It’s Just A Piece of Paper, by Annette Gomez, LDA
Have you ever heard someone (maybe even you) say, “It doesn’t matter, it’s just a piece of paper”. We have helped to clean up some nasty messes that could have been avoided with “just that piece of paper”.
Recently an elderly Los Angeles woman was stunned to find out that the house she had been living in for 27 years didn’t really belong to her. She found out just before the auction. She told an L.A. Times reporter that she lived with the man she specifically referred to as her “husband” who owned the house before he died. But they were never legally married (Just a piece of paper?) which means that ownership and inheritance rights are not the same.
She also said that he “wrote” a will leaving the house to her, but that will doesn’t seem to exist (Just a piece of paper?) Because of that she claimed to be the executor (in charge) of the estate. If she had gone to court to become executor (Just another piece of paper?) of the estate, she wouldn’t have been surprised when the FOR SALE signs went up in the front yard. But the county is administrating the sale because no one prepared and signed legal documents (Just another piece of paper?) to avoid this nightmare.
Apparently there were taxes owed on the home that she didn’t know about. Even those who are not administrating an estate, can ask for notice at the recorder’s office and the courts to stay informed of any actions (Just a piece of paper?).
Fortunately, there are possible remedies to alleviate her situation, and caring people who are trying to help. This story is not to bash anyone who hasn’t taken care of business or bash the people involved who are just doing their job. It’s an extreme but true story of what can happen when matters aren’t handled ahead to time with “Just a piece of paper”.
There are people who think they’re married to someone, but are not because that person is really married to someone else because they didn’t bother to file the documents to get a divorce judgment first (Just another piece of paper?) There are people who think they own a house, but don’t have any property rights because they are not named on a deed (Just another piece of paper?). There are people who think they can get information or represent their spouse but can’t because they’re not named in a power of attorney (Just a piece of paper?). There are parents who have no legal custody rights to their children because they didn’t marry the mother or petition the court for them (Just another piece of paper?). The list goes on and on.
If you’re not sure of where you stand on certain issues or what you can do to avoid future problems, do your research and consult with a licensed professional if needed. Then make sure all documents are in order for the protection of the parties with just another piece of paper.
The information in this article is not intended as legal advice, but is informational and general in nature.
Read “Woman, 78, could lose home in probate confusion. http://www.latimes.com/news/local/la-me-adv-elderly-evict-20130427,0,812944.story
Factors Considered in Determining “Best Interest of Child” in Custody Proceedings, by Annette Gomez, LDA
Many believe that physical custody will normally default to the mother or that once a child reaches a certain age, their choice will prevail over most other reasons.
Among other factors it finds relevant, California Family Code §3011 considers all of the following: the health, safety and welfare of the child, any history of abuse by a person seeking custody against certain persons, the nature and extent of contact with both parents, and the habitual illegal use of controlled substances or alcohol.
The meaning of the first factor “health, safety and welfare” is broad. Reams of paper are filed each day at the courts from parents attempting to move the court in their favor. The nature of the legislature’s findings, declarations, and application of this are found in Family Code 3030-3032.
The remaining factors are more straightforward by definition, but are usually backed up with more evidence. Written reports by law enforcement, child protective services or other social welfare agencies, courts, physicians, rehab facilities, schools and other witnesses are frequently used to support and confirm testimony, written and verbal.
Not understanding the court’s considerations when asking for a custody award will probably result in a waste of your time, resources and possibly a loss your credibility, not to mention a denial of your request. If you are determined to represent yourself and want to proceed effectively, you should consult with a compassionate and experienced family law attorney first.
IS YOUR LIVING TRUST VALID? By Annette Gomez, LDA
Just because you prepared a living trust to keep your loved ones out of probate court, doesn’t guarantee they will stay out of court.
Remember that even though you have the right to distribute your assets anyway you choose, gifting your assets unevenly or disinheriting a family member could invite a legal contest, unless you take extra precaution to stamp out any potential fires before they start.
Your living trust (or will) can be questioned not only by angry family members but also by those who legitimately question the circumstances surrounding the creation and signing of your documents.
Although property is easily transferred to beneficiaries through living trusts, some trusts end up in court for a judge to determine the validity of the trust.
To increase the odds that your intentions aren’t debated in a courtroom, keep in mind the following points:
• Will anyone question your mental capacity at the time you had your trust prepared and signed? In summary, California Probate Code Section 811(a) defines a person lacking the capacity to execute a will or trust as someone who either lacks alertness or attention, lacks the ability to process information, a deficit in the thought process or inappropriate moods. Taking any mind altering medications, such as strong painkillers at the time you had your trust prepared or when you signed your documents can be a factor in questioning your mental capacity.
• Could anyone question that you were being influenced? Were your documents prepared and signed quickly, for example in a hospital?
• Was the creation and signing of your document a secret?
• Is the person(s) who is benefiting the most from your estate, the one who helped you have the documents created and signed?
Don’t give someone the ammunition to attack your mental capacity if you are mentally capable. As varied as the dynamics of different families are, so are the ways varied that I see people handle the transparency of their estate plans. I personally think it’s a good idea to write a carefully thought out and tactful letter explaining why some beneficiaries will receive more than others. Whether or not it avoids any conflict, it should help to settle any possible legal disputes.
Think about these potential issues as you are creating and signing these documents. The best way to avoid these types of conflict is to prepare your documents ahead of time. Stop waiting until the last minute to get your affairs in order.
YOUR SPOUSE ISN’T YOUR “EX” UNLESS THE JUDGE SAYS SO, by Annette Gomez, LDA
Today we received an inquiry from someone who wanted help probating her father’s estate. She said that his “ex-wife” had released her interest in the home several years ago before she disappeared, and by the way, although a divorce was filed, it had never been completed. It was apparent that she believed that the “ex” wasn’t entitled to anything. We told her to go see an attorney.
Unless you have a divorce judgment terminating your marriage, you’re still married. Generally, a living spouse can inherit from a deceased spouse’s estate even if they’ve been legally separated for a long time. Even if you prepare estate planning documents saying otherwise, you can’t disinherit your spouse. The court will award a portion of the estate to the spouse.
Remember, if you’re not legally divorced, your spouse may also be entitled to your social security benefits and other assets even if other beneficiaries are named on your accounts. Although community property and separate property are treated differently during life, they are both issues to handle in regards to a separated spouse after death. Are you really intending to surprise your separated spouse with this kind of gift?
What’s even messier? Marrying someone else when you haven’t finalized your divorce first. Don’t be shocked. In California, it’s a common ground for the annulments that are filed. Imagine straightening out the legal entanglements after adding some more property and a few new children. The moral of the story is that a marriage is a lot more than a piece of paper. Even though it’s supposed to be a serious life-long emotional, physical and spiritual commitment, at least the legalities of the relationship should be known.
It’s Called The Grey Divorce, by Annette Gomez, LDA
The first years of my business saw very few dissolutions of long terms marriages (over 10 years in length). I had a few couples who quietly dissolved their marriages for no other reason than an illness was bankrupting them and they couldn’t afford the costs of their health care. A divorce would allow the sick spouse to qualify for Medi-Cal and get the treatment they needed without total financial ruin. These people were ashamed and had no plans of telling their children what they were doing. In their hearts, they were still married.
About 10 years ago, I began to see more couples divorcing after 20 years of marriage. It was shocking. I thought if they could stay together for that long, why couldn’t they figure a way to keep their vows until “death do you part”. Most of the people I was accustomed to dealing with were married for a short time, In my mind, they got married too young, too soon, to the wrong person, without any idea of what they were doing (think Britney Spears). They were still at an age that they could start over, older and wiser to make the right decisions after learning from their past mistakes. But I didn’t understand the people coming in at a higher frequency, married for 20 years, 25 years, 30 years and more who weren’t divorcing for the reasons I stated above.
Today, the divorce rate of people over age 50 has more than doubled since 1990 and since 2008 more than 25% of the people who divorce in this country are over the age of 50 (think Al & Tipper Gore). It’s called the Grey Divorce and it brings with it a whole new set of complex issues. Don’t be fooled into thinking that just because the kids are grown and gone, and child support is no longer an issue, that there are less legalities to manage.
Dividing pensions, dividing real estate, estate planning, will re-writing, dissolving trusts or jointly held corporations, dealing with social security benefit issues, declining health, declining income, the availability and cost of health care, re-entering the job market, tax issues, retirement, spousal support and survivors benefits, will affect negotiating a marital settlement differently than in a short term marriage of a younger couple. In a grey divorce, there is much more emphasis on preserving assets as there is less time to recover financially.
For example, a younger person usually views the family home as a place to maintain a sense of stability for the children, which has a financial value, if not now, but later. An older person might view it as a source of income via reverse mortgage, which could affect considerations regarding spousal support. Keeping the home could also benefit them with age-related property tax exemptions. Or they might see it as a liability from the maintenance standpoint. As you can see, an equal division of benefits through property buyouts and other considerations can be mind boggling. The need for professional advice will be more important to reach a fair settlement.
Collaboration with a legal document assistant, financial adviser, private mediator and an attorney is preferable to litigation and even more important in a grey divorce as the stakes are much higher.
TweetGrandparents Have Rights, Right?, by Annette Gomez, LDA
The current rate of divorce, the escalating rate of domestic violence, alcoholism and substance abuse in our society has done much to diminish the traditional family. Not only does the timeshare with the minor children become a major point of contention between the parents, but it can be for grandparents as well. Without proactive measures, they can easily become alienated from their grandchildren after other circumstances also, such as the death of a parent. But grandparents have rights too, right?
Yes and No. In 2001 a California Court of Appeals ruled the California statute providing grandparent visitation unconstitutional. But sometimes grandparents are granted visitation by the court. Because there are many issues to be aware of and because grandparent rights are not automatic, legal research or advice is needed before proceeding with any action on your own to discuss what specific course of legal action can be taken, if any.
California Family Code Section 3103 defines the specific proceedings in which grandparents may be entitled to visitation and Section 3104 defines the specific prerequisites before visitation will be granted. (See language below).
Basically, the court needs to see that either a parent is deceased, the child’s parents are divorced or separated, one parent’s whereabouts are unknown, or the child is not residing with either parent (as in the case of a guardianship or adoption). After determining that visitation is in the child’s best interest, it should be proven that the grandparents already had a loving bond with the grandchild and that any potential grandparent visitation wouldn’t conflict with the parents’ rights, which come first.
3103. (a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.
(b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.
(d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation rights.
(e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with
Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means
costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(h) As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
3104. (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:
(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
(b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:
(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant
the termination.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the bestinterest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change
of residence.
(i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with
Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means
costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(j) As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
Who Are You, by Annette Gomez, LDA
You’d be surprised at the implications of writing anything other than your legal name on a document. Using a nick-name, a middle name as a first name, using the last name of your step-parent or disregarding the fact that you’re a senior or junior will cause confusion that many times leads to a complete halt in the middle of a very important event. Many of the legal name changes we prepare in our office are done to untangle a mess caused by the negligent use of someone’s name. Most recently, a client of mine is having the receipt of his inheritance delayed because of the use of his name. Listed below are only a few of the other examples we’ve encountered when helping someone fix their name legally.
Example #1: On more than one occasion a client was unable to collect their social security benefit after retirement until they legally changed their name. The problem started when they were issued a social security number years before. The name on their application for a social security card didn’t match the name on their employment records.
Example #2: A client had to delay entrance into a military academy. A background search found that the name he had been using most of his life didn’t match his given name at the time of his adoption.
Example #3: On several occasions, an eager teen had to wait to get their name legally fixed before applying for their driver’s license because their name on the birth certificate didn’t match the name being used on school records and other important documents.
Frequently there are problems when someone is trying to have their signature notarized. The name they are signing must match their identifying document exactly, which is usually a driver’s license or DMV ID card. It’s ok if their signed name doesn’t include a middle name on the identifying document, but it cannot add anything that is not already on the identifying document. When the signature can’t be notarized, the person has to go back to the source to fix their records. I’ve seen people get their names convoluted on their immigration documents which caused problems later as they tried to manage other legal affairs.
Many of the people who come to us for legal name changes take a proactive approach. They change the name to match what they are using on documents, like school records to avoid problems later. A common example is when a mother gives her child the father’s name on the birth certificate, but never uses it later on any records because he disappeared. Other times a child has been using the name of the step-parent who has been raising the child and it is made legal without a formal adoption. Some people have always used another name, not a shortened name, not a middle name, just some other name they prefer, and want to make it legal.
Legal name changes are very common and can be done as long as the intent is not to defraud someone or cover something up as in the case of someone who is under the jurisdiction of the Department of Corrections or is a registered sex offender. Also, you can’t take the name of a celebrity or other famous person and the name can’t be obscene.
So to avoid future problems, use your same name on all your legal documents and call us to help you with the process of fixing it if you haven’t.
TweetFor Us Who Strive For Equality in the Legal System – We Just Lost a Great Friend, by Annette Gomez, LDA
In my present sadness I write this to let you know that attorney Stephen Elias passed away on Thursday December 29, 2011. For those of you who have come to us for help with your bankruptcy filings, you might only know him as the attorney who counseled you so that you could stand up on your own in a system that presumed you were abusing your right to due process, but were only trying to survive a hardship with your dignity intact.
But as for me, he was played a very important part in my desire to help people who can’t afford an attorney’s retainer fee. For a small fee he provided unlimited legal advice to many of our bankruptcy clients, from his first telephone consultation until the close of their case, which during the height of the court’s backlog, took about 5 months. As they were filing for bankruptcy, many of my clients were also dealing with the loss of their jobs and homes and sometimes their marriages. No matter how many times they called or emailed him with questions, Stephen was available so they could understand their rights and options. He detailed his information on a written report which they could use to complete their court paperwork and allow us to prepare their petitions correctly so their case would be resolved smoothly.
Stephen spent much of life advocating people’s right to legal self representation. Through his published books, his radio show, pro bono work, advisory work and other efforts, he helped to make some positive change in the legal establishment, which quite bluntly has been very unfriendly to my profession. Until Stephen started personally helping my clients, I had been ordered to court more times than I can count for alleged “unauthorized practice of law” for preparing bankruptcy petitions. While some in my field quit preparing bankruptcy petitions fearing the prosecutors’ in the U.S. Trustee’s office, I continued, I’ll admit, not just for our right to equality, but because I’ve never really liked people telling me what to do. With Stephen helping my clients, I was able to do my job without fear of harassment in court and my clients had the utmost confidence in representing themselves in court.
I met Stephen Elias in the California Association of Legal Document Assistants, whose core membership consists of grassroots pioneers in the self-help legal movement. He was a longtime advisor to the board, of which I served. At first sight, he could fool you as ordinary, but his passion & strength in his moral convictions, his ethics and drive to make “justice for all” a reality made him very extraordinary. He was an attorney who sincerely wanted to help people not have to hire attorneys unnecessarily. He was available to any individual, legal document professional, and attorney who requested his guidance. As I look at all his efforts it is obvious to me that he found his purpose in life and accomplished it well. There is so much more to tell about him that you can read about in his hometown newspaper if you so desire. http://lakeconews.com/content/view/23022/919/ I am so glad that our paths had crossed and honored that many of my clients lives were enriched by his touch.
Our Overburdened Courts or Why Legal Document Assistants Are More Important Now Than Ever Before, by Annette Gomez, LDA
It’s not just the court staff, from clerks to judges, who are handling increasing caseloads which are slowing the system down. It’s not just the new family laws going into effect in 2012 that will slow the system down (for an estimated 13 extra months to finalize a divorce in some CA courts). Now the court’s self-help assistance is taking a hit.
The Courts in this state piloted the self help programs several years after the birth of the LDA (legal document assistant) profession in response to the high demand for affordable consumer friendly legal services. Yet the money, careful study and time devoted to innovating the workshops and websites never came close to satisfying the ever-growing need for fair access to the justice system.
The San Mateo court’s website announces: “…As a result of this fiscal crisis, the California Superior Courts no longer have sufficient funding to keep the EZLegalFile court form completion program online and available for use after June 30, 2011…”
The Riverside court’s website has sample letters for visitors to use to write to our governor and legislators pleading with them not to cut funding. Many of the courts have cut their telephone hours. The Riverside court changed their phone numbers and it seems it was done deliberately so you can’t catch a live person for help.
Fortunately, the LDA profession, which was born just 10 years ago, can help fill in the gaps. Designed as a lawful alternative to the high cost of attorney’s fees, experienced and professional LDAs can save consumers lots of time in getting their legal problems resolved. Because of our knowledge of court rules, regulations and individual court policies, time isn’t wasted in the process of getting a judgment.
Even though CA mandated the LDA profession to help to make a difference, some voice the need for more non-lawyer legal services. USC Law & Economics Professor Gillian Hadfield, who was interviewed in “Law Without (As Many) Lawyers”, by Dan Watson http://www.miller-mccune.com/legal-affairs/law-without-as-many-lawyers-34923/ suggests having new levels of licensed people, citing the medical profession as an example, which has many levels of different service providers.
As past president of the Inland Empire Chapter of the California Association of Legal Document Assistants, I’ve coordinated with the Riverside and San Bernardino family law facilitators (attorneys) to communicate with the LDAs in an effort to help the system be more efficient. They were grateful for the opportunity to teach outside professionals how they wanted things done as it would help relieve them of some of their massive workload.
For consumers who just cannot afford an attorney or who do not have complex legal issues to resolve, a bonded and registered LDA is the answer for completing legal documents and providing valuable resources, other than legal advice. Now many attorneys are available for legal advice and court representation without having to retain them for full service.
TweetOne More Reason To Keep Family Law Disputes Out of the Courtroom, by Annette Gomez, L.D.A.
When I started helping consumers prepare their legal documents for divorce in 1996, between 50-55% of family law litigants were self-represented. There were no family law assistance centers or facilitators at the court to help people get through the process on their own. Legal Document Assistants, formerly known as Independent Paralegals were mostly part of a cottage industry plagued by unscrupulous fly-by-nights. And Robert Shapiro hadn’t yet created Legal Zoom.
Fast forward to 2011 where legal document assistants, have been legitimized for over 10 years. The new laws have helped to rid the legal marketplace of many, but not all non-attorney rip off artists. For those who have the most simple cases to resolve, the ability to follow directions, and plenty of time and patience to wait around, the courts have instituted self help centers in their effort to provide equal access to the justice system.
Even with the changes taking place, litigants, self represented along with those represented by an attorney, will face increased challenges in getting their cases resolved efficiently. At this time, more than 70% of litigants in family law courts are self-represented. Although many changes have occurred to help people filing IN PRO PER resolve their matters without having to hire an attorney, the demand for consumer friendly assistance in the legal field has outpaced the changes that are being made in the courts.
In response to the changes needed to be made which culminated in a 2007 CA Supreme Court case, known as Elkins v. Superior Court, a taskforce was formed (Elkins Task Force) to review the rules and methods of how courts would handle family law proceedings and make recommendations to the legislature in an effort to provide greater access to justice. These recommendations have resulted in 2 bills which were chaptered and will become effective January 1, 2012.
The first bill AB1050, which I wrote about in my blog in April 2011, deals with children over 14 years of age having a voice when custody is being determined by the court. The second bill AB 939 deals with testimony in hearings, among other things. The way the court has handled issues through motions and written declarations, which was previously adopted by rules to keep attorneys moving their cases along efficiently but apparently caused problems for the pro pers, will be changed so that live testimony will allowed under certain conditions.
It will be interesting to see how this effort to give litigants their due process will work with the court’s increasing budget constraints. It has already been predicted that family law cases in some of this state’s busier courts will take an average 18 months of time to resolve, compared to the 5 months it now takes.
If it all possible, it’s best to keep divorce out of the courtroom. More and more people are realizing that the idea of each party hiring an attorney to fight over property and children is ugly, destructive and way too expensive and that for the sake of everyone’s sanity, other methods should be explored. The new laws beginning in 2012, will likely bring more confusion and delay, and are just another reason to keep divorce out of court.
A better option is to hire an attorney who practices collaborative law. For those who want to represent themselves, the best thing to do if you have to go through a divorce is to get legal advice if you don’t know the law, get private mediation if you can’t resolve the issues on your own after you understand the law and then contract with a professional legal document preparation service for the preparation and filing of your documents so you can STAY OUT OF COURT.
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