Category Archives: Civil Law

Eye the Jury !

Despite (perhaps) the apparent punish (ing) title of this article

museum; (c) Buckinghamshire County Museum; Supplied by The Public Catalogue Foundation

(equally apparently written while very tired late-one-night), this will not in any way concern the 1947 debut novel of American crime-fiction writer, Mickey Spillane; and, the first of his works to feature the notorious Private Investigator, Mike Hammer. No, that was “I, the Jury.” This is just me trying to get your attention. Continue reading Eye the Jury !

They’re Letting John Hinckley Go Free? What’s That All About?

First of all, we probably need to refresh some memory of just who isJohn Hinckley?

On March 30, 1981, John Warnock Hinckley tried to assassinate john_hinckley_jr-_fbi_mugshotRonald Reagan, who was then the President of the United States. As he left a Downtown Washington D.C. hotel, with a sizable entourage, including F.B.I & Secret Service constituency, Hinckey “laid-in-wait” to ambush the President and his companions. Judging from the injuries, a number of shots were apparently fired: Reagan, himself, as he was assisted for entry into his “Limo,” was hit in the side of his chest by a ricochet, that pierced to within inches of his heart. Police Officer Thomas Delahanty, Secret Service Agent Timothy McCarthy, and Press Secretary James Brady, were seriously wounded. Brady was so seriously and profoundly impacted, that his ultimate death in 2014, was attributed to the injuries he received on that day in 1981. Continue reading They’re Letting John Hinckley Go Free? What’s That All About?

Historic Court Cases: Loving v Virginia

Landmark Supreme Court Ruling One Of The First To Define Marriage On a Federal Level

In the segregated south, there were working class enclaves that seemed to defy Jim Crow and all he stood for. In these more remote regions mostly populated by

Loving v. Virginia
Richard and Mildred Loving

farmers, sharecroppers and day laborers, blacks and whites lived and worked side by side. One of these enclaves was located in the community of Central Point in Caroline County, VA where in June 1958, Richard Loving, a Caucasian, married his childhood sweetheart, Mildred Jeter. who was of African-American and Rappahannock Native American descent.

Less than one month later, the door to their home was forced open in the early morning hours by the Caroline County Sheriff, and the Lovings were taken into custody and arrested under 20-58 and 20-59 of the Virginia code, a felony violation punishable by between one and five years in jail if convicted.  According to the couple, they violated a 34 year old anti miscegenation law that forbade interracial marriage. They were both held in custody until Richard Loving made bail. Mrs. Loving was subsequently released on recognizance to her father. The couple was warned not to return home or be seen together under any circumstances. Continue reading Historic Court Cases: Loving v Virginia

Maybe You Could Compromise And Settle

Is a Lawsuit Really Necessary?

The mere mention of “compromise and settlement,” is often viewed by a Is a lawsuit really necessary?lawyer’s client as a sign of disloyalty, incompetence, or worse. After all, legal disputes are full of feelings of emotion and ideas of honor. But if one looks at the “big picture,” settlement is an option that is too often overlooked. Continue reading Maybe You Could Compromise And Settle

What Exactly will a Court be doing, once a Petition is filed, that requests a Dissolution of a Marriage?

Basically, a Court will be required by the law, to restore the parties to the status of single persons (as distinct from legalmarried persons); and to identify and evaluate the “Community Property” of the Marriage; in order to see that it is equally divided between the former husband and wife.

If there are children, the Court has to determine with whom they will reside, at any particular time of a given day.  If Child or Spousal Support is appropriate, the Court will determine the time, amount and manner of payment of such support, and by whom.

As elsewhere stated in these articles, there are really only two ways to settle any legal matter, including a dissolution of a marriage: the parties will agree, and the Court will accept their agreement as a basis for the Court’s Judgment ; or, the contentions of each of the parties will have to be “tried” before the Judge, in order for the Judge to determine the one and only correct set of facts; and in order to then apply the appropriate law to the correct facts of the matter.

What is “Community Property?”

Community Property will be the earned product of the Marriage.  The labor of each of the Parties of the Marriage, will be a Community asset, and not that of just one of the spouses.  Property, or any other value, acquired by and through the labor of either of the spouses, during the Marriage, will be the Community Property of each of them, that means that it is instantly owned by the Community —- it’s not to be awarded in the future —- it is owned outright, form the time that the right to it comes into being.

For purposes of the application of this rule, the Marriage begins when the couple is pronounced as “Husband and Wife” during the solemn ceremony that unites them (see:What Makes a Marriage, Anyway?”).  That means: if you win the lottery on the night before your wedding, it’s Separate Property; and if you win the lottery on the on the moment following your wedding ceremony, it’s Community Property, under our Common Law.”

What Makes a Marriage Anyway?

What Makes a Marriage Anyway?

It should appear to almost go-without-saying, that in order to get a divorce, a couple would first have to have a What makes a marriage anyway?marriage.  On the other hand, it will be absolutely necessary to prove the existence of a valid marriage, to a Judge, in order to have a request to dissolve it accepted and otherwise undertaken by a Court of Law.  It gets to be quite a bit more serious, when one is informed, that without a valid marriage, one will not be permitted to access the benefits of the Family Law Act, to acquire what should otherwise be considered to be a fair share of the relationship.

Marry For Love…And Legal Protection

 

There have been some famous cases, where persons lived together for a long time, acquired property and other wealth during the relationship; but when it was over, one of them could not get any part of the property, or other support which would otherwise be natural in the situation of a valid marriage. For a marriage to be valid in California, each of the parties has to give their consent, as a matter of public record; including, getting a license, from a county clerk, to be wed.  There will thereafter have to be a solemn ceremony, conducted by a person authorized by the State to do so; wherein the parties must actually declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife.

[In California there are several requirements for a valid marriage. The parties must consent to the marriage; consent must be followed by the issuance of a license; and the marriage must be solemnized by an authorized person (§§300,400.) In addition, the parties must declare, in the presence of the person solemnizing the marriage, that they take each other as husband and wife.

What is “Common Law” and “Common Law Marriage?”

Previous to our present United States Constitution, colonies tried another form of government, under a document Framers of the Constitution with divorce on their minds?entitled, the “Articles of Confederation.”  Permit me, in the interests of time and space, to be very direct here:  that form of government ultimately failed, giving way to our present form of Constitutional Government, because nobody could ever unanimously agree on anything; so, nothing could ever really get done.  However, that failed experiment gave us something very valuable and long-lasting:  when those original colonies decided to “get-together” and establish an agreed way of doing things under the idea of a “Rule-of-Law,” they really had no common set of laws, with which to Rule;  so, and knowing that it would take an enormous amount of time for a group of people, who really couldn’t agree on anything, to create an agreed set Rules, they looked around for some place where those Rules\Laws had already been created.

It’s (in my opinion) one of the great ironies of history, that the place they found such a system of Laws, was their “Mother Country,” Great Britain, from whom they were intent on severing, because they considered England to be “wrong ‘n’ bad” and corrupt, “to boot.”  Nevertheless, our Federal Constitution of 1789, wound up adopting the Common Law of England, as it existed  at the moment of the adoption of the “Articles of Confederation;” which had been previously adopted, several years earlier, by the Confederation.

Let me say right-away, that from the point of view of a discussion about Marriage under the Family Law Act, of the State of California, Common Law Marriage has not been legal, nor otherwise recognized in California, since sometime in the 19th Century.  Marriages that don’t conform to the present version of the California Family Law Code, are not recognized.  That being said, there was a time in California (and still is true in a number of other States and Countries), that if a couple lives together “like man & wife,” for a certain period of time; they could be considered “Married” under certain circumstances.

Now, there’s a lot more that could be said about this, but it’s really beyond the scope of this particular article. There may come a time when additional articles may be written of subjects like, “Palimony” and “putative spouses,” but, that will be in the future, and probably only if enough people express an interest in those subjects.

Service of Process, Summons and Subpoena

Generally, it developed in the Law, that when a “Lawsuit,” or other legal action effecting the rights of another was legalcommenced, the Court would issue a written document directed to the  opposition Party, and notifying that Party of the filing of the “suit.”  Not surprising, is the fact that such a “writing,” was called a “Writ.”  In more modern times, the particular “writing” filed for this purpose at the commencement of a lawsuit, such as the one under discussion here, is called a “Summons.”  A “Summons” will be the required amount or “Notice” to another, before that person’s guaranteed Rights may be compromised by a Court-of-Law.  The word “Process,” as used in this context, has a relationship to the concept of “Due Process,” so important in our particular form of American Constitutional Government.  Stated simply:   “Due Process” will literally be:  that amount of “Process” that will be “Due” to a person, before their civil and property rights can be effected.  So, with that in mind, it can be said,  that a “Summons” will be the “Notice” to a party named in a legal action that has been filed, that such “Served” person, will have to approach the Court, and participate in the action; and at least by the filing of a written Responsive Pleading in the Matter; or else a “Default” may be authorized to be taken against the person “Served;” and a Judgment ultimately taken against the “Served” person; and solely according to the urging of the person that filed the action; and, as partly due to the failure of the party served, to properly respond to the pleading that has been served on them.

It will be necessary for the Petitioner to legally “Serve” the Respondent, with the Petition. This is because, before a Court can do anything that would effect the rights of any person, it will be necessary for that “person” to have warning, or “Notice,” of what the Court is considering.   These days, someone who is over the age of 18, and who is not the Petitioner, will have to personally deliver the Petition to the Respondent.  It will then be necessary for the person who actually delivered the Petition, to complete a form, which is called a “Proof of Service,” in which the “process server” swears that the Petition was personally delivered to the Respondent, and at a particular time and place.  After the “Proof of Service” is properly completed, it will be filed with the Court; and a time (30 days) will begin to run, at the end of which, the Respondent is required to have filed his or her Response.  Now, it is possible to avoid someone just showing-up somewhere, to hand the Petition to the person being served; but the person being served would have to cooperate.  In such a case, the Petition would be mailed to the Respondent, along with a document called a ‘Notice of Acknowledgment and Receipt;” which, if signed and mailed back by the person served, would constitute adequate “notice,” and therefore legal “Service of Process.”  There are certain situations which require exceptional procedures (for instance, if the person being served would hide, of otherwise “avoid service”), but those things should need the advice and assistance of Legal Counsel.  The Sheriff can be asked to “serve= the Petition, if the local station is properly approached with a request.  The fees are nominal.  There are also professional “Process Servers@ (also called ‘Attorney Services”) which can be found in telephone books or on the internet.  Attorneys are in touch with, and utilize such professionals, on a regular basis, It will really be best to utilize people who have experience in these areas, and know all of the rules and regulations.`

As distinct from a “Summons,” a “Subpoena” will be a “Process” that is “Served” on a non-party Witness, to “command”  him, her or it, to appear at a stated time and place, to give testimony in a filed legal action.  The “place” is usually a particular Court; but it can also be a law office, or other place where testimony can be taken (like for a “Deposition”).  While a “person” is usually the object of a command to appear (a “Subpoena”), the Subpoena can also describe things (usually documents or other “writings”) that have to be produced at the particular time and place, by a person who is charged with taking care of those documents or other things; and for examination by the person who has issued the Subpoena.

History, Background, and a Bird’s Eye View of the Process of Divorce, Dissolution of Marriage & the Family Law Act

A Divorce By Any Other Name

“Divorce” is an old term, that is nevertheless still used by many people, in reference to a legal action that is designed to end a marriage.  The presently correct term is “Dissolution of Marriage.”

Time was, that “Divorce” was just like any other lawsuit.  There was a “Plaintiff”, who would commence a “Lawsuit”, by the 128px-Broken_heart.svgfiling of a “Complaint,” in the Superior Court; wherein it would be alleged, that another person, the “Defendant”, had done something wrong and illegal; and  whereby the other person (the “Plaintiff”) had been injured; and to the extent that a Court should award compensatory relief (“Damages”) to the injured person; which in the case of a Marital Complaint, would include the undoing of the marriage, and the awarding of money damages, for support, or “Alimony,” as it was then called.

Who’s Fault Is It Really?

To make an otherwise longer story shorter, in and about 1970, the California Legislature decided it was improper to continue to try to find “fault” in such a situation, when more likely than not, there was no particular “fault,” but only the (sometimes) unfortunate fact, that one or both persons in the marital relationship, just didn’t want to do it any more.   So, we got “no-fault” divorce; or as it is properly called, “Dissolution of Marriage.”  The “Complaint” is now called a “Petition;” and the one filing it, is called a “Petitioner;” and the other party is called a “Respondent.”  It will be necessary for the Petitioner to legally “Serve” the Respondent, with the Petition, and a “Summons,” and in the same manner as formally required, when the Plaintiff had to serve the Complaint for Divorce, on the Defendant.  (See: “Service of Process, Summons and Subpoena”).

These days, someone who is over the age of 18, and who is not the Petitioner, must personally deliver the Petition to the Respondent.  The Respondent will then have an opportunity to file a “Response” to the Petition, that will either admit or deny the “allegations” of the Petition.  The items of “Allegation” to which the parties agree, will be found to be true by the Court; and a “Final Judgment” will ultimately be based on those agreements.   The Parties (Petitioner and Respondent) will then proceed to litigate (continue to press their contentions in and with the Court), perhaps even to a Trial, and with further regard to the remaining things upon which they don’t agree.   Alimony is now called “Spousal Support,” and the means for determining the propriety and amount of the support, is based on “need and ability to pay,” and not on fault.

In fact, generally, evidence of the bad acts or other such behavior of one party, is just simply not admissible.  Now there are some exceptions to this last stated, but basically, all the Court will be interested in, is restoring the parties to the status of single persons (as distinct from married persons); the identification and evaluation of their “Community Property” (so it can be divided equally between them); and if there are children, where and with whom will the children reside, or otherwise be, at any particular time of a given day.  The questions of Child and Spousal Support will also be addressed, if appropriate.

Give Me a Break, Boss!

Cup of CoffeeFriction and dispute between employer and employee in the work-place, is as old as time, itself.  Recall, that Moses was banished from Egypt and its royal house, for killing an overseer, whom he observed abusing a slave.  By the time of the onset of the Industrial Revolution, mass production in crowded unhealthy factories, would give rise to an ever increasing mass abuse in the work-place; as owners and managers fiercely competed to increase output and profits in a growing global market-place.

However, that very growth, and the sometimes injurious collateral consequences it included, led to an outcry from society, to end perceived exploitation and abuse.

By the time of the advent of governmental regulatory boards and agencies, there came into being, specific laws that were aimed toward limiting hours of work (at least without “over-time-pay”), and providing periods during a regular “shift”, for meals and “potty-breaks.”  Nevertheless, things appeared to drift toward another extreme, where the regulatory agencies became overly concerned with possible abuse, and to an extent that employers were required to ensure not only the break periods, but also that the employees would be forced to take them, and even to an extent that they would not be allowed anywhere near their work stations.

That’s when our California Supreme Court has recently stepped-in to clarify, that while it is absolutely required that employers must provide the breaks, and without any requirement for employees to be at their work stations, it is no longer necessary for the bosses to ensure that workers leave the work areas.  In fact, employees are free to remain at their work stations during meal and other breaks, and to even work if they should wish.

That’s a lot of freedom.

Hey, We Finally Got a Date of Separation!

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Eye the Jury !

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