Archives for March 2021

Probate Guardianship Frequently Asked Questions

Are you facing an incurable illness and wondering what will happen to your children?  Have you decided on a friend of family member to appoint as the guardian for your precious children, but you are confused as to the process?  If these questions are at the forefront of your mind, please contact the Law Office of David Knecht.  We have answers.  If you are in the process of educating yourself on the basics, here is an overview of some of the frequently asked questions about probate guardianship with information derived from the following: https://www.courts.ca.gov/1215.htm?rdeLocaleAttr=en.  

What is Guardianship?

Guardianship is a court process where a person who isn’t the child’s parent is given custody over the child (authority and responsibility to care for the child) or custody over the the child’s property. 

Who can be a Guardian?

The range is wide of parties who could qualify to be a guardian, from relatives to friends to interested parties. 

Can I name a Guardian for my children in my will?

Yes, you can name a guardian for your children.  You can write a letter naming a guardian or include it in your will.  If both parents are dead, the court will decide who the guardian is, but the court will take into consideration your recommendation.

Can I ask for a Guardian for my children if I am dying?

Yes, if you have an incurable illness and legal custody of the child, you can ask the court to appoint a join guardian, which can make the transition easier when you pass away.  This can give peace of mind to a parent who is facing an early death.  If the court approves the joint guardianship, both of you will act as parents when you are alive and then the joint guardian will have full custody of the child without another guardianship hearing. 

Can a child ask for a Guardian?

Yes, if a child is 12 years old or older, he or she can ask the court for a Guardian. 

Where can I go for answers about Guardianship?

If you have questions about Guardianship, the attorneys at the Law Office of David Knecht, have extensive experience in all aspects of family law and estate planning and can answer your questions.  Contact us at 707-451-4502 for more information.  

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Can a Postnuptial Agreement Save Your Marriage?

I recently had an attorney friend share her story about how a postnuptial agreement saved her marriage, and I share it with her permission.  She had used separate assets earned prior to the marriage to pay large expenses for two children via IVF and gestational carriers.  The couple was one year into marriage, and she said she was building resentment for his lack of contribution to the expense of the children.  She discussed a postnuptial agreement, wherein he agreed to pay her a large sum in the event of divorce, which both thought was fair, since her assets had been severely depleted with the fertility expenses.  She agreed to stop threatening divorce and agreed to pay him a certain sum if she moved out of their home within the next year.  This in an example of how a postnuptial agreement can be useful in many situations where After the postnuptial agreement was signed, she felt peace of mind knowing that her financial position was more protected than previously, and he felt relief that she would be incentivized not to threaten divorce or move out. This story illustrates the advantage of a postnuptial agreement when the parties may not be at the point of divorce, but they have issues that need to be discussed or resolved.

How Can A Postnuptial Agreement Help a Marriage?

At the beginning of a relationship, you may not fully know who your spouse is or what their habits are.  Your spouse may not have been completely forthright with you about finances, fidelity or other issues.  A postnuptial agreement can help you discuss and resolve some of these issues, possibly setting yourselves up for a more peaceful and positive marriage in the future.  A postnuptial agreement can address a wide variety of issues such as committing to therapy, promising to refrain from infidelity, or clarifying financial responsibilities. Sometimes making a commitment through a contract can help motivate the parties to improve their effort in the marriage.   

What Is A Postnuptial Agreement?

In California, a postnuptial agreement is a legal document that protects the parties’ assets in the event of a divorce. Similar to a prenuptial agreement, the postnuptial agreement guides the court on terms that should apply in the event of a divorce.  The laws relating to Postnuptial Agreements in California can be found here:  https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=FAM&division=4.&title=&part=5.&chapter=1.&article=

What Are the Requirements for a Valid Postnuptial Agreement in California?

Unlike prenuptial agreements that are valid once completed, the postnuptial agreement is not considered a valid agreement until filed with the family court and accepted by a judge. Additionally, neither party can be forcer or coerced into signing the agreement.  It must be in writing and have the signatures of both parties and be notarized.  Finally, the agreement must be clear, transparent and fair.   

What Is Not Allowed with a Postnuptial Agreement?

  • You can’t threaten, deceive or force your spouse into signing. 
  • You can’t create an agreement that is “unconscionable,” meaning it is unreasonably in favor or against one the parties. 
  • You can’t hide assets, debts, income or property from your spouse with the intention to trick them into a postnuptial agreement.  

A postnuptial agreement isn’t helpful for every marriage, but if is a tool that may help you, please contact the Law Office of David Knecht, at 707-451-4502 for more information.  We have extensive experience in family law and can help you decide if a postnuptial agreement is right for you. 

Filed Under: Postnuptial Agreement

What to Do About the Mortgage When Getting a Divorce in California

For many families, their house is the most valuable asset, so the question of what happens to the house is extremely important.  The answer can depend on many factors, so this article will give an overview of some of the possibilities and considerations.  If you’d like to understand how the law will impact your specific circumstances, contact  us at the Law Office of David W. Knecht for a consultation.  We have extensive experience in family law and can help you understand how the factors discussed in this article will apply to you, your property and your family. 

  • Determine whether the home is separate or community property.
  • Home purchased prior to marriage, generally separate.  If the home was purchased prior to the marriage by one spouse and no community assets were used to make payments on the home, then it would typically be separate property. This is a general rule and there may be exceptions which are beyond the scope of this article.   
  • Home purchased during marriage, generally community.  If the home was purchased during the marriage, it is likely community property.  In California, the presumption is that property acquired during the marriage is community property and not separate property.
  • Separate property means one spouse will get it, community property means it is a shared asset. If the house is separate property, the owner will get the house.  If the house is community property, the house can be divided between the couple by agreement or court order.   See https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550 and https://codes.findlaw.com/ca/family-code/fam-sect-2581.html

which state that the presumption is that community property is divided equally. 

  • Sell and divide profits.

The most obvious option is to sell the house and divide the profits between the spouses.  This is clean and is often perceived by the parties as equal.  This is a good option when neither spouse can afford the house alone. 

  • Buy out.  

A buy out option is where one spouse pays the other their share of the value of the home and keeps the home.  This can be advantageous if the home if financed with a favorable interest rate, or if the home has special value in terms of sentimental value or location or design that can’t be duplicated by an alternative house. The spouse considering a buy out should weigh various factors such as the mortgage payments, interest, utilities, insurance and maintenance costs. There can be important tax implications to this decision.  For example, if by court order or agreement one spouse pays the mortgage as a form of spousal support, then the spouse paying the mortgage can claim a tax deduction for support payments, and the spouse receiving would need to claim the payments as support income.  Consulting a tax professional or your attorney on the tax consequences of the division of the house is a important step in the divorce process. 

  • Deferred Sale

A court can enter a deferred sale order to benefit their minor children as a way of lessening the impact on the children.  With a deferred sale order, one spouse and the children stay in the home but both own the home jointly for a certain length of time.   (See https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3800.&lawCode=FAM)

There are many important considerations when contemplating a divorce, and the division of the home is one of the most vital aspects to plan out in advance.  If you are interested in more information about how your home would be divided in a divorce, please contact the Law Office of David W. Knecht, at 707-451-4502.

Filed Under: General

Getting a Divorce? Here Are The Basics

Today’s article will be a question and answer about divorce basics in California with source material derived from:  https://www.courts.ca.gov/1032.htm

  • Is divorce the only way to end a marriage in California?

No, divorce is the most common way to end the marriage, but annulment and legal separation should not be forgotten.  Legal separation may be the preferred in certain situations, for example, if a party can retain health insurance through the other spouse and continue empl9yer contributions.  In that instance, if neither party was eager for the divorce to be final or to remarry, then legal separation for a time may be more advantageous than divorce. 

  • Is California a no fault state? 

Yes, California is a no fault state.  You do not have to prove a basis for a divorce and can obtain it solely on the basis of irreconcilable differences, which basically means you just don’t get along with each other. 

  • Is it better to be the one that files first?

The party that files is not important from a judicial perspective.  The court doesn’t give any preference to the person who is first to file.  However, taking the initiative to get the case started may be an advantage or a disadvantage for your strategy in your specific case.  That depends on your personal circumstances and objectives.  

  • Can a divorce impact my immigration status? 

A divorce may impact your immigration status, so it is important to get information on your circumstances as soon as possible.  

  • Can a divorce affect my health insurance? 

Yes, if your health insurance is covered under your spouse’s plan, then it’s important to consider your health insurance options before finalizing a divorce.  There are different options for protecting your health coverage, and you’ll want to negotiate the best option for you. 

  • Will a divorce limit relocation plans?

If you will be sharing custody of children, then divorce can affect relocation plans, so this is a vital consideration in the process if you are planning a significant move.  

  • Where can I get help with a divorce to make sure I think through all the important concerns?

If you need help with a divorce, please contact the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and have the knowledge and expertise to answer your questions. 

Filed Under: General

Negotiating a House Buy Out in a Divorce in California

Protecting your assets is one of the most important considerations when getting a divorce, and the home is typically the most valuable asset for most families.  A buyout is when one spouse wants to keep the house and decides to pay the other spouse for their interest.  A buyout might be preferable to one spouse for many reasons:  keeping continuity for the children, if the house is sentimental, to avoid the cost of moving, to avoid paying taxes on a sale of the home, if the house is financed with a good interest rate, etc.  This article will discuss the steps to work through to make a good buy out offer. 

  • Determine who owns the home. 

California courts presume that a home acquired during the marriage is community property, meaning that the home needs to be divided 50/50.  However, the analysis of whether the home is community or separate property can be more complicated than that, for example, if the home was purchased prior to the marriage or if the home was inherited by one spouse.  Although a detailed analysis of these rules is beyond the scope of this article, the first step in the buy out process is to determine whether the home is, in fact, community property.   See https://codes.findlaw.com/ca/family-code/fam-sect-2581.html for the presumption that the home is community property. 

  • Determine the value of the home. 

There are many ways to determine the value of the home.  The most thorough may be to obtain one or more assessments from a licensed property assessor.  The process involved generally includes looking at comparable homes in the area, which are properties with similar square footage, condition and year in the same neighborhood.  However, if the expense of a formal assessment is cost prohibitive, you can also obtain a comparative market analysis from a realtor.  A comparative market analysis (CMA) is an estimate based on recently sold, similar properties in the immediate area.  If you don’t want to pay a professional, you can also do your own research on homes through Zillow or Redfin. 

  • Consider the financing. 

Your buyout offer may require a refinance of the mortgage.  It is often helpful to talk to a lender and find out the rates and cost of the refinance before approaching your ex-spouse with a buyout offer.  This way you have your “ducks in a row” before beginning a negotiation process. 

  • Don’t forget the paperwork. 

Property is transferred through paperwork called a deed.  A commonly used document is a quitclaim deed.  A quitclaim deed transfers whatever interest the grantor has to the other person.  This means that if there are liens or other encumbrances on the property, then those will also be transferred in the quitclaim deed.  This deed will remove the spouse transferring their interest from the title. 

If you need help with a divorce and in particular if you’d like an advocate in the home buyout process, please contact the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law. 

Filed Under: General