How to Help Your Children Cope with Legal Separation

                  Some say that each day of our lives we make deposits in the memory banks of our children, so this article will discuss steps you can follow every day to help your children cope with legal separation during a divorce.

  1. Understand the Parenting Plan and Follow It. A parenting plan is a custody and visitation agreement that sets out when the child will be together with the parent and how decisions for the children are made. It can be developed by parents independently, agreed to during mediation, established with the help of lawyers, or decided upon by a judge after a trial or hearing.  The first step in supporting your children is to know and follow the parenting plan.  Your adherence to this agreement will typically help the children plan and adjust because following the plan will establish consistency during this time of change.
  1. Prepare for Your Child’s Stages of Grief and Be Patient. Children will respond to the divorce with different emotions, so one plan doesn’t fit all.  However, it is common for children to follow the model of grief that includes denial, anger, bargaining, depression and finally acceptance. It can be a challenge for a parent who is experiencing his or her own stages of grief to be a support to children who may be acting out or withdrawing into seclusion, but  exercising patience and understanding with your children can help them adjust more quickly.
  1. Don’t Forget to Plan for Your Child’s Future When Negotiating the Financial Side. Parents often focus on custody and can forget the financial side of properly preparing their children for divorce. When looking at the assets, consider your child’s financial future.  Did you plan to pay for a vehicle for a teenage child? Were you going to help your children with educational expenses?  What types of financial circumstances are your children accustomed to – such as allowances, or money for certain lessons or hobbies or sports.  You will help your child cope with a divorce if you don’t forget to be an advocate for their financial needs.
  1. Discipline and Conflict Resolution. It’s never too early to plan ahead for arguments and discipline with your child. If the children are small, try to handle rules and habits in similar ways.  For small children, it can be helpful keep similar bedtimes and habits.  For older children, it may be beneficial to have matching curfews or household responsibilities. Even if you don’t feel it is in your child’s best interest to match the strategies for discipline and conflict resolution utilized by the other parent, it may be helpful for you to at least understand what the rules and expectations are at the other household.
  1. In many cases, the communication between the parents is the key to helping the child cope because the child does not benefit from being caught in the crossfire of parent power struggles or misunderstandings. Be clear about travel, special occasions, and requests for changes in schedule. Establish a businesslike method of communication that is not emotional or destructive. Good communication often leads to a peaceful and predictable environment that is beneficial for most children.

 

Top 10 Ways to Protect Yourself Financially in a Divorce

Regardless of whether your divorce process is adversarial or cordial, it is a wise move to protect your assets.  This article will highlight ten tips on how to protect yourself financially in a divorce.

  1. Evaluate Your Contributions.  Look at your contributions to health savings accounts, retirement, individual trading accounts, etc. Talk to your attorney to seek advice about whether to continue to contribute to these accounts.
  1. Consider Your Estate Planning. Is your ex the beneficiary to any assets?  Do they have the power to determine your health under a living will?  Do they have power of attorney?  These are important issues that can be inadvertently put on the backburner.
  1. Separate Assets. Do you have separate assets? For example, is there a bank account or property that you acquired before the marriage?  If so, keep separate assets separate.  Don’t comingle them during the divorce process as it might muddy the water.
  1. Get information about the tax consequences of alimony, capital gains on the sale of a home, etc.
  1. Change Your Passwords, Protect Your Privacy. If your ex has the passwords to any separate bank accounts, credit card, telephone accounts, etc., change the passwords immediately to protect your privacy. Also look to social media such as Twitter, Facebook, etc.
  1. Build Your Credit. Consult with your attorney about the advantages of taking out a credit card in your name only and starting a separate bank account. 
  1. Consider Moving Out. The decision of whether to stay or go involves many factors including your time with children, finances, etc., so there is no one right answer on this one, but seek advice as to whether moving out is a good idea.
  1. Live frugally. Divorce can cause a financial strain on both parties, so attempting to live a little smaller than usual may help you in the long run.  Try to cut spending where you can.
  1. Get organized. One of the best ways to protect yourself financially is to educate yourself on what you have and document it. Look in all checking, investment, and savings accounts to see what is there now and take screen shots to document. Get information and documentation on each party’s salary and other income. Find out how much debt you owe.  The more you know about your money, the better off you will be in fighting for it. 
  1. Keep records. If you aren’t one to keep financial records and receipts, now is the time to start this habit. Having records will help you verify facts and figures and will help protect your financial future.

5 Strategies for a Successful Financial Divorce Settlement

You are probably new to the divorce process, so you may be at a loss on how to successfully negotiate the financial side of your divorce settlement.  This article will highlight five of the most important strategies for success in sorting out the money side.

  1. Be prepared to change your mind and don’t draw lines in the sand with the other party until you know what’s for certain the best course of action for you. Over the course of a separation and divorce process, one or both parties often have a change of perspective on what’s the best course of action.  For example, initially a party may want to keep the home or sell the home. Often expectations of custody arrangement play into this, where on parent may want to keep the home to keep the stability for the children in terms of schools, neighbors, activity programs, etc.  As the terms of child custody become clearer, you may find it more advantageous to sell the home or rent it, or your original plan may end up being the best.  Your goal is to look after the best interest of yourself and your children, so it’s often best to avoid drawing lines or going to battle until you know for sure what you want. You don’t want to pen yourself into a decision that ends up being disadvantageous.
  1. Look into the tax consequences and financing realities of each decision course. Initially couples tend to gravitate to simple solutions:  sell the house, sell the business, have one spouse buy the other out, etc.  This may be the best for you, but it may not.  Talk to a professional about the tax implications of each course of action.  For example, if you have to liquidate tax deferred investments in order to finance a buy out, then it may not be in your best interest to do so.  If selling a business at this juncture will significantly impact its value, maybe that is not the right decision. Talk to the experts and open your mind to solutions that may initially be more complicated, but may pay big over the long haul.
  1. Be conservative and avoid making big decisions until your divorce is finalized. Negotiating the finances is emotional and stressful for all parties involved, and it is typically a very bad time to make huge changes in your life. Avoid changing or quitting a job during this time if possible. Keep the status quo as much as possible financially. Don’t do anything to destroy value in any of your assets or to hide income or assets from the other spouse. 
  1. Try to settle quickly and efficiently. Some cases cannot be settled and in those instances you should feel entitled to enforce your rights.  However, in many instances a negotiated settlement saves money for both parties.  To the extent you can, take your emotions out of the picture and look at the numbers.  Educate yourself as soon as possible on the options and the ramifications of each option. The more you can take the lead in finding meeting ground that is favorable to you and acceptable to the other party, the faster your finances will be settled and you can move forward.  Typically neither party will benefit from dragging the process out. 
  1. Consult the right people. You will get a lot of advice from family, friends and coworkers. Listen to that advice and take it for what it is worth. However, take the time to consult people with experience and knowledge. The final decision is always in your hands, but the right professionals can give you the information necessary to make good decisions.

3 Basic Facts You Need to Know about Custody in California

That you love your kids is a given, so if you are considering a divorce, you are probably wondering what will happen to your children and how will the divorce impact your parenting.  This article will discuss three basic facts about custody, which will help you plan for the future.

What is legal custody and what is physical custody?

  • Custody is the legal rights and responsibilities of the parents or caretakers. Visitation is how and when each parent spends time with each child. Either parent can have sole custody of the child, or the parents can share the custody.
  • Legal custody involves the right to make decisions on behalf of your children relating to school, health care, etc.  Physical custody refers to where the kids actually live.
  • It is common for sole physical custody to be granted to one parent and then visitation to the other. For legal custody, the preference if for the parents to share legal custody.  Joint legal custody can be tricky because it means that the parents must share in the making the important decisions for their children.

What are some common schedules?

  • Schedules can vary as per the best interest of the child, but some that are commonly used are as follows:
    • For joint physical custody, common schedules include one week per each parent, 2-2-3 schedules where a parent has Mon/Tues, the other parent has Wed/Thursday and the first parent has Friday, Sat Sun.  
    • For sole custody, weekend visits from Friday-Sunday with one or two weekday visits.

Can the court favor one gender over another?

  • No, the judge cannot favor one gender over another.
  • The standard question in any analysis is what is in the best interest of the children.
  • Judges have discretion, which allows for gray areas and wiggle room.
  • Bonding is an important factor in child custody cases, and goes to the emotional attachment a child and parent have.  

 

5 Best Practices to Help Your Children Cope with Divorce

Divorce doesn’t mean your children have to suffer. You can help your children cope with the changes that inevitably come with divorce. This article will focus on what you can do, independently of the other parent, to help your children navigate the divorce and successfully adjust.

  • Speak respectfully about the other parent.

Although divorce is often an adversarial process with the ex-spouse, your children will be benefited by your protecting them from the battle. Speak respectfully of the other parent. Try to avoid venting to your children about what the other parent is wrong. This can place the child in an uncomfortable position of feeling forced to take sides.

  • Clearly communicate with the other parent and your children.

Clear communication is key to setting expectations. If you are organized, plan things out, and convey meaningful and firm messages then everyone will benefit.  When a parent assumes various schedules, meeting places or other expectations, then the situation is ripe for misunderstandings and inconvenience. Often text or email communication can prevent problems.

  • Express love to your children every day.

Your kids are going through a hard time and need you now more than ever.  Remember to tell them every day that you love them. Try to show them through your actions that they are important to you and you care about them. Be supportive. Listen to their concerns and comfort them when they are sad.

  • Allow your children to grieve.

For some children, losing the one family unit can feel like a death, and they need time and space to grieve the loss.  Understand that they may go through the grief cycle of denial, anger, bargaining, depression and acceptance. Seek to understand the emotions and be supportive.

  • Keep calm and put your children first.

There will likely be many instances of anger, annoyance and frustration with your ex-spouse. Find a friend or a counselor to confide in. Remember that you are always setting an example for your children, so be the person that you want them to become.

The changes in your family can be an opportunity to show your children fortitude, sacrifice, leadership, forgiveness, communication and love.  Many parents who achieve the best outcomes for their children during the divorce process do so because they set goals for how to handle the ex-spouse appropriately and they achieve a reliable, safe space for their children to thrive in.  

5 Amazing DUI Defenses

Think your DUI is hopeless?  Think again! This article will explore five major categories of defense tactics that you can discuss with your public defender or private attorney.

  • Asserting your Fourth Amendment Right in relation to the Stop.  

The Fourth Amendment to the Constitution protects you from unreasonable search and seizure. With a DUI, this often comes into play when the officer pulls you over for a traffic stop. The officer needs to have reasonable suspicion that you are committing a crime (a traffic offense counts as a crime for this purpose). The officer must have probable cause to arrest you.  A defense based on the stop or the arrest is one of the most common and effective ways to fight a DUI, and an attorney can help you apply the law to the specific facts of your case.

  • Attacking the Accuracy of the Field Sobriety Tests.

The officer likely performed the field sobriety tests near the street where he pulled you over, and the conditions may have interfered with the accuracy of the testing processes.  Was there heavy traffic that distracted you or made the tests unsafe? Were weather conditions in play that may have impacted your abilities? Was the lighting poor or in your eyes? Was the ground uneven or dangerous? Were there other environmental hazards or distractions that may have impacted your ability to perform on the field sobriety tests? Aside from the environmental factors, the officer’s explanation and execution of the field sobriety tests can also be used to challenge the results.  Did he explain the tests fully and accurately, and were they administered as they were supposed to be? Attacking the accuracy of the field sobriety tests is a very common, but can be a useful way to defend you.

  • Undermining the equipment and methods used in testing.

In any test involving equipment, the equipment must be functioning properly and used properly in order to achieve a reliable result.  For example, if a breath test was administered, you can question whether the equipment was in good, working condition and whether the officer was properly trained to use it. If you can undermine the fact-finder’s confidence in the testing, then you can draw into question whether the results can be relied upon. Along those same lines, you can question the method of the testing.  For example, when did the testing take place? Was it contemporaneous to the driving or much later? The method of testing is as important as the reliability of the equipment itself.

  • Chain of Custody.

Any evidence used in a criminal case has to pass muster when it comes to the chain of custody, which means the prosecution has to be able to trace where the evidence has been from the time it was taken into custody. For example, when police officers take a blood sample in a DUI case or seize evidence of drugs, the evidence will be packaged with a form and each person who comes in contact with the evidence should be noted on the form. If there has been a break down in that procedure, then you can claim that the evidence has been contaminated or tampered with and therefore the evidence is unreliable.

  • Necessity, Duress, Entrapment, Involuntary Intoxication.

The affirmative defenses are not as commonly used because they require circumstances that are somewhat unusual.  If your case falls into this “oddball” group of categories, the affirmative defenses may well suit you. The necessity defense is where you drove under the influence for a greater good – for example, to race someone to the hospital to save a life. Duress is when you are forced to drive under the influence under threat of your life of safety, such as if you drove while intoxicated because someone threatened to kill you if you didn’t.  Entrapment very rarely arises or if it does, it would be difficult to prove, but an example would be where the police officer requests that the person drive while intoxicated to “set the trap” to arrest that person Involuntary would be where someone was given drugs or alcohol without their knowledge or consent.

 

Wet Reckless and DUI in California

Have you heard about friends or family getting a DUI charge reduced to a Wet Reckless?  This will tell you what it means, when it’s done, and how it can help you.

What is a “Wet Reckless”?

A “wet reckless” is a nickname for a charge of reckless driving involving alcohol or drugs.  It is a common reduced charged from a plea bargain.

Will the prosecutor agree to a Wet Reckless?

There are no hard and fast rules as to when a prosecutor will agree to a Wet Reckless plea bargain, but your chances are higher depending on your BAC and whether there are evidence problems in the prosecution’s case against you.

What are the advantages of a Wet Reckless plea bargain?

    • Shorter max penalty:  The maximum jail time is shorter, so if you violate probation then you face a shorter max jail penalty.
  • Shorter minimum penalty: If this is your second or third DUI within a ten year period, then certain mandatory jail sentences will apply. If you enter a plea to wet reckless instead of DUI, then the conviction only requires five days in jail regardless of your prior history.
  • Shorter probation period.  Wet reckless often has a shorter probation period than a typical DUI.
  • DUI School:  You’ll likely have a shorter DUI school with wet reckless than DUI.  
  • Fines:  Penalty assessments that are lower for Wet Reckless than DUI may make the total cost of a Wet Reckless less expensive than a DUI.
  • License advantages:  A wet reckless plea may help out on the license suspension from the court, but there is also the DMV license suspension – so it may or may not impact your driver’s license.

Don’t get too excited about a Wet Reckless because it still packs a punch in many ways:

    • Insurance Company: The insurance company will likely still ding your record with the Wet Reckless.
    • Repeat Offender:  If you get another DUI within ten years after your Wet Reckless, you’ll still be considered a repeat offender, even though Wet Reckless is different than a DUI.
  • License Suspension: The DMV can still take your license.  

 

 

Common Questions About Your Divorce in California

This article will examine some of questions that are commonly asked about the divorce process in California.  It will help you get a broad overview of the process and understand what to expect.

Do I have to wait 6 months to get divorced in California?

Yes, although the waiting period can be challenging for couples, six months is the minimum and its common for the divorce process to take longer than six months.

Can I remarry during the waiting period?

No, unfortunately you can’t remarry while you are waiting for the divorce to be finalized.

Why is date of separation important?

The separation date is important in determining what property is community property (must be split) and separate property.

Should I sell or mortgage the house while we are separated?

You’ll want to hold off on making major changes to assets or debts during the separation/divorce process.

Does it matter what state we live in?

Yes, in order to file for divorce in California you or your spouse must have lived in California for at least six months.  You also need to have lived in the county for at least three months.

What are some of the important factors for determining temporary child support?

Important factors in determining child support are each parent’s income and the amount of time each parent takes care of the child.  

Do I need to wait to get spousal support?

Spousal support can be granted with an Order to Show Cause early in the divorce process, so you do not need to wait until the divorce process has progressed for temporary spousal support.

What’s the general timeline of important steps in the divorce process?

  • The first step is a Petition with the Court and serving the Petition on the other spouse.  This marks the beginning of the waiting period.
  • The next step is responding to the Petition and perhaps an order to Show Cause if certain disputes are involved.
  • Hearings or mediation can be scheduled to resolve certain issues.
  • Dividing property is a step that will happen somewhere along the process. As part of this, discovery and disclosure of assets and obligations will be conducted.
  • Settlement Agreements occur where you and your spouse are able to reach an consensus.

While this is not a complete list, it gives an overview of some of the steps in the divorce process and helps you understand important questions relating to your divorce. For answers to specific questions you may have, consult with an attorney who has experience in family law to guide you through the sometimes intricate divorce process.

 

3 Tips on How to Create a Perfect Parenting Plan for Your Children

A parenting plan is required in every divorce case because it establishes the rules for physical and legal custody for the children.  If you and the other parent can agree, then it is a stipulated plan, or if you cannot agree then the court can establish a parenting plan for you.  You can tailor the parenting plan to the needs of your family, and this article will help you think through some important points you will want to include in the plan.

What are important issues for physical custody you should think through in creating the plan?

  • When will visitation occur
  • How will children be exchanged
  • Holidays, school breaks, special events
  • Accommodations for a parent’s illness or travel
  • Parent wants to relocate
  • Extracurricular activities and lessons
  • Resolving disputes
  • Phone/email/social media access with other parent
  • Military or other prolonged absence
  • Discipline or punishment methods
  • Children’s clothes and other belongings and how they are exchanged
  • Cancelations and delays

What are important issues for legal custody you should think through in creating a plan?

  • Religious attendance
  • Immunizations
  • Medications
  • What school will the children attend
  • Babysitting/Daycare arrangements
  • Emergency care

What needs are specific to your child that should be considered?

  • How old is each child
  • What routines would work best for your child’s personality
  • How do the school schedules of each child fit with the plan
  • What will give your child a sense of security and routine

A parenting plan can be unique and tailored to your children or it can be more general.  If you have questions or need help in formulating a great parenting plan, we here at http://www.davidknechtlaw.com/ can help!

Unusual DUI Defenses

Do not give up just because you have been charged with a DUI.  There may be a myriad of defenses that you can use to inspire reasonable doubt as to the elements that the prosecution must prove to convict you. In a previous article, we discussed some of the Best Common Defenses and Arguments for a DUI.  Here we examine a few ideas to get you thinking outside the box if your case has rare or unusual circumstances. An attorney will be able to evaluate your individual circumstances to spot any defenses that might be successful.

Were you actually “driving”?

In some cases, the police officer didn’t see you driving, so a defense to the DUI may lie in rebutting the circumstantial evidence that you were driving.

  • Did you deny driving?
  • Were there other people in the car?
  • Was the car discovered when it was legally parked?

Watch out here, though, because if the officer observed even a slight movement of the vehicle, then that counts as driving.  Also, watch for circumstantial evidence that that prosecution may use to show that you were driving – i.e. your car was warm, the keys were in the ignition, or close proximity to an accident.

Were you under the influence when driving?

In some instances, such as a hit and run collision or single vehicle collision, the police officer may not have caught up to you at the time of the incident.  If you were drinking right after the alleged incident, then this can call into question whether you were actually under the influence at the time you were driving.  Along similar lines, if your BAC was under the legal limit, but rose to a higher value after you were no longer driving, then this could be another point of defense that you were not under the influence when actually driving.

Do you have any special medical or physical conditions that may have impacted the testing?

Think about any challenges that apply to you specifically.  Do you have a condition that may have affected the blood or breath testing?  Do you have a physical condition that would have impaired your ability on the field sobriety testing?  Was there anything usual about the environmental conditions where the tests were administered?

Police conduct?

In some cases, police misconduct can provide a valuable defense in a case.  Were statements made to indicate racial profiling for the stop? Did the police act improperly in the way that the tests were conducted? Was there anything amiss in the way evidence was handled?

Extenuating circumstances?

Were you forced to drive by some emergency?  Were you given the alcohol or drugs without your consent or awareness?  Although extenuating circumstances may or may not provide a defense to the charge, they can be important argument points in making the case for a plea bargain with the prosecutor.