Title: May 28, 2008
Q: My daughter, who just turned 18 years old, had a child with a man who has a criminal record. They never married. The baby is a little over 2 years old now. My daughter wants to have sole custody of the child, but this man insists that he wants joint custody of the child and wants to be involved in the life of the child. What should we do?
A: If your daughter just turned 18 and the baby is over 2 years old, this man committed statutory rape. Your daughter was only 16 years old when she gave birth to the child, and was probably only 15 when she was impregnated. She needs to file a Paternity action with the Court to establish who will have custody of the child and also to establish how much child support this man must pay to her. She could certainly also file charges against him for statutory rape. If he already has a criminal record in addition to the statutory rape charge, it is unlikely that he will obtain any kind of custody of this child.
Q: If older people with families from previous marriages get married again, how do they each protect what they want to leave to their own children or grandchildren?
A: By having a Revocable Living Trust prepared, called an A-B Revocable Living Trust. Each trustor basically sets up his/her own trust, although the A-B Trust is usually combined in one book. Each trustor can give his/her assets to members of a previous family, or friends, or a charity or church. Such a trust is very flexible and there are numerous ways of leaving one’s assets to beneficiaries. If one trustor dies before the other, that portion of the Trust becomes irrevocable, and assets from the deceased trustor can be distributed according to the deceased trustor’s wishes, right then and there. I highly recommend that everyone have a Living Trust. If you own a house in California, you should have a Living Trust. The threshold for an estate to have to go through the Probate process when one dies is $100,000. Even though the real estate market is in a downward mode at this time, it is unlikely that your house is worth less than $100,000. Do not think that only the equity is counted towards the minimum threshold. It does not matter that you have a mortgage still on the house. It is the value of your entire estate, i.e. bank accounts, stocks, bonds, cars, jewelry, art, real estate, boat, RV. All will be added up towards the minimum threshold. Having a Living Trust and transferring your assets into the Living Trust will protect your beneficiaries from having your estate go through Probate Court and will instead be transferred directly to them through a minimal process.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Showing posts with label child support. Show all posts
Showing posts with label child support. Show all posts
Tuesday, March 24, 2009
Legal Eaze #85 Health Insurance Divorce/New Spouse Child Support/Spousal Support
Title: January 23, 2008
Q: My husband is filing for divorce. He says he will drop me from his health insurance. Can he do that?
A: No, he cannot. On the back of the Summons that will be served on you, along with the Petition for Dissolution, there are specific “Standard Family Law restraining Orders”. One of these orders states as follows: “Starting immediately, you and your spouse are restrained from … changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties.” This means neither one of you can cancel insurance on the other.
Q: When calculating child support that I will have to pay by ex-wife, is the income of my new wife considered?
A: Family Code Section 4057.5 specifically mandates and precludes the Court from directly considering the new mate’s income in raising or lowering child support absent an “extraordinary case” in which a child would otherwise suffer extreme hardship under the guideline amount. In other words, the Court is precluded from considering your new wife’s income in setting the amount you must pay in child support, unless Dissomaster, the program used by California Courts, dictates such a low amount of child support if you have no income of your own while your new wife enjoys a large income that it would be a considerable hardship on the child to live on such a low child support amount. It is extremely rare for the Court to consider the new spouse’s income to award child support for a child from a previous marriage because Family Code Section 4057.5 prohibits it, except in dire circumstances.
Q: If I divorce my stay-at-home wife of 15 years, how much spousal support should I expect to pay and for how long? She was a teacher before she married me and could easily go back to work.
A: The Dissomaster program is used by the Court to ascertain the amount of spousal support you need to give your wife. Your income is used as a basis. A 15-year marriage is considered a long term marriage, and therefore it is possible that you may have to support your wife until she remarries or dies. It also depends on her age and her health condition. If she is in her sixties and not in very good health, it is unlikely that she will be hired by any school district. If she is in her forties and in excellent health, she will be urged to get a job as soon as possible. If a marriage is less than 10 years in length, often the Court use half the length of the marriage as the gauge to award spousal support. You must realize that circumstances are different in every divorce and the Court must take these differences into consideration.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Q: My husband is filing for divorce. He says he will drop me from his health insurance. Can he do that?
A: No, he cannot. On the back of the Summons that will be served on you, along with the Petition for Dissolution, there are specific “Standard Family Law restraining Orders”. One of these orders states as follows: “Starting immediately, you and your spouse are restrained from … changing the beneficiaries of any insurance or other coverage, including life, health, automobile, and disability, held for the benefit of the parties.” This means neither one of you can cancel insurance on the other.
Q: When calculating child support that I will have to pay by ex-wife, is the income of my new wife considered?
A: Family Code Section 4057.5 specifically mandates and precludes the Court from directly considering the new mate’s income in raising or lowering child support absent an “extraordinary case” in which a child would otherwise suffer extreme hardship under the guideline amount. In other words, the Court is precluded from considering your new wife’s income in setting the amount you must pay in child support, unless Dissomaster, the program used by California Courts, dictates such a low amount of child support if you have no income of your own while your new wife enjoys a large income that it would be a considerable hardship on the child to live on such a low child support amount. It is extremely rare for the Court to consider the new spouse’s income to award child support for a child from a previous marriage because Family Code Section 4057.5 prohibits it, except in dire circumstances.
Q: If I divorce my stay-at-home wife of 15 years, how much spousal support should I expect to pay and for how long? She was a teacher before she married me and could easily go back to work.
A: The Dissomaster program is used by the Court to ascertain the amount of spousal support you need to give your wife. Your income is used as a basis. A 15-year marriage is considered a long term marriage, and therefore it is possible that you may have to support your wife until she remarries or dies. It also depends on her age and her health condition. If she is in her sixties and not in very good health, it is unlikely that she will be hired by any school district. If she is in her forties and in excellent health, she will be urged to get a job as soon as possible. If a marriage is less than 10 years in length, often the Court use half the length of the marriage as the gauge to award spousal support. You must realize that circumstances are different in every divorce and the Court must take these differences into consideration.
Maxine de Villefranche has been an attorney for 15 years and is practicing law in Tehachapi and Lancaster. Send your questions via fax at (661)825-8880 or e-mail at maxinedev@msn.com. She will answer your questions to the best of her abilities.
Legal Eaze #75 Child Support Garnishment/Selling Home
Title: August 18, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been paying my ex-wife child support for the last 10 years for my daughter. This has been done through garnishment of my paychecks. At the beginning of August, my daughter turned 18. How much longer am I supposed to pay child support for her?
A. You failed to tell me whether or not she graduated from high school yet. If she is still a full-time high school student, you must pay child support until she turns 19 year old or graduates from high school, whichever comes first. If your daughter graduated from high school already, you must file a Motion to Terminate the child support with the same court that ordered it. If your checks are being garnished, your employer needs a court order to terminate the garnishment. Unfortunately, garnishment does not stop automatically the day your daughter is no longer entitled to child support. You must initiate the change.
Q. I am purchasing a second home while selling my first one. I already live in the new home, despite the fact that escrow has not closed yet. I am paying rent to live there. The buyer of my “old” home and her agent have not contacted in more than six weeks, and it appears this buyer cannot get a loan, despite the fact that she was supposed to be pre-qualified. I had to fix several items that she requested I fix before escrow closes. The date we had decided for escrow to close has long past and gone. I now have a second buyer, who is eager to purchase my home for an all cash transaction. I don’t want to lose this second buyer. What do I do?
A. Without seeing your Agreement to Purchase, I can guess that the house purchase was contingent upon obtaining a loan. If she cannot get the loan she applied for and is now shopping around for another loan, it might be a while. I suggest that you give the buyer either a Notice to Perform or to Cancel the transaction. If the repaired items were not too terribly expensive, or if they were items that needed fixing no matter which buyer buys the house, you should return her deposit back at the end of the time stated on the Notice to Perform and Cancel. That way, there are no hard feelings, otherwise you might be entangled in protracted litigation over her deposit.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been paying my ex-wife child support for the last 10 years for my daughter. This has been done through garnishment of my paychecks. At the beginning of August, my daughter turned 18. How much longer am I supposed to pay child support for her?
A. You failed to tell me whether or not she graduated from high school yet. If she is still a full-time high school student, you must pay child support until she turns 19 year old or graduates from high school, whichever comes first. If your daughter graduated from high school already, you must file a Motion to Terminate the child support with the same court that ordered it. If your checks are being garnished, your employer needs a court order to terminate the garnishment. Unfortunately, garnishment does not stop automatically the day your daughter is no longer entitled to child support. You must initiate the change.
Q. I am purchasing a second home while selling my first one. I already live in the new home, despite the fact that escrow has not closed yet. I am paying rent to live there. The buyer of my “old” home and her agent have not contacted in more than six weeks, and it appears this buyer cannot get a loan, despite the fact that she was supposed to be pre-qualified. I had to fix several items that she requested I fix before escrow closes. The date we had decided for escrow to close has long past and gone. I now have a second buyer, who is eager to purchase my home for an all cash transaction. I don’t want to lose this second buyer. What do I do?
A. Without seeing your Agreement to Purchase, I can guess that the house purchase was contingent upon obtaining a loan. If she cannot get the loan she applied for and is now shopping around for another loan, it might be a while. I suggest that you give the buyer either a Notice to Perform or to Cancel the transaction. If the repaired items were not too terribly expensive, or if they were items that needed fixing no matter which buyer buys the house, you should return her deposit back at the end of the time stated on the Notice to Perform and Cancel. That way, there are no hard feelings, otherwise you might be entangled in protracted litigation over her deposit.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Monday, March 23, 2009
Legal Eaze #62 Insurance Damages/Extramarital Child Support
Title: January 17, 2007
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880
Thursday, March 12, 2009
Legal Eaze #33 landscaping damage/ care for children after death
Title: October 26, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I live in one of the houses below the large development of new houses taking place at the corner of Curry and Highline. Last winter was one of the wettest on record, as everyone knows. As a result, because there was nothing but uncovered dirt in that development, mud ran down the streets below, covered our lawn and destroyed all the landscaping in our front yard. Just a few days ago, we had a lot of rain and again the mud ran down the street. It cost us substantial amount of money to replace the landscaping and a lot of hard work to make our front yard attractive again. How can we avoid a repeat of last year?
A. I hope you contacted the developer and made a complaint about the mud damaging your front yard. In fact, you should have given the developer an invoice for the cost of replacing your landscaping, as well as whatever you paid for the hired labor to clean up your front yard. If you made no contact, the developer will never know what hardship he caused the neighborhood downstream. In fact, this should have been a collective effort on the part of the entire neighborhood to invoice that developer for the problems he caused. Had that been done, the developer would have been on notice and would have ensured that a dam would have been built to protect that neighborhood. If there are still mounds of uncovered dirt above you, make sure to contact the developer to notify him of your past problems and that you do not want this to happen again, otherwise he will be liable for subsequent damages.
Q. I’ve had two children with my boyfriend in a past life, who has long ago left town. My children are now respectively 15 and 11. I was just diagnosed with advanced lung cancer and I don’t think I am going to make it past next year. I need to get my kids taken care of after I pass away. What should I do?
A. It appears that you want their father to take care of them, but you cannot find him, or know of his whereabouts. If this man never paid child support, you are wasting your time chasing him down. Your children are better off with a person of your own choosing. Make sure to prepare a will with a guardianship provision, naming a trusted individual to care for your minor children. It could be your sister, your mother or a friend. If you have no one in mind, and you die before your children are 18, then Court will probably send them to a foster home.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com or fax them to (661)825-8880.
Q. I live in one of the houses below the large development of new houses taking place at the corner of Curry and Highline. Last winter was one of the wettest on record, as everyone knows. As a result, because there was nothing but uncovered dirt in that development, mud ran down the streets below, covered our lawn and destroyed all the landscaping in our front yard. Just a few days ago, we had a lot of rain and again the mud ran down the street. It cost us substantial amount of money to replace the landscaping and a lot of hard work to make our front yard attractive again. How can we avoid a repeat of last year?
A. I hope you contacted the developer and made a complaint about the mud damaging your front yard. In fact, you should have given the developer an invoice for the cost of replacing your landscaping, as well as whatever you paid for the hired labor to clean up your front yard. If you made no contact, the developer will never know what hardship he caused the neighborhood downstream. In fact, this should have been a collective effort on the part of the entire neighborhood to invoice that developer for the problems he caused. Had that been done, the developer would have been on notice and would have ensured that a dam would have been built to protect that neighborhood. If there are still mounds of uncovered dirt above you, make sure to contact the developer to notify him of your past problems and that you do not want this to happen again, otherwise he will be liable for subsequent damages.
Q. I’ve had two children with my boyfriend in a past life, who has long ago left town. My children are now respectively 15 and 11. I was just diagnosed with advanced lung cancer and I don’t think I am going to make it past next year. I need to get my kids taken care of after I pass away. What should I do?
A. It appears that you want their father to take care of them, but you cannot find him, or know of his whereabouts. If this man never paid child support, you are wasting your time chasing him down. Your children are better off with a person of your own choosing. Make sure to prepare a will with a guardianship provision, naming a trusted individual to care for your minor children. It could be your sister, your mother or a friend. If you have no one in mind, and you die before your children are 18, then Court will probably send them to a foster home.
Friday, February 27, 2009
Legal Eaze #25 Schizophrenia Again/Paternity
Title: June 29, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
A very nice lady wrote me a letter about the schizophrenic young man I talked about in my last “Legal Eaze” column. She informed me that there are very few available hospital beds for the mentally ill, and they are only available for the most seriously mentally ill, i.e. must be s serious danger to self, to others or gravely disabled, in other words cannot feed, shelter and dress themselves.
She explained that she has a son who has been ill with schizophrenia for 28 years and it has been a long and difficult road in attempting to provide the help and the care her son requires. She suggested that the only legal solution available to desperate parents is to obtain a restraining order against a mentally ill adult child. Obviously, this would entail homelessness or ending up in the criminal justice system. Our jails and prisons are filled with mentally-ill inmates, who in the past were cared for in state hospitals. Unfortunately, these state hospitals have pretty much been all closed, leaving the mental patients to fend for themselves. However, she mentioned Luann Baldwin, MSW, a family advocate with Kern County Mental Health Dept., who can be reached at (661)868-6109. Also mentioned is a group called NAMI (Nat’l Alliance for the Mentally Ill), which meets in Tehachapi once a month. This is a local, state and national organization providing support, education and advocacy for consumers and family members. For more information about this organization, call (661)822-5391. I apologize for previously misinforming my readers.
Q. I have been sued for paternity by a woman I dated last year after she broke up with her boyfriend of many years. She told me almost from the beginning that she was pregnant by this man. Now, she has sued me for child support. I am not the father of this child and I do not want to pay child support for a child that is not mine. What can I do?
A. You need to respond to the Paternity lawsuit within 30 days from service of process by explaining that you are not the father of the child and that the woman who is suing you admitted to you that she was impregnated by another man. Specify that you want a DNA test to prove that you are not the father. These DNA tests are very accurate and if you are telling the truth, you will be exonerated. Good luck.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
A very nice lady wrote me a letter about the schizophrenic young man I talked about in my last “Legal Eaze” column. She informed me that there are very few available hospital beds for the mentally ill, and they are only available for the most seriously mentally ill, i.e. must be s serious danger to self, to others or gravely disabled, in other words cannot feed, shelter and dress themselves.
She explained that she has a son who has been ill with schizophrenia for 28 years and it has been a long and difficult road in attempting to provide the help and the care her son requires. She suggested that the only legal solution available to desperate parents is to obtain a restraining order against a mentally ill adult child. Obviously, this would entail homelessness or ending up in the criminal justice system. Our jails and prisons are filled with mentally-ill inmates, who in the past were cared for in state hospitals. Unfortunately, these state hospitals have pretty much been all closed, leaving the mental patients to fend for themselves. However, she mentioned Luann Baldwin, MSW, a family advocate with Kern County Mental Health Dept., who can be reached at (661)868-6109. Also mentioned is a group called NAMI (Nat’l Alliance for the Mentally Ill), which meets in Tehachapi once a month. This is a local, state and national organization providing support, education and advocacy for consumers and family members. For more information about this organization, call (661)822-5391. I apologize for previously misinforming my readers.
Q. I have been sued for paternity by a woman I dated last year after she broke up with her boyfriend of many years. She told me almost from the beginning that she was pregnant by this man. Now, she has sued me for child support. I am not the father of this child and I do not want to pay child support for a child that is not mine. What can I do?
A. You need to respond to the Paternity lawsuit within 30 days from service of process by explaining that you are not the father of the child and that the woman who is suing you admitted to you that she was impregnated by another man. Specify that you want a DNA test to prove that you are not the father. These DNA tests are very accurate and if you are telling the truth, you will be exonerated. Good luck.
Monday, January 5, 2009
Legal Eaze #19 Child Support/ Home Purchase
Originally Printed: April 20, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My ex-husband has owed $754 of ordered child support since February 1998. He also owes for two years of ordered day care charges totaling $540. He refuses to sign an interspousal grand deed on a piece of property awarded to me in our property settlement in 1997. What is my best course of action?
A. With regards to the back child support and the day care charges, you need to go into the same court that granted your divorce on an Order to Show Cause (OSC) and get the court to order arrearages to be paid through an assignment of your ex-husband’s wages. As for his refusal to sign the interspousal grand deed, you can double up on the same OSC and obtain a court order to the effect that the clerk of the court should sign your interspousal grant deed in order to get the property in your name only. Once you obtain your court order, you must find out who is in charge of signing your deed and how much it costs. You did not indicate where the property was located and what court granted your divorce. Every county has a different person in charge of signing deeds when the spouse who must sign refuses to do so, is deceased or cannot be found. However, the procedure is the same in every county. This is a fairly technical motion, so I advise you to contact an attorney to handle it for you.
Q. My husband and I made an offer to purchase a home about two weeks ago. We have not heard a word from the seller since. What’s the hold up and what can we do?
A. I simply do not have enough information to give you advice. Was your offer made to a real estate agent representing the seller? If so, contact the agent. Time is of essence in this hot real estate market and once an offer has been made, a response must come forth with a “yes” or “no” or a counteroffer. If you made your offer directly to the seller, then contact the seller. I presume no escrow has been opened and no deposit has been paid. It is possible that another offer was made at the same time as yours and the other offer was accepted. Nevertheless, you should be informed one way or another. You should not sit on an offer for two weeks, and this length of time tells me that either the house has already been sold or the seller is not very serious or some other major reason like an illness has gotten in the way. Patience is not necessarily a virtue here.
Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. My ex-husband has owed $754 of ordered child support since February 1998. He also owes for two years of ordered day care charges totaling $540. He refuses to sign an interspousal grand deed on a piece of property awarded to me in our property settlement in 1997. What is my best course of action?
A. With regards to the back child support and the day care charges, you need to go into the same court that granted your divorce on an Order to Show Cause (OSC) and get the court to order arrearages to be paid through an assignment of your ex-husband’s wages. As for his refusal to sign the interspousal grand deed, you can double up on the same OSC and obtain a court order to the effect that the clerk of the court should sign your interspousal grant deed in order to get the property in your name only. Once you obtain your court order, you must find out who is in charge of signing your deed and how much it costs. You did not indicate where the property was located and what court granted your divorce. Every county has a different person in charge of signing deeds when the spouse who must sign refuses to do so, is deceased or cannot be found. However, the procedure is the same in every county. This is a fairly technical motion, so I advise you to contact an attorney to handle it for you.
Q. My husband and I made an offer to purchase a home about two weeks ago. We have not heard a word from the seller since. What’s the hold up and what can we do?
A. I simply do not have enough information to give you advice. Was your offer made to a real estate agent representing the seller? If so, contact the agent. Time is of essence in this hot real estate market and once an offer has been made, a response must come forth with a “yes” or “no” or a counteroffer. If you made your offer directly to the seller, then contact the seller. I presume no escrow has been opened and no deposit has been paid. It is possible that another offer was made at the same time as yours and the other offer was accepted. Nevertheless, you should be informed one way or another. You should not sit on an offer for two weeks, and this length of time tells me that either the house has already been sold or the seller is not very serious or some other major reason like an illness has gotten in the way. Patience is not necessarily a virtue here.
Sunday, January 4, 2009
Legal Eaze #14 Evicting/ Child Support
Originally Printed: January 26, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I have a tenant in one of my rental homes who has a two-year lease with option to purchase the home. He has made substantial improvements to the home, increasing its value. However, he is a drug user and the house has become a haven for his drug-addicted friends. I want to evict him but I want to do it legally and fairly. What do I do?
A. The following clauses should be in your lease agreement: 1. Forbidding illegal activities during the tenancy. 2. Your approval was needed before your tenant could make any improvements to the property. Do you have proof that drugs are being used on the property? If so, you can evict him on that ground. Give him a 30-Day Notice to Vacate. If the does not vacate at the end of the 30 Days, file an Unlawful Detainer action. If you approved of the improvements made to the property, you may have to pay him for the services he rendered, which will complicate the action.
Q. My husband is not paying the child support he was ordered to pay. He quit his job so he would not have to pay for child support just to spite me. I am working two jobs but can’t make ends meet, and my two kids are suffering needlessly. What should I do?
A. Did you husband go back to court and make a Motion to modify the amount he has to pay in child support? If he did not, he is still obligated to pay the child support he was ordered to pay and you can ask Child Support Services to collect the arrearages and the child support you are entitled to. It is unfortunate that many people refuse to work in order to avoid paying their child support obligations, however, if they are able to work yet have voluntarily quit their jobs just to frustrate their children’s needs, they can go to jail, lose their driver’s license, lose their occupational license, etc. There is a great effort by the governmental authorities to see that parents take their responsibility to support their children seriously and the consequences of not doing so are severe. Child Support Services are a little slow, but they do a commendable job of bringing wayward parents back in line. Contact them immediately, especially if you cannot afford to hire a private attorney.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her home office in Alpine Forest, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. I have a tenant in one of my rental homes who has a two-year lease with option to purchase the home. He has made substantial improvements to the home, increasing its value. However, he is a drug user and the house has become a haven for his drug-addicted friends. I want to evict him but I want to do it legally and fairly. What do I do?
A. The following clauses should be in your lease agreement: 1. Forbidding illegal activities during the tenancy. 2. Your approval was needed before your tenant could make any improvements to the property. Do you have proof that drugs are being used on the property? If so, you can evict him on that ground. Give him a 30-Day Notice to Vacate. If the does not vacate at the end of the 30 Days, file an Unlawful Detainer action. If you approved of the improvements made to the property, you may have to pay him for the services he rendered, which will complicate the action.
Q. My husband is not paying the child support he was ordered to pay. He quit his job so he would not have to pay for child support just to spite me. I am working two jobs but can’t make ends meet, and my two kids are suffering needlessly. What should I do?
A. Did you husband go back to court and make a Motion to modify the amount he has to pay in child support? If he did not, he is still obligated to pay the child support he was ordered to pay and you can ask Child Support Services to collect the arrearages and the child support you are entitled to. It is unfortunate that many people refuse to work in order to avoid paying their child support obligations, however, if they are able to work yet have voluntarily quit their jobs just to frustrate their children’s needs, they can go to jail, lose their driver’s license, lose their occupational license, etc. There is a great effort by the governmental authorities to see that parents take their responsibility to support their children seriously and the consequences of not doing so are severe. Child Support Services are a little slow, but they do a commendable job of bringing wayward parents back in line. Contact them immediately, especially if you cannot afford to hire a private attorney.
Saturday, January 3, 2009
Legal Eaze #7 Child Support/ guardianship
Originally Printed: October 6, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My daughter is permanently disabled and will never be able to support herself. She is 18 years old. Her father wants to stop paying the child support ordered by the divorce court. I cannot afford to support my daughter by myself for the rest of her life. What can I do?
A. Both parents have a duty to support a disabled adult child. If your daughter is attending high school full-time and has not yet graduated, your ex-husband must continue to pay the child support until she turns 19. If your daughter does not attend high school, your ex-husband may want medical proof that your daughter is unable to work for the rest of her life. You should file an Order to Show Cause re: Continued support for a disabled adult child with the court that granted your divorce. You should not have to bear the burden of supporting your disabled daughter alone. However, the court may order your ex-husband to pay less support. Remember, parents of a disabled adult child can only support him or her to the best of their financial ability. By the way, there are governmental programs that can help with the schooling, training and medical needs to your disabled child, and I hope that you have taken advantage of such programs.
Q. My son’s girlfriend died in a car crash a few days ago. They have a daughter who is 1 year old. The dead girlfriend’s parents are seeking guardianship of this child, but so am I. My son is incarcerated because he had a fight with his girlfriend. What can I do?
A. You are short on details about your son’s situation and why he cannot raise his own daughter. If the maternal grandparents have filed a Petitioner for Guardianship, you will be notified of where and when the hearing will take place. You can object to their petition and introduce yourself as a potential guardian for this child. The court will appoint an investigator who will look into who would be the best custodian of this child. This may be an expensive proposition with legal and investigation fees. You have an uphill battle ahead of you, but if you feel you the better “substitute parent” and your son still wants to be part of his daughter’s life, then you should proceed without objection to the maternal grandparents having guardianship.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. My daughter is permanently disabled and will never be able to support herself. She is 18 years old. Her father wants to stop paying the child support ordered by the divorce court. I cannot afford to support my daughter by myself for the rest of her life. What can I do?
A. Both parents have a duty to support a disabled adult child. If your daughter is attending high school full-time and has not yet graduated, your ex-husband must continue to pay the child support until she turns 19. If your daughter does not attend high school, your ex-husband may want medical proof that your daughter is unable to work for the rest of her life. You should file an Order to Show Cause re: Continued support for a disabled adult child with the court that granted your divorce. You should not have to bear the burden of supporting your disabled daughter alone. However, the court may order your ex-husband to pay less support. Remember, parents of a disabled adult child can only support him or her to the best of their financial ability. By the way, there are governmental programs that can help with the schooling, training and medical needs to your disabled child, and I hope that you have taken advantage of such programs.
Q. My son’s girlfriend died in a car crash a few days ago. They have a daughter who is 1 year old. The dead girlfriend’s parents are seeking guardianship of this child, but so am I. My son is incarcerated because he had a fight with his girlfriend. What can I do?
A. You are short on details about your son’s situation and why he cannot raise his own daughter. If the maternal grandparents have filed a Petitioner for Guardianship, you will be notified of where and when the hearing will take place. You can object to their petition and introduce yourself as a potential guardian for this child. The court will appoint an investigator who will look into who would be the best custodian of this child. This may be an expensive proposition with legal and investigation fees. You have an uphill battle ahead of you, but if you feel you the better “substitute parent” and your son still wants to be part of his daughter’s life, then you should proceed without objection to the maternal grandparents having guardianship.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Wednesday, December 31, 2008
Legal Ease #1 Unemployment/Child Support/Identity Theft
Originally Printed: June 23, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I am unemployed and cannot pay my rent. My landlord wants to kick me out of my apartment. What can I do?
A. Unfortunately, there is little you can do other than to find another job as quickly as possible. You may attempt to pacify your landlord by asking for his/her patience while you are seeking employment or get a loan from family or friends to pay for your rent. If you are served with a “Three-Day Notice to Vacate”, disregard the notice and wait until your landlord files an unlawful detainer action against you to get you out. But, you may be faced with a judgment for rent and damages, which may include attorney’s fees, not to mention the fact that your credit report will reflect this judgment..
Q. I have been paying child support to my ex-wife for several years. The child support award was based on my previous income. I only earn half of what I used to earn because I was injured and cannot work the same job anymore. How can I lower my child support?
A. A Motion to the Court to modify your child support amount must be made as soon as your circumstances change, otherwise you will be charged for arrearages in child support, in addition to interest at 10 percent per year on the arrearages. Judges are powerless in showing compassion in their orders and must follow the law. The modification will be retroactive to the date the motion was filed with the court. Time is of essence, and this motion must be made quickly.
Q. I have been victimized by identity theft and I don’t know how to stop a creditor from collecting on a debt that I did not incur. What can I do?
A. The first thing you must do is to write to the creditor and let him know that you dispute the debt. This letter should be sent via certified or registered mail. Then you must write to the three credit agencies, Equifax, Experian and Trans-Union and inform them of the dispute with the creditor. Lastly, but not the least, file a complaint with the police department of your community and make an ID Theft Complaint to the Federal Trade Commission (www.consumer.gov) The FTC maintains a database of identity theft cases used by law enforcement agencies. Filing a complaint also helps such agencies learn more about identity theft and the problems victims are having.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
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