Questions Answered by Vincent J. Bernabei
Q: 2017 divorce stipulates she pay for her car, 2018 cosign to help her lower payment, 2019 refi house but rejected because
Vincent J. Bernabei's answer
The 2018 transaction does not void the divorce judgment. Your former spouse complied with the divorce judgment by refinancing the car debt in 2018. You effectively co-signed for a legal stranger, since you were under no legal obligation to do so. You may have some options, but you should contact an attorney to discuss the specifics of your case, including the express terms of your divorce judgment.
The 2018 transaction does not void the divorce judgment. Your former spouse complied with the divorce judgment by refinancing the car debt in 2018. You effectively co-signed for a legal stranger, since you were under no legal obligation to do so. You may have some options, but you should contact an attorney to discuss the specifics of your case, including the express terms of your divorce judgment.
Q: Nephew is 18 & in HS, been living w/me for 6 mos. His Dad won't give up being the custodial. How do I become custodial?
1 Answer
| Asked
in
Family Law, Adoption, Child Custody and Child Support
for
Washington
on
Answered on Apr 11, 2019
Answered on Apr 11, 2019
Q: G-parents died in 1976 with no wills, no probate was done. OR has unclaimed money (life ins policy). How can I claim?
Vincent J. Bernabei's answer
Assuming the funds are held by Oregon Department of State Lands, you will need to determine whether either or both of your grandparents had wills. If so, one or both of their estates may need to be probated, depending on the terms of the wills. If you are the daughter of their surviving son, you don't get anything unless the will provides for it.
If there are no wills, and if you qualify as an heir, you could file a small estate affidavit and the money would be divided according to...
Assuming the funds are held by Oregon Department of State Lands, you will need to determine whether either or both of your grandparents had wills. If so, one or both of their estates may need to be probated, depending on the terms of the wills. If you are the daughter of their surviving son, you don't get anything unless the will provides for it.
If there are no wills, and if you qualify as an heir, you could file a small estate affidavit and the money would be divided according to...
Q: what kind of lawyer will i need to represent my interest concerning my mothers last will
Vincent J. Bernabei's answer
If your interest in your mother's will is contested, you will need a lawyer who has experience in probate and estate litigation.
If your interest in your mother's will is contested, you will need a lawyer who has experience in probate and estate litigation.
Q: Dad left a will to include four beneficiaries. Dad sold house one month prior to death. Money was put in savings. Only 1
Vincent J. Bernabei's answer
More information is needed to answer your question, including whether the child who received the savings account was a joint owner of the account or a payable on death beneficiary of the account and what were the circumstances surrounding your father's decision to effectively change his estate plan and disinherit the other three beneficiaries named in the will. If your father was competent and was not subject to undue influence, he is entitled to do what he wants with his money. You should...
More information is needed to answer your question, including whether the child who received the savings account was a joint owner of the account or a payable on death beneficiary of the account and what were the circumstances surrounding your father's decision to effectively change his estate plan and disinherit the other three beneficiaries named in the will. If your father was competent and was not subject to undue influence, he is entitled to do what he wants with his money. You should...
Q: why would the opposing party not have to have accounting before the estate is out of trial?
1 Answer
| Asked
in
Estate Planning, Family Law, Civil Rights and Probate
for
Oregon
on
Answered on Feb 6, 2019
Answered on Feb 6, 2019
Vincent J. Bernabei's answer
This is a common and unfortunate scenario when there is no comprehensive estate plan in place. If your mother and father owned their assets jointly while they were both alive, the surviving spouse will own everything when the first spouse dies. There is no estate and no probate for the first spouse to die if all assets were owned jointly. If and when the surviving spouse remarries, the "new" spouse of the surviving spouse is entitled to at least 1/2 of the entire estate of the surviving...
This is a common and unfortunate scenario when there is no comprehensive estate plan in place. If your mother and father owned their assets jointly while they were both alive, the surviving spouse will own everything when the first spouse dies. There is no estate and no probate for the first spouse to die if all assets were owned jointly. If and when the surviving spouse remarries, the "new" spouse of the surviving spouse is entitled to at least 1/2 of the entire estate of the surviving...
Q: My wife has constantly cheated the last 4 + years now she wants divorce. I’m on disability what options do I have
Vincent J. Bernabei's answer
Generally, your wife's cheating is not admissible in evidence in a divorce case. Oregon is a no fault divorce state, which means you cannot introduce evidence of fault to prove the reason for getting divorced. Your wife's cheating may be admissible if there is an adverse economic consequence that is caused by the cheating (for example, there is a large credit card debt because of lavish outings with another person).
I recommend you consult with an attorney to determine your options,...
Generally, your wife's cheating is not admissible in evidence in a divorce case. Oregon is a no fault divorce state, which means you cannot introduce evidence of fault to prove the reason for getting divorced. Your wife's cheating may be admissible if there is an adverse economic consequence that is caused by the cheating (for example, there is a large credit card debt because of lavish outings with another person).
I recommend you consult with an attorney to determine your options,...
Q: I have sole custody of my 2 sons with autism and want to move out of state without my ex knowing.
Vincent J. Bernabei's answer
The answer depends on the terms of your judgment of dissolution of marriage. If it states you are required to give notice of your move, then you are required to give notice.
The decision whether to modify parenting time to permit the relocation of children hinges “solely on the best interests of the children.” The only question is whether the children are ‘better served’ by relocating.
The court must consider the following relevant factors:
(a) The emotional...
The answer depends on the terms of your judgment of dissolution of marriage. If it states you are required to give notice of your move, then you are required to give notice.
The decision whether to modify parenting time to permit the relocation of children hinges “solely on the best interests of the children.” The only question is whether the children are ‘better served’ by relocating.
The court must consider the following relevant factors:
(a) The emotional...
Q: I have a hand written will that all assets go to me, his wife but there is not a legal marriage license.
Vincent J. Bernabei's answer
The handwritten will should be submitted to the probate court to begin the probate process, along with a petition. If the fair market value of the real property (home) is less than $200,000 and the fair market value of the car and other personal property is less than $75,000, you may be able to submit a small estate affidavit to complete the probate process. You can start the probate if you are named as the personal representative in the will. You may be eligible to begin the probate...
The handwritten will should be submitted to the probate court to begin the probate process, along with a petition. If the fair market value of the real property (home) is less than $200,000 and the fair market value of the car and other personal property is less than $75,000, you may be able to submit a small estate affidavit to complete the probate process. You can start the probate if you are named as the personal representative in the will. You may be eligible to begin the probate...
Q: If served a restraining order and what the petitioner said is not true. Along with pulling a 15 year old child into it
1 Answer
| Asked
in
Child Custody, Domestic Violence and Family Law
for
Oregon
on
Answered on Jan 3, 2019
Answered on Jan 3, 2019
Vincent J. Bernabei's answer
A court may issue a Family Abuse Restraining Order “upon a showing that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition;” that "there is an imminent danger of further abuse to the petitioner;" and “that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child.” At hearing, petitioner must establish all three requirements or the restraining order must be...
A court may issue a Family Abuse Restraining Order “upon a showing that the petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition;” that "there is an imminent danger of further abuse to the petitioner;" and “that the respondent represents a credible threat to the physical safety of the petitioner or the petitioner’s child.” At hearing, petitioner must establish all three requirements or the restraining order must be...
Q: My grandpas ex wife is A beneficiary on an annuity He divorced her Bc she committed fraud on his accounts what can we do
Vincent J. Bernabei's answer
Depending on the express terms of your grandfather's General Judgment of Dissolution of Marriage, the beneficiary designation may be revoked and the former spouse's ability to access the annuity may be restricted. Also, it is possible that he notified the annuity company of a change of beneficiary but the company did not comply with the notice.
You should consult with an attorney to determine your rights.
Depending on the express terms of your grandfather's General Judgment of Dissolution of Marriage, the beneficiary designation may be revoked and the former spouse's ability to access the annuity may be restricted. Also, it is possible that he notified the annuity company of a change of beneficiary but the company did not comply with the notice.
You should consult with an attorney to determine your rights.
Q: My friends mom was named in a will to distribute monies to her 3 adult kids. No money has been received by them.
Vincent J. Bernabei's answer
You may consider filing a court petition to have the personal representative removed. The petition should be filed in the probate case. The court will grant the petition if the personal representative has commingled estate money, such as using estate funds to pay for her own personal expenses. You should move quickly on this before the funds are spent because once the money is gone, the personal representative may not have the ability to pay the money back.
You may consider filing a court petition to have the personal representative removed. The petition should be filed in the probate case. The court will grant the petition if the personal representative has commingled estate money, such as using estate funds to pay for her own personal expenses. You should move quickly on this before the funds are spent because once the money is gone, the personal representative may not have the ability to pay the money back.
Q: My fiance' and I purchased our house one month before marriage. Now, 10 years later, he says he put more money in.
Vincent J. Bernabei's answer
The court's ultimate responsibility in dividing marital assets in a divorce proceeding is to make sure that the division is just and proper under all the circumstances. You have not provided enough details for an attorney to provide an informed response to your question. Without knowing all the circumstances, it is difficult to say whether your spouse may receive his initial contribution toward the home. You have a lot at stake and I recommend that you contact an attorney to discuss your...
The court's ultimate responsibility in dividing marital assets in a divorce proceeding is to make sure that the division is just and proper under all the circumstances. You have not provided enough details for an attorney to provide an informed response to your question. Without knowing all the circumstances, it is difficult to say whether your spouse may receive his initial contribution toward the home. You have a lot at stake and I recommend that you contact an attorney to discuss your...
Q: Does a widow in Oregon have survivorship rights even though only husbands name is on deed to house?
1 Answer
| Asked
in
Estate Planning, Real Estate Law and Probate
for
Oregon
on
Answered on Dec 3, 2018
Answered on Dec 3, 2018
Vincent J. Bernabei's answer
If only the deceased spouse's name is on the deed to the home, the surviving spouse must initiate a court probate proceeding to have ownership of the home transferred. The surviving spouse has certain claims to a deceased spouse's estate, but the deceased spouse's estate will have to go through probate. If the deceased spouse had no will, and the deceased spouse has no surviving children from other relationships, the surviving spouse should receive the entire estate of the deceased spouse...
If only the deceased spouse's name is on the deed to the home, the surviving spouse must initiate a court probate proceeding to have ownership of the home transferred. The surviving spouse has certain claims to a deceased spouse's estate, but the deceased spouse's estate will have to go through probate. If the deceased spouse had no will, and the deceased spouse has no surviving children from other relationships, the surviving spouse should receive the entire estate of the deceased spouse...
Q: Just trying to find out on a judgement/settlement i received,if and how to collect on it.Superior court judgement
Vincent J. Bernabei's answer
You will need to begin enforcement action, including wage and bank garnishments, seizure and sale of real and personal property, if any, owned by the debtor. If the debtor transferred property to others in an attempt to avoid the judgment debt s/he owes you, the recipient of the property may also be liable for the judgment. You should immediately contact an attorney to begin.
You will need to begin enforcement action, including wage and bank garnishments, seizure and sale of real and personal property, if any, owned by the debtor. If the debtor transferred property to others in an attempt to avoid the judgment debt s/he owes you, the recipient of the property may also be liable for the judgment. You should immediately contact an attorney to begin.
Q: I was hit by a car while riding my bike. The driver was at fault. My question is, will the fact that I was on meth
Vincent J. Bernabei's answer
Your meth use probably does not ruin your personal injury claim. Your meth use reduces the value of your claim but without more information, it is difficult to say how significant that reduction will be. You should consult with an attorney right away.
Your meth use probably does not ruin your personal injury claim. Your meth use reduces the value of your claim but without more information, it is difficult to say how significant that reduction will be. You should consult with an attorney right away.
Q: Would it be better for me to just keep our house and not asked for half of his 401(k)?
Vincent J. Bernabei's answer
Assuming the net values of the home and the 401(k) account are approximately equal, your spouse's proposal makes sense. There is much more to it than that though, and I encourage you to consult with an attorney in your area who handles divorce cases. Generally, in a long term marriage, the assets acquired during the marriage are going to be divided equally. In addition, you may be entitled to spousal support and child support, depending on the ages of the children, and the earning...
Assuming the net values of the home and the 401(k) account are approximately equal, your spouse's proposal makes sense. There is much more to it than that though, and I encourage you to consult with an attorney in your area who handles divorce cases. Generally, in a long term marriage, the assets acquired during the marriage are going to be divided equally. In addition, you may be entitled to spousal support and child support, depending on the ages of the children, and the earning...
Q: I was recently in a Car accident where a driver was using the special left turn lane as I was exiting a parking lot
Vincent J. Bernabei's answer
The ticket was for a traffic infraction and cannot be used to prove fault. Even so, the other driver's insurance company is bluffing. You should arrange for your insurance company to pay all of your medical expenses and lost wages, if any. You should contact an attorney who can assist you in obtaining reasonable compensation for your injuries and damages. Most attorneys will handle this type of claim on a contingent fee, which means you don't have to pay any attorney fees unless you receive...
The ticket was for a traffic infraction and cannot be used to prove fault. Even so, the other driver's insurance company is bluffing. You should arrange for your insurance company to pay all of your medical expenses and lost wages, if any. You should contact an attorney who can assist you in obtaining reasonable compensation for your injuries and damages. Most attorneys will handle this type of claim on a contingent fee, which means you don't have to pay any attorney fees unless you receive...
Q: What forms do I need to fill out and what process do I need to go through to gain guardianship of my 10 year old son?
Vincent J. Bernabei's answer
If this is your son, you need a custody order. If there is already a custody order in a custody or divorce decree, then you should file a petition to modify the custody order. Usually, that has to be done in the same court that entered the custody order. If there is no prior custody order, then you should file a petition to establish custody in the county court where the child has resided for the past six months.
If this is your son, you need a custody order. If there is already a custody order in a custody or divorce decree, then you should file a petition to modify the custody order. Usually, that has to be done in the same court that entered the custody order. If there is no prior custody order, then you should file a petition to establish custody in the county court where the child has resided for the past six months.
Q: Is it legal in Oregon to force one father to pay for his and another fathers child?
1 Answer
| Asked
in
Child Custody, Child Support and Family Law
for
Oregon
on
Answered on Jul 16, 2018
Answered on Jul 16, 2018
Vincent J. Bernabei's answer
You cannot sign away your responsibility to pay child support unless the child is adopted by another person. Your monthly support obligation is based upon your and mother's incomes, and should take into account that mother has two "non-joint" children. This factor could actually increase your child support obligation. Whether the father of one of mother's other children is actually paying child support should not affect your child support obligation under the presumed amount of support.
You cannot sign away your responsibility to pay child support unless the child is adopted by another person. Your monthly support obligation is based upon your and mother's incomes, and should take into account that mother has two "non-joint" children. This factor could actually increase your child support obligation. Whether the father of one of mother's other children is actually paying child support should not affect your child support obligation under the presumed amount of support.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
