Archives for October 2021

Can I Get More Money if My Spouse Cheated?

A commonly asked question in divorce is whether cheating can be used as leverage for the other spouse to get more money or custody in a divorce.  Cheating is typically defined as a physical relationship with a person who is not in the marriage.  This article will discuss the legal consequences of cheating and explain why it is almost always irrelevant to financial or custody issues in a divorce.  

  1. Cheating is not one of the grounds for divorce in California. 
  • There are two grounds for divorce in California:  irreconcilable differences and permanent legal incapacity.  You don’t need to prove cheating to get a California divorce because irreconcilable differences covers all problems or differences that make one person in the divorce want to leave the marriage.

 

  • Typically cheating will not result in greater alimony for the other spouse. 

 

California does not consider marital fault when determining alimony payments, so cheating typically does not factor into alimony.

 

  • What are the factors a judge would consider in awarding alimony?

 

California has a list of the factors that a judge should consider when making a spousal support/alimony determination.  This statute can be accessed in its entirety here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4320.&lawCode=FAM

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) All documented evidence of any history of domestic violence, 

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.

(n) Any other factors the court determines are just and equitable.

CONTACT AN EXPERIENCED DIVORCE ATTORNEY

An experienced attorney can help make the divorce process easier for you and help you make important decisions.  At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California.  Call us today!

 

Filed Under: Family Law, General, Vacaville Attorney, Vacaville Lawyer

3 of the Worst Things Your Kids Can Do with Their Inheritance

If you are considering estate planning, one of the important aspects of the future that is probably on your mind is how to make sure your children do not squander what you are leaving them.  At the Law Office of David Knecht, we have extensive experience in estate planning and can help you think through many of the important issues, and especially a plan to help your heirs utilize their inheritance effectively. 

Business Insider highlighted a few of the worst things that can be done with an inheritance, and this article will summarize a few of those topics to help you begin to strategize the best estate plan for your family. See https://www.businessinsider.com/personal-finance/worst-things-inheritance-financial-planner-2021-1.

Sitting on the money—often better to invest the money.  

There are a few risks of sitting on the money:  inflation, opportunity cost, and the temptation to spend.  A quote attributed to Warren Buffett is “The one thing I will tell you is the worst investment you can have is cash. Everybody is talking about cash being king and all that sort of thing. Cash is going to become worthless over time. But good businesses are going to become worth more over time.”  See Warren Buffet quotes at https://www.insightssuccess.com/a-compilation-of-warren-buffett-quotes-that-will-add-perspective-to-your-investorlife/?gclid=Cj0KCQjwqKuKBhCxARIsACf4XuH2NAAwThinvlMnBvwSJIYXWAcNoskp5xpFzFZjtQWMq7SrlSmTRfkaAnu5EALw_wcB

Cash is an excellent asset for heirs to receive in an inheritance because it is so flexible, so it is not a negative in an estate plan.  However, you may consider providing your children with instructions, education or just simply helpful advice on how to invest after you are gone so that they can make the most of what you are leaving them. 

 

  • Holding onto an inherited property that the heirs can’t afford – often better to sell or rent. 

 

If an heir inherits a property, they may not want to sell or rent it for sentimental reasons.  For some, the desire to keep it “as is” can prevent the best financial utilization of the property.  There can be maintenance costs, taxes, and other expenses that the heirs may not have the funds readily available to cover.  One strategy for estate planning is to anticipate in advance how the property will be used and maintained and to leave sufficient cash to cover the potential expenses the heirs may face in keeping the property.  This is just one plan, but there are many other choices here as well to make the transition smooth and effective.  

 

  • Putting all of your money in one place – often better to diversify. 

 

Your heirs may not be as experienced in money management as you are and one common mistake with inherited assets is to put the money all in one place.  Many financial planners recommend diversification rather than putting all your eggs in one basket, and this holds true for inherited assets as well as assets that are obtained other ways.  The idea behind diversification is that a variety of investments will yield a higher return and investors may face a lower risk by investing in different vehicles.  See https://www.investopedia.com/articles/03/072303.asp.

Consult with the Law Office of David Knecht

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in estate planning in California.  We can help you create a plan that is right for you and can help make the transition smooth for your heirs.  Contact us today!

 

Filed Under: Estate Planning, Estates

Bifurcating a Divorce in California

Bifurcation means that both parties can be legally declared as a single person while their other issues are being worked out.  For example, Kelly Clarkson recently filed a motion for bifurcation.  According to an article published in Vanity Fair, her filing stated:  “Irreconcilable differences have existed and continue to exist…I have been attempting to reach a global settlement on this matter…since I filed in divorce in June 2020…and I deserve the opportunity to build a new life.  Therefore, I am asking that my request to bifurcate and terminate marital status be granted.”   (See https://www.vanityfair.com/style/2021/07/kelly-clarkson-request-legally-single-brandon-blackstock-divorce-no-intention-settling)

This article will explain what bifurcation is, how it works, and why it might be something you want to discuss with your attorney:

  1. Can bifurcation shorten the California six month waiting period for divorce?

No, bifurcation is not a way to avoid the waiting period requirement.  However, a motion can be filed immediately after the waiting period has elapsed. 

 

  • How does bifurcation effect child custody, visitation, and financial issues?

 

Bifurcation does not affect things such as child custody, visitation, child support, alimony or other issues that may be difficult to resolve in the divorce.  The bifurcation will deal only with the issue of marital status and the other issues must be addressed later. 

 

  • Why does bifurcation make sense for some couples? 

 

A very common reason for bifurcation is that one person wants to marry again, so they need their legal status to be single.  There may be other reasons for bifurcation.  For some, there is an emotional release to changing the legal status.  For others, a bifurcation may facilitate advantages for tax purposes, so that the parties may file as single.

2. What issues might want to be considered relating to bifurcation?

Medical insurance is an issue that needs to be considered in bifurcation.  Will the spouse that maintains the insurance continue to cover the other spouse, and if not, then the spouse who requests the bifurcation may need to pay for insurance that is comparable or cover the medical bills.  Pension plans and death benefits need to be considered as well as tax consequences.

3. Where can I find an attorney who can help me decide whether bifurcation is right for me?

An experienced attorney can help make the divorce process easier for you and help you make important decisions on issues such as bifurcation. At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you decide whether bifurcation is the right decision for you. 

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer, Divorce Planning

Tips for Having a Healthy Divorce

Nobody plans on getting a divorce, and divorce can be traumatic for the couple involved, their children and even extended family and friends.  This article will summarize tips from an article published by the American Psychological Association for how to have a healthy divorce.  https://www.apa.org/topics/divorce-child-custody/healthy

Cooperation, Communication and Mediation (Often, but Not Always)

For many divorces, a good starting point is cooperation, communication and a hope of resolution through mediation.  This is not the pattern for all divorces, as each situation is unique.  For some divorces, a more aggressive and hostile approach may be the right strategy.  There is no “one size fits all” divorce, and it is important to coordinate with your attorney on the strategy that works for you.  However, often at least an initial effort toward finding solutions that are palatable for everyone involved can be the method for a divorce that is effective and affordable.  

 

  • Write Things Down. 

 

Emotions will often run very high during a divorce with various triggers that elicit anger, frustration, defeat, fear and a myriad of other negative emotions.  One strategy may be to put your thoughts and emotions onto paper.  For some people, making lists or writing down goals can help overcome the powerlessness that results from negative emotions by channeling the energy into productive planning and/or processing.  

 

  • Give Yourself Compassion.

 

Although it seems somewhat obvious to give yourself a break, the practice of self-compassion can actually reap amazing benefits during a divorce.  In a 2012 study, the participants going through a divorce were asked to rate their self-compassion, which included self-kindness, an awareness of one’s place in humanity and emotional equanimity.  Participants who exercised self-compassion reaped the benefit of less emotional turbulence during the divorce process and even nine months down the road from the divorce event.  The conclusion of the study was that self-compassion is a modifiable variable that can improve the lives of divorcing adults.  So, be kind to yourself, understand that you are an important part of the network of humanity and realize your potential for emotional calm.  https://neuro.unboundmedicine.com/medline/citation/22282874

Resolve to Make the Divorce Experience as Positive as Possible for Children

While some people still hold to the idea that divorce will have a lasting negative impact, more recent research indicates that “outcomes for children and adolescents following divorce were complexly determined, varied considerably, and could be best understood within a framework of familial and external factors increasing risk and fostering resilience. https://psycnet.apa.org/record/2012-00701-003

This research indicates that your children are not automatically going to be negatively impacted by your divorce and you may be able to minimize or eliminate long-term challenges resulting from the divorce.  Some methods that are associated with positive outcomes include good communication with the children, avoiding pitting the children against one parent, avoiding sudden changes to allow children to process and deal with change, and providing counseling and other mental health support to children during the difficult times. 

Find the Right Attorney

An experienced attorney can help make the divorce process easier for you and help you make important decisions. At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California.  Call us today. 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Planning

Basic Information About Divorce in California

If you are considering divorce, you may be wondering about residency requirements, grounds for divorce, and what the main steps are in the divorce process.  This article will provide an overview of the basics divorce process to help you think about how you are going to handle your divorce case.  There are three main ways to end a marriage or registered domestic partnership in California: divorce, legal separation, and annulment. After you decide how you want to end your marriage or domestic partnership, you need to plan your case ahead of time. Planning before you start and talking to a lawyer can save you time and money as you go through the court process.  At the Law Office of David Knecht, at 707-451-4502, we can help you plan your divorce from the beginning, or we can assist in a divorce that has already been initiated.  We are experienced divorce lawyers here to help you succeed.  

  1.  What are the residency requirements for divorce in California? 
  • You or your spouse must have been a resident in the state of California for at least six months and a resident in the county where the divorce is going to be filed for at least three months prior to filing for divorce, unless the case involves same-sex marriages.
  • With same-sex marriage, a judgment for divorce, nullity, or legal separation is possible even if neither person is a resident of California at the time the proceedings if 1)  the marriage was entered in California and 2) neither spouse lives in a state that will dissolve the marriage (in a state that doesn’t recognize the marriage).  
  • See California Family Code 2320 at this link:

 

  •  What are the grounds for divorce or legal separation in California?

 

  • Most common:  Irreconcilable differences
    • It is not necessary for both spouses or domestic partners to agree to end the marriage. Either spouse or partner can decide to end the marriage.  The other person can’t stop a divorce.  California is a “no fault” divorce state, which means that the person who wants the divorce does not have to prove that the other person did anything wrong.  They just have to state that there were “irreconcilable differences,” which means that they do not get along. 
  • Also grounds for divorce:  Permanent legal incapacity to make decisions. 
  • See California Family Code 2310 at this link.

 

  •  What are the basic steps in a California divorce?
  • You meet the residency requirements.
  • You state the grounds for divorce.  
  • Divorce paperwork needs to be filed and served to your spouse. 
  • Your spouse will have an opportunity to tell their side of the story, if they contest the information in your paperwork.  This can happen through written paperwork and proceedings either live proceedings or virtual. 
  • If your spouse does not respond within a certain time frame, the divorce can proceed as uncontested. 
  • Issues involving property, children and financial support will be resolved either through settlement or court hearings. 

Consult with the Law Office of David Knecht

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California.  We can explain the divorce process to you and advocate for the property division, financial support and custody arrangements that would work best for you.  

 

 

 

Filed Under: Divorce Advice, Divorce Attorney, Divorce Lawyer, Divorce Planning