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 mortgage. Show all posts
Showing posts with label mortgage. Show all posts
Tuesday, March 24, 2009
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
Legal Eaze #77 Canceling Real Estate Purchase Contract/Removing Self From Mortgage/Rent To Own
Title: September 12, 2007
Q. Other than forfeiting an earnest money deposit, is there a penalty for canceling a real estate purchase contract?
A. It depends on the contract. If the purchase contract was accepted by the seller, escrow was opened, the seller may file a lawsuit for specific performance, specially if the real estate market is in a downward mode and the seller would lose money by having to put the property back on the market and sell it at a reduced price. Time is often of essence in a real estate sale and obviously a lot of time, and profits can be lost when the seller loses several months in paying a mortgage on real estate that did not sell quickly. The penalty would be attorney’s fees in defending a lawsuit for specific performance, not to mention the Court can force you to buy the property if you lose the suit.
Q. Can I remove myself from a mortgage that I had with my mother when she bought her house? I now want to buy my own house, but I cannot qualify because I am still on the hook for the mortgage on my mother’s house.
A. You cannot remove yourself from a mortgage unless the mortgage holder consents or the mortgage is paid off. Typically, this scenario occurs in a marriage that ends up in divorce. But since this is a deal you made with your mother, you cannot “divorce” her. I would approach the subject with your mother and see if she is in a position to refinance her house without your financial backing.
Q. I rented a house with an agreement to rent to own. There are numerous problems with this house. The roof was leaking. I got it fixed. The toilet in the basement was leaking. I got it fixed. The support beams are all crooked, and major repairs need to be done. I had this house appraised, and it is worth $50,000 less than what the owner is asking for it. I have got to get out of this “rent to own” agreement. Can I?
A. It really depends on the terms of the contract you entered into. You may have to let go of the equity you built in the house. However, you may be entitled to recover the cost of the repairs and improvements you made to the house, however you need to document the costs of the repairs and improvements.
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. Other than forfeiting an earnest money deposit, is there a penalty for canceling a real estate purchase contract?
A. It depends on the contract. If the purchase contract was accepted by the seller, escrow was opened, the seller may file a lawsuit for specific performance, specially if the real estate market is in a downward mode and the seller would lose money by having to put the property back on the market and sell it at a reduced price. Time is often of essence in a real estate sale and obviously a lot of time, and profits can be lost when the seller loses several months in paying a mortgage on real estate that did not sell quickly. The penalty would be attorney’s fees in defending a lawsuit for specific performance, not to mention the Court can force you to buy the property if you lose the suit.
Q. Can I remove myself from a mortgage that I had with my mother when she bought her house? I now want to buy my own house, but I cannot qualify because I am still on the hook for the mortgage on my mother’s house.
A. You cannot remove yourself from a mortgage unless the mortgage holder consents or the mortgage is paid off. Typically, this scenario occurs in a marriage that ends up in divorce. But since this is a deal you made with your mother, you cannot “divorce” her. I would approach the subject with your mother and see if she is in a position to refinance her house without your financial backing.
Q. I rented a house with an agreement to rent to own. There are numerous problems with this house. The roof was leaking. I got it fixed. The toilet in the basement was leaking. I got it fixed. The support beams are all crooked, and major repairs need to be done. I had this house appraised, and it is worth $50,000 less than what the owner is asking for it. I have got to get out of this “rent to own” agreement. Can I?
A. It really depends on the terms of the contract you entered into. You may have to let go of the equity you built in the house. However, you may be entitled to recover the cost of the repairs and improvements you made to the house, however you need to document the costs of the repairs and improvements.
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 #57 Help Avoid Consumer Debt - Make A Budget
HELP AVOID CONSUMER DEBT - MAKE A BUDGET (Date: 10/13/06)
By: Maxine de Villefranche
As an attorney doing family law, I see the state of total disarray in many people's personal finances during the initial consultation. A common problem is that these people have no idea what they spend each month and don’t realize they’re often spending more than they earn. Many of them have numerous credit cards, and many people filing for divorce, among others, have $50,000 or more in credit card debts.
When you are sick, you pay careful attention to the medicine that the doctor prescribes. When you’re on a diet, you pay attention to the food you eat and weigh yourself every day. Yet most of us don't track how much we spend each month. You may know how much you spend on fixed bills like rent, but chances are that you don’t know to the nearest $100 how much you spend in total.
A budget is essential to taking control of your finances. Maybe there is a place you can tighten your belt. Maybe there isn't. How do you know where to cut back if you don't even know what you're spending?
Try this for one week (or better yet, for a month): you don't need to track every penny, but why not track every dollar you spend during the day? Save your receipts and jot down your daily expenditures. Keep a running tab so you know your month-to-date spending every day. When given a choice, use your debit card, not cash. Keep your debit receipts to make tracking easier and to make your spending more visible.
The biggest enemy of spending control is the ATM. You will be surprised how many "little things" gobble up those $40 withdrawals: cash for Starbucks here, cash for a donut or a muffin there. You then pay with cash as you go out for lunch, and there goes another $10 and it's not even 2 p.m. yet!
Once you make the commitment to track your spending, you can see where you can cut back if you need to. Give yourself an allowance of spending money: one ATM withdrawal of cash per week. Make that $20 or $40 last the whole 7 days. Make the commitment to spend no more cash than absolutely necessary. And continue to track each dollar.
You can't fix the problem until you know what the problem is. Knowing your spending can help you cut back where there is waste. Most importantly, adjusting your spending can help you meet your ultimate goal of saving money to pay off your credit card bills, a down payment for your own home or pay off your home sooner, or for your retirement. Adding $100 to your monthly mortgage payment, or to your car payment will pay either that much sooner. Making a larger payment than just the minimum payment will help you save a lot of money on interest on your credit cards too.
By: Maxine de Villefranche
As an attorney doing family law, I see the state of total disarray in many people's personal finances during the initial consultation. A common problem is that these people have no idea what they spend each month and don’t realize they’re often spending more than they earn. Many of them have numerous credit cards, and many people filing for divorce, among others, have $50,000 or more in credit card debts.
When you are sick, you pay careful attention to the medicine that the doctor prescribes. When you’re on a diet, you pay attention to the food you eat and weigh yourself every day. Yet most of us don't track how much we spend each month. You may know how much you spend on fixed bills like rent, but chances are that you don’t know to the nearest $100 how much you spend in total.
A budget is essential to taking control of your finances. Maybe there is a place you can tighten your belt. Maybe there isn't. How do you know where to cut back if you don't even know what you're spending?
Try this for one week (or better yet, for a month): you don't need to track every penny, but why not track every dollar you spend during the day? Save your receipts and jot down your daily expenditures. Keep a running tab so you know your month-to-date spending every day. When given a choice, use your debit card, not cash. Keep your debit receipts to make tracking easier and to make your spending more visible.
The biggest enemy of spending control is the ATM. You will be surprised how many "little things" gobble up those $40 withdrawals: cash for Starbucks here, cash for a donut or a muffin there. You then pay with cash as you go out for lunch, and there goes another $10 and it's not even 2 p.m. yet!
Once you make the commitment to track your spending, you can see where you can cut back if you need to. Give yourself an allowance of spending money: one ATM withdrawal of cash per week. Make that $20 or $40 last the whole 7 days. Make the commitment to spend no more cash than absolutely necessary. And continue to track each dollar.
You can't fix the problem until you know what the problem is. Knowing your spending can help you cut back where there is waste. Most importantly, adjusting your spending can help you meet your ultimate goal of saving money to pay off your credit card bills, a down payment for your own home or pay off your home sooner, or for your retirement. Adding $100 to your monthly mortgage payment, or to your car payment will pay either that much sooner. Making a larger payment than just the minimum payment will help you save a lot of money on interest on your credit cards too.
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