How to Get Your Separate Property Down Payment Back

A situation that arises fairly often in a California divorce is when separate property is used for a down payment of a house and then community property funds is used to pay the mortgage, and the question arises how to get that separate property down payment back. Section 2640 of the California Family Code answers this question.

 

What types of contributions are covered by Section 2640?

  • Down payments
  • Payments for improvements
  • Payments that reduce the principal of a loan used to finance the purchase or improvement of the property

What types of contributions are not covered by Section 2640?

  • Payments of interest on the loan
  • Payments made for maintenance, insurance or taxes on the property

What is the process?

 

  • The law requires tracing, which means that you need to prove that the funds came from either separate property or were inherited, which can be shown various ways such as bank statements or providing the will. 

 

 What are the exceptions?

  • The exceptions are a transmutation in writing (agreement between the spouses about the character of the property)  or a written waiver of the right to reimbursement. 

 

  • The amount reimbursed must be without interest or adjustment for change in monetary values and cannot exceed the net value of the property at the time of the division. 

 

Consult the Law Office of David Knecht

If you need help getting your separate down payment back in a California divorce, or if you need assistance in any other aspect of divorce in California, contact us at the Law Office of David Knecht at 707-451-4502. We have extensive experience in family law.  

 

Filed Under: Contract Law, Criminal Law

What to Look for in Your Fairfield DUI Attorney

A DUI case is complex and quite challenging. It is important to have a good DUI attorney managing your case to help you properly navigate this. Here are some tips to help you find the right Fairfield DUI attorney:

Experience 

No matter what time of case you are dealing with, you need to find someone with experience. Look for an attorney with a good reputation, and one who has dealt with cases similar to yours in the past. Online reviews are helpful, but it is also beneficial to talk to an attorney about their previous cases.

Empathy and Understanding

A good Fairfield DUI attorney will be understanding about your case and this situation. The attorney will look for options to help you through this case, and even options for where you can go from here. 

Honesty 

A DUI case can come with a number of unexpected twists and turns in the case. A good attorney will be honest with you about the outcomes you are facing. The DUI attorney will have experience in other cases like yours, and they will be able to let you know honestly what to expect. 

Communication

A good attorney will know how to communicate effectively with their clients. The attorney will promptly return the phone calls, emails, and text messages. Having an attorney that is honest and will openly communicate with their clients shows they truly have their clients best interest in mind. 

Chemistry 

When you meet with the attorney, gauge how well they treat you. If you do not feel that you can trust this person and do not have good chemistry with them, it is a good idea to talk to another attorney. You need to find someone you are comfortable being with, and knowing will protect you and your rights. 

Reasonable Fees

The attorney should be up front with you about the fees you will experience related to your case. A DUI is expensive, and you need to be prepared for the costs that you will need to pay. However, there are certain attorneys out there that do try to charge more than their fair share for the case. It is important to look for an attorney that you know will be reasonable and you can trust. 

Contact our team at David Knecht Law to discuss your DUI case and determine what is the best option to take for your case.

Filed Under: Contract Law, Criminal Law, General Legal Advice

Criminal Court 101:  Basic Fundamentals of Criminal Court

If you have been charged with a crime in California for the first time, you probably have a lot of questions.  This article will help you understand the basic rules for the criminal court system.

What is the difference between criminal court and civil court?  

  • Criminal court – criminal charges are brought by either the federal government, state government, or city against you with the allegation that you have violated a law. If the defendant is found guilty, the judge can impose a sentence that includes fines, jail/prison, or other restrictions or requirements.
  • Civil court – this occurs when one party (for example, a person, business or organization) has a claim against another party and requests the court to decide the question.  A person will not go to jail or prison for a civil case.

What types of criminal offenses are there?  

  • Infractions – this is the lower violation in terms of seriousness, and it is something like a traffic violation.  The punishment is usually a fine.
  • Misdemeanors – this is more serious than an infraction. The jail time can be 6 months or a year and the fine can be up to $1000 typically.
  • Examples include DUI, petty theft, vandalism
  • Felonies – these are the most serious.  Punishments can include fines, jail, prison, or even the death penalty in very rare cases.

What is the difference between the state system and the federal system?  

  • Type of crime – there are federal laws and state laws, but in some cases, one crime could qualify as either federal or state.  
  • Procedures – there are different procedures in the federal system vs. the state system, for example in the procedures for charging a defendant and for sentencing
  • Courtroom/judges – the courtroom and judges are different for federal vs. state

Do I need an attorney?

  • You have a right to represent yourself, so you are not required to have an attorney.
  • An attorney is trained in the rules and procedures of the court, and typically that information will be advantageous to your case.
  • Conventional wisdom is that there are advantages to having someone represent you besides just the knowledge.  Most attorneys, if they are charged with a serious offense, will even hire someone to represent them.  A person who is outside the situation is often less emotionally invested and has the impartiality to see angles and arguments that someone who is under the stress of the case may not be able to discern as easily.
Filed Under: Criminal Law, Fairfield Lawyer

Criminal Law Basics:  How Does the Criminal Law System Work?

If you are facing a criminal charge, you may be wondering how the criminal law system works.  This article will walk you through the main steps in a typical criminal case.  

  1. Arrest and Jail.  The typical start of a criminal case is the arrest by the police.  

From there, there are three main scenarios:  

1) the defendant can be released from jail if the prosecutor decides to drop the case,

2)  the defendant posts bail/bond, and is released with the promise to appear,

3) the defendant stays in jail.

Charging.  The police write a report.  The prosecutor reviews the report and has discretion to decide whether or not to file charges and which ones. Charges are typically filed within 48 hours of the arrest if the defendant is in custody.  

Arraignment.  This is the defendant’s first appearance in court to find out what the charges are and to enter a plea, which is very often “Not Guilty.”  Even if you think you are guilty, it is often advisable to enter a “Not Guilty” plea at this stage of the process.  After the plea is entered, the judge will either release the defendant on his or her own recognizance, or set bail for the defendant’s release, or require that he or she stay in jail.

Pre-trial. In the interim before the trial, there can be additional hearings.  For example, in felony cases, a preliminary hearing is held, where the judge makes sure that there is enough evidence for the case to continue.  In some cases, the defendant will concede that sufficient evidence exists, and waive the preliminary hearing.  This pre-trial time is the time for discovery, which is when the prosecution and defense can exchange documents.  During this time, the defense attorney will research the facts in more detail.  Motions can also be filed.  For example, a Motion to Suppress alleges that evidence should not be admitted (or heard by the jury), because the defendant’s rights were violated in the process of getting that evidence.

Trial.  A defendant is presumed innocent, so the purpose of the trial is for the prosecution to present the evidence that shows beyond reasonable doubt that the defendant committed the crime.  Each crime has specific elements that the prosecution must prove.  The trial must occur within a certain time period of the Arraignment.

Appeals.  If the verdict is guilty, the defendant may have the right to appeal.  The appeal must be filed within a certain time period, so a defendant should consult with his or her attorney immediately if an appeal is desired.

Sentencing.  If the verdict is guilty and an appeal is not sought, the next step is sentencing, where the judge imposes the punishment, which is typically involves fines, counseling, incarceration in jail or prison.  

Filed Under: Criminal Law, Vacaville Attorney, Vacaville Lawyer

What Should I do if there is a Warrant for My Arrest?

  • What is a bench warrant and why is there one for me?

Some of the most common reasons why there might be a warrant for your arrest is that a judge issued a bench warrant based on 1) failure to appear in court on your scheduled date, or 2) failure to complete the terms of your probation, or 3) failure to pay fines.  A warrant is signed by a judge and authorizes law enforcement to arrest you.

  • What are the consequences of failing to comply with court orders?

Failure to comply with court orders may result in a mandatory court appearance, additional charges being filed by the prosecutor, a hold being placed on driver’s licenses with the DMV or an arrest warrant.

  • What does an arrest warrant mean to me?

An arrest warrant puts you at serious risk because a police officer has a duty to arrest you if there is one outstanding.  This often happens if you are stopped for a traffic violation, and the officer runs your license and discovers that there is an outstanding warrant.  You can also be arrested at your home or workplace or anywhere that you might come in contact with the police.

  • What can I do if I’m concerned about an arrest warrant?

A criminal defense attorney can tell you if there is a warrant outstanding, what it’s for and the amount of bail.  Your attorney can help you schedule a voluntary appearance, so that you can avoid the scene of getting arrested unexpectedly.  If you are out of state, your attorney can provide information to you about your options.  

  • Do I have to go to jail if there is an arrest warrant out for me?

Not necessarily.  In some cases, your warrant may be able to be recalled without ever having to appear in court, post bail, or spend time in jail. This depends on the particular circumstances.  For bench warrants relating to misdemeanor offenses, your attorney can typically appear in your absence to clear the warrant.  

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

3 Ways to Be the Perfect Criminal Defendant

“Help me, help you.”  It’s the famous line from Jerry Maguire, and it applies to anyone facing criminal charges and their attorney.  How can you help your attorney help you?  

1. Communicate.  Good communication is key to helping your attorney help you.  It comes into play throughout your case.

  • Phone/Email/In Person.  Find out how your attorney prefers to consult with you, whether it’s email, phone or in person.  Be available.  Respond to messages promptly.  Don’t underestimate the importance of following up.
  • Be Clear.  Try to organize yourself so that your story is consistent and organized.  This will help your attorney present your case and will help you be believable in the very unlikely event you end up on the witness stand.  When you communicate with your attorney about the facts, try to have the dates handy.  Remember details.  Think through step by step what happened.  
  • Be Assertive.  It’s important to communicate with your counsel about your desired outcome.  For example, if you want to fight the case, then let your attorney know.  If you would prefer to enter a plea, then help him not only understand you preference, but also the details, such as if you want to do your jail time on a specific weekend, or if you need payments for your fines, or if you prefer a certain type of counseling, etc.  Your attorney may be able to ask the judge for special accommodations, but only if he or she knows what to ask for.  

2. Be Levelheaded.  Your behavior on and off the “court” can make or break your case, so be aware of how you are presenting yourself.

  • Be Collected.  Nothing can fire you up more than an unjust cause, so it makes perfect sense that you may get angry or frustrated when speaking about what happened.  Anger or frustration directed to your attorney is misdirected will only get in the way of their vigorous representation to help you.  Be assertive in telling your attorney what you want or need, but do not be aggressive with the person who is on your side.  
  • Assume the Judge or Court Staff Are Watching Anytime You Are in the Vicinity of Court.  Another aspect of being level headed is behaving as if you are always being observed when you are on the premises of the Court.  The worst thing you can do for your case is to blow up with one of the Judge’s staff, as this will often be reported back to the Judge.  Judges are human and may hold your behavior against you.  Additionally, make sure that you are in compliance with all restrictions when going to Court.  For example, if your license has been revoked, do not drive to the courthouse.  If you are prohibited from contacting a certain person, do not go with them in the same vehicle to the Court.  

 

  • Be Honest with Your Attorney.  Your attorney may or may not want to know if you believe you are guilty of the offense, but your counsel needs to know any information that is likely to be in any records, in witness testimony, etc.  

 

  • Don’t Hang Your Attorney Out to Dry.  Surprises are not welcomed by most criminal defense attorneys.  If you know about a witness, or a test result, or a piece of evidence such as a text, let your attorney know.  Some defendants are embarrassed to tell their attorney that they did something that wasn’t the smartest, such as an admission to an officer or a confession to a friend.  Your attorney is a professional and only has your best interest in mind.

 

With great communication, staying level-headed, and being honest with your attorney about adverse facts, you can help your attorney help you as much as possible.

 

Filed Under: Criminal Law, Fairfield Lawyer, Vacaville Attorney, Vacaville Lawyer

Vacaville Legal Problems?  How David Knecht Law Can Help with Criminal Defense

Are you looking for the best criminal defense attorney in Vacaville?  Do you need the best DUI attorney in Vacaville?

The seasoned attorneys and staff at the Law Office of David Knecht have the experience, knowledge and gumption to fight for you no matter how small or serious your criminal charge may be.

 

  • David Knecht was a police officer and detective for over 13 years before becoming a lawyer, so he knows the system inside and out.
  • At David Knecht law we take the time to thoroughly analyze your case:  
  • to understand who you are, including your personal situation , past history, physical condition and every other factor that my help us to prepare your defense
  • to listen to what were the circumstances of the arrest, to analyze what was said and done, and look for weaknesses in the case against you
  • to discuss the police report, the police questions, the tests or procedures that may have been performed.
  • At David Knecht law, we have had successful outcomes in representing clients in a variety of type of cases
  • Looking for an attorney in Vacaville to represent you for a theft or fraud charge?  Mr. Knecht has represented clients accused of identity theft, possession of stolen property, fraudulent use of credit cards, grand theft, petty theft, auto theft, embezzlement and more.  You can trust that he has experience.
  • Looking for an attorney in Vacaville to represent you for assault and battery? Whether you are looking at assault with a deadly weapon, domestic violence, robbery, gun crimes, etc., Mr. Knecht will represent you with knowledge and confidence.  
  • Looking for an attorney in Vacaville to represent you for drug offenses?  Whether you are facing illegal possession or sale of cocaine, methamphetamine, marijuana, prescription drugs, Mr. Knecht understands these charges and how to defend them.
  • Looking for an attorney in Vacaville to represent you for sex offenses? Mr. Knecht’s experience working child and adult sexual assault cases gives him unique insight into these offenses and how to assist clients in seeking reduced or dismissed charges.   

 

Whether you are looking for an attorney to assist you in defending theft, fraud, assault and battery, possession of drugs, sale of drugs, DUI, or some other crime, look no further than David Knecht Law.

 

Filed Under: Criminal Law, Vacaville Attorney, Vacaville Lawyer

3 Reasons Smart People Hire a Lawyer After Getting a Criminal Charge

A criminal charge is likely to affect both your freedom and your bank account.  You may be aware that jail time is a possibility, but do you know how much jail time is common for your offense?  Do you know the fines typically involved?  Can you anticipate what counseling or classes might be involved?  

One thing you may not know is that even attorneys typically don’t represent themselves in criminal cases.  There is value in having someone else look at the facts and represent your interests. This article discusses why smart people hire a lawyer to represent them in a criminal case and how to best utilize your lawyer to defend you.

  1. Evidentiary Defenses.  If you are thinking that you are guilty because you did the thing that you are accused of, then you aren’t thinking like a lawyer.  Attorneys know that it is the government’s (city/county/etc.) burden to prove that you are guilty beyond a reasonable doubt.  Just because you did something doesn’t mean that the other side can prove it.  Furthermore, you have a right to be secure against unreasonable search and seizure.  How this translates to your criminal charge is that the police have to use legal means to stop you and search you.  If they fail to stop or search you properly, then the evidence that they find can’t be used against you.  At attorney knows these rules and can assist you with evidentiary defenses.  
  2. Plea Bargain.  If you are planning to enter a guilty plea, an attorney can help you get a fair plea bargain.  A lawyer who regularly practices criminal law in your jurisdiction will know what to ask the prosecutor for and what the best approach for that particular prosecutor is.  Often, jurisdictions have standard plea bargains, so you will want to be represented by someone who knows what those are and can ask for at least that bargain or better.
  3. Confidence.  Hiring an attorney will give you confidence and prepare you for what will happen.  The legal system is complicated, and you will benefit from having an experienced guide to help you navigate the system.  Your attorney will know what needs to be done and how to do it.  He or she will stand by you if you enter a plea or face the court to receive a sentence.  Your attorney can speak to the Court on your behalf, so that the right things are said.   

Evidentiary defenses, plea bargaining, and imbuing you with confidence are just a few areas where an attorney can provide value.  Be sure to ask your attorney questions, be proactive in assisting your attorney to develop a strong defense for you, and follow the advice of your counsel.  

Filed Under: Criminal Law, Vacaville Attorney, Vacaville Lawyer

Should I Hire a Criminal Defense Attorney?

If you are facing criminal charges, you may be looking at your bills and wondering if you can afford an attorney or if it’s worth hiring one.  A criminal conviction can come with a heavy financial impact, which can include fines imposed by the court, fees for counseling or treatment, the burden of lost wages if jail time is involved, and higher auto insurance costs if the offense was driving under the influence of alcohol or drugs.  This article cites studies and surveys for the proposition that

  • Attorney vs. Self-Representation – In a famous case, Gideon v. Wainwright, Justice Black reasoned:  “fair trials before impartial tribunals  in which ever defendant stands equal before the law . . . cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him.”  This quote emphasizes the importance of an attorney in a criminal case.

Survey Responses Show Better Outcomes with an Attorney than Pro Se

  • Respondents in a survey published at the site below indicated a high DUI conviction rate for defendants who represented themselves.  See  http://criminal.lawyers.com/dui-dwi/does-using-a-dui-lawyer-give-you-a-better-outcome.html
  • Private Attorneys vs. Public Defenders – If you at an income level to qualify for a public defender, but you have family or others who are willing to contribute to you defense, you may be wondering if a private attorney would be more effective in representing you.  According to at least a few studies, the answer to that question is yes, private attorneys — statistically speaking – obtain much better outcomes for their clients than public defenders.  

Studies Show Better Outcomes with Private Attorneys

  • “Results indicate that defendants with public defenders are more likely to be detained pretrial, more likely to be convicted, and less likely to have their cases dismissed.”  

(Excerpt from a study published in the Journal of Criminal Justice, a summary of which can be found here, http://www.sciencedirect.com/science/article/pii/S0047235213000366)

  • “…studies suggest that having appointed counsel negatively affects case outcomes, such as conviction and sentencing, in that those with appointed counsel are more likely to be convicted and/or sentenced to longer incarceration terms.”

(Excerpt from a study about the effect of attorney type on bail hearings, which can be found at http://journals.sagepub.com/doi/abs/10.1177/0887403414562603)

  • Other Considerations –There are many other considerations that you will need to weigh to decide whether to hire an attorney, whether to request a public defender, or whether to represent yourself.  A safe approach to take is to at least consult with an attorney initially, and then to decide the best course of action from there.  Some factors you might consider include:
  • How serious is the offense?
  • Am I innocent?
  • Would I prefer to go to trial, or would I be more comfortable with a plea deal?
  • What will be the financial burden of a guilty plea or conviction?
  • What resources, side income, or family to help defray the cost of an attorney?

The decision about whether to seek representation is a very important one, and your selection of an attorney is also critical to your success, and this resource can help you think through some of the initial steps of preparing your criminal defense.

 

Filed Under: Criminal Law

4 Things You Should Never Do If You’re Accused of a DUI

If you are facing your first DUI charge, it can be a daunting and stressful time. You may be wondering what will happen next, what you should do next, and how you can get through the entire process quickly and return to normal life. During the process however, here are four things you should never do if you are accused of a DUI:

Confess to avoid a trial

Being arrested and charged with a DUI may feel like the end of the line, but it’s not. Many police officers may try and get you to confess to being under the influence of alcohol and provide details of your intoxication to expedite the processing of any criminal charges against you. However, remember that you have the right to remain silent, and providing a confession won’t do you any favors in the short or long term.

Forget that you are innocent until proven guilty

Once you are charged with a DUI, you may forget that being charged isn’t the same thing as being convicted. The prosecution will have to prove that you are guilty, and provide extensive evidence to that fact. Just because you have been charged doesn’t make you a criminal and doesn’t mean that you will be punished to the fullest extent of the law.

Ignore what comes next

Things will move very quickly once you are charged with a DUI. Not thinking one step ahead of the prosecution will put you at a terrible disadvantage right from the start. While the list of things you have to do seem to be piling up, be sure that the first thing you do is hire an experienced and trusted lawyer experienced in criminal law and DUIs. Once you have a lawyer on board, they will be able to walk you through your options, the evidence, and any possible contingencies.

Forget to Ask Your Lawyer the Right Questions

Since there are probably a million questions running through your head, don’t forget to ask the right questions. While your attorney will go over all the important details of your case with you, don’t forget to ask them these questions as well:

  • Will I go to court?
  • How much will this case cost?
  • The police didn’t require me to take a blood/urine test, is this important?
  • Will I lose my job?
  • How can I avoid a conviction

The legal system can be a tricky maze for those who are being accused of their first DUI. Finding the best DUI lawyer and following their counsel will always be your best line of defense and offense in helping you navigate through the legal proceedings to come and help your life return to normal.

Filed Under: Criminal Law, DUI
Next Page »