Visitation Rights of Grandparents in California

Are you a grandparent who adores your grandchildren and is concerned about visitation in the event of divorce?  This article will help you understand your rights as a grandparent.

  1. Can a grandparent ask the court for visitation?

Yes, a grandparent can ask the court for reasonable visitation.  In order to grant that request, a court has to evaluate two factors:  1) there has to be a bond already in existence between grandparent and grandchild, such that the visitation is in the best interest of the child, and 2) the court has to balance the best interest of the child in having visitation with the parents’ right to make decisions about their child.

  1. Can the grandparents take action to get visitation if the parents are still married?

Generally, no, the court will not order visitation for a grandparent if the parents are still married.  The exceptions to this general rule include:

  • Grandchild has been adopted by a stepparent
  • Child does not live with either parent
  • One of the parents joins the grandparents in their petition for visitation
  • A parent’s whereabouts are unknown
  • The parents are living separately
  1. Where can I find more information about grandparent custody rights? 

California Family Code section 3100-3105 can provide more information about grandparent custody rights.  You could also consult an experienced family law firm, such as David Knecht Law.

  1. How does a grandparent ask for visitation in court? What is the process?

A grandparent can file a petition in court to ask the court to order visitation with a grandchild. In general, the first step would be to find out if there is an existing case already open or whether the grandparent needs to start the case themselves. The next step would be to file the appropriate paperwork and serve those on the parents. Subsequently, a hearing or mediation may be scheduled. When the judge makes a decision, he or she will sign a court order.

A grandparent can add security, love, and wisdom to a grandchild’s life.  If you are a grandparent who is concerned about securing the legal right to visit your loved one, contact a firm that is experienced in family law, David Knecht Law.

 

DUI: What to Expect When You’re Caught Under the Influence

California has two relevant laws regarding drunk driving. The first law makes it illegal to drive under the influence of alcohol. The second makes it illegal to drive with a blood alcohol concentration at or above 0.08%. Notice the important distinction here?

Driving under the influence of alcohol, as defined in the first law, has nothing to do with any measurement of blood alcohol, but only with an objective assessment of your sobriety. Imagine, for instance, someone particularly susceptible to the effects of alcohol drinks just one drink then proceeds to drive. If they were stopped by the police and the breathalyzer returned a blood alcohol reading of only 0.03%, they could still be charged under this law if something about the person’s driving gave the police probable cause to pull them over to begin with.

Conversely, under the second law, the impairment or otherwise of the person’s actual driving ability by the effects of alcohol are irrelevant to the reading itself. Another person might have been driving perfectly well, but was submitted to a breathalyzer test in a sobriety checkpoint, which returned a reading of 0.12%. This person, too, would be charged.

In practice, these two laws function as one. A person can be convicted of both offenses—sections a) and b) of Vehicle Code section 23152—but can only be punished for one, and the punishments are the same.

At the time of the incident, however, when a person has been detained under suspicion of drunk driving, there will be certain procedures that you can expect the police to follow.

Your encounter with the police will most likely begin with some questions. You should remember that you are not obliged to answer any questions that may incriminate you. This is your Fifth Amendment right. And while you will be (or should be) advised of this in the Miranda warning, it still applies at all times.

The same applies to field sobriety tests where the officer will instruct you to attempt physical tasks, such as walking in a straight line and so forth. Your participation in these tests is voluntary. The detaining officer should, but frequently will not, advise you of that fact.

At this point you should be given your choice of submitting either a breath test or a blood test. You can refuse this, too, but by carrying a drivers’ license, you gave your implied consent to giving a chemical test when required—meaning you can be tested by force.

The most important thing is to be aware of your rights at all times. When you are placed under arrest, do not say anything until you have your lawyer present. Visit our website at http://www.davidknechtlaw.com/ to find out why your first call should be to David Knecht.

Changing the Terms of Your California Divorce Decree

Circumstances change over time, and sometimes that means that the divorce decree, or Final Judgment of the Dissolution of Marriage, needs to be modified. There are two ways a divorce judgement can be changed.

  1. Appealing the judgment to the California District Court of Appeals.

Appealing the judgment is a method that is not used as often because appeals are usually only granted If the trial court did not apply the law correctly or if the judgment was the result of one of the party’s bad faith, such as intentionally hiding assets.

  1. Motion to Modify the Terms.

A motion to modify the terms is the more commonly used approach to change the divorce decree.  Modifications are usually more likely to be successful, less expensive, and faster.

  • Can modifications be temporary?

Yes, modifications can be either temporary or permanent.  For example, if a party has lost his or her job, the divorce judgment may be modified to change child support or alimony temporarily.

  • Can modifications be permanent?

Yes, modifications can not only be permanent, but they can change some or even all of the divorce decree.   Examples of a permanent modification might be where one party permanently changes careers or acquires a disability or injury which permanently changes that party’s ability to pay child support or alimony.  Other changes could be to child custody, where the changes accommodate the growing and changing needs of children.

Some people feel locked into the divorce decree, perhaps because they don’t realize that changes are possible or perhaps because they fear the pandora’s box that may be opened if they readdress the current terms.  An experienced divorce attorney, such as David Knecht, can provide advice about how to modify your divorce decree to make it right for you.

California Divorce:  What Happens if You Want to Move Out of State With Your Children?

Your rights with respect to your children will be governed by your own specific custody situation, but this article will discuss some of the general topics relating to relocation that you can discuss with your attorney.

  1. Can one parent relocate out of state and take the children?

In general, a parent who has sole custody of the children can move out of state, unless the other parent can show that the children will be harmed.  If the parents have joint physical custody and one parent opposed the other one leaving, the parent who wants to relocate will have to show the court that the move is in the best interest of the children.

  1. Can a parent take a vacation or trip out of the state or country with the children?

If the other parent is going to miss their visitation, you will typically need that parent’s permission to travel out of state with your children.  You can also look at your order and see whether it contains restriction on travel.  If so, you will need a special order to modify those terms.

  1. Can custody decisions be made in the states of each parent, if they are not in the same state?

 

No, custody decisions are only made in one state.  Here is some general information in what courts look at for determining the right state for the decision:  if the state is the child’s home state (living in the state for the last 6 months), or if the child has significant connections to people in the state, so that it can be proven that the child’s care, personal relationships, etc. are based there, or if the child is at risk of being abused or neglected if sent back to a different state.  (See the Uniform Child Custody Jurisdiction and Enforcement Act for complete information on this topic.)

Taking your child out of state in violation of the order can be serious business, so consult an attorney experienced in family law to get answers on whether you can take a trip or relocate with your family.  David Knecht is an experienced family attorney who can find the answers for you.

 

Prenuptial Agreements in California Part 2:  Waivers of Spousal Support

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article is Part 2 and focuses on the rules relating to alimony, also known as spousal support.

Do we need to involve attorneys?

Yes, if you want it to be enforceable later.  The rule is that the person against whom enforcement of the spousal support provision is sought must have been represented by independent counsel at the time the agreement containing the provision was signed.

Can we put in any terms we want as long as we agree, and attorneys are involved?

No, when it comes to spousal support, the court will not enforce a provision that is unconscionable even if the person who agreed to that unconscionable provision was represented by independent counsel.   

Is there a waiting period?

Yes, the party waiving spousal support needs to have seven days between the prenup is presented and signed and be advised to seek independent counsel.

How does a court decide what is unconscionable?

The court will look at the assets and earning power of each spouse and may determine that a waiver of spousal support is unconscionable if one spouse has significantly less than the other. Also, if the court determines that it would be unfair to enforce the waiver based on what the person would have received in spousal support if the prenup hadn’t been signed.

What other factors will be considered to invalidate the prenup?

The prenup cannot have been executed under duress, fraud or undue influence.

What are some other things to watch out for?

It is important for the spouse waiving the support to have actual or constructive knowledge of the assets and obligations of the other party or to voluntarily waive such knowledge.  Because of this, if the parties want an enforceable prenup, both need to be full and accurate in their disclosure of assets and debts and should not attempt to lie or trick the other person

If you are looking for a local, Dixon attorney to assist with a divorce or family case, please give us a call.

 

Prenuptial Agreements in California Part 1:  Cans/Cant’s

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article will examine what can be accomplished and what is unenforceable in a premarital agreement.

 

Can I punish my spouse financially if he/she cheats?

 

Some couples may want to include a financial punishment for the other spouse who cheats, and this is commonly referred to as an infidelity clause.  California is a no-fault divorce state, so “fault” such as infidelity will not be a relevant consideration to a California court. As such, California courts will not enforce a financial punishment against a spouse for cheating.  

 

Can we negotiate child support or child custody in the prenup?

 

No, a court is going to look at the best interest of the child standard for child support and custody, and visitation rights so a premarital agreement will not be binding with respect to those issues.  

 

What are some topics where a prenup can be helpful?

 

  • Each spouse’s rights to property.  
  • The right to manage or control property, such as buying, selling, using, etc.
  • What is going to happen to property in the event of death, divorce, etc.
  • Spousal support in the event of divorce (special rules apply)

 

Is there an alternative to a prenup?

An irrevocable trust is an estate planning mechanism that can be used to protect property.  A revocable trust permits the grantor to place the assets under the control of a trustee, then who administers the assets for the benefit of beneficiaries named by the grantor.

Unfortunately, an irrevocable trust has a number of disadvantages, so it may not be the right mechanism for you.  The grantor loses ownership of the trust property, so you generally won’t be allowed to change your mind and take the property back.  Additionally, there are taxation issues involved with an irrevocable trust that may not be advantageous. Consult with a Vallejo attorney to see whether an irrevocable trust is right for you.

 

How is a prenup changed?

After marriage, a premarital agreement can be changed only by a written agreement signed by both the parties, so consider carefully the terms you are including.

 

 

Alimony: Federal Tax Code Changes

There’s a change to the tax code that could impact you.  If your divorce is final after December 31, 2018, then alimony will no longer be deductible in your federal taxes if you are the person paying the alimony.  It will no longer be included in your gross income if you are the person receiving alimony.

Where does the new rule come from?

The Tax Cuts and Jobs Act (TCJA), signed into law in 2017 will end the alimony-payer deduction and the payee’s income inclusion for agreements executed in after 2018.

Is there a “grandfather clause”?

Yes, alimony agreements executed on or before December 31, 2018, are grandfathered in.  Also, if you later modify an agreement that was executed prior to December 31, 2018, then you can choose to stay grandfathered in or adopt the new rule.

How is the new rule different than the old rule?

The old rule was that the alimony was tax deductible and the money paid to the spouse was included in income.  The new rule is that the party paying alimony no longer gets the deduction and the person receiving it now doesn’t have to report those amounts as income.

Does this change California State tax?

No, the new rule relates to federal taxation but not state taxes.  Your California state tax rules will remain the same.

What’s the practical effect of this change?

The general impact is that overall more taxes will likely be paid because previously the payor spouse received a tax break through a reduction of their gross income, and the receiving spouse was at a lower income. For each couple, though, the practical impact of this may vary.  There may be other strategies that can be employed that have tax advantages to both parties, so consult with a Fairfield lawyer to find out the best options for your particular circumstances.

 

Dating and Divorce:  Can Dating Impact Your Divorce in California?

If you are in limbo during the sixth month waiting period for a California divorce, you may be wondering if you can start dating again.  This article will discuss the ramifications dating may or may not have on your California divorce.

California is a no fault state, so dating will not impact your ability to get a divorce.

In California, you do not need to prove that one party did something “wrong” in order to file for divorce. Divorces are generally filed for “irreconcilable differences,” so if whether you are dating or not dating during the marriage or separation period is irrelevant to your divorce.

Dating could impact spousal support if you are living with the new boyfriend/girlfriend.

Section 4323 of the Family Code states: Except as otherwise agreed by the parties in writing, there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabitating with a nonmarital partner.

This does not mean that living with your new boyfriend/girlfriend will for sure impact the spousal support.  With a rebuttable presumption, you can present evidence to show that your need for spousal support is not reduced by the cohabitation. For example, if you showed that the new partner did not provide any of the money used for the cohabitation, then that may be sufficient to overcome the presumption.  The facts will vary depending on your circumstances, so consult with an attorney about your case, but the point of this section is to make you aware that living with someone new could impact your spousal support so that you can research the issue further.

Dating could impact custody.

The court will be looking at the best interest of the child to determine custody, so the person that you are dating could potentially impact that analysis in many ways:

  • Will the person you are dating be involved in child care?
  • Does the person you are dating have any criminal history?
  • Does the person that you are dating have history with your ex such that your ex may be able to argue that the person is a bad influence on the child?

The choice of whether to begin making friends or romantic connections before your divorce is final is one that faces many couples going through a divorce.  Although dating may not impact your case itself directly, you should certainly consider all the collateral ways in which a new relationship may affect you and make an informed decision about how to incorporate someone new into your life.

 

 

 

5 Steps For Successfully Handling First DUI in California

Did you just get a DUI in California, and you don’t know what to do?  This article will walk you through important information you need to know to navigate the system successfully.

Don’t forget about the Driver’s License Suspension or Revocation

  • After you are arrested for DUI, the officer will forward a copy of the form and your confiscated driver’s license to the DMV. You have just 10 days from your receipt of a suspension or revocation order to request a hearing with the DMV, otherwise your license will be automatically suspended or revoked. It is wise to retain an attorney immediately after a DUI arrest to assist you with fighting your driver’s license suspension or revocation.

Evaluate your finances.

  • Take time to evaluate your finances immediately. You may qualify for a public defender.  If not, you may want to retain private counsel.  Understanding your financial position and seeking help from family or friends if necessary can be advantageous to you in preparing a strong defense.  Additionally, if you decide to accept a plea or are found guilty, you can anticipate paying fines, costs of counseling, future costs of an interlock device and SR-22 insurance when you get your license back.

Look for holes in the case against you.

  • This is extremely broad but of the utmost importance. An attorney can look at each aspect of your situation and see possible defenses. Don’t just assume that your case is lost before really analyzing every piece of what happened.
    • Driving – Is there a question of whether you were the driver? What is the evidence of driving?
    • Stop – What was the basis for the stop?
    • Tests – Were the tests administered properly? Were there environmental, health or other factors at play that could have impacted the results?
    • Time – Is the evidence linked in time to the driving, or were the tests performed significantly after the driving occurred?

Get an idea of whether you want to fight or enter a plea.

  • After you have consulted with an attorney about the viability of your defense, a good idea is to consider what you think your best course of action would be. Consider your employment situation. Look at a calendar. Make a thoughtful analysis to decide how you want to proceed. Some defendants turn over all the decision making power to their attorney, but it is important for you to realize that you are the client and the person in charge.

Never give up and do not look back.

  • Many defendants focus on what they could have done or should have done better in the past to prevent a criminal charge. This is good for helping you avoid criminal charges in the future, but otherwise focusing on the past is not productive. Look to the future. Talk to your attorney about the long term plans and expungement in the future. Plan to comply successfully with all the terms of your probation. Prepare to put the DUI behind you and know that you can have a bright future.

 

 

Why the Separation Date is Important for California Divorce

If you are considering a divorce in California, your separation date is a very important issue.  This article will discuss why that date is significant.

The separation date defines the line between community property and separate property.

  • Community property in general is assets, income, or debts earned or acquired during the marriage.
  • Separate property in general is property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.

Community property is shared by the spouses, separate property belongs to the individual.

  • The separation date is important because the determination of the type of property determines how it is split. Community property is shared by the spouses.  Separate property is for the individual.

How is the date of separation determined by a court?

If the date of separation is unclear or the parties disagree, the court will look at two methods for determining the effective date:

  • Objective test: Here the court will determine when you started living apart from each other. However, in some instances the spouses may be living in the same home but be physically separated within the home if the evidence suggests that the spouses unambiguous conduct indicates an intent to be separated.
  • Subjective test. Here the court will look at your conduct toward each other. At what point did one or both of you think you were done? When did you decide you no longer wanted to be married?

What should you watch out for?

  • The higher earner is typically incentivized to have a date of separation sooner rather than later. It is often in that person’s interest to have an earlier date so that more of the income or assets will be earned after the separation date.

In some cases, the date of separation is agreed upon by the parties, but this article should alert you to concerns and questions that may arise if the date of separation is contested.  Consult with an attorney early in the process of considering a divorce to find out how to navigate the date of separation mostly advantageously to your case.