How do we handle divorce cases at
The Law Offices of Rick D. Banks?

While every case is different, and not all cases require each of the steps outlined below, this is a list of what we normally do at our firm when preparing your divorce case, and, if necessary, trying the case.

Initial client interview: evaluate the client's case, educate client regarding the legal process for divorce cases, and determine any deadlines that apply.

Contact the opposing party or their attorney, giving them notice of our representation.

File the divorce petition and serve the opposing party, or answer the divorce petition filed by the opposing party.

Serve discovery requests(formal requests for documents and other information regarding assets, debts, child custody issues, history of the opposing party, etc.) on the opposing party or their attorney.

Answer any discovery requests served on our client by the opposing party.

Gather all evidence related to the case, including assets, debts, marital history and child custody issues.

Interview witnesses, if appropriate.

Obtain testimony from the opposing party and any other witnesses as necessary via deposition.

Analyze the legal issues related to the case, including financial and custody issues.

Prepare for any temporary orders which may be needed to govern the conduct of the parties while the case is pending and conduct a hearing regarding such orders if necessary.

Prepare client for court-ordered mediation if child custody and/or child visitation issues cannot be settled.

If mediation is unsuccessful, set the case for trial.

Prepare exhibits to be used at trial.

Prepare and file any necessary briefs and motions with the court.

Prepare the client and any witnesses for trial.

Try the case before a judge.

Review the court’s rulings to see if either party has grounds for appeal.

Advise the client as to whether or not they should appeal the case (note that our contract with you does not obligate us to appeal your case).

How do we start the divorce process?

A divorce is a civil lawsuit, and it begins like any other civil lawsuit.  We prepare a "petition" asking for a divorce.  We file this petition, along with a “summons” with the court clerk's office in the appropriate county.  Then, have the opposing party served with the summons and petition.

If the other side files the suit and serves you with the summons and petition, we prepare an "answer" which we file with the court clerk and then serve on the opposing party.  It does not matter who files for divorce first and there is no advantage to being the "first one to the courthouse".  However, remember that once you are served, you must file an answer within a certain time in order to prevent the other side from seeking a "default judgment" against you.

The parties usually will need "temporary orders" to be entered with the court to govern their behavior and/or to establish support amounts and/or set custody/visitation arrangements while the divorce is pending.  These orders can be negotiated by the parties and their attorneys, or the court may hold a hearing to determine the terms of the order.


What happens after the lawsuit is filed?

After a lawsuit is filed, both sides usually send each other "discovery" requests (mentioned earlier).  We usually serve formal discovery requests on the other party along with our petition or our answer, which must be answered by the opposing party within a certain amount of time.  These are written questions about assets, debts, children issues, marital and other history of the parties and requests for documentation related to all of the above.  Full financial disclosure is required by law, and each side is allowed to discover what assets and debts exist. Occasionally, you may also have to give sworn testimony at a deposition.  We are allowed to find out all of the above information about the opposing party as well.

After discovery is complete, we normally file an “at-issue” memorandum with the clerk’s office, which lets the court know that we are ready to have the case heard by the judge.  We then schedule the case for a “4-way” meeting to see if it can be resolved without a trial.  A 4-way meeting is where the parties and their attorneys get together and try to resolve as many issues as they can before going to trial.

If the 4-way meeting is unsuccessful all of the issues, the parties and the attorneys go to a settlement conference hearing.  There, the judge will usually offer to assist the parties resolve any remaining issues, and if they cannot resolve all of the remaining issues, a trial is held before a judge.  After the trial is over, the parties review the result to determine if an appeal is recommended. 


How long does it take to get divorced in California?

Under California law there is a statutory "waiting period" of six months before the parties to a dissolution proceeding are legally returned to the status of single persons. The parties may not remarry until this waiting period has expired.  In our practice we have found that most divorces require anywhere from six to nine months.  However, depending on the complexity of the case and whether the parties can agree on major issues, it could take one year or even much more to resolve the divorce.  It is almost always in the parties' best interest to resolve the case by agreement as quickly as possible in order avoid excessive legal fees and keep the time spent dealing with the divorce to a minimum.  This allows both parties to save more of their money, reduces the emotional stress and allows the parties to move on with their lives as quickly as possible.  A quick resolution will almost certainly help lessen the trauma on the parties' children.

 

FIVE DEADLY MISTAKES THAT CAN DESTROY YOUR DIVORCE CASE

Sometimes unintentionally, and other times intentionally, people going through a divorce take certain actions which often times costs them dearly in their divorce.  Here are the five most common that I see:

1.    Waiting too long before seeking legal help.

    California law requires that you follow certain procedures when you file for divorce as well as if you receive notice that your spouse has filed for divorce.  There are acceptable forms you should use in filing a divorce petition, answering a petition that you have received and requesting information from the other party.  There are also certain deadlines you must meet.  Missing these deadlines can be fatal to your case. Therefore, it is crucial that you contact an attorney as soon as possible to avoid missing these deadlines.

 2.    Hiding your history (or that of your spouse or your child) from your attorney.

    If you file for divorce, the opposing party usually has the right to obtain information from you regarding your financial, criminal, parental, substance abuse, medical and psychological history.  Even if you do not give it to them voluntarily, they may be able to obtain it from other sources.  If you hide or lie about any of these issues and it is discovered by the other side, your credibility is destroyed, and it will almost certainly damage your ability to get the outcome you want in your divorce.  If you tell your attorney up-front about all prior history, he can evaluate whether or not it will be a problem for your case.  However, your attorney cannot deal with an issue about which he or she does not know.

3.    Hiding assets.

    The quickest way to lose the assets you are entitled to in a divorce is by trying to hide assets, debts, etc. from the other side or the court.  Most spouses have a general idea about what assets that exist in the marriage.  Also, there are other ways for the opposing side to discover any assets that you do not disclose.  You will usually get a reasonable division of assets if you are completely honest about your total financial situation.  If you lie about it, you are inviting the court to punish you by giving your assets to your spouse.

4.    Not working as a team with your attorney.

    Although the attorney is in charge of preparing the case, he or she will need your help to do so.  During the course of a divorce case, it is essential that your attorney be able to contact you and, when necessary, enlist your help in obtaining certain information and documents.  You will also need to be available to assist your attorney by answering discovery requests (formal requests for documents and other information) from the other side, preparing for depositions and preparing for court hearings.  The best attorney in the world cannot help you if you do not assist him in preparing your case. 

5.    Misbehaving in court or at a deposition.

    When you go to court or to a deposition the rules are simple:  tell the truth, dress appropriately (nice, conservative clothing), be polite, do not get angry, do not answer a question that is not asked, do not argue with the judge or the opposing attorney, if you do not know the answer to a question do not guess, and do not talk over someone who is speaking.  Remember that when you go to trial, you are "Exhibit A".  If the judge does not like you and does not believe you, they will look for a way to deny you what you are requesting, and you will lose.  The way to be likable and believable is to assist your attorney in preparing ahead of time for your testimony, being completely honest at all times and being courteous to everyone involved in the case, including the opposing attorney.  If you are obnoxious or do not tell the truth in court or even at a deposition, you will damage your case.  If the judge likes you and believes your story, they will usually try to find a way to help you achieve the result you want, or at least a fair result.  And, even if your case settles without a trial, being courteous honest with the opposing side and their attorney will usually yield a better result. 
 

Cyberbullying: What to Do If it Happens to Your Teen
April 8th, 2010 at 8:49 pm

Cyberbullying, using the Internet, cell phones, or another type of communication technology to hurt or embarrass others, is an increasingly common problem among today’s youth. In a recent study conducted by the National Crime Prevention Council (NCPC) and Harris Interactive Inc., more than 43% of teens ages 13-17 have experienced cyberbullying within the past year.

According to the Pew Internet and American Life Project, about 93% of teens use social media Web sites, and 55% of online teens have created a profile through social networking sites such as MySpace and Facebook. These sites allow teens to express their feelings online for the cyber world to view. Often motivated by anger, frustration or boredom, cyberbullies harass individuals by posting negative comments and pictures.


Cyberbullying, using the Internet, cell phones, or another type of communication technology to hurt or embarrass others, is an increasingly common problem among today’s youth. In a recent study conducted by the National Crime Prevention Council (NCPC) and Harris Interactive Inc., more than 43% of teens ages 13-17 have experienced cyberbullying within the past year.

According to the Pew Internet and American Life Project, about 93% of teens use social media Web sites, and 55% of online teens have created a profile through social networking sites such as MySpace and Facebook. These sites allow teens to express their feelings online for the cyber world to view. Often motivated by anger, frustration or boredom, cyberbullies harass individuals by posting negative comments and pictures.

Victims of cyberbullying usually feel a wide range of emotions, including indifference, anger and embarrassment. According to a study conducted by Fight Crime, only 35% of teens have told a parent about being cyberbullied; 16% have told no one.

Parents need to be aware of cyberbullying by monitoring their teen’s online activity. If a cyberbully harasses your teen, the California Association Marriage and Family Therapists offers the following tips for parents:

• Encourage your teen not to respond to the bullying.
• Save pictures and messages as evidence.
• Contact your teen’s school to report the cyberbullying.
• Closely monitor your teen’s computer use.
• Try to identify the individual doing the bullying.
• If possible, block the cyberbully from future contact.
• Try to contact the cyberbully’s parents, if possible.
• Contact the police or an attorney if cyberbullying becomes violent.
Cyberbullying should not be taken lightly. If your child is seriously troubled by a cyberbully and it affects his or her emotional or mental behavior, consider seeking professional help.

Source: The California Association of Marriage and Family Therapists, with 27 chapters throughout the state, is an independent professional organization, representing the interests of licensed marriage and family therapists. CAMFT provides TherapistFinder.com as a resource to the public looking for marriage and family therapists located in California. www.camft.org.
 

Your Credit Score and Bankruptcy
June 29th, 2010 at 10:19 am

It is not easy to decide to file for bankruptcy protection. What if you need a loan in the near future? Will your credit rating be so damaged that you won't qualify for a loan at a reasonable rate? The good news is that, most of the time, bankruptcy does not do as much damage to your credit score as you might expect. Long-term, it's usually possible to get your credit score high enough for you to get a loan that isn't a rip-off.

"If you sleep on the floor, you can't fall out of bed." If you are considering bankruptcy, your credit score is probably already low. Most likely, you have high balances, late payments, and other repayment problems. Therefore, your score might not go down much...

It is not easy to decide to file for bankruptcy protection. What if you need a loan in the near future? Will your credit rating be so damaged that you won't qualify for a loan at a reasonable rate?

The good news is that, most of the time, bankruptcy does not do as much damage to your credit score as you might expect. Long-term, it's usually possible to get your credit score high enough for you to get a loan that isn't a rip-off.

"If you sleep on the floor, you can't fall out of bed." If you are considering bankruptcy, your credit score is probably already low. Most likely, you have high balances, late payments, and other repayment problems. Therefore, your score might not go down much if you decide to file for bankruptcy protection.

Ironically, bankruptcy even gives some credit scores a small boost. When bankruptcy is declared, high balances, records of unpaid debts and late payments are usually removed. Accounts included in the bankruptcy will be marked as such.

When your credit score is calculated, you are compared to a group of consumers in a similar financial position. If you file bankruptcy, you will be compared with other people who filed for bankruptcy. Your financial behavior only has to be better than the average bankruptcy filer's to rise toward the top scores in your group! You won't get a perfect credit score while the bankruptcy is in place, but a score over 700 is in the realm of possibility.

Realistically, your credit score should be one of many things you weigh in deciding whether bankruptcy would be helpful -- or even possible. The rules about who can file for bankruptcy have tightened up, making it harder than ever to qualify for filing. If you can organize your financial world without bankruptcy, do it! If you are not sure, consult a bankruptcy attorney.

Divorce Attorney – Making Sure You Get What’s Fair

No one gets married expecting to divorce. Unfortunately, over fifty percent of the couples that get married these days will end up in court fighting for legal separation. Some people were incompatible from the beginning. Others may have grown apart over the years. And still others may be dealing with issues of infidelity or spousal abuse. Whatever the reason that instigated the separation, you need to make sure you have someone in your court that will fight for your parental and financial rights. A divorce attorney can ensure that you get everything you are entitled to should you find yourself in the position of getting a divorce.

Even if the divorce is an amicable one, a divorce attorney can help you navigate the legal waters and make sure you don’t get taken advantage of by your ex-spouse or the court system. This is most often seen in the awarding of parental custody of children or the assigning of financial support.

TOP 15 MYTHS OF BANKRUPTCY

1. YOU CAN’T FILE BANKRUPTCY UNDER THE NEW LAW

•    No, THE 2005 REFORM ACT just made it more difficult and added a few SPEED BUMPS to overcome.
•    This is why you need to consult a bankruptcy attorney before you do anything if you are in financial distress.

2. YOU MUST BE BEHIND IN YOUR BILLS OR BROKE TO FILE BANKRUPTCY

•    No, do not wait until it is an emergency with bank restraints and wage garnishments.
•    Figure out where you will be financially 6 months from now. Will it be better or worse?

3. YOU CAN’T WORK AND FILE BANKRUPTCY

•    No, the starting point is the MEDIAN INCOME set in the Means Test under the new law
which is currently $47,969 for single person
•    $64,647 for family of 2
•    $86,694 for family of 5 in CA
•    Each state is different
•    This is just a starting point. Certain expenses will qualify you.

4. YOU WILL LOSE MY HOME IF YOU FILE BANKRUPTCY

•    NO: each state has different protection for homes
•    *CA HAS $75,000 HOMESTEAD PROTECTION FOR EQUITY FOR AN INDIVIDUAL AND $100,000 PROTECTION FOR COUPLES

5. IT WILL DESTROY MY CREDIT IF I FILE FOR BANKRUPTCY MY CREDIT SCORE WILL GO DOWN

•    Let’s face it: most clients already have bad credit
•    Question is: What are you going to do about your debt?
•    Most credit scores will actually go UP after filing bankruptcy

6.  YOU WILL NEVER GET ANOTHER JOB OR BE ABLE TO RENT AN APARTMENT OR HOUSE

•    You have a better chance of landing that job if you take action to fix your finances
•    Employers do not want harassment at work or wage garnishments to deal with
•    Landlords want tenants who can use their salary to pay rent, not the Sheriff or credit cards

7. IF YOU FILE BANKRUPTCY, MIGHT AS WELL MAX OUT CREDIT CARDS

•    DON’T DO IT! Stop using the cards and stop paying them and see a consumer bankruptcy attorney;
•    Maxing out your cards will create more problems in your bankruptcy filing, and may lead to a claim of bad faith;
•    Bankruptcy is meant for the UNFORTUNATE but HONEST debtor

8. YOU SHOULD DO ANYTHING TO AVOID BANKRUPTCY INCLUDING CASHING
IN 401K OR RETIREMENT FUNDS

•    WRONG! Your retirement funds are protected - don’t use them to pay debts that can be discharged!
•    And, you will probably be taxed and penalized on retirement withdrawals by the IRS!
•    Don’t listen to those Cable T.V. Talkingheads who tell you to cash in your retirement!

9. IMMIGRATION STATUS WILL BE AFFECTED AND YOU WILL NEVER BECOME A CITIZEN

•    NOT TRUE: Filing bankruptcy is NOT a crime and will NOT affect your Green Card or
CITIZENSHIP!!

10. THOSE T.V. TALKING HEADS ON CABLE KNOW WHAT THEY ARE TALKING
ABOUT WHEN THEY SAY

•    Cash in your retirement
•    Do anything to avoid Bankruptcy
•    Don’t talk to a Bankruptcy Attorney

11. THOSE DEBT MANAGEMENT SERVICES ADVERTISED ON TV AND RADIO
WORK!

•    NO! If you pay the Debt Management Plan and do not pay your creditors, you will probably be sued by the creditor
•    Most Debt Management Services are being investigated by the Attorney Generals

12. YOU CAN KEEP 1 CREDIT CARD (JUST DON’T TELL YOUR BANKRUPTCY
ATTORNEY)

•    No. Bankruptcy gives you a Fresh Start. You need to list all of your debts.
•    Warning!  You will probably start receiving a lot of unsolicited credit offers in the mail after your bankruptcy.  You should open them standing over your trash can.  The credit companies will be lining up to get you back in the credit trap.  Don’t fall for it! 

13. YOU CAN’T AFFORD TO FILE BANKRUPTCY

•    Most bankruptcy attorneys have payment plans
•    In Chapter 13, most of the fees can be paid through the plan payments
•    You are generally instructed to stop all credit card payments freeing up money for fees
14. YOU ARE A FAILURE IF YOU FILE BANKRUPTCY

•    Studies show that bankruptcies are generally caused BY EMPLOYMENT PROBLEMS, HEALTH PROBLEMS, and/or MARRIAGE PROBLEMS.  There have been many famous people who have filed for bankruptcy throughout U.S. history.  (Watch the video on my bankruptcy website to learn more.)

15. YOU HAVE TO PAY EVERYTHING BACK ANYWAY, SO WHY FILE BANKRUPTCY

•    In A Chapter 7 bankruptcy debts are wiped out with the exception of certain taxes, child
    support/alimony and student loans
•    In Chapter 13 you pay back debts that must be paid, such as certain taxes, student loans, and mortgage arrears (if you are keeping the house).

 

No one wants to think about dying or becoming incapacitated. However, we are responsible for having our affairs in order, should something happen. We know that we need will in case of our death. But what if you get sick or injured, and become incapacitated? If you have a revocable living trust, the guidelines in the trust it will go into effect, should you be alive but incapacitated.

In legal lingo, you would be called the "grantor" and would act as your own trustee. But if you became incapacitated, your "successor trustee" would start controlling your assets.  The successor trustee can be a trust company, a bank or another person (such as a family member).

Maybe you have heard nightmare stories about probate. Probate is a legal process in that often happens when someone with a will dies. A judge decides which creditors need to get paid from the remaining assets. Probate can take a long time, 6 - 24 months, during which time the assets may be frozen. Probate is a public process and the fight can go on a long time.

The nice part about revocable living trusts is that assets in a living trust are included in the Probate process. The trustee handles the details, so the probate court does not have to. Asset distribution is private, so it is finished quickly.
 

"Revocable" means you can change it when you want. This gives you some flexibility, because you can make changes to it as you go along. When you get new assets, you can put them into the trust (unless you do not mind them ending up in Probate court).

Maybe you have heard there are tax advantages to trusts, but a revocable living trust does not have such advantages. This is because you can change the trust.

Another positive point about living trusts is that you can control who gets what, and when they get it. For example, you might distribute a set amount of money each year for the upkeep of your minor children, and make a larger distribution when they are college age (to help pay for their education). Or you may worry that your adult beneficiaries will behave irresponsibly if they inherit all your assets at once. The living trust will allow you to be specific about when the assets will be released, according to a schedule or certain conditions.

Trusts can cost more than 10 times as much as wills, but you will be avoiding Probate, which can get expensive. You still need a will in case you forget to put new assets into the living trust. Also, the guardian of minor children cannot be named in a trust.

Typically, a living trust is a good thing for people who own a business or rental property, whose assets exceed $50K, and people with a great deal of wealth. People who probably do not need a living trust are individuals or childless couples who have very few assets, and people who want the court to supervise their estate after they die.

You should check with your legal counsel to find out if a living trust is right for your situation.

After accumulating student loan debt, sometimes consumers get into financial trouble. They leave school and get a job, but get in over their heads with their finances. Their student loan repayments are just one of many bills that pile up and out-match their ability to pay. At that moment, they may consider bankruptcy protection. Since their student loans are "debt," they may believe that these loans will certainly be wiped out in the bankruptcy. However, the chances of this happening are slim, and they may have alternatives for managing their student loans.

Student (educational) loans may include the Federal Stafford, Federal PLUS, and/or private loans. Over time, the law has become increasingly restrictive about who can include these loans in a bankruptcy. Educational loans are in the non-dischargeable category except in cases of "undue hardship."

The test for undue hardship usually involves finding out if, based on current income and expenses, the consumer cannot both maintain a minimal standard of living and pay back the student loans. This problem would have to be likely to continue for much of the student loan repayment period (such as having a disability). And consumer would have to have made efforts in good faith to repay the loans. Many consumers would fail this test.

In some situations, it is possible that part of the student loans may be discharged, but this is not guaranteed.
Consolidating student loans with the federal government can be helpful, if the consumer can get "hardship deferments." Many lenders will work with the consumer to find an affordable repayment plan.

Bankruptcy is not an easy way to get rid of student loans. The best way to avoid this problem is to minimize costs while in school by getting as scholarships and grants, and attending public colleges or universities for at least part of the degree. Living expenses can be mitigated by living with parents. If the student loans have already been incurred, submit paperwork (such as hardship deferments) and make payments on time to avoid going into default. If paying the bills is a problem, get free financial counseling from a local government agency, and consult an attorney who specializes in bankruptcy law.

It is not easy to decide to file for bankruptcy protection. What if you need a loan in the near future? Will your credit rating be so damaged that you won't qualify for a loan at a reasonable rate?

The good news is that, most of the time, bankruptcy does not do as much damage to your credit score as you might expect. Long-term, it's usually possible to get your credit score high enough for you to get a loan that isn't a rip-off.

"If you sleep on the floor, you can't fall out of bed." If you are considering bankruptcy, your credit score is probably already low. Most likely, you have high balances, late payments, and other repayment problems. Therefore, your score might not go down much if you decide to file for bankruptcy protection.

Ironically, bankruptcy even gives some credit scores a small boost. When bankruptcy is declared, high balances, records of unpaid debts and late payments are usually removed. Accounts included in the bankruptcy will be marked as such.

When your credit score is calculated, you are compared to a group of consumers in a similar financial position. If you file bankruptcy, you will be compared with other people who filed for bankruptcy. Your financial behavior only has to be better than the average bankruptcy filer's to rise toward the top scores in your group! You won't get a perfect credit score while the bankruptcy is in place, but a score over 700 is in the realm of possibility.

Realistically, your credit score should be one of many things you weigh in deciding whether bankruptcy would be helpful -- or even possible. The rules about who can file for bankruptcy have tightened up, making it harder than ever to qualify for filing. If you can organize your financial world without bankruptcy, do it! If you are not sure, consult a bankruptcy attorney.

About the author: Rick D. Banks is a bankruptcy attorney in Frescno, California.