The Letter of the Law: February 2016

IN THIS ISSUE:

FAMILY LAW: Husband Awarded 150% of Retirement Benefits

REAL ESTATE: Homeowner Steps to Prevent El Niño Property Damage

Husband Awarded 150% of Retirement Benefits

Once upon a time, John Peterson met Annette. They were both attorneys and John was smitten by Annette's beauty and intelligence, so he decided he wanted to share his life and surname with Annette. John and Annette married in 1994 and they entered into marital and financial bliss as they embarked on their journey in life together.

In his law practice, John chose a life of solitude as he entered into private practice. He steadfastly made regular contributions to social security through payroll deductions. Annette, equally fastidious, began working for the County of Los Angeles as a Deputy District Attorney. She was exempt from social security deductions as her employment required her to participate in the LACERA defined-benefit retirement plan. Both parties could enjoy a certain level of satisfaction that they were being responsible citizens and marital partners in preparing for their old age.

Fast forward fourteen years and their love for one another was now lost. John and Annette are in divorce court fighting over the division of retirement benefits. John effectively says, "I get all of my social security because it's separate property, and I get half of your (Annette's) retirement plan." Annette effectively replies, "No way John! That's not fair! If I have to share my retirement plan, then I should get an off-set for half of the value of your social security." They continue to duke it out through the trial court and up to the California appellate court. Both the trial court and the appellate court agreed with John, and here's why:

The Social Security Act, 42 U.S.C. § 415(a)(7), which is called the Windfall Elimination Provision, prevents certain employees from receiving either some or all of their previous, or their spouses, social security benefits in certain conditions. In this case, the WEP applies to Annette because she was employed by a governmental agency (the LA District Attorney's Office) whose defined-benefit retirement plan (LACERA) barred its members from contributing to Social Security. See, https://www.ssa.gov/pubs/EN-05-10045.pdf.

Under California law, Annette's defined-benefit retirement plan was community property to the extent the participation occurred during marriage. However, under federal law, the social security contributions and entitlements of John are his separate property. 42 U.S.C. § 401, et seq. Because federal law preempts state law, the Appellate court could not even offset John's social security benefits against Annette's pension benefits. Thus, John was awarded all of his social security and one-half of the community portion of Annette's retirement plan through the County of Los Angeles.

Seemingly unfair, the full case analysis goes into far greater depth than I have summarized (and personalized) above. The relevant laws involved in this case could cause another fact pattern to result in a different decision, depending upon employment and exact factual circumstances.

Not surprisingly, there is currently legislation submitted as HR 711 that seeks to repeal the current Windfall Elimination Provision.

Homeowner Steps to Prevent El Niño Property Damage

By: John Schroeder

Landslide Prevention Tips

We are all being told that the El Niño heavy rains are coming soon! In Southern California heavy rains usually mean landslides. In fact, we have already witnessed some landslides in sensitive areas throughout Southern California. Most homeowners insurance does not cover earth movement. Therefore, it is even more important to protect your property from landslides or earth movement. In this article I will set forth what a landslide is, what areas are prone to sliding, what are the warning signs for a landslide on your property, what steps to take to prevent a landslide and what to do if a landslide occurs.

What is a landslide?

In the simplest terms a landslide is movement of rock, debris or earth down a slope. A geotechnical engineer might add that landslides occur when the resisting forces are less than the driving forces at a given location. Driving forces can include heavy rains, heavy loads at the top of a slope, steep slopes and adding water from pipe breaks or irrigation. An earthquake can also serve as a driving force. Resisting forces include retaining walls, vegetation, structures or soils that resist movement.

What areas are prone to landslides?

If there is a history of landslides on or around your property then it is normally more prone to slide. If there are steep slopes on or around your property it is more prone to slide. Other factors such as recent fire activity that removes vegetation, areas with high concentrated surface water flows, poor drainage, areas where construction has removed buttress material and areas with fractured or sheet rock geology can all make your property more prone to landslides.

What are the warning signs of landslides?

  • The breaking of water or gas lines
  • Unusual noises in your home such as cracking or creaking
  • Local evidence of recent landslides or earth movement
  • Soil pulling away from your foundation or other structures
  • Surface cracking in your soil
  • Windows or doors that stick or won't move>
  • Roads with cracks or bulging in your area

What steps should a homeowner take to prevent landslides?

Make sure roof gutters and downspouts are clear of debris and are connected properly. Test your soil drains to make sure they are free and clear. Make sure your property drains away from your house and toward ground drains or drainage structures such as gutters and storm drains. Check the storm drain entrances to make sure they are free of debris or obstructions. Protect sensitive areas against increases in surface water. Review the drainage patterns from the surrounding properties to insure your property is not being surcharged with unnecessary surface water. Finally, if you have a swimming pool make sure it has a working overflow pump or drain and turn off the automatic filling device.

Call your local government official or neighbor to repair any surrounding areas that will increase your risk before the next heavy rain.

If you have questions about sensitive areas or surrounding property call a licensed Engineering Geologist.

What to do if you have a landslide?

If you believe you are in peril, leave your home immediately and get to a safe location. Over 32,000 people have died from landslides between 2004 and 2010. Mudflows and actual slides can move very quickly. In the recent Mt. Soledad landslide one homeowner came within minutes of being caught in her shower as her house slid down the hill. Do not delay in leaving dangerous areas.

If damage occurs, call a licensed Engineering Geologist and your local government. If you believe that your local government or others caused or contributed to your damage contact an attorney. You should also contact your insurance company immediately and report the damage. Finally, you should act quickly to take steps to prevent or minimize any future damage.

Landslides are complex geologic events that often have hidden or less than obvious causes. In many landslides there is more than one triggering event. These triggering events can be man-made, mother nature, or man-made and mother nature acting together. Expert and legal consultations will be required to determine who or what is at fault. Your local government will almost always blame the weather or soil conditions. The truth is that construction, lack of maintenance or leaking underground pipes may be contributing to the landslide. In complex cases boring or underground testing is needed to determine all the causes. This can be very expensive and should be monitored by your attorney.

Additional Information Sources for landslides:

FEMA at 1-800-621-FEMA

United States Geologic Service at www.USGS.gov

The national landslide Information Center at 1-800-654-4666 and http//landslide.usgs.gov

The Association of Engineering and Environmental Geologist at aegsc.org


Kring & Chung Partners Named to 2016 Super Lawyers List

Kring & Chung, LLP is pleased to announce that Kenneth W. Chung and Laura C. Hess have once again been named to the Southern California Super Lawyers list. This is the sixth consecutive year Kenneth W. Chung has received this honor, and the third consecutive year for Laura C. Hess. Super Lawyers is a rating service of outstanding lawyers from various practice areas who have attained a high degree of peer recognition and professional achievement.

A patented multi-phased selection process includes independent research, peer nominations and peer evaluations. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis with no more than 5% of the attorneys in California being selected as Super Lawyers.

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