For Us Who Strive For Equality in the Legal System – We Just Lost a Great Friend, by Annette Gomez, LDA
In my present sadness I write this to let you know that attorney Stephen Elias passed away on Thursday December 29, 2011. For those of you who have come to us for help with your bankruptcy filings, you might only know him as the attorney who counseled you so that you could stand up on your own in a system that presumed you were abusing your right to due process, but were only trying to survive a hardship with your dignity intact.
But as for me, he was played a very important part in my desire to help people who can’t afford an attorney’s retainer fee. For a small fee he provided unlimited legal advice to many of our bankruptcy clients, from his first telephone consultation until the close of their case, which during the height of the court’s backlog, took about 5 months. As they were filing for bankruptcy, many of my clients were also dealing with the loss of their jobs and homes and sometimes their marriages. No matter how many times they called or emailed him with questions, Stephen was available so they could understand their rights and options. He detailed his information on a written report which they could use to complete their court paperwork and allow us to prepare their petitions correctly so their case would be resolved smoothly.
Stephen spent much of life advocating people’s right to legal self representation. Through his published books, his radio show, pro bono work, advisory work and other efforts, he helped to make some positive change in the legal establishment, which quite bluntly has been very unfriendly to my profession. Until Stephen started personally helping my clients, I had been ordered to court more times than I can count for alleged “unauthorized practice of law” for preparing bankruptcy petitions. While some in my field quit preparing bankruptcy petitions fearing the prosecutors’ in the U.S. Trustee’s office, I continued, I’ll admit, not just for our right to equality, but because I’ve never really liked people telling me what to do. With Stephen helping my clients, I was able to do my job without fear of harassment in court and my clients had the utmost confidence in representing themselves in court.
I met Stephen Elias in the California Association of Legal Document Assistants, whose core membership consists of grassroots pioneers in the self-help legal movement. He was a longtime advisor to the board, of which I served. At first sight, he could fool you as ordinary, but his passion & strength in his moral convictions, his ethics and drive to make “justice for all” a reality made him very extraordinary. He was an attorney who sincerely wanted to help people not have to hire attorneys unnecessarily. He was available to any individual, legal document professional, and attorney who requested his guidance. As I look at all his efforts it is obvious to me that he found his purpose in life and accomplished it well. There is so much more to tell about him that you can read about in his hometown newspaper if you so desire. http://lakeconews.com/content/view/23022/919/ I am so glad that our paths had crossed and honored that many of my clients lives were enriched by his touch.
Our Overburdened Courts or Why Legal Document Assistants Are More Important Now Than Ever Before, by Annette Gomez, LDA
It’s not just the court staff, from clerks to judges, who are handling increasing caseloads which are slowing the system down. It’s not just the new family laws going into effect in 2012 that will slow the system down (for an estimated 13 extra months to finalize a divorce in some CA courts). Now the court’s self-help assistance is taking a hit.
The Courts in this state piloted the self help programs several years after the birth of the LDA (legal document assistant) profession in response to the high demand for affordable consumer friendly legal services. Yet the money, careful study and time devoted to innovating the workshops and websites never came close to satisfying the ever-growing need for fair access to the justice system.
The San Mateo court’s website announces: “…As a result of this fiscal crisis, the California Superior Courts no longer have sufficient funding to keep the EZLegalFile court form completion program online and available for use after June 30, 2011…”
The Riverside court’s website has sample letters for visitors to use to write to our governor and legislators pleading with them not to cut funding. Many of the courts have cut their telephone hours. The Riverside court changed their phone numbers and it seems it was done deliberately so you can’t catch a live person for help.
Fortunately, the LDA profession, which was born just 10 years ago, can help fill in the gaps. Designed as a lawful alternative to the high cost of attorney’s fees, experienced and professional LDAs can save consumers lots of time in getting their legal problems resolved. Because of our knowledge of court rules, regulations and individual court policies, time isn’t wasted in the process of getting a judgment.
Even though CA mandated the LDA profession to help to make a difference, some voice the need for more non-lawyer legal services. USC Law & Economics Professor Gillian Hadfield, who was interviewed in “Law Without (As Many) Lawyers”, by Dan Watson http://www.miller-mccune.com/legal-affairs/law-without-as-many-lawyers-34923/ suggests having new levels of licensed people, citing the medical profession as an example, which has many levels of different service providers.
As past president of the Inland Empire Chapter of the California Association of Legal Document Assistants, I’ve coordinated with the Riverside and San Bernardino family law facilitators (attorneys) to communicate with the LDAs in an effort to help the system be more efficient. They were grateful for the opportunity to teach outside professionals how they wanted things done as it would help relieve them of some of their massive workload.
For consumers who just cannot afford an attorney or who do not have complex legal issues to resolve, a bonded and registered LDA is the answer for completing legal documents and providing valuable resources, other than legal advice. Now many attorneys are available for legal advice and court representation without having to retain them for full service.
TweetOne More Reason To Keep Family Law Disputes Out of the Courtroom, by Annette Gomez, L.D.A.
When I started helping consumers prepare their legal documents for divorce in 1996, between 50-55% of family law litigants were self-represented. There were no family law assistance centers or facilitators at the court to help people get through the process on their own. Legal Document Assistants, formerly known as Independent Paralegals were mostly part of a cottage industry plagued by unscrupulous fly-by-nights. And Robert Shapiro hadn’t yet created Legal Zoom.
Fast forward to 2011 where legal document assistants, have been legitimized for over 10 years. The new laws have helped to rid the legal marketplace of many, but not all non-attorney rip off artists. For those who have the most simple cases to resolve, the ability to follow directions, and plenty of time and patience to wait around, the courts have instituted self help centers in their effort to provide equal access to the justice system.
Even with the changes taking place, litigants, self represented along with those represented by an attorney, will face increased challenges in getting their cases resolved efficiently. At this time, more than 70% of litigants in family law courts are self-represented. Although many changes have occurred to help people filing IN PRO PER resolve their matters without having to hire an attorney, the demand for consumer friendly assistance in the legal field has outpaced the changes that are being made in the courts.
In response to the changes needed to be made which culminated in a 2007 CA Supreme Court case, known as Elkins v. Superior Court, a taskforce was formed (Elkins Task Force) to review the rules and methods of how courts would handle family law proceedings and make recommendations to the legislature in an effort to provide greater access to justice. These recommendations have resulted in 2 bills which were chaptered and will become effective January 1, 2012.
The first bill AB1050, which I wrote about in my blog in April 2011, deals with children over 14 years of age having a voice when custody is being determined by the court. The second bill AB 939 deals with testimony in hearings, among other things. The way the court has handled issues through motions and written declarations, which was previously adopted by rules to keep attorneys moving their cases along efficiently but apparently caused problems for the pro pers, will be changed so that live testimony will allowed under certain conditions.
It will be interesting to see how this effort to give litigants their due process will work with the court’s increasing budget constraints. It has already been predicted that family law cases in some of this state’s busier courts will take an average 18 months of time to resolve, compared to the 5 months it now takes.
If it all possible, it’s best to keep divorce out of the courtroom. More and more people are realizing that the idea of each party hiring an attorney to fight over property and children is ugly, destructive and way too expensive and that for the sake of everyone’s sanity, other methods should be explored. The new laws beginning in 2012, will likely bring more confusion and delay, and are just another reason to keep divorce out of court.
A better option is to hire an attorney who practices collaborative law. For those who want to represent themselves, the best thing to do if you have to go through a divorce is to get legal advice if you don’t know the law, get private mediation if you can’t resolve the issues on your own after you understand the law and then contract with a professional legal document preparation service for the preparation and filing of your documents so you can STAY OUT OF COURT.
TweetTransferring Real Estate – A Simple Deed or a Costly Mistake?, by Annette Gomez
There are so many reasons to get professional tax advice before adding someone to a deed or transferring real property outright. There can be serious and costly consequences. Yet so many people just won’t take the time to seek the information or get the advice. When someone comes in to our office to have a deed prepared, we’d like to be sure that they know what they’re doing. Because we prepare legal documents under our client’s specific direction and are not tax professionals, we can’t counsel on these matters, except to encourage them to get advice on legal and financial matters that we are not licensed to practice. Well, here’s the best reason, to get the professional tax advice that we’re talking about: Big Brother is watching you.
On March 24, 2011 William P. Barrett warned in Forbes Magazine that the Internal Revenue Service launched a new effort to find people who didn’t report family real estate transfers on their tax filings. IRS Form 709 (U.S. Gift Tax Return) is supposed to be used to report U.S. gift and generation-skipping transfer taxes. Currently, if the property is valued at more than $13,000, a gift-tax return must be filed. Although the gift tax can go up to 35%, many exemptions exist, which is why it’s so important to talk to a tax professional. The IRS is filing documents in Federal Court to get and review individual state’s land-transfer records for evidence of omission. So far 15 states have handed over information on gift-like transactions, which showed an “extremely high failure to report rate”. It’s expected that more records from more states will soon be requested.
In December 2010, the IRS filed documents in a Sacramento Federal Court for the authority to order California’s Board of Equalization (BOE) to hand over its information on everyone who transferred real estate to relatives for little or no money from the period 2005 to 2010. When someone transfers property to a child or grandchild, documents are provided to the tax assessor to limit the annual property tax re-assessment. This information is then sent to the BOE and entered into a database. The IRS is going after that database to compare the names with the names of people who filed IRS Form 709 to see if anyone’s name is missing from the list of Form 709 filers. If you have any questions, or need to file a federal gift tax form, now is the time to contact your tax professional.
Just Doc Prep prepares all types of deeds and most of the transfers we are asked to prepare have little or no tax consequences. However it is everyone’s responsibility to get the most current information from the proper source before having any documents prepared.
Good News for Tenants – Maybe Not So Good News for Landlords
A new bill, AB 265 which would allow tenants in an eviction proceeding more time to pay past due rent, will be moving forward to the state assembly for vote. Currently, once a 3 day notice to pay or quit is served on a tenant, the law does not require a landlord to accept full payment on or after the 4th day. A landlord can proceed to court & file an unlawful detainer action. The proposed new law would allow a “right of redemption” where the tenant could pay the late rent and reasonable costs back after the 3 day period. Most states allow a longer period of time for tenants to pay back late rent, usually between 7 to 14 days. Those who argue in favor claim that it’s unfair that homeowners have a longer period to pay late mortgages before being foreclosed on, while those who oppose the new bill claim that landlords would be unfairly burdened. For the full text and status of this bill, cut and paste this link in your browser’s search:
http://www.leginfo.ca.gov/cgi-bin/postquery?bill_number=ab_265&sess=CUR&house=B&author=ammiano
Just Document Preparation helps landlords and tenants prepare, file & serve documents in unlawful detainer actions.
TweetNo Easy Answer for California’s Child Support Arrears, by Annette Gomez
The State of California has a near record sum of $19.2 billion owed in child support arrears. Some researchers believe that the current 10% interest rate is to blame for the amount, although proponents of the current rate believe that keeping it high encourages making payback a priority over other obligations. If you read the comments about the following article, you’ll see that this is a complex problem affecting many people in many different ways. What I didn’t see mentioned is the fact that many parents don’t know that they can and should modify child support orders when circumstances change. It’s important for parents to change their child support orders when they lose their job, experience a decrease in their income, change physical custody or when a child reaches adulthood. At this time courtroom hearings are delayed, due in part to the many requests for child support modification, but a delay is better than doing nothing and allowing child support arrears to accumulate unnecessarily. Better yet, if parent’s can agree, the courtroom can be avoided altogether.
Follow the link to read the story by Kelley Weiss
http://www.huffingtonpost.com/2011/04/21/california-child-support-_n_852341.html
TweetNew Law Allows Children to Address the Court Regarding Custody or Visitation
See AB 1050 below which goes into effect January 1, 2012. Existing law recognizes a child’s choice regarding living with mom or dad. The information is sometimes obtained through reports from the court appointed mediator’s office. New procedures will be put into place giving children over 14 years of age to address the court in these matters. This new law will help guarantee litigants their due process in a system heavily burdened in backlog.
Assembly Bill No. 1050 CHAPTER 187
An act to amend Section 3042 of the Family Code, relating to child custody.
[Approved by Governor August 27, 2010. Filed with Secretary of State August 27, 2010.]
AB 1050, Ma. Child custody: preferences of child. Existing law requires the family court, if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody, to consider and give due weight to the wishes of the child in making an order granting or modifying custody. This bill would, on and after January 1, 2012, require the family court to consider and give due weight to the wishes of a child in making an order granting or modifying custody or visitation, if the child is of sufficient age and capacity to form an intelligent preference as to custody or visitation. The bill would require the court to permit a child who is 14 years of age or older to address the court regarding custody or visitation, unless the court determines that doing so is not in the child’s best interests, and, in that case, the bill would require the court to state its reasons for that finding on the record. The bill would require the court to provide alternative means of obtaining input from the child and other information regarding the child’s preferences if the court precludes the calling of any child as a witness. The bill would require the Judicial Council to, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, as specified.
The people of the State of California do enact as follows:
SECTION 1. Section 3042 of the Family Code is amended to read:
3042. (a) If a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court shall consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation.
(b) In addition to the requirements of subdivision (b) of Section 765 of the Evidence Code, the court shall control the examination of a child witness so as to protect the best interests of the child.
(c) If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child shall be permitted to do so, unless the court determines that doing so is not in the child’s best interests. In that case, the court shall state its reasons for that finding on the record.
(d) Nothing in this section shall be interpreted to prevent a child who is less than 14 years of age from addressing the court regarding custody or visitation, if the court determines that is appropriate pursuant to the child’s best interests.
(e) If the court precludes the calling of any child as a witness, the court shall provide alternative means of obtaining input from the child and other information regarding the child’s preferences.
(f) To assist the court in determining whether the child wishes to express his or her preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a mediator who provides recommendations to the judge pursuant to Section 3183 shall indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.
(g) Nothing in this section shall be construed to require the child to express to the court his or her preference or to provide other input regarding custody or visitation.
(h) The Judicial Council shall, no later than January 1, 2012, promulgate a rule of court establishing procedures for the examination of a child witness, and include guidelines on methods other than direct testimony for obtaining information or other input from the child regarding custody or visitation.
(i) The changes made to subdivisions (a) to (g), inclusive, by the act
adding this subdivision shall become operative on January 1, 2012.
Things to Note if You Need a Living Trust, by Annette Gomez, LDA
The following article published by the Federal Trade Commission says that generally an attorney is required to be used for the preparation of your living trust. Fortunately because California is consumer friendly, an attorney DOES NOT have to be used to prepare Living Trusts in California. California legitimized the legal document preparation profession over 0 years ago with SB1418. A legal document assistant must be bonded and registered with the county clerk to prepare legal documents for the consumer. However consumers still need to make sure they are informed and with all the excellent resources and information on the internet, it is easy to be informed.
“You’ve worked hard for your money, and made every attempt to be a conscientious saver. So it’s only natural that you want some control over what happens to your assets in the event of your death. At the very least, you probably want to minimize or avoid potential hassles and headaches for your loved ones.
Estate planning deals with what happens to your assets after you die. Even if you are a person of modest means, you have an estate — and several strategies to choose from to make sure that your assets are distributed as you wish and in a timely way. The right strategies depend on your individual circumstances. That is, what is best for your neighbor might not make the most sense for you.
Misinformation and misunderstanding about estate taxes and the length or complexity of probate provide the perfect cover for scam artists who have created an industry out of older people’s fears that their estates could be eaten up by costs or that the distribution of their assets could be delayed for years. Some unscrupulous businesses are advertising seminars on living trusts or sending postcards inviting consumers to call for in-home appointments to learn whether a living trust is right for them. In these cases, it’s not uncommon for the salesperson to exaggerate the benefits or the appropriateness of the living trust and claim — falsely — that locally-licensed lawyers will prepare the documents” Follow this link to finish reading Living Trust Offers: How to Make Sure They’re Trust-worthy, published by the Federal Trade Commission. http://www.ftc.gov/bcp/edu/pubs/consumer/products/pro08.shtm
FREE HOMESTEAD DECLARATION APRIL 15, 2011
HELP US CELEBRATE 15 YEARS IN BUSINESS!
FREE HOMESTEAD DECLARATION
Don’t forget to take advantage of our 15 year anniversary celebration. On the 15th day of each month this year, we have something for you. Call to make an appointment to come in to our Riverside office on April 15th so we can prepare your homestead declaration. Just bring in your i.d. and your deed. If you don’t have your deed available, we will provide it for a small fee of $10. The notary fee for your homestead declaration will also be waived on this day only. Please call to set an appointment (951) 685-5444. If your house is owned jointly, both parties need to be present for notarization. See you this Friday!
Check our website to see all our monthly specials for 2011.
HOMESTEAD DECLARATION – a legal document that provides limited statutory protection of a home, which is used as a personal residence, from the claims of certain creditors. A homestead declaration is a notarized document which is recorded at the County Recorder in the county where the home is located. For more information about homestead declarations see California Code of Civil Procedure 704.910-704.995.
TweetFinancial Expert Gives Excellent Advice for Messy Divorces, by Annette Gomez
“Modern divorce is not about who was the meanest or who slept where. It’s about the money. Both spouse’s income and assets are — or should be — on the table. But couples don’t always know a lot about each other’s finances, or where to look. They might not even realize how much less they’re worth, due to the squeeze on incomes and the housing depression.
Divorce rates fall during hard times because couples can’t afford the split. But for people quitting anyway, the struggle ramps up. Here are 10 tips for getting the most out of a diminished marital pot:
1. Follow the money. If you don’t know much about your spouse’s finances, or aren’t sure that everything is on the table, snoop. Any financial documents can be a clue to income or property: Online bank and investment accounts, life and homeowners insurance policies, payroll and retirement-plan statements, financial statements filed when you took out a mortgage, a copy of the will or trust, credit card statements, and tax returns (if you don’t have copies of them, you can get joint federal returns for the past five years by filing Form 4506-T)….” Follow this link to read the full story:
http://moneywatch.bnet.com/economic-news/blog/make-money/10-steps-to-avoid-losing-your-shirt-in-a-divorce/945/
The best way to get through a divorce is amicably. But when faced with someone who is less than forthcoming with information needed to enter into an agreement knowingly and intelligently, I think the tips in this article are excellent advice and should be seriously considered. I would add an 11th tip and that is to consult with a good attorney for legal advice and direction about your particular situation, even if you will be representing yourself in court.
Tweet