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.
Financial problems are like the ripples that radiate outward from a rock being thrown into water; rarely are there one; and in general, such ripples disturb all aspects of life. Numerous studies have shown that in 2019, more people are living paycheck to paycheck, and more people are likely to suffer a disruption from unknown financial stresses, whether it is the loss of a job; government shutdowns; medical emergencies; or something else that is unforeseen. When financial problems occur, they rarely are confined to an individual – or couple’s economic status, and generally affect their mental health in a number of ways.
While there is not a one size fits all solution for everyone’s financial problems, and in many cases, financial problems are exacerbated by other factors, there are legal remedies, including that of Title 11 of the United States Code, otherwise known as the Bankruptcy Abuse and Consumer Protection Act (“BAPCPA”), or just the “Bankruptcy Code”. While no one ever sets out to file for bankruptcy protection, the law is designed to allow people a fresh start, and to make much needed changes in their lives without constant financial pressure. And, while not perfect, the law when applied correctly can and does make positive changes in many people’s lives.
Bankruptcy is not a monolithic creature either, with differences arising under Chapters 7, 11, 13, and other subcomponents. Generally, most of the questions involving bankruptcy revolve around Chapter 7 cases, especially after the law was modified in 2005. After the new law was enacted, the main misconception that has arisen is that one can only make “so much” money, and otherwise cannot file for bankruptcy protection. Like many myths, there is a grain of truth herein, in that the new law instituted in many cases what is known as the “means test”, which is a six month look-back of income earned.
This test also utilizes numbers from another portion of the government called the “national standards”, which set forth income amounts for household size based on geographic location. If this sounds somewhat complicated, its because it is somewhat obscure. Having said that, the myth in this regard is that not all Chapter 7 filers must complete the means test. For parties for which a majority of their debt is “non-consumer”, the means test does not apply; a common example of non-consumer debt is tax debt. Finally, for those individuals and couples that do have to complete the means test, there are areas where the means test allows for deductions – for mortgages, cars, and other secured debts, and various other expenses. Rarely is the means test a straightforward application of the national standard to income, which means that in reality, there is no “permanent” number for many potential filers.
The second myth is one that could easily be the first myth, because it pre-dates the new law, in that people think they can pick and choose which debts to list in the bankruptcy petition. Under the law, any potential debtor must accurately list all of their assets – and most importantly, all of their debts, so that the Trustee, and the Court has a complete financial picture of their situation. While it may be tempting to think that one can retain a credit card, for example, in the end, that credit card must be listed along with every other debt one owes. Finally, the last myth is that one cannot retain essential items during a bankruptcy, such as furniture, electronics, or more importantly, vehicles. In reality, personal assets are protected by a complex legal series of statutes (exemptions) to certain limits. Separately, loans and leases and vehicles can be “re-affirmed”, meaning that as long as the Court approves the contract, and the potential Debtor stays current on the payments – the debt passes through the bankruptcy as if it did not exist, allowing the party to keep the vehicle.
Like the complexity of financial issues leading to bankruptcy, the bankruptcy code has many permutations itself. If you’re considering a bankruptcy, 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 bankruptcy questions you may have.
With two months of 2019 in the books, the start of March, and spring are great times for people to take stock of the resolutions they made some sixty days ago or longer. With the divorce rate continuing to hover around fifty percent, many times resolutions revolve around a fresh start in relationships and life. In California, a marriage can be ended legally by three ways – dissolution (divorce), legal separation, or annulment. For most people, annulment is not an option, unless they had a weekend that was like something seen in the series of Hangover movies. Similarly, while legal separation is an option, it is generally not something that most people find palatable, as it contains all the trappings of divorce – without the status termination.
In California, there are many truths – and rumors about the dissolution process. The first, and most persistent rumor is that any sort of infidelity factors into how the divorce proceeds. While there may be circumstances where infidelity affects things, say, with regard to child custody, the truth is that California is a “no-fault” state. What this means is that irrespective of whether there was cheating on one or both sides, both sides are entitled to a divorce. In fact, the right to have one’s marriage terminated through legal proceedings is something that is available to every resident within the state.
Perhaps the second most popular rumor is that in California, a divorce can be done within six months. While the state does offer a procedure called “Summary Dissolution”, there are specific legal requirements parties must meet. In short, to qualify for summary dissolution, a couple must have been married for five years or less, have had no children, and be willing to waive requests for spousal support, among other things. While this is a great option for the specific subset of Californians who meet these requirements, most people do not fit into this category, and do not qualify for a six month dissolution. In reality, most contested dissolutions last at least two years, and in certain cases can last a lot longer. Of course, in any dissolution, the parties can reach an agreement at any time, which can be memorialized in a writing to end their case, but generally, such agreements are rare at the beginning of the dissolution process.
The third most popular rumor is that after a dissolution is filed – one or both of the parties can do “anything they want” with “their” property. While California does recognize separate property claims to items, in the absence of a pre-marital agreement, or meeting specific legal conditions, all property acquired during marriage is considered community property. Again, what this means is that both parties own what one person perceives as “their” property. It is also important to note that upon filing of a dissolution action, Family Code Section 2040 applies (the ATROS), which among other things, restrains both parties from taking action as to community property items. While certain actions are permissible, others, such as selling a non-filing spouse’s car without their consent, are not.
From here, the rumors and truths about dissolution only branch out further. Venturing into the forest without sound legal advice is always a risky proposition. 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 with any dissolution questions you may have.
Christopher Sunnen, Esq. is a San Diego, CA based attorney specializing in family law and bankruptcy law.