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California Legal Protections for Reservists and Active Duty Servicemembers

If you are in the military in any way, you’re likely entitled to various legal protections under California law that — at least in theory — are meant to make it easier for you to perform your military service. These laws allow, for instance, may allow you to resume your old health insurance when your active duty service ends. It may allow you to enjoy a reduced interest rate on loans and other debts when you’re on active duty. There are housing-related benefits as well related to rental agreements and mortgages. In this post, I’m going to describe California’s laws in this area in a very general or high-level way. There are a lot of laws so I can’t go over all of them because if I did, this post would be enormous. As I make follow-on posts over time, however, I will probably hit a lot of these topics anyway. I am going to start this process by describing some common themes or ideas that all of these laws have that hopefully make it so all who are entitled to these benefits actually receive them. When working on cases in this area of California law, the first thing I ask is what kind of military member am I working with? By that, I mean is this person an active duty service member (e.g. Lance Corporal in the Marines), a member of the California National Guard, or a member of the Naval Reserves who has been called to active duty? As with anything in the law, technicalities and definitions like this can be important. The benefits provided are similar,...

Personal Injury Damages in a California Divorce

In a prior post, I went over the definition of “separate property” in New York. Under that definition (Section 236(B)(1)(d) of New York’s Domestic Relations Law, if you need to look it up), one of the things that is separate property in divorce in New York is damages received by a spouse for their personal injuries. In this post, I’m going to go over that same question — namely, is money received for personal injuries separate or not — for California. California and New York are similar politically, but remember that when it comes to divorces, California is a community property state and New York is not. Does that affect the answer? In short, yes. Money received for personal injuries sustained during the marriage is community property in California, but it is not automatically subject to division in the way community property typically is in a divorce. There are three California statutes that apply here, all of which are in the California Family Code. The first is section 780 of the California Family Code which provides the following. This entire statute is important, but I’ve put the super important parts in bold. “Except as provided in Section 781 and subject to the rules of allocation set forth in Section 2603, money and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.” From this, the general rule...

Comparing and Contrasting New York and California Property Division Methods

As mentioned previously on this blog, California is in the small group of US states that use the community property method of property division when it comes to dividing items during a divorce. If you are involved in or around a California divorce case, you know that the terms “community property” and “separate property” are used frequently. As also mentioned previously, the former is divided equally during a California divorce while the latter is not. If you’re interested, community property in California is defined in section 760 of the California Family Code while separate property is defined in section 770(a) of the California Family Code. New York, on the other hand, is not a community property state, but rather uses a property division method called Equitable Distribution. New York is similar to most states in the US in that only about 10 states (mostly in the western US and southwestern US) use the community property method. Unfortunately, this distinction can become confusing to talk about because New York also uses the term “separate property” like California does. However, in place of “community property,” New York uses the term “marital property.” Terminology aside, what also makes it confusing is that the definitions for separate and marital/community property look very similar. For example, in New York, “separate property” is defined in New York Domestic Relations Law section 236(B)(1)(d) as: property acquired before marriage or property acquired by bequest, devise, descent, or gift from someone other than the person’s spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent this...

Transforming California Separate and Community Property (CA Family Code section 852)

When it comes to marriage and divorces in California, one concept that you must absolutely understand is the idea of community versus separate property. The idea is fundamentally very simple. In a nutshell, when you are married, the items you acquire during the marriage are — with a few exceptions — “community property” (see California Family Code section 760). Think of community property as belonging to both spouses equally. In the event of divorce, community property needs to be divided equally. Property that you acquire before or after the married couple separates is “separate property” (see California Family Code section 770) and is not divided during a divorce because it is owned just one of the spouses. Applying this idea in the real world, however, can be complicated for a few reasons. When something was acquired (e.g. during the marriage, before the marriage, etc) is really important. The parties can disagree about that and there is, unfortunately, not always a clear cut way to prove when something was acquired. Sometimes, the date of acquisition is not always a single date. This often happens when, for instance, one spouse buys something (e.g. a house or car) when they are single and pays for it over time that is partly when they are single and partly when they are married. Third, most normal people do not think of assets in terms of when it was acquired, what money was used to pay for it, etc. As a result, mixing or commingling of assets is very common, especially for inherently fungible items like money. Because of these problems and those like them,...

Mental competency to make a California will (CA Probate Code section 6100.5)

I’ve made several posts in the past about California wills. There’s the one about how to make a will, how  to disinherit your children and your spouse, as well as what happens to your will when you get divorced in California. In this post, I’m going to go over something a bit more fundamental when you make a will: is the person mentally competent to even make a will? If a person is going to make a will, I think they should make it really early. Making a will in your 30s or 40s isn’t too soon at all, I think. Human nature being what it is, though, many people wait until the last minute to make a will. By this time, they might be suffering from a variety of health problems, including but not limited to dementia. The question of ‘When is someone mentally competent to make a will?” is answered in California in section 6100.5 of the California Probate Code. The statute is phrased — for clarity and ease of understanding purposes, I’m sure — in the negative. Two criteria are listed and if either of those criteria are satisfied, mental competency does not exist. Under section 6111(b)(2) of the California Probate Code, a will is invalid if it was made at a time when the person making it (i.e. the testator) did not have mental competency. The criteria to demonstrate a lack of mental competency under Section 6100.5 are as follows: The person does not understand the nature of the testamentary act. For example, the person needs to understand that they are making a will and...

New York Automatic Temporary Restraining Orders in Divorces

Last time, I described the concept of an Automatic Temporary Restraining Order (ATROS) in a California divorce case as authorized under Section 2040 of the California Family Code. The idea of an ATROS is not unique to California, however. New York has it as well and that’s the subject of this blog post. Before I begin, my usual disclaimer for New  York content applies: I have been licensed to practice law in New York since 2012, but I do not (as of the date of this post) maintain a physical office in New York state. Under Section 470 of the New York Judiciary Law, I therefore cannot practice law in the state of New York. This post is meant to simply go over a New York statute that is publicly-available for free to any member of the public. If you have a case in New York involving an ATROS, do feel free to get in touch in the event I can make a referral for you. Anyway, that said, in my California ATROS post, I described how some marriages involve a disparity in earning power. One spouse might, for example, stay at home to raise the children while the other works a job to support the family. This can, in the event of divorce, sometimes result in a situation where the spouse who works tries to exercise an unfair advantage over the spouse who stayed home in retaliation by, for example, concealing marital property or cancelling the family’s health insurance. In California, the Section 2040 ATROS is intended to prevent this. New York has a similar ATROS under New...

California Automatic Temporary Restraining Orders in Divorces (CA Family Code section 2040)

Everyone’s divorce is different. I haven’t checked every state, of course, but I would venture a guess that that applies to divorces all over. It is not specific specific to any one state in the US. One scenario that sometimes occurs is the following. Spouse A and B are married, but there is a disparity in earnings between the two. For example, only A works a job while B stays home to raise the children. Suppose that A and B then divorce. What, unfortunately, sometimes occurs is that A then attempts to exercise financial leverage to coerce B during the course of the divorce. I’ve seen this happen both in situations where A has filed for divorce and B has filed for divorce. In the former, A may feel entitled to, for instance, hide significant community property because A feels that property belongs to them since it came from their earnings. In the latter, A may feel entitled to cut B off financially by, for example, hiding assets as a way of retaliating for B filing a divorce in the first place. What is the spouse in B’s position to do to protect themselves? In California, B is protected by something called an Automatic Temporary Restraining Order — commonly called an “ATROS” — as defined in California Family Code section 2040 and that is the subject of this post. Most people have heard of the term “restraining order” which is generally a court order prohibiting (i.e. “restraining”) one party from doing something. A restraining order might be issued by a family court in a domestic violence situation, for example....

Enforcing a California Small Estate Affidavit (CA Probate Code section 13105)

I previously described how it is sometimes possible – at least in California – to handle a deceased person’s estate informally without the need to go to court, hire lawyers, etc. In California, this is often referred to as the Small Estate Affidavit process. I even made a video about it on my Youtube channel. While you’re at it, throw me a subscribe if you wouldn’t mind. The Small Estate Affidavit process in California is only available if the deceased person’s estate meets various criteria. I’m not going to go over every single criteria, but the two big ones are: (1) the gross value of the estate has to be less than $150,000, and (2) at least 40 calendar days has to have elapsed since the person passed away. If you’re looking for the language of the affidavit, I’d recommend you check out Section 13101 of the California Probate Code for a start. However, let’s say that you’ve met all the criteria to do the Small Estate Affidavit process in California (e.g. the estate is definitely worth less than $150,000 and 40 calendar days definitely have passed), but the person or business you’re trying to use the Affidavit at won’t honor it. What then? The answer to that question is in Section 13105 of the California Probate Code which provides that the person presenting the Affidavit is entitled to whatever property or items he or she is seeking as long as the person has met the requirements contained in Sections 13100 to 13104 of the California Probate Code. Sections 13100 to 13104 are fairly straightforward and include requirements like...

Drugs and DUI in California

Is it possible in California to get charged with drunk driving (aka “driving under the influence”) if you’re high on drugs instead of intoxicated on alcohol? Absolutely. I’m guessing that that isn’t widely known given the fact that I snapped the above picture on April 21, 2019 on Highway 99 in Merced County, California. Weirdly, there are several laws that apply here. I’m going to mention four of them. First, there is California Vehicle Code Section 23152(f). It’s short and sweet. It specifically says: “It is unlawful for a person who is under the influence of any drug to drive a vehicle”. You would think that this would be clear enough to not need another law, but you’d be wrong. The problem that arises under Section 23152(f), however, is that there isn’t a specific standard by which “under the influence” of a drug can be proven like it can be with a Blood Alcohol Content of 0.08 or more for alcohol intoxication. To address this problem, California has two additional laws — Vehicle Code sections 23220 and 23221 — which forbid the driver and passenger of a vehicle from using alcohol, marijuana, and marijuana products while the vehicle is being driven. Lastly, Vehicle Code section 23152(g) makes it “unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.” As always, this post is not intended to be a comprehensive discussion of the topic, but I hope you found it helpful nonetheless. If you have a situation involving a drug DUI or other topics described in one of my blog...

California Temporary License Plates on New Vehicles

I’ve never bought a new vehicle in any state other than California. I’m guessing this happens in other states too, but the way it works in California is that you won’t get your actual metal license plates from the California Department of Motor Vehicles until several weeks after you actually drive your vehicle home from the dealership. It used to be that during this time, the only license plate you would have is a paper license plate that usually just had the name and logo of the dealership on it for advertising purposes. Once you got your metal license plates in the mail, you’d install them and throw your paper dealership license plates away. As you can probably guess, having no way to uniquely identify a vehicle for several weeks caused problems. There was no way to catch drivers who would evade automated toll systems at bridge crossings, for instance. FasTrak is a common system in California while in the Midwestern US and East Coast, E-ZPass is more common. Drivers of new vehicles could avoid parking tickets too. It was difficult to track vehicles used in crimes (e.g. bank robberies) as well. If you live in California, you may have noticed that starting in 2019, new vehicles started coming from the dealership with temporary license plates that look like this one. Instead of a paper plate that just had the dealership’s name and logo on it, the new temporary license plate comes with a unique identifying number that is assigned to that particular vehicle until the metal permanent license plate arrives. The reason behind this change is — not...