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HAVING POWER TO GET WHAT YOU WANT

posted Jan 19, 2015, 11:19 AM by Lisi M.   [ updated Jan 19, 2015, 11:20 AM ]

Greetings! I hope you had an opportunity to enjoy some time off during Christmas and New Year’s. The family and I spent the two weeks the boys were out of school visiting family in San Diego and Los Angeles.  We had a great time but we sure missed our home, I even missed work!  The boys are now back in school and I am open for business once again. This month so far has kept me busy meeting with clients and going the court which is a good thing.

 

I also wanted to announce that I have redone my old website. Come check out the new one. It is at the same address:  www.munaycolaw.com  My goal is to make it more user friendly.



Please forward to anyone who may be interested in my services.

 

 

Until the next time.  

 

Best,


Lisi
 
Access my NEW brochure by copying and pasting the following link below:  
 

http://goo.gl/HkibDw

Courtesy Photo Cooldesign

 

Another thing that has been keeping me busy is finishing up on my continuing legal education requirements. Every attorney is required to complete 25 hours. We have three years to complete them and these are reported to the State Bar.  While reading one of my self-studying materials, I came across some great points, by the instructor and mediator, Mari Frank (www.MariFrank.com).  Although this article is mostly for attorneys, I believe the points are excellent for any lay person going to court or negotiation.  

 

In Mari Frank’s “Successful Negotiation and Mediation in Your Practice” article, she points out five keys to powerful, ethical, and successful settlement negotiations.  She says it is always helpful to remind yourself of what give you POWER to influence the other side.

 

P, stands for being prepared.  You should never come to the table without fully comprehending your case, knowing the facts, the other side’s arguments, and the applicable law.  It is a good idea to practice counter-arguments and to open your mind to possible counter-offers.  

 

O, is for options.  Brainstorm and decide what you want to accomplish, what you would consider reasonable and what you would outright reject.  Also think about the next steps in case there is no successful settlement.

 

W, Worthiness.  Although you are litigating against the other side, it is very important to do it fairly and honestly.  It is amazing how parties can work together if they can trust the other party.  The benefits of this key factor is faster resolution of your case.  

 

E, Enthusiasm and Ethics.  It is shown that if you are prepared with all the information and options for negotiation and settlement, you come to the table with optimism and positive energy.  Even if you don’t get want you asked for, you have a sense that you gave it your best shot.  

 

R, Relationship.  In addition to working on mastering the above factors, it is always wise to establish a friendly and courteous relationship with the other side.  Remember to refrain from negative comments and focus on the goals of achieving a successful resolution.  It is always best to leave the table rewarded and free of hard-feelings.  

 

I know these tips work as I applied them in court, during mediation sessions and even in handling family issues.  I hope these work out for you.

 

Until the next time.  

 

New Immigration Reform-Another Deferred Action

posted Nov 30, 2014, 2:12 PM by Lisi M.   [ updated Nov 30, 2014, 2:12 PM ]

Here is what the USCIS is saying:



Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available.


On November 20, 2014, the President announced a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.  

These initiatives include:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to young people who came to this country before turning 16 years old and have been present since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.

  • Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years, in a new Deferred Action for Parental Accountability program, provided they pass required background checks.

  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens.

Again, these initiatives have not been implemented, however, it does not mean you do nothing.  For those who may qualify start gathering information.  Based on my reading of this and other articles related to this, the following documentation may be necessary:

  • Documentation which establishes Identity (such as an English translated birth certificate, passport or marticula)

  • Relationship to a U.S. citizen or lawful permanent resident; and

  • Continuous residence in the United States over the last five years or more (rental agreements, billing statements, school transcripts, etc....



As soon as more information is released, I will provide an update.  


Why You Should Take Advantage Of A Settlement Conference

posted Nov 30, 2014, 2:10 PM by Lisi M.   [ updated Nov 30, 2014, 2:11 PM ]


In order to avoid the expense and time of going to trial, the legal system has created settlement conferences.  


The purpose of these conferences is to gather all parties in a last ditch attempt to settle their issues.  The conference also serves to disclose the issues before the court and to present witnesses, evidence and argument to the other side if their case is heading to trial.


In my experience if you have a well written settlement conference statement of your position, outlined with your arguments and law, the success of settlement is greater.  How to prepare for a settlement conference is typically outlined in your local rules of court.  In general, as the rules may vary from county to county, the parties are obligated to meet and confer before the settlement conference hearing.  It is mandatory to meet and confer face to face and to exercise best efforts in negotiation and resolution of all issues.  Any issues that are resolved can easily be added to a stipulation and order which the judge will gladly sign as a court order.  


For those unresolved issues, you prepare your conference statement.  For example, Alameda Local Rules of Court 5.45 outlines the format of the statement.  You need to provide general statistical information regarding the parties and then provide information as to stipulated issues and the specific terms of the agreement along with information about the attempts to settle and any last proposals on settling the case.  The gritty stuff is addressing the disputed issues, which consist of identifying the issue, addressing any laws to support your position, whether California Code, California Rules of Court, Local Rules or case law, identifying by name your witnesses and what they will testify to and the evidence you would present at trial.


If parties fail to comply, the Court has the discretion to sanction parties.  Settlement Conferences are really helpful as it gives a great perspective of the other party’s position and hopefully to a greater understanding which results in a settlement satisfied by both parties.  





Avoid a Rejected Judgment

posted Nov 1, 2014, 9:04 PM by Lisi M.   [ updated Nov 1, 2014, 9:04 PM ]


Unless you know the required language and the proper forms to use, it is highly probably that your judgment for divorce will be rejected.  In the past, it was only necessary to prepare the judgment and attach a hard copy of the parties’ marital settlement agreement.  The problem with that however, was that such agreements lacked the requisite language required under the Family Code.  To ensure all bases were covered, California has created attachments to the judgment.  Yes, you can still incorporate your marital agreement, but you will have to plug in the terms of your agreement onto these forms.  It can be time-consuming, but in the end you can be assured that your rights and obligations are in compliance with the law.

 

The Forms:


These are the main forms to finalize a default divorce.  A default divorce occurs when the other spouse does not file a response after being served with the petition and summons and does not enter into a written agreement .  Once 30 days lapse from date of service, you can proceed in finalizing the divorce and obtain judgment from the court.  You may need more or less off these documents depending on your particular case:

 


Request to Enter Default:  A one-page form, asking the court to enter judgment without having to go to court.


Income and Expense Declaration : Is included if you are asking for child or spousal support.


Property Declaration: If you are asking for division of community property and identification of separate property, use this form to list your property, their fair market value and any debt obligation.  This particular form also allows you to propose a division of the marital property, which is generally 50/50.  The Court cannot divide your separate property, but can confirm in an order that certain property is separate.


Declaration for Default:  A three-page document, outlining general information to summarize the case of the parties and request for entry of judgment.  Essentially, this document contains language of what you would testify to, if you were to take the stand and request the divorce before the judge.  


Declaration Regarding Service of Preliminary and Final Disclosures:  A declaration confirming you have exchanged your property and income information to the other party.  In a default case, the Petitioner must serve the response; the Respondent does not.  


Judgment:  This is a court order which provides the date when you are officially returned to the status of a single person.  It also contains orders regarding division of your property, support, parenting arrangements, etc....  This is where you attach your marital agreement.  In general for default cases, anything you asked for in your petition, you usually get as an order because the other party failed to respond or object to your requests.  


Child Custody and Visitation attachment:  It is attached to the judgment and it addresses the type of parenting arrangement; meaning who will have legal and/or primary custody, and what type of visitation schedule will be followed through with regards to the minor children.


Child Support attachment:  This is another attachment for the judgment document, which explains the amount of child support for each individual child, plus any additional add-on support amounts for daycare and health costs not covered by insurance.


Guideline Child Support Calculation:  This form is attached to the child support document and it displays what the presumed correct child support amount for be.  This calculation is mainly determined by considering both parent’s gross income and percentage of visitation by the non-custodial parent.  The guideline calculation is always necessary, even if you decide to ask for a higher or lower amount.  


Notice of Rights and Responsibilities/Information Sheet on Changing a Child Support Order:  This document is mandatory and is attached after your child support documents.  It explains court procedure on how to return to court if you wish to modify an existing child support order.


Child Support Case Registry:  This is a required form, which is filed with the court clerk.  It asks for the parent’s personal and employment information and can be useful if the State is needed to enforce or initiate a child support action.


Order/Notice to Withhold Income:  This is also a mandatory document.  It is separately signed by the judge and orders the employer of the parent who is paying child support to withhold a certain amount of money and forward it to the other parent.  It is a way to collect child support.  Although this form is required when filing your judgment, you are not required to serve it on the employer if the other parent commits to making the support payments.


Notice of Entry of Judgment:  The final document, where the court tells you when your divorce was granted.  

Five Tips to Effective Communication and Hopefully Settlement

posted Nov 1, 2014, 8:29 PM by Lisi M.   [ updated Nov 1, 2014, 8:30 PM ]

Having been trained as a mediator I am always looking at people’s patterns of communication, which unfortunately in disputes they always manifest themselves as very negative and adversarial. As a mediator you are trained to assist people into communicating in a positive and neutral fashion in hopes that they have a better perspective as to what the real issues are and can move away from the bad feelings and emotions and concentrate on how to resolve the issues in a positive or win-win resolution for not just them but for both parties.


Below are my five perspectives in effective communication skills and hopefully a happy resolution or settlement.


  1. Common Courtesies:  This is probably the most basic and easy thing to do, but unfortunately quite often over look.  If you are preparing to negotiating or argue a position, learn to be patient and allow the other person the courtesy to state their position completely.  Do not interrupt.  If you want to address an import point, write it down and address it later when it is your time to speak.  I’ve seen that by not interrupting, the tension which people usually come to the table is loosen up.

  2. Show Attentive Listening:  In addition to not interrupting, show you are listening.  Attentive listening involves having eye contact with the speaker, it shows you are serious in trying to work the issues out.  By reflecting, that is repeating in short phrases what the other person has said, shows that you are truly listening and it helps you identify the issues that will need to be resolved.

  3. Compromise:  Once the issues have been properly identified, start thinking of ways of resolving those issues.  Think if you can give a little and compromise one of your issues for the sake of resolving the most important one.  The goal should be to find solutions where both parties will be satisfied with the outcome.

  4. Give it time:  Finding solutions to problems is not always clear cut and you will notice that sometimes taking a break and coming back later, when parties have had a chance to clear their mind, results in a better, productive approach to problem solving.

  5. Write it down:  To prevent future misunderstandings, it is wise to write down your agreement.  Keeping it simple and in plain terms is best and both parties should participate by reviewing the terms of the agreement to make sure it contains the terms agreed by them.  


CALIFORNIA FAMILY LAW: WHAT YOU NEED TO KNOW

posted Oct 25, 2014, 12:43 PM by Lisi M.   [ updated Oct 25, 2014, 12:44 PM ]


There are many misconceptions when it comes to legal issues in family law.  The hope of this article is to provide some clarity on some or all of those issues.


Misconception 1:  Can I get an immediate divorce?

No, California has a six month waiting period before your divorce can be finalized.  The waiting period begins as soon as your spouse is served with the petition and summons (which begins the divorce process).  California must also have jurisdiction over your divorce.  This means you must have lived in California for six months and be in the county you wish to file for at least three months.  However, for a legal separation, you don’t need to meet those requirements.  


Misconception 2:  Family Law favors women over men?

Absolutely false.  The law is neutral and is based on a case-by-case basis.  It may seem favorable to women as we typically are the primary caretaker of our children (in custody cases), we earn less than our spouse (regarding support) and we are more fragile (in situation of domestic violence cases).  


Misconception 3:  Family Law is the same in all 50 states?

Each state has their own set of laws.  For example, California is a no-fault state, while Arkansas requires specific grounds before you can get divorced, North Carolina requires a one-year period of separation.  California allows divorces and separations even if the spouses are still living under the same roof.  


Misconception 4:  I can’t get a divorce if I am still living with my spouse?

This is false, at least in California.  There are many times because of money issues that spouses are living together while they are going through the divorce process.  Unless there is a domestic violence issue, where the court needs to order the abuser spouse out of the family home, you can expect the court to deny your request for the other spouse to move out, if it will be a financial burden on that spouse to vacate the premises.  Of course, the eventual goal will be for one of the spouses to move out and that could be related to issues of support or selling of property to be able to accomplish that goal.


Misconception 5:  Fathers never get sole  or primary custody?

False.  California law does not single out or favor which parent is to get custody.  The law is written gender neutral and the main focus is on the best interest of the child.  The goal is to make sure both parents are involved in their children’s lives.  Unless one parent is abusing or neglecting the children, the goal of the court will be to have the parents sharing custody.  The reason you see the mother getting custody of the children, is because in reality mom is typically the parent who stays home to raise the kids or the primary caretaker in making sure the child’s needs are being met.  And as already stated, the best interest for a child would be to not disrupt this existing parenting arrangement.


These are the most common types of questions I hear and I hope they are helpful to you.  If you have further questions, please let me know by contacting me by visiting my site, www.munaycolaw.com and I can even blog about it on Patch.    


I am a California licensed attorney and certified mediator.  I am the founder and lead attorney  of The Law Offices of Lisi Munayco.  I believe that everyone should be able to afford legal representation and to accomplish this belief, I offers legal services based on a sliding scale.  My main areas of practice are family law, protections against abuse and mediation.  Feel free to visit my website at www.munaycolaw.com or contact me at lisi@munaycolaw.com or 510 470-1219 if you have any questions or need help.  


Child testimony is it necessary?

posted Oct 25, 2014, 12:37 PM by Lisi M.   [ updated Oct 25, 2014, 12:38 PM ]

Introduction blog:


Welcome to my site.  After so much thought, I finally decided to start my own legal practice.  For those who already know me, they know I have a great interest in family law, especially those dealing with issues of domestic violence and dependency cases.  I hope all the information you find here is useful and I hope it will answer any questions you may have related to your own family matters or matters of others who may need the help.  I would welcome speaking with anyone who would need the advice of an attorney.  If I can’t help you and I can refer to someone who can.  

A little bit about me:  I am a California attorney who has been licensed to practice law since 1999.  Majority of my legal practice has been Family-law related, which includes dealing with protections against abuse and juvenile dependency issues.  I also have some interest in Worker’s Compensation and plan to engage myself in this area of law when I have the time…LOL


4/2/12:  Should Children Be Allowed To Testify In The Courtroom?  I just watched a great video offered by the Administrative office of the Courts, called Children in the Courtroom.  Essentially it leads to the question on whether children should be allowed to testify in the court room.   What I have learned from the video is that Professor John Meyers is of the opinion that children who are competent to testify should.  There is this belief that most children would be traumatized if brought into court.  In general, this can be true.  Typically children who are asked to testify believe they are at fault.  However with proper preparation of the courts and the parties involved, it is possible to accommodate a child.  Preparation is key here.  Key points to highlight:

1)  Questioning should be kept simple, typically lasting a few minutes and children can typically lose interest within 15 minutes.

2)  Allow many rest periods for the child.  It is the responsibility of the attorney who brings the child as the witness to monitor the child.  Just giving a child a break can help restore their energy.  It might result in a longer period of time to provide testimony, but it is worth it.  

3)  Competency is dependent on each individual child.  A child who is not able to communicate comprehensibly would not be a good witness.  The child should understand the difference between the truth and a lie.  The child should not be easily coached or persuaded on how to answer.  

In addition, the court can prepare the child by having a talk with the child about the courtroom and their roles as judge.  Discussion should not be related to the party’s case.  Attorneys modify the terms they use as such words as “Strike” can make a child misinterpret that someone is going to be hit.  Tone should be kept calm.

I personally think a child should not be allowed to testify unless their testimony is essential, typically in a case where there is no other evidence, such as police reports, photographs or other adult witnesses.  The child should be able to communicate and not be felt feeling they have to talk bad about another person just to please another parent.


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