Gun Violence Restraining Orders

September 23rd, 2016 | Posted by admin in Family Law - (0 Comments)

What is a Firearms Restraining Order?

A firearms restraining order is a court order that prohibits someone from having a gun or ammunition.

It can order someone to:

  • Not have a gun or ammunition;
  • Not buy a gun or ammunition; and
  • Turn in any guns and ammunition to the police, sell them to or store them with a licensed gun dealer.

You can ask for a firearms restraining order against a close family member if you are afraid they may hurt themselves, or another person, with a gun.

If you are in this situation, it is best to ask the police or other law enforcement to ask for the firearms restraining order. The police can seek a Firearms Emergency Protective Order if someone poses an immediate and present danger of causing personal injury to himself/herself, or to another person.  The officer will take the person’s firearms and ammunition while giving them a copy of the order.  You should only ask for an order yourself if the police (or other law enforcement agency) will not do it and you are very concerned. Read the rest of this section so you understand more about firearms restraining orders.

Close family members are:

  • Your spouse or domestic partner
  • Your parents, children, siblings, grandparents, grandchildren and their spouses (including stepparents or stepgrandparents)
  • Your spouse’s parents, children, siblings, grandparents and grandchildren
  • Any person who regularly lives in your house now, or within the last 6 months.

If you are not closely related to the person you want to restrain but are still concerned about what they may do with their gun, tell the police. The police may be willing to do ask for the restraining order, even if you or a close family member cannot or will not.

What a Firearms Restraining Order CAN Do:

A firearms restraining order is a court order. It can order the restrained person to:

  • Not have a gun or ammunition;
  • Not buy a gun or ammunition; and
  • Turn in any guns and ammunition to the police or sell them to or store them with a licensed gun dealer.

Once the court issues (makes) a restraining order, it goes into a statewide computer system. This means that law enforcement officers across California can see there is a restraining order in place.

What a Firearms Restraining Order CANNOT Do:

A firearms restraining order will NOT order the restrained person to:

  • Stay away from you or your family members;
  • Not contact or go near you, your children, other relatives, or others who live with you; and
  • Move out of your house.

If you need protection for yourself or a family member, there are other kinds of orders you may be able to ask for:

  • Domestic violence restraining orders, for protection from people you were involved with romantically at some point or close family members.
  • Civil harassment restraining orders, for protection from a stalker, neighbors, roommates, coworkers, or more distant family members like cousins, uncles/aunts, etc.
  • Elder or dependent adult abuse restraining order, if the person being abused is 65 or older, or between 18 and 64 and a dependent adult.
  • Workplace violence restraining order, filed by an employer to protect an employee from violence, stalking, or harassment by another person.

How long does the firearms restraining order last?

If the court makes a temporary restraining order, it will last until your court hearing (about 21 days). At the court hearing, if they judge grants your request, you will get a firearms restraining order for one year. You can ask to renew it for additional one-year periods.

from California Courts

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Service of Process

September 16th, 2016 | Posted by admin in Uncategorized - (0 Comments)

What Is Service?

The law says that when you sue a person, partnership, corporation, or the government, you must give formal notice to the other side that you have started the legal process. In the same way, when you are already involved in a case and file papers with the court, you are required to give the other side notice of the paperwork you have filed. The legal way to give formal notice is to have the other side “served” with a copy of the paperwork that you have filed with the court. This is called “service of process.”

“Service of process” means that the other side must get copies of any paper you file with the court.  In “service of process” a third person (NOT you) is the one who actually delivers the paperwork to the other side.  The person who does this is called the “server” or “process server.”

Until the other side has been properly “served,” the judge cannot make any permanent orders or judgments.

Process Servers

The “server” or “process server” can be:

  • A friend or relative;
  • A coworker;
  • A county sheriff or marshal;
  • A professional process server; or
  • Anyone over 18 who is NOT part of the case.

In all cases, the “server” or “process server” MUST:

  • Be 18 years old or older;
  • Not be a party to the case;
  • Serve the paperwork on the other side in the time require;
  • Fill out a proof of service form that tells the court whom they served, when, where, and how; and
  • Return the proof of service to you so you can file it with the court.

Remember, it is very important that you, if you are the plaintiff/petitioner or defendant/respondent, do NOT serve your own papers.

Note: If you hire a process server, give them a photo of the person they have to serve (if you have one) and a list of times and places when it will be easy to find that person. Look for a process server who is close to where the other side lives or works. Fees are often based on how far the server has to travel. So this will save you money.

Types of service

There are several ways to serve papers. The information here about the types of service is general. Not all of them are allowed in all cases, or at all stages of a case. So, for your type of case, only some of these types of service may be allowed.   The individual sections on this Online Self-Help Center will tell you what types of service are allowed in your case.

Service can be complicated and it is VERY important. If it is not done right, you will not be able to move forward with your case.  If you are not sure how you must serve your paperwork,  talk to a lawyer.

Personal Service 
“Personal service” means that someone – NOT a party to the case – must personally delivery the court documents to the other side.

In “personal service”:

  • The server gives the papers to the party being served. It can be at the party’s home, work, or anywhere on the street.
  • The server has to identify the party being served and hand the legal papers to him or her and inform him or her that they are court papers.
    • If the party being served does not want to take the papers, they can be left on the ground in front of him or her.  If he or she takes the papers and tears them up or throws them away, service is still considered to be valid. The person being served does not have to sign anything.
  • The server then fills out a proof of service, detailing when, where, and how (in person) the papers were served. The server signs the proof of service and returns it to you to file in court.
  • Personal service is complete the day the papers are served.

“Personal service” is the most reliable type of service because the court knows for sure that the person being served got the papers and, if necessary, can question the process server about the “service.”

Since it is the most reliable, “personal service” is valid in all types of case.  Also because it is so reliable, it is generally required when serving the first papers (the petition or complaint) in a case.

Service by Mail 
In “service by mail,” someone – NOT a party to the case – must mail the documents to the other party.

For “service by mail”:

  • The server mails the papers to the party being served. If the party being served is a person, the papers can be mailed to his or her home or mailing address. If it is a business, the papers must be mailed to the owner(s) at the business’s main office. If the business has an agent for service, the papers should be mailed to the agent for service.
  • The server then fills out a Proof of Service, detailing to whom the papers were mailed, to what address, when, how (by first-class mail), and where they were mailed from. The server signs the Proof of Service and returns it to you to file in court.
  • Service by mail is complete 5 days after the papers are mailed.

Mail service is easy but not very reliable because the court cannot know for sure that someone received the paperwork.

Substituted Service 
Substituted service is used after several attempts to personally serve the papers have failed.

For substituted service:

  • The server tries to personally serve the papers on the other party a number of times (usually 3 or more) but cannot find the party at home (or work, if that is the address the server has).  The server must try different days of the week and different times of the day, at times when the other person is likely to be home (or at work if serving him or her there).
  • If the server is unable to find the person to be served on each one of those times, he or she can, on the last attempt, leave the papers with someone at the other party’s house, at least 18 years old, who lives there.  If the server is trying to serve the papers at the other party’s work, then the papers can be left with someone at the office that appears to be in charge and is at least 18 years old.
  • The server must tell the person that he or she hands the papers to that they are legal documents for the other party. The server must also write down the name and address of the person he or she gave the court papers to. If the person will not give his or her name, the server must write down a detailed physical description.
  • Next, the server must mail a copy of the papers to the other party at the address where the papers were left.
  • The server must then:
    1. Write up a “Declaration of Due Diligence,” which is document for the court detailing every attempt attempt he or she made to serve the papers in person. It should include the dates he or she went to the house or work, times of day, and what the result was (for example, “No one answered the door” or “Party not in the office”). The server has to sign this document under penalty of perjury.   There is no form for this, but the server can use a Declaration (Form MC-030). Your court’s self-help center may have a local form to help you with this step too.
    2. Fill out a Proof of Service, detailing when, where, and how the papers were served. The server has to make sure to write the name of the person he or she left the papers with (or a detailed physical description). The server signs the Proof of Service and returns it to you, with the Declaration of Due Diligence, to file in court.
  • Substituted service is complete10 days after the day the papers are mailed.

NOTE: Sometimes, like in small claims cases, you can use substituted service the first time the server tries to serve the papers in person and the other party is not at home or work.

“Substituted service” is not a very reliable type of service because the court does not know for sure that the person that had to be served actually received the paperwork.

Service by Notice and Acknowledgement of Receipt

When the other side agrees to be served by mail and is willing to sign a document for the court saying that they received the papers, you can usually use this method. It is usually used for the summons and complaint/petition (in civil cases or family law cases).

To serve by Notice and Acknowledgement of Receipt:

  • The server mails the summons and complaint to the other side with a 2 copies of the Notice and Acknowledgment of Receipt.
  • The other side signs 1 copy of the Notice and Acknowledgment of Receipt, telling the court that he or she received the papers in the mail, and returns it to the server.
  • The server then fills out a Proof of Service, detailing to whom the papers were mailed, to what address, when, how (byfirst-class  mail), and where they were mailed from. The server has to attach the Notice and Acknowledgment of Receipt returned by the other side.  The server signs the Proof of Service and returns it to you to file in court.
  • Service by Notice and Acknowledgment of Receipt is complete on the date the Acknowledgment of Receipt portion of the form is signed by the other side.

Service by posting on the premises and mailing (for eviction cases ONLY)  
In eviction (unlawful detainer) cases only, a summons and complaint can be served by posting on the premises at issue in the eviction and also mailing. Service by posting and mailing is used after several attempts to personally serve the papers have failed. A landlord needs the court’s permission to serve his or her tenant by posting and mailing.

For service by posting and mailing (sometimes called “nail and mail”):

  • The server tries to personally serve the papers on the other party a number of times (usually 3 or more) but cannot find the party at home.   The server must try different days of the week and different times of the day, at times when the other person is likely to be home.
  • If the server is unable to find the person to be served on each one of those times, AND the server is unable to find an adult on the premises to leave the papers with (to serve by substituted service, as explained above), then:
    1. Write up a “Declaration of Due Diligence,” which is a document for the court detailing every attempt the server made to serve the papers in person and by substituted service. It should include the dates he or she went to the house/property, times of day, and what the result was (for example, “No one answered the door”). The server has to sign this document under penalty of perjury. There is no form for this, but the server can use a Declaration (Form MC-030). Your court’s self-help center may have a local form to help you with this step too.
      AND
    2. File an application to the court asking for permission to serve by “posting and mailing” pursuant to Code of Civil Procedure section 415.45.
  • If the court grants permission to serve by posting and mailing, the server must:
    1. Post the summons on the premises in a place where the other party (the tenant) is most likely to see it; and
    2. Mail a copy of the papers to the tenant at the tenant’s last known address, by certified mail.
  • Fill out a Proof of Service, detailing when, where and how the papers were served. The server signs the Proof of Service and returns it to you to file in court
  • Service by posting and mailing is complete 10 days after the day the papers are mailed.

Service by publication 
“Service by publication” means that you publish the summons and complaint in a newspaper of general circulation in the area where the other side is likely to be. You have to ask the court’s permission to do this. It is usually used when you do not know how to find the other side and do not have an address or workplace for him or her.

Note: If you need to serve a divorce, legal separation or annulment summons and petition or a petition for custody and support of minor children on your ex-spouse or partner, and you do not know where he or she is, there is a special process.

Before the court will give you permission to serve by publication, you will have to prove to the court that you tried as hard as possible to find the other side. Every court is slightly different in what they require, but most require at least that you try to find the other side at his or her last known address or last known work, mail letters to the last known address with forwarding address requested, call the other side’s friends and family or ex-coworkers to ask about his or her whereabouts, look for the other side in the phone book for any city where he or she is likely to be, and search on the Internet.

Once you have taken all the steps your court requires before asking to serve by publication:

  • Write up a “Declaration of Due Diligence,” which is a document where you tell the court every attempt you made to find the other side. Include as much detail as possible. For example, if you called friends and family, write down the dates and what they told you. If you mailed a letter to the last known address, explain when you sent it, what address you sent it to, and what the result was. You have to sign this document under penalty of perjury.  There is no form for this, but you can use a Declaration (Form MC-030). Your court’s self-help center may have a local form to help you with this step too.
  • Complete an ex parte request for the court order allowing you to serve by publication. You must also attach a proposed order. Again, ask your court’s self-help center if they have a local form for this.
  • If the court grants your request to serve by publication, the judge will sign your proposed order, and allow you to publish your court document in a newspaper of general circulation in the area.
    • You can make these arrangements with the newspaper.  Court clerks usually have a list of newspapers that the court accepts for this purpose. You will have to publish it for 4 weeks in a row, at least once a week.
    • The newspaper must give you an affidavit showing the time and place the document was published.
  • Service by publication is complete at the end of the 28th day after the first date the summons and complaint are published in the newspaper.

Service by posting (at the courthouse) 
“Service by posting” means that the court clerk posts the summons and complaint in a visible place designated for court notices at the courthouse. Like “service by publication,” you have to ask the court’s permission to do this. It is usually used when you do not know how to find the other side and do not have an address or workplace for him or her. BUT in order to qualify for “service by posting” and do away with the requirement to publish your summons and complaint in a newspaper, you usually have to qualify for a fee waiver.

Note: If you need to serve a divorce, legal separation or annulment summons and petition or a petition for custody and support of minor children on your ex-spouse or partner, and you do not know where he or she is, there is a special process.

Before the court will give you permission to serve by posting, you will have to prove to the court that you tried as hard as possible to find the other side. Every court is slightly different in what they require, but most require at least that you try to find the other side at his or her last known address or last known work, mail letters to the last known address with forwarding address requested, call the other side’s friends and family or ex-coworkers to ask about his or her whereabouts, look for the other party in the phone book for any city where he or she is likely to be, and search on the Internet. To find out exactly what your court requires you to do before you can ask for permission to do service by publication, read your court’s local rules or ask your court clerk or self-help center.

Once you have taken all the steps your court requires before asking to serve by posting:

  • Fill out and file a request for a fee waiver, asking to be allowed to serve by posting.
  • Write up a “Declaration of Due Diligence,” which is a document where you tell the court every attempt you made to find the other side. Include as much detail as possible. For example, if you called friends and family, write down the dates and what they told you. If you mailed a letter to the last known address, explain when you sent it, what address you sent it to, and what the result was. You have to sign this document under penalty of perjury. There is no form for this, but you can use a Declaration (form MC-030). Your court’s self-help center may have a local form to help you with this step too.
  • Complete an ex-parte request for the court order allowing you to serve by posting. You must also attach a proposed order. Again, ask your court’s self-help center if they have a local form for this.
    • If the court grants your fee waiver and your request to serve by posting at the courthouse, the judge will sign your proposed order and allow you to have your summons and complaint posted at the courthouse.
  • Service by posting is complete at the end of the 30th day after the first date the summons and complaint are posted.

Service by certified mail (small claims ONLY) 
Only the small claims court clerk can serve your claim this way. The clerk will charge you a fee of $15 to serve the defendant by certified mail. You should check back with the court before the hearing to see if the receipt for certified mail was returned to the court. Service by certified mail is complete on the day the certified mail receipt is signed.

Service by certified mail (for a party that is out of state)
When the party that has to be served lives out of state, papers can usually be served by sending a copy of the paperwork to be served to that party by first-class mail, postage prepaid, and return receipt requested. The person who mails the papers must be at least 18 and NOT a party to the case. The server must complete a Proof of Service indicating how the papers were served. Service by certified mail is complete on the 10th day after mailing of the papers.

Do NOT use this type of service to serve a party that is outside the United States. The process for serving someone outside the U.S. is very complicated. Talk to your court’s self-help center or a lawyer for help.

Who to Serve

  • If you are suing an individual, serve the person you are suing. If you are suing more than 1 individual, serve each person you are suing.
  • If you are suing a single-owner business (called a “sole proprietorship”), serve the owner.
  • If you are suing a partnership under its business name, serve 1 of the partners. If you are suing a business AND its partners, serve each partner. If you are suing a limited partnership, serve the general partner, general manager, or the agent for service (if there is one).
  • If you are suing a corporation, serve an officer of the corporation or the agent for service. You can find out the name of the corporation’s agent for service at the website of the California Secretary of State.
  • If you are suing a city, serve the city clerk or agent authorized to accept service. You can find the address and phone number in the government pages of your phone book.
  • If you are suing a county, serve the county clerk or agent authorized to accept service. Check your county’s website for the county clerk’s address and telephone number. Or find the address and phone number in the government pages of your phone book.
  • If you are suing the State of California, you can serve the state Attorney General’s office if you are suing the California Highway Patrol or most consumer affairs boards. If you are suing Caltrans, you must serve the California Department of Transportation. You can call the Attorney General’s office at 1-800-952-5225 for more information.
  • If you are suing your landlord, serve the owner of the building where you live. Your landlord’s name, address, and phone number should be on your lease or posted on 2 conspicuous places on the property. You can also get the address from your local tax assessor’s office. If you are suing your landlord and the manager of your apartment building will not tell you where the landlord lives, you can serve the manager.

Filling Out and Filing the Proof of Service 
The court must know that the other side was properly served. To do this, the process server must carefully fill out and sign the Proof of Service detailing how service was done, on whom, where, and when. The process server then gives you the Proof of Service.

Make a copy of the Proof of Service. Take the original and copy to your court clerk right away to file it. The clerk will stamp the copy “Filed” and return it to you.

Keep this copy in a safe place.

Finding Someone in Order to Serve Him or Her

When you sue a person, you file your lawsuit against that person, using his or her legal name and any aliases. You also need that person’s address. Often, it is easy to get this information if you do not already have it, by looking at any documentation you may have about the legal dispute. But, sometimes, this information is not easily available to you. Below are some ways to track someone down.

  1. Send a letter to the person’s last address.  Under your return address, write “Return Service Requested. Do Not Forward.” If the person filed an address change with the post office, you will get the letter back with a new address. Get more information from the United States Postal Service.
  2. Go to the local post office covering the area for the person’s last known address. Ask if the person left a forwarding address.
  3. Call “411” for the city or cities where you think the person may live or work.  If the person is listed, you may be able to get his or her address. Or you may only get the phone number, but you can use the phone number to try other things to get the address.
  4. Search free online telephone directories. You can do an Internet search to try to locate the person. Some Internet searches are free, and if the person is listed, you can get the phone number or address.
  5. Search online on sites that search for people. You may be able to pay a small fee to an Internet company to give you the address or phone number of the person you are looking for. In that case, the more details you have about the person you are searching for (like date of birth or approximate age), the more accurate the results you may get.
  6. Search social networking sites. You can search popular social network sites where people often list their name, location, and perhaps other information you can find helpful. Or, you may be able to email them through the social network site if you think they may cooperate with you and give you information so you can serve them with legal papers
  7. Use a reverse telephone directory. If you only know the person’s phone number, you can get the address from a reverse telephone directory, which allows you to search by a telephone number to get the name and address of that telephone number’s subscriber. BUT the address and name will not be in the reverse directory if the phone number is unlisted.
    • You can also use a reverse phone directory online. There are several of these. Just search for “reverse phone directory.”
    • You can also look at a reverse telephone directory at the main branch of your public library.
  8. If you know any of the person’s relatives or friends, contact them for information. Call, write, or e-mail them and ask them if they have any contact information for him or her. They may not have all the information but even if they only know what city he or she may have moved to, the information can be helpful to you. You can also explain to them why you need to find this person and even if they do not want to give you the person’s contact information, they may be willing to contact him or her on your behalf and give him or her your contact information so he or she can get in touch with you and find out what you want. For some cases, like, for example, a divorce, the other person may also want to be divorced so it would be to his or her advantage to give you a way to get in touch with them.
  9. If you know any of the person’s past employers, contact them for information. Ask the last known employer (or even employers before that) if they have any information about the person’s whereabouts, even if it is just a city where he or she may have moved, or the name and address of the new employer.
  10. If the person you are trying to find owns property, search property records. 
    • The county tax assessor’s office can search the tax rolls for you. The tax rolls in the assessor’s office list the names and addresses of property owners in the county by both owner name and address of the property. The tax assessor’s address and phone number is also listed in the government pages of your phone book. It is usually in the county section under ASSESSOR.
    • You can also get this information from the county registrar/recorder’s office. The property owners are listed by name, and each listing includes the location of the property owned. The address and phone number of your county registrar/recorder’s office is also listed in the government pages of your phone book. It is usually in the county section under RECORDER.
  11. If you have any reason to think the person may be in prison or jail, follow these steps:
    • For California State Prison: Call the California Department of Corrections and Rehabilitation (CDCR).  You must have either the inmate’s CDC number or the inmate’s full name and date of birth to get information.  Find the phone numbe for the California Department of Corrections and Rehabilitation Inmate Locator.
    • For Federal Prison: Use the Federal Bureau of Prison’s Inmate Locator database. You can search the database using the inmate’s first and last name or the inmate’s Register Number, DCDC Number, FBI Number, or INS Number.  Find a list of federal correctional facilities at the Federal Bureau of Prisons. Fill in whatever information you know (like the state or city you are looking for) and hit “submit.”
    • For County Jail: Call the jail. You can usually find the phone number and address for the jail by calling the county sheriff.If you do not know if a person is in state or federal prison or county  jail, search for the person in state and federal prison and the  counties where you think the person might be incarcerated.

Be creative!!!
You do not need to know where someone lives or works in order to serve him or her with legal papers. You only need to find the person to give him or her your legal papers through a server. The more you know about someone and his or her habits or the places he or she frequents, the easier it will be to figure out a good way to serve him or her with legal papers. So even if you do not know someone’s address but you know that at a given time he or she generally goes to a certain coffee shop, or to the gym, or to some other fixed place, you can have a server there to give him or her legal papers. You may also make a plan to meet the person somewhere and then have a server with you to give him or her the paperwork when you meet up. You can also hire a private investigator to help you find someone.

from California Courts

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Annulment

September 9th, 2016 | Posted by admin in Family Law - (0 Comments)

Basics

An annulment (or “nullity of marriage” or “nullity of domestic partnership”) is when a court says your marriage or domestic partnership is NOT legally valid. After an annulment, it is like your marriage or domestic partnership never happened because it was never legal.

LEGAL REASONS FOR AN ANNULMENT

A marriage is NEVER legally valid when it is:

  • Incestuous: when the people who are married or in a registered domestic partnership are close blood relatives; or
  • Bigamous: where a spouse or domestic partner is already married to or in a registered domestic partnership with someone else.

Other marriages and partnerships can be declared invalid because of:

  • Age at the time of marriage or domestic partnership: the party filing for the annulment was under 18 years old at the time of the marriage or domestic partnership.
  • Prior existing marriage or domestic partnership: Either party was already legally married or in a registered domestic partnership. This is different from bigamy (which is automatically illegal) because, in this case, the marriage or domestic partnership took place after the former spouse or domestic partner was absent for 5 years and not known to be living or generally thought to be dead.
  • Unsound mind: either party was of “unsound mind” or unable to understand the nature of the marriage or domestic partnership, including the obligations that come with it.
  • Fraud: Either party got married or registered the domestic partnership as a result of fraud. The fraud must have been about something vital to the relationship that directly affected why the party who was deceived agreed to the marriage or domestic partnership. Some examples are marrying only to get a green card or hiding the inability to have children.
  • Force: either party consented to getting married or filing a domestic partnership as a result of force.
  • Physical incapacity: the parties got married or registered a domestic partnership while 1 of them was “physically incapacitated” (basically, it means that 1 of the spouses or partners was physically incapable of “consummating” the relationship) and the incapacity continues and appears to be “incurable.”

These are short explanations of the reasons for an annulment. Each of these reasons has important details you have to prove to get a court to give you an annulment.

To get an annulment, you must be able to prove to the judge that 1 of these reasons is true in your case. This makes an annulment case very different from a divorce or a legal separation. For example, “irreconcilable differences” are not a reason for getting an annulment.

Getting an annulment does not depend on how long you have been married or in a domestic partnership. Even if you have been married/in a partnership only a very short time, you may not be able to prove to the judge that your case has 1 of the legal reasons that makes your marriage/partnership invalid.

Proving that there is a legally valid reason to get an annulment can be very difficult. Talk to a lawyer for help understanding exactly what you need to show to a judge before he or she will agree to give you an annulment.

STATUTE OF LIMITATIONS TO FILE FOR AN ANNULMENT

The statute of limitations is the deadline for filing a lawsuit. Divorces and legal separations do not have a deadline. You can file for divorce or legal separation at any time.BUT annulments DO have a deadline. In general, once the statute of limitations “runs out,” you can no longer file for an annulment.

The period of time within which you can file for an annulment varies depending on the reason why you want the annulment. Here are the statutes of limitations for the reasons to ask for an annulment:

  • Age at the time of marriage or domestic partnership: The person who married or entered into a domestic partnership while under 18 must file for annulment within 4 years after reaching 18. (A parent or guardian of the minor can ask for an annulment while the minor is still under 18.)
  • Prior existing marriage or domestic partnership: An annulment in this case can be filed by either party as long as both parties to the current marriage/partnership are alive, or by the prior existing spouse or domestic partner.
  • Unsound mind: An annulment in this case can be filed by the party claiming that his or her spouse or domestic partner is of unsound mind, or by a relative or conservator of the party of unsound mind, at any time before the death of either party.
  • Fraud: An annulment on grounds of fraud can only be filed by the person who was deceived. It must be filed within 4 years of discovering the fraud.
  • Force: An annulment on grounds of force can only be filed by the person who was forced to give consent. It must be filed within 4 years of getting married or registering the domestic partnership.
  • Physical incapacity: An annulment in this case can be filed by the party claiming that his or her spouse or domestic partner is physically incapacitated. It must be filed within 4 years of getting married or registering the domestic partnership.

EFFECT OF GETTING AN ANNULMENT

Since an annulment means your marriage or domestic partnership was never valid, you may not have other rights and obligations that couples who file for divorce or legal separation do.

Rights and obligations relating to the children
If you and your spouse or domestic partner have children together and you get an annulment, the legal presumption that children born during a marriage or domestic partnership are children of the couple also does not exist. This means that, if you get an annulment, you must also ask the judge to establish parentage (paternity) for any children you have in common with the other party. Talk to a lawyer about how to do this.

Once the parentage is established, then you can, in your annulment, ask the judge to make orders about:

  • Custody and visitation, and
  • Child support.

Rights and obligations relating to property and debt
When you claim that a marriage or domestic partnership is not legally valid, you are also saying that the legal rights and duties of community property laws in California do not apply. This means that you and the other party cannot rely on community property laws to divide any property or debt that you accumulated while you were married or in a domestic partnership.

It also means that you would not have the right to spousal or partner support, or other benefits like the right to a portion of the other person’s pension or retirement benefits.

BUT there is an exception: Someone in an invalid marriage or domestic partnership may have “putative” spouse or domestic partner status. This means that they may have the right to community property, support, and other property-related benefits. To prove you have “putative” spouse or partner status can be complicated. You will have to prove that you had a good faith belief that the marriage or domestic partnership was legal under California law. Talk to a lawyer if this is your situation.

from California Courts

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Identity Theft

September 2nd, 2016 | Posted by admin in Consumer Protection - (0 Comments)

Identity theft happens. It’s an unfortunate fact of modern life. But there are certain steps you can take to help keep your personal information from falling into the wrong hands.

Every day, you do things to protect what’s most important to you. And you know what? You do them almost automatically. Routine things like looking both ways before you cross, brushing your teeth, and buckling your seat belt.

Another routine to get into is keeping tabs on your identity and personal information. Here are easy ways you can do it.

  • Read your credit card and bank statements carefully and often.
  • Know your payment due dates.
  • If a bill doesn’t show up when you expect it, look into it.
  • Read the statements from your health insurance plan.
  • Make sure the claims paid match the care you got.
  • Shred any documents with personal and financial information.
  • Review each of your three credit reports at least once a year. It’s easy, and it’s free.

And before you know it, protecting your personal information can be as routine as locking your doors at night.

Quick Responses

You can help limit the damage from identity theft with some quick responses. Placing a fraud alert on your credit reports. Filing a complaint with the FTC. And then filing a police report.

Taking these steps will give you some important tools to deal with other problems that may come up. Like charges you didn’t authorize on your credit card, phone, or utility bills. Like ATM withdrawals or debit card purchases you didn’t approve. Like getting a letter from the IRS saying someone has filed for a tax refund in your name.

Keep records of your calls and copies of documents. If these problems do come up later, you’ll have the necessary tools close at hand.

Protect Your Computer from Malware

Would it surprise you to learn that millions of computers in the US are infected with malware? That’s a lot of computers. So what’s malware, and why should you care?

Malware, short for malicious software, includes viruses and spyware that get installed on your computer or mobile device without you knowing it. Criminals use malware to steal personal information and commit fraud. For example, they may use malware to steal the login information for your online accounts or to hijack your computer and use it to send spam. An infected computer can lead to serious problems, like identity theft.

The good news, there’s a lot you can do to protect yourself and your computer. One of the most important steps you can take, install security software from a reliable company and set it to update automatically. The bad guys constantly develop new ways to attack your computer, so your software must be up to date to work.

Set your operating system and your web browser to update automatically too. If you’re not sure how, use the help function and search for automatic updates. Don’t buy security software in response to unexpected calls or messages, especially if they say they scanned your computer and found malware. Scammers send messages like these to trick you into buying worthless software, or worse, downloading malware.

What else can you do? Use a pop up blocker, and don’t click on links and popups. Don’t click on links or open attachments in emails unless you know what they are, even if the emails seem to be from friends or family.

Download software only from websites you know and trust. Free stuff may sound appealing, but free downloads can hide malware. Make sure your web browser’s security setting is high enough to detect unauthorized downloads. For example, use at least the medium security setting.

Even if you take precautions, malware can find its way onto your computer. So be on the lookout for these signs. Your computer runs slowly, drains its battery quickly, displays unexpected errors or crashes, it won’t shutdown or restart, it serves a lot of popups, takes you to web pages you didn’t visit, changes your home page, or creates new icons or toolbars without your permission.

If you suspect malware, stop doing things that require passwords or personal info, such as online shopping or banking. Use a different computer, maybe one at work or at your local library, to change your passwords. Update your security software and run a system scan. Delete files it flags as malware.

If you can’t fix the problem on your own, get help from a professional. Your computer manufacturer or internet service provider may offer free tech support. If not, contact a company or retail store that provides tech support.

Keep in mind, the most important thing you can do to prevent malware is to keep your computer software up to date. And remember, it’s easy to find trusted information about computer security. Just visit onguardonline.gov, the federal government site to help you stay safe, secure, and responsible online.

from Federal Trade Commission

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Tips for the visiting parent
Being with your children in the presence of someone else may be uncomfortable for you, at least in the beginning. You probably have many questions and concerns, and that is perfectly understandable. During tough times you may want to talk to a mental health professional or find a support group to help you with your feelings. Do your best to focus on your relationship with your children. Your patience and commitment are important during this time.

Here are some suggestions that might be helpful to you:

  • Read the court order.
  • Arrive and depart on time.
  • Avoid discussing the court case or terms of the visit with your children.
  • Avoid quizzing your children about the other parent’s activities and relationships.
  • Avoid making your children messengers to the other parent.
  • Say brief and positive good-byes to your children when the visit is over.

Tips for the custodial parent
Supervised visitation can also be a challenge for you. Typically you have been taking care of your children’s everyday needs and have a routine for yourself and your family. Supervised visitation can sometimes feel like 1 more responsibility. Of course, you also have concerns and questions about the visits and how they will affect your children. This is understandable. In difficult times you may also want to talk to a mental health professional or find a support group where you can talk about your feelings.

Here are a few suggestions that might help you in the process:

  • Read the court order.
  • Explain to your children where and when the visits will take place.
  • Have your children ready with anything they will need during the visits.
  • Arrive on time to drop off and pick up your children.
  • Reassure your children that you support them in having a pleasant visit.
  • Avoid quizzing your children about the visit.
  • Avoid making your children messengers to the other parent.

Tips for both parents
If you need to change the visitation schedule, the provider cannot do that for you. You will need to ask the court to change the visitation order. To assist you in filing the proper paperwork with the court, contact your lawyer or the family law facilitator in your court.

You may also ask Family Court Services to assist if both parents are willing to meet with a mediator. A court mediator can assist you in reaching an agreement that changes the visitation schedule. Your agreement can then be filed in court and become an order. Call your Family Court Services office to schedule an appointment.

Supervised visitation can be difficult and uncomfortable at times. Often there are hurt and angry feelings toward the other parent. It may also seem impossible to have a positive attitude about supervised visitation. Remember that both of you care about your children and that children benefit from having 2 parents in their lives whenever possible.

from California Courts

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