Using an MSA to Wreck the Other Spouse- Or How We End Up Trying to Fix What went Horribly Wrong........

Originally published 4.5 years ago by attorney

When people don't hire attorneys, sometimes we have to fix everything that went wrong.

Yes, attorney also does animal law cases and

 loves dog pictures (no, that is not attorney in picture)

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A legal document preparer does not give legal advice, but may know the criteria to be addressed in a normal MSA (marital settlement agreement).......this could involve a blurb re child support, spousal, the community and separate property/division of same, seeking counsel, etc.

While some legal document preparers can do the job sufficiently, they normally charge quite a bit for a RFO (Request for Order) and to do part of the Judgment, at least in Sacramento...they are charging $750.  One can go to SHARP at the Chico courthouse, or to the Oroville location, it is basically at no cost. The type of cases that can go to SHARP are mostly those with nothing to divide, no pensions, and nothing of value such as a house, timeshare, stock portfolio, separate property assets used to obtain community assets and other related financial issues.

Child custody issues which involve contested financial issues are usually better done in court, because SHARP cannot give legal advice.  Cases where the parents have problems and are extremely high conflict may end up with the Court assigning a third party to represent the child or children.

HOWEVER if the spouse who paid the document preparer fails in some other area such as those below, then just about anything can happen---most of it being bad, and costly! Only an attorney can fix all that went wrong, since the document preparer cannot practice law.

IMPROPER HANDLING OF FINANCIAL DISCLOSURES IS COMMON BECAUSE

ONE SPOUSE NORMALLY WILL TAKE ADVANTAGE OF THE OTHER SPOUSE!

EXAMPLES OF WHAT CAN GO WRONG ESPECIALLY IF DONE ON PURPOSE*

Note-if done on purpose, there is only so much time to discover what

was done wrong according to the Family Law Code in California........

usually requiring setting aside a judgment......

https://codes.findlaw.com/ca/family-code/fam-sect-2122.html

Below are only possible problems and some may not require an actual set-aside BUT will

require some legal vehicle to try and fix the issue (I am not including appeals in this..) therefore

it's unlikely you would know what type of legal maneuver would be required and an attorney

would be required to view the entire case file.

• Declaration of Disclosures-- done improperly...for example, not even filled in?!
• 
  
• Pension plans, 401K or ERISA plans...given away in "settlement" without regard for valuation and tax ramification, or income levels, or anything else!!
• 
  
• Actual Separate Property Disclosure not done...at all...no valuation, no appraisal, and no
• knowledge by Judge as to how separate property (especially underwater property) is handled--this is a huge issue whenever real estate pricing is depressed because eventually it all comes
• back up....
• 
  
• Actual community property Disclosure misrepresented purposely
• 
  
• Spousal support and Jurisdiction, other spouse cut off? Long term marriage?
• 
  
• Fraud or Misrepresentation in any of the areas represented, normally financial? There are TIME LIMITS for most of these issues [usually based on a time certain or knew or should have known]

• Actual Fraud by Telling Spouse not to Attend Hearing, Then Going to Hearing? and
• Wiping Out Spouse on Purpose?
• 
  
• Failure to Obtain Valuation of Home Correctly, especially prior to trial...huge mistake
• 
  
• Home under water valuation and FC2640 Issues, where huge CASH is put down by one party only, home given to party that didn't own the house on title (at pro se trial, no one was represented; judge awarded wrong party the house) post judgment RFOs failed, and client can't afford an appeal and never got what he/she was supposed to get as far as household property, thus client lost everything
• 
  
• Waivers which were not done, creating more issues on division of property; technically, any property deemed separate when later commingled creates issues of waiver, notice and far more and brings up a ton of issues requiring not only tracing, but factual disputes and things that parties probably don't want to make public
• 
  
• Commingling of separate/community assets, creating more tracing issues; and when done improperly, because no one kept any paperwork, can create huge liability or windfall to a party
• 
  
• Failure to Trace source of Assets Correctly, creating trial issues
• 
  
• Selling off Residence Then Claiming there was no money and never listing it on any
• documents like the FL-142?  Failing to do the Disclosures correctly and purposely
• not listing household items or anything else for that matter?
• 
  
• Eliminating Spousal support by claiming the spouse is self-supporting when spouse has never worked during the marriage and still doesn't work?
• 
  
• Having a private mediator for both parties and an agreement therein, then years later
• the ex spouse welches on the case and doesn't follow the order..this is an expensive task
• and likely the offending party would be in contempt, but not for certain

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Changing Spousal Support in Long Term Marriage

If you have been married more than 10 years and had been a high wage earner and are paying "spousal" support--would your ex then receive support for life-- or could that happen?  Does the law actually require such a thing--for LIFE???  Despite FC 4336c, there is nothing in the code itself that limits the court's discretion to stop spousal support in later proceedings where changed circumstances are shown or proven.

It is best to get help from an attorney that has seen cases over the years, and we don't mean just a few years, but one that has actively worked in Family Law as a litigator/in trials. Arguing for or against this type of change requires a hard look on the circumstances, and thus the argument that you may have could be based on not just one or two facts, but a combination of things, which would include changes as to the ex's life in tandem with the payor's circumstances.  

While the code does focus on the payor's changed circumstances, since payor is paying the ex spouse, if the ex spouse has completely different circumstances now (let's say she inherited a lot of money)-- should that be ignored completely?  If so, why?  It would not seemingly make sense?  Has the ex squandered her money and never attempted to work?  Has the ex shacked up with a new man? Did the ex buy an expensive new car, go on vacations, and seemingly has a lot of money--more than you even give her? Are the kids gone and she's now in a huge house?

Since the factors used for spousal support are numerous, obtain an attorney that can and will vigorously litigate issues. Preferably one that is heavily vested into law and motion since it is likely this type of issue cannot be done in 15minutes at a short cause hearing and would require a long cause hearing.

Is a Stalker Spyware Program Secretly on Your Phone??

To check IF such illegal spyware is ON your phone, 

we have it printed down below

on how to check for it.  

Many people didn't realize they can do this.

Failing to do this can easily RUIN your case.

 And posting on Facebook by now,

all adults in family law cases should already know not to use Facebook.

 Facebook is one

of the most untrustworthy sites (in attorney's opinion)

 and it's much like the Jerry Springer Show because it shows

 the horrible side of people. Sure, your ex can subpoena

 the data from Facebook but if you had not 

PUT THE DAMN DATA OR PHOTOS OUT THERE-- 

you would have saved yourself

not only money, but your reputation

  To win in family law, especially custody,

YOU DO NOT WANT TO LOOK LIKE A DRUNK, 

AN IDIOT, A MISFIT, A STALKER, 

A DOMESTIC VIOLENCE PERP,

A CRIMINAL, AN INSANE STALKER

OR A DRUGGIE?  DUH?

In 2014 testimony, U.S. Senator Al Franken told the story of a Minnesota woman who wasn’t aware that an abusive partner was tracking her through her phone:

“She went to a domestic violence program located in a county building. She got to the building, and within five minutes, she got a text from her abuser asking her why she was in the county building. The woman was terrified. And so an advocate took her to the courthouse to get a restraining order.”

“As soon as she filed for the order, she got a second text from her abuser asking her why she was at the courthouse, and whether she was getting a restraining order against him.”

Stalking apps allow someone to see where you are, what you text and who you talk to at any time. And you’d never know it.

 

The spyware is now popping up more frequently in domestic violence cases, so we looked into the warning signs, and how to get rid of it in this 7 News Consumer Watch. If a stalking app was put on your phone, would you know it?

 

Very unlikely, according to tech expert Logan Staggs, who owns Campus Computer in Spartanburg. “Generally there’s no way to tell without doing a forensic investigation of the data on your phone.”

 Here are some danger signs the FTC points to: 

 Your phone battery suddenly starts draining faster.

The abuser has had access to your phone out of your sight. Spyware installation can take from 10 to 25 minutes, depending on the device. NEVER allow the perp to handle your phone!

The abuser knows a surprising number of details about your life.

 It’s hard to turn your phone off.
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Random boots and shutdowns, unusual noise

Strange text messages with different codes or symbols

Higher data USAGE

SOUNDS when your phone is not even being used!
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Delay in phone shutting down

You use "pirated" apps

Your phone has been rooted (for Android devices) or jailbroken (for iOS) and you didn’t do it.
The process bypasses software restrictions on the device, and is usually necessary to install spyware

http://wspa.com/2016/11/24/stalking-apps-could-be-on-your-phone-without-you-knowing-it/

NOTE--IF YOU CANNOT GET SOMEONE TO REMOVE THE APP, ATTORNEY HAS EXPERTS THAN CAN RID YOUR PHONE OF IT. YOU WOULD DO WELL TO CHANGE YOUR NUMBER AND WHATEVER ELSE YOU HAVE ONLINE AS WELL.

[previously posted in Dec 2016]

Spouse Prevailing in Appeals Court Twice after Failing in Family Law Court

http://chicofamilylawattorney.blogspot.com/

Originally posted in 2017 but same effect..............................

Attorney herein believes that winning the DV action or defending it (Petitioner or Respondent)  is crucial; second, attorney is at a loss as to how the wife (who had a huge history of domestic violence) had not prevailed prior, and both parties appear to have been represented? 

Couple married in 1989, filed for disso in 2004, and appears only in 2007 they filed a statement of issues (where DV issues mentioned)-- but there is nothing which indicates that a DV TRO had been attempted during marriage, before marriage, etc. It does state Judge Mize considered the DV in setting the spousal support.

Attorney's guess is that if no DV TRO was attempted, but the issue was given some weight according to the history of the case, attorney herein (who is familiar with Judge Mize)--is led to believe that wife had her own business and property, and only left husband 15 years later. 

During that time, if wife could not then bring the DV issue forward properly, it might be that Judge was not inclined to find her testimony so compelling.... because she brought it up at settlement conference time, but perhaps not years before? This is only a guess, but something is definitely missing from the articles/appeal which would explain how it happened, or rather didn't happen earlier.

Below is summary of difficult litigation spanning many years, and  which resulted in a published [for partial certification appeals case] ---in two separate cases of same parties:

BOBLITT case from Third District Ct. of Appeals 190 Cal.App.4th 603 (2010)  :

http://www.leagle.com/decision/In%20CACO%2020101130051/BOBLITT%20v.%20BOBLITT    ( in this tort action for damages based on Steven's alleged domestic violence against Linda (see Civ. Code, § 1708.6 [recognizing tort of domestic violence]), the trial court concluded Steven was entitled to judgment on the pleadings because the judgment in the dissolution proceeding (which was then on appeal) precluded Linda from further litigating the domestic violence issues under the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion).

BOBLITT case from Third District Ct. of Appeals 223 Cal.App.4th 1004 (2014)   :

http://www.leagle.com/decision/In%20CACO%2020140207016/IN%20RE%20MARRIAGE%20OF%20BOBLITT  (Wife had never petitioned to re-open discovery and was precluded from engaging in same; new law below eliminated need to petition requirement as to issues raised in postjudgment, see below)

On July 21, 2014, less than six months after the holding in the Boblitt case, Governor Brown signed ACFLS-sponsored AB 2586 into law.

Effective January 1, 2015, SECTION 1. Section 218 is added to the Family Code, to read: 
Section 218. With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court. 

The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the postjudgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.

(BELOW-----This was seen as an example online.....when you lose in Family Law Court, are there any avenues left to try?  Maybe, as this BOBLITT case eventually resulted in the Legislature creating NEW law in the Family Code,  Attorney herein has practiced years in Sacramento family law court, and knows the attorney representing the husband by special appearance.)

Apparently the wife  sued the husband for assault/battery, domestic violence, intentional infliction of emotional distress, negligence.  Usually in Family Law Court, one would bring a TRO for a restraining order; however, it seems Judge didn't find wife's facts to be compelling enough to issue it for whatever reason. Attorney herein believes that perhaps no DV TRO was ever filed?  Tort claims against spouses are allowed in civil court; one must have been married to file the claim.

Attorney's position is that the TRO domestic violence moving documents are often granted even without sufficient evidence, just to maintain some semblance of non violence, but may not be granted as easily for 3-5 years when the actual hearing takes place, depending if an attorney was representing the moving party or the defendant.  

It is attorney's belief that ALL TRO DV allegations be challenged, since the threshold used is very low to give the TRO order, and most clients cannot themselves, defend the accusations since they are not attorneys.  Attorney believes that the female in example below, did not have competent legal help. Resorting to civil court can work if there was definite proof of the allegations. I say definite because dicey facts usually don't work well in civil claims.

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(From a blog-- Bonnie Russell-- talking about the Boblitt Sacramento case at https://bonnierussell.wordpress.com/2014/06/21/linda-boblitt-defeats-statute-of-limitations-and-attorney-marc-hughes/ )

........Last week finally yielded a little light in the shadow of what routinely passes for “justice” in family court.  Years too late, given Family Court Judge James Mize’s amazing “not credible” comments. But it’s a start.  Naturally Linda Boblitt’s win wasn’t in Family Court.  Boblitt prevailed in the Law & Motion Department of Civil Court against Steven B. Boblitt’s Motion To Dismiss.  

Note by attorney herein: In trial court litigation, both parties were represented by attorneys.
The parties owned businesses and had assets.
The long litigation was then followed by two appeals by Wife, and she won both of those appeals and was represented by counsel in each case.
Losing such an appeal means the other party (former husband) would be responsible to pay those attorney fees.  Attorney herein does not believe necessarily that women get the shaft in Family Law Court, in fact, it is usually the women that get the kids more often than the men.

Attorney herein notes:  See the paragraph: 

"The Third District Court of Appeals reversed and remanded the action, holding, in part that 
(1)  "a request for spousal support in a marital dissolution proceeding is NOT based on the same primary right as a tort action based on domestic violence and therefore,  

(2)  a party is not necessarily precluded from seeking damages for alleged acts of domestic violence and ALSO asking a family law court to consider those same acts of domestic violence in awarding spousal support...

(3)  because this tort action for domestic violence was NOT precluded by the judgment in the dissolution proceeding, we will reverse the judgment in this action and remand the case with instructions to the trial court to DENY Steven's (husband) motion for judgment on the pleadings. (emphasis added)

Boblitt decision, Sacramento Civil Court

Marc Hughes made a rote defense.

Marc Hughes loses in Law & Motion, Sacramento, CA

Best for last – “The Court affirmed the tentative ruling.”

Linda Boblitt prevails against Steven Boblitt and on-again, off-again attorney, Marc Hughes