Sonoma County Lawyer Blog

Many people I speak to feel that justice is not done in state court. Their concern is not that the state courts don't work hard and try, it's simply a lack of resources and a heavy case load. So, is there a legal remedy for this in federal court, the 9th Circuit has held NO.

In, E.T. v. Cantil-Sakauye, the court held that a federal court properly abstained from considering foster children's claims challenging the "crushing and unlawful caseloads" of state dependency courts where the remedy sought would necessarily require that the court intrude upon the state's administration of its court system.

E.T. and several other minor foster children filed suit on behalf of themselves and a proposed class of some 5,100 others in Sacramento County. They alleged that "crushing and unlawful caseloads" frustrated the ability of local dependency courts to fairly and adequately hear their cases, and likewise stymied the ability of court-appointed counsel to provide them effective assistance.

The court of appeals observed that pursuant to federal constitutional limitations on the federal government, federal courts may not entertain actions that seek to impose an ongoing federal audit of state proceedings.

Continue reading "Is There A Remedy For The CA State Court's Excessive Case Load" »

Generally in court, documentary evidence such as records, letters, bills, contracts, and similar writings have to be authenticated or identified before being admitted in evidence as genuine.

In today's society, information obtained on social networking websites is being used in court as evidence against the party who made the post.

This seemed to have begged the question, how do you properly authenticate a social networking post? That question has been answered in People vs. Valdez.

In Valdez, supra, a jury convicted Vincent Julian Valdez, Jr., of two counts of attempted murder, four counts of assault with a firearm, and two counts of street terrorism (Pen. Code, § 186.22, subd. (a)), arising from two separate drive-by shootings. Valdez asserts challenges to the sufficiency of the evidence to support his conviction of street terrorism by arguing that the trial court erroneously admitted pages from his MySpace social networking site that included his gang moniker ("Yums"), a photograph of him making a gang hand signal, and written notations including "T.L.F.," "YUM $ YUM," "T.L.F.'s '63 Impala," "T.L.F., The Most Wanted Krew by the Cops and Ladiez," and "Yums. You Don't Wanna F wit[h] this Guy."

Continue reading "Contents of MySpace Page Are Sufficient To Establish Its Authenticity" »

I was just hired by a woman who received a telephone call from her husband's wife. She contacted my office and wanted to know what effect her husband still being married would have on her marriage and how she needed to proceed to terminate the marriage. I informed her that her marriage is void and her interests would be protected under the doctrine of puntative spouse. Since her marriage was void from the beginning no legal action was necessary, but obtaining a judgment of nullity was advisable nevertheless.

A putative marriage is defined as a matrimonial union that was solemnized in due form and celebrated in good faith, but which, because of some legal infirmity, is void or voidable.

Continue reading "My Husband Is Married To Another Women, Now What? - Santa Rosa Family Law" »

Payments that qualify as spousal support are deductible by the payor-spouse and includible in the income of the payee-spouse.

The law distinguishes spousal support from both child support and payments made in consequence of a division of property. The law allows alimony tax treatment only for true spousal support and attempts to define alimony in a way that conforms to general notions of what types of payments constitute alimony. Payments not meeting the objective test of the law will fail to qualify for alimony tax treatment regardless of whether they were intended by both spouses to constitute spousal support.

According to the IRS Code, to qualify as taxable spousal support the payment must meet the following elements, which include but are not limited to: (1) the payment must be made in cash. Checks and money orders payable on demand qualify, (2) the payment must be received by or on behalf of a spouse or former spouse under a "divorce or separation instrument", and (3) the payor and payee must not be members of the same household at the time the payment is made.

Continue reading "Tax Consequences Of Spousal Support - Santa Rosa Family Law" »

A Pennsylvania man is claiming a judge violated his freedom of speech and his right to due process by ordering him to shut down thepsychoexwife.com, a blog he began in 2007 to discuss his bitter divorce and child custody battle.

Back in November 2010, I wrote a blog entry entitled Social Networking Sites Such as Facebook and MySpace Can Be Your Ex Partner's Worst Nightmare. This latest on-line blog appears to be the next step in using a person's on-line statements or persona against them.

In any case I am retained on, especially family law, the first thing I do is run an on-line search in an attempt to locate anything that can possibly be used against the opposing party. Time and time again, this has proven to be an invaluable tool I use to attack the creditability of the opposing party. As an example, I am currently involved in a child support dispute case wherein the opposing party, the mother, has an on-line employment profile where she calls herself a "liar" and declares that the cause that is most important to her is to "increase alimony two fold." Win, lose, or draw, this is a tool to attack her creditability, since a large part of her claim heavily rests on her word, I hope to show her word is worthless.

Continue reading "Divorced Dad's Blog Becomes A Test for the First Amendment " »

Continue reading "Divorce 101 - Santa Rosa Divorce Attorney Explains The Basics" »

Many proceedings for dissolution and legal separation end up as uncontested proceedings. This is probably the result of the fact that California is a no fault state. It may also reflect growing movements to remove the adversarial hostilities from family law proceedings, and the growing awareness that no one "wins" a family law dispute. Anyway, if the parties are able to agree on custody, support, and property issues without the necessity of a contested trial their dissolution will be "uncontested." Decreasing the number of contested proceedings reduces the strife involved in proceedings for termination of a marriage and substantially reduces the expense otherwise involved in a dissolution proceeding.

Don't be easily misled by the label "uncontested." It does not mean "free to do as you please." It often means simply that an express agreement exists, express or implied, with the other party to act within a narrow range of agreed behavior. Within that range, the other side simply will stand by and take no action. What uncontested often means is that people are able to reach settlement together outside of structured court battlegrounds; not simply that matters are not contested.

Proceedings may be uncontested if the parties stipulate, in writing or orally before the court, for settlement of the case or if the respondent has taken no steps to participate in the proceedings, and the matter must go forward in his or her total absence by default.

Continue reading "Can My Santa Rosa Divorce Be Uncontested?" »

California's public policy is to encourage finality in marital dissolutions by "providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation." This policy recognizes the financial and emotional costs of divorce proceedings. In addition, the policy ensures that the economically disadvantaged spouse has both adequate finances to pursue the matter and access to the courts: "primary cornerstones to the concept of fundamental fairness under the law." Moreover, under California public policy, a spouse without sufficient funds should not be prevented from litigating when the other spouse is able to pay.

Family Code § 2032 mandates consideration of the parties' relative circumstances and authorizes a need-based fee award even though the applicant spouse might be able to pay his or her attorney without financial assistance. The other party's superior ability to pay may itself make a fees and costs award "just and reasonable" (see Marriage of O'Connor.)

Continue reading "Grounds For The Award Of Attorney's Fees In A Santa Rosa Divorce" »

California is a "no fault" state. However, prior to 1969, a divorce could be obtained in California only if one spouse proved that the other spouse was guilty of adultery, extreme cruelty, willful desertion, willful neglect, or habitual intemperance, or if the other spouse had been convicted of a felony, or was incurably insane.

The Family Law Act of 1969 and its successor provisions in the Family Code have eliminated fault as an element in divorce proceedings by:

1) Permitting dissolution of a marriage only on the grounds of irreconcilable differences or incurable insanity;

2) Providing for the equal division of community property without reference to the underlying causes of the dissolution or legal separation; and

3) Prohibiting evidence of acts of specific misconduct, except as otherwise provided by statute, such as with respect to certain child custody matters.

Continue reading "What Are the Grounds For A Divorce In A Santa Rosa Marital Dissolution Action?" »

Unlike regular civil litigation actions where the court can't award attorney's fees unless it's authorized by contract or statute, the family court has a great degree of latitude to award a party their attorney's fees in any family law matter.

In order to make an award of attorney's fees in a dissolution, legal separation, or nullity proceeding, the court must consider the respective incomes and needs of the parties, as well as ability to pay. Once it has made these determinations, the court may order an award of attorney's fees and costs if the making of the award, and the amount of the award, is just and reasonable under the relative circumstances of the respective parties. In determining what is just and reasonable under the relative circumstances, the court must take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to adequately present his or her case, taking into consideration the circumstances of the respective parties.

The purpose of an attorney's fees award is to provide one of the parties, if necessary, with an amount of money adequate to properly litigate the controversy. Each party should have equal access to legal representation in order to preserve all of his or her rights.

Continue reading "Can I Get My Ex To Pay My Attorney's Fees In My Santa Rosa Divorce?" »