For your convenience we have provided answers to the most common questions in each of the areas of law we represent.
Family Law
Divorces (now called Dissolutions) can be divided (bifurcated) into two parts. A Divorce proceeding will dissolve the marriage which restores the parties to single persons, and resolve the substantive issues which are addressed herein below.
Child Custody and Visitation
1. Legal Custody - This is usually awarded jointly to the parties and allows them equal input and access to the health, education and welfare decisions in their child's life.
2. Physical Custody - Also called primary residence, is awarded to the party who has the majority of the child share time.
3. Visitation - Now called child sharing, it is presumed that frequent and continuing contact with both parties is best for the child.
4. Best Interests Test - The heart of this rule is stability for the child.
Child Support and Spousal Support
1. Child Support- California recently enacted a uniform Child Support Guideline System which sets the amount of Child Support by computer programs based on a multitude of factors including:
Child Sharing Percentages
Father's Net and Gross Income
Mother's Net and Gross Income
Special Limited Deductions
Tax Status and Dependency Exemptions
Other Household Children
2. Temporary Spousal Support - Also known as alimony, temporary Spousal Support maintains the financial status quo during the pendency of the Dissolution proceedings. San Diego has no Spousal Support guideline system.
3. Permanent Spousal Support - Also known as alimony, permanent Spousal Support supersedes temporary Spousal Support and attempts to rehabilitate a dependent spouse to become financially self-sufficient. The Family Code identifies a number of factors which define Spousal Support amount, while Spousal Support duration depends on the length of the marriage.
4. Family Support - A combination of unallocated Child and Spousal Support.
5. Wage Assignment - All support is now directly enforceable in California by Assignment which is similar to a wage garnishment.
Property Characterization and Division
In this State, property is characterized as Community or Separate pursuant to the manner and time it was acquired. As a community property state, any property acquired with the labor, skill, energy, or time of either party, while married and living together, is characterized as community property. Community property can be divided equally by the Court or equitably by the parties. This property can be either real property (land and structures) or personal property (bank accounts, cars, businesses, securities, retirement funds, etc.).
1. Community Property - Assets and debts acquired during the term of the marriage except by gift or inheritance/devise or special rules (student loans).
2. Separate Property - Assets and debts brought to the marriage, etc., unless transmutated (changed) into Community Property.
3. Property Division - Community property is divided equally to the extent economically feasible. Therefore, household furniture and furnishings generally do not divide in kind.
Personal Injury
If you are injured in a car accident, the first step is to seek medical help through your doctor or your hospital. If you are suffering, your health will be our first concern. Early treatments, in many cases, prevent the onset of scar tissue and rehabilitating alignments.
What am I entitled to recover?
Each case is unique, but generally all out of pocket expenses, such as treatment, mileage to and from the doctor, expenses for medication, loss earnings, loss of consortium, loss of the use of your automobile, pain and suffering are covered. The dollar amounts for these categories are dependant on the severity of the injury, the impact you receive, the type of damage to your car, and the various insurance companies that we deal with. That is why an effective lawyer is so valuable to you.
What if there is no insurance?
In many cases, you will be involved in an accident where the other party does not have insurance. However, often we can use your uninsured motorist coverage, which can be quite broad to extend to passengers etc. Generally, there is a no fault type of insurance that you purchased as an option that does not count against your driving record.
Protect your rights if you have been injured. Get started immediately with your medical treatment, your fact gathering and contact us. Rest assured if the insurance company knows that you are injured, they will have an investigator contact you as quickly as possible to ask questions that favor their side on all issues. Protect yourself from those damaging questions by consulting us in advance.
Workers Compensation
Who is covered by Workers' Compensation?
Virtually every person who is an employee in California is covered with a few exceptions.
When am I covered?
Coverage begins the first minute you are on the job. There are no minimum hours or earnings requirements, except in a few rare cases.
How do I get the benefits I am due?
Your first obligation is to promptly report the injury to a supervisor, manager, or your employer and request an Employee's Claim form to complete. You should always try to report the injury within one (1) day wherever possible and request referral to a doctor for treatment. Request the Employee's copy of the injury claim form and keep this document in a safe place.
What types of injuries are covered?
Basically, workers' compensation injuries fall into three categories:
A specific accident such as a trip and fall; an auto collision; or an injury to your back when lifting.
A repetitive stress and strain injury commonly caused by prolonged overuse such as carpal tunnel syndrome; and
Aggravation of a pre-existing condition such as a new back injury occurring after an old back injury and surgery; or aggravation of an arthritic knee or ankle.
What you should know about your medical care and treatment?
Thirty days after injury you have the right to select your own treating physician. Your doctor should be an advocate to get you the treatment you need to get well. If you were referred to the doctor by your employer or their insurance company, the economic pressures the doctor may feel from the insurance company can create a conflict of interest. Choose a doctor who spends more time talking to you than he spends communicating with the claims adjuster.
The opinions of the treating doctor are presumed to be accurate and correct. If your doctor feels he must please the workers' compensation insurance company that referred you to him, the amount of benefits you receive may be negatively affected.
Do I have a right to a second opinion?
Yes. On medical questions you have a right to a second opinion with another doctor. You simply need to request it. You can request to be seen by a physician of your own selection.
How do I know I'm receiving the correct amount of temporary disability benefits?
The only sure way to know is to consult with us. Generally, two thirds of your earnings when injured up to a statutory maximum amount will be paid. However, there are numerous exceptions which may increase or affect your weekly rate of temporary disability.
How do I know if I'm being told the correct amount of permanent disability benefits I'm due?
You don't. You need to consult us. In most claims after you become permanent and stationary, the insurance company will advise you of their calculation of how much you are due. The adjuster frequently under estimates the potential amount payable to lower your expectations and to allow him or her the opportunity to settle your claim well under the limits reserved for your case.
The rating of a medical report is a complicated matter. For example, a work restriction against "very heavy work" versus no "heavy work" can affect your award or settlement by $15,000 or more. Sometimes disability raters for the state make mistakes in their ratings or overlook something as they rush to issue ratings.
When should I hire an attorney to help me?
Most people who undergo surgery, or who are off work more than 60 days eventually hire an attorney to help them. We can potentially do more for you if you retain our services while you are still undergoing active medical treatment. Where possible, do not wait to be declared permanent and stationary before you consult with us. Your initial consultation will be free and without obligation. Sooner will be much better than later.
What if I disagree with the opinions of the treating doctor and the amount he calculates I should be paid for my injury?
You can contest that opinion by utilizing our services. We can refer you to a medical expert or one selected for you in agreement with the insurance company.
If you go and choose a Qualified Medical Examiner on your own, you are acting as your own attorney. Representing yourself against a multi-billion dollar insurance company in a highly technical area of the law is extremely hazardous and leaves you very vulnerable.
What are my rights to vocational rehabilitation benefits?
You are entitled to receive up to $16,000 in benefits including vocational rehabilitation maintenance benefits paid to you while participating in a retraining program. Most injured workers who are represented by us receive close to the $16,000 in benefits available whenever substantial help is needed in returning an injured worker to work. In addition, you can draw a permanent disability supplemental check from your future award to help you get by financially while you are participating in vocational rehabilitation.
How are attorneys paid in workers' compensation cases?
All attorneys who represent injured workers are paid on a contingency fee basis out of the final award or settlement at the conclusion of your case. No fee will be assessed for temporary disability benefits paid to you voluntarily by the insurance company. Pursuant to state law, the judge of the court will decide the lawyers fee within a range of 9 to 15% of the recovery obtained. Your initial consultation with us is free and without obligation.
Criminal Defense
DUI - Possible consequences under drunken driving/petty theft include: Jail time, heavy fines, loss of driver’s license, probation, AA meetings, and psychological counseling. Generally, jail time is limited to a maximum of six months for most misdemeanors.
Drug Cases - On certain kinds of drug cases, they are considered felonies, which subject you to the possibility of prison or longer jail sentences. Our offices always strive to get first offenders into a diversion program, which allows them the opportunity to attend classes in exchange for a dismissal, at the completion of a probationary period.
DMV hearings - DUI and other suspension hearing sometimes require quick response on your part, so that you many obtain a right to a hearing, regarding the possible suspension of your license. This is mandatory under DUI and other alcohol and drug related cases.
Domestic violence - Orange County has taken a tough stand in the last years against domestic violence and many people are spending time in jail before they can even retain an attorney. Under some conditions, our representation has got domestic violence offenders into classes and suspended jail sentences.
Wills and Trusts
What is a will?
A will is a legal document that allows the person making (the ‘testator’) to determine how his or her property (the ‘estate’) is distributed after his or her death.
A person who receives a gift under a will is called a ‘beneficiary’.
Why should I have a will?
A will allows you to give to whomever you wish. If you die without a will, there is a special formula in the Administration Act pursuant to which your property is divided among your relatives - your spouse, children, parents, brothers, sisters, nieces, nephews, grandparents, uncles, aunts and cousins. If you have no relatives, your property will go to the Crown.
What is an Executor?
When making a will, you need to appoint one or more Executors. This person is usually a relative or a trusted friend of the Testator. You should always ask the person you want to appoint if he or she is willing to act as an Executor.
A person who is a beneficiary under the will can act as an Executor.
The role of the Executor is to wind up the estate on the testator’s behalf. He or she is responsible for payment of the testator’s outstanding debts from the estate and the distribution of the assets of the testator according to the terms of the will. This may include the selling of property and the distribution of the proceeds of the sale.
The Executor also acts as an intermediate holder of the testator’s assets while the estate is distributed between the beneficiaries. This is why an Executor is often referred to as a "Trustee and Executor"—the Executor holds the assets on the trust while they are being distributed to the beneficiaries.
The tasks of the Executor can be quite onerous. This should be taken into account when appointing the Executor.
How do I divide up my estate?
How you divide up your estate is up to you. You may wish to make some specific gifts to specific people. For example, you may wish to leave your car to one of your children. On the other hand, you can simply divide your estate in equal shares between several beneficiaries.
It is important that your will disposes of all of your assets, otherwise there may be some problems. Your executor may need to apply to the Supreme Court for an order determining what is to happen to the assets which have not been disposed of by the will.
There is one exception to the general rule that you can divide your estate as you like. You must make adequate provision for members of your family who were dependent on you at the time of your death. If you don’t make adequate provision for these people, your will may be challenged.
What cannot be left in a will?
Property held as a joint tenant. If the holder of a joint tenancy dies, the surviving joint tenant automatically becomes takes over the interest of the deceased joint tenant. For example, if Mr and Mrs Jones hold land as joint tenants and Mrs Jones dies, Mr Jones automatically becomes the sole owner of the land.
If the holder of a joint tenancy dies, the surviving joint tenant must file a survivorship application at the Department of Land Administration.
Property held by a discretionary or unit trust cannot usually be left by a will even if the testator is the main beneficiary of the trust. This property can only be left if the testator is the only beneficiary of the trust.
Some superannuation and life insurance proceeds cannot be left by will because the proceeds are never the property of the testator but rather, they automatically go to the beneficiaries specified by the policy holder if the policy holder dies.
What happens to my estate if I don’t have a will?
Some people think that if they do not have a valid will, their estate automatically goes to the government. This is not the case. Under the Administration Act, the estate is divided among the testator’s surviving relatives according to a set formula. Property only passes to the Crown when the testator leaves no surviving relatives.
If you don’t have a will, your next of kin need to apply for ‘Letters of Administration’. This is more complicated and time-consuming than obtaining probate on a will.
Bankruptcy
What is the Difference Between Chapters 7, 11 and 13?
Chapter 7 is a "straight" bankruptcy - the most common kind. You may keep your exempt property while wiping out most, if not all of your debt. If you are current on your house or car payment, you can usually keep the property as long as you continue to make the payments on time.
Chapter 11 is usually used by a business to reorganize its financial structure. Creditors vote on a plan of reorganization.
Chapter 13 is for an individual wage earner with regular income. It is a debt repayment plan in which you make monthly payments for a period of years to a court-appointed trustee, who in turn makes payments to your creditors. Chapter 13 is typically used by someone who is behind on their mortgage payments and wants to save their home. Creditors do not vote on the Plan.
All Chapters will stop lawsuits, wage garnishments and creditor harrassment.
All Chapters provide that much of an individual's property is exempt from the claims of creditors. In other words, you can usually keep all of your property.
What is the Procedure for Filing Bankruptcy?
First, call us for a free initial consultation to find out if bankruptcy is the right thing for you. We will then set up a free appointment for you to come in to the office so we can discuss your case in detail. Be sure to bring ALL of your bills with you.
Next, my office will prepare all of the necessary paperwork (about 25 pages) and return them to you for your review and signature. This usually takes about one business day.
After you return the signed documents, we will file them with the Bankruptcy Court. Your creditors will then be notified that the bankruptcy injunction is in effect and that they cannot bother or harass you anymore. Lawsuits and wage garnishments must stop at this time.
Then, about 4 to 5 weeks after the case is filed, a Meeting of Creditors, also called a trustee's meeting, is conducted by a bankruptcy trustee appointed by the court. You must attend this hearing. The bankruptcy trustee reviews the papers we have filed and asks questions about them. We are there with you.
Finally, the trustee makes a recommendation to the Bankruptcy Judge as to whether your bankruptcy should be approved.
Your Bankruptcy Discharge is then entered by the Bankruptcy Judge.
What Effect Will a Bankruptcy Have on My Credit?
Many of our clients ask this question. The truth is, if someone is considering filing bankruptcy, chances are that his or her credit is already poor. If that is the case, a bankruptcy may actually help re-establish your credit. How? Two main reasons:
Number One, you will no longer be overwhelmed by all your debt. Rather than numerous "minimum payments" and the like each month, all you will have is your living expenses (and certain other debts like student loans). In other words, you will once again enjoy having some disposable income.
Number Two, you cannot get another bankruptcy discharge for 6 years - creditors know this and may consider you a better credit risk because of it.
A bankruptcy case is on your credit report for 7 to 10 years. However, many of our clients have been able to get car loans, mortgages, or other credit after only a few months. As always, it depends on the individual case.
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