Title: August 18, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. I have been paying my ex-wife child support for the last 10 years for my daughter. This has been done through garnishment of my paychecks. At the beginning of August, my daughter turned 18. How much longer am I supposed to pay child support for her?
A. You failed to tell me whether or not she graduated from high school yet. If she is still a full-time high school student, you must pay child support until she turns 19 year old or graduates from high school, whichever comes first. If your daughter graduated from high school already, you must file a Motion to Terminate the child support with the same court that ordered it. If your checks are being garnished, your employer needs a court order to terminate the garnishment. Unfortunately, garnishment does not stop automatically the day your daughter is no longer entitled to child support. You must initiate the change.
Q. I am purchasing a second home while selling my first one. I already live in the new home, despite the fact that escrow has not closed yet. I am paying rent to live there. The buyer of my “old” home and her agent have not contacted in more than six weeks, and it appears this buyer cannot get a loan, despite the fact that she was supposed to be pre-qualified. I had to fix several items that she requested I fix before escrow closes. The date we had decided for escrow to close has long past and gone. I now have a second buyer, who is eager to purchase my home for an all cash transaction. I don’t want to lose this second buyer. What do I do?
A. Without seeing your Agreement to Purchase, I can guess that the house purchase was contingent upon obtaining a loan. If she cannot get the loan she applied for and is now shopping around for another loan, it might be a while. I suggest that you give the buyer either a Notice to Perform or to Cancel the transaction. If the repaired items were not too terribly expensive, or if they were items that needed fixing no matter which buyer buys the house, you should return her deposit back at the end of the time stated on the Notice to Perform and Cancel. That way, there are no hard feelings, otherwise you might be entangled in protracted litigation over her deposit.
Forward questions to maxinedev@msn.com , drop questions at the Tehachapi News, located at 411 N. Mill St., or send them to POB 1840, Tehachapi, CA 93581
Showing posts with label paycheck. Show all posts
Showing posts with label paycheck. Show all posts
Tuesday, March 24, 2009
Monday, March 23, 2009
Legal Eaze #51 Garnishments/Car Service Delay
Title: August 2, 2006
Q. My paychecks are being garnished every month for child support I owed. My boss has expressed his frustration overt that, because extra work has to be done by his bookkeeper. He threatened to fire me if I did not deal with this myself. I do not have a choice about these garnishments because the court ordered it to be done this way. But I do not want to get fired over this. I remember when I was called for jury duty, he made the same threat, stating that he could not afford to have any of his employees out for jury duty. What can I do?
A. Your employer cannot punish you because a court has garnished your wages or is threatening you to do so as part of a court order. In other words, if a court takes money out of your paycheck because it ordered you to pay for past debt, unfulfilled child support or alimony, it is illegal for your boss to fire you or to punish you in any way for the garnishment. Such matters are considered separate from workplace disputes. As for jury duty, you cannot be fired for taking time off of work to serve on a jury or appear as a witness in a case, as long as you give your employer reasonable advance notice. There are also a variety of federal law offering similar protections to you in the workplace (Title VII of the U.S. Civil Rights, Act, for instance). More often than not, California statutes prove to have even broader protections than the federal laws. However, any who feels that they were wrongfully terminated, would still be wise to consider statutes under California and federal law.
Q. I bought a brand new car in January 2006. The air conditioner in the car stopped functioning last week in this heat and I am totally miserable. I called the dealer where I bought the car to make an appointment with the service department. I have only driven the car 8,500 miles so far. Their service department is extremely busy and I can’t get an appointment until the end of next week. What should I do?
A. I would attempt to make an appointment with the service department of another dealer that sells the same kind of car, in order to get your car repaired sooner. You can go to any dealer you want, as long as that dealer sells the kind of vehicle you own. You can also rent a car (that has working air conditioning) and present the rent-a-car bill to your dealer who could not service your car in a timely manner. However, make sure to notify that dealer of your intentions. .
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. My paychecks are being garnished every month for child support I owed. My boss has expressed his frustration overt that, because extra work has to be done by his bookkeeper. He threatened to fire me if I did not deal with this myself. I do not have a choice about these garnishments because the court ordered it to be done this way. But I do not want to get fired over this. I remember when I was called for jury duty, he made the same threat, stating that he could not afford to have any of his employees out for jury duty. What can I do?
A. Your employer cannot punish you because a court has garnished your wages or is threatening you to do so as part of a court order. In other words, if a court takes money out of your paycheck because it ordered you to pay for past debt, unfulfilled child support or alimony, it is illegal for your boss to fire you or to punish you in any way for the garnishment. Such matters are considered separate from workplace disputes. As for jury duty, you cannot be fired for taking time off of work to serve on a jury or appear as a witness in a case, as long as you give your employer reasonable advance notice. There are also a variety of federal law offering similar protections to you in the workplace (Title VII of the U.S. Civil Rights, Act, for instance). More often than not, California statutes prove to have even broader protections than the federal laws. However, any who feels that they were wrongfully terminated, would still be wise to consider statutes under California and federal law.
Q. I bought a brand new car in January 2006. The air conditioner in the car stopped functioning last week in this heat and I am totally miserable. I called the dealer where I bought the car to make an appointment with the service department. I have only driven the car 8,500 miles so far. Their service department is extremely busy and I can’t get an appointment until the end of next week. What should I do?
A. I would attempt to make an appointment with the service department of another dealer that sells the same kind of car, in order to get your car repaired sooner. You can go to any dealer you want, as long as that dealer sells the kind of vehicle you own. You can also rent a car (that has working air conditioning) and present the rent-a-car bill to your dealer who could not service your car in a timely manner. However, make sure to notify that dealer of your intentions. .
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
Wednesday, December 31, 2008
Legal Eaze #3 Divorce Reorganization of Debts
Originally Printed: July 23, 2004
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She moved to Tehachapi in June 2003 and resides in Alpine Forest. She operates her law practice from her home office and also has a satellite office in Lancaster. She will answer legal questions posed to her by the readers, to the best of her abilities.
Q. Last year, I represented myself in a divorce action and I had to sell the house and other items in order to pay my wife her half of the community assets. I seems I was stuck with all the community debts. Now I am broke and cannot meet my financial obligations. What can I do?
A. It appears you did not get a fair deal in family law court. It may have been to your advantage if you had hired a lawyer to represent you. At this point, you may be forced to file for bankruptcy. If you are employed and get a regular paycheck, you may be able to file a Chapter 13, which is also known as “a reorganization of debts”. A trustee will oversee your estate and distribute portion of your income to all of your creditors. In such a case, you may keep all of your assets, or what is left of them and pay your creditors over a period of time, but not more than 60 months. Depending on the amount to be distributed, your creditors may or may not be fully paid. All of your secured creditors, i.e. those who hold collateral sufficient to support the debt, will be fully paid or at least to the extent of the value of the collateral. If you are making monthly payments on your car (often the car is worth less than the balance owed) you may be able to discharge the amount that is not secured, but if you want to keep the car, you must pay the “secured” balance. The unsecured creditors are those you may suffer. If you do not have a regular paycheck, the better alternative is to file a Chapter 7 Bankruptcy, or “straight (liquidation)” bankruptcy. A trustee will be appointed to review your assets, and if he/she finds some assets that are not exempt, these assets will be liquidated and the proceeds will be divided among your creditors. Everyone is entitled to exemptions when it comes to personal assets, such as furniture and furnishings, clothing, kitchen appliances, etc. These assets are exempt in different amounts, depending on which system of exemptions one uses, i.e. California Code of Procedure Sections 703 or 704. CCP Section 704 system is preferable to the 703 system if one has a house to protect. A single person owning a residence is entitled to keeping up to $50,000 in equity, a married couple is entitled to $75,000 in equity and a person over the age of 65 years old, $125,000. In order words, if you do not have this kind of equity in your home, you can keep it through the bankruptcy, as long as you keep making your mortgage payments. The same holds for your car. You are entitled to a certain amount of exemption, again depending on which system you use. Bankruptcy is meant to allow you a fresh new start and does not carry the stigma it once carried. Millions of people have taken advantage of bankruptcy laws, especially through difficult financial times experienced by the entire country.
Forward your questions by e-mail to maxinedev@msn.com or drop questions at the Tehachapi News, 411 N. Mill St., Tehachapi, or send them by mail to P.O. Box 1840, Tehachapi, CA 93581
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