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.

Help Escaping Domestic Violence

Help Escaping Domestic Violence

Visit our website www.allforthefamilylegalclinic.org 
Always use a computer that your abuser does not have access to - your abuser can track your computer activity. 


Help Escaping Domestic Violence:


It is important that you have a detailed safety plan for you and your children before filing paperwork for divorce or custody.  You need to have a plan for where you will live, contact an attorney for a restraining order, and make sure to get copies the following to bring with you.

• Financial Documents- bank statements, IRA/401k documents, tax returns
• Insurance - Health and car insurance information 
• Personal Documents- Birth Certificate, Marriage License, Social Security Card, Driver's License, and Passport or other citizenship documents (originals if at all possible) 
• Asset documents- if possible bring the title to the car and other items with you 
• Child documents- immunization records, school records, and other medical records
• Any legal documents - previous custody or divorce papers, premarital agreements, important contracts, etc. 
• Valued belongings- photos, jewelry, and other possessions. If you have a plan in place you can take more with you.

Other things to do:

• Change your password on your email, bank account, credit cards, and any other important accounts that your abuser may have access to. 
• Get a new cell phone or prepaid cell phone so that you can use that phone to call your friends, attorney, domestic violence hotlines, etc without your abuser being able to track it. You can also ask the phone company to block the abuser's known phone numbers. 
• Have a bag of clothes packed for you and the kids so you can grab and go when needed. 
• Consider renting a post office box to get items mailed to when you start looking into government aid, etc. or have things sent to your work or a friend. 
• Make a budget of your expenses - make sure not to live beyond your means. You can live without cable, internet, smartphones, etc at least temporarily. Make your money last as long as possible. 
• If you do not work - start looking into jobs and government assistance right away. 
• Make a general list of property assets 
• Have your name, address, and phone number unlisted. 

When you leave:

• Get the restraining order right away so that the abuser cannot come near you and your children. Note that if you get a restraining order, the address information will be on the restraining order as well as any police reports that you file. 
• Be careful who you give your new contact information to 
• Alert your child's school, daycare, and doctor's offices about the situation. Consider changing schools,  daycares, doctors, churches, etc if possible. This includes going to different grocery stores, gyms, post offices, etc than you used to visit so that you are less likely to run into your abuser. Note that if you do not have a custody order or restraining order giving you sole legal custody, you should talk to an attorney before changing your children's school, daycare, doctor, etc. 
• Reschedule any appointments that the abuser might know about 
• Alert neighbors and co-workers and ask them to call the police if they feel you may be in danger. 
• Install security alarms, motion sensors, etc 
• Provide schools/daycares with a copy of the restraining order so that they know the abuser cannot pick up your kids 

This may seem incredibly overwhelming, but it is better for you and for your children to get out of an abusive situation.

If you need help getting a restraining order or filing for divorce/custody please visit our website www.allforthefamilylegalclinic.org for an application for our services. We charge on a sliding scale based on income and family size, starting at $10/ hr.

You can reach out to the National Domestic Violence Hotline 1800-799-SAFE (7233) or if you are in the Bay Area you can also contact 650-312-8515 or 800-300-1080 for assistance. 

Pamela Ross awarded a Top Lawyer of 2015 award

Our CEO/Lead attorney, Pamela Rdoss, has been deemed a Top Lawyer of 2015 by the Global Directory of Who's Who.

Annulments

We have two annulment trials this year in our office. We are also getting lots of calls from people asking for an annulment instead of a divorce. In California, in order to get a judgment for a nullity of marriage, you have to meet one of the following requirements:

1. Have been unable to consent to the marriage (ex: underage or incapacitated and even then if you continued to live as husband and wife after you became 18 or had capacity this may not apply).

2. One of you was already currently legally married to someone else (bigamy. Again there are even some exceptions to this.)

3. Fraud (they lied about their identity, immigration status, etc).However proving fraud, the most commonly checked annulment box is incredibly difficult. Generally we sit down with the client and discuss whether the costs associated with asking for the annulment, even if you succeed are worth the time, cost, and effort to get one. In most cases the answer is no.

4. Mental incapacity. This generally refers to the time when they consented at the marriage, but can be looped in with fraud in regards to them not disclosing a serious mental disorder. This is often difficult to get the judge to approve though, although I have seen it when both parties agree to an annulment and the marriage and courtship were fairly short. 

Even if you meet one of these requirements, you still need to file within the required time period to get an annulment instead of a dissolution (divorce).In most cases, this time period is within 4 years of marriage.

If you meet the requirements, then the judge is like a magician and *poof* your marriage never happened. This can also create a mess regarding property distribution since there will be no community property assets or debts if the marriage never existed.