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Richard Alan Dinnebier

Richard Dinnebier’s Answers

16 total

  • Can you give advice about child support and whether I need an attorney?

    My Ex filed for his child support to be lowered since he now has the kids a bit He more time. But, it came out in a deposition that he owns 7-8 LLC's having a total of 2-3 million dollars in them. The child support commisioner has asked him 3 ti...

    Richard’s Answer

    Succinctly stated, whether or not an attorney will be able to benefit you is problematic. I always tell my clients not plant a tree, fertilize it, water it, and prune it, unless it will eventually bear fruit. No attorney should give you a guarantee that if you hire them, they can get you more support. It is simply a question of evidence that can be presented to a judge. The judge can only make a decision based upon evidence, not speculation.

    It seems to me from your statement, that there is a reasonable chance that you could, in fact, get more support if you tried an attorney. A private attorney has more time and, perhaps, more experience than the DCSS attorneys who have a very large caseload. You have the further complication of whether or not to hire a forensic accountant. Clearly, in a strict sense, his assets are not used to determine child support. However, the income from the assets should be considered. You have further complications as to his overall wealth and whether or not assets should be considered in determining child support pursuant to existing case law.

    You have also not told me the age of the children. If the children are extremely young, you will get more benefit out of pursuing his wealth and/or income from the LLC’s. If the children are close to 18 and are about to age out, you will not get as much value out of a long term child support order.

    The attorney for DCSS told you to hire an attorney. That attorney is probably correct. I would urge you to advise your attorney that he/she does not have cart blanc to spend unlimited time and expenses, but should focus on getting you the most out of what time is spent.

    Richard A. Dinnebier

    In hiring an attorney, please broaden your search beyond Avvo. There are many valuable sources to determine who would best serve as an attorney. Some of these sources include: Your local bar association, Super Lawyers, Martindale-Hubbell, and LinkedIn. I encourage you to be diligent in your search in making such an important decision.

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  • Should I stop a child support claim?

    I recently applied for child support against my daughters dad. His unlce told me that my better option would be to have a mutual agreement with my little ones dad on getting money, since if I filed for child support I wouldnt get as much money doi...

    Richard’s Answer

    The simple answer is that without a valid child support order, you have nothing to enforce other than the father’s promise. A promise, in and of itself, is not enforceable by way of wage assignment, levies, garnishments, or attachments. My gut feeling is that you want the security of having a court order. There is nothing wrong with telling the father that, in fairness, you want to have a court order for a set amount. You would very gladly accept any money he wanted to voluntarily pay over and above that.

    So many times we have to tell clients that they will get more from the other side by their voluntary agreement than by going to court. We do not know any circumstances of the father. You need to weigh the differences of having an enforceable court order versus having an unenforceable promise.. You must look to the integrity of the father. As lawyers, we believe that the best option is to always have a valid court order that is enforceable. Please use your own judgment.

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  • Can custody be changed because I am not working even though the reason I can't work is beacuse my son has Autism?

    I have been raising my son who is now ten. Unfortunately he has a very complex medical situation and requires constant monitoring due to his Autism. I was not married to the father and I did not include him on the birth certificate. The Department...

    Richard’s Answer

    The general answer would be that someone’s finances should not determine custody. The fact that you are not working becausec your son needs york care is something that should be factored in setting child or spousal support. Everyone has a duty to support themself and their minor children. However, if you legitimately cannot work because of the needs of your child, this is a factor that the court can take into consideration in setting child and spousal support.

    Wealth is typically not a reason to grant custody.. Likewise, if someone is impoverished, that is also not a reason to not grant custody. The court has to look to the welfare and best interests of the minor child taking into consideration numerous factors. Clearly, wealth or lack thereof is not a factor that the court should consider.

    I hope that helps.

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  • What information do we include in Confidential Marital Settlement Agreement and Stipulated Judgment

    We're 65, married 40 years with no children. We have an IRA and a SEP/IRA both with Schwab, which require equalization.. We agreed how to divide our property and both waived spousal support. Together we prepared extensive lists of all bank accoun...

    Richard’s Answer

    What you are asking for is not impossible. However, the law in the state of California requires disclosure of pertinent information. All court files are open to the public unless they are sealed. There are very few times when a judge will seal a divorce file. Therefore, sometimes parties wish to have a Confidential Marital Settlement Agreement which is signed and executed by the parties and not filed with the court. In that case, you would have two separate documents. You would have the Confidential Marital Settlement Agreement which would have duplicate originals held by both parties and perhaps even their attorneys. Then, you would file a judgment of Dissolution of Marriage with the court containing only the executory provisions of the Confidential Marital Settlement Agreement such as support, custody, etc., so that those orders could be enforceable. A Confidential Marital Settlement Agreement is only a contract and in order to be enforceable must be part of the judgment. Please keep in mind that you have better protection when you have a judgment rather than a Confidential Marital Settlement Agreement. The judgment is enforceable as a court order whereas the agreement is enforceable only as a contract.

    Having said that, the SEP/IRA and IRA create a different situation. In order to divide those, the plan administrator may require a court order/judgment. In that case, you are going to have to disclose certain aspects. You do not have to disclose the entire designation of the IRA or SEP/IRA account, but can merely include the last four numbers for instance. That is sufficient for everyone to know what you are intending to do without disclosing to the public your account numbers.

    Please understand that a SEP/IRA requires a Qualified Domestic Relations Order under ERISA. As such, a separate document will have to be drafted to transfer moneys from one account to the other. The typical vehicle used by the receiving party is an IRA rollover.

    I do feel that everything you wish to accomplish can be done. However, you may wish to have a competent family law attorney assist you.

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  • How should I arrange my family business S-corp to avoid divorce and alimony from destroying the business?

    My father is the original creator of the business. Right now it's an S-Corp where he's the only one being paid and the 100% shareholder. I do not work in the field, but I'd like to arrange it (legally) so that he owns none of the business and gets...

    Richard’s Answer

    You have raised a very touchy question. We could never advise you to do anything fraudulent. You must be aware that all types of rules apply when setting up a corporation or transferring corporate stock. There are all kinds of rules that pertain to piercing the corporate veil. A corporation cannot be undercapitalized.

    The fact that your father now owns the corporation creates a community property presumption. Any transfer to you would be suspect. Even though your father is a 100% shareholder, it is logical that your mother owns a 50% community property interest in the business. Even if the business was transferred to you, it is possible that the family law court would join the corporation as a party to the action.

    Candidly, I think your father should deal with the situation straight on. It does not sound like the corporation has a great deal of value. Nobody has said what his income is, the assets of the business are, etc. I would be very careful before I did anything that would embroil you in your parents’ divorce. Divorce is difficult enough. The court does not like, and frowns upon, anybody trying to play “fast and loose” with the legal system. Be careful.

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  • Legal custody rights for unmarried couple.

    I am curious about custody rights for an unmarried couple. We have lived together since the child was born, now 11 months old, and have another on the way. The father is not a California resident (does not pay state taxes) but he does reside her...

    Richard’s Answer

    When an unmarried couple has a child, family law, namely dissolution of marriage is not applicable. You fall within the category of a paternity case. You could file for paternity seeking support from the father. Father could file what is known as a reverse paternity action requesting custody. Units father files a paternity action, he technically does not have any legal rights to the child. However, I need to caution you that if the father signed the birth certificate at the hospital, or some form of acknowledgment of paternity, he may have rights as a result thereof.

    Also, father does not have to be a California resident to assert paternity and custody of the minor child. The mere fact that the child lives in California gives the father the right to file in California under a paternity action to obtain custody.

    There is no guarantee whatsoever that if you decide to move out of state, the court will grant him 50% custody. A “move-away case” is much more complicated. A unique set of statutes and case law govern the same. Whether you will be able to move out of state with the child depends upon many factors. As you allow the father to have more and more rights as pertain to the child, it will be more difficult to move. Each “move-away” case is unique and requires full disclosure of all facts relating to the action. That way, an attorney can tailor the law to your case to get the best results possible.

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  • My x-husband work in Vegas and gets a paycheck but he doesn't claim all his tip how do I get him to pay and he makes like 10,000

    We have divorce like 2 years and he always pays 160 and court order is 600

    Richard’s Answer

    I assume that you live in California and the divorce is in California. That creates a difficult situation in terms of evidence. California subpoena power does not run to Nevada without significant motions and applications to the court. Likewise, you have to have jurisdiction over witnesses to subpoena them.

    Your situation is like so many others. You have to ask yourself whether or not you will be putting good money to go after bad. In other words, if you were to hire a private investigator, hire an attorney, or do significant discovery, would it lead to a result that justifies the outlay of cash to attempt to prove his income.

    It is unlikely that one of the ways you can approach his income is to show what his expenses are. If he has more expenses than he claims on his income, and no corresponding debt on credit cards or loans, one might say that he earns what he spends. This is an approach that may get you sympathy, but may not be sufficient proof to show his income.

    You have not stated whether the support is spousal or child. If it is child support, you can go to the local Department of Child Support Services and have them enforce your California order for free. They have many remedies that private attorneys do not. You could do a wage assignment on his paycheck. I believe that all states have to honor a wage assignment from another state. Those are some suggestions. I would urge you to consult with an attorney, at least on a consultation basis, to see if he/she could give you other suggestions when he/she understands the facts better.

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  • Can we annull our 3month marriage?

    Got married 3 months ago. Our marriage has been rocky since the beginning but we thought it was a phase and that it would pass. However it hasn't I suffer from Depression and take meds for it as well as for anxiety. We didn't even have sex the day...

    Richard’s Answer

    The simple answer to your question is, while it is possible to annul a three-month marriage, it is highly unlikely in your situation. The grounds for annulment are as follows: age of minority not met, prior existing marriage, unsound mind, fraud, force, and physical incapacity.

    I assume you do not qualify for not meeting the age of majority, prior existing marriage, force, and physical incapacity. The only possible grounds appears to be fraud. However, I think this would be a stretch. In order to be fraud, the misrepresentation must go to “the essence of the marriage.” Just because two people do not get along is not sufficient reason. Even if one of the parties was an alcoholic, drug addicted, just all-around bad person, this does not result in grounds for annulment. Likewise, not enjoying sex, or not wanting to have sex with a partner, is not grounds.

    Another possible avenue would be to see that your depression was such that at the time of your marriage, you did not fully understand what you were doing. One of the grounds is unsound mind. You would have to prove that you were unable to understand the nature of the marriage, including the obligations that come with it.

    The long and the short of it is that you can always plead in the alternative for both an annulment and dissolution. In order to obtain an annulment, you must actually testify in court or have a sufficient declaration that proves the grounds of annulment. In the past, when we felt that we did not have sufficient grounds for an annulment, we would plead both an annulment and dissolution. In the event that the court did not grant the annulment, the court could grant the dissolution. This is what I would recommend.

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  • How are alimony payments determined?

    I am contemplating divorcing my wife . I am researching what I will be going through and how to protect myself...

    Richard’s Answer

    Temporary spousal support payments are determined using a program such as Dissomaster. Because of the high volume of cases and the need to get them through the system, the courts use a computer program to determine a support amount on a temporary basis. Spousal support is based upon your wife’s need and your ability to pay. It is income driven, not expense driven.

    Your question on a permanent basis revolves around Family Code 4320. There are a number of factors a court should consider:

    (a) The extent to which the earning capacity of each party is
    sufficient to maintain the standard of living established during the
    marriage, taking into account all of the following:
    (1) The marketable skills of the supported party; the job market
    for those skills; the time and expenses required for the supported
    party to acquire the appropriate education or training to develop
    those skills; and the possible need for retraining or education to
    acquire other, more marketable skills or employment.
    (2) The extent to which the supported party's present or future
    earning capacity is impaired by periods of unemployment that were
    incurred during the marriage to permit the supported party to devote
    time to domestic duties.
    (b) The extent to which the supported party contributed to the
    attainment of an education, training, a career position, or a license
    by the supporting party.
    (c) The ability of the supporting party to pay spousal support,
    taking into account the supporting party's earning capacity, earned
    and unearned income, assets, and standard of living.
    (d) The needs of each party based on the standard of living
    established during the marriage.
    (e) The obligations and assets, including the separate property,
    of each party.
    (f) The duration of the marriage.
    (g) The ability of the supported party to engage in gainful
    employment without unduly interfering with the interests of dependent
    children in the custody of the party.
    (h) The age and health of the parties.
    (i) Documented evidence of any history of domestic violence, as
    defined in Section 6211, between the parties, including, but not
    limited to, consideration of emotional distress resulting from
    domestic violence perpetrated against the supported party by the
    supporting party, and consideration of any history of violence
    against the supporting party by the supported party.
    (j) The immediate and specific tax consequences to each party.
    (k) The balance of the hardships to each party.
    (l) The goal that the supported party shall be self-supporting
    within a reasonable period of time. Except in the case of a marriage
    of long duration as described in Section 4336, a "reasonable period
    of time" for purposes of this section generally shall be one-half the
    length of the marriage. However, nothing in this section is intended
    to limit the court's discretion to order support for a greater or
    lesser length of time, based on any of the other factors listed in
    this section, Section 4336, and the circumstances of the parties.
    (m) The criminal conviction of an abusive spouse shall be
    considered in making a reduction or elimination of a spousal support
    award in accordance with Section 4325.
    (n) Any other factors the court determines are just and equitable.

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  • In family law, can a party waive their right to come back to court to modify?

    I am battling my Ex once again in court. Happens every year - sometimes more than once per year. She loses - but keeps coming back. So I'm looking at creating a stipulation between us, and part of that would be to include a waiver by BOTH of...

    Richard’s Answer

    In California, child support is one of the most protected rights. As such, a party cannot waive their rights for the court to order child support in appropriate circumstances. However, you are correct in that there must be a substantial change of circumstances. The most logical way to keep your ex from seeking to modify child support improperly is to have a stipulation that provides that attorney’s fees should be paid to the prevailing party. In other words, if she does not sustain her burden of showing changed circumstances, she has to pay all of your attorney’s fees. It is my belief that the only way you can discourage her from going back to court frequently is to make her pay your attorney’s fees.

    It is also my understanding that child support, in the state of California, is not expense driven, but income driven. The computer software that determines child support is income driven. The only expenses that count are those that affect that income, such as mortgage interest deductions, real property tax deductions, etc. It would be unfair for one spouse to say that he/she has more expenses and therefore needs more support. Likewise, the payor parent could not have huge expenses to defeat the other party’s claim to child support. The support schedules make it very clear that a set amount of support is ordered. Both parties have to adjust their expenses accordingly. The support amount dictates how parties should budget their money, not their expenses.

    While your suspicions about her employer may be correct, you would be embarking on a very expensive course of action trying to prove the same. Think twice before you involve her employer in your legal battle.

    I am concerned with the fact that you have mentioned your daughter’s approximate age at 21. The age of majority, in California, is 18 unless the child has not graduated high school but has not obtained the age of 19. Apparently, your statement leads me to believe that your daughter is disabled to the point of qualifying for adult child support. Adult child support is governed by Family Code 3910. That area of law is not litigated that often and requires the expertise of an attorney to properly navigate you through the process.

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