Questions & Answers

STORY #1  (ADD TITLE)
STORY #2  ALMOST A DIVORCE STORY

STORY #1  (ADD TITLE HERE)

QUESTION - What is retainer fee and why do most attorneys ask for it?
(Answer at the end of the feature story.)

STORY #1 -
H and W married 18 years. Two teenage kids. H moved out a year ago. H filed for divorce.

H told W he will let her keep the family residence which she bought before they were married if she does not ask him for spousal support. His reason? After they were married, she only worked a few years but he worked throughout the marriage and paid the mortgage during the years she was not working. According to H, he now owns the house.

CAVEAT -
No True. All premarital properties are separate property of the person who purchased it. When the nonowner spouse contributes to the mortgage payment of the separate property house of the owner spouse, and the contribution pays down the principal of the loan on the house, the contributing spouse earns an interest in the house, but not ownership. During the divorce proceeding, the parties will divide their property rights and interests. The courts use the Moore/Marsden formula to calculate the contributing spouse's share. The owner spouse has the option to buy out the contributing spouse's interest by refinance or by off set with an equalization payment.

Also, after 10 years, the marriage is considered "long term." The lesser earning spouse is entitled to lifetime spousal support unless and until he/she remarries or cohabits with a lover.

Then, there's the issue of child support which is mandatory and not waivable.
Because H left over a year ago and did not give W any support money during this period, W had to use her savings for living expenses and to support the children. She now has no money left to hire an attorney to help her and is up the creek without a peddle. W decided to accept H's offer. 

LESSON -
Had W contacted an attorney as soon as H left, when she still had the resource to get professional help, W would have been entitled to temporary spousal support and temporary child support during the year of separation. She would now be able to afford the help she need to protect her property and other legal rights. 

ANSWER - 
Retainer fee was supposed to be a monthly fee the clients pay to the attorney for routine services. Now, businesses more often then not have "in house counsel" and pay them the attorneys a salary instead. However, individuals who only need attorney help once a while won't have access to "in house counsel." So, the term "retainer fee" has come to mean "advance payment" for legal services. But, why should you pay in advance?

Attorney practices are regulated by the state and supervised by the state's Supreme Court. Because it is a "profession," we are held at very high service and ethical standards. Once we start to talk to someone, a confidential relation exists. Once we begin to represent someone, a privileged relationship exists. If something goes wrong and the working relationship falls apart, we cannot just walk away. We are obligated by law and forced by the State Bar to continue to work on the case at our detriment so the client would not suffer detriment. If a client refuses to sign a "Substitution of Attorney" to let us out of the case, we have to file a "Motion to be Relieved as Attorney" with the court and ask a judge at a hearing to release us from the case. 

Attorneys are known as "esquires" because they used to be landed gentries who had independent income and who dabbled in law as part of public service. Now, most of us are just working people. We earn our living by providing services and pay our bills from our earnings. If a client defaults on his/her promise to pay, because of the difficulty of getting out of a case, we not only lose the time and services already rendered, we also face the potential of continuous loss, not to mention court fees and other costs attorneys must pay on behalf of the case. As Abraham Lincoln said, "Time and advice are attorney's stock in trade." Most of us simply cannot afford such losses.

Suing a client for fees and costs owed is a possible option. But even attorneys do not relish the thought of litigation to assert their rights for fees. In addition, before we can sue for our rightfully earned fees and out-of-pocket costs, the State Bar has placed the extra burden on attorneys to first offer the client an opportunity for arbitration. It further compounds the aggravation on an already unpleasant situation for the attorney. And even if we win, there is still the problem of collecting on the judgment. It really is a lose-lose situation for all. 

We all know that, after we finished eating in a restaurant, we are supposed to pay. If a large number of patrons refuse to pay after eating, and if the law makes it difficult for restaurants to collect unpaid bills, it is only logical to expect that restaurants would stop serving us until we pay first. There are already a large number of businesses which do require customers to pay first before service. Similarly, a retainer fee has now become necessary before most attorneys would commit to a case. In too many cases, the retainer fee is all the money an attorney would ever see and the client would default on all additional fees and costs. Consequently, some attorneys have begun to require a "minimum fee" to cover the gaps.

MY PRACTICE - 
I ask for a reasonable retainer fee which is based on the issues of the case. I do not charge a "minimum fee" for my services because I still believe everyone should only pay for what they use and good people should not be responsible for bad people's lack of integrity. I charge by the hour for actual services rendered. I pay for court costs and take my service fees from your retainer fee first. Sometimes things get resolved quickly. If there is a balance left on your retainer fee, you get a refund. If things get complicated and the retainer fee is exhausted, I bill you for my services and additional costs on a monthly basis and trust that you are an honorable person and will pay your bills in a timely manner. Yes, there are times I am disappointed and regret my displaced trust. But there are enough honest people out there to justify my continuous trust in human goodness.

STORY #2   ALMOST A DIVORCE STORY 

QUESTION - True or False - Nonpayment of child support is a felony and you can be prosecuted and sent to jail.  (Answer at the bottom of the story.)

Phase I -
M and W lived together for a while.  M left LA and moved to the Bay Area.  Unbeknownst to him, W was pregnant.  She gave birth and sought welfare.  She was told, in order to qualify for welfare, she has to open a child support case at the DA's Family Support Division (now the Child Support Services Dept.).  DNA test was done and M was found to be the father.  A judgment for paternity and child support was entered.  M was to sent his monthly child support payment to LA's Court Trustee.

Phase II -
Life has its ups and downs.  M ran into financial problems.  Instead of seeking a child support modification, M let his child support payments fall behind.  As part of the enforcement efforts, LA's CSSD intercepted M's tax returns.  They also started a criminal proceedings against him.  However, they never notified M of this action.  After a while, CSSD dropped the criminal charges against M.  But the criminal case file remained in M's child support file and on the record.

LA's CSSD then notified M that they intent to suspend his driver's license.  M contacted CSSD and tried to work things out.  He completed the paperwork from CSSD and returned it to CSSD.  Not used to dealing with government bureaucracies, he did not keep a copy for his record.  He did not hear from CSSD.  Then DMV notified him that it had suspended his driver's license at CSSD's request.  M again contacted CSSD and tried to work something out.  This time, he was told that he owes over $24,000 in child support arrears and CSSD will not work with him via mail.  CSSD advised him to appear in court in LA in person.  In the meantime, he lost his job and his girlfriend left him.  He hired me to help him.

Phase III -
I requested a release of M's driver's license along with an audit.  CSSD claims they do not have in their file the paperwork M purportedly completed and returned before they suspended his driver's license.  After much haranguing with CSSD to no avail, I was able to persuade the judge to release M's driver's license.  But CSSD insisted that, in addition to the monthly child support, M must make a monthly payment towards the arrears while his account is being audited.  CSSD also retaliated by notifying the FTB to freeze all his bank accounts and to seize all funds and submit it to CSSD.  M nearly went into a tailspin.  Another trip had to be made to the courthouse to stop further harassment from CSSD.

The audit was finally completed.  Including all the tax intercepts and seizures from his bank accounts and his forced extra monthly payments, M not only do not owe any arrears, CSSD was overpaid by more than $2,700.  CSSD admitted it's mistakes.  But they disavowed any responsibility for the overpayment and told M that, as their job is to only to collect the money and give it to W, it is up to M to get the overpayment back from W.

CAVEAT -    
LA's CSSD is a huge government bureaucracy.  It's caseload is bigger than the rest of California combined and is bigger than most states.  It is not only tightly regulated by the Federal and the State governments, it is understaffed and overworked as the budget continues to shrink and the work demands continue to grow.  Naturally, the morale is low and many mistakes are made.  

For many years, I was a top manager, an attorney, and a special prosecutor for several CSSDs in California.  If you have a case in CSSD, beware!  KEEP A RECORD OF ALL YOUR DEALINGS WITH CSSD.  KEEP AN EYE ON YOUR CSSD BILLING STATEMENT CAREFULLY.  KEEP IN TOUCH WITH THE FAMILY SUPPORT OFFICER AND THE CASE ATTORNEY ASSIGNED TO YOUR CASE AND ASK FOR EXPLANATIONS ON ANYTHING YOU DON'T UNDERSTAND.  

ANSWER - 
True.  Nonpayment of child support is a felony and can be prosecuted as a crime and you can be sent to jail for it.  Unlike other crimes, going to jail in this case does not absolve you of the responsibility of paying child support and it does not lessen any arrears or interests already owed.  Most California's CSSD has a PC270 unit dedicated to this function.  However, as the goal of CSSD is to collect child support, and as most county jails are already overcrowded, most CSSDs will negotiate payment and service plans in lieu or jail time.

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