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Thurman Wesley Arnold

Thurman Arnold’s Answers

14 total


  • When seeking a monetary sanction on a party how much $ is asked typically. this is a osc to mod. child support court in june.

    I am going to file a notice of motion. i am self represented and had someone personally serve other party's attorney with fl-145 and demand for production, inspection & copying of documents, tangible things, and or other property that are in the p...

    Thurman’s Answer

    If you do not have an attorney and seek sanctions under the Family Code, you will likely not be successful. The only Family Code section dealing with sanctions in your circumstances is FC section 271; however, since you are not a lawyer you are not entitled to attorney fees as a self-represented party. This is also true of attorney fee awards under FC section 2030, 2031, and 2032.

    Your other argument is for sanctions under the California Code of Civil Procedure - section 2030 deals with interrogatories, which would include your FL-145 form interrogatories. CCP section 2031 deals with production requests. These are civil statutes that apply to family law cases. The problem is that family and civil courts think in terms of attorney fees (those that you have incurred) as a measure of sanctions - not numbers unrelated to attorney fees (but perhaps you could convince a judge otherwise). Certainly you may gain sympathy with the judge, which is only valuable if that judge is assigned to the case throughout and not just for that date.

    You have a better option which you might consider - seeking evidentiary sanctions, meaning an order limiting what evidence the other side might otherwise introduce to prove their case on the issues that were covered in your demand for production. In essence you ask for an order that the other side be precluded from producing contrary evidence, or perhaps any evidence, on the particular subject matter. For instance, if you asked for evidence your spouse claimed proved their interest in the family residence and they did not comply with the request at all, you would ask that they not be allowed to later submit the evidence that they could have provided had they timely responded.

    It is true that courts are reluctant to issue evidentiary sanctions the first time a party fails to comply with discovery, but attorneys know that discovery motions usually require a brick by brick foundation before the other side is walled off in a way that benefits the moving party.

    Finally, under FC section 721 and 1100 et seq. you have an argument for what are called Feldman sanctions.

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  • If I divorce my illegal immigrant husband does he have rights to properties that I have purchased?

    If I divorce my illegal immigrant husband who is in jail for illegal entry, does he have rights to the properties that I have purchased on my own since his incarceration?

    Thurman’s Answer

    The fact of his illegal immigration status is irrelevant for purposes of property division. As a practical matter he may never enforce his rights. However, if the two of you have been physically separated, which requires not just that you be physically separated but also that you one or both of you have decided to end the marriage, then whatever you acquire after that separation is your own separate property and he would then have no rights to that property.

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  • Notice of entry of judgment- date marital status terminates 05/21/10 ..does this mean i am divorce

    i filed divorce last october 15, 2009. he never respond to the paper he received. after about 6 mos of waiting. we filed request to enter default on the dissolution without child(ren)..

    Thurman’s Answer

    You are not divorced until a Judgment for Dissolution is entered by the Court where the papers were filed. A request to enter a default judgment is NOT enough. There is not automatic six month termination. You are NOT unmarried, and so free to remarry, without a Judgment. There is not enough information here to accurately advise. Seek an attorney's advice, unless you have seen a court signed and duly file stamped copy of a judgment granting a decree of dissolution.

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  • My kids dad used the child support to pay the mortgage payments on the house he promised to sign over to me. Can I get the house

    After looking for 10 years, I found a house in CA I could afford. Everything was ready for me to buy the house when my kids dad talked privately to the agent, and their dad bought the house instead of me. He promised that it would be okay because ...

    Thurman’s Answer

    You don't mention whether are not you are married to the kid's dad and, if so, when you were married. If you never married then you have no rights under the California Family Code and your best argument is that the two of you had a joint pooling agreement - in which case you can only sue for breach of contract, and it isn't worth it. If you are married than it is important to know if this was before or after the house was bought. A lawyer also needs to know whether you signed a quitclaim or other transfer deed when the 'dad' bought the house (likely you did not if you were not married). If you did sign one and you were married at the time you signed it, there is a fiduciary duty presumption that you signed it as a result of undue influence, and so you might be able to set aside that deed. Because his mother now holds title, you would be forced to sue her in civil court if there was not marriage, or join her into any family law proceedings if there was a marriage.

    So, there is insufficient information for a lawyer to answer this question - but my practical advice is that unless the house has a ton of equity, the costs of legal counsel (and you absolutely would need a lawyer) exceed what you might otherwise gain.

    Sorry you were unfairly treated

    Thurman W. Arnold III
    http://www.ThurmanArnold.com

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  • Mediator or Attorney

    My husband and I both obtained a divorce lwyr. Since we live together, he was served w/papers and we dont talk to each other, he said he would not get a lawyer. I told him he should. He says (after we both already obtained lawyers) that if we we...

    Thurman’s Answer

    Many divorce lawyers are competent to mediate family law disputes, but few have any actual mediation training. This means that they end up representing one party only, and do not act as neutrals to advise both parties equally or help to tease out common interests that are the best foundation for a secure settlement that will not be challenged later - particularly when people share children or have ongoing obligations that need to be modified from time to time. Very few non-lawyers have mediation training, and there is no state wide or national regulation of mediators that is includes common ethical standards or ongoing continuing education. Most non-lawyers who are mediators have some paralegal expertise, but that is all.

    In my experience, mediators who are true peacemakers have considerable sophistication in both the law and psychology. Because of their passionate commitment about mediation and avoiding adversarial court intervention because they recognize its inherent destructive nature, they tend to price their services better than litigating attorneys who sometimes serve as mediators.

    In your situation, if mediation was successful you both would indeed 'save a lot.' My mediation office (Desert Family Mediation Services) charges $350/hour for mediation, which is $175/hour if split two ways. Two lawyers at that rate would be charging $700/hour. Sometimes we employ co-mediation, combining a lawyer with a financial neutral or a divorce coach with family sciences training, but then we still only charge $500/hour. We charge a 2 hour minimum, but our initial consult including an orientation session is free. You should know by that point whether this looks to be working for you.

    If you have lawyer-mediator, their office often provides the paralegal work (i.e., filling out the paperwork and preparing a Marital Settlement Agreement) without additional charge.

    I cannot say whether you were right and wrong in your decision process - that is only for you to decide. However, there is still time for both of you to pull back from the brink, request a refund of your retainers (an attorney must disgorge the unearned fees), and consider finding a qualified mediator to resolve your issues. Or, you can put your attorneys "on hold," instruct them to do nothing more, and invest some effort in finding a qualified mediator. They should, at a minimum, be licensed attorneys with at least 40 hours divorce mediation training by an approved mediation provider. Good luck!

    Thurman W. Arnold III
    http://www.MindfulDivorces.com

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  • Will an interspousal transfer deed get me off the loan?

    I recently divorced, my wife was awarded one of our houses in the divorce settlement. She rents the house to our daughter that fails to pay on time. I am subject to damaging my credit if the mortgage does not get paid, because I am still primarily...

    Thurman’s Answer

    My take is a little different: While an interspousal or any other deed does not relieve you of liability, that coupled with a Judgment awarding your ex the house will go a long way in showing future lenders that this was not your default, and so it may not be held against you even if it were to show up in your credit report. Most people are not taken off mortgages when they divorce, simply because they are not in a position to refinance. Nonetheless, it has always been my experience that the party who was not awarded the home could go out and buy a new one (can't say if that policy has changed in light of recent economics), despite an existing mortgage that would otherwise be included for debt ratio purposes. There should be an indemnity clause if you have settlement agreement which would allow you to file a motion to compel your wife to make the payments, or otherwise make you whole. Bottom line is: if she was in fact awarded the house as you say, record the deed anyway and do it before she defaults, and your situation will be better than otherwise.

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  • How does my Sister in law get custody of her grandson

    My Neice has a 1yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my neice doesn't seem to care for him. I told my sister in law she needs to get cust...

    Thurman’s Answer

    There is only one choice in the absence of a pending paternity or other proceeding between the niece and the father: A guardianship proceeding. The niece's mother has no standing to file any other type of action; however, if another action is pending (again, a dissolution or a paternity action between the bio-parents, for instance) your sister can seek custody pursuant to Family Code section 3041, which deals with custody to nonparents, by applying to be joined into those proceedings. Your sister in that case would be presumed to be the more appropriate custodian of the boy IF she can establish a stable placement exists with her and that she has "assumed, on a day-to-day basis, the role of his ... parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." The last portion is critical. If the child's mother gets her act together, or pretends to, its a bit close whether a one year period will satisfy a judge (has the situation been the same since birth?). Also, I would want to know whether the child's mother live's in your sister's house or has just parked the child there. If the former, it will be tougher. The greatest danger here is that the child's mother will move to a bad housing situation just to defeat her mother. If your sister is in control now and the child is protected, she should consult an attorney immediately in her area so that she makes all the right moves until the inevitable time comes for her to take action.

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  • How am i suppose to file for divorce with my husband of two years who is an immigrant?

    i've been married for about two years now. things were well off at first, but things just went down hill afterwards. we've been trying to work things out, but can't set aside the differences and problems within the relationship. During that time w...

    Thurman’s Answer

    It doesn't matter whether he is an immigrant or not, or if he is legally in the United States or California. Since you are present here in California, and assuming you are legally married and so need a divorce, you go through all of the same procedures as any other person in this state. You are also entitled to all the same remedies. However, filing for divorce may affect his legal status with the INS and may resort in his deportation. You have such a short marriage that this will not likely have much by way of financial consequences to you.

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  • Married 2 times, first marriage divorce was not finalized

    married once, filed for divorce from 1st husband, but was not finalized. I remarried my current husband...found out I wasnt divorced from my first husband, I was able to finalized the divorce from my first husband....but my questtion is what abou...

    Thurman’s Answer

    You need to get remarried. You were legally married to H2 at the time your marriage license was issued and at the time the marriage certificate issued for H1/3. Hence, both documents are invalid. You are not presently legally married and you probably cannot claim putative spouse status if you were file a divorce, meaning that you have basically very little in the way of legal rights.

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  • I was awarded the home. I agreed to pay the X $53.000. Shei is still on the contract, and her attorney cannot get hold of her.

    She got the money and was sent a tax avadavitt and quik claim deed. No response from her. Why do I have to pay more atty. fees if she is in the wrong? Thanks, William Powell

    Thurman’s Answer

    You are going to need to hire that lawyer again to file a motion to enforce the judgment; typically you ask the court to order the court clerk to sign the quitclaim on behalf of missing party. Your chief problem will be getting her served assuming personal service is required (i.e., after judgment has been entered). If you can still serve her by mail given the particulars of where your case is, get going on it. Otherwise you will need to serve her by publication which is tricky and expensive.

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