Archives for April 2021

Do I Have to Pay My Spouse’s Attorney Fees in a California Divorce?

A question that often arises in a divorce is whether one spouse has to pay the other spouse’s attorney’s fees, and like many areas of the law, this legal question does not have an easy yes or no answer.  This article will talk about how the process works in determining whether the wife has to pay the attorney fees or whether the husband has to pay the wife’s attorney fees or whether each party pays their own.  

Family Code 2030

You can read the California Family Code Section 2020 that talks about this question here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2030.&lawCode=FAM

Each party needs to have equal access to representation

One key part of this law states that the court should ensure that each party has equal access to representation.  To accomplish this goal, the court can order one party to pay the other party or the other’s party’s attorney.  

What does “equal access to representation” mean?

A legal case from 2009, known as Alan S. v  Superior Court of Orange County, helps explain what “equal access to representation” means.  You can read the full opinion here:  https://scholar.google.com/scholar_case?case=9789715232219912999&q=divorce+attorney+fees+alan+s.+&hl=en&as_sdt=6,45

The Alan S. case clarified that a  common misconception is that the purpose of Family Code 2030 is to redistribute money from the greater income party to the lesser income party.  In other words, some people incorrectly believe that this law is in place to make the money “fair” by forcing the richer party to pay the fees of the poorer party.  The Alan S. case clearly explains that equalizing disparate incomes is not the purpose. The purpose is to equalize access to legal representation. 

The idea is that both sides should have the opportunity to retain counsel, not just the one with the greater financial strength.  In fact, the Court in this case was quite clear on that point, and even italicized the take-away message of the case with this explanation: “The whole point of this case, after all, is that each side should have an equal opportunity for legal representation in the upcoming child custody hearing.”

Does the party with greater financial resources always have to pay for the other spouse’s legal fees?

Another common misconception is that the party that is wealthier always has to poay for the other spouse’s legal fees.  That is not the rule, as the decision turns on access to legal representation and not just the difference in incomes between the two parties.  For example, in the Alan S. case, the lower court’s ruling that Alan S. had to pay his wife’s attorney fees was reversed because the court reviewed the  circumstances and concluded that the equal opportunity standard in this instance did not justify an attorney fee award.  

How can you find out whether one spouse will have to pay the other spouse’s attorney’s fees in your divorce?

If you have questions about paying a spouse’s attorney fees, please contact us at the Law Office of David Knecht.  We have extensive experience in all aspects of family law and can answer your questions.  Contact us at 707-451-4502 for more information.  

Filed Under: Family Law, Vacaville Attorney, Vacaville Lawyer

What is a California Estate Plan?

A comprehensive California estate plan should be specific and customized to fit your personal circumstances.  It  generally includes a Living Trust, Powers of Attorney for Property and Healthcare, a “HIPAA” authorization, a Living Will/Advance Healthcare Directive,  a Pour-Over Will, Deeds to your properties, Beneficiary Designations on life insurance, annuities, IRAs, 401 (k)s, Guardian Nominations for minor children and perhaps more.  Sounds like a lot?  Well, there can be many advantages to getting everything in order while you are in good health and capacity to make the many decisions involved in preparing these documents.  This article will give you an overview what each of the pieces of the Estate Planning puzzle are and how they can help you.  

What is a California Living Trust?

A California Living Trust protects you while you are alive.  During your lifetime, you have complete control over the Living Trust to change it, and you will have the right to use the property during your lifetime with no restrictions.  However, upon incapacity or death, the Living Trust puts the power into the hands of your heirs, generally with no requirement to go to court.  It can have advantages for tax planning and avoiding creditors.  You can find more information on Living Trusts here:  https://www.scscourt.org/self_help/probate/medical/living_trust.shtml#what

What is a Living Will/Healthcare Directive?

A California Living Will is more commonly knowns as an Advanced Healthcare Directive, and it helps your loved ones know how to carry out your wishes when you are no longer able to make your own decisions.  It can direct them on tough decisions such as breathing and feeding tubes and other end of life dilemmas.  You can find more information here: https://oag.ca.gov/consumers/general/care#advance

What is a California Durable Power of Attorney for Property and Healthcare?

A Power of Attorney is a document that authorizes someone to represent you.  A Power of Attorney can authorize another person to make bank transactions, trade stocks, pay your bills, buy or sell your property, file your tax returns, hire people to take care of you, apply for benefits on your behalf and more. You can find more information here:  https://www.scscourt.org/self_help/probate/medical/poa.shtml#what

How do I designate a guardian for my children in California?

If you have minor children, it is likely a great concern for you to determine who will take care of your children if you pass away or become incapacitated. When both parents are dead, the court will decide who the guardian will be as per what is the best interest of your children.  The court will ask the children what they want and consider your guardianship wishes.  Alternatively, while you are alive, if you have legal custody, you can obtain a joint guardianship, and then when you pass away, the legal custody will transfer to the other joint guardian usually without additional hearings.   You can find more information here: https://www.courts.ca.gov/1215.htm?rdeLocaleAttr=en

What is a California Pour-Over Will?

A Pour-Over Will works hand-in-hand with our Living Trust.  It  covers everything that may not be in your Living Trust at death to your trust.  For example, if you took your home out of your trust to refinance and forgot to put it back into the trust, you Pour-Over Will would make sure that the home is distributed under the terms of the trust.  You can find more information here: https://www.scscourt.org/self_help/probate/medical/living_trust.shtml

What is a HIPAA Authorization?

A HIPAA authorization allows the people you designate to have access to your healthcare documents.  This can be important for your family members to get updates on your condition, view diagnostics such as lab reports or test results, and to make more informed healthcare decisions on your behalf. You can find a HIPAA form here:  https://www.dhcs.ca.gov/services/Documents/Authorization%20for%20Release%20of%20Protected%20Health%20Information%20DHCS%206247.pdf

How can the Law Office of David Knecht help you personalize your estate plan?

Depending on your specific circumstances, you may need other documents.  If you are anticipating bankruptcy, divorce, or certain types of lawsuit, you may need strategic planning to protect your beneficiaries.  An estate plan goes further than a checklist of documents, but should be approached with a unique plan just for you that provides the best tax strategies and plans to carry out your wishes with exactness. The attorneys at the Law Office of David Knecht, have extensive experience in all aspects of estate planning and can help you create a plan that is complete and advantageous.  Contact us at 707-451-4502 for more information.  

Filed Under: California Estate Plan, Estate Planning, Estates

3 Important Reasons Why a HIPAA Authorization Should be in Your Estate Plan

For a many people, when they hear “estate planning,” they think simply of a will, but a complete California estate plan is much more than that.  This article will explain what a HIPAA Authorization is and three important reasons why it is an important part of your estate plan. 

What is HIPAA?

The Health Insurance Portability and Accountability Act, or HIPAA, is a law relating to the privacy of health care records.  Having a HIPAA authorization in your estate plan is important to make sure that the people who are important to you have access to your health care records and can communicate with your medical care providers.  Your doctor and other health care providers are not able to talk to your loved ones on the phone about your condition, share lab or diagnostic reports, or release other medical information with family members or friends unless you have prepared a HIPAA Authorization. 

What are the 3 important reasons you need a HIPAA Authorization?

The HIPAA  Authorization has these advantages:

  • Allows your family access to medical records.
  • Gives family members ability to receive updates about your condition.
  • Enable loved ones to access your medical bills to ensure they are paid.  

What is the difference between a HIPAA Authorization and a Living Will/Healthcare Directive?

A HIPAA authorization provides certain people with the right to give and receive medical information about you that would otherwise be protected as private.  For example, they can ask the doctor what medications you are taking or let the doctor know about side effects you may be experiencing.  They can receive information about test results, etc.  They can also talk to the provider about billing issues on your behalf.  The Advance Healthcare Directive goes further as it is more encompassing than the HIPAA Authorization.  The Advance Directive can give the person you select the right to talk with medical personnel but beyond just hearing about your condition, this document gives them the right to make medical decisions on your behalf if you are incapacitated.  For example, if you were in a coma, the Advance Directive would give that person the decision-making power to allow or give up on certain treatments. 

How do I create a HIPAA Authorization?

The easiest way to create HIPAA authorization is to contact an attorney who is experienced in estate planning and include it in a comprehensive estate plan.  A HIPAA Authorization will generally meet these requirements:

  • State that it is a HIPAA Privacy Authorization Form
  • Include your name
  • Define the scope of authorization – for example authorize all medial information or contain exceptions
  • Include the effective date it goes into effect as well as the date of expiration of the Authorization

What attorney can help me create a HIPAA Authorization and an estate plan?

The attorneys at the Law Office of David Knecht, have extensive experience in all aspects of estate planning and can help you create a HIPAA Authorization and all other documents necessary for a complete and customized estate plan.  Contact us at 707-451-4502 for more information.  

Filed Under: Estate Planning, Estates