Question About Divorce Law in California

Dear Law Guy, When I married my husband, I was a little overweight, he was quite trim. Now I’m slim, and he’s put on the pounds and I want a divorce. I used to think he was the best I could do, but now I’m a brand new babe in the Bay Area and I want to see what I’m worth, if you know what I mean.   What’s the quickest way to get a divorce?

First off, because divorce, like marriage, is subject to state law, you should check whatever information I’m about to give you with a divorce lawyer in Oakland who will naturally be more tuned in to the particulars of divorce law in your home state. in California, all divorces are “no fault” divorces, which means you can request a divorce without claiming your spouse has done something wrong. (Be happy you don’t live in the 1800’s. Back then you could only get a divorce in California if your husband were impotent, extremely cruel, had deserted or neglected you, was habitually intemperate, committed fraud or adulter, or had been convicted of a felony.) You, as the first to file, would be the “Petitioner,” and your husband would be the “Respondent,” but the distinction is not that curcial. Divorce in California need not be mutual, meaning either spouse can file and obtain a divorce without the cooperation of the other spouse. You asked about the “quickest way to get a divorce.” No matter what, it will take at least six months for your divorce to be finalized. That’s the mandatory waiting period. If you want your divorce to actual become final as the six-month waiting period passes, you will want to settle your divorce case and implement the terms of your settlement within that time frame. Most divorces do not happen that quickly. In fact, they typically take a lot longer than the minimum six months. You can explain your situation to a lawyer – which with all due respect may or may not inspire them to work quickly. But even if it takes a while, you ought to be thankful that California divorce law is relatively simply. The default grounds for dissolution of marriage are “irreconcilable difference,” which are accepted as true at the word of just one spouse. If I were you, I might not go into detail about your superficial reasons for seeking the divorce, so as not to risk trying the patience of the judge. The other major piece of advice I’d give is to stay as civil as possible with your husband. While on the one hand he has no way of ultimately blocking the divorce, he can certainly drag it out considerably and make it much less pleasant. So, as much as possible, try not to make it personal. You might also think about what you’re willing to accept in terms of a divorce settlement. As the Petitioner, you have more of an incentive to accept a settlement which favors your spouse. He, or rather his lawyer, will be well aware of that, and may use that to chisel you.

Personal Injury vs. Impersonal Injury

Dear Law Guy, What exactly is a personal injury? And what’s the opposite – an impersonal injury? Can impersonal injuries warrant lawsuits? I’m asking because my neighbor drives me nuts for about a million reasons, most of them spiritual, but I’m wondering if maybe I could sue him. The sidewalk in front of his house isn’t well maintained in the winter and always winds up treacherous with ice, but also his house is painted an offensive color. My question is basically, do I have to actually go and break my ankle on his sidewalk or can I sue for the pure psychic distress that that his teal siding and cotton-candy shutters causes me?

The term personal injury covers harm to the body, mind, or emotions. The opposite of a personal injury is not an “impersonal injury” but rather property damage. As to your suggestion, tripping is among the most common personal injury claim, but I would of course never recommend that you deliberately injure yourself on your neighbor’s property. You never know how bad you could hurt yourself, and if the ethics of the situation doesn’t bother you, know that if someone found you googling the ins and outs of personal injury claims before your supposed fall, it would look bad and jeopardize your entire caper. And in fact, you could run into problems with your own insurance company, and there you’d be, potentially navigating a major injury, with sizable medical bills and loss of income. To make a long story short, do not do that. Bad idea. As to whether you could have a claim for an offensive house color, your only cause of action under the umbrella of personal injury cases would be negligent infliction of emotional distress (NIED), but it’s a longshot. In theory, we all have a legal duty to avoid causing emotional distress in another, within reason. In practice, it came about as something to tack-on to a case of negligent physical harm. Then people began successfully claiming NIED in the case of negligent physical harm to a loved one. Then came NIED in the case of negligent property damage. Courts don’t typically like dealing with emotional distress as an intangible condition – and so it’s not easy to demonstrate without concrete effects to your life – such as a divorce that would have otherwise been avoided. We all suffer emotional distress at different times in our lives, and most of those instances are not compensable. So, techincally, your course of action would be to claim NIED, but in reality, you don’t have much of a claim at all and should perhaps consider planting some fast growing trees to block out your view of your neighbor’s house. What the cost for landscaping, it will be less than potentially bringing a losing claim against your neighbor – and it won’t sour your relationship (whatever its current state). The best defense is not to start a war with your neighbors.

Can I make a federal case out of it?

I have this thing with my husband about how he does the dishes. He never pre-washes before loading the dishwasher. It doesn’t matter how many times we end up with bits of food on our supposedly clean dishes. He won’t change. It’s the principle of the thing with him. Anyway, I give him hell about his failure to pre-wash, and yesterday he told me not to “make a federal case out of it.” That got me thinking. I was wondering how I might go about making a federal case out of this. What are my options?

I’m afraid federal crimes in the United States are very particular. The federal government has a limited power to pass criminal laws, as that kind of legislation was generally delegated to the states in the U.S. Constitution. Furthermore, even nominally “federal crimes” will only be prosecuted on the federal level if the offense is not covered by the relevant state’s criminal law or if it occurred outside of a particular jurisdiction – interstate mail fraud being a commonly cited example. If you’d like to bust your husband for a federal crime, you’ll have to wait until he commits an aircraft hijacking, kidnapping, bank robbery, child pornography, obscenity, tax evasion, counterfeiting, espionage, wiretapping, art theft, or presidential assassination. He doesn’t even need to have allegedly commited the crime himself. He could be an accomplice. If, by what I’m assuming is an outside chance, your husband finds himself charged with such a crime, he’ll need an experienced federal crimes attorney, because like I say it’s particular.

Now, I’m a lawyer, not a life coach, but if I may be so bold, I might suggest taking over dishwasher-loading duties yourself and assigning another task to your defiant husband. Is he competent enough to do anything else? Could he be trusted to fold the laundry, for example? If not, what I’d do – and this is just me – what I’d do is take over dishwasher duties anyway and then just use the imbalance of chores as a way to shame him whenever it was advantageous to me. It might go like this: it’s movie night and the two of you are browsing your streaming service. He likes the look of some superhero garbage, and so he starts making his case. “It looks really dark, really psychologically complex,” he might say. Or he says, “Oh, I’ve got see if they include all the meaningless minutiae of my favorite version of this character’s ever-changing origin story.” And you say, very simply, firmly, “I load that dang dishwasher every night. We’re watching Jiro Dreams of Sushi.” He might grumble about it, but you’ll get your way, believe me. As a possible side benefit, having to sit through your movie choices week after week might be enough to get him to eventually reconsider his protest against the reality of pre-washing.

Responsible for Loans after Divorce?

I reside in Winston-Salem, NC.  I was married to a woman for about six years in Davidson County, NC.  While we were both married we applied for and received funds from student loans.  I do not ever recall ever having co-signed for her loans nor did she co-sign for mine and upon divorce I did not assume any financial obligations for her debts.  Basically my best recollection was that the court order stated something like any property, loans, etc in my name remained mine and property, loans etc in her name remained hers.  It’s been about three years since the divorce and debt collectors are calling my parents and interrupting their lives.  They want my parents to give a message to my ex-wife or they want my contact information for me to give messages to my ex-wife.  My parents number is also on the do not call registry.  I have recommended they do not give them any information and report future calls to the FCC using their online form and under no cirumstances give them any information about me.  Is there any way they could pursue me for her debts?  I thought this was all taken care of when we divorced with the court order.  I am about to get married and my fiancee is thinking we will hounded by my exes debts for the rest of our lives and it’s quickly turning into a bummer.
You are not obligated to pay the loans (unless you co-signed), but why don’t you tell the loan companies how to get in touch with your ex-wife?  If you don’t know where she is tell them that.  Why should you run interference with with loan companies for your ex-wife.  The FCC won’t take any action here.  The do-not-call list does not apply in this situation.

 

Creeper or Peeper?

Last fall the neighbor behind us built a hideous shed that is two stories high with a window on the second “story”.  It is less than 6 feet from our back chain-link fence.  This is bad enough, but I wasn’t going to complain about it.  However, last weekend when the weather warmed up he and another adult friend had chairs up on the second story and were sitting with a perfect vantage point right into our backyard.  This window is only looking down into our backyard and nothing else.  I am very uncomfortable with this.  Is this legal?  First of all, should he have had a permit to build this huge shed, and secondly, is it legal to have this window so close to our fence to look down directly on us? 
Yes, your neighbor probably needed a building permit for his shed.  But provided he complied with setback rules, zoning and building codes I can’t think of anything that would prohibit him from having a window that looked directly into your backyard.  If you decided to, you could put up a barrier that would obstruct his view.  Maybe a few Leyland Cypress.  It is illegal (in North Carolina) for a someone to “peep” secretly into a room occupied by a another person.  So if he used the window for secret peeping he might be committing a crime.  But a backyard is not a “room.”
I can understand why this makes you uncomfortable.  You might try calling a code enforcement department and see if the building had a permit (permits are public record).  If there was no permit and a code inspector found a violation (violating a setback rule, for instance) the inspector could require it to be corrected.

Those to Trespass Against Us…

I have a business … which has a gate around almost all of it. On one end there is an opening that cars have been coming through, to spin donuts on our ball field in back. So I put up a barricade to try to stop this, and they just moved it, or found a way to drive around. So I put up no trespass signs, and put the barricade. But this time I put spike strips down to stop them before they started. A young guy came through the barricade in a big truck and run over the spikes and got four flat tires, and now wants to sue me for the tires. Should I pay him, or take him to court?
Interesting question with no simple answer.  While a property owner has the right to exclude others from his property and even use reasonable force to prevent someone from entering his property, in general you cannot set traps to catch trespassers.  The court might find that the spike strips (with no warning that they were present) were a trap.  That means you would be responsible for the damage to the tires.  Think about it this way: a landowner might decide to put up an electrified fence to keep out trespassers, but if the fence was not marked with signs, the owner might be liable for injuries to someone touching the fence.
By trespassing the driver was also breaking the law.  He could be prosecuted for trespassing and you could sue him in civil court.  However in a lawsuit for trespass you would only be entitled to nominal damges ($1 or so) unless you could show actual injury to your property.
I think right is on your side, but the law favors the trespasser.  So if I were the judge for your case I would rule that you had to pay for the damage to the tires, but unless the tires were brand new I would not hold you responsible for the full value of new tires.  I would rule that the trespasser owed you $5 for trespassing and I would order him not to enter your property in the future.
Remember though small claims court is about “rough justice.”  There is very little argument about the fine points of law.  A friend once told me that actual legal precedent carries about as much weight as a comic book in small claims court.  If I were you I would wait and see if he goes to the trouble to sue you.  Many people don’t bother.  If he does sue, counterclaim for trespass.  Then offer to pay for repair of his tires or the cost of used tires.
-LawGuy

Power of Attorney Question

My Aunt passed away last year – my cousin convinced her to change her will to leave him everything and nothing to his brother.  While she was alive, he had power of attorney.  She was receiving checks for some land we sold awhile back – in the midst of  her illness, somebody sent a note to the buyer of the land and instructed them to send the checks to my cousin’s address and not my Aunt.  As he had POA, we knew he could cash/deposit these checks.  However, since she died, these checks which are made out to my Aunt in her name have been and are still being cashed.  Is this against the law and is there anything we can do about it?
After your sunt’s death the power of attorney was no longer effective.  Upon your aunts assets and liabilities became the property of her estate.  The executor or administrator of the estate is responsible for collecting assets and paying any of the estate’s liabilities before distributing the estate to persons named in the will.  If your cousin is the executor of the estate, he would be able to cash the checks on behalf of the estate.
If you believe that your case used undue influence to cause your aunt to change her will, you would need to speak with an attorney experienced in estate litigation to challenge the will.

 

Tree Removal Costs and Suing the Neighbors

I live in a private, gated community governed by a homeowners association with strict property deeds with covenants and restrictions. …. He has a large live oak tree that is on his property … that he refuses to maintain (refuses to trim branches) and refuses to treat the carpenter ants and termites that live in the tree trunk. After futile attempts to get him to care for his tree, I sent a letter of complaint to the homeowners assocation asking them to enforce our deed restrictions that do not allow any homeowner to have an infested tree that is not maintained. I had my tree company trim back his branches that were in my yard and have damaged my lawn and shrubs. I also used my tree/lawn fertilizer company to treat his tree for carpenter ants. My neighbor threatened to sue me …. The homeowner’s association backed my neighbor stating I needed to create a barrier around my property to keep his carpenter ants from invading. Furthermore, I was told by the property manager that I was not allowed to trim my neighbor’s branches that were in my yard.

I have continued to write a letter of complaint yearly stating the same complaint about my neighbor’s diseased tree …. Each time I was told that I was not allowed to touch my neighbor’s tree, not allowed to trim his branches that are over my property line and not allowed to treat the caprtenter ants or termites.

We recently had a named hurricane with category 2 wind gusts … Many of his diseased live oak tree large branches fell into my yard, smashed several sections of my cement driveway, smashed several of the cement sidewalk sections in front of my property, destroyed my cast iron custom made mailbox resulting in the USPS turning off my mail delivery until I have a working mailbox and has created a mess of my landscaping, and is in the road partially blocking traffic. ….

My neighbor refuses to take care of his diseased tree that is now partially overturned in my yard, refuses to acknowledge the damage his tree did (told me “shit happens”), refuses to clean the mess his tree has made in the street or sidewalks. … The cost of tree removal ranges from $18,500 to $41,999. The real problem is the fact my neighbors tree is severely damaged from the carpenter ants inside. … The tree company wants to remove the trunk and tree stump. The trunk and stump are on my neighbors property which I have been told that I am not allowed to touch by the HOA and my neighbor.

What type of lawyer do I need to hire? Could I be held liable if the tree causes more damage when we remove the fallen attached branches?… Thank you for any advice you may offer to a very frustrated homeowner. I enjoy reading your comments to variuos letters on your website.

With the kind of loss you are facing you will need to have a lawyer to get anything accomplished.  I need to leave it to that lawyer to answer your questions after looking at the information you have gathered.

I am going to talk about how to go about choosing a lawyer.  This is a garden-variety legal matter that any competent lawyer ought to be capable of handling.  Think about it as having to replace the clutch in your car.  All mechanics should be able to handle it.  Most will get the work done no problem.  There are always some who do shoddy work or take forever to get the job done.  Ask around and see what the lawyer’s reputation is before hiring the same way you would ask around to find a good mechanic.

You don’t need a high-powered $300 per hour legal specialist to take care of this either.  Most of that firepower would be wasted.

Finally consider money.  Your neighbor’s track record suggests he is unreasonable.  It is unlikely that the case will be resolved with a letter or a phone call.  If you considering hiring me I would probably tell you that I thought this could easily take 15-20 hours of attorney time to prepare the case for trial.  That would include investigating the facts, researching the law, and engaging in some discovery.  Attorney hourly rates vary widely but there is a good chance you could find someone who charges $100-$200 per hour.  This means that you should expect to have to pay an attorney $3000 to $4000 minimum.

Experience matters but it is not everything.  The most important factor is whether you have confidence in and trust the attorney you hire.

Good luck.

 

Dumb actions but no dumb questions

I have a pretty dumb question about something I’d hate to admit is scaring me out of my mind.
I was visiting a friend when we decided to go swimming around 3 a.m. Well, we went
dipping in a swimming pool belonging to apartments her boyfriend used to live in.
But the security guard spotted us as we were about to leave and contacted the police because
we did not have IDs. But after identification, when asked what he wanted to do with us,
the security guard requested that we be put under civilian arrest for trespassing.
So here we are, two 19 year olds cited for trespassing, wondering what will happen to us.
We are to appear in court next month, and we’re scared!! Isn’t trespassing a criminal offense?
If so what will happen to us, to our records? Is there a difference in penalties from a person
with no criminal background, and a person who does? Does the swimming pool need a
NO TRESPASSING, VIOLATORS WILL BE PROSECUTED sign? I mean, the gates were closed, and it says the pool hours in small print, so in other words it’s kind of obvious that we weren’t supposed to be there at that time. But even without that sign anywhere, are we still “eligible” for citation?
What will happen to us??
Trespassing is a criminal offense.
If you are convicted you will have a criminal record.
Anyone facing the criminal charges needs to have a lawyer.  The Supreme Court ruled years ago (in Gideon v. Wainwright) that a defense attorney was so critical to an accused rights, that the Constitution required a state to provide an attorney for those who cannot afford one.  It amazes me how many people will decide to represent themselves in something like a trespassing or marijuana possession case.  Later they find out that having a criminal record may affect employment, college admission and other activities.
Hire a lawyer.  Expect to pay a reasonable fee for the lawyers services.  If you cannot afford a lawyer, ask that one be appointed.  If you think it is expensive to hire a lawyer, check the expense of not having one.

 

Criminal History

How long will a misdemeanor stay on your record?  If trying to get a job and a criminal record check finds a drug possession misdemeanor on your history, can it and will it affect the likelihood of employment?  Will it ever disappear?  How long, legally, can potential employers view your history?
A criminal record is forever.  Only an expunction or pardon removes a criminal conviction.  In North Carolina a person who was convicted of a misdemeanor before age 18 could be eligible for an expunction.  Pardons can only be granted by a governor or the president.
It is up to each individual employer to decide whether to hire someone with a criminal conviction.  There is no limit on how far back an employer can look into your past.