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Stephen Isaac Gassner

Stephen Gassner’s Answers

1,153 total

  • A tenant made false accusations of sexual battery against me as the manager, should i share text messages with the police ?

    Stephen’s Answer

    You originally classified this question under domestic violence. But unless you and the tenant had a dating relationship, or cohabited, it is not domestic violence. To get relief from the police, the tenant would have to help the police gather sufficient information to prove the case beyond reasonable doubt. Otherwise, the police have little power other than to ask questions to see if they get more evidence.

    When you are accused of a crime, it is typically the worst possible thing to talk with the police. Most convictions rely upon the statements of the accused. Your statements and the text messages could potentially be misunderstood by the police, and lead to an arrest. Accordingly, unless I knew more about the case, the best "general" advice is to not talk with the police at all. If you want to get an attorney to help you, then there are conversations that the attorney could have with the police that would not incriminate you.

  • How can I make it official as gift money? How hard is it for divorce case?

    Stephen’s Answer

    Read Marriage of Ciprari. You have to trace the gift from your parents (can you get their bank statement and yours, and match the amounts; attach the underlying evidence to a declaration that you sign. Don't offer the declaration unless you are challenged. There is a big difference beween a one-time gift and a regular gift. Regular gifts can be construed as income for purposes of calculating support. There is no form. Of course, if the money is disclosed, then the opposition can use that informatino to make a claim that you have access to pay your attorneys fees and theirs. (Read Kevin Q.) That can be a liability. But under Family Code 2104 you are supposed to disclose the transaction; but the only liability for not disclosing the transaction is a potential sanction. Not conversion of the gift to community property.


    Stephen’s Answer

    Support obligors who want to avoid paying support use all sorts of methods to conceal their money. One way is to put the money in the name of their spouse. But you can hardly ever be certain of it. If the obligor is a W-2 employee, all you really need to do is issue an Income Withholding Order. If you're looking for child support, get the Department involved. They have ways of tracking income that you don't have, such as checking with the Franchise Tax Board. But if the obligor is self-employed, you need to get more creative.

    One such tool is to use a private investigator to find the new wife's bank accounts and issue a writ of execution. California is a community property state, so money acquired by his wife during the marriage belongs to their community estate. Go ahead and levy. But be careful to assemble your proof of the community estate before you do it, because you can anticipate receiving a challenge in court. It's best to get an attorney to help you with this.

  • Me and my wife bought a house after we got married I file for divorce. Can she try to take my share of the house from me legally

    Stephen’s Answer

    Well, there is a whole topic in Family Law called the "Family Residence." There is a lot of law on the topic. Basically, if there is a co-owned residence at the time of divorce, there are only four ways to deal with it. (1) One spouse buys out the other spouse's equity, (2) Sell the house and divide the proceeds, (3) Defer the sale of the property, and impute spousal support and/or child support as if it were received by the spouse who occupies the residence while the other spouse's equity is tied-up in the house, or (4) any other written agreement that you make with your spouse.

    Now, another legitimate question, that you might be asking, is "who gets to occupy the residence during the divorce?"

    A court has broad discretion to award exclusive management and control of a residence to either spouse, based upon such circumstances that may exist. The spouse who occupies the house is liable to make the mortgage payments unless the court orders the other spouse to pay them. At the end of the divorce, the spouse who occupied the house during the divorce may have an obligation to pay the other spouse half of the fair rental value of the house. For that matter, if the non-occupant spouse pays the mortgage payments for the occupant spouse during the divorce (e.g. after the date of separation) then they are entitled to be reimbursed by the occupant spouse for such mortgage payments they made. That liability can last beyond the date of entry of judgment as well.

  • Can spouse get half my house. Deeded to me as single woman and 2 months later it recorded and I had just gotten married

    Stephen’s Answer

    I hope I am answering the question you meant to ask. First let me get the timeline straight.
    * First you acquired the residence and the prior owner signed and delivered a deed to you.
    * Second, you got married.
    * Third, you recorded the deed.

    The question is whether the home is your separate property. The character of property, whether community or separate, is determined by the date of acquisition. The question is when you acquired the home. I think you acquired it on the date that you received the deed, not necessarily the date that the deed was signed, nor the date when the deed was recorded, but when you received it from the prior owner.

    Here's the problem. Evidence Code 621 states that beneficial title is the same as record title, unless disproved by clear and convincing evidence. To produce clear and convincing evidence, we look to other documentation of the transaction. Did you mortgage the property? Was it a gift? Did you assume a prior mortgage?

    If the property was a gift, then it does not matter when you received or recorded it. Gifts to a spouse are the separate property of the spouse -- irrespective of when the gift was received. The character of a separate property residence can be "transmuted" by subsequent transactions,sdd such as a refinance.

    Do you have written evidence showing when you RECEIVED the deed? Was it from a family member, an inheritance, a gift, or a purchase? If you paid for the property, then you might want to produce things like the check or wire transfer statement, the escrow closing statement, mortgage contracts, a deed of trust. You may have to go back to the seller, your escrow company, your real estate agent or broker, your bank, or public records, to find all the written evidence you need.

    And then, still, the matter could potentially come down to credibility.

  • In child custody cases, do I claim health insurance coverage when it is provided by my spouse?

    Stephen’s Answer

    1. Fill out the FL-150 form precisely and accurately. Provide exactly the information requested, and no more and no less.
    2. If there is insurance available for the children at reasonable cost through employment (I think that means less than 5% of your net pay after required tax withholding), then you may be ordered to obtain the insurance for the children, even if you do not disclose what insurance is currently available.
    3. In some low-income cases, it is better for the children to be covered by Medi-Cal than by the insurance you can afford. Some judges will decline to require you to pay for insurance that would provide less coverage than Medi-Cal.
    4. If the custodial parent provides health insurance for the kids, then you may demand a copy of their insurance cards -- in case they require medical attention while in your care.

  • Superior Court Restraining Order?

    Stephen’s Answer

    Well, at this point you probably have too many issues to sort-out online. You've described a Domestic Violence Protective Order issue, some real or fake (or in-between) allegations that have been made that you do not know about, a hearing you missed, involvement of social workers in the business of protecting children, and an urgent need to go to court without exposing yourself to additional harms. Did I miss anything?

    1. The matter concerning the Domestic Violence Protective Order. You may get a copy of the court file by going to the court clerk and requesting it, or you can have an attorney download it for you. You are able to view the allegations that were made as well as check to see if a permanent order was issued. You have a valid reason for missing the hearing, which means that you have the ability to possibly submit your own emergency request to void the protective order and arrange a fresh hearing for your opponent, so that they can prove their charges. On the other hand, you would also have the right to give your side of the case, to cross-examine your adversary, to call witnesses, to introduce exhibits, and to provide your adversary with documentation (if there is any) to seek their explanation. You will first need to determine whether or not a protection order was even issued, and if one was, you will want to know what its terms are. If it indicates that you have to give in your guns and ammo, then you can take them to any police station or licensed gun dealer for safekeeping while you go through this procedure. If it does not state that you have to turn in your firearms and ammunition, then you do not have to.

    2. If you're a great parent, then stay in touch with the social worker everyday. If you're not such a good parent, then maybe wait for the social worker to contact you. If the social worker is favoring you right now, then staying in touch will probably benefit you. Provide them with all information they need to prove that you are a capable parent. You'll need to talk with a capable child custody attorney to figure out how to please the social worker by demonstrating high quality parenting skills. If you cannot afford an attorney, read a book.

    3. Regarding law enforcement. It's usually best not to begin any kind of contact with law enforcement. If they contact you, it's best to elect not to speak with them for any purpose other than to allege that another person engaged in criminal behavior. But be careful that your nose is clean. You can login to the court website and search by your first and last name, to see whether there have been any criminal charges filed against you. If so, then definitely do not contact law enforcement. Rather, have a lawyer take care of that for you. Definitely post in the category of criminal law if this issue becomes significant -- but it doesn't sound like it will.

    4. Has your ex committed domestic violence against you? Look up the definition of domestic violence by googling family code 6320. You might want to file a domestic violence protective order request yourself. If so, look-up DV-100 on google and get started.

    There are additional issues, but I've typed enough. Find an attorney. You'll need one for this situation.

  • My ex how’s me 200,000 in june? He doesn’t want to pay saying he has no money, but owns a store and three properties.

    Stephen’s Answer

    There are many options to enforce a judgment. Which one is best requires the analysis of an attorney who is familiar with judgment collection. Hopefully, as Mr. Levine pointed out, there might be an asset that you can secure with the judgment debt, such as the three properties. There might be personal assets, such as motor vehicles that can be used to secure the debt. If he still owns an undivided share of a residence, a stock account, a pension plan, a 401(k). Getting a judgment paid by a dishonest business owner can be a very hard thing to do. There are firms that specialize in collecting judgment debts, and they will typically charge you about 50% of what they're able to collect. If you do not have money to hire a lawyer by the hour, then that might be the way to go.

  • If my ex wife has my car thats in my name and purchased before we got married can i get a back and what are the steps?

    Stephen’s Answer

    You will be very lucky if this is your only issue. There are more factors to examine than just whether the car belongs to your separate property estate. For instance, did you make payments towards a loan on the car during the marriage? Until trial, the court generally looks at management and control of an asset from a practicality standpoint. Does she need the vehicle to get to and from work? At the end of the divorce, if you have a trial rather than settling, your separate property interest will be examined along with the community interest, and any outstanding loans, at the time of trial, before awarding the asset one direction or the other. By the way, if the vehicle is yours outright, and she continues using it, did you know that you can charge her rent? See Marriage of Watts. But all of this might relate to an issue pertaining to child support or spousal support, so it's best to analyze your whole position carefully before jumping to conclusion about just one or two issues.

  • How can my soon to be ex, legally charge me Rent on our home ?

    Stephen’s Answer

    Well, there is the WATTS issue, that if a spouse occupies a community property house, then he or she is obligated to reimburse the community estate for the fair rental value. The equal and opposite argument is EPSTEIN credits. That's where a spouse pays a debt that belongs to the community estate, and then demands reimbursement of the payments. Epstein and Watts are discussed in Marriage of Jeffries. That dovetails into the Family Code 2640 reimbursement for separate property contribution to acquisition of a community property asset, e.g. paydown of the mortgage after the date of separation. A completely different way to look at it is described in Marriage of Bonvino, where the court of appeal addresses the commingling of separate and community property as it relates to the appreciation in a residence.

    If there are more than a few thousand dollars at issue, then it's probably worthwhile to have an attorney figure out your best bargaining position, or best argument to present to the court.