the support, and that it is warranted under the circumstances.  These days, many people are living far past retirement age, and many people will be working or are forced to work past retirement age. This could have some interesting ramifications on spousal support, because many more women who may not have worked in the past, are now working. Because the family code expects that each person (wife or husband) post separation, is to make efforts to become self supporting if not already doing so, this means that the stay at home person must make those efforts to become gainfully employed.

Attorney herein has had plenty of cases both for the worker spouse, or the non worker spouse. Also because attorney is basically a defense attorney, it is much easier to raise defenses in many areas from a logistical view, factual view, and legal view. In part, this may be why attorney has such a high win rate in contested cases.  
If you have a difficult case, attorney encourages you to call for your free consultation!