How-to Guide to Changing Your Name AND Gender

Important! You do not need a court ordered gender change to change your California driver’s license, social security card, or U.S. passport. You also no longer need a court order to have a new birth certificate issued reflecting a change of gender (for California birth records). You may want to get a court ordered gender change to amend your birth certificate if you were born outside of California.  You DO need a court order for a change of name. If you need to change your name AND gender, you can follow the instructions below, or you can instead change your gender with the State Registrar (without a court order) and separately get a court order for a name change only.

Generally, to get a court order changing your name AND gender, follow these steps:

  1. Fill out your court forms
    • Petition for Change of Name and Gender (Form NCC-200) and Attachment to Petition for Change of Name (Form NC-110),
    • Order to Show Cause for Change of Name (Form NC-220), and
    • Civil Case Cover Sheet (Form CM-010).

    Some courts also require you to fill out local forms to ask for a name change, like a criminal background information form. Ask your local court clerk if there are local forms you have to fill out. Some courts also have forms on their websites.  Make sure to keep copies of any local forms you fill out.

  2. Have your doctor fill out an affidavit telling the court that you have undergone clinically appropriate treatment for change of gender
    Your doctor can use the Declaration of Physician — Attachment to Petition (Form NC-210) or write out his or her own declaration. It is very important it be done by a licensed physician; it cannot be done by a nurse. If your doctor uses his or her own letter, make sure it contains all the required information.
  3. Have your forms reviewed
    If your court’s family law facilitator or self-help center helps people with name and gender change cases, ask them to review your paperwork. They can make sure you filled it out properly before you move ahead with your case.
  4. Make 1 copy of all your forms
  5. File your forms with the court clerk
    File all the forms and copies in the superior court in the county where you live. The clerk will stamp your forms “Filed,” keep the original, and return the copies to you. The clerk will give you a date for your court hearing and will write it on the Order to Show Cause, along with information on the time and department number for your hearing.
    You will have to pay a filing fee. Find out how much the filing fee is for a first petition (sometimes called a “first appearance” or “first papers”). If you cannot afford the fee, you can ask for a fee waiver.
  6. Go to your court hearing
    Go to court on your court date and take a copy of the papers you filed, along with the Decree Changing Name and Gender (Form NC-230) for the judge to sign.
  7. Get your Decree Changing Name and Gender from the court
    If the judge approves your request for a change of name and gender, the judge will sign the Decree Changing Name and Gender (Form NC-230). Once you get your signed decree, get a certified copy from the court clerk. You will need this to change all your legal documents, including your birth certificate and other government-issued identification like your driver’s license.

from California Courts

 

 

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Emancipation

June 24th, 2016 | Posted by admin in Family Law - (0 Comments)

Emancipation is a legal way for children to become adults before they are 18. Once a child is emancipated, his or her parents do not have custody or control of him or her anymore. Emancipation is usually forever. But the court can cancel the emancipation if the minor asking for the emancipation lies to the court or is no longer able to support himself or herself.

If you are emancipated, you can do some things without your parent’s permission, like:

  • Get medical care;
  • Apply for a work permit;
  • Sign up for school or college; and
  • Live where you want to.

If you are emancipated, you will give up the right to be supported by your parents.

Even if you are emancipated:

  • You must go to school;
  • You cannot get married without your parent’s permission; and
  • You will go to juvenile court if you break the law.

Note: If you have a legal guardian, all of the information in this section about parents applies to your legal guardian and your case, too.

There are 3 ways to get emancipated:

  1. Get married
    You will need permission from your parents and the court.
  2. Join the armed forces
    You need permission from your parents, and the armed forces must accept you.
  3. Get a declaration of emancipation from a judge
    To get a declaration of emancipation, you have to prove ALL of these things:

    • You are at least 14 years old.
    • You do not want to live with your parents. Your parents do not mind if you move out.
    • You can handle your own money.
    • You have a legal way to make money.
    • Emancipation would be good for you.

If you do not want to live with your parents, you do not necessarily have to get emancipated. You can:

  • Get counseling or mediation with your parents;
  • Go to live with another adult (like an aunt, uncle, grandparent, or family friend);
  • Get help from public or private agencies; or
  • Make an agreement with your parents to live somewhere else.

from California Courts

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The property and debts part of a divorce or legal separation is often so complicated and the cost of making a mistake is so high that you should talk to a lawyer before you file your papers, especially if you have anything of value (or if you have significant debt). Keep in mind you may not need to hire a lawyer to take on your entire divorce or legal separation, just the property and debt portion of your case.

In this section, you will find some basic information about California law related to what happens with property and debts when spouses or domestic partners choose to end their relationship.

ALERT! If you signed a property agreement before or during the marriage (like a prenuptial or postnuptial agreement), talk to a lawyer to see how this affects your case before you file your papers with the court. 

 Understanding Property

Property is anything that can be bought or sold, like:

  • A house,
  • Cars,
  • Furniture, or
  • Clothing.

Property is also anything that has value, like:

  • Bank accounts and cash,
  • Security deposits on apartments,
  • Pension plans,
  • 401(k) plans,
  • Stocks,
  • Life insurance that has cash value,
  • A business, or
  • A patent.

When you get divorced or legally separated, the court makes decisions about how to divide the property that the spouses or domestic partners bought during the marriage.

Even if you do not want to deal with these issues or if you divided your property informally when you separated, the court still needs to make a formal order about these issues.

This does not mean that you have to go in front of a judge to decide these issues. Often, couples are able to divide their property (and their debts) by agreement. But when you get divorced, the judge has to sign off on that agreement. Until that happens, the property you got during the marriage or domestic partnership belongs to the 2 of you, no matter who is using it or who has control of it. The same is true of debts. If you divide them between you without a court order (or without a judge signing off on your agreement), the debt continues to belong to the 2 of you and you are both responsible for it, even if the 2 of you split it up informally.

To understand how to divide your property and debt so you can finalize your divorce or legal separation, you have to understand how property laws work in California when a couple is married or in a domestic partnership. The rest of this section will explain those laws.

Community Property and Separate Property

California is a community property state. This means that a marriage or the registration of a domestic partnership makes 2 people 1 legal “community.” So property that the couple acquires during marriage/partnership is “community property.” And debt that the couple acquires during the marriage/partnership also belongs to the “community debt.”Community and Quasi-Community Property

Community property generally is everything that spouses or domestic partners own together. It includes everything you bought or got while you were married or in a domestic partnership — including debt — that is not a gift or inheritance.

Community property also includes all the earnings that either spouse or partner (or both of you) earned during the marriage and everything bought with those earnings. You can usually tell if property belongs to the community by looking at the source of the money that was used to buy it. If the purchase money was earned during the marriage, the property belongs to the community.

For example, if you bought a car with money you were saving from your paycheck every month, and you made this money during the marriage/partnership, the car belongs to both you and your spouse or domestic partner, even if you paid for it yourself. That is because the savings you have from your paycheck is community property, since you earned that money during the marriage/partnership.

Community property includes all financial obligations (debts) accumulated during your marriage or domestic partnership. This is true even if the debt was incurred by only 1 of you, or even if a credit card was in the name of 1 spouse or partner only.

In California, each spouse or partner owns one-half of the community property. And, each spouse or partner is responsible for one-half of the debt. Community property and community debts are usually divided equally.

You may have more community property than you realize. For example, you may not know that if your spouse or partner has a pension plan, you have the right to part of the money in that plan if any of it was earned during your marriage or domestic partnership. You may also have more community debts than you realize. Your spouse or partner may have gotten into debt in his or her own name that you are not aware of. If the debt was incurred during your marriage or domestic partnership, it belongs to you too.

Quasi-community property is any type of property that was acquired by either one or both spouses or domestic partners when living in another state that, had it been acquired while living in California, it would have been considered community property.  In other words, if you or your spouse or partner were living outside of California during your marriage or partnership, and you had any earnings, bought any real estate, or acquired any other type of property that in California would be community property, that property is called quasi-community property. And, in a divorce or legal separation in California, it will be treated as community property.

For example, if you and your spouse were living in New York during part of your marriage, and you were both working and bought a car there. Now, you are living in California and are filing to get divorced or legally separated. The earnings from your respective jobs in New York plus the car are quasi-community property because, if you had been working and bought that car in California, they would have been considered community property. So, in the California divorce, the earnings and car will be treated as community property.

Separate Property

Separate property is anything you have that you owned before you were married or before you registered your domestic partnership. Inheritances and gifts to 1 spouse or domestic partner, even during the marriage or domestic partnership, are also separate property. Rents, profits, or other money you earn from your separate property is also separate property. And property you buy with separate property is also separate property.

For example, if you buy a car with money you inherited from a relative who  passed away, the car belongs to you even if you bought it during the marriage or  domestic partnership, because it was bought with your separate property.

Separate property is also anything that you acquire after the date of separation, including money you earn. This is 1 of the reasons why the date of separation is so important. It can determine whether certain property or debt is community or separate property.

If you have separate property, it belongs only to you, as long as it was kept separately. Debts can be separate property too, such as credit cards you might get after the date of separation.

Always look at the source of the money used to buy an item. In this way, you can decide if the item is separate property or community property.

Mixed Community and Separate Property — Commingling

Sometimes things are part separate property and part community property. This is called “commingling” because the separate property and community property have become mixed together. When property is a combination of separate or community property, it can get very complicated to figure out how to divide it.

A common situation is when 1 party owned a house before the marriage or domestic partnership and then sold it and used the proceeds as a down payment on another house after getting married, or after registering a domestic partnership. The down payment for this new house would be considered separate property (since the money came from selling a house that 1 person owned before the marriage or partnership). But, if the mortgage payments on the new house are made during the marriage or partnership using the earnings of either 1 of you, the equity (value) resulting from paying down the house loan is community property. The result is that the equity in the house is commingled.

Another common situation happens when you or your spouse/partner has a pension or retirement benefit from a job held before and during the marriage. The contributions you each made to your pension before the marriage or registered domestic partnership are separate property. The contributions made after the date of marriage or registration of the domestic partnership and before you separated are community property. After you separate, those contributions go back to being separate property. Exactly how the pension is divided is complicated and you may need an expert in pension plans to help you figure it out.  In some situations, if you each have a pension, you both may be able to keep your own pension. But you need to be sure of the value of each pension.

In general, when either spouse/partner has a pension, a lawyer’s help is necessary. First, a pension can be one of the most valuable assets you have from your marriage or domestic partnership. Second, the special rules that apply to pensions are very technical and do not apply to any other kind of asset. A pension plan must be “joined” as a party in your divorce case before a judge will issue an order about how the pension will be divided. That court order is called a qualified domestic relations order, or QDRO. If you make an error, there could be harmful results. It is worth paying a lawyer to correctly prepare the QDRO for you.

from California Courts

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Sealing Juvenile Records

June 11th, 2016 | Posted by admin in Criminal Law - (0 Comments)

If you went to court when you were under 18 for doing something wrong, you may be able to get the record sealed. This includes records held by law enforcement, the district attorney, probation, and the courts.  When the court orders your records sealed, it means that the offense that brought you to court no longer exists by law and you can legally and truthfully say you do not have a criminal record when asked about your criminal history (there may be an exception to this if you want to join the military or get a federal security clearance).

Since you can legally say you do not have a record in most cases, sealing your juvenile records may make it easier for you to find a job, get a driver’s license, get a loan, rent an apartment, or go to college.

In some cases, the court will automatically order your records sealed. In others, you must file a petition asking the court to seal your records.

Situations where the court automatically seals your records

 

Less serious cases dismissed after January 1, 2015
If your case is dismissed by the juvenile court after January 1, 2015 and you were NOT found to have committed an offense listed in Welfare and Institutions Code section 707(b) (these are violent offenses like killing, raping, or kidnapping, and also some offenses involving drugs or weapons), you do not need to ask the court to seal your records because the court will do it automatically.  If you complete your probation successfully and the court finds that you did, the court must dismiss your case.  If the court does not find that you have satisfactorily completed your probation, it may not dismiss your case and will not seal your records automatically. If you want to have your records sealed in this situation, you will need to ask the court to seal your records.  This is another reason why it is important for you to pay attention to the terms and conditions of your probation and work to get your case successfully dismissed.

Deferred Entry of Judgment
If your probation supervision was under “deferred entry of judgment” under Welfare and Institutions Code sections 790 to 795 and you did what you were supposed to do during the time of that agreement, the court had to order your records sealed when it dismissed your case.  If you did not complete the agreement adequately and the court entered judgment against you, you will need to ask the court to seal you records by filing a petition.

Note: If you do not know or are not sure if your records were automatically sealed, talk to your lawyer or probation officer.

Asking the court to seal your your records

If your records were not sealed automatically by the court, you will need to ask the court to seal your records.  If your case was dismissed before January 1, 2015, it is very likely you will need to do this. In most counties, you will need to contact the probation department to have your records sealed, and that department will help you to file a petition.

Who qualifies to seal their juvenile records?
You qualify if:

  • You are at least 18; or
  • It has been at least 5 years since:
    • your case was closed, or
    • your last contact with probation; and
    • a judge decides you have been rehabilitated.

Who cannot seal their juvenile records?
The court is not allowed to seal your records if:

  • The court found that you committed a serious offense listed in Welfare and Institutions Code section 707(b) when you were 14 or older,
  • Your record is for an adult  conviction in a criminal court , or
  • You were convicted as an adult of an offense involving “moral turpitude” (such as a sex or some drug crimes, murder or other violent crime, or forgery, welfare fraud, or other crime of dishonesty).

Can anyone see my sealed records?

  • Car insurance companies can see your DMV records.
  • The federal government (and the military can see your sealed records if you apply for a federal job that requires a security clearance or if you want to enlist in the military.
  • The court may see your records:
    • If you are a witness or involved in a defamation case, or
    • To decide if you qualify for extended foster care benefits after turning 18 (only if you apply for the benefits).
  • The prosecutor and others can look at your record to determine if you are eligible to participate in a deferred entry of judgment program.
  • You can request the court to unseal your records if you want to have access to them.

How do I ask to have my records sealed?
The specific procedures for sealing your records are different from county to county.  Many counties have forms that you will need to fill out listing all of your juvenile arrests and cases.  In most counties, those forms must be given to the probation department which will research your case to determine if you are eligible.  In many counties there is a fee for sealing your record.  If you cannot afford the fee, you can ask for a fee waiver.

How long will it take to seal my records?
If your records are only in one county, then the probation department will have 90 days to review your forms and let the court know if you are eligible to seal your record.  If you have cases in more than one county, the probation department has 180 days to do that review.  The court will review your application. The court may decide right away. Or the court may order a hearing. If there is a hearing, you will receive a notice in the mail with the date and time of the hearing. If the Notice says your hearing is “unopposed,” it means no one is opposing your request and you can decide not to go to the hearing without penalty.

Which records will be sealed?
If you qualify, the court will make an order to seal all the eligible records listed on your application. The court can seal only records it knows about. Make sure you list all records from all counties where you have any records. The probation department should be able to help you identify your records, but you can also get a copy of your criminal history from the California Department of Justice if you provide your fingerprints and pay a fee.  The court will order each agency on your list to seal your records. The court will also order the records destroyed by a certain date. The court will mail you a copy of its order. Be sure to keep it in a safe place.

Do I have to continue to register as a sex offender if my records are sealed?
No. If the court seals a record that required you to register as a sex offender, the order will say you do not have to continue to register.

If my records are sealed do I have to report the offenses in the sealed records on job, school or other applications?
No.  Once your records are sealed the law treats those offenses as if they did not occur.  However, the military and some federal agencies may apply different rules and seek to inquire about your juvenile records.

Questions?
If you are not sure if you qualify to seal your records or if you have other questions, talk to a lawyer.

from California Courts

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Traffic Appeals

June 3rd, 2016 | Posted by admin in Uncategorized - (0 Comments)

What is a Traffic Appeal?

A traffic appeal is when someone who loses a case in a trial court (such as a person who is found guilty of a traffic offense in a trial court) asks a higher court (the appellate court) to review the trial court’s decision.

In almost all cases, the appellate court ONLY looks at two things:

  • Whether a LEGAL mistake was made in the trial court; AND
  • Whether this mistake affected the final decision in the case.

An appeal is NOT:

  • A new trial with witnesses.
  • A chance to go to court and present your case all over again in front of a different judge.
  • A chance to present new evidence or new witnesses.

The appellate court cannot change the trial court’s decision just because the appellate court judges disagree with it. The appellate court only reviews what happened in the trial court to decide if a legal mistake was made in the original trial; for example, to see if the trial court judge applied the wrong law to the facts of the case. The trial court is entitled to hear the evidence and come to its own decision. The appellate court can only reverse the trial court’s decision if it finds a legal mistake in the trial court proceedings that was so important that it changed at least part of the outcome of the case.

Keep in mind that an appeal does not postpone the deadline for you to pay your fine or complete any part of your sentence. To postpone your sentence, you must ask the trial court for a “stay” of the judgment that includes the order for you to pay the fine.


Figuring Out if You Can Appeal a Traffic Case

To figure out f you can appeal the traffic court’s decision, there are three questions you have to consider:

1. Are You a Person Who Can Appeal This Decision?

Only a person or entity that was a party in the trial court proceeding, such as the  defendant in a traffic case, can appeal a decision in that proceeding. You may  not appeal on behalf of a friend, a spouse, a child, or another relative.

2. Can the Decision in Your Case Be Appealed?

You can appeal the final judgment in a case. The final judgment is the decision at the end that decides the whole the case. The final judgment usually says what defendant must do (like pay a fine). All final judgments are appealable.

You can also appeal most orders the trial court makes after final judgment.
However, decisions made by the trial court before final judgment cannot be appealed right away; they can only be reviewed as part of an appeal of the final judgment in the case.

3. Do You Still Have Time to Appeal?

You must be within the deadline to file an appeal. In traffic cases (and other infraction cases) you must file your Notice of Appeal within 30 days after the trial court makes (renders) its judgment in your case or issues the court order you are appealing. The date the trial court makes its judgment is normally the date the trial court orders you to pay a fine or orders other punishment in your case (sentences you). If you miss the deadline, you lose your right to appeal.

from California Courts

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