Divorce Mediation Tips

Many divorce cases are settled at the mediation phase.  This article will provide suggested tips to help you prepare for a successful mediation.

  1. Know the state of your finances.

Prior to attending the mediation you would be well advised to thoroughly review and understand the financial situation you had during the marriage and to predict your financial needs after the divorce if final.  This step is essential to help you achieve your financial goals for the mediation.

  1. If you have children, think through the best parenting plan for them and you.

Attending the mediation with a bit of an open mind to different parenting plan possibilities is a good idea, but it is also important to know what you believe would be ideal for you and your children.  Give some thought to their schedules, their preferences, their after-school activities, their religious worship preferences (if any), the kids’ relationship with grandparents and other extended family, etc.

  1. Let go of vengeance and think about what you want and need.

There is an old saying that you shouldn’t cut off your nose to spite your face. This applies in negotiations as well.  Some negotiators get caught up in wanting to appear firm, or say no, or generally shut down what the other party wants just for the sake of making that party dissatisfied.  This can be a self-defeating negotiating strategy.  One that is more commonly successful is to approach the problem by thinking of what you want and how to get it, rather than trying to punish the other party by depriving them of what they want.  Remember a win-win is better than a lose-lose.

  1. Consider your chances at trial.

In order to evaluate whether a mediation solution is acceptable, you need to have an idea of what the consequences will be if you don’t agree in mediation.  Talk to your attorney and find out the range of results at trial.  No attorney has a crystal ball, so they can’t tell you what will happen, but they can give you an idea of what the results have been in similar cases.  Understanding the consequences of not settling will help you make a more informed decision about whether the settlement proposed is right for you.

  1. Use your knowledge about your ex-spouse to your advantage.

Nobody knows your ex as well as you do.  If you can think about what will persuade him/her, then you can use that knowledge to your advantage.  Before you go into the mediation, think about the “cards” in your hand, and decide how to play those cards.  Help your attorney understand what your ex’s hot buttons will be. 

A mediation can be many things:  for some, it is a grueling experience, for others it is a short pain on the path to closure and healing.  Regardless of the type of mediation you can expect, preparation and mindfulness in preparing for the mediation will generally improve the outcome.

 

 

DUI: What to Expect When You’re Caught Under the Influence

California has two relevant laws regarding drunk driving. The first law makes it illegal to drive under the influence of alcohol. The second makes it illegal to drive with a blood alcohol concentration at or above 0.08%. Notice the important distinction here?

Driving under the influence of alcohol, as defined in the first law, has nothing to do with any measurement of blood alcohol, but only with an objective assessment of your sobriety. Imagine, for instance, someone particularly susceptible to the effects of alcohol drinks just one drink then proceeds to drive. If they were stopped by the police and the breathalyzer returned a blood alcohol reading of only 0.03%, they could still be charged under this law if something about the person’s driving gave the police probable cause to pull them over to begin with.

Conversely, under the second law, the impairment or otherwise of the person’s actual driving ability by the effects of alcohol are irrelevant to the reading itself. Another person might have been driving perfectly well, but was submitted to a breathalyzer test in a sobriety checkpoint, which returned a reading of 0.12%. This person, too, would be charged.

In practice, these two laws function as one. A person can be convicted of both offenses—sections a) and b) of Vehicle Code section 23152—but can only be punished for one, and the punishments are the same.

At the time of the incident, however, when a person has been detained under suspicion of drunk driving, there will be certain procedures that you can expect the police to follow.

Your encounter with the police will most likely begin with some questions. You should remember that you are not obliged to answer any questions that may incriminate you. This is your Fifth Amendment right. And while you will be (or should be) advised of this in the Miranda warning, it still applies at all times.

The same applies to field sobriety tests where the officer will instruct you to attempt physical tasks, such as walking in a straight line and so forth. Your participation in these tests is voluntary. The detaining officer should, but frequently will not, advise you of that fact.

At this point you should be given your choice of submitting either a breath test or a blood test. You can refuse this, too, but by carrying a drivers’ license, you gave your implied consent to giving a chemical test when required—meaning you can be tested by force.

The most important thing is to be aware of your rights at all times. When you are placed under arrest, do not say anything until you have your lawyer present. Visit our website at http://www.davidknechtlaw.com/ to find out why your first call should be to David Knecht.

Prenuptial Agreements in California Part 2:  Waivers of Spousal Support

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article is Part 2 and focuses on the rules relating to alimony, also known as spousal support.

Do we need to involve attorneys?

Yes, if you want it to be enforceable later.  The rule is that the person against whom enforcement of the spousal support provision is sought must have been represented by independent counsel at the time the agreement containing the provision was signed.

Can we put in any terms we want as long as we agree, and attorneys are involved?

No, when it comes to spousal support, the court will not enforce a provision that is unconscionable even if the person who agreed to that unconscionable provision was represented by independent counsel.   

Is there a waiting period?

Yes, the party waiving spousal support needs to have seven days between the prenup is presented and signed and be advised to seek independent counsel.

How does a court decide what is unconscionable?

The court will look at the assets and earning power of each spouse and may determine that a waiver of spousal support is unconscionable if one spouse has significantly less than the other. Also, if the court determines that it would be unfair to enforce the waiver based on what the person would have received in spousal support if the prenup hadn’t been signed.

What other factors will be considered to invalidate the prenup?

The prenup cannot have been executed under duress, fraud or undue influence.

What are some other things to watch out for?

It is important for the spouse waiving the support to have actual or constructive knowledge of the assets and obligations of the other party or to voluntarily waive such knowledge.  Because of this, if the parties want an enforceable prenup, both need to be full and accurate in their disclosure of assets and debts and should not attempt to lie or trick the other person

If you are looking for a local, Dixon attorney to assist with a divorce or family case, please give us a call.

 

Prenuptial Agreements in California Part 1:  Cans/Cant’s

Prenuptial agreements or premarital agreements in California are governed by California’s Uniform Premarital Agreement Act.  This an agreement made by a couple prior to marriage that will automatically be effective upon marriage. This article will examine what can be accomplished and what is unenforceable in a premarital agreement.

 

Can I punish my spouse financially if he/she cheats?

 

Some couples may want to include a financial punishment for the other spouse who cheats, and this is commonly referred to as an infidelity clause.  California is a no-fault divorce state, so “fault” such as infidelity will not be a relevant consideration to a California court. As such, California courts will not enforce a financial punishment against a spouse for cheating.  

 

Can we negotiate child support or child custody in the prenup?

 

No, a court is going to look at the best interest of the child standard for child support and custody, and visitation rights so a premarital agreement will not be binding with respect to those issues.  

 

What are some topics where a prenup can be helpful?

 

  • Each spouse’s rights to property.  
  • The right to manage or control property, such as buying, selling, using, etc.
  • What is going to happen to property in the event of death, divorce, etc.
  • Spousal support in the event of divorce (special rules apply)

 

Is there an alternative to a prenup?

An irrevocable trust is an estate planning mechanism that can be used to protect property.  A revocable trust permits the grantor to place the assets under the control of a trustee, then who administers the assets for the benefit of beneficiaries named by the grantor.

Unfortunately, an irrevocable trust has a number of disadvantages, so it may not be the right mechanism for you.  The grantor loses ownership of the trust property, so you generally won’t be allowed to change your mind and take the property back.  Additionally, there are taxation issues involved with an irrevocable trust that may not be advantageous. Consult with a Vallejo attorney to see whether an irrevocable trust is right for you.

 

How is a prenup changed?

After marriage, a premarital agreement can be changed only by a written agreement signed by both the parties, so consider carefully the terms you are including.

 

 

3 Important Tips on How to Divide Your Assets in Divorce

Your attorney can help you with a plan for dividing property and debt, but here are three important steps to help you on the path to a successful division of assets and debts:

  1. Write down all property and all debts.

Making a list is the first step of dividing everything fairly. Here’s a list to get you started thinking through your own finances:

  • Real property – your home, land, investment properties
  • Other property – Furniture, jewelry, cash, technology, automobiles, recreational vehicles
  • Wage earnings
  • Investments – stocks in an individual account, Roth IRA, 401K
  • Health Saving Accounts
  • Pensions
  • Mortgage
  • Student Loans
  • Credit Card Debt
  • Automobile Loan
  • Loans from family members
  1. Label each as community property or separate property
  • Community property – assets, income, or debts earned or acquired during the marriage.
  • Separate property – property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.
  • Common question: What do we do with an asset that can’t be divided physically? For example, do we have to sell the house in order to divide the money?  The answer is that each spouse has to get assets equivalent in value, so in lieu of selling the house, one spouse may keep the house and the other would get the value of half of that asset.
  1. Place a value on each asset and debt.

In preparing for a divorce, it may be helpful to see if you and your spouse have the same estimation of the value of assets and debts or if there is a large disparity. For your list, make an estimate of the value of each item.

  • Be aware that some items may have more value than you realize. For example, a pension plan can be very valuable and special rules apply to pension plans. In this situation, consulting with an attorney on the value and division of the pension plan can be important.

Top DUI Defenses

After you’ve been arrested for DUI, you may think that you don’t have any credibility and that defenses are unlikely to succeed.  You shouldn’t give up without consulting with an attorney. There are ways to show that the officer’s testimony is not accurate, or that the tests don’t show what they are meant to show, or that the evidence is not beyond reasonable doubt. The opportunities for defense are endless, but this article will walk you through a few of the many to get you prepared to discuss possibilities for your case with your attorney.

  1. Attack the Assumptions Based on Appearance. The officer may point to your red eyes, flushed face, or the odor of alcohol on you. Are there reasonable explanations for these symptoms that would cast doubt on the officer’s conclusions? Do you have allergies that would cause red eyes.  Had you been in a situation such as a hot car or warm social gathering that could account for your flushed face? Did you mention to the officer that you had a problem that could have accounted for any of the physical symptoms?
  1. Bad Driving Doesn’t Equal DUI. An officer will be quick to point out a driving pattern. Perhaps you were weaving in your lane. Perhaps you were speeding or even driving too slowly. You attorney can show that a bad driving pattern doesn’t equal DUI by questioning the officer about his conclusions.  Do people who are not under the influence speed or weave? Try to get the officer to admit that driving pattern is not conclusive evidence of DUI.
  1. Undermine the Field Sobriety Tests. The assumption that the field sobriety tests accurately measure impairment is based on 1) the officer administering the tests correctly, 2) proper testing conditions, and 3) the absence of innocent conditions that could impact the result. These assumptions provide extensive opportunities to dig in and undermine the tests. 
  1. The BAC. The measurement of results on the breath test can seem insurmountable, but even these too can be disputed.  Did you have anything in your mouth at the time of testing that might have impacted the results? Was the equipment functioning? Was the test given close in time to when you were driving? Did the officer observe you for the required amount of time before administering the test?  There are so many avenues here to break down the results of the BAC.
  1. Medical Conditions. Do you have a medication condition that may have impacted your case at any step of the way?  Could it have impacted your results on physical tests or on the breath or blood test?  Medical conditions are highly specific and personal, but they can be a powerful tool for showing that your performance on any of the testing did not lead to an accurate result.

This is just a taste of the multitude of defenses that you have at your fingertips for a DUI case. Consult an experienced attorney with a criminal background to find out how you can win a DUI case.

 

 

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.

 

5 Secrets to Dealing with Cops

Many people find interactions with the police to be very frustrating and risky.  This article will share five secrets from turning a negative encounter into a safer experience that will lay the foundation for your defense in the future.

  1. Keep calm and be confident but not argumentative.

The police officer will be assessing your attitude and demeanor from the moment he interacts with you, so you need to watch what you say and do and what your body language communicates. You want to exude a positive and calm presence, without anger or frustration.  This will send a message that you are not dangerous.

  1. Don’t debate with the officer, but avoid admitting to allegations.

Know that the officer will write down everything you say, so don’t admit to wrongful conduct if it’s not true.  At the same time, you do not want to get into a heated debate with the officer.  Express yourself politely.  For example, if an officer asks you if you know you were speeding, you could respond with “No, I did not know that,” or you could say, “Thank you for letting me know why you pulled me over, but I did not believe I was speeding.”  You have a right to remain silent, and it is often the best course of action to avoid talking as much as possible.

  1. Never run or fight.

Never run from a police officer. This will only get you into more trouble. Never lay hands on an officer or resist arrest.  These actions escalate the situation, so for your own safety you should comply with officer’s orders.

  1. Ask questions.

Often a very polite question can lay the foundation for your case later on.  A simple question to the officer can help you later:

  • When you feel detained:
    • “I don’t want any trouble, but I just wanted to clarify whether I’m free to go now.”
  • When they want to search you or your vehicle:
    • “Officer, are you asking for my consent to search? If so, I’m sorry but I can’t consent.”
  • When they are requesting to search your home.
    • “Officer, do you mind showing me a warrant? I’m sorry, but I can’t consent to a search of my home without one.”
  1. Don’t be afraid to ask for an attorney.

You have a right to an attorney, and don’t be afraid to exercise that right. Your request may not change the officer’s actions, but the very fact that you requested and attorney may help your attorney fight your case.

 

Typical Legal Procedure for a DUI Case

                  If you have a loved one who is facing DUI charges, or if you yourself are concerned, this article will provide a general overview of the legal procedure for a DUI case from start to finish.

  1. The Driver Comes in Contact with Police. A DUI case begins when you come in contact with the police.  This typically happens because of a traffic- related incident, such as a traffic violation (speeding or weaving) or a traffic accident.
  1. The Police Notice Indications or Alcohol or Drugs. The police officer may notice a scent of alcohol in your breath or physical symptoms such as slurred speech, bloodshot eyes, etc.
  1. Tests Are Performed by Police. The next step is where the police officer builds the case against you by collecting data through field sobriety tests or chemical tests, such as a breath test or blood draw.
  1. Booked in Jail/Car Impounded. You will typically be booked in jail and your car will be impounded.
  1. Prosecutor Reviews. The Prosecutor reviews the evidence and decides whether to charge you with an offense or decline to file charges.  If you are charged with DUI, it is likely in your best interest to engage and attorney as soon as possible.
  1. Driver’s Licenses Suspension. After the arrest, your licenses is suspended for 30 days. The DMV will automatically suspend your driver’s license after the 30 days unless you request a DMV hearing within 10 days of your arrest. 
  1. Arraignment. This is your first hearing where you have an opportunity to enter a plea of guilty, not guilty or no context. Entering a not guilty plea is very common at this stage, and you should not feel forced to enter a guilty plea even if you believe you are guilty.
  1. Hearings/Plea Negotiations/Motions. You may likely come back to court several times during the course of your case to negotiate with prosecutor or present a motion. A typical motion is a Motion to Suppress, where you or your attorney argue that certain information cannot be considered as evidence in your case because it was obtained in violation of your Constitutional rights.
  1. Trial/Plea. Eventually the case will either go to trial, where you will be convicted or acquitted, or you will enter a plea, or the prosecutor may in rare instances at some point choose to dismiss the case.
  1. Sentencing. The sentencing phase is where the judge determines the appropriate consequence for your actions.  Often sentencing will involve meeting with a counselor, who will ask questions and prepare a report about you for the judge. The counselor may make recommendations to the judge regarding appropriate education or therapy. At sentencing, the judge may impose jail time, community service, and fines.

 

 

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.