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John Henry Perrott
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John Perrott’s Answers

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  • How to collect my 25% share from my ex-wife's IRA account per our divorce decree? The order states I get 25%.

    My divorce was final on 12/21/2009 and the dissolution order states that 25% of the IRA balance goes to me and 75% goes to my ex. It's 2015 and she has not given me my 25%. I have a copy of the IRA prudential bank statement from September 2011 and...

    John’s Answer

    it sounds like you need to file Request for Order seeking enforcement of the Judgment. You should also ask the Court to Order her to pay you interest and attorney's fees. Most of the time, when the other party finds out that there is a Court Date coming up and the Court might award something they do not want they will show up and finally try to resolve things.

    I do not suggest that you try to handle this on your own. After 6 years of delays it sounds like your ex could be a difficult person. You should consult in person with a good Family Law Attorney. Show the Judgment documents to the attorney, who will be very interested in the exact language used on the Judgment awarding the 25% of the IRA to you. You may also want to look through your Judgment to see if there is a clause granting attorney's fees to the prevailing party if they must go too Court to enforce the Judgment's terms.

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  • Can I stay at our house after divorce?

    Our house is a marital property that we bought less than one year ago. Now we have decided to get divorced after 10 years.I am a stay-at-home mom with no income. Can he force me to leave the house? Can I get exclusive occupancy? Who is responsible...

    John’s Answer

    You need to speak with a good Family Law attorney about these things. Without knowing more specific facts and details, like how much your husband earns, it would be a lot like guessing to try to answer whether you can afford to keep staying in the house indefinitely. Avvo is a great tool, but you should not put out the kinds of facts and details you need to get clear answers to questions like these onto a public internet website where the whole world can read about it.

    A good attorney can run a DissoMaster to estimate what the spousal support and child support will be, and advise you about the probability that if you stay in the house after your husband leaves you will need to pay the home expenses using the support you are paid. Your husband cannot just force you to leave the home, and the law is not against you, but the answers are complicated and fact intensive. Go see a good attorney.

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  • QDRO for CalPers pension in divorce

    Must a QDRO (related to CalPers pension) be issued by a court ? Thank you.

    John’s Answer

    The short answer is "yes."

    The longer answer includes that retirement plans get special treatment under the tax code, and if you do not do things in the precise manner allowed by the Internal Revenue Code bad things, like penalty taxes for early withdrawals, can happen. Further, most retirement plan trustees (like CALPERS) are saddled with legal obligations regarding how they manage retirement plan money, so they just will not do things like divide the plan assets just because you ask them to. Nevertheless, if drafted properly and in the form of a Court Order signed by Family Court Judge who has jurisdiction over the parties, a Qualified Domestic Relations Order can transfer retirement plan money between married persons without either causing bad problems with the Internal Revenue Service or violating the rules that bind retirement plan trustees, like CALPERS. CALPERS and the IRS will respect a valid Court Order.

    It is likely that there are numerous additional details and/or wrinkles to the longer answer. Other counsel's point, that CALPERS actually does not accept QDRO's and only takes DRO's, is a good example. The point a litigant should remember is that this is an example of an area in the law where if you get it wrong you could suffer really bad consequences (like taxes!), and it is totally worth your money to hire a QDRO expert to dot all the "I's" and cross all the "T's". Do not try to do this part of your divorce by yourself.

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  • Ques about post nups & Alzheimer's plus divorce

    Two questions: 1. Just got a post nup in place (both of us had separate legal counsel, signed after 2 months of consideration & thought) because I recently discovered my 67 yr old husband of 38 years (we have no children) had a long term hoo...

    John’s Answer

    Regarding question #1: In order to comment about divorcing right after the post nup it really would be vital to actually read the language in the post nup.

    Regarding question #2: If he had Alzheimers or Dementia when he signed the post nup you may have some problem enforcing it. Without knowing what kind of proof/evidence of his competence at the time of signing you may have it is hard to say. Also, it would again be helpful to be able to actually read the post nup -- because spousal support can be effected by his mental health and ability (or inability) to work. Did the post nup terminate jurisdiction over spousal support?

    You need to consult with a competent attorney & have him/her read the post nup -- then ask these question.

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  • My daughter is at her fathers but he wont let me see her or other family member no phone calls and etc. What can I do?

    I became homeless he said she could come there he may or may not be the father. He wont let me see her. On weekends birthday or holidays. We didnt go to court. Ever since she was born she has been with me until middle of her kindergarden year. Whe...

    John’s Answer

    The other two attorneys make some very good points. Mr. Burns point about a drug test is spot on -- a hair test showing you have not used in the last 3 months can be very helpful with the Courts. Ms Powers' point that you should consult legal aid is also on point.

    Pulling yourself up from being homeless really should be your first step.

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  • Filed divorce petition in foreign country (India), Can I file in California as well?

    I have filed divorce petition in India through my lawyer. My case is register and still ongoing. My wife came to US on different visa after I filed. Can I file for divorce in US, since she is here (not in the same state), even though my petition...

    John’s Answer

    If she has fled India to avoid its jurisdiction you may need to file in California. I suggest that you fully inform the California Court about the Indian filing when you file your initial papers. Your dilemma, that she is moving around, but you just want to be divorced, will be understood by the California Court.

    Of course there will be jurisdictional issues, if there are assets, like land, in India. Since you have an ongoing case in India you should ask your Indian attorney what issues filing a case in California might cause before you go ahead and file.

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  • I'm looking for family law lawyers in Oakland Bay Area that have experience with marital tort litigation.

    Over entire marriage wife and others implemented strategy to "destroy" me by humiliation through undisclosed rampant sexual activities -- often compensated wo/disclosure. 3rd parties incld. Mngrs, Suprvs, prestigious hospital, co-workers, etc. Sh...

    John’s Answer

    • Selected as best answer

    California is a No-Fault State, and Family Court Judges are required to not go down the path of emotional harm based on infidelity. You may want to read Family Code 2335 and consider the legal hurdles that you face if you want to recover, from your cheating wife, for the emotional pain.

    If, on the other hand, you are looking to get a financial recovery for her hiding money and/or looking to get a 50% cut of whatever funds these alleged illicit lovers paid to her during the marriage, then the Family Code is actually be on your side. You should consider reading Family Code 721(b), 1100, and 1101 for starters. If you can show Oppression, Fraud, and/or Malice by clear and convincing evidence regarding the $250,000 you may be able to get an order for that entire $250,000.

    In your Dissolution Action I suggest that you do substantial and extensive discovery. When you find hidden money you can probably get some recovery out of her from the Family Court. Also, Spousal Support is based upon many factors, and intentionally causing you great harm can be made to fit into those factors.

    You are not divorcing any of the men that she cheated on you with, so a regular torts attorney should be able to help you with suing any of those guys you can find, if they can state a valid cause of action.

    Under some narrow circumstances you can bring a separate tort action against the person that you are divorcing, but the emotional pain and humiliation you are feeling now sound a lot like the irreconcilable differences that support a divorce.

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  • Family Court Motion to Reconsider. Is there a form?

    If I want to submit new facts after the judge has made an order, can I file a motion to reconsider? If so, how does the process work. I know we have 10 days after receiving the notice of judgment entry I believe? But If my attorney did not subm...

    John’s Answer

    Bringing either a Motion to Reconsider or a Motion to Set Aside is a fact intensive exercise. What the "certain evidence" was that you think should have been presented could be critical to that exercise. Since you apparently do not trust the judgment of your current attorney I suggest that you consult with another competent attorney about this matter. As another counsel correctly commented in his answer to your question, it is possible that your current attorney was protecting you by not presenting the "certain evidence" you have referred to. You really should consult with a competent attorney before filing.

    I am unaware of any special form for a Reconsideration. Form FL-300 should work.

    Finally, it is unclear to me why you would file this as a Reconsideration Motion, when it sounds more like a Set Aside under CCP 473(b) to me. CCP 1008's reference to "new" facts was intended (I think) to refer to facts you did not actually know about at the time of the hearing, but later found out about -- not to facts you knew about but failed to present to the Court.

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  • Family-based people last priority?

    Hi. I just gotta ask: Why are we people from family-based petitions the last s**t when it comes to immigration? I only see the government focusing and passing laws for only two types of immigrants: Illegal immigrants and employment-based immigrant...

    John’s Answer

    Your question showed up in the Family Law section, so I will suggest a few points (I am not an Immigration Attorney). (1) The underlying economic rationale for bringing in employment based immigrants is clear -- they will work hard and pay a lot of taxes. This rationale does not apply with nearly as much force to family based immigrants. (2) Many things in life actually do NOT make sense. It is not even worthy of a debate that bringing in illegals (who by their actions are more heavily weighted as a group towards law breaking than those who obey the law and patiently wait (sometimes 20+ years) to get into this country) over law abiding persons makes no sense. It is actually messed up. Welcome to politics -- where hundreds of thousands of people die every year from tobacco, but since it has a strong lobby that continues, but if a dozen people get an obscure form of cancer from a new food additive it will be pulled from the market overnight.

    Writing your Congressman is good advice -- sometimes a letter from your Congressman (or Congresswoman) can result in your family members immigration papers working their way through the system faster. Just be polite and respectful to the member of Congress that you write to. Good luck.

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  • Family Code 7822

    Under Family Code 7822, what are considered "token attempts" by the parent to communicate with children?

    John’s Answer

    The other counsel provided good answers to this. To determine whether the attempts in your case were "token" attempts rather than the real thing you will need to consult with a good Family Law Attorney and go over the specific facts of your case.

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