Child Custody Military Style: a different kind of battle

military child custodyAn active-duty military serviceman recently approached us with an inquiry regarding his wish to gain custody of his two sons, as the other siblings are over 18 years old and living independently. He and his wife had divorced in early 2013; at the time, both parents agreed it was in the children’s best interest to live with their mother. Since that time, he was stationed across the country in Virginia. On a visit back to California to see his newborn grandchild, it came to our potential client’s attention that his sons were living under unstable conditions. His ex-wife had been evicted, and since had taken the two younger children to live with a friend. Her driver’s license was suspended, her vehicle registration expired, and her car uninsured. These realities were very concerning to this man, hence why he came looking for a “quick resolution” to gain custody of the two boys.

The first thing this man needs to accept is that a quick resolution is highly unlikely. California has jurisdiction over the two children, and they won’t be able to move with him to Virginia without a successful motion in the San Diego Family Court for sole physical custody. The man’s ex-wife will presumably put up a fight, with or without the help of an attorney. He must also take into consideration what his sons want, as judges are supposed to listen to the feelings of children regarding child custody if they’re over the age of 14. This man needs to look at this situation holistically and see that the process for gaining custody after almost three years will be an uphill battle. Of course, nothing is impossible, and a military man equipped with perseverance most likely has the skill set to see this type of battle through. We wish him good luck!

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Refusing to refile

ArgumentJust as each person is different, every divorce case is different. Perhaps if this wasn’t true, there’d be less divorce! Though that world might be easier, it certainly isn’t the one in which we live, as seen by the interesting scenario a potential client approached us with.

He and his wife had filled a separation agreement. They were both in accordance that neither party wished to be supported by the other. In the final stretch of the divorce process, the couple hit a bump in the road on the way to separate paths that so enraged this man’s wife that she began “stonewalling”. According to the husband, he deleted some old pictures, which infuriated his wife to the point where she refused to refile a FL-141. This is a mandatory form in which you swear to the court that you have served your Preliminary and/or your Final Declaration of Disclosure. Though this is a personal matter, this man believes his wife won’t listen to reason. He asks if his next step should be to request a trial.

The key idea to remember: don’t jump the gun. It is best to do all things possible to avoid a trial, especially if you can’t afford a lawyer, as this man indicated he could not. Rather, he should start with a sincere letter apologizing for deleting the old photos. Ask her politely to move forward. If she doesn’t listen, then this man will have to file a motion to compel, which is never easy to do without legal assistance.

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Business law: it’s just personal

Close up of businessman placing wooden block on jenga tower

We’ve all heard the phrase “It’s nothing personal, it’s just business”. But what about when it is personal? For example, what if after 23 years of holding stock in a company, you’re told that you are not entitled to any of your shares? Let’s look a little closer.

A potential client recently came forward with an interesting situation. 23 years ago, he and a business partner started a real estate company and received shares (50% of total issued) in the private company. Three years after the company started, this man stopped all association with the company and partner, but kept his stock. Now 20 years later, he wants to sell his stock. The company, however, which happens to be the only other share holder, claims this man verbally gave up his shares when he disassociated himself with the company those 20 years ago. With the original certificate of ownership in his arsenal, and no signature of his waiving his right to his shares, this potential client wonders what he should do in order for his stock ownership to be recognized.

If this man was sitting in our office, the first thing I’d ask is how much these shares are worth. With the passage of 20 years and no written records to support either side, fighting over this in court has the potential to be very expensive and very risky. On the other hand, having the original certificate puts the burden of disproving share rights on the opposing party. Furthermore, if he does own half the shares, anything the “partner” might have done since the man disassociated himself to deprive him of his interest would probably be void. You need a majority of shares to elect directors, and a majority of directors to make management decisions, and the “partner” didn’t have a majority.

The smartest thing for this man to do is to consult with a lawyer and start making waves. But one should always bear in mind that if there’s nothing to get at the end, there’s no use in throwing away money getting there.

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