Category Archives: Family Law

How you can save money by mediating

One of the significant benefits of mediation is the ability to save money. You can save it in several ways. For example, in a divorce case, you can save money by not having to have two sets of attorneys and experts. You negotiate the deal that you want while paying only the mediator to help you. So long as both parties can reach an agreement that is legal and acceptable to each of them, they have saved the cost of hiring lawyers to file pleadings and exchange negotiations. Of course, in a divorce case you still have to file the necessary documents with the court, but the mediator can help you with that too.
In any kind of case, when the mediator helps you reach an agreement without litigation you have saved all of the attorney’s fees and costs required to fight with each other. Those can be huge. Even in the midst of litigation, you can save future litigation costs by mediating. This is true even if both sides already there attorneys, who can participate in the mediation process and generally do so in civil litigation.

What is family Law mediation?

Miriam-Webster Dictionary defines “mediation” as follows: “intervention between conflicting parties to promote reconciliation, settlement, or compromise.”

 
In the context of family law, mediation is a process where both parties meet with a neutral third party. That neutral third party helps the parties reach a settlement or compromise of their issues, including property issues, support issues, and custody issues. The neutral party often is a family law attorney.

 
Usually, the parties meet together with the mediator in comfortable surroundings where they can talk about their issues in a safe environment. The mediator helps the parties understand each other’s views, which often is a major stumbling block in a family law proceeding.

 
The parties may or may not have an attorney represent them in the mediation process. If the parties do not have an attorney actively participating in the mediation process, one or both of the parties may choose to have an attorney giving advice in the background. Most of the time, however, the parties do not use an attorney unless the mediation fails or in order to get advice on specific issues that come up during the mediation.

 
When the parties reach an agreement, traditionally the mediator helps the parties prepare a written agreement and the documents necessary to file with the court. The parties, of course, may choose to have a different person prepare the paperwork. And parties will often take the agreement to to their attorney for review before signing it. If there are concerns, the parties can then take those concerns back to the mediation.

 
When the parties can reach agreement through mediation, they can save significant amounts of money by avoiding the cost of litigation and the requirement to have two sets of attorneys and their supporting staff and experts. The parties can often divide the fees of the mediator equally, but they can also agree to any other allocation of those fees as part of their mediation agreement.

 
For more information regarding family law mediation using the Wilson Law Firm, A Professional Corporation, call (916) 608-8891.

What is a Military Pension Order and What Does It Accomplish

27900825_sA member of the military who accumulates retirement benefits can divide those benefits, upon divorce, with his or her spouse but certain requirements must be met. Just as a qualified domestic relations order (QDRO) provides the method by which the courts distribute ERISA governed retirement benefits to an ex-spouse or some other enumerated beneficiary at a designated point in time,  a Military Pension Division Order (similar in format to the Qualified Domestic Relations Order) can be issued dividing a service member’s military retirement.

 

But the Defense Finance and Accounting Service (DFAS) will not make payment directly to the non-military spouse unless the “Ten Year Rule” has been met. The Ten Year Rule states that par­ties must have been married for 10 or more years, and 10 years of the marriage must have overlapped the 10 years of creditable service. As the overlap portion must be at least 10 years, it is very likely that the length of the marriage will most likely have exceeded 10 years by a considerable mark unless the serviceperson married his or her spouse immediately before joining the service.

 

Like a QDRO, the Military Pension Order must be reviewed and approved by the Court in the divorce or other domestic relations action. Then a cer­tified copy must be sent to the appropriate Uniformed Services designated agent with a DD Form 2293, entitled “Application for Former Spouse Payments from Retired Pay.” The DD Form 2293 serves also as the form used for requesting direct payments of alimony or child support from retired pay. Once processed, payments will be made directly to the non-military spouse and each party will be issued an IRS Form 1099-R for the retirement benefits received during each tax year.

 

Language should be included by the parties’ attorneys about the intended tax consequences of the distributions. Such language should include relevant citations to IRS statutes or regulations to eliminate ambiguity about the parties’ agreed intent.

 

If the parties do not qualify under the Ten Year Rule, that does not mean the ex-spouse does not have rights to the retirement payments.  Those rights are determined by state law, and the ex-spouse can gain those rights with as little as 1 day of marriage during the military service.  But if the Ten Year Rule is not met, then the recipient of the retirement benefits will have to make regular payments to his or her ex-spouse on his or her own. The DFAS will not not make the payments.

 

The Wilson Law Firm, a Professional Corporation, at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents parties involved in domestic relations disputes.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson or visit its website at http://www.wilsonlawfirmca.com /.

Ensuring Approval of a Military Pension Order

Military Pension OrderThe Uniformed Services Former Spouses’ Protection Act (USFPA) provides the manner in which the pension benefits earned by members of the military can divide such benefits in the event of divorce, legal separation, annulment or marital dissolution of the member and spouse. It is important to note that a mere separation agreement, without formal approval, cannot successfully effectuate such future division. In order to be enforceable, a military pension order must be comprised in a “final decree of divorce, dissolution, annulment, or legal separation issued by a court” or a property settlement that is ratified or approved by the court and issued incident to such a final decree.

 

Besides these concerns about the method of getting approval for a military pension order by judicial decree, enforceability of such orders require meeting some jurisdictional constraints. A a state court may only exercise jurisdiction over a service member’s pension rights when the military member:

 

  1. is domiciled in the state in which the suit for the divorce or property division occurs; or

 

  1. resides in the state in which the lawsuit occurs (other than because of military assignment); or

 

  1. consents to the jurisdiction of the court in which the lawsuit occurs.

 

For members of the military who are still on active duty, it is necessary that the military member’s rights pursuant to the Servicemembers Civil Relief Act (SCRA) are observed and honored. The Defense Finance and Accounting Service (DFAS) will notify the member that payments will start not later than 90 days after the service date of the approved application or the start of retired pay, whichever is later.

 

In future blog posts, the specific elements of pension division clauses, will be discussed.

 

The Wilson Law Firm, a Professional Corporation, at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents parties involved in domestic relations disputes.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson or visit its website at http://www.wilsonlawfirmca.com /.

FedEx Lawsuits Filed in I-5 Bus Crash

15057433_sLawsuits continue to mount against FedEx in the I-5 bus crash that killed ten people.  The accident involved a collision between a FedEx tractor trailer and a charter bus carrying students to Humboldt State University. The parents of Mattison Haywood, a school chaperone killed in the crash, become the latest family to file a wrongful death lawsuit against the cargo carrier.

 

The Haywood suit was filed in Los Angeles Superior Court on July 14, 2014.  This suit joins recent lawsuits against FedEx and Silverado Stages, the charter bus company.  The family of Ismael Jimenez, 18, who also died in the crash attempting to save his classmates, has filed a lawsuit, alleging wrongful death, along with the families of Jennifer Bonilla who was killed on impact, and Miles Hall, who was severely injured in the crash.

 

The April 10 crash occurred on I-5 near Orland, when a FedEx tractor trailer allegedly crossed the median and crashed head-on into a bus containing a group of prospective students on a chartered visit to Humboldt State University.

 

According to the National Transportation Safety Board preliminary report, after the FedEx tractor trailer crossed the median, it struck a Nissan Altima, and then collided with the bus, which caused both vehicles to roll off the freeway and burst into flames.  The drivers of both the tractor trailer and the bus were killed on impact.  Eight additional passengers were killed, and occupants of the Nissan and the charter bus received varying degrees of injuries.

 

The tractor trailer originated at the FedEx facility in Sacramento.  The driver had left Sacramento thatmorning, delivered two trailers and picked up two more at a facility in Weeds, California, and was southbound on I-5 en route back to Sacramento.  The bus originated in Los Angeles, and was northbound on I-5 en route to the Humboldt State campus in Arcata.

 

This accident resulted in the tragic loss of life of young students, teachers, and two drivers.  And while this accident gained national coverage, it unfortunately is only one of hundreds of accidents that happen on California roadways each day.

 

If you have been injured in an auto accident, or have lost a loved one as the result of someone else’s negligence, you need a tough, smart attorney on your side.  Dennis M. Wilson has been representing California families and individuals throughout the Sacramento area for more than 40 years in family law, litigation, and personal injury matters.  Visit the Wilson Law Firm online or call us at (916) 608-8891 for a free consultation today.

Removed Board Director Avoids Anti-SLAPP Sanctions

Folsom California business litigation attorney A member of the board of directors of a non-profit corporation, Dan Murphy Foundation, managed to avoid anti-SLAPP (define “anti-SLAPP”) sanctions in response to his complaint for declaratory relief and alleging wrongful removal of him as a director.  James Donovan argued he was wrongfully removed as a director of the Foundation after he raised concerns about the Foundation’s financial oversight and governance. The Defendants in the case responded to Donovan’s case by filing an anti-SLAPP counterclaim alleging that the voting by the members of the Board constituted a protected activity.

 

Section 425.16 of the anti-SLAPP statute protects any “`act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.'” The Defendants in the case took the position that, because the Foundation was a non-profit corporation which was authorized by California law, the act of voting by the board members constituted the exercise of free speech. Donovan countered that the votes he demanded in his role as board member represented exercise of his duties as a concerned director.

 

At the trial level, the court did strike Donovan’s complaint and issued anti-SLAPP sanctions against him. On appeal, the court of appeals reviewed prior cases which illustrate the contours between what are protected activities as implicating constitutional rights and what constitutes the lawful exercise of duties by a corporate director.  The appellate court noted that the mere act of voting, however, is insufficient to demonstrate that conduct challenged in a cause of action arose from protected activity.  Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183, fn. 3 [118 Cal.Rptr.2d 330. Likewise in Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318 [135 Cal.Rptr.2d 903, the court held(?) that  defendants were not sued for their conduct in exercising their constitutional rights, but to compel their compliance with the provisions of the rent control law. According to the court of appeals in Donovan v. Dan Murphy Foundation, 204 Cal. App. 4th 1500 (Ct. App.2nd. App. Div. 2014) a board may have a statutory right to remove a director, but the exercise of that right is not necessarily an exercise of a free speech or petitioning right.

 

The California court of appeals reversed the decision of the lower court. This means that Donovan will not be subject to sanctions and his complaint will not be struck. The reversal, however, does not render any decision on the merits of Donovan’s claims concerning unlawful removal and entitlement to declaratory relief. But it does clarify the types of cases which implicate protected activities and which actually constitute legitimate causes of action which can be brought in California cases without subjecting oneself to sanctions and dismissal.

 

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 .represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Revised Uniform Limited Liability Company Act Brings Some Changes to How LLCs Function in California

Folsom California business litigation lawyer Last year the California Legislature passed new legislation revising the state’s laws governing limited liability companies. The new framework, known as RULLCA (California Revised Uniform Limited Liability Company Act), replaces the former statutory scheme and includes some significant changes which people forming limited liability companies need to recognize.

 

As with the previous scheme, limited liability companies (LLCs) may have both managers and members. But, in order for an LLC to constitute a manager-led LLC, both the Articles of Organization forming the LLC and the Operating Agreement setting the rules for the LLC must state that the LLC intends to have managers. Under the law as it existed prior to January 1, 2014, it was only necessary for such a statement to be included in the Articles of Organization.

 

Furthermore, some actions which managers can take on behalf of an LLC are now limited. These include: (1) a sale, lease or exchange of all or substantially all of the assets of the company and (2) any action outside the “ordinary course” of the company’s business. However, if the Operating Agreement contains language which gives managers the power to sell, lease, or exchange the company’s assets, then this limitation does not apply. Otherwise, such actions would entail the unanimous consent of all members. Accordingly, the Operating Agreement under RULLCA needs to be drafted with great attention to whether it is desirable to vest such authority in a manager or not. If the manager is not given such authority, a single member could wield significant veto power over these decisions affecting the company.

 

The new Act also delves more deeply in to what constitutes the fiduciary duties of members and managers of a LLC. These duties include the duty of loyalty, the duty of care, and “any other fiduciary duty.” RULLCA does give LLCs the chance to modify the duty of loyalty by expressly defining it in the LLC’s Operating Agreement.

 

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Perils of Pro Se Representation Undermine Recovery in CERCLA Case

California business litigation attorneyIn the federal courts, corporations cannot bring a civil action without representation by legal counsel. In addition, suspended corporations – or corporations not in “good standing with the California Secretary of State’s office” – cannot sue in a California court, according to California Revenue & Tax Code section 23301 and California Corporations Code section 2205.   These prohibitions, as well as the pro se litigant’s apparent inability to prepare a proper legal pleading caused a plaintiff, Omo Fagbohugbe, to, at least temporarily, lose his lawsuit against a few defendants he sued in an effort to recover sums he allegedly incurred for environmental cleanup work.

 

The plaintiff originally sued without a lawyer, both as an individual and also on behalf of Dave Drilling Environmental Engineering, Inc. (DDEE), three defendants for violations of CERCLA (Comprehensive Environmental Response, Compensation, and Liability Act), nuisance, trespass, waste and declaratory relief. The claims raised by DDEE were dismissed for two reasons: (1) as a suspended corporation under California law, DDEE lacks the capacity to prosecute a lawsuit in a California court and (2) the corporation, even if it were “active” under applicable law, would need to be represented by counsel in federal court. The District Court in Omo Fagbohugbe v. Caltrans, Case No. 13-cv-03801-WHO (USDC N.D. CA. 2014) refused to permit the corporation to sue the named defendants.

 

It did, however, consider the claims brought individually against three defendants: a dry cleaning operator, its(?) insurance company, and an adjacent property owner. With regard to each of these defendants, however, the Plaintiff failed to explain each of the claims he was raising with the specificity required by the District Court.   The remaining defendants in the case filed a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6). In order to survive such a motion, the plaintiff must make a claim that is facially plausible. To meet that standard the plaintiff must plead facts that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” As the recitations made by the Plaintiff failed to meet this standard, the District Court dismissed most of the claims against the insurance company, Firemen’s Fund, although it did give the Plaintiff an opportunity to amend its Complaint – for a second time – relating to the remaining claims. Furthermore, the Plaintiff was given an opportunity to serve two other defendants – not yet part of the case – by a particular date set by the court.

 

In general, the case serves as a cautionary tale for individuals who believe they can successfully file civil actions without the aid of representation. It is likely the costs the individual plaintiff incurred by his flawed prosecution of the case far exceed any benefits he may have gained from the effort.

 

The Wilson Law Firm, a Professional Corporation, at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 handles wrongful death cases for the families or representatives of deceased individuals.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson

Supreme Court Rules for Private Landowner against Federal Government after Railroad Abandons Right of Way

California business litigation lawyer In the 1860’s and 70’s the federal government pursued a national policy to encourage the construction of railroads across the continent as a way to encourage commerce and enhance national security. Initial public acts gave direct land grants and subsidies to railroad companies but many citizens opposed these preferences to those interests and believed it conflicted with homestead legislation seeking to facilitate citizens’ development of lands out west   So in 1875 Congress passed the General Railroad Right-of-Way Act of 1875 (“the 1875 Act “) which granted railroad companies rights of way on federal lands to place and maintain railroad tracks and, if necessary, place railroad stations adjacent to the rights of way. A recent decision by the Supreme Court addressed what happens to such a right of way when the federal government sells some of its property to a private landowner and the railroad company holding the right of way has abandoned its interest in the right of way.

In 1976 the United States patented – or conveyed – an 83-acre parcel of land to Melvin and Lulu Brandt. The patent gave fee simple title of the land to the Brandts “subject to those rights for railroad purposes as have been granted to the Laramie Hahn’s Peak & Pacific Railway Company, its successors or assigns.” This particular right of way, like others, was granted pursuant to the 1875 Act.  The right of way is 66 miles long and 200 feet wide, and it meanders south from Laramie, Wyoming, through the Medicine Bow-Routt National Forest, to the Wyoming-Colorado border. In total, it covers ten acres of the parcel bought by the Brandts.

In 1987 the Union Pacific Railroad sold the right of way to the Wyoming and Colorado Railroad which decided in 1996 to abandon the right of way. By 2004 the railroad company had literally torn up the tracks and completed its abandonment of the right of way. Two years later, the United States sought to quiet title to that parcel. While some of the other landowners in the area did not make an objection to the attempt of the federal government to recover the property encompassed by the rights of way, Marvin Brandt contested the effort contending the abandoned right of way represented the termination of a use of an easement by the railroad not a reversion of that ten-acre parcel to the United States.

By a 8-1 margin, the United States Supreme Court agreed with the Brandts and overturned two lower court decisions in favor of the United States. In  Marvin M. Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 188 L. Ed. 2d 272 (2014) [2014 BL 64054], the high court held the right of way was an easement that was terminated by the railroad’s abandonment, leaving Brandt’s land unburdened. It relied on earlier precedent established in Great Northern R. Co. v. United States, 315 U. S. 262,that the 1875 Act “clearly grants only an easement” not some reversionary interest which would put the property back in the hands of the federal government once the railroad company abandons the right of way.

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson or visit its website at http://www.wilsonlawfirmca.com

State’s Attorney General Bringing Dissolution Action

business attorney Folsom CaliforniaShareholders, directors, and other individuals expressly authorized to dissolve the corporation are not the only ones with the capacity to demand the dissolution of a corporation. The Attorney General of California can move to have a corporation dissolved as well. California Corporations Code Section 1801(a) provides the following grounds necessary for an involuntary dissolution by the Attorney General:

 

  1. The corporation has seriously offended against a provision of the statutes regulating corporations;
  2. The corporation has fraudulently abused or usurped corporate powers or privileges;
  3. The corporation has violated any provision of law or any act or default which, under the law, is a ground for forfeiture of corporate existence under state law; and
  4. The corporation has failed to pay the Franchise Tax Board for a period of five years any tax legally imposed upon it.

 

The procedure established by Section 1801 provides for, in subsection (b) thereof, the Attorney General giving a corporation the opportunity to remedy any of these defects that serves as a ground for involuntary dissolution prior to filing suit. For instance, the failure to pay some fee or tax to the Franchise Tax Board may constitute a curable problem that the Attorney General may give the corporation a specific period of time to fix. This example, however, does not exhaust all defects which may be remedied.  A shareholder, director, or officer for a corporation facing a potential dissolution action by the Attorney General should immediately consult with legal counsel in order to discuss the possible merit of any allegations made by the Attorney General as well as the procedure necessary to challenge or cure, if so desired, any such contentions.

 

The Wilson Law Firm, a Professional Corporation,  at 1120 Iron Point Rd Suite 100, Folsom, CA 95630 represents shareholders, directors and officers involved in corporate litigation.  Call The Wilson Law Firm, a Professional Corporation at the firm’s office at: 916-608-8891 to set up an appointment to speak with Attorney Dennis Wilson or visit its website at http://www.WilsonLawFirmCa.com  .