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!

How to Know if Your Assets Are Being Split Fairly In Divorce

Whether you are just considering a divorce, starting the process or right in the middle of it, at some point you are going to wonder if you are getting a fair shake. An attorney can look at your particular assets and debts and tell you the best plan for you, but this article will provide general information about the landscape of asset division in California and educate you to ask the right questions about the facts of your case.

  • Why do I need to care about community property vs. separate property?

In general, California law requires community property to be split between the spouses 50/50, whereas separate property may be retained solely by the spouse who owns the separate property.  

  • What is Community Property?

California Family Code provides the general definition of community property:  “Except as otherwise provided by statute, all property, real or personal, wherever situation, acquired by a married person during the marriage while domiciled in this state is community property.”

  • What is Separate Property?

California Family Code defines separate property in several sections, but the section that is broadest is as follows:  Separate property of a married person includes the following: 1) all property owned by the person before marriage, 2) all property acquired by the person after marriage by gift, bequest, devise or descent, 3) the rents, issues, and profits of the property described in this section.

  • Commingled funds make characterization challenging:

Commingling is where both separate property and community property have been combined in such a way that the character of the property isn’t clearly apparent upon first analysis. For example:

  • Down payment or loan money for the purchase of a home came from a gift to only one spouse, but community property funds have been used to pay mortgage.
  • A premarital bank account from one spouse is used by both spouses after the marriage, so it contains both pre-marriage separate property and community property funds.  

These are just a few examples of the myriad of ways that funds can be commingled. The process of sorting these out through tracing, etc. is beyond the scope of this article, but advice from an experienced family law attorney can assist in identifying and proving the proper character of commingled assets.

  • Determining the value of assets?

A key issue in fair division of assets is assessing the value of an asset. This can be challenging for some assets, but thinking through how the value of each item will be assessed is an important step in making sure you are getting a fair division.  

  • Don’t forget about debts.

The focus of this article has been assets, but don’t forget to calculate in the value of your debts. For example, a mortgage on real property, school loans, and credit card debt should never be left out of the analysis.

This is just the tip of the iceberg to get you thinking through issues relating to identifying community property and assessing its value.  The division of money and time with the children are the two most important issues facing many couples in divorce, so a thorough analysis of these issues by an experienced family law attorney will help you understand the law and achieve a fair resolution.

 

Should You Trust an Attorney with Honors and Awards?

This article will give you a helpful map of the honors and awards that you should be looking for as you consider an attorney’s resume and whether he or she is the right person for you.  This will tell you what to look for and the red flags to avoid in analyzing an attorney’s success and history.

  1. Look for Past Successes. An excellent experienced attorney will have a long history of past successes. This is likely the type of success that you want to give the most weight when comparing attorneys because success in your particular type of case is likely to be the most relevant.  Look for a “Result” tab or “Successes” tab on the attorney’s website.  This will give you an indication of the types of cases the attorney has handled.  You will also get a feel for what a successful outcome in those cases looks like to him or her.
  • A disclaimer on past successes is a good thing. Typically, an attorney will have a disclaimer that states something to the effect that a success in one case does not guarantee a success in your case.  The disclaimer itself is in indication that the attorney is honest and ethical.  An attorney who promises you a particular result should be viewed with skepticism because no two cases are ever identical.
  1. Look for Relevant Experience in Other Roles. Look for experience that is relevant to the type of case you will engaging the attorney to handle.  For example, in criminal law, an attorney who has been on both sides of the case can have a unique perspective that can be helpful to you.  For example, a defense attorney who also worked as either a prosecutor or as a police officer may know the system from the inside out.  Similarly, a family law attorney who has experience as a guardian ad litem, victim advocate, or some other role in the court may be able to draw on that broad exposure to assist you more effectively.
  • Red flag. Experience in other roles can be very effective in building an attorney’s skills, but be cautious of someone who has very recently switched to the area of law you are interested in.  An attorney whose recent experience is relevant to your case is likely more ready to represent you than one who just barely switched to your area of law.
  1. Clerkships can be prestigious and also give an attorney insight into the court system or the political system that the attorney wouldn’t otherwise gain from just practicing law alone.  Look for clerkships on an attorney’s resume, and you may give more credence to clerkships that are with judges in California or your county.
  1. Law School Awards and Honors. Awards from law school may be in the far past, but they give you an idea of the personality type of the attorney.  Look for participation in law school extra-curricular activities, such as Moot Court or Law Review or clerkships completed during law school.
  1. Law-Related Memberships, Community Awards, and Community Service. You will likely want an attorney who is well-respected in the legal profession and the community.  Look for memberships in legal organizations, because these show an interest and connection to those legal specialties or groups.  Look for community awards because these indicate that your attorney has accomplished goals that are above and beyond the norm.  Consider community service that has been done by your attorney because those may indicate a personality that is committed to helping others.

3 Things to Know About the Discovery Process for a Divorce Case

If you are going through a divorce, you may hear terms that you don’t understand.  One of the terms that is heard often is “discovery.”  This article will explain the basics of discovery – what is discovery, what types of methods, and what types of information are produced– so that you can understand the procedures and terms that will be used in your divorce.  

1. What is discovery?

  • In legal cases, both parties need information.
  • The process for obtaining this information is called “discovery.”  
  • One question clients often ask is whether you can hide information or lie about it or say that it’s too private to disclose?  
    • In general spouses are under obligation to make a full and accurate disclosure and failure to do so can result in a Motion to Compel and ultimately sanctions.  However, your attorney is in the best position to assists you in properly responding in the discovery process.

2. What are the different means of discovery?  Here is a sample of some of the most used methods of obtaining information in the discovery process for a divorce case:

  • Depositions – interviews with parties or non-parties.
  • Interrogatories – written questions to the other party.
  • Requests for Admission – similar to an interrogatory because it is in writing, but with these you are not asking for information, you are asking for it to be admitted (i.e. confirmed or ratified).
  • Inspection Demand – where a party wants an opportunity to review certain documents or things.
  • Request for an Income and Expense Declaration. If support has been ordered (child, family or spousal support), then one party can use this to obtain production of a current income and expense declaration and income tax returns.

3. What types of information are typically discoverable in a divorce case?  The range of information that can be gleaned from discovery is very large.  In general, it covers any unprivileged information that is relevant to the case. In layman’s terms, it’s relevant if it could be admitted as evidence in the case or if it could lead to relevant evidence in the case.  Here are a few examples of the types of information that could be requested in discovery:

    • Employee payroll information – since this is important to proper division of community property and to determine child support and spousal report, this information is typically part of the discovery process.
    • Business Records or tax returns — If one of the parties has a business, then the information about the value of the business and its assets will be important to determine.
    • Information about where the child is – If one parent does not know the whereabouts of one or all of the children, this information can be obtained in discovery.
    • Domestic violence convictions – This type of conviction impacts the safety of the child.  Often one parent is aware of the history of child abuse or domestic violence of the other parent, but if not, this information could be found out through discovery.

 

What to Do If You Have Already Hired a BAD Attorney

The person representing you is vital to your case, but sometimes your initial decision was the wrong move.  What do you do now?  The next step is a decision only you can make, but this article will walk you through sound reasoning that will assist you in making the right choice.  Know that you are not alone.  If you are questioning whether you need to hire someone else, don’t hesitate to set up a consultation with the attorney you have in mind as a replacement and get his or her opinion on the situation.  

Is your attorney making mistakes that are prejudicing your case? – Is your attorney doing things or NOT doing things that are going impact you long-term and hurt you in some way?  Serious mistakes on your attorney’s part can affect you forever.  Here are some of the serious ones to watch out for:

  • Missing deadlines for filing motions.
  • Forgetting court appearances.
  • Completely ignoring communications with you.
  • Not having sufficient knowledge or experience to adequately represent you.
  • Being dishonest or encouraging you to make misrepresentations to the court either verbally or in writing.

Possible courses of actions with prejudicial mistakes:

  • Terminate your relationship with your attorney and find alternative representation.
  • In some cases, it may be appropriate to ask for a reduction or refund on your fees.
    • If the attorney’s mistakes are particularly egregious, you may feel it is appropriate to report those to the Bar of the State you live in.  
    • If the attorney you are dissatisfied with is a public defender and not someone you have hired, you can request a different attorney or represent yourself.  Be prepared to share with the judge the exact reasons why you are dissatisfied because a bare assertion that the attorney isn’t doing a good job will probably not be specific or factual enough to sway the judge to your point of view.

Are you dissatisfied with your attorney for reasons that may be fixable with communication? – Is your attorney doing things that annoy, bother or frustrate you?  

  • You don’t feel respected by your attorney.
  • You don’t feel that your attorney has thoroughly evaluated the information or evidence you or others have provided.
  • You don’t feel your attorney has the right tone with a judge/opposing counsel/prosecutor, and you would like a different tone?  (i.e. more or less adversarial, more confident, etc.)

Possible courses of actions where you feel the problems may be fixable with communication:  

  • Many attorneys respond to facts.  Give specific examples of what is bothering you and recommendations on what you feel would be an appropriate resolution.
  • In some cases, it may be appropriate for you to request a partial refund on your bill.
  • Many attorneys appreciate organized, written communications.  Summarize your concerns with your attorney’s performance in writing.  Not only does this step help the attorney understand you, but it can also document the problems.

You deserve to have an attorney that you feel confident in and who represents you well.  The practice of law is a service business where you are the client, so take charge of the relationship.  Work it out if you can or find someone different, but don’t sit back without making informed and thoughtful decisions about your future.

HELP!  I Need to Hire an Attorney and I’m Broke!

If you are not in a position to afford to pay for an attorney, you are not alone.  Many people struggle just to make ends meet, so it’s not unusual if legal fees may put a strain on your budget.  This article will provide some ideas of resources to help you.  

  • Criminal Case – Do you qualify for a public defender?  If you do not have the means to hire an attorney to represent you in a criminal case, the judge can appoint an attorney to defend you. When you go to court for your first appearance, you can request an attorney.  Judges may ask different questions about your income, but in general come with prepared with information on:

Your income

Your debts, including student loans, credit card debts, etc.

Your assets.  For example, you may be asked whether you own or rent your home, whether you own or make payments on your car

  • Family Law Case – Have you checked into free community resources?  For example, if you live in Solano County, the Solano Legal Access Center might be a helpful resource to you.

http://solano.courts.ca.gov/Courts/SolanoLegalAccessCenterSLACandFamilyLawFacilitator.html

The website above is a resource for California forms.

This website also has a repository of self-help information, videos and documents.

  • Domestic Violence – Have you looked into a Victim’s Advocate Office in your community?  Many communities have teams of professionals dedicated to assisting in protecting you from domestic violence.

For example, the Solano Advocates for Victims of Violence https://www.savvcenter.org/

Another resource for those in the Vacaville area is the Advocate Against Domestic Violence in the African – American Community, http://www.aadvac.org/

  • Pro Bono for Other Types of Cases – There are instances where an attorney may assist you without charge.  The term for this is “Pro Bono.” It isn’t the norm for an attorney to represent you for free or for a reduced fee, but there are instances where a lawyer may be willing to help you.  Use your resources.  Ask people in your network if they have a friend who is an attorney.  Meet with a lawyer and explain your problem.  Don’t expect free services, but you may be able to work out payment plans or other billing options that can make the representation affordable for you.   

3 Essential Steps to Best Resolve a DUI Conviction

If you entered a guilty plea to a DUI or lost your case at trial, this article is for you.  It discusses what to do next once you have a DUI conviction.  Following these steps will help you succeed in completing your probation successfully and putting this conviction behind you.

Set Yourself Up for Probation Success

  • Know.  Make sure you find out what the terms are of your probation and how long it lasts.  Typically, you will at minimum be ordered to stay drug free and not have any other criminal offenses.    
  • Do.  Confirm that you have your paperwork and call the court for a copy if you have lost it.  This will list what you need to accomplish and when.  Typically you will need a counseling evaluation and a certain amount of counseling sessions. You may have community service obligations.  Following through with the Court’s orders is essential.
  • Report.  Ensure that anything you complete is reported, because you want to “get credit” for the counseling, etc. that you finish.  If you don’t know whether the court has a record of what you’ve done, be proactive to call and find out.

Do Not Drive with a Suspend Driver’s License 

  • Don’t drive while your license is suspended.  Typically, your license will be suspended.  Make sure that you do not drive during the suspension period.
  • Complete the DUI Program.   You will likely need to complete a DUI program prior to reinstatement of your license.    
  • More information about Suspended Driver’s License.  For more information about a suspended driver’s license in California go to http://www.dmv.org/ca-california/suspended-license.php

Compliant Driving after a DUI – Interlock and Insurance

  • Interlock.  An ignition interlock device prevents you from driving with a level of blood alcohol above the setting.  You will typically be ordered to utilize this device for a certain amount of time following your DUI, and you shouldn’t do anything to try to bypass the system.    
  • Insurance.  You need a special type of automobile insurance following a DUI.  It is often called high-risk or SR-22 insurance.  Make sure that you obtain the right kind of insurance and keep your payments current.

If you take the time to know and obey the terms of your probation, you can successfully overcome a DUI conviction.  Make sure that you find out what you need to accomplish, avoid driving while your license is suspended, and take the steps necessary once your driving privileges are restored.

How to Know When to Strike a Plea Bargain and When to Go to Trial

Deciding what to do when you are facing a criminal charge can be challenging, but taking a step back to analyze your case will help you decide the best course of action for you.  Since each case is different, there are many facts and factors play into a decision this important, but this article will help you think them through.   

  • Do you need to decide yet?

If you were just arrested, you do not need to decide immediately whether to enter a plea or go to trial.  You will have the opportunity to attend hearings prior to trial.  If you qualify, you can request that an attorney be appointed for you.  If you want to hire a private attorney, you will have time to follow through with that.  It is possible obtain a continuance to have additional pre-trial hearings if there is an appropriate reason.  The bottom line is that you shouldn’t feel pressured to decide your case strategy right up front.

  • What are your odds of winning at trial?

You need to look at your odds of winning at trial to decide whether to risk it.  Is there a witness that may recant or may not be available?  Is there a credibility issue that a jury is likely to believe or disbelieve witnesses at trial?  How much technology was involved in creating the evidence against you?  Is a common person likely to find the evidence reliable?  Is the evidence extremely strong, or is there room for doubt?

  • Is the plea bargain really to your advantage?

Remember that the prosecutor is your adversary in this situation.  Look carefully at the deal that is presented.  Is it really valuable to you?  For example, a typical offer the prosecutor may make to every defendant with a DUI charge is that the traffic violation will be dismissed with prejudice.  Is this really a benefit to you?  Can you get more out of a bargain if you wait?

  • What are the policies at play?

A prosecutor is likely under the direction of his or her supervisor, and it is helpful to have the advice of an attorney who knows the prosecutor or the office politics.  Is the prosecutor reluctant or eager to go to trial?  This could determine whether the plea offer gets better or worse as you go along.  Are there restrictions to the prosecutor’s ability to offer you a plea?

  • What sentence is likely under either scenario?

When you are considering a plea vs. trial, you need to know what punishments are likely with each choice.  Make sure you find out all aspects of the prosecutor’s plea.  Don’t just focus on the amount of jail time that will be involved, but also find out what counseling, probation and fines will be included.  Is there a significant difference between the sentence likely under the plea bargain and the sentence likely if you lose for trial?

These are just a few of the many factors that need to be weighed when choosing between a plea bargain and a trial.  Consulting with an experienced criminal defense attorney will typically be helpful to you in making the choice because they can assist in determining the strength of the evidence against you, the extent of advantage the plea bargain really is to you, and the various possibilities for sentencing of the charge if a plea is entered vs. a trial.   

3 Ways You Know You Need to Find a New Lawyer

Did you hire an attorney to represent you, and now you are having second thoughts?  Are you wondering how to know if you hired the wrong person?  Here are things to look for when deciding whether you should break ties and find someone new to represent you.  Before you switch attorneys, however, you should always inquire into the retainer and billing and how that change may impact the cost of your case.

1. You Are Not A Priority to This Attorney.  We all know that attorneys have a roster of clients, but every case should be handled with diligence and care.  Take a look at how serious the problem is.  If your attorney is missing hearings or deadlines, then you probably need someone new.  If he or she is consistently late to court, then that is something also to look at.  If your calls or emails are not being returned, then your attorney is not fulfilling their responsibility to communicate with you.  If your attorney talks down to you or pressures you to make a decision you aren’t comfortable with, then those are also signs that you and your attorney may not be a good team.  

2. Your Attorney Doesn’t Know What He or She Is Doing. Even if you were referred to your attorney by a friend or if they are an acquaintance, the relationship is a business one. You have to look out for yourself and make sure that you are being represented by someone who is competent to represent you in this type of case.  Signs to look for:

  • Does your attorney seem to know the system?

Can he or she give you an overview of each step or hearing in your case and what will take place?

  • Does your attorney appear confident?  

Trust your instincts about the level of confidence your attorney displays.   Confidence doesn’t equal competence, but it is one indicator of whether this is your attorney’s first case of this type or 10000th.

  • Does your attorney answer questions?

If your attorney is knowledgeable, he or she will not shy away from questions, but rather, encourage you to ask about anything you don’t know or understand.

Does your attorney know the people?  

Does your attorney seem familiar with other attorneys, court staff, counselors, etc. Professional affiliations are another clue to experience.

3. You can’t Afford Your Attorney. This is a tricky one because the value you get from an attorney is difficult to quantify.  Any attorney is going to be a strain on your budget because divorce, adoption, criminal defense, and so forth are expenses that are unusual and will seem high.  So, the financial discomfort of any attorney is a given and you want someone who is good, which doesn’t come free.  However, some attorneys are better salesmen than lawyers.  Some bill for things that may not be necessary.  Here are some things to look for when deciding if the cost is prohibitive:

  • Are you comfortable with the billing approach?  Would you prefer a flat fee for your case?  Do you prefer hourly?
  • Do you understand the fees and do you understand how to maximize your value? For example, if your attorney bills you a flat fee for every email they read from you, then you may want to consolidate all questions into a short email.  As another example, is your attorney “chatty” such that a phone call will cost you a lot more than email exchanges or is your attorney a bit of a slow writer, such that a call will resolve issues faster than email.  
  • At the end of the day, do you feel like you are getting the full value out of your representation?

Your decision on legal representation should not be taken lightly, as the outcome of your case will impact your life for years to come.  There is no easy answer to whether you should make a change, but the factors to be considered certainly include whether your counsel is giving you the attention you deserve, whether they are competent to represent you in this type of case, and whether you will be able to pay the bill when it’s all said and done.

5 Telltale Signs You Need A New Lawyer

A great attorney can make all the difference in your case, but a bad one can ruin you.   If you keep your eyes peeled to your attorney’s behavior and work, you will know quickly whether you have found someone amazing to represent you or whether you are stuck with a lemon of an attorney.  Watch for these 5 telltale signs, and if you see any of these exhibited, you’ll know you need to find a new attorney.   

  1. Misses Hearings or Is Tardy.  If your attorney is late for court appearances or misses them altogether, his or her behavior is not only unprofessional, but could likely impact your case.  One of your attorney’s main responsibilities is to calendar the dates, keep track of deadlines, file documents on time, and be in court punctually to represent you.  Failure on your attorney’s part to follow through may be grounds for a Bar Complaint, but at the very least, you should look for someone more dependable.
  2. Treats You With Disrespect.  Your attorney will hopefully be very knowledgeable and experiences, and you should give him or her your respect.  However, your counsel should also treat you with courtesy and professionalism.  If your attorney ever calls you names, dismisses your input, or makes you feel badly about yourself, you should look into hiring someone new.
  3. Offends the Judge or Court Staff.  If you notice that the judge or the judge’s staff is bristling at your attorney’s demeanor or if it is obvious that the judge just doesn’t like your attorney, you may want to find someone with better people skills. The judge’s perspective on your attorney may influence his or her decision on your case.  You may think that the way your attorney treats the staff is not important, but often the staff will tattle to the judge behind closed doors if your attorney acts out of line with them.  You want an attorney who is aggressive enough to go to bat for you, but not one who burns bridges with those who decide your fate.
  4. Ignores Your Phone Calls or Fails to Answer Emails.  A common complaint among clients is that that their attorney either fails to respond via phone or writing to their inquiries.  If you have questions that are going unanswered or important communications that your attorney is ignoring, you may want to look elsewhere.  Failure to give you attention can be for many reasons, from too large a client load to just general disinterest.  Whatever the reason, the result is that the proper communication channels have broken down, which gives you grounds to find someone who is a more effective communicator.
  5. Is Out of His/Her League.  Some cases require more sophistication than others.  A felony is often more difficult to defend than a misdemeanor.  Some divorce cases are more complex or involve more assets than others.  If your attorney tells you he or she is not experienced enough or does not have time for a case of your complexity, then you should find someone with the requisite experience.  If you can see from your counsel’s representation of you that he or she is really in too deep of water, you should find someone else.  Your liberty, money, assets, children, or whatever the case is about is your first priority, and you should not be concerned with firing an attorney who isn’t the best for you and your case.