Posted On: April 17, 2009

California Divorce Attorney Cautions Clients About Mortgage Foreclosure and Modification Scams

With the recent news that home foreclosures reached a historic high last month, more and more divorcing Californians are trying to stave off foreclosures and considering whether to apply for mortgage modification.

mortgagemoney.jpgCalifornia has one of the highest default rates for home mortgages in the country, which makes our borrowers ripe targets for many of the scam artists that have popped up over the past few years. As is is typically the case, thousands of people fall victim to mortgage scams before the government becomes aware of the problem and can step in to address it. Fortunately, according to USA Today, both federal and state authorities have recently begun to address the problem and are clamping down on refinancing schemes.

If you find yourself facing an impending balloon payment, interest rate adjustment or even foreclosure, you may still want to consider a mortgage modification. However, it is generally best if you work with an experienced real estate attorney who can walk you through the process and can help you ensure you are working with a legitimate provider and not an unscrupulous thief. While no attorney can guarantee that your home won't ultimately fall victim to foreclosure, you give yourself the best odds when you work with an attorney.

Should you choose to move forward with mortgage modification on your own, pay close attention to the following red flags:

(1) Guarantees to save your home from foreclosure

(2) Unknown telemarketers who cold-call you with promises of saving your home

(3) Companies that ask for sensitive and confidential information over the phone

(4) Demands for large, up-front payments

(5) Promises of making large chunks of your principal "go away"

If you see any of these red flags, or have an uncomfortable feeling that someone is probing you far too extensively, then walk the other direction immediately. We've seen far too many stories of creative identity thieves weaseling their way into borrowers' bank accounts, draining all of the funds, and then disappearing into the night only to attack another unsuspecting victim the next day.

For more information about community property and other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: April 14, 2009

Mel Gibson's California Divorce Could Set Settlement Record

Mel Gibson's wife of 29 years, Robyn, has filed for divorce in California, citing irreconcilable differences. According to the Seattle Post-Intelligence, MSNBC, and other media sources, there are no indications that the couple had a prenuptial agreement.

Under California's community property laws, each spouse is entitled to one-half of all assets acquired during a marriage; that is, from the date of marriage until the date the parties separate. According to People Magazine, Gibson has amassed nearly $1 billion since the couple married in 1980. Accordingly, Robyn Gibson is likely entitled to half of that amount, or close to $500 million.

People reports that this amount will dwarf previous record holders Michael Jordan ($168 million), Neil Diamond ($150 million) and Steven Spielberg ($100 million).

For more information about prenuptial agreements, community property division and other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: April 10, 2009

Don't Fall Behind in Your California Child and Spousal Support Payments

Don't assume you don't have to pay child and/or spousal support just because you were laid off!

Most of here in California are victims of these tough economic times in one way or another. Layoffs and unemployment claims seem to be increasing week after week. If you have been laid off, or if your unemployment benefits have expired, you now face the reality of having to make support payments that were based on your prior level of income, and you may not be able to afford these payments.

What you need to understand is that even if you were laid off, you must continue paying support at the ordered level. stress.jpg You need to immediately request at least a temporary modification from the Court. If you delay, you may very well find yourself falling behind in payments and facing a contempt or collection action by your ex-spouse/other parent. Once the payment due date has occurred, the Court cannot modify the amount payable unless you filed a motion for modification prior to that date. Here's an example:

Mike lives in Monterey, CA and was divorced in Contra Costa County, CA four years ago. He has two daughters and was ordered to pay $750/month in child support, based on his income at the time of $70,000/year. Regrettably, Mike was laid off three months ago and has not made any support payments during that time because he lives only on unemployment benefits. His ex-wife has now brought a Contempt of Court motion against Mike for failure to pay his support, and Mike filed a motion to modify child support in response.

Because Mike waited to seek modification until after he was three months past due, he owes his ex-wife $2,250 ($750 x 3 months). In addition, he may have to pay some of his ex's attorney fees for the cost of bringing the motion. Had Mike filed for a modification of support immediately once he was laid off, the Court would have had the authority to retroactively modify the support payments that were due.

Important Lesson: don't wait until you get behind on your support payments and find them mounting out of control. Take action immediately.

For more information about child support, spousal support and other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: April 7, 2009

Q&A: My Wife Stopped Working During our California Divorce to Avoid Paying Child Support -- What Can I Do?

The Courts generally don't look too kindly on a parent or spouse who quits work to avoid his/her child support obligation, and the Court has the discretion to impute income in that situation.

The burden to support minor children may not fall entirely on one parent. California Family Code §3900 baby_hands.jpgemphasizes that each parent has an equal responsibility for the support of his/her minor children. Parental obligations under the law are specified clearly in California Family Code §4053: (1) A parent’s first and principal obligation is to support his or her minor children according to the parent’s circumstances and station in life. (2) Both parents are mutually responsible for the support of their children. (3) Each parent should pay for the support of children according to his or her ability. It is rare to find a parent who doesn't have some "ability" to support his or her children.

In Re Marriage of Regnery is the landmark case in California that set the standards for how and when the family court court impute, or attribute, income to a parent regardless of his/her actual income. Just recently, the appellate Courts refined the Regnery standard in what is now the preeminent case regarding imputation of income in California: In Re Marriage of Bardzik.

In order to convince the Court that it needs to impute income to the other parent, you will first need to establish for the Court that the parent has the ability to work, and then that the parent has the opportunity to work. This generally involves looking at his/her education, training, certifications, resume, job and income history, etc., and also proving up job openings in the newspapers or some of the well-known online job resources (Monster, CareerBuilder, etc.). If you meet your burden of showing his/her ability and opportunity to work, including the possible income of those opportunities, then the burden shifts to the other parent to prove up why s/he can't do that work.

It's not a fun process, but it's doable. You may want to discuss this in person with a competent family law attorney to ensure you don't miss out on every opportunity to prove your case.

For more information about child support and other California family law issues, please contact attorney Gary D. Sparks.

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Posted On: April 3, 2009

Q&A: Can My Ex-Husband Take our Children and Move Out of California Without My Consent?

The moveaway issue in California family law has been litigated heavily over the past few years. A proposed move in the residence of a child can be the "change in circumstances" required for the Court to revisit and modify child custody.

A 2004 case (In re Marriage of LaMusga) decided by the California Supreme Court refocused the family courts in the state by ordering that they must make a determination about whether or not a child should move out of the area with one of his/her parents based on what is in his/her "best interests."

In a nutshell, if the parent opposing the moveaway can show the Court that there would be a detriment to the child -- e.g. not in the child's "best interests" -- caused by the moveaway (frequently because that parent is highly involved in the child's life, activities, schooling, etc), then the Court arrows.jpgmust use its discretion to arrive at a custodial arrangement that is in the child's "best interests." Keep in mind that the detriment issue is a threshold issue -- that is, the opposing parent must establish there will be a detriment to the child(ren) before the Court will step in and block a moveaway. In other words, there is no "automatic" right for a custodial parent to moveaway with a child. While the primary custodial parent is presumed to have the right to moveaway with children, a finding of "detriment" will block that move until the Court can further examine the issue. In a case where both parents are joint custodial parents, arguably no such presumption exists at all.

In looking at the "best interests," the Court has discretion to look at many factors, and will often times appoint an expert child custody evaluator to investigate the matter and report back to the Court. The Court will usually look at the parent-child relationships and examine how they could be best maintained over a distance. The Court will generally also look at how embedded the children are into their local community -- their friends, family members, education & schooling, extracurricular activities & sports, civic organizations, etc. -- to determine whether or not the same opportunities are available in the new location.

If there is no order prohibiting relocation (or restricting a change in the children's residency) in your custodial orders, then the first move is typically to file a motion with the Court (ex-parte motion if the move is imminent) making the best case you can that there would be a detriment to the children caused by the move and requesting that the Court temporarily block the move until it can determine what is in the children's "best interests." Remember that while the Court has the discretion to block the moveaway of the children, it almost never can block your ex from moving away himself.

To get more than just a general overview of moveaway law, your best bet is to consult with an experienced family law attorney as soon as you can so that you clearly understand what the law can and cannot do in your specific situation, and so that you can put together your game plan on how to oppose and stop your ex's relocation with the children.

Good luck!

For more information about child custody and visitation or other California family law issues, please contact attorney Gary D. Sparks.

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