Legal Rumors

A blog about interesting trends in the law and high tech gadgets, doohickeys and apps from the Law Offices of Bradley Hochberg [phone]

[legalrumors]

There is a Difference between Temporary Spousal Support and Permanent Spousal Support

In California there is a computer program that will calculate both child support and spousal support. So it would seem simple. You punch in the numbers into a computer and out pops the amount of spousal support a person pays. The problem is that California only allows the use of a computer for purposes of temporary spousal support.

Temporary spousal is support is support that is ordered during the pendency of a dissolution or legal separation case.

Permanent spousal support is support that is ordered after a trial or stipulated agreement at the end of the case. The computer shall not be used to determine the amount of permanent support.

There are factors that must be covered in determining permanent support. Some of these factors are 1) The marital standard of living. 2) the marketable skills of the party and the need and time to retrain that party. 3) How there present or future earnings are impaired by their work being a stay at home parent. 4) earning and property available to pay spousal support. 5) the health of the party. 6) Domestic Violence that happened during the marriage. Those are some but not all of the factors that must be analyzed in order to determine the amount of permanent spousal support to be ordered in California.

If you are interested in speaking to me about your particular facts and case, feel free to contact me at the Law Offices of Bradley Hochberg at [phone] or at www.bradleyhochberglaw.com

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There May Be Lifelong Consequences if you Agree To Any Kind of Restraining Order

I have previously written about the affect a restraining order may have on custody and visitation. Parties do not realize that agreeing to even a limited restraining order can have lifelong effects. To be general, you might agree to a short restraining order of 6 months or 1 year, only to wind up with a life long restraining order. This is due to the law in California regarding a renewal of a restraining order.

The law basically allows a person to ask for a renewal of a valid restraining order as long as the current one has not expired. The protected party does not have to show any new allegations of abuse or harassment. This is because in theory the restraining party would state that they have not done any new forms of abuse. The obvious reason being that there was an order to protect the party. The restrained party was just following the order.

The protected party can just show the court that a reasonable person would be afraid of the restrained party if the restraining order were to expire. They can even rehash the old facts in support of this. This makes it very hard to defend against.

The worst part is that the court does not have a lot of discretion here. If the court finds that it should be renewed, there are only two choices the court has. In a normal new restraining order situation, the court can pick the time period of its effect. It could be for a short period of time. However, if the court renews the restraining order it must be for five years or life. The court does not have any other discretion if they are renewing the order. So by agreeing to a short restraining order you might wind up with a lifelong restraining order with a lifetime of consequences for your employment, gun rights etc.

There are a limited number of defenses to a renewal application that I have found to be successful.

If you wish to discuss your individual case feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at www.bradleyhochberglaw.com or at [phone] for a confidential analysis of your specific situation.

[legalrumors]

Be Careful What Kind of Spousal Support You Agree to

Parties often negotiate over the issue of spousal support in their divorce cases. They can negotiate a certain amount. They can negotiate a certain length. They can even negotiate the what events can trigger a change or not. Under normal circumstances spousal support can be changed upon a showing of changed circumstances. This would be for example if the supporting party were to get disabled. They would go back to court to modify their support given this new and changed circumstance. The problem is that they need to look at the order they have. They could have an order that says that it is non modifiable support. This would state that the support cannot be changed for any circumstances during the duration stated in the order. This could be a huge problem for such a party. They could wind up owing a very large sum with no means to stop or lower it. At the time they entered into the order they were healthy and did not expect that such a change would take place. You mighty ask why would a party agree to a non modifiable order. This could be for a number of reasons. One of which could be that the supporting party wanted to have an end date for the support where the court would not have allowed it. The supported party might agree to a higher amount which is guaranteed for a fixed term. So let this be a lesson to think about when you are negotiating for spousal support. If you wish to discuss your individual case feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at www.bradleyhochberglaw.com or at [phone] for a confidential analysis of your specific situation.

[legalrumors]

There is a reason why most motels will not let you stay beyond 28 days in California

I have been asked why will a motel would force a person to check out at 28 days. They can then check back in the next day for another 28 days. The reason for this is that the hotel/motel can get you out easier. If you stay longer than 28 days in a hotel/motel than you would be considered a tenant and would have the same legal rights as a tenant. To evict you they would have to follow the same rules as any landlord who wants to remove a tenant. If you live in a hotel no more than 28 days then you are considered a guest and can be asked to leave. If you don't leave, you would be considered a trespasser and can be removed by security or the police. There are other benefits or details of this situation that I have not covered but this should generally answer such a question. If you wish to contact me about your situation feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at www.bradleyhochberglaw.com or at [phone] for a confidential case analysis.

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50 posts!

[legalrumors]

Legal use of Marijuana can still result in CPS taking your kids

Parents believe that if they can legally use marijuana, they should be safe from child protective services. This mistaken belief can hurt you in several ways. First off, marijuana is not as legal as drinking alcohol. Besides still being a federal crime, California law does not completely shield legal users from problems. One such problem is that an employer may still fire an employee that tests positive for marijuana. Legally used or not. Secondly, Child protective services are behind the times. They usually treat marijuana as if it were still not legal. Even if they treated it as if it were legal, there may still be problems. Like alcohol, if CPS thought you were abusing marijuana to the point that it affected your ability to parent your children. The trouble with this is that there is no hard and fast rule about what is and what is not abuse of marijuana. So you are at your own risk for using marijuana when you have children. Thirdly, If marijuana were smoked in front of the children. That would result in a big problem. Many people try to go in the back yard or garage to smoke it. The problem is that if a child were to spot you smoking it by mistake, it would be a problem. Lastly, CPS has been known to give people problems if they even smell it in the same house where there are children. That could result in them having you take a test. If it came back positive they could take action. The safest suggestion in order to not have trouble with Child Protective Services is not to use marijuana when you have children until the laws change. If you wish to discuss the issues that I have mentioned, feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at www.bradleyhochberglaw.com or at [phone] to have a confidential case review of your particular situation.

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QDROs CAN BE USED TO COLLECT ON BACK SUPPORT

A QDRO is a qualified domestic relations order. These are used to divide certain kinds of pensions. This is when the court makes an order dividing a worker spouse’s pension between the parties. A QDRO is necessary because under federal law some pensions cannot be divided and paid out to a non worker spouse. Congress back in 1974 came up with the idea for a QDRO that acts as an order to tell the pension to divide up the pension and pay some money to the non worker spouse.

If the original order from the court divided the pension, both parties would be able eventually be able to draw on that pension at some point. This was a property order from the court.

Fast forward years later and one party is owed back support from the other party. The party wants to be able to collect but the other spouse’s only income is the pension. The trouble is that a wage assignment or lien might not work given that only a QDRO can compel certain kinds of pensions to pay money out of said pension. As a result, you could get an order for the back support then draft a new QDRO enforcing the payment of the support from the pension. There are other issues related to collecting support through a QDRO but for simplification were not mentioned.

If you have any questions regarding the different ways for collection of child support feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at  [phone] or at www.bradleyhochberglaw.com for discussion of your particular circumstances.

[legalrumors]

A Non Citizen May Now Be Able to Avoid Deportation After Being Convicted for Drugs in California

People caught up in court for using drugs have for a long time been offered a way out of the permanent ramifications  that a felony drug conviction offers. In California this used to be called Diversion. Diversion was nice. You would plead not guilty in court to the offense. You would go to classes for drugs and stay clean for about 18 months. At the end of that time the court would dismiss the case. There was never any conviction. If you failed diversion, you could always have the chance to fight the case because you had not plead guilty. This was like having two bites at the apple. By then maybe witness were no longer around. Memories fade. You might have a chance to beat the case.

Close to 20 years ago the court did away with that type of diversion. They offered something called deferred entry of judgment. This would mean that in order to earn the chance to have your case dismissed, you would have to agree to plead guilty to the charge. After successful completion of the drug classes the court would allow you to withdraw your guilty plea and the case would be dismissed. This was done so that if you fell out of the drug classes, they did not have to worry about putting together a late case against you. You had already plead guilty. They would be able to sentence you formally at that point due to the prior guilt plea. In California this still resulted in no conviction for those who successfully completed it. However, this would be a conviction for immigration purposes. Drug convictions are usually a very bad thing for immigration purposes.

Effective 1/1/2016, California has enacted 1203.43 of the penal code. This allows for the withdrawal of the plea and dismissal of your case in such a way that is now recognized by the immigration courts as if you never had any conviction. This will now open the door for many immigrants to avoid their deportations (Removal) from the United States.

If you are not a US Citizen and have had a drug case that was dismissed through  the deferred entry of judgment (DEJ) process you need to act fast before you have problems. You will be able to reapply to the courts to have your case reopened in criminal court and have it dismissed under this new law. If you are now under removal proceedings due to such a situation then you need to act fast.

If you have any questions regarding this new law or need help fixing your prior conviction for drugs, feel free to contact me at the Law Offices of Bradley Hochberg in Los Angeles, CA at www.bradleyhochberglaw.com or by calling [phone] or by email at [email protected]

[legalrumors]

DO ATTORNEYS WORK FOR BOTH SIDES

I must get asked this question every week. It comes up when I get a phone call from a possible new client. The client will tell me about their case. They might feel that they have a strong case. They are usually very passionate about the facts that favor their argument or side. I try to be very honest with them to the point that they might hang up on me and call someone else. I try to tell them the possible problems with their case. That is the arguments the other side will make. An attorney or client can bury their head in the sand and not deal with certain 1000 lb elephants in the room. rest assured that the attorney on the other side or the judge on his own will bring up these issues. One good trait I have gained in over 20 years of arguing cases in court is that I have seen a great many issues get brought up in court. It gives me an insight to what the issues are going to be. You need to be ready to deal with those potentially troublesome issues in your case. The problem happens when I bring up these issues with the proposed client during the initial interview. Sometimes they can get so angry that they ask that question that I stated above. I try to tell them that of course I do not work for the other side but they need to know the issues positive and negative before they start the long road of litigation. They need to know what is involved. A lot of attorneys will choose not to mention these things as a way to make themselves look like the clients have a 100% guaranteed case. That way the client likes what they hear and signs on immediately. I made the choice a long time ago that I would be honest with the client. If that hurts my chances of retaining a case then I guess that is the choice I have made. That does not mean that I will not fight 100% for the client. After all I work for the client, not both sides.

If you would like to discuss the real issues in your case feel free to contact me at the Law Offices of Bradley Hochberg at [phone] or at [email protected] or at www.bradleyhochberglaw.com

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HIDE YOUR LOTTERY WINNINGS FROM YOUR SPOUSE AT YOUR OWN RISK

You are in a bad marriage but do not file for divorce for various reasons including financial. You dream of winning the lottery and filing for divorce with your new winnings. You don't want to disclose the winnings because you feel that your spouse does not deserve any of it because you earned it for having to put up with the louse. Actually this scenario happened in California in the 1990s. The spouses were married for 25 years. The wife won approximately $1.3 million in the lottery. She did not tell her husband. She filed for divorce about 10 days later. She collected her money in payouts over 20 years. She had the checks sent to her mother's house. She filed disclosures during the divorce of the property. She never mentioned the winnings. The divorce settled. The husband later filed for bankruptcy. A couple of years later husband received a letter in his mailbox from a lottery winnings company asking if they could buy out her future lottery winnings. The letter was supposed to go to her. He looked into it and found out that she had won the lottery years before. He took her back to court asking for at least half of the lottery winnings. The court found that the winnings were community property. The court found that she had willfully violated her duty to disclose the community property. The court punished her by awarding all of the lottery winnings to the husband. The decision was upheld in the Court of Appeals. The moral of the story is that, no matter how much you might hate your spouse, or think that they don't deserve it, you must disclose all assets and debts during a divorce proceeding. That includes any lottery winnings. If you wish to discuss this or any other situation, feel free to contact Bradley Hochberg, Esq. at the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone] or at [email protected] or at www.bradleyhochberglaw.com for a confidential anaylsis.

[legalrumors]

For the Time Being, If You Really Want Your Earnings and Purchases to Truly be Separate after you Separate, Then You Must be Living in a Separate Residence

Every Family attorney tells their clients that the law states that your earnings and purchases generally remain your separate property after the date of separation. That is still true today as it has always been. The problem is when is the date of separation.

The courts did not like to have a set rule about what constituted living separate and apart. The general idea was that the husband and wife were living separate lives and doing anything to promote the idea that they were living as husband and wife. This could be the situation where both lived in the same residence, usually for financial reasons, but lived separate lives. Each did their own cooking and laundry etc.

On the other hand, living in a separate residence would not, by itself, mean that they were living separate and apart. This could be where they shared meals together and continued with marital relations. In such a circumstance, they would not be considered to be living separate and apart for purposes of the law.

The problem is that the Supreme Court of California has taken a hard line view of what it means to be living separate and apart. Under the current thinking, the two parties must be living in separate residences to even be possibly considered to be separated. A concurring view of some members of the Supreme Court possibly left an opening for parties to show that they could be living under one roof but are separated. However, that is not the current law but possibly up for later interpretation.

This has a big affect on marital property. You continue to increase your pension while you are separated. You continue to earn money from your work. One or both spouses purchase cars and other property while separated. This affects whether these earnings and purchases are community property or your separate property.

The motto of this story is that if you want to keep your earnings and property separate after you separate, then you must at the very minimum live in separate residences. This is regardless of the financial stress that comes with living in a separate residence.

If you wish to discuss this rule and how your personal situation is affected, then feel free to contact the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone] or at www.bradleyhochberglaw.com or by email at [email protected] for a confidential case analysis.

[legalrumors]

If you want Holiday Visits, then plan early

Many parents do not realize that their custody orders do not have any provisions for holiday visitation. They notice that their regular visitation schedule usually covers weekends only. Some holidays like Christmas do not always fall on weekends. They do not figure this out until right before the holidays. They ask the other parent to have visitation on the holiday. The other parent says no or will say that they already have other plans. They say that it is not fair and get into a fight. They threaten to go to court to get holiday visits. They might even go to court on an emergency basis to get a last minute order for holiday visits. Sadly, the court will deny such a request. Going to court so quickly can only be done by an ex-parte request. A party must give notice to the other party by 10:00 a.m. the court day before. The problem is that the only proper reasons for an ex-parte request is either that a child is under the risk of being removed from the State of California and/or immediate harm to the child. The fact that a party can't get into court under normal circumstances in time for holiday visits does not qualify as a proper ex-parte request. As a result, if you cannot agree with the other party to a holiday schedule then you must apply to the court early enough to have your hearing before the holiday in question.

If you wish to discuss this situation or any other family law situation that you might have feel free to contact me at the Law Offices of Bradley Hochberg at 6418 1/2 Whittier Blvd., Los Angeles, CA 90022; [email protected] or at [phone] for a confidential case analysis.

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You may request a closed hearing in family law proceedings

If you have every been to the family law courts in California you will notice that it can be a very crowded place. There can be up to 50 people packing a courtroom all waiting to have their matter heard. Some of the hearings can have very sensitive and embarrassing information disclosed. This is all while everyone in the audience is listening to all of what is said. You might have wanted your hearing to be private only to be told that these proceedings are open to the public.

What most people do not know, including the court, is that a request can be made under family code section 214 to close the proceedings. This can be helpful when very sensitive information will be divulged. Also it can be requested that the transcript of the closed proceeding be sealed.

If you have any further questions regarding this or any other legal issue, feel free to contact the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone] or email at [email protected] or the website at www.bradleyhochberglaw.com

[legalrumors]

You cannot get custody of your child through a restraining order if the restraining order is denied

When someone gets abused by a spouse or the father or mother of their child, they will run to the court and seek a temporary restraining order. Approximately 20 days later they will have a hearing on a more permanent restraining order which can last up to five years. They usually will also seek an order for custody of their child along with visitation of the child for the other party.

The problem is that if the restraint order is eventually denied after a hearing the court will not grant any custody or visitation orders at that time. In fact, the petition for a restraining order is denied in total or dismissed in such cases. This is even in cases where the parties came to an agreement earlier in mediation at the court.

The exception to this would be if the restraining order were requested through an existing divorce, legal separation, paternity or petition for custody and support case. The court would then be able to make or keep existing custody orders through those types of cases.

As a result, it might be prudent to file one of these cases at the same time or at least before the hearing on the permanent restraining order is to be heard. That way, even of the restraining order were to be denied, you could still obtain a custody order.

If you have any questions regarding these issues or any other ones, feel free to contact the Law Offices of Bradley Hochberg at [phone]; www.bradleyhochberglaw.com or at [email protected]

[legalrumors]

Immigration Attorneys May Now Appear in Bond Hearings Only

Due to the large influx of undocumented people, there has been a backlog in bond hearings in immigration proceedings. This includes the initial hearings and Rodriguez Hearings. A Rodriguez hearing is a bond hearing that allows for detainees who have been held for at least 180 days to have a bond hearing. This can happen when a detainee who is not normally eligible for bond, is granted a bond hearing. After 180 days a person is eligible for a bond hearing. The government has to show by clear and convincing evidence that the person is a danger to society or is a flight risk.

Normally when an attorney signs on to do a bond hearing, he became the detainees attorney for all purpose. This included all future proceedings up and through trial. Many families could not afford to hire an attorney for the entire action. As a result, most attorneys were reluctant to sign on to the bond hearing for the limited funds he family might give them for the bond hearing.

The rules are now being changed. Attorneys will now be able to sign on to a bond hearing without worrying that they will be stuck representing the detainee through trial. Now a family will be in a better position to hire an attorney and pay the limited funds necessary for the bond hearing. If the detainee gets out than the family will be reunited and the detainee can go back to work. The detainee will also be in a better position to help assist in his own defense.

If you have any questions about these issues than feel free  to contact the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone] or at www.bradleyhochberglaw.com

[legalrumors]

Does California Proposition 47 really help people with drug abuse problems

The people of the state of California wanted to help people convicted of certain offenses that were considered to be felonies by making them misdemeanors. People in the future would only be charged with a misdemeanor. People who had previously been convicted of these offenses could petition the court to reduce their conviction to a misdemeanor. 

This sounded good. The state could save money by not having to incarcerate people convicted of these non violent offenses. These people could have only a misdemeanor on their record for employment purposes. They could also be sent to drug rehabilitation if they were convicted of certain drug offenses covered by the law.

The problem is that now these people may not get any help that is needed for their drug abuse problems. Prior to the change, they could have received a number of years in the prison system either right away or if they violated probation by not getting court ordered treatment for their drug problem.

Now their charge is only a misdemeanor.. A misdemeanor only carries a maximum of one year in the county jail. That is a lot less than the penalties associated with a felony case. As a loophole around getting treatment, many people are opting for jail instead of treatment. They figure that with jail over crowding they will do very little time and be done with their case with no probation and no hold over them in their case.

As a result, over time, there may be an increase in the amount of convictions a person receives if they are not willing to get help for their abuse problem. 

If you are in need of an attorney who knows the law related to this subject, feel free to give me a call at the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone]

[legalrumors]

You could still owe a lot of child support even if your case is closed

Every once in a while I get a call from someone who does not understand why they owe so much child support. In fact, they wonder why they should owe any child support at all. What usually happens is that the child support services department was enforcing the current order for support. The non custodial parent asks the custodial parent to drop the case. They usually promise to pay support directly to the other party or maybe the custodial party is just not interested in support at that moment. The custodial party goes to their local child support services department office. They tell them that they no longer are interested in child support. The child support services department stops enforcement of the order. Time goes by. The non custodial parent might not pay any support thinking that no one is forcing them to pay. The custodial parent might be having financial problems. They ask the non custodial parent to help out. Many times the non custodial will say they are having issues and can't afford to pay anything at that time. In desperation the non custodial parent turns back to the child support services department. They ask for help. Next thing that happens is that the non custodial parent finds a very large bill for past due child support in their mail box. The may even include a threat to suspend their drivers license. The problem is that all the child support services department did previously was to stop enforcement. It did not make the prior order invalid. The old order continued in full force and effect accruing each month. It did not stop the requirement that the non custodial parent was supposed to pay each month. Be careful not to fall into that trap. If you are interested in discussing your child support rights and options fee free to contact attorney Bradley Hochberg at the Law Offices of Bradley Hochberg in Los Angeles, CA at [phone] or www.bradleyhochberglaw.com or [email protected]