Generally, no one wakes up and wants to obtain a restraining order against another party as it requires one to expend the time and energy to go to Court. Having said that, harassment, either in person or online, violence, or threats of violence are serious issues. As anyone will tell you, if you have an imminent fear of violence, or are experiencing violence at this moment in time, you should stop reading this post, and contact the appropriate authorities. If you have contacted the authorities, you should also consider your civil remedies in Superior Court. While restraining orders against parties one knows are governed by the Family Code, restraining orders against strangers are governed by the Code of Civil Procedure and are called Civil Harassment Restraining Orders (“CHRO”).
The distinction here is simple: if you are related to a party, or if they are your wife, husband, boyfriend, girlfriend, former husband, former wife, former boyfriend, or former girlfriend, the law classifies such problems as potential domestic violence, and the remedy is a domestic violence restraining order. However, if the relationship is that of a non-romantic roommate, co-worker, neighbor, random stranger, or anyone that does not fall into the above domestic violence category above, the remedy is a Civil Harassment Restraining Order.
Civil Harassment Restraining Orders are governed by Section 527.6 of the Code of Civil Procedure, and under this section, individuals are entitled to a CHRO if they meet any of the following conditions: a) Are a victim of a continual pattern of conduct from another party – meaning, that they have been stalked or harassed in person or online; b) Believe that there is a credible threat of violence – meaning that a reasonable person would have fear for their safety and the safety of their family; and c) That they have been harassed, subjected to violence, threats of violence, or a course of conduct that serves no legitimate purpose – meaning that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.
As one can see, the definition of harassment under the law is intentionally broad. This law covers: online stalking; in person stalking; online harassment; in person harassment; harassment by mail, phone, e-mail, or text; assault by the other party; threatened assault by the other party; and various other acts. In practical terms, the law covers a neighbor, who, for whatever reason, decides to either stalk, harass, or threaten violence against one’s person or property. The law covers a co-worker, who, for whatever reason, decides to harass a person online. The law covers a member of a group, who, for whatever reason, decides to harass a person via the phone, text, or e-mail. Finally, the law covers the repeated acts of random strangers who choose to do any of these things or more.
The point of a CHRO is first of all, mental and physical protection. If one obtains a temporary CHRO, or a permanent CHRO, the other party cannot threaten or harass the applicant; cannot go near the applicant’s place of business; home; school; or other areas; and the recipient of a CHRO cannot own or possess a firearm or ammunition. In order to obtain a CHRO, a party must complete Court-approved paperwork, and also produce what evidence that supports their claims. On the day of filing, the moving party will learn whether their request has been granted in whole, in part, or not at all pending a hearing date. On that hearing date, the moving party must appear, and may have to testify to ensure that they receive the relief requested. Once the hearing is completed, the Court may elect to enter a permanent order based on the evidence received for a period of time.
Like Domestic Violence Restraining Orders, Civil Harassment Restraining Orders are serious business, and a serious matter that one needs to be prepared for to obtain the relief that they want. If you have questions about Civil Harassment Restraining Orders, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end, and who will advocate for you to get the protection you need. Contact our office today with any CHRO questions you may have to protect your personal safety.
When the Bankruptcy Code was amended in 2005 to become the “Bankruptcy Abuse and Consumer Protection Act” (BAPCPA), there was a pre-change increase of Chapter 7 filings because of concern over a new provision in the law known as the “Means Test”. Once the law was amended, the means test was and is located on the Form B 122(A), and became part of the petition that must be filed to commence a case. While there was a great deal of speculation on what the means test would entail leading up to passage of the law, what it is now is fairly cut and dry.
In particular, the means test is a six month review of the Debtor – or Debtors – income. All income sources are considered, and weighed against the “National Standard Tables” – tables that are present for every county in the United States by the Internal Revenue Service that represent what the government perceives as an the amount required for various categories. These tables, promulgated for questions involving tax repayment through the Offer in Compromise process, lay out numbers for housing allowances, food, utilities, and various other necessities, such as automobile expenses. Variation exists in the tables based on household size, locality, and on a year by year basis. To place it in practical perspective, the National Standards are not actual expenses of the Debtor or Debtors, but expense amounts the government assumes an average individual in the subject county will have. Further, while expenses may be similar along county lines such as from San Diego County to Orange County, different National Standard numbers may exist.
If a potential Debtor has income that is in excess of the National Standard numbers for the last six months, additional provisions of the form arise, in terms of deductions, and calculations. This is where the means test’s teeth arise, in that under Section 707 of BAPCPA, those individuals who are deemed to be abusive filers can have their case converted to a Chapter 13 – debt repayment plan or worse yet, dismissed in its entirety, which can carry other penalties. These fears lead to the rush of filings in 2005; but as time has gone on, it is clear that this provision for many people is not even applicable. For example, the law specifically exempts disabled veterans from being subject to the test at all.
Moving on from this limited class, the means test is circumscribed by an even larger area of the law – the distinction between “consumer debt” and “non-consumer debt”. The law states that all “consumer debtors” must complete the means test. But, this means that if one’s debt is “non-consumer” debt, one doesn’t have to complete this portion of a Chapter 7 bankruptcy petition. While the law does not lay out all of the distinctions on consumer versus non-consumer debt, various cases have since filled in the gaps. At this point, consumer debt is what it sounds like – credit cards used for personal purchases, automobile loans for personal cars, mortgages on personal residences, along with other items.
In contrast, non-consumer debt are things that are not for personal expenses. For example, a person that is self employed, but has accrued substantial debt related to the business is a non consumer debtor. Going further, if a party has extensive medical bills, this debt is considered non-consumer debt. Finally, if a person has extensive – and dischargeable tax debts – these debts are considered non-consumer as well. Under the law in the Ninth Circuit, where California is, as long as these non-consumer debts are slightly more than the consumer debt, meaning over fifty percent, the means test does not apply, and therefore does not need to be completed.
Even though it may be a relief to not have to fill out the means test portion of the petition, and comply with that part of the law, there are other pitfalls in Chapter 7 cases. If you have questions about Chapter 7 relief, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today with any Chapter 7 questions you may have.
If you have a child, or children in California, and you are involved in either a paternity or dissolution action, one of the more common items litigated is child custody and visitation. Like anything, child custody and visitation does not have to be litigated, but in the absence of an agreement, such matters usually are discussed before the Court. When child custody and visitation are being litigated, the companion motion that is usually filed either separately or at the same time is a motion for child support.
The reason that this occurs is that child custody and child support are linked, meaning that the amount of support a party pays is directly attributable to the amount of time they spend with the child or children; and their amount of monthly income. Unlike determinations of child custody and visitation, which must be adjudicated before the Family Court, child support can be litigated in either the Family Court, or in the Department of Child Support Services (“DCSS”). Under California law, DCSS is the agency that is responsible for among other things, establishing and maintaining support orders, and collecting and processing child support payments.
Determining what forum to litigate in for child support can at times be a complex question. A party may have addressed many matters involving their case with their Family Court Judge assigned to their case and may be leery of entering a new department with a new judicial officer who does not have the background and familiarity with their case. However, in many cases, either because a party will not pay, cannot pay, or is paying irregularly on a child support order, a party will want to engage the assistance of DCSS in enforcing the order. Similarly, in some cases, both parties elect to have the child support monitored, collected, and enforced by DCSS in order that a concrete record of payments exists for both sides.
With regard to DCSS, it is also relevant to note that as a state agency, they have the power to take a number of actions with regard to non-paying parties who owe child support, including, but not limited to wage assignment, and suspension of driver’s licenses. While DCSS does an excellent job enforcing Court orders and entering child support orders, a party who is in Family Court, but then elects to have DCSS handle this aspect of their case may find that the decision has other consequences. For example, by electing to proceed in a second forum, additional costs will be imposed on both sides by having to litigate in a new Court, and at times, at additional delays may occur.
A common problem in this respect is that a party who either has temporary custody orders, or is seeking modification of such orders may see the DCSS action continued until final custody orders are entered either in the action, or on the motion before the Family Court. While child support is retroactive to the date of the filing of the motion at DCSS, there can be delays in collecting the support while the matter is litigated in both forums. Correspondingly, a party who has the option to choose between whether the support question is litigated in Family Court, or DCSS should consider all of the relevant facts in their case before making a decision on which forum they want to proceed in. If you have questions about child support, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today with any child support questions you may have.
One of the more persistent rumors that occurs even into 2019 is that cheating, or if we are being formal, adultery has an effect on how a dissolution (divorce) proceeds. While adultery may be morally wrong depending on one’s ethical views, to quote Ella Fitzgerald, “…Birds do it, bees do it, Even educated fleas do it…”. Further, with the divorce rate in California and the United States hanging around fifty percent, adultery is quite common. Moral and ethical questions aside, adultery does not lead to criminal cases – in California there is no criminal statue currently that makes cheating a crime and its participants criminals. And, again, if we are being honest, adultery for the most part has no effect on how dissolutions occur or proceed.
The reason for this is that under the law in California, dissolution is a “no fault” proceeding. No fault in this context is clear and simple – neither side has to prove that the other side did anything wrong to obtain a divorce. Instead, what the law in California states is that in order to obtain a dissolution, “irreconcilable differences” must exist. Unlike many things under the law, irreconcilable differences can mean many things. It could mean that one, or both parties cheated; it could mean that the parties are not talking; it could mean that the parties simply don’t wish to be together; it could mean just about anything. All irreconcilable differences really means in a dissolution proceeding is that at least one of the two parties does not wish to be legally married.
In this context, at some point either by legal pleading – or in person – the individual (or both parties) must attest (state) to the Court that they have no desire to remain legally married to the other. If this occurs in person, any Family Law Judge will ask both parties if such differences exist, and whether any amount of counseling or reconciliation could change one or both of the parties’ minds. If the parties state that the differences cannot be overcome, a dissolution must occur. To this end, it’s also worth noting that if one party wants a dissolution, and the other does not, there is no legal way to stop a proceeding, and if a party attempts to drag out a dissolution for irresponsible reasons, sanctions and fees can be awarded along with the eventual divorce.
In this context, legally, it doesn’t matter if a party cheated, because that falls into the category of irreconcilable differences. This is not to say that new relationships do not affect a divorce in ways such as child custody and property division depending on the facts, but in terms of finding fault or proving who did something wrong, this conduct is immaterial. As a practical point as well, most Family Law judges will listen patiently to the first reference of adultery with respect to a dissolution, before calmly telling a litigant the above standards under the law. However, while California is a “no fault” state, as a further practical point, many people who go through a dissolution with or without adultery regularly seek counseling for issues that arise during the dissolution to help them deal with the non-legal issues that arise.
If you’re considering a dissolution, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you between what is real – and what is a dead end. Contact our office today to let us know what the facts are in your case, and what questions you may have.
On a day-to-day basis, there’s an assumption that everything will go smoothly, or at least normally in going to work, running errands, being in relationships, dealing with rush hour commutes and everything else that comprises modern day life. Yet, unfortunately, in 2019, many unpleasant situations arise regularly – such as co-workers who take an unhealthy interest in following, commenting, and harassing people on social media or online; or an individual who follows a car off the freeway because they feel like they’ve been wronged; or a partner in a relationship who either verbally or physically abuses their other half. All of the last situations and more are unfortunately common – and unfortunately normal in 2019. Fortunately, there are legal remedies under California law to protect people in these different situations. The broad overarching remedy is to obtain a “restraining order”, but like the situations above, restraining orders in California vary depending on the specific facts of a case.
Before we cover the three types of civil protective orders in California, let all of us at the firm note that any sort of violence or harassment, especially of a physical nature is a serious issue, and under many circumstances may be a crime. If you feel your life is in imminent danger, or there are serious ongoing issues with a partner or total stranger, you should stop reading this article and contact the appropriate authorities in your area to obtain assistance. Under the California Penal Code, domestic violence, assault, and other issues are crimes that can and do lead to criminal liability and criminal protective orders, which in many cases supersede, or supplement the civil remedies described below.
The main type of restraining order that is issued within California is a Domestic Violence Restraining Order (“DVRO”), which requires the parties at issue to have had a relationship, including simply dating, being engaged, or married. As well, even if there was no relationship, but the parties had a child – or multiple children, such situations fall within the scope of a DVRO. To first obtain a temporary DVRO, one must prove that abuse has occurred either one time – or on multiple occasions.
Under the law, abuse can be physical or sexual harm, or threats of physical harm. If such prongs of the Domestic Violence Prevention Act (“DVPA”) were not broad enough, DVRO’s can also be issued for “…Engaging in any behavior that has been or could be illegal such as molesting, attacking, striking, stalking, threatening, battering, harassing, destroying personal property, contacting the other by mail, telephone, or otherwise, disturbing the peace of the other party.” The protections under this law are specifically broad to protect all people and minors in abusive relationships. Again, if you feel that you are a victim of domestic abuse under the terms of the DVPA, in addition to pursuing this civil remedy, you should contact the appropriate authorities for assistance.
The second most common type of restraining order is what is known as a Civil Harassment Restraining Order (“CHRO”). CHRO’s are governed by a different law than the DVPA, because they cover stalking, harassment, assaults, threats, and sexual assaults and the attendant misconduct of parties who are in essence, total strangers. The main distinction between DVRO’s and CHRO’s is that a DVRO is a restraining order for parties that have had a relationship of some sort, and a CHRO is for parties that have had no relationship and likely no interactions prior to whatever issues arose. Common examples of people who may need CHRO’s are neighbors in apartment complexes, roommates in non-romantic situations, co-workers, or again, that type of person who follows someone either on – or off-line. Again, abuse does not stop because parties are either relative or complete strangers. If you feel you need a CHRO based upon the violent acts of another, you should also contact the authorities.
The final type of restraining order is a new variant under California law, the Gun Violence Restraining Order (“GVRO”). The GVRO applies in limited circumstances where an immediate family member feels that another should not have firearms or ammunition. Unlike the two above types of restraining orders, both of which have provisions as to contact, communication, and physical distance, the GVRO only addresses the removal of firearms and ammunition. It is also worth noting that parties who are seeking a DVRO can also have firearms removed from the other party, irrespective of whether one is still co-habitating or not. While the GVRO is a newer legal remedy, in theory it is designed to aid in a party’s mental health and access to weapons during a troubled time. Again, if you feel there is an imminent issue or threat by a party and their firearms, one should contact the authorities.
These three types of restraining orders work to keep the abnormal in modern life safer, and in that regard, a little more normal. Knowing the appropriate type of protective order is however, just the start. Any protective order requires a party to provide solid evidence and meet their burden of proof. If you’re considering requesting a restraining order of any sort, don’t just trust what advice you receive from family and friends, or the internet, but contact an attorney who can guide you on how to prepare the necessary paperwork, and obtain the maximum results for your personal safety. Call us today to arrange an appointment and protect your personal safety and peace of mind.
In 1789, Benjamin Franklin famously stated that the only things in life that were certain were “death and taxes”. Irrespective if one has obtained a divorce, is thinking about a divorce, wishes to stay with one’s partner, or is dealing with post-divorce issues, having to file and sometimes pay taxes is something that everyone must deal with on a yearly basis. Even though this certainty is fundamentally simple, in 2019, it can become difficult for a number of reasons. The main item that affects both married parties and separated parties alike is a failure by one party to file returns with either the Franchise Tax Board, or the Internal Revenue Service. Similarly, another issue that arises is when one party either fraudulently underreports income on joint returns, or prepares a return that is materially inaccurate on a number of levels. For many people, these issues can be ongoing for a number of years until either the Franchise Tax Board or the Internal Revenue Service send a notice regarding such returns.
Even worse, in cases where fraudulent returns are being submitted, the party submitting such returns may intercept the notices, which may lead to further consequences, including bank levies, garnishments, or liens by either of the taxing agencies. Whether it is by reading such notices, being the receiving end of government collection action, or learning things through the discovery process in a dissolution action, the other party usually is dismayed to learn that they are now legally responsible for liabilities that they had no knowledge of that have accrued interest or penalties.
Fortunately, there are remedies for these determinations that are better than death, which are known as “Innocent Spouse Relief”. Under Section 6015 of the Internal Revenue Code these provisions vary from specific joint and several liability relief; and equitable relief, which is commonly known as 6015(f) relief. In its legislative history, Congress intended for the Internal Revenue Service to exercise equitable relief authority under 6015(f) when a spouse “does not know and had no reason to know that funds intended for the payment of the tax were instead taken by the other spouse for the other spouse’s benefit”.H.R. Conference Report No. 599, 105thCong. 2d. Sess. 254 (1998). These provisions of the Internal Revenue Code are also mirrored in California State law.
While each innocent spouse case is fact-specific and requires specific application of the existing statutory law and case law to the facts, in general the Internal Revenue Service has provided a partial list of circumstances for which innocent spouse relief will be granted. These circumstances take into account the following: a) Marital Status, meaning that usually, the individual requesting relief must be separated or divorced from the non-requesting spouse; b) Economic Hardship, which is usually easy for the requesting party to meet in that if relief is not granted, the applicant would suffer financial hardship; c)Physical or Mental Abuse, which examines whether the individual requesting relief suffered some sort of domestic violence or criminal acts of abuse which amounted to duress, meaning that they could not appropriately examine the returns at issue or were forced to take actions based on the conduct of the non-filing spouse. As well, the Internal Revenue Service and the Franchise Tax Board will both examine whether the filing party had knowledge of the non-filed returns, or non-paid amounts, and whether such knowledge was excused by other factors.
As one can see, while taxes are certain – legal relief from such certainty is more complicated. Innocent spouse relief is a complex area which requires straightforward analysis and presentation of facts to the law. It is also important to realize that this legal doctrine applies whether one is a man, or whether one is a woman. If you feel that you are involved in a situation where you should not be held liable for taxes acquired during a marriage, you should contact our office today with any questions you have relating to this relief and whether it applies to you.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.