Continuance: How do I change my court date?

One of the questions that we get all of the time from people who call our intake line is "How do I get a continuance for my hearing?" This may be because they are unavailable, they want time to find an attorney, etc. Although for attorneys this is generally a very straight forward process, it can be hard for a pro per (someone who represents themselves).

First you need to contact the other side to see if they will agree to a continuance. If the answer is yes, then you should get a list of unavailable dates from the other party before taking the next step of contacting the department clerk to see what date the court has available.

After you know the potential new date, you would file the proper paperwork (signed by both parties).
In Alameda county we have a local form ALA Fl-035 (find it and other local forms at http://www.alameda.courts.ca.gov/Pages.aspx/Family-Law-Forms ) . My first suggestion would be looking for a local form in whatever county your case is in. If your county does not have a local form, then you can create a pleading (word document) where you would essentially type in similar information to what is on the local form referenced here, and then after both parties have signed it, you would submit that to your court.

Now what if the other side will not agree to a continuance? Well, if you want a continuance so that you have time to find an attorney, most of the time, you can show up to court the day of the hearing and ask the court for a continuance so that you can find an attorney. This is a risk, since you likely will want to do response paperwork in advance of the hearing, just in case the continuance is denied. If you are scheduled for a hearing and this is your first continuance request,they are generally approved by the court, but there are no guarantees. I would suggest you consult with an attorney to draft your response paperwork just to be safe.

If you honestly cannot be there because you are scheduled to be out of town, have an emergency, etc and the other party will not agree to a continuance, then you can file a Request for an Ex Parte Temporary Emergency Order (FL-300 and FL-305). In that request you should 1) have provided notice to the other party that you will be filing this request since they will not agree 2) you should have attempted to get the other side to agree in advance of filing your request 3) provide the court with the reason  you need a continuance and list your attempts to get the other side to agree to it and 4) provide the court with any dates that you know you or the other side are available for a hearing.

You would then file those documents (along with any local forms necessary for an ex parte. See form ALA Fl-010 for Alameda County) and the court would rule on your request within about 2 business days.

My Ex isn't paying the court ordered Child support? Now what?

You went to court and the judge ordered your ex to pay child support- Great! You need the money to put food on the table and you already have maxed out your credit cards with medical bills, school supplies, etc for your little one. The 1st of the month comes and gasp - your ex never pays you.... now what do you do?

The bad news is that results wont necessarily be immediate, but the good news is that there is help. Contact your local child support agency. In Alameda County it is http://www.acgov.org/css/

The local child support agency can:

• Establish paternity, child support and medical coverage court orders.
• Locate the non-custodial parent and his or her assets to enforce the court order.
• Collect and distribute child, medical, and spousal support payments.
• Maintain accounts of payments owed and received.
• Modify court orders when appropriate.
• Enforce Alameda County Court orders for child, spousal and medical support

Donate Today!

Last month we celebrated 4 years of providing sliding scale services to low income and moderate income families all over the Bay Area.

Lately we have been receiving a ton of calls from people needing assistance. Although our goal is to help as many families as possible, at this time we do not receiving grant funding or large donations and we survive solely on the fees collected from our clients for services that we provide them.

To help us expand our services, consider a tax deductible donation. We are listed with
Guidestar.org and with networkforgood.com which both permit company matches! You can also mail a check directly to All for the Family Legal Clinic, Inc 3137 Castro Valley Blvd #210, Castro Valley, CA 94546 or you can select our charity on smile.amazon.com and donate just by making your regular purchases, at no cost to you!

Pamela Ross selected to 2016 California Rising Stars List!

Our Lead Attorney, Pamela Ross, has been selected to the 2016 California Rising Stars list. Each year, no more than 2.5 percent of the lawyers in the state are selected by the research team at Super Lawyers to receive this honor. Super Lawyers, a Thomson Reuters (associated with Westlaw) business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys. The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. 

Super Lawyers maintain strict separation between research and advertising. The names of all attorneys selected by Super Lawyers are published in our print publications and at SuperLawyers.com at no charge whether they advertise or not. Advertising sales do not begin until after the selection process is completed and Attorneys are not required to participate in advertising. For more information about Super Lawyers, visit SuperLawyers.com.

Common Questions Regarding Paying for Attorney's Fees

When clients contact us to assist in their family law cases, one of the first questions is, "How much is this going to cost?" The true answer is that we do not know. The reason is because every case is different since the people who control the cost are you and your ex. We have some people who come to us with essentially a full agreement (for those we can often agree to a flat fee or estimate 7-12 hours of attorney time); we have some people that we are able to settle their case quickly because they both just want what the law provides for or they are both fairly agreeable people (estimate 20-40 hours); we have the "normal" or "average" cases (estimate 40-60 hours);  then we have complicated cases (60-100 hours) and very complicated cases/cases that go to trial (100-200+ hours).Since we charge on a sliding scale our costs are still significantly lower than the average attorney's, but we still cannot guarantee a certain maximum cost since we have no control over whether the other side agrees to a reasonable settlement; whether they make allegations of abuse; whether they ask for a trial, etc. Since we do help low income and moderate income families, we do try to keep the costs down as much as possible.


The follow up question is typically, " Can I can my ex pay all or some of my attorney's fees?"

The California family code allows you to either access community funds (if they are available), or to request that the court order your ex pay an amount of attorney's fees that will permit you to retain an attorney. The court typically focuses on the ability of the higher wage earner to pay their own attorney's fees as well as yours and also the financial disparity between the parties (typically how much you each make and whether your ex has substantial separate property funds that you do not and so they can afford to assist with your fees). There are also sanction based fees (your ex does not respond to a motion to compel for example, or otherwise holds up the divorce process unnecessarily and in bad faith) or fees that you can only get if you win on your motion. For example, to get attorney's fees related to a restraining order, the victim must win and be issued a restraining order after hearing in addition to showing the ability of the other party to pay.

It is important to make the attorney's fees request early on, because a lot of judges are hesitant to award attorney's fees after you have already received an order for spousal support when handling cases with low income or moderate income parties, because the higher wage earner will already be giving a chunk of their income to you as support.

Wait, the court can "pretend" I make more money when calculating the Child Support that I owe?

Because of California’s strong policy of placing a child’s needs first, California Family Code section 4053 defines income broadly, including income from any source derived. This means that regular gifts, dividends, rental income, etc can be included. Not only is a parent’s actual gross income considered, but the earning capacity of each parent may be considered as well.  This means that the court can impute income against you, which means as far as the formula for child support is concerned they put an income higher than you claim to make into the formula as your income, because the court believes that you could make more money, but that you are choosing not to do so. They do this where they feel that it is in the best interest of the child(ren) in the case.

When looking at earning capacity, the court does not require that you are acting in bad faith, instead it is based on evidence that one party has the ability and opportunity to earn the higher amount based on evidence. In considering a parent's ability to make more money, the court looks at '"such factors as age, occupation, skills, education, health, background, work experience and qualifications." Marriage of LaBass & Munsee, (1997) 56 Cal. App. 4^th 1331, 1337-1338. To show ability, litigants have presented evidence such as degrees/credentials obtained, prior job history, and resumes of the party. 

If the court believes that the party has the ability to make more money, they then look to see if there is truly an opportunity for employment available. You may have an advanced degree, but if there are no jobs in the area that you live requiring those skills, you wont necessarily be able to work in that field. The court looks to see if there is a "substantial likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income.” Marriage of Cohn (1998) 65 Cal. App. 4th 923, 930. They can look at want ads, opinion testimony, a vocational evaluation, etc in reaching a conclusion regarding whether there is truly ability and opportunity.

In most cases with attorney's involved, the court also hears evidence about how much money should be imputed against the parent who is underemployed. This can be evidence of pay skills in their industry,  starting salaries in their industry, how much they made previously, etc. 

            

Recognition for Free Legal Assistance to Low Income Households

At All for the Family Legal Clinic, all three of our attorneys: Pamela Ross; Hazel Bradshaw; and Lisi Munayco provide free legal assistance through the ACBA volunteer attorney program on top of their work at the clinic providing sliding scale services to low income and moderate mean households all over the Bay Area. 


Our CEO and Lead Attorney, Pamela Ross has been recognized with a Certificate of Special Congressional Recognition for pro bono work performed in 2015.  She also received from the State Bar of California, a Wiley W. Manuel Certificate for Pro Bono Service completed through VLSC/ the Alameda County Bar Association (ACBA). This is Pamela's second year receiving this award. 

Own a Home in California? You may no longer need a Living Trust...

Starting January 2016, California has introduced a new estate planning tool - the Revocable Transfer on Death Deed (TOD).  The TOD allows a homeowner to transfer their residential real property upon the owner's death without a probate court proceeding. This is similar to payable on death accounts or life insurance policies, where you name a beneficiary and they automatically receive the account balance on your death without having to go to court to probate your will. 

The pros: This is by far the cheapest method for estate planning for any one who owns a home in California. Previously it was recommended that due to the high home prices in California, that it be placed in a revocable living trust, which typically cost thousands of dollars. However TODs costs hundreds of dollars or you could potentially do a TOD yourself. 

Additionally, this is a great estate planning tool for people who for whatever reason do not have a joint tenant on their title (think separate property before marriage, or unmarried person, etc). When you have a joint tenant with right of survivorship on title (this is typical for married couples when the property is purchased during marriage), then the property automatically becomes 100% owned by the other joint tenant(s) upon death of the other owner. So if you and your spouse are joint tenants with right of survivorship, it wouldnt be recommended to do a TOD. However a TOD would likely be perfect for someone with one child, or if they had the property before marriage would want their spouse to receive it, but want to leave the spouse off of title in case of a divorce before death. 

Another pro is that the TOD is revocable. So if you leave a property to your spouse for example, and then you divorce, you can change the TOD by revoking it completely, or by revoking the first one and naming a new beneficiary through a subsequently filed TOD. 


The Cons:This is TEMPORARY legislation, or a test run. Although there are various other states that have a similar deed in place, California has not had one before. The legislature is allowing a trial period for these types of deeds until January 1, 2021; however all TODs that are recorded with the county before that date will remain in effect even if in 2021 the state decides to terminate TODs as an estate planning method. 

Because these are new, many title companies will not guarantee the title transfer upon death. Why does that matter? If the title company wont guarantee the title and you plan on selling or refinancing the house, you likely will have to go to probate court to get an order transferring the home formally to the beneficiaries named in the TOD. If you have to go to probate court, then the TOD essentially had no purpose. Over time, this issue will likely be handled, but for now...it is up in the air. 

Additionally, this can only be used for residential property that has less than 4 units. So if your parent's own an apartment building with more than 4 units, they would not use this to transfer title to you upon their death. Any type of commercial property, this does not apply to. Similarly, even a single family residence that has more than 40 acres of land, cannot use the TOD. 

If you have more than one person you are leaving the property to, technically you can utilize the TOD, however if they are not in agreement as to what to do with the property it could lead to expensive litigation. If you had the property in a trust and specifically outlined what should happen to the property after you pass, then it is possible the arguments and litigation would be avoided. 

TO DETERMINE IF A TOD IS RIGHT FOR YOU, CONTACT US TODAY: 510-999-7732 

Do I have a Constitutional Right to an Attorney in Family Law Cases?

The theme of this week has been the question about the constitutional right to an attorney. Under the sixth amendment, you have the right to a fair trial, including the right to an attorney. However the Supreme court ruled in Brewer v. Williams (1976) that the right to an attorney occurs "at of after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment." 430 US 387, 398.

In every terms, this means you only have the right to an attorney in criminal cases and in some states only criminal felony cases. You do not have the right to an attorney in civil cases. Family law, is an area of civil law. That means you do not have a right to an attorney in family law cases. The state of California does have many free attorney (probono) programs. You should check with your local county Bar Association for referrals. In the Bay Area we have places like VLSC through Alameda County Bar Association; Bay Area Legal Aid; Eviction Defense Center (for landlord-tenant issues); Family Violence Law Center (for cases with Domestic Violence), etc However for those services you must qualify based on being low - income.

May bar associations have also started a modest means panel, to provide attorneys for medium income families at cheaper hourly rates. We at All for the Family Legal Clinic, charge on a sliding scale based on income and family size as well. The rates that we charge allow us to exist, since at this time we do not receive large grants, only small individual donations and income from clients.

It is important before signing any contract, even for modest means work that you stop and think about whether or not you will be able to afford your attorney over time. We offer consultation only services and limited scope services that allow for assistance at an overall lower cost. If you cannot qualify for free services and cant afford even a modest means attorney, then you can go to your local law library or you can meet with Self-help at your California courthouse location.