California Infant Custody Laws

Are you considering a divorce,  but you are worried about what will happen to your infant?  Although divorce is never easy, you can at least take comfort in the fact that the state’s laws are based on a standard that puts the child first:  the best interest of the child.

What is the best interest of the child?

There are many factors a judge could consider to determine what is in the best interest of the child.  These include the child’s age and health, the emotional ties to each parent and other caretakers, and each parent’s physical and emotional ability to care for the child.  These are just a few of the many factors that can roll up into the best interest of the child analysis.  

What are some factors specific to babies that a court may consider?

If a child’s health, safety and welfare are the most important priorities, then some issues specific to babies will likely be extremely important.  For example, important considerations might be whether your child is breastfed or bottlefed, the safety of the baby’s living environment, and whether both parents are capable of providing for an infant’s needs.  Infants  need much more hands-on care and careful supervision than older children, so those infant-specific needs will be part of the court’s analysis.   Unfortunately, there are no hard and fast rules to allow a prediction of exactly how a judge would rule in a case, but we can predict many of the factors that will likely be considered.

What is the difference between legal infant custody and physical infant custody?

Most people have heard about custody, but there are actually two types of custody:  legal custody and physical custody.  Legal custody is a parent’s authority to participate in decisions about a child’s health, welfare and education.  Physical custody is the child’s physical presence with the parent. 

Is the decision about my child’s custody always in the hands of the judge?

Many parents come to an agreement between themselves about child custody.  Sometimes a mediator is used to facilitate the negotiations.  If the parents can reach an agreement, then the next step is to take that agreement to the judge who will approve it if it is in the best interest of the child.  

Do you need to talk to a lawyer about the custody of your infant?

If you have questions or concerns about the custody of your infant or would like a consultation on any divorce related legal issue, contact 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.  

What is a Digital Estate Plan and Do I Need One?

With social media being part of the everyday life for many, the question presents itself as to how you want your social media to be handled when you die.  Do you want your loved ones to announce your passing on social media?  Would you prefer the privacy of having the account shut down? These are examples of how a Digital Estate Plan would help your family and friends honor your wishes in social media and other ways when you pass.  This article will discuss a Digital Estate Plan to help you understand what it is and decide if it is something you need. 

What is a Digital Estate Plan?

Digital estate planning is the process of organizing your digital property and digital assets, and making arrangements for what should happen to that digital landscape after your death. 

Step 1:  Make a List of Digital Assets. 

The first step of making your Digital Estate Plan is to take inventory of all your assets, which could include the following:

  • Email
  • Social media accounts
  • Online log in information for banks, stock trading accounts, retirement accounts
  • Photo and video sharing accounts
  • Domain names/blogs/ websites you own
  • Reward accounts such as airline mileage accounts
  • Intellectual property, including copyrighted materials and trademarks
  • Online diaries/calendars/notes

Step 2:  Decide What You Want Done with Assets. 

The next step is to think through your ideal scenario for what you want to happen with your assets:

  • Do you want social media accounts deleted, or to continue running under someone’s direction?
  • How will your email accounts be handled?  (For helpful information on the policies of email providers, here is a resource:  https://www.everplans.com/articles/what-happens-to-my-email-accounts-when-i-die
  • Which assets have monetary value?

Step 3:  Store the Information in an Easily Accessible Place

To be useful, the Digital Estate Plan needs to be stores somewhere that it can be located easily after your passing.  There are many ways you can store your Digital Estate Plan.  You can contact an attorney, you can store the information online, or you can store the information in a physical location, like a bank. 

Step 4:  Incorporate the Digital Estate Plan into Your Overall Estate Plan

A complete California Estate Plan 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 various assets, and Guardian Nominations for minor children.  You can include the Digital Estate Plan that you have organized into you overall California Estate Plan.  The attorneys at the Law Office of David Knecht have extensive experience in estate planning and can advise you on how to create a plan that sets out your wishes for your loved ones in the event of your death.  Contact us at 707-451-4502 for more information.  

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.  

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.  

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.  

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.  

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. 

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.

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. 

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.