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!

 

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!

 

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. 

 

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. 

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.  

 

 

 

5 Secrets for Coping with Divorce Stress and Depression

If you are struggling coping with divorce stress or depression, you are not alone.  In fact, a study cited in the Journal of Family Therapy reports that despite the increased frequency of divorce in our society, a divorce event can result in emotional and economic hardship for many and a greatly increased depressive effect.  https://www.jstor.org/stable/352399

This article will suggest a few strategies to help you be successful in managing the changing life circumstances associated with divorce and help you maintain a positive mental and emotional outlook:

  • Take each day at a time.  

During the divorce process, you can experience a sense of uncertainty or fear about the unknown.  You may no be sure what things or going to change or whether you will like your “new normal.”  One strategy for managing these concerns is to focus on the short-term rather than the long term:  making lists, setting daily goals, and keeping your focus on being successful each day will help you stay positive during this transition. 

 

  • Confide in a friend.

 

An interesting 2012 study found that friendships with individuals and couples tend to shift during divorce.  See https://www.tandfonline.com/doi/abs/10.1080/10502556.2012.682894

This study found that friendships with couples tended to distance during divorce and friendships with individuals often strengthened.  The implications of this for you may be that you could benefit from strengthening bonds with friends who will be sympathetic and loyal to you.  You will need someone you trust to vent to and confide in, and a friend who can provide supportive and positive feedback will help keep you mentally strong. 

 

  • Let go of the past, release yourself from guilt. 

 

At the end of a relationship, many are drawn in to examining the beginning of the marriage, considering what “red flags” they may have ignored or what went wrong in the process that led up to the marriage.  While self-reflection can be healing at the right time and the right circumstances, some may caught in a downward spiral of “would have’s” and “should have’s” about a past that cannot be changed.  A helpful technique can be to let go of the past, release yourself from the guilt, and focus on the future rather than dwell on mistakes of the past. 

  •  Take time for self-care

For some, self-care is keeping the routine at the gym, for others it’s the solace of comfort food and a good movie.  Regardless of where or how you find solace, it’s important to make time to focus on yourself.  Some people become so concerned about their children or others who might be impacted by the divorce that they neglect to put time and effort into making themselves happy.  

  • Find the right lawyer for you. 

An experienced and compassionate attorney will help make the divorce process easier for you.  Find an attorney who fits your needs.  As a client, you are in the driver’s seat on who to hire and how to guide them to effectively communicate and work for you, so do not be afraid to find a person who fits your needs and to help them know the best way to work for your good. 

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 help ease the burden of stress or depression from you by guiding you through the legal process and supporting your goals. 

 

Why Is Estate Planning Important for Unmarried Couples in California

Estate planning is especially important for couples that are not married in the state of California because unless an unmarried couple has certain documents in place, the surviving spouse typically will have no inheritance rights upon the other spouse’s death.  If one spouse becomes incapacitated, the results can also be complicated.  However, with a comprehensive estate plan, an unmarried couple can have everything in place for the future, which will give you security and peace of mind. 

 

  • What is the purpose of a Durable Power of Attorney?

 

  • A durable power of attorney gives your partner authority to handle important aspects of your life if you are unable to do so.  It’s a tool used to delegate financial affairs to a loved one or to appoint their partner as a healthcare proxy to make important life-or-death medical decisions. 

 

  • What are some of the ways a Durable Power of Attorney can be used?

 

  • A Power of Attorney lets you authorize someone to handle a specific task such as making bank deposits, trading stocks, paying your bills, buying or selling property, hiring people to take care of you, filing your tax returns, arranging the distribution of retirement benefits, or signing contract.  Your agent can do almost anything the Power of Attorney permits.  

 

  • What is a letter of instruction?
  • A letter of instruction is not legally required, but it can be a useful tool to assist your significant other in obtaining and distributing your assets upon your passing. 

 

  •  How can a letter of instruction be helpful? 
  • A letter of instruction can be helpful to communicate important information such as: accounts, passwords, location of important documents or keys, contact information of beneficiaries, specific funeral arrangements, etc.  

 

  •  What should unmarried couples consider in estate planning? 
  • Unmarried couples can set up an estate plan to protect each other from the unintended consequences of incapacity or death.  
  • At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in estate planning in California.  We can customize a plan for you and your loved ones.

 

 

Can I get Spousal Support (Alimony) in California?

One of the top concerns many have when contemplating a divorce is assets and money,  so spousal support is often a very important issue in many California divorces.  This article will explain some of the basic principles relating to spousal support with information taken, in part, from https://www.courts.ca.gov/1038.htm?rdeLocaleAttr=en and https://codes.findlaw.com/ca/family-code/fam-sect-4320.html

  For questions about your specific situation, contact the Law Office of David Knecht,  (707) 451-4502.  

 

  • What is spousal support?

 

  • Spousal support, which is also known as alimony, is the payment from one spouse to the other.  It can be temporary or permanent.  These terms refer to when the support is ordered, not how long it lasts.  Temporary support is ordered while the divorce is pending.  Permanent spousal support is after the divorce judgment.  In California, either spouse may request spousal support. 

 

  • What is the purpose of spousal support?
  • Some people mistakenly believe that the purpose of spousal support is to punish the person who has to pay, but such is not the case in the no-fault state of California.  
  • The purpose of temporary support is to maintain the living standards of both parties until the divorce is final the assets and debts have been determined. 
  • Permanent support is not intended to be forever.  In California, the policy is that both parties become self-supporting within a reasonable amount of time and spousal support bridges the gap until the supported spouse can get the employment or resources to meet their needs. 
  •  What is the presumption for marriages that lasted less than 10 years?
  • For marriages that lasted less than ten years, the duration of support will generally have a time limit.  The presumption is that spousal support/alimony will last for half the length of the marriage. For example, if the marriage was ten years, the spousal support would generally end by five years. 

 

  •  What about long-term marriages? 
  • For long-term marriages, those of more than ten-year duration, the presumption is that the court maintains jurisdiction over spousal support indefinitely.  

 

  •  What factors can be considered by the judge for spousal support? 
  • The judge can consider the totality of the circumstances which may include, but are not limited to the standard of living you had when married, marketable skills, the market for those skills, how much your earning capacity was limited during the marriage, the length of the marriage, childcare, age, health, hardships, etc.  This list could include anything that a judge determines is fair and just.  

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.  

 

The Secure Act and Estate Planning in California

The SECURE ACT (Setting Every Community Up for Retirement Enhancement ACT) is legislation designed to adapt to the changing needs of the US retirement system.  People are generally living longer, more people are working contract or freelance jobs, and the nature of work is changing.  This article will highlight some of the key points of this ACT, some of which may impact your California estate planning objectives.  For information from a financial planning point of view, see this article from Forbes:  https://www.forbes.com/sites/davidkudla/2020/01/10/four-major-highlights-of-the-secure-act/?sh=32dd845476b1

  1. Inherited Retirement Account.  

Previously, the rules allowed a nonspouse-IRA beneficiary to “stretch” required minimum distributions from an inherited account over their own lifetime.  The advantage of this old rule was that the funds could  grow for years tax-free.  The SECURE Act changes this old rule and now upon the death of the account owner, distributions to non-spouse individual beneficiaries must be made within 10 years.  

  1. No Age Restriction for Contributions to Traditional IRA’s.  

Previously, individuals had to be under the age of 70 ½ to contribute to a traditional IRA.  Now, there are no age restrictions.  This greatly expands the number of people who may be eligible to contribute.  However, on caveat is that the individual still has to have eligible compensation which includes wages, salaries, tips, professional fees, bonuses and other income generating streams received from working.  Commission, self-employment income, nontaxable combat pay, and military differential pay are also eligible compensation.  Certain stipend, fellowship and similar payments to graduate students and difficulty-of-care payments to caregivers can also be considered income for the IRA contribution purposes.   

 

  • Required Minimum Distributions Start at Age 72, not 70 ½.  

 

Prior to the SECURE Act, an individual was required to withdraw money from traditional IRA’s and employer tax deferred accounts such as 401 (k)’s at age 70 ½.  The new rule allows individuals to wait until age 72 to withdraw money, thus allowing the funds a little longer to grow.

Consult with the Law Office of David Knecht

If you are interested in learning more about how the SECURE Act changes can impact your estate plan, contact the Law Office of David Knecht, at 707-451-4502. We are an

Equal or Equitable:  Should Each Child Get the Same in a California Estate Plan?

Dividing assets among your children is not always an easy question.  Should each get an equal share or should you look at the totality of the circumstances to create something not equal, but in fact fair and equitable?  This article references an Investopedia analysis of this topic and highlights questions to consider:  https://www.investopedia.com/articles/personal-finance/102215/advice-wills-should-each-child-get-same.asp

  1. Equal Division.  

In many cases, and equal division of assets is conventional and seems to be the most logical choice.  Such is the case when each child has similar needs.  This often happens if they are similar in age, in earning capacity, in responsibility, in mental and emotional maturity, etc.  One advantage of an equal division is that it typically appears fair on it’s face to outside observers and perhaps the heirs themselves. If you want to leave children different assets, but to give them equal value, then it makes sense to assign values to each of the assets and to ensure equality in the overall monetary division.  

 

  • Equitable but not Equal Division. 

 

There are many situations in which you feel more comfortable or fair by giving children unequal but equitable divisions.  For example, if one child has been a caregiver, then perhaps you want to reward that child for his or her sacrifice during your lifetime with additional assets in the inheritance.  Or perhaps you have given certain children more financial assistance during your lifetime and want to even out the distributions after your death. If you have a family member who cannot care for themselves, then you may want to leave the bulk of your estate for the care of that heir. You may have a blended family and want disparate amounts to go to children depending on which children have a biological connection to you.

Consult with the Law Office of David Knecht

Whether you are leaning to an equal distribution or an equitable plan, the Law Office of David Knecht, at 707-451-4502, can help. We have extensive experience in estate planning and can help you create a plan that addresses the needs of you and your family and accomplishes your goals.