|1. How can I settle my problem out of court?
| Instead of going to court, you can try
to settle your problem through
"alternative dispute resolution."
Usually, this means that a "neutral
third party" - someone who has nothing
to do with the dispute - either decides
what is right or helps both sides find a
way to settle their differences.
|1. Can I include IRS Taxes in my bankruptcy petition?
| In most cases, IRS taxes are due and payable no matter what your current situation.
|2. Do I have to go to court?
| Not exactly, but you will have to
attend a hearing
presided over by the
This hearing is called
the First Meeting of
Creditors. At this
hearing, the trustee
will ask questions
under oath regarding
the content of your
assets, debts and other
|3. Do I have to notify my creditors and bill collectors?
| No. After your bankruptcy is filed,
the court mails a
notice to all the creditors
listed in your
schedules. This usually takes
a couple of weeks. If
this is not soon
enough, then you
should have your
|4. How can I afford to file bankruptcy if I am already broke?
| A simple bankruptcy case can cost anywhere from $500 & up, depending on the complexity of your situation. Many attorneys can structure a payment plan for you, or can find a way to help you pay based on your finances. Or there are legal bankruptcy clinics that may charge on a sliding scale based on your income.
|5. How long will the bankruptcy stay on my credit records?
| A bankruptcy stays on your
record with credit
reporting companies for
10 years, but this is
not as bad as it sounds
because other kinds of
"bad credit" like
"slow pay" or "no pay"
stay on your record
for 7 years and will give
you the same kind of
credit problems that a
bankruptcy filing will
give you even if you
pay all the money back
never have to do if
you file for chapter 7
|6. How will the bankruptcy laws protect me?
| From the moment you file, all
your creditors (i.e.
anyone you owe money
to) will automatically
be stayed (that is,
stopped) by the
Stay from commencing
or continuing any
against you or from
garnishing your wages or
taking your property.
Not only that, but all
debts will be wiped out
and you will never
have to pay them.
|7. If I am married, will my spouse have to file bankruptcy also?
| No, but if most of your debts are
joint debts your
spouse may want to. In
some cases where only
one spouse has
debts, or one spouse
has debts that are
not dischargeable, it
might be advisable to
have only one spouse
file. In cases where
real property is
involved the question
regarding a joint
bankruptcy is beyond the
scope of this FAQ. See
|8. If I filed bankruptcy before, can I ever file again?
| Yes. You can file six years from the date you got your "discharge".
|9. Is there a limit to the amount of debt that you must have in order to file for bankruptcy?
| There is no limit, but a qualified
attorney could help to inform you about
your options based on your own income
and debt ratio. Sometimes there may be
other solutions to your problems, such
as debt consolidation or credit repair.
|10. My parents co-signed on one of my debts. Will they still have to pay it?
| Yes, even if your obligation to
pay the debt is
discharged in bankruptcy
your co-signers will
responsible for the
|11. What are the various chapters of bankruptcy?
| Debtors have a choice when deciding what
chapter of the Bankruptcy Code will best
meet their needs. Even if a debtor has
already filed a petition under one
chapter, it may be possible to change
the case to another chapter.
Chapter 7 is the liquidation chapter of
the Bankruptcy Code. Under chapter 7, a
trustee is appointed to collect and
sell, if economically feasible, all of
the debtor's property that is not exempt
from the bankruptcy proceeding.
Chapter 11 is the reorganization
chapter, which is most commonly used by
businesses but is also available to
individuals. Creditors vote on whether
to accept or reject a proposed repayment
plan, which also must be approved by the
court. While the debtor normally
remains in control of the assets, the
court can order the appointment of a
trustee to take possession and control of
the debtor's business and property.
|12. What if I forget to list a creditor when
I file my bankruptcy papers?
| If you simply forgot about a
creditor and there are
no assets for your
creditors, the debt
will be discharged
anyway. It is perjury
to intentionally omit a
creditor. However, you
are permitted to file
an amendment to your
schedules up to a
certain time before
discharge. If the
amendment is timely
filed, the omitted
creditor is added to
the bankruptcy. This is
a nuisance though so
it is better to be
thorough the first
|13. What kind of debts can NOT be wiped out through bankruptcy?
| Generally speaking, the following
debts will not be
spousal and child
support; debts arising out
of your willful
misconduct and or malicious
for injury or death from
debts from a prior
loans and criminal
fines, penalties and
|14. Will bankruptcy remove a lien?
| Not by itself. Under some
special motion can be
filed to remove
certain liens. This is a
complicated area of
the bankruptcy law and
an attorney should be
|15. Will bankruptcy stop a foreclosure?
| Yes. However, a home is an
asset usually secured
by a deed of trust.
The lender is entitled
to apply to the court
for permission to go
forward with the
although your debt on the
house may get
discharged the secured
lender gets to take
the collateral (in this
case the house) back.
|16. Will bankruptcy stop a lawsuit?
| Yes. Most civil lawsuits are
stopped by bankruptcy.
|17. Will bankruptcy stop a wage attachment?
| Yes. But if you wait until the
wage attachment starts
taking money out
of your paycheck it is
tough to get the
|18. Will bankruptcy stop an eviction (unlawful detainer) action?
| Yes, but only temporarily. The
owner is entitled to
possession of his
property and at best
you will be able to
remain in the property
until you have
discharge from bankruptcy or
the landlord obtains
an order from the
|19. Will I lose my car or home if I file bankruptcy?
| There is always a possibility that you
may lose either or both, but a good
attorney can structure your bankruptcy
so that you can exempt those items as
long as you can stay current on your
|20. Will my creditors get to question me?
| After the trustee is done, your
creditors will be
permitted to question you.
DO NOT PANIC. Your
attorney will help
you prepare for the
hearing and will be
there to represent
you. You will normally
not need to return to
court after this
hearing. However, if a
creditor files a
motion or an adversary
action, you may
have to return to
court. This doesn't happen
|21. Will my employer find out about my bankruptcy?
| No, not under normal
only people who will
get notice of the
proceedings are the
creditors you list in
your petition. The only
others who will know
about it are people
you tell - and the
people they tell. So, do
yourself a favor, keep
it to yourself.
|1. Can someone other than a police officer arrest me?
| Any person, such as a private security
guard, can make a citizen's arrest if
they see a misdemeanor being attempted
or committed. (A misdemeanor is a
criminal offense, usually punishable
with a fine or short jail term.) They
also can make a legal arrest for a
felony as long as it actually was
committed and they have good reason to
believe you did it. They must take you
to a police officer or judge who is
required by law to take you into
|2. How can I find a lawyer?
| If you can afford a lawyer but do not
know one, you can call your local State
Bar certified lawyer referral services
in your area ~ 1-877-ARS-ARS8
(1-877-277-2778) ~ Attorney Referral
Service, www. AttorneyReferrals.org/, or www.LawyerReferral.com/.
A friend, a co-worker or your
employer, as well as doctors, ministers
or teachers may be able to recommend a
lawyer. If you belong to a legal
insurance plan as an individual or
through your company, labor or credit
union, the plan may provide a lawyer to
represent you. Ask for a lawyer who is
qualified in criminal law. If you
decide to hire a lawyer, make sure you
understand what you will be paying for,
how much it will cost, and when you are
expected to pay your bill.
|3. Once I am told my rights, can I be questioned?
| You can be questioned, without a
lawyer present, only if you voluntarily
give up your rights & if you understand
what you are giving up. If you agree to
the questioning, then change your mind,
questioning must stop as soon as you say
so or you say you want a lawyer. If the
questioning continues after you request
a lawyer and you continue to talk, your
answers can be used against you if you
testify to something different.
You may be required to give certain
physical evidence. For example, if you
are suspected of driving under the
influence of alcohol you may be
requested to take a test to measure the
amount of alcohol in your system. If
you refuse to take a test, your driver's
license will be suspended and the
refusal will be used against you in
Once you are booked, meaning your
arrest is written into official police
records and you are fingerprinted and
photgraphed, you have a right to make
and complete three telephone calls that
are free within the local dialing area.
|4. What happens at a preliminary hearing?
| During the preliminary hearing, usually
within 10 court days of the arraignment,
the district attorney's office must
present evidence showing a reasonable
suspicion that a felony was committed
and that you did it to convince the
judge that you should be brought to
You may have a second arraignment. If
the felony Charges are not dropped at
the preliminary hearing, you will be
arraigned in superior court where your
trial later will be held.
If you are charged with a crime and
unable to understand English, you have a
right to an interpreter throughout the
|5. What happens at an arraignment?
| You have the right to be arraigned
without unnecessary delay--usually
within two court days--after being
arrested. You will appear before a
municipal or a justice court judge who
will tell you officially of the charges
against you at your first arraignment.
At the arraignment, an attorney may be
appointed for you if you cannot afford
one, and bail can be raised or lowered.
You also can ask to be released on
O.R., even if bail was previously set.
If you are charged with a misdemeanor,
you can plead guilty or not guilty at
the arraignment. Or, if the court
approves, you can plead nolo contendere,
meaning that you will not contest the
charges. Legally this is the same as a
guilty plea, but it cannot be used
against you in a non-criminal case,
unless the charge can be punished as a
Before pleading guilty to some
first-time offenses, such as drug use or
possession in small amounts for personal
use, you may want to find out if your
county has any drug diversion programs.
Under these programs, instead of fining
you or sending you to jail, the court
may order you to get counseling which
can result in dismissal of the charges
if you complete the counseling.
If misdemeanor charges are not
dropped, a trial will be held later in
municipal court. If you are charged
with a felony, however, and the charges
are not dropped, the next step is a
|6. What if I can't afford a lawyer?
| The Public Defender's Office may provide
you with a lawyer or the court will
appoint one for you. The U.S.
Constitution guarantees anyone charged
with a crime the right to legal counsel.
Public Defenders are experienced
attorneys in criminal law and are
unrelated to the prosecutors and police.
|7. What is an arrest?
| When you are arrested, you are taken
into custody. This means that you are
not free to leave the scene. Without
being arrested, you can be detained,
however, or held for questioning for a
short time if a police officer or other
person believes you may be involved in a
crime. For example, an officer may
detain you if you are carrying a large
box near a recent burglary site. You
may also be detained by storekeepers if
they suspect you have stolen something.
Whether you are arrested or detained,
you do not have to answer any questions
except to give your name and address and
show some identification if requested.
|8. What is bail, and how is it set?
| The amount of bail--money or other
security deposited with the court to
insure that you will appear--is set by a
schedule in each county. You may be
notified that you can forfeit or give up
bail instead of appearing in court if
you receive a traffic citation.
However, if you have any doubt, go to
court so a warrant is not issued for
your arrest for failing to appear. Bail
forfeiture does not apply to
misdemeanors or felonies. Forfeiting
bail does not mean that the charges are
dropped and usually works as a
conviction for a traffic offense.
Officers at the jail may be able to
accept bail. If you cannot post or put
up the bail, you will be kept in
custody. Depending on where you are
arrested, you may have the opportunity
to request a bail reduction through a
When you are taken to court for bail
setting or release, the judge will
consider the seriousness of the offense
you are charged with, any prior failures
to appear (even for traffic tickets),
any previous record, your connections to
the community, as well as the
probability that you will appear in
court. The amount of bail is set
according to a written schedule based on
your charges. The law presumes you are
guilty of the charges for purposes of
setting bail or release.
Instead of paying bail, you might be
released on your own recognizance or
"O.R." (or "supervised O.R."). This
means that you do not have to pay bail
because the judge believes that you
will show up for your court appearances
|9. What rights do I have?
| Whether you are an adult citizen or
non-citizen, you have certain rights if
you are arrested.
Before the law enforcement officer
questions you, he or she should tell you
~ You have the right to remain silent.
~ Anything you say may be used against
~ You have a right to have a lawyer
present while you are questioned.
~ If you cannot afford a lawyer, one
will be appointed for you.
These are your "Miranda" rights,
guaranteed by the U.S. Constituion. If
you are not given these warnings, your
lawyer can ask that any statements you
made to the police not necessarily mean
that your case will be dismissed. This
does not apply if you volunteer
information without being questioned by
|10. When can an officer conduct a search?
| An officer always may make a search with
either your consent or a search warrant.
You have a right, however, to see the
warrant before the search begins.
|11. When can I be released?
| If, during the questioning and before a
charge is filed, the police are
convinced that you have not committed a
crime, they will give you a written
release. Your arrest then will be
considered a detention and not be
recorded as an arrest.
|12. When is an arrest warrant used?
| Usually a warrant is required before you
can be taken into custody in your home.
But you can be arrested at home without
a warrant if fast action is needed to
prevent you from escaping, destroying
evidence, endangering someone's life or
seriously damaging property. The
warrant must be signed by a magistrate
or judge, who must have good reason to
believe that you, whom the warrant
names, committed a crime. If your name
is unknown, "John Doe" can be used on
the warrant--along with your
Once an arrest warrant is issued, any
law enforcement officer in the state can
arrest you--even if the officer does not
have a copy of the warrant.
Generally, there is no time limit on
using a warrant to make an arrest.
Before entering your home, a law
enforcement officer must knock and
identify himself or herself and tell you
that you are going to be arrested. If
you refuse to open the door--or if there
is another good reason--the officer can
break in through a door or window.
If the police have an arrest warrant,
you should be allowed to see it. If
they don't have the warrant with
them, you should be allowed to see it as
soon as practical.
The police may search the area within
your reach. If you are arrested
outdoors, they may not search your home
Resisting an arrest or detention is a
crime. If you resist arrest, you can be
charged with a misdemeanor or felony in
addition to the crime for which you are
being arrested. If you resist, an
officer can use force to overcome your
resistance or prevent your escape. The
officer can even use deadly force if it
appears you will use force to cause
great bodily injury.
|13. When should I see a lawyer?
| If you are arrested for a crime,
particularly a serious one, you should
contact a lawyer as soon as possible.
He or she has a better sense of what you
should and should not say to law
enforcement officers to avoid being
misinterpreted or misunderstood. The
lawyer also can advise you or your
family or friends on the bail process.
|14. Who can arrest me?
| All law enforcement officers--such as
police officers, county sheriff
officers, investigators in a district
attorney's or an attorney general's
office and highway patrol officers--can
arrest you whether they are on or off
duty, in most cases. A probation or
parole officer also can arrest you.
They can arrest you--even if they do
not have an arrest warrant--if they have
probable cause or good reason to believe
you committed a felony, such as armed
robbery. (A felony is a crime of a more
serious nature than a misdemeanor,
usually punishable by imprisonment for
more than a year.) They do not have to
see you commit a felony in order to
arrest you. They do, however, have to
see you commit a misdemeanor in order to
If you commit an infraction, instead
of taking you into custody, they may ask
you to sign a citation or notice. This
is a minor offense, such as a moving
violation, where the punishment usually
is a fine. If you sign the citation,
you are not admitting guilt; you are
only promising to appear in court. If
you have no identification or refuse to
sign, however, an officer may take you
|15. Who maintains arrest records and what do they include?
| Local police departments and the State
Department of Justice keep arrest
records. According to law, they cannot
show them to anyone except law
enforcement officers and may only show
records of your convictions to certain
licensing agencies which have a right by
state law to investigate your criminal
The arrest record includes when and why
you were arrested, whether the charges
against you were dropped or whether you
were convicted of the charges, and the
subsequent sentence imposed. Both
pleading guilty and being found guilty
after a trial count as convictions.
If you are convicted of committing a
misdemeanor, placed on probation and
stay out of trouble, you are able to
have the conviction removed from your
record for such purposes as employment
background checks after probation is
over. If you are convicted of certain
felonies and you successfully complete
probation, you can have the felony
reduced to a misdemeanor on your record.
You must contact the probation officer
in either instance to clear your record.
|1. Is a Will enough to protect my assets, or should I consider a Revocable Living Trust?
| A WILL alone may not be enough, and may
lead to a long, costly and public
process of PROBATE. If you want to do
all that you can to avoid PROBATE, you
may want to consider a REVOCABLE LIVING
TRUST. A properly prepared and funded
LIVING TRUST can help you to eliminate
probate; keep your estate & affairs
private; keep control of your property
if you become disabled; and give
authority to your family to authorize
medical care. Many financial planners
feel that no middle class family should
be without one.
|2. What is Estate Planning?
| Estate Planning is a process. The process generally has two parts. One part involves planning for the management and disposition of your property both during your lifetime and after your death. The second part is planning for your own personal health care in the event that you are no longer able to provide for such care. Like many people, you may think that estate planning only requires the preparation of a will. But estate planning encompasses much more. As you will see, estate planning may involve financial, tax, medical and business planning, as well as the preparation of a will. The purpose of the following FAQ's is to summarize the estate planning process and what the process means to you.
|3. What is involved in Estate Planning?
| The form of your estate plan will depend upon your particular circumstances. In planning your estate, your goals and wishes should be given the highest priority.
|1. Can I get a legal separation or an annulment instead of a dissolution?
| Yes, you can get a legal separation or
nullity without having lived in
California for six months or your county
for three months before filing.
• Legal Separation. You may have
religious, insurance, tax or other
reasons for wanting a legal separation
rather than a dissolution. If you obtain
a legal separation, you will remain
married to the other party, but the
court can divide your property and make
orders relating to child custody,
visitation, child support, spousal
support, and restraining orders.
• Nullity. If you are granted a nullity
it means your marriage never existed.
You may be able to get a nullity if you
married when you were a minor
without the consent of your parents or
guardian, or if certain types of “fraud”
or deceit were involved.
|2. How do I file for dissolution?
| To obtain the proper forms, you can
purchase a dissolution form packet for a
minimal fee from the clerk of your
county’s superior court. You or
your lawyer must prepare the forms
called “Petition” and “Summons.” You
start your action by filing the Petition
and Summons with the clerk of
the superior court of the county where
you or your spouse lives.You must pay a
fee to file these papers unless you have
a very low income and
qualify for a fee waiver.
A copy of the Petition, the Summons, and
a blank “Response” must be served on
your spouse by someone other than
yourself who is an adult
(over the age of 18). The Summons is a
paper that gives notice to your spouse
that you are filing for a dissolution
and that he or she has 30 days
in which to file the Response. The
Summons also contains restraining orders
that prohibit you and your spouse from
removing your minor
children from the state without the
other spouse’s approval, disposing of
property without the other spouse’s or
court’s approval, and canceling
or changing insurance policies.
In the Response, your spouse indicates
the areas of disagreement that need to
be resolved by the court. For example,
your spouse might object
to your request for spousal support or
sole custody of your children.
|3. Does the judge consider what our children want?
| The judge must consider what the child
wants if the child is “of sufficient age
and capacity to reason.” The judge is
not required to follow the
child’s wishes. It may be difficult to
determine the child’s true wishes if the
child has been coached by one or both of
the parents. Most often,
children don’t want to cause hurt to
either parent. The court mediator or
other counselor may meet with the child
to help convey the child’s real
|4. How do I enforce a custody or visitation order?
| There are several alternatives to
enforcing a court order. If you have a
certified copy of your court order, law
enforcement may help you. In
addition, if you are unable to locate
your child, you may seek assistance from
the district attorney in your county.
You may also bring an action
asking the court to find the party who
has violated the order in contempt of
court. If the other parent won’t obey
the order, and the above
suggestions don’t seem to work for you,
you may want to consult an attorney.
|5. How will our property be divided?
| The laws of California recognize that
both spouses make valuable contributions
to a marriage. Most property will be
labeled either “community
property” or “separate property.”
• Community Property. All property, real
or personal, in or out of the state that
either you or your spouse acquired
through labor or skill during the
marriage is community property. You and
your spouse may have more community
property than you realize. For example,
you may have an
interest in pension and profit-sharing
benefits, stock options, and other
retirement benefits. Each spouse owns
one-half of all community
property. This is true even if only one
spouse worked outside of the home during
the marriage and even if this property
is in only one spouse’s
With few exceptions, debts incurred
during the marriage are community
obligations. This includes credit card
bills, even if the card is in your
name only. Student loans are an
exception and are considered separate
property debts. Community property
possessions and community
property debts are divided equally
unless you and your spouse agree to an
unequal division. You should be aware
that if your spouse agrees to
pay a community debt and then fails to
pay, you may have to pay the creditor.
Division of possessions and debts can be
complicated. You may
each want a lawyer's advice before
entering into an agreement.
If you and your spouse can’t agree on
the division of debts and possessions, a
judge will make the decision. Ownership
of each of your
belongings might not be split between
you and your spouse; instead, a judge
might give each of you items of equal
value. For example, if your
spouse gets the furniture and
appliances, you might get the family car
or something else of equal value.
• Separate Property. Separate property
is property acquired before your
marriage, including rents or profits
received from these items; property
received after the date of your
separation with your separate earnings;
inheritances that were received either
before or during marriage; and
gifts to you alone, not you and your
spouse. Separate property is not divided
Problems with identifying separate
property occur when separate property
has been mixed with community property.
You may be entitled to
receive your separate property back even
if it has been mixed. There are complex
tracing requirements where property has
been mixed, and
you may want to seek the advice of a
Debts incurred before getting married or
incurred after separating from your
spouse are your separate property debts.
You will be required to file proof that
you listed all of your “community” and
“separate” property on a document called
a “Preliminary Declaration
of Disclosure” and that you served this
document on your spouse. Determining the
character of property can be
complicated. Your lawyer can
help make sure your property is properly
listed as “community” or “separate.”
|6. If a custody plan doesn't work, can it be changed?
| Yes, once a temporary or permanent order
has been established, if circumstances
change, you can return to the court and
request a change in
the parenting plan. The same procedures
discussed in question #10 will apply to
a request to change an already
established parenting plan. If
you and the other parent are able to
reach an agreement, you can submit your
agreement to the judge and request an
order. Judges often
approve changes even without a hearing
if you both request them.
|7. Should I be represented by a lawyer?
| Property settlements and custody
disputes can be very complicated. A
lawyer can, for example, help you decide
which of your belongings are
community property and which are
separate. A lawyer can tell you how the
court may divide your property and help
you put your property
settlement agreement into writing. A
lawyer can tell you about your rights
and duties concerning your children.
A lawyer can advise you if an unexpected
problem comes up and can also attempt to
protect you if your spouse files for
bankruptcy before you
receive the money due to you in a
property settlement. In addition, a
lawyer can advise you on how much money,
if any, you should pay or receive
for spousal or child support.
Lawyers who handle dissolution and
custody cases are called family law
attorneys. Some are “certified
specialists” in family law. This means
that they have met standards for
certification by the State Bar of
California. The standards include
meeting certain experience requirements
passing an exam. Not all lawyers who
have experience and expertise in family
law, however, have sought certification.
To find a lawyer, you could call a State
Bar-certified lawyer referral service in
your area. Look in the Yellow Pages of
your telephone directory at
the beginning of the “Attorneys”
listings under “Attorney Referral
Service, ” or call your local bar
association. For an online list of
referral services, visit the State Bar’s
web site at www.calbar.org.
State Bar-certified lawyer referral
services seek to find the right lawyer
for your particular problem. Most of
these services offer half-hour
consultations for a modest fee (usually
$25 to $50) to help determine the most
appropriate lawyer to handle your
Lawyer referral service fees vary.
Don’t forget to ask whether there is a
fee for the referral or initial
consultation. And if you decide to hire
a lawyer, make sure you understand what
you will be paying for, how much it will
cost and when you will be expected to
pay your bill.
For more information, see the State Bar
pamphlet How Can I Find and Hire the
Right Lawyer? To find out more about
ordering a complimentary
copy of this pamphlet and other State
Bar consumer education pamphlets, call
415-538-2280. Or visit the State Bar’s
site—www.calbar.org—where you’ll find
the bar’s consumer pamphlets, as well as
information on ordering them. The
pamphlets also may be
ordered in bulk.
|8. What are the grounds for divorce in California?
| You or your spouse must have lived in
California for six months and in your
county for three months before filing a
petition to dissolve your
marriage. In California, there are two
grounds for “divorce,” now called
• Irreconcilable Differences. Your
marriage will not work and counseling
will not help save the marriage.
• Incurable Insanity (rarely used).
Medical proof that one spouse was insane
when the petition was filed and remains
incurably insane, is
|9. What choices does the judge have in granting custody and visitation rights?
| The judge must give custody to one or
both of the parents, or, in some cases,
another adult based on the best
interests of the child or children.
Factors considered include the
children’s health, safety, and welfare
as well as any history of abuse by one
parent. If custody is awarded to a
non-parent, the judge would have to
believe that giving custody to either
parent would be detrimental or harmful
to the children.
• Joint Legal Custody. The parents share
the right and responsibility to make
important decisions about their
children’s health, education and
welfare. These decisions might include
such things as where the children will
go to school or whether they should have
braces on their teeth.
• Sole Legal Custody. One parent shall
have the right to make decisions
relating to the health, education and
welfare of the children.
• Joint Physical Custody. The children
spend time living with each parent on a
regular basis. It does not mean that the
children must spend equal
amounts of time with each parent.
• Sole Physical Custody. The child shall
reside with one parent and the other
parent will have visitation.
There are many variations to custody
orders. For example, a judge who orders
joint legal and joint physical custody
may name one parent as the
“primary caretaker” and one home as the
“primary residence.” The judge may order
sole physical custody to one parent and
supervised or no
visitation to the other where it appears
a parent may present a threat to the
child’s welfare or safety. Stepparents
and grandparents in certain
circumstances may be given visitation.
|10. What happens after I file?
| There are several steps that may occur
after you file.
• Temporary Orders: You or your spouse
may ask for a hearing so a judge can
decide any temporary child custody,
visitation, and support or
“restraining order” disputes. These
hearings are called “Order to Show
• Agreement: You, your spouse and your
lawyers will work on permanently
resolving the issues raised in the
dissolution. If you reach an
agreement, you may not be required to
appear at court and a “judgment” can be
entered consistent with your agreement.
You will be required to
submit an “affidavit” or sworn statement
with the court saying that the marriage
is ending because of irreconcilable
• Trial: If you are unable to reach an
agreement on the issues, you and your
spouse will go to court for a trial at
which a judge will make the
• Default: If your spouse does not file
a Response, you may request a “default”
and proceed to a default hearing to
obtain a judgment. You will be
asking the court to enter a judgment
consistent with what you requested in
• Judgment: A judgment ending your
marriage can be entered six (6) months
from the day your spouse is served with
the summons and petition.
The court does not automatically end
your marriage when the six months has
passed. You cannot legally remarry until
you obtain a judgment
even if the six months has passed. If
you want to remarry or have some other
reason for wanting to be single at the
end of six months, a judge
can dissolve your marriage even though
some property or other issues are not
Not all of the steps will be necessary
in every case. For example, you may
reach an agreement and proceed to a
judgment without the necessity
of temporary order
|11. What happens if the other parent and I cannot agree on custody or visitation?
| If you and the other parent are unable
to agree on custody or visitation, a
judge will make the decision. There are
several steps to finalizing a
custody plan. Custody and visitation can
be decided on a temporary basis if there
are immediate problems. For example,
school may be
starting and you cannot agree on where
the children will attend school, or one
parent intends to move and wants to take
Before the court makes a temporary or
permanent order, the parents will meet
with a “court mediator.” The court
mediator helps parents work
out a plan that will be good for you and
In some counties, the court mediator
will make recommendations to the judge;
in other counties, if the parents do not
reach an agreement, the
mediator does not make recommendations.
Depending upon the nature of the custody
dispute, the court may order a
of the family. The judge may also
appoint an attorney to represent the
children. You and the other parent may
be charged all or part of the cost of
the appointed attorney. If there is a
custody dispute, you may want to be
represented by an attorney.
|12. What if I don't have enough money to pay for legal advice?
| You may belong to a “legal insurance”
plan that covers the kind of services
you need. If your income is very low,
you may qualify for free or
low-cost legal help through volunteer
service organizations. Or, check the
white pages of your telephone directory
for a legal services program
such as a legal aid society located in
your county. Also, the courts in most
counties have established on-site
clinics where you may be able to
obtain forms and guidance on how to
proceed with your action. Your local bar
association may be able to provide you
with information specific
to the county in which you live.
The purpose of this pamphlet is to
provide general information on the law,
which is subject to change. If you have
a specific legal problem, you
may want to consult a lawyer.
|13. What is a Summary Dissolution?
| If you qualify for a summary
dissolution, you do not go to court and
you may not be represented by an
attorney. You may qualify for a summary
dissolution if all of the following
conditions exist at the time you file:
• You have been married five (5) years
• You have no children from the
• Neither party owns a home or other
• The value of all community property is
less than $25,000.
• There are no unpaid obligations in
excess of $4000.
• The parties waive spousal support.
Both spouses must agree to all the terms
of a summary dissolution, and either
party can cancel it for any reason
before the dissolution is final. A
summary dissolution requires a filing
fee and you must have been living in
California for six months and the county
in which you file for three
months. For more information, you may be
able to get a booklet called Summary
Dissolution Information from the clerk
of your county’s superior
|14. What is spousal support? Is it the same as alimony?
| “Spousal support” is the name for
alimony in California. Spousal support
is money that one spouse pays to help
support the other after a
dissolution has been filed. The party
receiving spousal support will pay
federal and state income taxes on the
amount received and the party who
makes the payments will be entitled to
take a tax deduction for the amounts
paid. In order to determine the amount
and length of time you are
entitled to receive spousal support, the
judge will consider many factors. The
factors considered include the standard
of living during the
marriage, the length of the marriage,
and the age, health, earning capacity
and job history of each party.
Perhaps neither of you needs spousal
support when your marriage is dissolved.
Since circumstances can change (such as
an illness or the loss
of employment), you may ask the judge to
“reserve jurisdiction” to order spousal
support in the future. This will leave
the door open so you can
come back and ask for spousal support at
a later time. Under certain
circumstances, you or your spouse may go
back to court and ask the judge
to increase or lower the amount.
Courts are able to order a “wage
assignment,” directing a spouse’s
employer to pay spousal support directly
to the other spouse.
|15. What will happen to our children when we separate?
| You can determine what happens. The best
solution for the children is for the
parents to agree on who will take care
of them. If you and the other
parent agree on a parenting plan, you
and/or your lawyer should attach a
written copy of your plan to the
dissolution papers. Your parenting plan
can become a court order. In most cases,
a judge will approve a custody plan that
both parents want.
|16. Who is responsible for the answers to these questions?
| © The State Bar of California (revised
1999). The Legal Services Section of the
State Bar of California assisted in the
revision of these
pamphlet questions and answers.
|17. Who will pay to support our children?
| You and the other parent are both
responsible for supporting your children
until each child reaches the age of 18.
This duty may extend beyond
age 18 if certain conditions are met.
The amount of support to be paid from
one parent to the other is controlled by
guidelines that have been
established in California. There are
computer programs available to assist
you in determining which parent will pay
child support, and how much.
Significant factors include the amount
of time each parent spends caring for
the children and the amount of income
each parent receives.
The party receiving child support does
not report child support payments as
income for federal and state tax
purposes and the party paying child
support is not entitled to take a
deduction for child support payments.
You may request a “Wage Assignment
Order.” This is an order that
requires the employer of the wage earner
to pay support directly to the parent
entitled to receive support.
|1. How do I file a sexual harassment claim?
| If you believe that you have been
harassed and desire to
legally pursue the matter,
you must file a claim
within one year of the
harassment. You are
required to initially file a
discrimination with the California
Department of Fair
Employment and Housing
The DFEH serves as a
mutual fact finder and
attempts to help the
party voluntarily resolve any
disputes. After this
step is taken, you then have
the right to file a
civil lawsuit against both your
employer and the
individual that was sexually
harassing you. If the
court finds that you have
harassed, you can be awarded
money damages to
compensate you for all of the
injuries which flow
from the unlawful conduct.
These damages include
back pay, lost wages, and
the loss of any
associated employment benefits. If
you have been
terminated or forced to quit your
job because of the
sexual harassment, then you
are entitled to
recover all of your lost wages and
job benefits. The
can also award you
money damages to
compensate you for any
emotional distress that
you have suffered as a
result of the sexual
harassment and the
court can often assess
against your employer if it finds
that your employer
acted with indifference
towards your rights.
Lawsuits of this
nature are complex and should
only be undertaken by
a qualified attorney. If you
believe you have been
sexually harassed and
desire to legally
pursue the matter, you should
contact an attorney
experienced in employment
|2. How long do I have to file a complaint?
| Under California law, you must file a
with the California
Department of Fair
Employment and Housing
(DFEH) within ONE
YEAR of the last act
of harassment or
the DFEH issues you a
"Right to Sue" letter,
you then have ONE YEAR
to bring a civil court
action against your employer.
In order to file a
complaint pursuant to Title VII of
Federal law, you must
file a complaint with the
(EEOC) within 300 days
of the last act of
|3. What is age discrimination?
| Both California and Federal law prohibit
discriminating against job
employees on the basis of their age.
The law provides
protection to all individuals aged
40 and older from
discrimination in employment.
As with most
anti-discrimination laws, the laws
discrimination seek to have
employers evaluate job
applicants and employees
on the basis of their
knowledge and skill,
and not on their age. It is
unlawful to use
stereotypes or generalization
workers as a basis for
An allegation of age
generally involves either intentional
discrimination on the
part of the employer or an
that has a discriminatory
affect on workers age
40 and over, regardless of
An employer may raise
as a defense an allegation
that its actions were
required due to a bona fide
qualification where it is reasonably
necessary to the
normal operation of the
employer's business to
differentiate treatment of
employees based on
age. However, this defense is
narrowly construed and
the burden is on the
employer to prove that
this defense applies.
|4. What is disability discrimination?
| Both California and Federal law prohibit
discriminating against job
employees on the basis of a
physical handicap or
medical condition. Federal
law has even been
found to extend to persons
with a mental
impairment. The general purpose of
these regulations is
to ensure each individual is
opportunities which are
commensurate with his
or her abilities.
Under both California
and Federal law, the term
broadly defined. A cancer
related condition is
specifically defined under
California law to be a
medical condition subject to
anti-discrimination provisions. Other
decisions have defined
arthritis, heart conditions, epilepsy,
high blood pressure,
cerebral palsy, asthma, back
conditions, AIDS, and
Employers are required
handicaps and disabilities of
job applicants and
generally not required to retain an
employee with a
disability or a medical condition
if: (1) the disability
or medical condition does not
allow the employee to
perform their duties, (2) the
disability presents a
danger to the employee's
ability to safely
function in the workplace, or (3)
accommodation required to assist
the disabled employee
would impose an undue
hardship on the
operation of the employer's
If you feel you have
been discriminated against in
the workplace because
of a disability or medical
condition, you should
contact an attorney
|5. What is Quid Pro Quo Sexual Harassment?
| Quid Pro Quo Sexual Harassment can occur
when a manager,
supervisor, business owner, or
someone with authority
over you at your work
place, demands sexual
favors from you in
exchange for not
firing you. Quid Pro Quo Sexual
Harassment can also
occur when a person of
sexual favors in exchange for
hiring you or in
exchange for a promotion.
Sexual demands may be
expressed either verbally
or may be implied from
conduct such as
touching, hugging, grabbing or
fondling. An example
of a verbal demand for
sexual favors may be
as follows: "Let's fool
around, and not only
can you keep your job, but
you will also get a
|6. What is race discrimination?
| Both California and Federal Law prohibit
discriminating against job
employees on the basis of their race
or national origin.
These prohibitions cover the
advertising and interviewing,
termination. Discrimination is
prohibited in all
aspects of the employment
including hiring, compensation,
The main purpose of
the law is to require
employers to avoid
treating individuals unfairly or
differently due to
their race or national origin. The
law requires that
employers evaluate and deal
with each person on
the basis of his or her
training, experience, ability, and
regard to any general
attributable to any racial group of
which that individual
is a member.
discrimination based on race are
designed to protect
persons of all races and
including Caucasians. Discrimination
can exist where an
employment related decision
intentionally discriminates against an
applicant or employee
based on his or her race or,
where an employment
related decision or practice
has an adverse impact
upon individuals of a
whether or not the employer
intended that adverse
You have the right to
be free from discrimination
in the work place
based on your race or national
|7. What is sexual harassment?
| Both California and Federal law provide
you with the right to work in a
discrimination free environment. The
California Courts have held that harassment on the
basis of sex is a violation of your rights.
Unwelcome sexual advances or requests for sexual favors
constitute sexual harassment. Additionally, certain
types of verbal or physical conduct of a sexual
nature may constitute sexual harassment if that
conduct interferes with your ability to perform
your job. In addition, sexual conduct that creates
an intimidating, hostile or offensive working
environment is considered sexual harassment.
Your employer, and all persons who work for your employer, must refrain from making sexual advances or requests
for sexual favors in the work place. The most
obvious type of sexual harassment often
occurs when there is unwanted physical contact. You
have the right not to be touched in an offensive manner while in the workplace. Other forms of sexual harassment are also considered unlawful. These include demands for sexual favors as a condition of continued employment or
advancement, unwanted verbal conduct (such as
offensive sexual jokes, sexually related insults,
comments about an individual's body or comments
pertaining to sexual activity), or the posting of
sexually suggestive or degrading pictures, photographs
or calendars. Remember, you have the right to
be free from sexual harassment in your
|8. What must an employer do to protect you at the workplace?
| You have the right to work in an environment which is free of
harassment or discrimination based upon your sex, your age (if you are at least 40 years old), your race, your national origin, your disability or your family status. The law requires that your employer take immediate and appropriate action after they learn that harassment or discrimination has
occurred. Your employer must take effective action to stop any further harassment or discrimination. In order to accomplish this, your employer must conduct a full and complete investigation. Anyone with information about the
situation should be interviewed by your employer. The employer must make a determination regarding the matter and the results of the investigation must be communicated to you. If it is determined that sexual harassment has occurred, then your employer must take appropriate action against the harasser and must take steps to prevent any further harassment in the future. Any action taken to prevent further sexual harassment must be taken against the harasser and not against you. In order to eliminate further problems, your
employer should not remove you from your normal work station or take any other actions against you because of your complaints of harassment or discrimination. If you believe your employer has not taken appropriate steps to prevent you from experiencing acts of harassment or discrimination, you should immediately contact an attorney who is experienced in employment law.
|9. What qualifies as wrongful or unlawful employee termination?
| The subject of wrongful termination is
broad and can only be
briefly touched upon in this
law follows the general rule of
employment "at will."
This means that if you do
not have a contract of
employment for a specific
length of time, you
can usually be terminated at
any time, with or
without notice. Just as an
employee may leave
their job whenever he or she
wants, so may an
employer fire a worker at any
time, with or without
cause . Of course, the law
prohibits an employer
from terminating an
employee because of
their age, sex, race, religion,
disability or family status.
recognizes certain exceptions to "at
will" employment. One
exception to "at will"
employment is when
there is an employment
contract which states
that the employee shall not
be discharged for a
specified period of time, or
that the employee will
not be terminated without
just cause. These
contracts can be written, oral or
implied from the acts
and conduct of the parties.
An implied contract
may exist if there has been an
employment for a
significant period of time and
there have been
representations by the employer
concerning the terms
and conditions of
Many laws also
prohibit employers from
in retaliation for exercising
statutory rights, such
as complaining of sexual
harassment or sex
discrimination. Other laws
blowers," employees who disclose
violations of laws
and/or regulations to
If you believe you
have been wrongfully
terminated from your
employment, you should
contact an attorney
experienced in employment
|10. What should I do if I am sexually harassed?
| If you have been harassed by a
notify your boss or
supervisor about the
unlawful conduct. If your
boss or supervisor is
the one sexually harassing
you, then should
consider talking with his or her
superior. In addition,
if your employer has a
Department, it is always
advisable to inform
the Human Resources
Department about all
acts of sexual harassment.
Although you are not
required by law to put your
harassment in writing, it is always
advisable to do so. A
written complaint of
harassment can protect
you in the future if your
employer later denies
that you complained of
unlawful conduct. A
written complaint also helps
to ensure that your
employer is put on legal notice
of the harassment. Of
course, always keep a copy
of any complaint that
you submit to your
supervisor or Human
If possible, you
should keep a written log of all
conduct that you
believe constitutes sexual
harassment. It is also
important that you maintain
the names of any
witnesses whom you believe will
support your claim
that you have been sexually
harassed. You should
keep all of this information
in a secure place
outside of the work place.
Your employer is not
permitted to retaliate against
you for accusing
someone of sexually harassing
you. You cannot be
fired, demoted or removed
from your current
position solely because you
have complained about
conduct. Finally, you should
make it clear to the individual
that is sexually
harassing you that his or her
conduct is offensive
to you. At no time should you
give the impression to
a fellow worker that the
conduct is acceptable to you.
|11. What should you do if you feel as though you have discriminated against?
| If you believe you are the victim of any
immediately begin keeping a record
of the unlawful acts.
Your written record should
include the date,
time, place, witnesses, and the
name and job title of
the person committing the
Your next step should
be to file a written
complaint with your
employer. If your employer is
discriminating against you, you may
to his superior if he has one.
If the employer has a
procedure for handling
complaints, that procedure must be
The employer is not
liable to you unless he has
been given the chance
to take care of the
complaining to the employer, he is put
on notice that the
unlawful situation exist and that
it must be remedied.
Should your employer
fail to take any action and
the problem is not
remedied, you then have the
right to file a
complaint through the
EMPLOYMENT AND HOUSING
through the EQUAL
|1. What should I do if a lawyer asks for my business?
| Be Cautious if this happens. Some unsolicited communications from attorneys may violate legal ethics. Perhaps you have been injured in an automobile accident and a lawyer or his representative visits you in the hosipital, asking to handle your case. This kind of behavior is called "soliciting," and it is not permitted by the legal profession's code of legal ethics. If you believe you have received a solicitation, you can report the lawyer to the State Bar by calling toll free to 800/843-9053.
|1. Do my injuries have to be physical?
| No. Suits may be based on a variety of
nonphysical losses and harms. For
example, you may have a claim if someone
has attacked your reputation, invaded
your privacy, or negligently or
intentionally inflicted emotional
distress upon you.
|2. Does a personal injury case have to be filed within a certain length of time?
| Every state has certain time limits,
called "statutes of limitations", that
govern the period during which you must
file a personal injury lawsuit. If you
miss the statutory deadline for filing
a case, your case is thrown out of
court. Talk with a lawyer as soon as
you receive or discover an injury.
|3. How does my case begin?
| Your lawyer will gather information
about your claim, including the extent
of your injuries, the cost of medical
treatment, and lost wages. Your lawyer
then provides your damages figure to the
insurer of the person who injured you.
If the insurer considers it a valid
claim, the case is likely to be resolved
early on and won't have to be tried in
|4. Should I bring my documents with me when I consult a lawyer?
| Yes, you should supply any documents
that might be potentially relevant to
your case. Police reports contain
eyewitness accounts and details about
conditions surrounding auto accidents,
fires, assaults and the like. Copies of
medical reports from the doctors and
hospitals describe your injuries.
Information about the insurer of the
person who caused the injury is
extremely helpful, as are any photgraphs
you have of the accident or of your
injury. The more information you are
able to give your lawyer, the easier it
will be to determine if your claim will
be successful. If you haven't collected
any documents at the time of your first
meeting, don't worry. Your lawyer will
be able to obtain them.
|5. What does it mean to settle a case?
| Settling a case means that you agree to
accept money in return for dropping your
action against the person who injured
you. You'll actually sign a release
absolving the other side of any further
liability. To help you decide whether
to accept the settlement offer, your
lawyer will be able to provide a
realistic assessment of whether a
lawsuit based on your claim will be
successful. (Settlement also can take
place at any point in a lawsuit once it
is filed, including before trial or even
after a case has been tried but before a
jury reaches a verdict.)
|6. What happens if I file a lawsuit?
| You become a plaintiff in the case and
the person who injured you becomes the
defendant. Lawyers for each side (and
for the insurer) typically begin
gathering facts through exchange of
documents, interrogatories (written
questions) or depositions (questions
that are asked in person and answered
under oath). This process is called
discovery. After discovery, most cases
get settled before trial.
|7. What if my case is not settled before trial?
| Your case will be heard in court. Most
plaintiffs ask for a jury trial, but
personal injury cases can be decided by
judges as well. This is known as a
|8. What will I get if I win my case?
| If you win, a judge or jury awards you
money, known as damages, for your
injuries. That can include compensation
for medical bills and lost wages, future
wage losses, physical pain and
suffering, and any physical
disfigurement or disability that
resulted from your injury. The money is
intended to restore your loss, is not
considered as income, and is not taxable
as income by the federal government or
|1. Do I need an Attorney?
| You have the right to be represented by
an attorney of your choice in connection
with your work-related injury. Your
attorney will assist you in seeing that
your benefits are properly protected.
Your employer or your employer's
insurance company will be advised and
represented by individuals experienced
in Workers' Compensation cases and you
should have an attorney experienced in
handling Workers' Compensation
representing you. There is no filing
fee for filing an application with the
Workers' Compensation Appeals Board.
Attorney's fees for representing an
injured employee are determined by the
Workers' Compensation Appeals Board
judge and are paid out of the settlement
or award. These are usually a
percentage of the monetary recovery
awarded to the injured employee. They
may range from 12% to 15% of the award,
depending on the complexity of the case
and time involved.
If you have further questions about the
contents of this pamphlet or should be
in need of an attorney skilled in
handling Workers' Compensation cases or
other injury cases, feel free to call
Attorney Referral Service at
877-ARS-ARS8 for assistance.
|2. What about death benefits?
| If death is caused or partially caused
by work or conditions at work,
dependents of the decedent may be
entitled to $60,000 to $150,000 in
death benefits. These benefits are
owed to the dependents (those persons
relying on the support of the deceased)
if there is as little as a 1%
relationship of the job condition to
|3. What benefits am I entitled to?
| a. All medical bills will be paid 100%
by teh employer's Worker's Compensation
insurance carrier. Your employer MAY
dictate your initial medical
treatment. You may choose your own
doctors thereafter if certain
procedured are followed.
b. Temporary disability is two-thirds
of your pay at the time of injury and
up to $490.00 maximum.
c. Permanent disability. This is
determined when your condition becomes
stable (permanent and stationary).
Depending on the extent of your injury,
this can amount to several thousands of
dollars, often in a "lump sum" payment.
d. Mileage payments. The insurance
company must reimburse you for all
mileage to and from your doctors,
currently at 31 cents per mile.
|4. What if I am unable to return to my job?
| You may be entitled to vocational
rehabilitation. If it is found that
you are unable to return to your line
of work, the employer's insurance
company may have to retrain you for
another line of work. This can include
payment for: schooling, materials,
moving expenses, and vocational
rehabilitation maintenance allowance of
up to $246.00 per week while in
training. They will also aid you in
|5. What is a work-related injury?
| It is an injury either caused by your
employment or aggravated by your
employment regardless of who caused the
injury. Examples of work-related
injuries are: Heart Attacks,
hypertension, stress, broken/fractured
bones, back pain, knee injuries, wrist
injuries, etc. You may be entitled to
benefits even if you are still working.
|6. What other benefits am I entitled to besides Workers Comp?
| You may be entitled to state disability
insurance benefits (SDI). If you have
paid into this fund, the state provides
temporary disability benefits. Though
normally paid for non-industrial
illness or injury, if your employer's
Workers' Compensation insurer refuses
to pay your benefits, the State of
California may pay them to you. You
may also be entitled to these benefits
if the insurer stops paying your
benefits even though your treating
doctor feels you are unable to return
to work and are still temporarily
If the Workers' Compensation Appeals
Board judge later determines that you
are entitled to Workers' Compensation
benefits from your employer's insurer
during the time you were receiving SDI,
your employer's insurer will have to
reimburse the State for the benefits
paid to you.
|7. What should I do if I feel my injury
was caused or aggravated by my job?
| Report your injury to your employer
immediately; if represented by a union,
contact your union shop steward or
business agent. You should also
contact an attorney who handles
Workers' Compensation cases.
|8. When am I entitled to Social Security Disability Benefits?
| The federal government provides social
security disability insurance benfits
when a person has paid into the Social
Security System, has met the earning
requirements of the law and is
determined to be disabled from any type
of work for at least one year, or where
it appears that a person will be
disabled for one year or more.
You may apply for these benefits at
any time after your injury so long as it
appears that you will not be able to
work at any type of job for at least
twelve months. However, there is a
five-month waiting period from the time
an individual first becomes disabled.
A review of your medical records is
conducted. Your education, age and work
experience are reviewed. If you are not
satisfied with the decision reached on
your request for benefits, you have the
right to appeal.
It often takes a long time to obtain
these benefits, but it is well worth the
wait because the benefits can be
substantial. If you need further
information, you should contact your
local Social Security office or consult
with your attorney.