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Scott Charles MacCabe

  • Divorce
  • California
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  • Divorce
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Jurisdictions Admitted to Practice
Univ of California at Los Angeles
Undergraduate Degree
USC Law School
Law Degree
Professional Associations
California State Bar # 145229
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Legal Answers
7 Questions Answered

Q. My wife is in prison for 5 years. Could she stop me from leaving California with our son to get a job in another state?
A: If your wife files for a marital dissolution and serves you before you leave, then yes. The ATROS on the back of the summons restrict both parties from leaving the state without prior written consent or a court order. If you are leaving for work, then you likely would prevail even if she filed and tried to stop you. However, you would have to go through the court process and get an order. In any event, you should always keep your wife informed of your residence information so she can contact you and your son.
Q. I am in Alameda Co., with a court-appointed Special Master. How can I have him dismissed for bias and incompetence?
A: First, any lawyer would need to review the originating order to verify the matter was handled correctly at the get go. Then, you could file a motion to disqualify the Special Master. There are nowhere near enough fact assertions in your question, nor enough background, to even start on that path. Finally, I sense your displeasure with the justice system's handling of your case. Yet, there might be several reasons why your desired outcome has not been achieved. Aiming towards a different result than what you have gotten so far, there might be steps you can take - short of filing a motion to remove the Special Master. Please consider the entire range of alternatives before taking any action - and retain a local lawyer.
Q. Preservation of green card after the divorce while the non-US spouse is living abroad.
A: You have rights as a victim of domestic violence and should pursue citizenship, but I would recommend that you remain within the United States if citizenship is the goal. You are here legally, and should not leave. As for your second question, you need to look at the assets and debts - and yes, you are liable for community property debts. You say "his" debts, but I assume you mean debts your husband incurred during the course of the marriage. Please consult with a lawyer at once to protect your rights.
Q. Does sole propriet. construction co. become a divided partnership in divorce?investments made elsewhere are comm. prop
A: Though there are many facts that need to be discussed with you on this question, I would say that your construction business is separate property in your mind because you started it before marriage - but working during the marriage has given the business a mixed asset nature. Your community labor has added value to what was separate property, so your wife has a claim under the Pereira - Van Camp theories. Please consult with a local attorney so all the facts can be discussed and the case pursued accordingly. You will likely need a forensic accountant also.
Q. Can I get sole property back after divorce?
A: You have not only the Judgment working against you but also the delay. However, your situation is similar to so many and I would encourage you to take action. After weighing other factors and how legal action might effect your ongoing relationship with your former wife if any relationship does exist, you can file a motion within your divorce case seeking the return of the property. You could fill out the papers (attaching all the written correspondence, your declaration on the facts, and what you might have supporting that the items are your separate property) with your prior attorney, paralegal, or on your own and then pay a $40 filing fee. You might not prevail, but she might choose to simply return the items to you. Worse yet, she could claim that you already picked the items up - her response is uncertain, but you would know better.
Q. What do I do if my husband has destroyed all evidence to be used in our divorce hearing-
A: First, you should retain a lawyer or at least consult face to face with a local attorney in your area. If that cannot happen, please go to a self-help center in your area. As to your question, you need to (1) obtain records through subpoenas and discovery tools regarding the evidence you are seeking (I am assuming financial records from banks and work records from employers). There are tools for you to use to obtain those records, and (2) pursue complete satisfaction of the disclosure requirements in the case under Family Code section 2100. If the records are not maintained by any third parties but were instead private letter agreements between the two of you, then I do not know their validity and your likely remedy would be to marshall what circumstantial evidence (through witnesses and tangential documents)that you can.
Q. Will a backdated a declaration of marriage invalidate our marriage?
A: Your husband needs to take action in the court case involving the 1994 "wife." My understanding from you is that she knew she was not legally married to your husband, and she refrained from marrying your husband so she could receive benefits. You need to keep in mind that there there are theories of marriage beyond just simple common law to validate an otherwise imperfect legal marriage, such as the putative spouse theory under Family Code section 2251(which could apply to an otherwise not married "spouse" if he or she thought in good faith he/she was married and had nothing to do with the legal impediment that caused that marriage to be invalid) - but the 1994 woman cannot be a putative spouse because she did not act in good faith. Your husband needs to prove that the 1994 woman deliberately sabotaged the legal requirements for that marriage to be valid. She knew about valid marriages - she had been married before. So knowing the steps to take, she chose not to so that she could retain benefits as a widow of her earlier husband. With those facts proven, he should prevail in reversing that ruling but time is of the essence and he cannot afford any delay. If that ruling is not reversed, then his marriage to you is bigamous and thus void at its inception under Family Code section 2201. If that happens then you might need to consider other theories as well. Please retain a local lawyer and take action now.
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