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Linda Calderon Garrett

Linda Garrett’s Answers

286 total

  • What happens to the visitation schedule if our child is in the hospital?

    I have sole legal and sole physical custody of my son. He was struck by a vehicle and has been in the hospital and will be there for a week. Do we need to stick to the visitation schedule even while he is an inpatient? His mom usually has one over...

    Linda’s Answer

    Your question presents an issue that comes up in almost every instance where there is a visitation order in place--vis-à-vis, what do parents do when there is an unforeseeable event that is not addressed in the visitation order. Surely, a child being his by a car and being in the hospital for a week are such examples.

    As a general rule, when a court order is silent on a particular situation, I always go to the legal standard--what is in the child's best interests. I believe everyone would agree, including every judge in the nation, that a child's heath trumps everything--even court-ordered visitation. For instance, it would be unreasonable for the child to leave the hospital so that he can spend time with mom. I would even go so far as to say it is against the child's best interests. Instead, it would be reasonable for mother to see the child while he is in the hospital. No doubt, it would help the child to have both parents around him as much as possible--since both a car accident and a one-week hospital stay are emotionally-disturbing/traumatic events. I can see no court or judge holding you in contempt for not following the visitation order under such circumstances. At best, all you can do is use your best judgment and act in the child's best interests--which includes following doctor's orders (even if that conflicts with court orders).

    Hopefully you and mom have the type of parenting relationship that allows for flexibility when necessity calls for it. This would definitely be such an instance of where flexibility is need--if not required.

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  • How long does a x spouse have to cohabitate before a judge will consider modification or termination of alimony?

    My divorce was final 3 months ago, and the x spouses is now living with her boyfriend; which can easily be proven by a private investigator. My understanding she is using alimony ($2,000 a month) to pay all their expenses, As he is unemployed and...

    Linda’s Answer

    I thought I would respond to your question because I believe that there is a bit more to say on this particular issue. First, as an attorney, I always refer back to what the Judgment says. For instance, a judgment might say "spousal support to death of either party or remarriage of the payee"; or, it may say, "fixed at $X/month for a period of 4 years." In other words, determine the starting point on this issue before proceeding to the next step. The next question I would be asking is how was that amount arrived at--by agreement or by the court evaluating the factors in Family Code 4320? If you are not familiar with these factors, then you should familiarize yourself with these factors--for they are the factors a judge MUST consider when determining to deny or grant spousal support.

    In other words, there are different ways that a permanent support order can be achieved. Spousal support issues are very complicated issues--and depending on whether or not they were addressed at the divorce stage, you will (or will not) have a basis to request a modification of permanent spousal support.

    Finally, you indicate that you are paying $2,000 per month; and that they are both possibly both using drugs. In California, $2,000 is not enough to both pay living expenses for two people and pay for drugs. I mention this because it's possible the boyfriend may have other sources of money, e.g. SSI, which is a factor in "cohabitation" cases.

    Given that you are paying $2,000/month, I believe it is wise to at least consult with an attorney to discuss the possible strengths and weaknesses of filing a motion to modify support. Good luck!

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  • I been married for 28 years but my husband decided to separated. How much is the alimony the I have to received from him

    He just got mad at me and he said no more is done I don't want to know nothing about you. My joungest is 21 so we don't have kids to support. I work but my income is really low especially now 9 hours a weed wage $10,60 he's wage a week is $800 or...

    Linda’s Answer

    A marriage of 10 or more years is considered "long term." This means that if the facts support it, a judge could order long-term "permanent" spousal support for you. Please note that there are TWO forms of spousal support--temporary and permanent. Temporary support is procured by Party A filing a petition (Form FL-300) with the Court and requesting temporary spousal support. Temporary support usually lasts until the divorce is finalized. . As a general rule, permanent support starts once the divorce is finalized. Again, these are general rules of thumb. (And, as you know, with every rule, there are exceptions.)

    Temporary support is also known as "temporary guideline spousal support." It's called TGSS because software is used by the court to calculate temporary spousal support during the "temporary" period. Permanent support is not "calculated." Instead, a judge evaluates the factors outlined in Family Code 4320.

    If you wish to procure temporary spousal support, then you must file a petition for temporary spousal support. If you can't afford to hire an attorney, maybe consider hiring an attorney as a legal coach--to at least get you started in the direction. Good luck.

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  • Can my marriage be annulled after 5 years if my ex wife is in a domestic partnership in another state?

    I was married for 5 years and i am now trying to get divorced. My ex wife just moved out of state and she disclosed to me that our marriage was not valid because at the time she married me she was in a domestic partnership in a different state ( w...

    Linda’s Answer

    I just completed a trial in San Francisco dealing with nullity. Because of the overwhelming amount of evidence my client was able to provide, the nullity of marriage was granted. As stated by one of my colleagues, nullity cases are extremely difficult to get--because the requirements are very specific. Also, even if your wife was a bigamist (MARRIED to someone else), she was still considered married to you.

    Also, from my experience, people use the term "domestic partnership" even though they don't qualify as registered domestic partners. For instance, in California, domestic partnership are allowed for same-sex couples and hetero-sexual couples age 65 and older. I can't tell you how many people since 2003 have contacted me to dissolve their "domestic partnership" even though they are under age 65 and hetero-sexual couples. For instance, in San Francisco, these people tend to confuse being registered as "domestic partners" in the County of San Francisco (wherein they are able to receive health benefits from the other party) with being registered by the State of California as a "domestic partner." In other words, the term "domestic partner" is defined to California statutes, and not a turn of phrase.

    As you can see, there is nothing easy about family law. Based on the what you wrote, I agree with my colleague that you will have a very difficult time getting your 5-year marriage annulled in California.

    May I suggest that you at least speak with an attorney--if even for an hour--to understand what legal issues actually need to be resolved--so that you are filling out Petition for Dissolution of Marriage (form FL-100) correctly. I have provided a link below about legal coaching as well.

    Excellent question. Thank you for posting it on Avvo

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  • I'd like to get copies of bank statements going back 5 years from ex. Might requesting them in electronic form be the way to go?

    At 4-6 pages per statement x 5 years, the idea of having to print out all those on paper makes me cry for a tree and the task of mining through all that paper for the specific facts I need would in itself be a more expensive than I could pay an at...

    Linda’s Answer

    Having myself navigated mountains of bank statements myself throughout the years; and, like you, wishing to live as "green" as possible, I understand and sympathize with your plight. Ms. Russo is correct in that you can request bank statements electronically--via subpoena, e.g. asking that the statements be downloaded to a disc or thumb drive.

    The reason I am answering this question, even though it's been answered by other attorneys, is because I am "reading between the lines" in your question. For instance, I am asking myself "why does he need 5 years of bank statements." Normally, when someone goes back in time this far, it's because they are trying to find something in the statements, e.g. undisclosed income, problematic spending, etc. And, do you intend to introduce some (or all) of the bank statements at court? That's the second question I am asking myself.

    You may want to consider some legal coaching if you are unable to hire an attorney. Using business records in a trial or hearing is a bit complicated; and, there are specific evidentiary rules that must be followed if you intent to later use them as evidence in your case. And, legal coaching may help you strategize ways to best use all financial documents in your case, e.g. credit card statements, bank statements, etc.

    Excellent question. Thank you for posting it on Avvo.

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  • My ex wants me to consent to passport for our 6.5 yr old daughter, I have concerns. will the courts order me to consent?

    currently 50/50, and we have 10day vacation per year during school summer break. I have concerns because, I do not know when he is going, for how long, where he will be going, and during his vacation times, he doesn't allow me quality phone calls,...

    Linda’s Answer

    The courts will not "order" Parent A to consent to a passport for a minor child if Parent A can prove there are concerns with flight (or kidnapping) of a child. A concern would be, for instance, if Parent B has dual citizenship in another country. Normally, unless a court order states otherwise, 50/50 "joint legal custody" does NOT presume either parent can remove the child from the country--let alone the state of California--without Parent A's written consent. If a court order does not state otherwise, the only way Parent B can require Parent A to work with Parent B to have a passport issued for a child if, and only if there is a court order--this would of course presume that Parent B has successfully PROVEN that there is no flight (kidnapping) risk to the child. Note, also, that an order can include: a request that the Court include certain specific orders in the order, e.g. a bond for a certain amount (to cover attorneys fees should Parent B violate the order), requirement that under all circumstances California retains jurisdiction on all issues concerning the minor child, etc. (Please note that this assumes the other country is part of the Hague Convention--if not part of the Hague Convention, then that country can IGNORE the California court order.)

    In sum, the simple answer is: Court will not "order" Parent A to sign a consent form if there is sufficient proof that dad is a flight risk--and just because Parent B has 50/50 custody--does not extend to international travel.

    If you can't afford an attorney, you may want, at the very least, to work with an attorney who provides legal coaching. I have included a link to explain more about legal coaching.

    Excellent question. Thank you for posting it on Avvo.

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  • How can I tell if my ex has filed a response to my petition for divorce?

    It will be 30 days since he has been served on Nov. 26th. I am wondering what the next step would be if he files a response before the 30 days.

    Linda’s Answer

    Another way to learn if your spouse has filed a Response (form FL-120) to your Petition for Dissolution of Marriage (FL-100) is to visit the San Francisco Superior Court's website (see link below). By entering your name or the case number you will see a complete history of your case. If he or she filed a Response, it will show up on the court's website. Also, t his is an excellent way to stay current on your case--esp. if there are any future concerns about your spouse being sneaky and filing anything "behind your back,"

    Your second question, "what the next steps would be if he files . . ." are more difficult to answer because of I am not quite sure what you are suggesting by the work "before" as it relates to your statement, "before the 30 days." When a person files a timely Response (within 30 days), they have protected their legal rights. The "next steps" can be all kinds--depending on the facts of your case, e.g. settlement, someone files a motion for something (e.g. support, custody, visitation re kids, etc.). At the most basic level, the "next step" is that the petitioner (you in this case) prepares and "serves" on the spouse a series of documents known as "preliminary financial disclosures (forms FL-160 (or FL-142), FL-150, FL-140 and FL-141). May I suggest you purchase a book called "How to do your own divorce in California" or a similar type of book. They are available in any bookstore and on Amazon.

    Finally, if you cannot afford an attorney, you may want to consider some legal coaching by a licensed family-law attorney. Legal coaching is the second best thing to hiring an attorney to represent you. I have also provided a link about legal coaching.

    Thank you for posting this excellent question.

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  • My daughter is 14 and has lived with me for all those years I am going to send her to live with her dad in Georgia.

    he wants me to sign over Guardianship. What are my options?

    Linda’s Answer

    I wish to add just a few more points about your question in the event you wish to make your decision "legal"--which is what father appears to want to do be asking you to "sign over guardianship.": First, is there a current custody order? If so, does it say anything about whether or not California Courts have "exclusive jurisdiction" on the custody issues? This is important because should any changes need to be made and/or motions filed now or in the future, you (or dad) need to be sure exactly which court is the appropriate court to file--esp. if your daughter has moved to Georgia. Second, if their is no prior court order or a court order that addressed jurisdictional issues, you may want to speak to an attorney in Georgia to determine what the laws are in that state regarding future court filings. For instance, maybe it IS referred to as a "guardianship" in the state of Georgia. (In California, that is not the case.) In other words, you may wish to do a little research on how the laws in Georgia deal with your set of facts--just in case a motion (or whatever they call it in Georgia) is filed at a later date.

    A final word: obviously, there are many different reasons why a 14-year old would go live with the other parent. It would be extremely unwise of me (and no benefit to you) to speculate the reasons. Based on my professional experience, it is worth it for the parents to have a "Plan B" in place in the event "Plan A" (sending the 14-year old to live with dad) doesn't work out. For instance, what if the reason a child goes to live with Parent B is because the child feels they will do much better living with Parent B (than with Parent A); then, after a few months, the child realizes they are doing no better--or, may be doing even worse--than when they were living with Parent A. For this and many other reasons, a Plan B is also something that may want to be considered.

    Good luck!

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  • Property ownership after interspouse transfer deed?

    during marriage, husband signed an Interspouse Transfer Deed for the house he never lived in and did not contribute any penny. Now we divorce, am I the sole owner of that house? Moneywise,I paid the house using my income during marriage, do I have...

    Linda’s Answer

    • Selected as best answer

    I wish to add my "two cents" to this important question. It is a common question in divorce cases--to which there are no simple answers--ever. In fact, this question relates to a very complicated area of family law. For instance, Family Code 721 (as referenced by one of my colleagues) relates to "fiduciary relationships" between husbands and wives. In a nutshell, the law "imposes" the "highest good faith and fair dealing on each spouse and neither shall take any unfair advantage of the other." For example, sometimes (not saying this is true in your case), Party A may tell Party B that they will get a lower interest rate if only Party A applies for the house loan. Party B complies and signs an interspousal transfer deed when the loan docs are presented to him/her. (Unbeknownst to Party B, Party A really intended to have Party B transfer their interest in the home.--and just used the "lowest interest" rate argument as an excuse to get Party B's compliance) In another instance, Party A "handles all the finances and stuff" and Party B simply complies with what Party B asks him or her to do--trusting that whatever Party A is doing is a good thing for the community. For this and many other reasons, the law requires that all transactions between spouses be done with "the highest good faith."

    There is a second family code that is more on point as it relates to Party B transferring his/her interest in community property to Party A. Family Code 852 ("requirements of valid transmutation) enumerates several requirements to make a transfer of real property from Party B to Party A valid. It states, "A transmutation of real or personal property is not valid unless made in WRITING by an EXPRESS declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." Many would think that the signing of an Inter-Spousal Transfer Deed is enough--but it isn't. For example, Party B may have signed the ISTD for purposes of the community securing a lower interest rate only. This is why Family Code 852 is also tied in with Family Code 851 (aka "Transmutations Subject to Fraudulent Transfer Laws.") In a nutshell: If Party A wants to prove the home is their separate property--the court needs to be confident in their mind that 1) no fraud was involved; 2) Party B knew exactly what they were doing, e.g. that they truly intended to have no interest in the home--should the parties ever divorce (or die); 3) Party B's consent was given freely and knowingly-- and that Party B had a chance to speak with an attorney before he or she signed the ISTD. And, this is why this area of law is complicated. In some instances, parties need to set a trial on this one issue in order to resolve it.

    Something to keep in mind is this: anything "acquired during marriage" IS community property--title by itself does NOT dictate how the property is "characterized." So, if one of the parties does something to "change the character" of an asset from community to separate property, this action is known as a "transmutation"--changing ("transmuting") the property from community property to separate property (or vice versa as is sometimes the case). This is why it is customary for banks to have a spouse sign an ISTD whenever the parties are married and it is the intent of the parties to just list one party on the deed.
    By having your spouse signing an ISTD--you attempted to "transmute" the "character" from community property to separate property.

    In your case, if you really feel that the house is your separate property, then it makes sense to speak with an attorney. If you can't afford an attorney, that know that there are many attorneys who provide consultations (and/or coaching) on an a-la-carte basis. I put a link below about coaching (a type of unbundled legal service.) Good luck

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  • If I choose move forward since my Ex wife came after More child Support, is it likely to receive a lower cost.

    My Ex wife and I originally agreed on 800 for child support a month for our 2 children; then she had another child with a new man and came after me for more; b/c of my pay it was increased but we have then agreed on 1050.00 a month. She has now a...

    Linda’s Answer

    I see a pattern here--she asks for more money and you end up agreeing. It would make sense for the mom to take a third "bite at the apple", e.g. asking to increase support for a third time in hopes that you will agree for yet a third time. Sometimes going to court is the best way to resolve issues. (The majority of the time I recommend the parties settle the matter so that don't have to go to court--but in this case, it appears to be the opposite)

    Given that you net income per paycheck is $600 tells me a few things: 1) you should have the court make proper calculations; 2) too much is being taken out of your paycheck; and 3) you need some assistance with ensuring the court (or the parties) are reaching the correct guideline calculation for child support.

    My sense is that you may not have an attorney because you can't afford one. While hiring an attorney is always the best solution--in many instances, it is not the most impractical. No doubt, it would be very difficult to hire an attorney to represent your interests if you can't afford an attorney to begin with. (I now I am stating the obvious here.) As an alternative, you may want to consider coaching services. Coaching services are a form of 'unbundled legal services.' ULS are a type of a-la-carte legal services. In other words, you can work with an attorney to coaching you through the process, e.g. answer your questions, run some Dissomaster calculations for you, prepare counter-arguments to mom's allegations against you (re income), figure out ways to impute income to mom, figure out ways to discover if mother is hiding income, and so on.

    I have put a link below that explains what unbundled legal services are. Good luck!

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