FAMILY LAW: How to Help Your Children Get Through Divorce

CONSTRUCTION: Indemnity

How to Help Your Children Get Through Divorce

By: Hoang-Anh Zapien

Divorce is a time of turmoil for the entire family. Typically, parents have had time to prepare for and come to terms with the fact that the family unit will be dissolved. However, this news is always startling to children, no matter how inevitable divorce may have seemed. Children often perceive their parents as “superheroes,” so they innocently expect that their parents will work through and solve any issue. When this is not the case, children are often left feeling confused and scared. Divorce ultimately shatters the basic sense of safety and stability that a child finds with Mom and Dad in a united family unit.

What to Tell Your Children During the Divorce:

• Tell them they are not responsible for the divorce!
• Tell them both parents love them although one parent will no longer live in the home.
• Be prepared with an age appropriate answer when your child asks, “Why are you getting divorced?”
• Explain to them in as much detail as possible all the changes that might take place due to the divorce. Give your child as much time as possible to assimilate to the idea of their entire world changing. If possible, do not make huge changes overnight!
• Tell your child to come to you with any questions, concerns or fears they may have. Be a source of security for your child during this time.

What You Should Never Do During the Divorce:

• Never allow your emotions to get in the way of doing and saying what is in your child’s best interest.
• Never speak unkindly of, or degrade the other parent in front of the child. Allow your child to maintain a high level of respect for the other parent so they never feel as though they are stuck in the middle.
• Do not allow your issues with your ex-spouse to interfere with your relationship with your children. Your child deserves you to be the best parent possible, regardless of what issues you are going through with the other parent.

Parents owe it to their children to minimize the long lasting effects that divorce can have on a child. Divorcing parents need to commit to establishing a solid co-parenting relationship with one another, where every decision is centered on what is in the best interest of the child. Although the parents are not together as a couple, a child will ultimately benefit from seeing their parents remain unified in raising and making decisions for their life. This will allow the child to regain stability and security in knowing that their parents remain committed to their parental roles, even if the family unit has dissolved.

Hoang-Anh Zapien is an Associate with Kring & Chung, LLP’s Inland Empire, CA offices. She can be contacted at (909) 941-3050 or azapien@kringandchung.com.

Indemnity

By: Roland J. Amundsen

Indemnity is a concept that causes most lawyers and judges to cringe, and causes some clients to cry. Why? Because it is a concept that has almost nothing to do with whether you did something wrong. Instead it usually has everything to do with whether you signed a contract or other legal document where an indemnity provision was lurking. “Lurking” means “to lie in wait in a place of concealment, especially for an evil purpose.”

Indemnity provisions are a common component of construction contracts and they can wreak havoc on the profitability of a project. Therefore, you must know what your potential for havoc is before you sign any contract that includes an indemnity provision.

In California, if you sign a document, you are presumed to have read and understood it. Everyone knows that people sign documents without necessarily reading or understanding them. If you read every document while closing escrow, you would be reading for days. So there must be a certain level of trust when you deal with others. That trust can end up costing you a lot of money if there is an indemnity provision and you do not know what it means.

For example, on most projects where a subcontractor has bid through a general contractor, the subcontractor is asked to sign a standard pre-printed contract. They usually include (lurking somewhere) an indemnity provision that says you agree to indemnify, defend and hold harmless the general contractor for every related bit of property damage, personal injury or even death. The exact language used in that indemnity provision can make all the difference in the world. Depending on the wording, it may be void and unenforceable. On the other hand, a subcontractor may be held liable for all liability, including litigation costs and legal fees, due to the negligence of the general contractor, despite the complete innocence of the subcontractor.

Another example involves the owner of a property where construction is being performed who needs to obtain an additional loan, but the title insurer wants the contractor to indemnify them for any liens on the property. The contractor may agree due to the fact that the contractor feels he has control over any potential lien. However, what if the contractor is fired shortly after the loan documents are signed? The indemnity may include the duty to defend for every conceivable liability and expense. If it can be conceived, it will likely happen at some point in time, and you do not want to be on the hook when it happens.

However, all is not lost. There are many defenses to indemnity claims, and there is hope that the justice system will actually result in justice. That is where lawyers can be a valuable asset.

The BEST advice is to know what dangers lurk within the contract BEFORE you sign on the dotted line. At least then you will possess the knowledge to negotiate or refuse to sign documents that include a provision with an unfair purpose. That knowledge may make all the difference for your project.

Roland J. Amundsen is an Associate with Kring & Chung, LLP’s Irvine, CA office. He can be contacted at (949) 261-7700 or ramundsen@kringandchung.com.

Registration Opens for 2013 Kring & Chung Newport Beach Triathlon
Registration is now open for the Kring & Chung Newport Beach Triathlon, which will take place on October 20, 2013 in the Back Bay of Newport Beach, California. The course includes a 1/2 mile swim, 15 mile cycle, and a three mile run.

Visit www.newportbeachtriathlon.com for more information and to register.

Divorce is a time of turmoil for the entire family. Typically, parents have had time to prepare for and come to terms with the fact that the family unit will be dissolved. However, this news is always startling to children, no matter how inevitable divorce may have seemed. Children often perceive their parents as “superheroes,” so they innocently expect that their parents will work through and solve any issue. When this is not the case, children are often left feeling confused and scared. Divorce ultimately shatters the basic sense of safety and stability that a child finds with Mom and Dad in a united family unit.

What to Tell Your Children During the Divorce:

• Tell them they are not responsible for the divorce!
• Tell them both parents love them although one parent will no longer live in the home.
• Be prepared with an age appropriate answer when your child asks, “Why are you getting divorced?”
• Explain to them in as much detail as possible all the changes that might take place due to the divorce. Give your child as much time as possible to assimilate to the idea of their entire world changing. If possible, do not make huge changes overnight!
• Tell your child to come to you with any questions, concerns or fears they may have. Be a source of security for your child during this time.

What You Should Never Do During the Divorce:

• Never allow your emotions to get in the way of doing and saying what is in your child’s best interest.
• Never speak unkindly of, or degrade the other parent in front of the child. Allow your child to maintain a high level of respect for the other parent so they never feel as though they are stuck in the middle.
• Do not allow your issues with your ex-spouse to interfere with your relationship with your children. Your child deserves you to be the best parent possible, regardless of what issues you are going through with the other parent.

Parents owe it to their children to minimize the long lasting effects that divorce can have on a child. Divorcing parents need to commit to establishing a solid co-parenting relationship with one another, where every decision is centered on what is in the best interest of the child. Although the parents are not together as a couple, a child will ultimately benefit from seeing their parents remain unified in raising and making decisions for their life. This will allow the child to regain stability and security in knowing that their parents remain committed to their parental roles, even if the family unit has dissolved.

Hoang-Anh Zapien is an Associate with Kring & Chung, LLP’s Inland Empire, CA offices. She can be contacted at (909) 941-3050 or azapien@kringandchung.com.

Visit www.newportbeachtriathlon.com for more information and to register.

고등학교를 졸업한 후 대학에 진학하기 전에 아르헨티나 북부지역에서 2년간 선교활동을 한 바 있습니다. 이 활동을 통해 Collings 변호사는 다양한 배경을 지닌 사람들과 함께 복잡한 문제를 해결해 나가는데 필요한 여러가지 경력을 익히게 되었습니다. Collings 변호사는 스페인어를 유창하게 말하고, 읽고, 쓸줄 압니다.

Collings 변호사는 2005년에 형사행정학 (Criminal Justice) 전공으로 Utah Valley University 으로 부터 학사 학위를 받았으며, 형사행정학과를 우등으로 졸업하면서 상위권 졸업생에게 수여하는 학업 우수상을 (Academic Achievement Award) 받은바 있습니다.

CONSTRUCTION: Seller Beware: Disclosing Construction Defects and Lawsuits in the Sale of a Residence

FAMILY LAW: “Can I Move Away With My Children?”

Seller Beware: Disclosing Construction Defects and Lawsuits in the Sale of a Residence

By: Lance A. Adair

The old saying “let the buyer beware” is of little relevance to California real estate transactions. If you are contemplating the sale of your home in California and have had construction defects or a prior lawsuit involving defects in your home, you should be aware of the basic disclosure requirements under California law.

Sellers of real property in California have a general duty to disclose all material facts that might adversely affect the value of the property, and which the seller knows are not known by the buyer or within the buyer’s diligent attention and observation. A failure to fulfill that duty is a form of fraud.

With regard to sales involving from one to four residential units, California Civil Code Section 1102.6 goes a step further in mandating disclosure of all “significant defects/malfunctions” in a variety of construction components, including, among others, interior and exterior walls, roofs, windows, concrete slabs and foundations, and plumbing. If you are selling your home, you either have been or will be presented with a “Real Estate Transfer Disclosure Statement” requiring the disclosure of problems with these construction components, and others. Another part of the disclosure form requires disclosure of known lawsuits affecting the property, “including any lawsuits alleging a defect or deficiency” in the property or in the common areas, if the property is part of a condominium or townhome development.

The disclosure statute is silent on whether to disclose only pending lawsuits or all known lawsuits, including those that have been concluded by settlement or otherwise. However, in 2009, the California Court of Appeal strongly suggested, without squarely deciding, that a seller should disclose even prior lawsuits. (See Calemine v. Samuelson (2009) 171 Cal.App. 4th 153.)

In the Calemine case, the seller disclosed a known, prior problem with water intrusion, but did not disclose the fact that two separate lawsuits involving that issue had been filed in court. The buyer promptly sued. The trial court initially found that the seller had adequately disclosed the water intrusion problem. The Court of Appeal, however, disagreed, sending the case back to the trial court to determine whether the seller also should have disclosed the prior lawsuits. Among other things, had the buyers known of the prior lawsuits, they could have obtained the court records and investigated further.

A failure to comply with the disclosure requirements embodied in the Real Estate Transfer Disclosure Statement does not invalidate a sale. However, anyone who willfully or negligently fails to comply is liable for actual damages suffered by the buyer. In addition, compliance with the Civil Code requirements does not relieve a seller of the general, common law duty to disclose anything that might affect the value of the property. The available remedies for a breach of the common law duty include not only damages, but, in an appropriate case, a judgment unwinding the sale.

In the Calemine case, the better course of action for the seller, without question, would have been to disclose the prior lawsuits, even though the underlying problem of water intrusion had been disclosed.

Lance A. Adair is Of Counsel with Kring & Chung, LLP’s Irvine, CA office. He can be contacted at (949) 261-7700 or ladair@kringandchung.com.

“Can I Move Away With My Children?”

By: Hoang-Anh Zapien

During a divorce, parents are forced to rearrange their lives, and significant changes are often inevitable. Amongst these changes, parents who are divorcing usually make the decision to move because they can no longer afford to live in the same area. They feel the need to live closer to their work or even relocate to an area where they have family that can provide support during this difficult time. Nevertheless, anytime a move is considered and children are involved, the “moving” process becomes much more complicated. When a parent considers moving, the parent must consider whether or not the move is in the best interests of the children, and how the other parent will continue to have frequent and continuing contact with the children.

What does “move away” mean? Any move a parent makes, whether the move is 5 miles or 5000 miles away, that disrupts the current custodial schedule in any way that is detrimental to the relationship of either parent is considered a “move away.” This may warrant a new custodial schedule being implemented or even a change of custody. Either the parent wanting to move or the other parent who is opposed to the move must file a Request for Orders with the Court to get permission to move the child, or to get orders preventing the other parent from moving the child.

When dealing with “move away” orders, the Court’s priority is always to consider what is in the best interest of the children. The Court also considers the current timeshare and how each parent is exercising their time with the children. The Court’s analysis of the situation differs based on whether the parent requesting the move has sole custody, or whether the parties share joint custody of the children.

          Sole Custody. If the parent requesting the move has sole custody of the children, that parent has the presumptive right to move. The non-custodial parent has the burden of proving to the Court that the move will be detrimental to the child and/or detrimental to his or her relationship with the child. If the non-custodial parent is able to show that the move will be detrimental to the children, the Court will likely have an evidentiary hearing to reevaluate the current custody schedule to determine if a change in custody is necessary. Otherwise, if no detriment can be shown, the child will likely be allowed to move.

          Joint Custody. If the parent requesting the move shares joint custody with the other parent, the Court presumes the move will be detrimental to the children. The Court will then hold an evidentiary hearing to determine what would be in the best interests of the children. The Court will weigh the following factors:

• Distance of the move;
• Reason for the move;
• Children’s ages;
• The length of time the current custody order has existed;
• The children’s ties and relationships to the current community in which they are living;
• The children’s relationships with both parents;
• Whether or not the moving parent will allow the child to have frequent and continuing contact with the other parent; and
• What the child wants, if they are old enough to indicate a preference.

In weighing all of these factors, Courts are often faced with the difficult decision of determining whether or not the move would be in the best interest of the child. Upon a determination of what the Court feels is most beneficial to the children, the Court will either allow the requesting parent to move the child, or the Court will make a change in custody orders as is deemed necessary to protect the well-being of the children. The Court does not make a decision as to whether or not the parent can move, but rather whether or not the parent can move the children with him or her to the new location.

Hoang-Anh Zapien is an Associate with Kring & Chung, LLP’s Inland Empire, CA office. She can be contacted at (909) 941-3050 or azapien@kringandchung.com.

Kenneth W. Chung Appointed as Advisory Board Member for the Paralegal Program at IVC

Kring & Chung Managing Partner, Kenneth W. Chung, has been appointed as an advisory board member for the Paralegal Studies program at Irvine Valley College in Irvine, CA. The paralegal program at Irvine Valley College prepares students to assist attorneys as paralegals in administrative agencies, corporations, insurance companies, private law firms, government, and other legal environments. Emphasis is on training students in practical application and development of up-to-date paralegal related job skills. In addition, the program introduces students to legal theory.

Michelle A. Philo Appointed by California State Bar as ABA Delegate

On March 7, 2013, the Board of Trustees of the State Bar of California appointed Kring & Chung attorney, Michelle A. Philo, to serve as a State Bar delegate to the American Bar Association’s (ABA) House of Delegates. The House of Delegates is the policy-making body of the ABA and meets twice a year, at the ABA Mid-Year and ABA Annual Meeting. The State Bar appoints a total of 11 delegates. The State Bar’s delegates are part of the prestigious California delegation, headed by an elected State Delegate. Philo will serve a two-year term, beginning and ending upon the adjournment of the ABA Annual Meeting in August.

New Associate Joins Kring & Chung’s Las Vegas, NV office

Kring & Chung is pleased to announce that Russell D. Collings has joined its Las Vegas, NV office as an Associate attorney. Collings practices in the areas of general civil litigation, insurance defense, personal injury, family law, real estate law, and immigration. Collings is a member of the Clark County Bar Association, the Central Utah Bar Association, and the American Immigration Lawyers Association.

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The old saying “let the buyer beware” is of little relevance to California real estate transactions. If you are contemplating the sale of your home in California and have had construction defects or a prior lawsuit involving defects in your home, you should be aware of the basic disclosure requirements under California law.

Sellers of real property in California have a general duty to disclose all material facts that might adversely affect the value of the property, and which the seller knows are not known by the buyer or within the buyer’s diligent attention and observation. A failure to fulfill that duty is a form of fraud.

With regard to sales involving from one to four residential units, California Civil Code Section 1102.6 goes a step further in mandating disclosure of all “significant defects/malfunctions” in a variety of construction components, including, among others, interior and exterior walls, roofs, windows, concrete slabs and foundations, and plumbing. If you are selling your home, you either have been or will be presented with a “Real Estate Transfer Disclosure Statement” requiring the disclosure of problems with these construction components, and others. Another part of the disclosure form requires disclosure of known lawsuits affecting the property, “including any lawsuits alleging a defect or deficiency” in the property or in the common areas, if the property is part of a condominium or townhome development.

The disclosure statute is silent on whether to disclose only pending lawsuits or all known lawsuits, including those that have been concluded by settlement or otherwise. However, in 2009, the California Court of Appeal strongly suggested, without squarely deciding, that a seller should disclose even prior lawsuits. (See Calemine v. Samuelson (2009) 171 Cal.App. 4th 153.) In the Calemine case, the seller disclosed a known, prior problem with water intrusion, but did not disclose the fact that two separate lawsuits involving that issue had been filed in court. The buyer promptly sued. The trial court initially found that the seller had adequately disclosed the water intrusion problem. The Court of Appeal, however, disagreed, sending the case back to the trial court to determine whether the seller also should have disclosed the prior lawsuits. Among other things, had the buyers known of the prior lawsuits, they could have obtained the court records and investigated further.

A failure to comply with the disclosure requirements embodied in the Real Estate Transfer Disclosure Statement does not invalidate a sale. However, anyone who willfully or negligently fails to comply is liable for actual damages suffered by the buyer. In addition, compliance with the Civil Code requirements does not relieve a seller of the general, common law duty to disclose anything that might affect the value of the property. The available remedies for a breach of the common law duty include not only damages, but, in an appropriate case, a judgment unwinding the sale.

In the Calemine case, the better course of action for the seller, without question, would have been to disclose the prior lawsuits, even though the underlying problem of water intrusion had been disclosed.

Lance A. Adair is Of Counsel with Kring & Chung, LLP’s Irvine, CA office. He can be contacted at (949) 261-7700 or ladair@kringandchung.com.

During a divorce, parents are forced to rearrange their lives, and significant changes are often inevitable. Amongst these changes, parents who are divorcing usually make the decision to move because they can no longer afford to live in the same area. They feel the need to live closer to their work or even relocate to an area where they have family that can provide support during this difficult time. Nevertheless, anytime a move is considered and children are involved, the “moving” process becomes much more complicated. When a parent considers moving, the parent must consider whether or not the move is in the best interests of the children, and how the other parent will continue to have frequent and continuing contact with the children.

What does “move away” mean? Any move a parent makes, whether the move is 5 miles or 5000 miles away, that disrupts the current custodial schedule in any way that is detrimental to the relationship of either parent is considered a “move away.” This may warrant a new custodial schedule being implemented or even a change of custody. Either the parent wanting to move or the other parent who is opposed to the move must file a Request for Orders with the Court to get permission to move the child, or to get orders preventing the other parent from moving the child.

When dealing with “move away” orders, the Court’s priority is always to consider what is in the best interest of the children. The Court also considers the current timeshare and how each parent is exercising their time with the children. The Court’s analysis of the situation differs based on whether the parent requesting the move has sole custody, or whether the parties share joint custody of the children.

          Sole Custody. If the parent requesting the move has sole custody of the children, that parent has the presumptive right to move. The non-custodial parent has the burden of proving to the Court that the move will be detrimental to the child and/or detrimental to his or her relationship with the child. If the non-custodial parent is able to show that the move will be detrimental to the children, the Court will likely have an evidentiary hearing to reevaluate the current custody schedule to determine if a change in custody is necessary. Otherwise, if no detriment can be shown, the child will likely be allowed to move.

          Joint Custody. If the parent requesting the move shares joint custody with the other parent, the Court presumes the move will be detrimental to the children. The Court will then hold an evidentiary hearing to determine what would be in the best interests of the children. The Court will weigh the following factors:

• Distance of the move;
• Reason for the move;
• Children’s ages;
• The length of time the current custody order has existed;
• The children’s ties and relationships to the current community in which they are living;
• The children’s relationships with both parents;
• Whether or not the moving parent will allow the child to have frequent and continuing contact with the other parent; and
• What the child wants, if they are old enough to indicate a preference.

In weighing all of these factors, Courts are often faced with the difficult decision of determining whether or not the move would be in the best interest of the child. Upon a determination of what the Court feels is most beneficial to the children, the Court will either allow the requesting parent to move the child, or the Court will make a change in custody orders as is deemed necessary to protect the well-being of the children. The Court does not make a decision as to whether or not the parent can move, but rather whether or not the parent can move the children with him or her to the new location.

Hoang-Anh Zapien is an Associate with Kring & Chung, LLP’s Inland Empire, CA office. She can be contacted at (949) 261-7700 or azapien@kringandchung.com.