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.
Showing posts with label jurisdiction. Show all posts
Showing posts with label jurisdiction. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze #48 Child Custody Jurisdiction/Reimbursement
Title: June 14, 2006
Q. My brother and his wife just had a baby girl a few weeks ago. They live in Florida. His wife came to spend some time with her parents here in California and brought the baby with her. The next thing we know, the wife filed for sole custody of the baby in California and does not plan to go back to Florida. Can she do that?
A. A petition for custody needs to be filed in the Court that has jurisdiction in accordance with the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The “home state” means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Obviously the baby is not even six months old yet. Unless “emergency” jurisdiction applies, i.e. there is a genuine “immediate” and “substantial harm” to the child or the mother, the California court will more than likely refuse to make a decision in the case because it does not have jurisdiction over the child. However, if your brother has a violent temper and she fears for her own safety or the safety of the child, then “emergency” jurisdiction would apply and the California court will make a decision either on an ex-parte basis or after a second hearing to allow both parties to prepare their argument in writing.
Q. I bought a carton of Snapple tea bottles from a grocery store (24 bottles were included). A few days later, I picked up a bottle and was getting ready to open it when I noticed some strange green stuff inside the bottle. I grossed me out and I vomited the meal I had just eaten. I returned the bottle to the store and an employee took a report, but nothing was done to reimburse me for the trouble I went through. What can I do?
A. Other than the dinner you lost, were you injured? Did you have to go to the hospital or doctor for mental stress? There is little you can do because your damages are minimal. You could bill the store for the meal you lost. The store where you bought the tea did not manufacture the bottles and it would be up to the manufacturer to reimburse you for the damages you suffered. If I was the owner of the store, I would probably offer you another carton just to appease you. Make sure that the bottle you are about to drink from is still sealed. It is possible that the bottle was “banged” around and the seal was broken. The “green stuff” you saw inside the bottle was probably harmless mold.
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. My brother and his wife just had a baby girl a few weeks ago. They live in Florida. His wife came to spend some time with her parents here in California and brought the baby with her. The next thing we know, the wife filed for sole custody of the baby in California and does not plan to go back to Florida. Can she do that?
A. A petition for custody needs to be filed in the Court that has jurisdiction in accordance with the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA). The “home state” means the state in which a child lived with a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Obviously the baby is not even six months old yet. Unless “emergency” jurisdiction applies, i.e. there is a genuine “immediate” and “substantial harm” to the child or the mother, the California court will more than likely refuse to make a decision in the case because it does not have jurisdiction over the child. However, if your brother has a violent temper and she fears for her own safety or the safety of the child, then “emergency” jurisdiction would apply and the California court will make a decision either on an ex-parte basis or after a second hearing to allow both parties to prepare their argument in writing.
Q. I bought a carton of Snapple tea bottles from a grocery store (24 bottles were included). A few days later, I picked up a bottle and was getting ready to open it when I noticed some strange green stuff inside the bottle. I grossed me out and I vomited the meal I had just eaten. I returned the bottle to the store and an employee took a report, but nothing was done to reimburse me for the trouble I went through. What can I do?
A. Other than the dinner you lost, were you injured? Did you have to go to the hospital or doctor for mental stress? There is little you can do because your damages are minimal. You could bill the store for the meal you lost. The store where you bought the tea did not manufacture the bottles and it would be up to the manufacturer to reimburse you for the damages you suffered. If I was the owner of the store, I would probably offer you another carton just to appease you. Make sure that the bottle you are about to drink from is still sealed. It is possible that the bottle was “banged” around and the seal was broken. The “green stuff” you saw inside the bottle was probably harmless mold.
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
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