July 2012 Archives

California's Safe At Home Program For Victims Of Domestic Violence

dv.jpgThe California Secretary of State Safe at Home program is a special program for victims of domestic violence, stalking and sexual assault.

The Safe at Home program is California's confidential address program. It is a state program under the direction of the California Secretary of State's Office. The primary purpose of the program is to provide a free P O Box to victims of domestic violence, stalking and sexual assault which participants can use in lieu of their residence address with state and local government agencies.

The substitute address helps to protect the participant from future abuse by protecting his or her address information on public records. The address may also be used to receive first-class mail from anyone to whom the participant provides the address. In addition to the P O Box address, participants of the program are eligible for a variety of services to help protect themselves from future abuse or stalking.

The Law Offices of James V. Sansone offers a full range of family law legal services including divorce, paternity, child custody and visitation matters, child support, spousal support, alimony, domestic violence, division of property, grandparent visitation, custody, and has experience with termination of parental rights proceedings. We are located in Santa Rosa, California and serve clients throughout Sonoma County, Mendocino County, and Lake County, including Santa Rosa, Petaluma, Cotati, Rohnert Park, Sebastopol, Healdsburg, Sonoma, Kenwood, Glen Ellen, Windsor, Bodega Bay, Ukiah, Willits, Clearlake, Lakeport, and Kelseyville.

Landlords and Tenants Both Winners with AB 1679 - Security Deposit Legislation

images.jpgAssembly Bill 1679 is a win-win for tenants and property owners. It brings California law in line with modern technology, by allowing rental property owners and tenants to mutually agree to:

1) Allow property owners to deposit any remaining portion of the security deposit directly to a bank account designated by the tenant; and

2) Allow property owners to provide a copy of the itemized statement along with supporting documents to an e-mail account provided by the tenant.

Unfortunately, current State law does not allow rental property owners to return a security deposit directly to a tenant's bank account. Having to return security deposits back through a physical check significantly slows down that return and costs property owners time and money. In addition, tenants often do not provide a forwarding address in a timely manner, thereby further delaying the return of their security deposit.

Under current law, rental property owners are only allowed to return tenant security deposits through a physical check delivered personally or by first-class mail. This requirement to return a security deposit by a physical check was first placed in statute decades ago, long before the advent of modern technology, electronic fund transfer options, and email.

Today, more tenants are asking that rental property owners return any remaining security deposit directly into their own bank account. This request is consistent with the way in which many tenants already chose to pay their rent - through an electronic fund transfer (EFT).

The legislation has cleared all legislative committees and is on the way to the Governor's desk.

It's Easy To Trip Up On Alimony Tax Deduction

New-York-Spousal-Support.jpgAccording to Forbes, James Chiavacci was paying $500 per month in alimony. After about 13 years of that he decided to ask for a break, because of a change in circumstances.

Mr. Chiavacci and Ms. Charles entered in a settlement agreement whereby Mr. Chiavacci would make a one-time lump-sum payment of $20,000 to Ms. Charles in exchange for a release of his future spousal support obligations. The agreement provided that the court order would state that Mr. Chiavacci's spousal support obligation had been terminated, effective immediately. The previous dissolution judgment was amended by adding the following statement: "By agreement of the parties, spousal support is terminated effective September 2, 2007." The amendment order makes no reference to the $20,000 payment.

Subsequent to the amendment, Mr. Chiavacci, in tax court, tried to argue his $20,000 is deductible alimony. The IRS took the position that it was not. The tax court found that this payment did not classify as deductible alimony.

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Are Equalization Payments A Debtor Receives In Exchange For A Transfer Of Interest In A Marital Piece of Real Property Protected By A Homestead Exemption?

divorce property division settlement.jpgA equalization payment is a common why a litigant in a divorce gets bought out of his interest in a piece of marital real property. Let's say for example, the family residence subject to a divorce has $50,000 of equity, yes it still happens. During that divorce proceeding it is decided by the parties that the wife will receive the home as her sole a separate property. In exchange for this award, wife will pay to husband $25,000, which represents his interest in this community asset. The husband, after the divorce, is forced to file for bankruptcy. In his bankruptcy petition, the husband, now debtor, moves to exempt his $25,000 by utilizing the state's homestead exemption. Can he?

The Bankruptcy Appellate Panel for the 9th Circuit has said NO!

In the bankruptcy case of In re Jefferies the Bankruptcy Appellate Panel affirmed a bankruptcy court order sustaining an objection to a homestead exemption claim. The court held that an equalizing judgment a debtor received in exchange for the transfer of his residence to his ex-spouse in a dissolution decree did not constitute proceeds of the voluntary sale of his homestead eligible for protection under the Washington homestead exemption.

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Recorded Witness Statements Are Entitled To Qualified Work Product Protection

images.jpgThe idea that an attorney‟s work product should receive protection from discovery was first recognized by the United States Supreme Court in 1947. Today, California law provides absolute protection to writings that reflect "an attorney‟s impressions, conclusions, opinions, or legal research or theories. All other work product receives qualified protection; such material "is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party‟s claim or defense or will result in an injustice."

On a 2-1 vote, the Court of Appeal (Fifth Appellate District) held that the witness statements were not protected under the attorney work product doctrine.

The CA Supreme Court was recently asked to decide if the Fifth Appellate District was correct and to determine what work product protection, if any, should be accorded two items: first, recordings of witness interviews conducted by investigators employed by defendant‟s counsel, and second, information concerning the identity of witnesses from whom defendant‟s counsel has obtained statements.

The case that has lead to this legal issues is Coito vs. The Superior Court of Stanislaus County. Coito concerns the death of Jeremy Wilson, a teenager who drowned in the Tuolumne River. His family sued various defendants, including the city of Modesto and the state Department of Water Resources. The attorney general's office sent two investigators to take recorded statements from four witnesses to the drowning.

Counsel for Wilson's family sought discovery of the recordings via Judicial Council Form Interrogatory 12.3. A trial judge denied the firm's motion to compel, but the Fifth District Court of Appeal reversed, saying that witness statements "are classic evidentiary material."

On Monday, June 26, In Coito vs. The Superior Court of Stanislaus County the CA Supreme Court held the following:

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