Title: July 23, 2008
Q: Does my prenuptial agreement need to address the commingling of assets?
A. The commingling of assets usually will signify a forfeiture of the protection afforded in the prenuptial agreement with regards to the particular assets that have been commingled. Once commingled, it will be difficult to separate these assets from the rest. Typically, the parties commingle because their intent is to share the entire value of the commingled assets. A prenuptial agreement can certainly address such subject, but it might be a waste of paper to do so, not to mention a waste of the time and energy it takes to draft the paragraph addressing the issue.
Q. MSA: What is it? Must I go to Court to deal with it?
A. An MSA stands for “Marital Settlement Agreement”. It is a document that enumerates all the issues the parties are in agreement with, regarding their dissolution of marriage. Typically, if drafted by an attorney, it will address every issue that pertains to the parties’ divorce, including child custody and visitation, child and spousal support, division of assets and debts, division of retirement benefits, division of business interests, if any, and all other issues that usually arise in the course of a dissolution of marriage. If properly drafted, the parties usually do not have to go to Court in order for the Court to process the Judgment and ancillary papers. This is usually the best way to resolve all issues relating to a divorce (aka dissolution of marriage).
Q. What is a limited Non-durable Power of Attorney for Minor (child/children) care?
A. Typically, it is an authorization by the natural parents or the parties who are usually liable for the care of the child/dren to appoint an agent or agents to care for the child/dren during their absence from the country or their unavailability for any other reason. Such authorization can include, and is not limited to, the right to consent to any necessary medical or dental treatment, or non-medical decisions required for the personal care of the child/dren and every act performed by the agent(s) is ratified by the parent(s) of the child/dren. Such limited Power of Attorney is granted for the duration of the parents’ absence from the country.
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 divorce. Show all posts
Showing posts with label divorce. 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 #83 Intestate Assets/Paralegal Paperwork
Title: December 26, 2007
Q. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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. My boyfriend of 7 years and I bought two adjoining properties in Los Angeles County. The house was built on my side. Utilities were installed on my side, but are connected to his side to operate machinery, and provide water and electricity to various out buildings he installed on his side. He died 2 years ago. He left no will. Now his mother wants to take over and take away out buildings, and various items that we purchased together but located on his side. Do I have any rights?
A. If I understand you correctly, your boyfriend died intestate. This means all of his assets will be distributed according to intestate laws. If he has no children, his assets will go to his parents, if they are still alive. If not, next his assets will go to his brothers and sisters and/or aunts and uncles, then grandparents and nieces and nephews. Since you were not married to him, you have no rights to his assets, however if you can prove that you participated in the purchase of the items being taken away by your boyfriend’s mother, such as having receipts in your possession, then you can claim ownership of these items. If you do not have any proof that you participated in the purchase of the items, and they are located on his side, then they belong to his heirs and not you. This is why it is so important to have at least a will drafted so that your assets will be distributed to the people you decide should inherit them rather than the persons the state of California decide should get them.
Q. I represent myself in my own divorce and hired a paralegal to fill out all the paperwork to be filed in court. Come to find out that the paperwork was filled out incorrectly and now my divorce has turned into a nightmare. What do I do now?
A. Hire an attorney to represent you. All is not lost. Legal paperwork can be amended. Paralegals are not attorneys and they cannot practice law. Many are quite knowledgeable and can do wonders with the court paperwork, but not all. Unfortunately, paralegals do not have to answer to the California State Bar and cannot be sued for malpractice. It is true that attorneys charge more for their services, but rightfully so. They do answer to the California State Bar and can be sued for malpractice.
I wish all of my readers to have good cheer, good food and good company for very Happy and Safe Holidays.
Maxine de Villefranche is an attorney and civil general practitioner with 15 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
Legal Eaze #80 Community Property and Divorce Jurisdiction/Insufficient Funds
Title: November 5, 2007
Q: My friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 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 friend is contemplating a divorce from her husband of 10 years. They live in California. She owns a house in Arizona that she must sell soon. Her husband signed off on the house when it was purchased 5 years ago. She plans to file for divorce in Arizona. The proceeds from the sale of this house will be her only retirement security. Is this house community property according to the laws of California?
A: It depends on the nature of the funds she used to purchase the Arizona house. If she used separate property, such as an inheritance, or monies she saved before she got married, then it will be considered separate property. If she used her earnings to purchase the house, earnings are considered community property and the house would then be considered community property according to California law. By the way, she may not be able to file for divorce in Arizona unless she resides there for some time before she files, otherwise California has jurisdiction over the marriage. If she does not reside in Arizona before she files, even though she owns property there, her husband may force the case to be transferred to a California court. I just had a case similar to this where the husband, who had been residing in Nevada after he separated from his wife, filed for divorce in Nevada. Only he was married in California, lived with his wife in California, and the wife remained in California in the house they shared together. The man had to dismiss the case in Nevada while the wife filed a new case in California. The wife never submitted herself to Nevada’s jurisdiction, hence a California court ended up with the case.
Q: I own a business and at times, some customers pay with checks that come back for insufficient funds. What can I do to collect?
A: First you should call the customer and request payment in cash. Do not discuss the bad check with anyone else but the customer and only call at reasonable hours. Be polite and make no threats. Second, make the same demand via certified letter, return receipt requested. If the customer’s bank account is still active, wait a few days and call the bank to see if there are sufficient funds in the account to pay the check. Kern County has a “bad check” program available. They will contact the customer and give him/her a chance to avoid being prosecuted by making the check good. Otherwise, you can file a Small Claims Court claim and may be able to collect extra damages (two or three times the value of the check) or use a collection agency, despite their huge cut.
Maxine de Villefranche has been an attorney for 14 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 #79 Process Server Charges/ Overturn Custody Judgement/Sales Commission
Title: October 24, 2007
Q: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 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: I hired a professional process service to serve divorce papers on my wife. They attempted to serve her 3 times but were unsuccessful. Now they want to charge me more to serve her. What do I do?
A: I cannot advise you as to whether or not the process server charges are proper. After several attempts to serve personally, a process server can then serve the paperwork by substitute service i.e. on another adult who can be found at the same address as your wife, either at home or at work. The process server must also fill out a form called “reasonable diligence” to the effect that several attempts were made to effect personal service, but to no avail. Another way is to leave the paperwork in an appropriate place where your wife would be most likely to see it, such as a few feet from where she is standing if she is avoiding service, or by substitute service at a private post office box where she regularly receives her mail. A copy of the paperwork must also be mailed to your wife. It is established law that a Defendant will not be permitted to defeat service by rendering physical service impossible. If your wife resides in a gated community, by law, registered process servers, upon proper identification, must be granted access to a gated community, staffed by a guard. There is also service by publication available if you cannot find your wife’s location.
Q: Is it possible to overturn a judgment of full custody?
A: Yes it is. If the circumstances have changed, you can make a Motion to Modify custody. However, there must really be a change of circumstances. If the situation is exactly the same as when the judge made his decision and you make the motion to modify custody, the Judge could order you to pay for opposing party’s attorney’s fees. But if the situation is now different, your ex-spouse is ill, or wants to remarry an ex-con who was convicted of child molestation or something the Judge should know about, then go for it.
Q. I recently resigned from a sales position with an insurance company. They refuse to pay my sales commission because I am no longer an employee. Their sale manual clearly states that one must be an employee at the time the check is cut. We are talking about more than $10,000 here. What can I do?
A. Go to the Labor Commission and make a claim. This practice is clearly unethical. The company is violating the contract terms you surely entered into when you began working for it. The employer has a contractual duty to pay the earned commission, and you should not be penalized because your commission is paid several weeks after you earned it.
Maxine de Villefranche has been an attorney for 14 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 #78 Statute of Limitations/Small Claims Citizenship/Court Order/Ex-Parte Motion
Title: October 3, 2007
Q. What is the statue of Limitations?
A. The word is spelled “statute” rather than “statue”. A Statute of Limitations is a law setting forth the maximum period of time after certain events have occurred for legal proceedings based on these events to begin. In many law systems, these legal provisions are part of the civil code or criminal code. For example, in our common law system, we might have a statute limiting prosecution of misdemeanor crimes to two years. In other words, if someone is discovered to have committed a misdemeanor offense 5 years ago, he or she cannot be prosecuted for it because the Statute of Limitations has run on that offense. The same goes for a civil case. If you have a car accident caused by someone else, you have only a certain period of time to sue that other person for any injuries or damages you suffered. The period of time you have to file a lawsuit is called the Statute of Limitations.
Q. Do you have to be an American citizen to file a Small Claims Court action?
A. No. No one will check your citizenship or immigration status to file a claim.
Q. I was personally served with an Order of Examination prepared by a lawyer to appear in Court. I just started a new job and if I take the day off to go to Court, I might lose my job. This is about an old debt that I have been unable to pay because of my unemployment. What happens if I don’t go?
A. The Court will issue a warrant for your arrest. It is a Court order and you must obey it. You need to inform your new employer that you must appear for the examination and that you do not have a choice in the matter. If you do not appear, you will eventually get arrested and brought to Court by the police.
Q. Just before our separation, my husband added my name to the home loan to help build up my credit. Now he refuses to pay the mortgage and just wants the house to be foreclosed on. I am living with my parents now, and cannot afford to pay the mortgage. What can I do?
A. You need to file an Ex-Parte Motion with the Court in your divorce action to force your husband to pay the mortgage. Time is of essence. The family residence is a community asset, and if there is equity in the house, it must be preserved in order to divide that equity fairly between the parties. Your husband’s actions are unfair and selfish.
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. What is the statue of Limitations?
A. The word is spelled “statute” rather than “statue”. A Statute of Limitations is a law setting forth the maximum period of time after certain events have occurred for legal proceedings based on these events to begin. In many law systems, these legal provisions are part of the civil code or criminal code. For example, in our common law system, we might have a statute limiting prosecution of misdemeanor crimes to two years. In other words, if someone is discovered to have committed a misdemeanor offense 5 years ago, he or she cannot be prosecuted for it because the Statute of Limitations has run on that offense. The same goes for a civil case. If you have a car accident caused by someone else, you have only a certain period of time to sue that other person for any injuries or damages you suffered. The period of time you have to file a lawsuit is called the Statute of Limitations.
Q. Do you have to be an American citizen to file a Small Claims Court action?
A. No. No one will check your citizenship or immigration status to file a claim.
Q. I was personally served with an Order of Examination prepared by a lawyer to appear in Court. I just started a new job and if I take the day off to go to Court, I might lose my job. This is about an old debt that I have been unable to pay because of my unemployment. What happens if I don’t go?
A. The Court will issue a warrant for your arrest. It is a Court order and you must obey it. You need to inform your new employer that you must appear for the examination and that you do not have a choice in the matter. If you do not appear, you will eventually get arrested and brought to Court by the police.
Q. Just before our separation, my husband added my name to the home loan to help build up my credit. Now he refuses to pay the mortgage and just wants the house to be foreclosed on. I am living with my parents now, and cannot afford to pay the mortgage. What can I do?
A. You need to file an Ex-Parte Motion with the Court in your divorce action to force your husband to pay the mortgage. Time is of essence. The family residence is a community asset, and if there is equity in the house, it must be preserved in order to divide that equity fairly between the parties. Your husband’s actions are unfair and selfish.
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
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
Legal Eaze # 41 Legal Separation/Small Claims Court
Title: March 22, 2006
Q. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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. What is a legal separation?
A. When parties are uncertain as to whether or not they want to terminate/dissolve their marriage, they can file a proceeding for “legal separation” instead of “dissolution of marriage”. Marital rights and financial responsibilities may be decided by the family law court without dissolving the marriage. The parties can obtain a Judgment of Legal Separation but that does not terminate their marital status, in other words, they are still husband and wife even though legally they have divided all of the community property estate and have resolved child support and spousal support. Legal separation is an alternative to divorce and is generally sought out by the parties when there is breakdown of the marriage. It is sometimes used for religious or personal reasons, such as in order to retain eligibility for medical insurance that would otherwise be lost by a termination of the marriage. This can be a very important consideration where a spouse has a preexisting medical condition for which new coverage would not be obtainable.
Q. How do I file a Small Claims Court case?
A Most state courthouses have a Small Claims court Division. However, you must sue a defendant in the proper court. Generally, you must sue in the city where the defendant lives, or where they agreed to the disputed contract with you, or where the action took place that led to your injury. Businesses can also be sued in any city where they do business. The advantages of suing in Small Claims Court are 1) it's quick 2) it's cheap 3) it's informal 4) there are no lawyers. The disadvantages are 1) if you are the plaintiff and you are not happy with the Court's decision, you cannot appeal 2) no lawyers: if you are unable to present your case persuasively, you may lose. It sometimes helps to have a high-priced mouthpiece used to represent a party. You file your claim and serve the defendant. Have it served by someone other than you. Anyone over the age of 18 can do. Certified mail is sometimes used. The court clerk can do it for a small fee. But if the defendant knows it's a lawsuit, he/she may not sign it. Once served, you must attend the trial hearing. Make sure you have all your photographs and/or documents pertaining to the dispute. Now that you are in court, be clear and concise because the Judge does not have all to listen to you. The Plaintiff goes first, then the defendant. The Judge may ask each of you some questions, then will make a decision.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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.
Monday, March 16, 2009
Legal Eaze #40 attorney fees, child support, probate, lost a long trial
Title: February 8, 2006
Q. I just went through a divorce and the attorney’s fees were very costly. I am wondering if the attorney’s fees are tax deductible?
A. Generally, attorney fees and other costs paid in connection with a Dissolution of marriage are nondeductible. There are several exceptions such as attorney fees incurred specifically for production of income, such as spousal support issues in the case, tax advice and preservation of title to a capital asset, such as land, buildings and machinery. Attorney’s fees related to child custody and child support are nondeductible. Your attorney needs to make sure that accurate billing records are kept which allocates the services and expenses into those which may have a tax benefit to the client from those which are purely personal.
Q. Do I have to support my children through college?
A You are obligated to support your children until they are either 18 years old and graduated from high school, or when they turn 19 years old. You do not have to support your children through college, unless you want to.
Q. Does my estate need to be probated if it is worth less than $100,000?
A. No. An estate must reach the threshold amount of $100,000 to require that it be probated. There is an administration procedure sanctioned by the Court for estates worth less than $100,000, which is a very efficient way to have your assets pass to your heirs. However, you must have a will drafted. Otherwise, your assets will pass to persons you may not want to leave anything to, but according to the laws of the California. Nightmarish outcomes have been reached through California intestate laws. Make very sure you have a will spelling out your last wishes with regards to your assets. That way, the state cannot decide who your assets will go to.
Q. I have lost a long jury trial. I want to appeal. What now?
A. Even though you are angry and disappointed, some basic knowledge about the appellate process is necessary before you decide to appeal all the way to the Supreme Court. An appeal is not a retrial. You cannot call witnesses or present testimony. The Court of Appeal is not deciding your case on its merits. It will look for legal error in the trial below. That error may be one committed by the court, the jury, or even opposing counsel. To justify reversal, the error must be prejudicial and result in a miscarriage of justice. Of course, errors often occur during a trial; no trial is perfect. You must show that the error is so significant that it is more likely than not it affected the outcome of the case.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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 just went through a divorce and the attorney’s fees were very costly. I am wondering if the attorney’s fees are tax deductible?
A. Generally, attorney fees and other costs paid in connection with a Dissolution of marriage are nondeductible. There are several exceptions such as attorney fees incurred specifically for production of income, such as spousal support issues in the case, tax advice and preservation of title to a capital asset, such as land, buildings and machinery. Attorney’s fees related to child custody and child support are nondeductible. Your attorney needs to make sure that accurate billing records are kept which allocates the services and expenses into those which may have a tax benefit to the client from those which are purely personal.
Q. Do I have to support my children through college?
A You are obligated to support your children until they are either 18 years old and graduated from high school, or when they turn 19 years old. You do not have to support your children through college, unless you want to.
Q. Does my estate need to be probated if it is worth less than $100,000?
A. No. An estate must reach the threshold amount of $100,000 to require that it be probated. There is an administration procedure sanctioned by the Court for estates worth less than $100,000, which is a very efficient way to have your assets pass to your heirs. However, you must have a will drafted. Otherwise, your assets will pass to persons you may not want to leave anything to, but according to the laws of the California. Nightmarish outcomes have been reached through California intestate laws. Make very sure you have a will spelling out your last wishes with regards to your assets. That way, the state cannot decide who your assets will go to.
Q. I have lost a long jury trial. I want to appeal. What now?
A. Even though you are angry and disappointed, some basic knowledge about the appellate process is necessary before you decide to appeal all the way to the Supreme Court. An appeal is not a retrial. You cannot call witnesses or present testimony. The Court of Appeal is not deciding your case on its merits. It will look for legal error in the trial below. That error may be one committed by the court, the jury, or even opposing counsel. To justify reversal, the error must be prejudicial and result in a miscarriage of justice. Of course, errors often occur during a trial; no trial is perfect. You must show that the error is so significant that it is more likely than not it affected the outcome of the case.
Maxine de Villefranche is an attorney and civil general practitioner with 13 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 #35 Credit Card Debt/ Spousal Support
Title: December 21, 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. My daughter had to file for bankruptcy when she divorced her first husband, because he “took her to the cleaners”. Now she has remarried and wants to buy a house with her new husband. What are the ramifications of the bankruptcy she filed some time ago?
A. A bankruptcy stays on someone’s credit report for 10 years. However, a person who has undergone bankruptcy can re-reestablish his/her credit much sooner. Any credit will cost more, i.e. the interest rate charged to that person will be higher than that charged to someone who has a perfect credit score. As the credit is slowly re-established and payments on household bills and other bills are being paid on time on a regular basis, the interest charged on credit will slowly decrease until such time that creditors feel the risk of lending money to that person is low or is equal to the norm. This can take anywhere from two to four years, or longer, depending on the spending habits of that person, whether he/she is living above his/her means, paying bills on time and whether the credit limit on credit cards is reached too often. One of the best way to re-establish one’s credit is to avoid “maxing” out credit cards and to keep your balance(s) at a minimum. Having 10 credit cards is not a good idea, because creditors will feel that it is much easier to get quickly into trouble with that many credit cards. One must not forget also that it is much more difficult to file for bankruptcy nowadays since bankruptcy laws changed in October. Many will be forced to file a Chapter 13 bankruptcy which entails repayment of your debts over a period of up to five years.
Q. I have to pay spousal support to my ex-wife until she remarries or dies. She lives with some guy in another state. Do I have to continue paying spousal support to her?
A. Family law Code Section 4323 states there is a rebuttable presumption that there is a decreased need for spousal support when the supported party is cohabiting with a person of the opposite sex. The supporting party may seek relief by claiming that the non-marital partner’s income must be considered in determining spousal support award to the extent it reduces the other’s living expenses. You must make a motion in Court to modify the spousal support due to the cohabitation of the supported party and her reduced living expenses.
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. My daughter had to file for bankruptcy when she divorced her first husband, because he “took her to the cleaners”. Now she has remarried and wants to buy a house with her new husband. What are the ramifications of the bankruptcy she filed some time ago?
A. A bankruptcy stays on someone’s credit report for 10 years. However, a person who has undergone bankruptcy can re-reestablish his/her credit much sooner. Any credit will cost more, i.e. the interest rate charged to that person will be higher than that charged to someone who has a perfect credit score. As the credit is slowly re-established and payments on household bills and other bills are being paid on time on a regular basis, the interest charged on credit will slowly decrease until such time that creditors feel the risk of lending money to that person is low or is equal to the norm. This can take anywhere from two to four years, or longer, depending on the spending habits of that person, whether he/she is living above his/her means, paying bills on time and whether the credit limit on credit cards is reached too often. One of the best way to re-establish one’s credit is to avoid “maxing” out credit cards and to keep your balance(s) at a minimum. Having 10 credit cards is not a good idea, because creditors will feel that it is much easier to get quickly into trouble with that many credit cards. One must not forget also that it is much more difficult to file for bankruptcy nowadays since bankruptcy laws changed in October. Many will be forced to file a Chapter 13 bankruptcy which entails repayment of your debts over a period of up to five years.
Q. I have to pay spousal support to my ex-wife until she remarries or dies. She lives with some guy in another state. Do I have to continue paying spousal support to her?
A. Family law Code Section 4323 states there is a rebuttable presumption that there is a decreased need for spousal support when the supported party is cohabiting with a person of the opposite sex. The supporting party may seek relief by claiming that the non-marital partner’s income must be considered in determining spousal support award to the extent it reduces the other’s living expenses. You must make a motion in Court to modify the spousal support due to the cohabitation of the supported party and her reduced living expenses.
Monday, March 2, 2009
Legal Eaze #30 house repair/divorce property
Title: September14, 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 just bought a house and moved in a couple of weeks ago. I found mince running around the house at night. The bathroom tap is leaking under the sink, and now that I am looking at it closely, the problem is obviously not new. There’s rot under that sink. I am sure that other problems will surface along the way. While the house was in escrow, I noticed that all the disclosures signed by the seller were at least one year old. But because I did not really care for nor trusted the real estate agent representing me, I did not say anything. What can I do at this point?
A. When a house is being sold, disclosures by the seller should be recent. A lot of things can break down and get damaged during a year’s time. This is why it is so important to have an experienced home inspector inspect the house before purchasing it. An inspector would have seen the rot under the sink and pointed it out to you. Electrical, heating and septic systems should be fully operational before buying a house. The roof should have a few years left on it. If the disclosures do not reflect the true condition of the house, you have recourse against the seller of the house for breach of contract and fraudulent disclosures. It is too late to do anything about your lack of trust in your agent.
Q. I am undergoing a divorce right now. I inherited a house from my father when he died. This was a good 23 years ago. I live in the house with my wife and kids during the entire marriage. The mortgage was fully paid form insurance proceeds at the death of my father. Of course, I made improvements to the house, but the house is still free and clear. Now my wife claims an interest in the house. Is this house community property or not?
A. You failed to tell me whether you added your wife’s name to the title of the house. If you did not, the house may be separate property and your wife is not entitled to any part of it, if she did not contribute to the improvements made. If you added your wife’s name to the deed, she may have a community interest in it. Depending whether your wife contributed to the improvements made, she may be entitled to a reimbursement of monies spent towards the improvements. Monies spent on improvements may have come from your earnings, which are considered community property. This is a very complicated issue, with many factors to consider.
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 just bought a house and moved in a couple of weeks ago. I found mince running around the house at night. The bathroom tap is leaking under the sink, and now that I am looking at it closely, the problem is obviously not new. There’s rot under that sink. I am sure that other problems will surface along the way. While the house was in escrow, I noticed that all the disclosures signed by the seller were at least one year old. But because I did not really care for nor trusted the real estate agent representing me, I did not say anything. What can I do at this point?
A. When a house is being sold, disclosures by the seller should be recent. A lot of things can break down and get damaged during a year’s time. This is why it is so important to have an experienced home inspector inspect the house before purchasing it. An inspector would have seen the rot under the sink and pointed it out to you. Electrical, heating and septic systems should be fully operational before buying a house. The roof should have a few years left on it. If the disclosures do not reflect the true condition of the house, you have recourse against the seller of the house for breach of contract and fraudulent disclosures. It is too late to do anything about your lack of trust in your agent.
Q. I am undergoing a divorce right now. I inherited a house from my father when he died. This was a good 23 years ago. I live in the house with my wife and kids during the entire marriage. The mortgage was fully paid form insurance proceeds at the death of my father. Of course, I made improvements to the house, but the house is still free and clear. Now my wife claims an interest in the house. Is this house community property or not?
A. You failed to tell me whether you added your wife’s name to the title of the house. If you did not, the house may be separate property and your wife is not entitled to any part of it, if she did not contribute to the improvements made. If you added your wife’s name to the deed, she may have a community interest in it. Depending whether your wife contributed to the improvements made, she may be entitled to a reimbursement of monies spent towards the improvements. Monies spent on improvements may have come from your earnings, which are considered community property. This is a very complicated issue, with many factors to consider.
Saturday, January 3, 2009
Legal Eaze #10 Mother Abuse / Dicorce House Title
Title: November 24, 2004
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. My wife beat my 13-year-old son with a fire poker made of heavy metal. When I got home from work, he was bleeding heavily from a wound on his right arm, through which I could see a bone. He was shying away from her, hiding underneath hung clothes in a closet. She left the house and ran to her sister who lives in another county. Besides taking him to the hospital, what can I do to stop this madness?
A. Call the police. This is a criminal matter. When a mother starts beating up her child with a metal rod and injures the child, it is time to put “mom” in jail. She might need psychiatric care and/or psychological therapy. Once she comes out of jail, you may need to obtain a temporary restraining order against her and get her out of the house and away from your son. It does not matter what your son did to anger her to that point, she does not have the right to “discipline” him in such a harsh manner. In fact, it is a crime now to even spank a child. Parents need to find another way to instill respect and obedience in their children besides “beating” them up.
Q. I obtained a divorce about five years ago and the residence I have been living in was awarded to me as my sold and separate property in the divorce decree. I am now trying to refinance the house and I just discovered that the tile of the house is still held jointly with my ex-husband. I have no idea how that could have happened, and I don’t know where my ex-husband now resides. What can I do?
A. If you were represented by an attorney, he committed malpractice. If you represented yourself, such omissions are the reason why you should have hired an attorney to represent you. You need to file an Order to Show Cause with the same court that signed the divorce decree. If you cannot find your ex-husband, the court clerk will have to sign the Quitclaim Deed for him. But you need to prepare and file a declaration telling the court what the problem is and why you need the court clerk to sign the deed. If your declaration is believed by the judge, you will get the Order you need, instructing the court clerk to sign your Quitclaim Deed, which you can then have recorded with the county recorder.
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. My wife beat my 13-year-old son with a fire poker made of heavy metal. When I got home from work, he was bleeding heavily from a wound on his right arm, through which I could see a bone. He was shying away from her, hiding underneath hung clothes in a closet. She left the house and ran to her sister who lives in another county. Besides taking him to the hospital, what can I do to stop this madness?
A. Call the police. This is a criminal matter. When a mother starts beating up her child with a metal rod and injures the child, it is time to put “mom” in jail. She might need psychiatric care and/or psychological therapy. Once she comes out of jail, you may need to obtain a temporary restraining order against her and get her out of the house and away from your son. It does not matter what your son did to anger her to that point, she does not have the right to “discipline” him in such a harsh manner. In fact, it is a crime now to even spank a child. Parents need to find another way to instill respect and obedience in their children besides “beating” them up.
Q. I obtained a divorce about five years ago and the residence I have been living in was awarded to me as my sold and separate property in the divorce decree. I am now trying to refinance the house and I just discovered that the tile of the house is still held jointly with my ex-husband. I have no idea how that could have happened, and I don’t know where my ex-husband now resides. What can I do?
A. If you were represented by an attorney, he committed malpractice. If you represented yourself, such omissions are the reason why you should have hired an attorney to represent you. You need to file an Order to Show Cause with the same court that signed the divorce decree. If you cannot find your ex-husband, the court clerk will have to sign the Quitclaim Deed for him. But you need to prepare and file a declaration telling the court what the problem is and why you need the court clerk to sign the deed. If your declaration is believed by the judge, you will get the Order you need, instructing the court clerk to sign your Quitclaim Deed, which you can then have recorded with the county recorder.
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
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