5 Tips for Winning a Divorce Mediation in California

The American Bar Association published an article with tips for a successful mediation, with content inspired by the best-selling book, “Getting to Yes.”  This article will summarize these mediation best practices, and the full story can be found here: 

  • Separate the person from the problem.

Both parties almost always have anger, resentment, and distrust of their ex, but for the purpose of negotiation those negative emotions – while often very justified—are not productive to getting what you want out of the negotiation.  Your ex’s personality is not going to change in the divorce.  However, if you can identify specific problems to be solved, then those may be negotiable.  

  • Develop options for mutual gain. 

The more options that are presented, the more likely it is that both parties can find an option that is palatable to everyone.  Look for options that are win-win for both people so that instead of a combat position, you are taking a problem-solving tact.  

  • Focus on interests, not positions. 

With a position approach, you have a winner and a loser.  With an interest-centered approach, you try to understand the interests of the other party and the goal is to achieve solutions not winners and losers.  When you take time to really listen to what makes the other side tick, then you will understand how to properly incentivize the behavior you want to achieve. 

  • Find objective material to lead to common understanding

Both parties can respond to objective material.  For example, if two parties value property or assets differently and neither will budge, then an assessor could be hired to provide data or internet research could be done to get objective information.  

  •   Focus on the best alternative to a focused agreement “BATNA.”

If you are trying to get everything you want in a negotiation, you are likely to fail.  If you identify what you really need and prioritize, then you are more likely to achieve those realistic goals through settlement. 

Consult with the Law Office of David Knecht

At the Law Office of David Knecht we have extensive experience with family law in California and can help you successfully negotiate a California divorce.  Contact us at 707-451-4502 for more information.  

 

5 Divorce “Don’ts” for a California Divorce

If you are considering divorce, you may have reached out to friends or family to get their advice.  Many people may have shared with you the do’s and don’ts to help you navigate the divorce process effectively.  This article will add to the advice, with a cautionary list of things not to do. 

 

  • Don’t necessarily keep the house.

 

A home can have a lot of sentimental value, but when evaluating it in the divorce, you need to look at it as simply an asset or a liability.  Determine whether you have sufficient resources not just for the mortgage and utilities but for any maintenance. Consider whether it meets your needs now. Evaluate with logic not emotion.

 

  • Don’t ignore potential tax consequences or retirement accounts. 

 

Make sure you understand how your taxes will be impacted going forward and how any deductions or stimulus for the children will factor in.  Talk to an accountant or lawyer to plan taxes ahead of time so that you aren’t caught by surprise. Additionally, make a plan for splitting the retirement so that you aren’t left without those resources later on.

 

  • Don’t forget about health insurance. 

 

If you or your children have been covered by your ex’s policy, you need to determine how health insurance will work going forward. 

 

  • Don’t spend lavishly out of spite. 

 

You may be receiving support pending the divorce, but generally you should spend money the same way that you did during the marriage.  Spending lavishly out of spite could interfere with the asset division.

  •  Don’t roll over all of an ex’s retirement account into an IRA if you need some of the money for divorce expenses.

 

If your divorce settlement allocates assets under a qualified domestic relations order (QDRO), then any withdrawal a QDRO alternate payee takes from a 401(k) or 403(b) is exempt from the 10% early withdrawal penalty—even if you’re under age 59½. The bottom line is if you think you’ll need money now, you might want to make a withdrawl before the rollover. But, do this with caution, because you will owe income tax on the amounts withdrawn.

Consult with Experienced Divorce Attorneys at the Law Office of David Knecht

At the Law Office of David Knecht we have extensive experience with family law in California and can help you successfully negotiate a California divorce.  Contact us at 707-451-4502 for more information.  

 

What is a Holographic Will and are Holographic Wills Legal in California?

This article will explain some basic principles relating to holographic wills in California.  What is a holographic will?

The definition of a holographic will found at is a holographic will is a will that is handwritten, dated and signed by the person writing the will.  See https://www.courts.ca.gov/documents/Common_Words_Probate_Cases.pdf

Where can I find the law relating to holographic wills in California?

 

CA Prob Code § 6111 (2017) contains the black letter law relating to holographic wills.  It can be found here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6111.&lawCode=PROB#:~:text=%29%206111.%20%28a%29%20A%20will%20that%20does%20not,as%20to%20the%20date%20of%20its%20execution%20and%3A

What does Section 6111 say?

(a) A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator.

(b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

(c) Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will.

What kind of attorney can help me with a loved one’s holographic will?

 

An attorney who has experience in estate planning law can help you with the probate process and understanding whether a holographic will is enforceable.

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience with estate planning in California and can answer your questions relating to a holographic will.

 

Can I Get More Money if My Spouse Cheated?

A commonly asked question in divorce is whether cheating can be used as leverage for the other spouse to get more money or custody in a divorce.  Cheating is typically defined as a physical relationship with a person who is not in the marriage.  This article will discuss the legal consequences of cheating and explain why it is almost always irrelevant to financial or custody issues in a divorce.  

  1. Cheating is not one of the grounds for divorce in California. 
  • There are two grounds for divorce in California:  irreconcilable differences and permanent legal incapacity.  You don’t need to prove cheating to get a California divorce because irreconcilable differences covers all problems or differences that make one person in the divorce want to leave the marriage.

 

  • Typically cheating will not result in greater alimony for the other spouse. 

 

California does not consider marital fault when determining alimony payments, so cheating typically does not factor into alimony.

 

  • What are the factors a judge would consider in awarding alimony?

 

California has a list of the factors that a judge should consider when making a spousal support/alimony determination.  This statute can be accessed in its entirety here: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=4320.&lawCode=FAM

(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:

(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.

(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.

(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.

(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.

(d) The needs of each party based on the standard of living established during the marriage.

(e) The obligations and assets, including the separate property, of each party.

(f) The duration of the marriage.

(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.

(h) The age and health of the parties.

(i) All documented evidence of any history of domestic violence, 

(j) The immediate and specific tax consequences to each party.

(k) The balance of the hardships to each party.

(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.

(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.

(n) Any other factors the court determines are just and equitable.

CONTACT AN EXPERIENCED DIVORCE ATTORNEY

An experienced attorney can help make the divorce process easier for you and help you make important decisions.  At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California.  Call us today!

 

The Secure Act and Estate Planning in California

The SECURE ACT (Setting Every Community Up for Retirement Enhancement ACT) is legislation designed to adapt to the changing needs of the US retirement system.  People are generally living longer, more people are working contract or freelance jobs, and the nature of work is changing.  This article will highlight some of the key points of this ACT, some of which may impact your California estate planning objectives.  For information from a financial planning point of view, see this article from Forbes:  https://www.forbes.com/sites/davidkudla/2020/01/10/four-major-highlights-of-the-secure-act/?sh=32dd845476b1

  1. Inherited Retirement Account.  

Previously, the rules allowed a nonspouse-IRA beneficiary to “stretch” required minimum distributions from an inherited account over their own lifetime.  The advantage of this old rule was that the funds could  grow for years tax-free.  The SECURE Act changes this old rule and now upon the death of the account owner, distributions to non-spouse individual beneficiaries must be made within 10 years.  

  1. No Age Restriction for Contributions to Traditional IRA’s.  

Previously, individuals had to be under the age of 70 ½ to contribute to a traditional IRA.  Now, there are no age restrictions.  This greatly expands the number of people who may be eligible to contribute.  However, on caveat is that the individual still has to have eligible compensation which includes wages, salaries, tips, professional fees, bonuses and other income generating streams received from working.  Commission, self-employment income, nontaxable combat pay, and military differential pay are also eligible compensation.  Certain stipend, fellowship and similar payments to graduate students and difficulty-of-care payments to caregivers can also be considered income for the IRA contribution purposes.   

 

  • Required Minimum Distributions Start at Age 72, not 70 ½.  

 

Prior to the SECURE Act, an individual was required to withdraw money from traditional IRA’s and employer tax deferred accounts such as 401 (k)’s at age 70 ½.  The new rule allows individuals to wait until age 72 to withdraw money, thus allowing the funds a little longer to grow.

Consult with the Law Office of David Knecht

If you are interested in learning more about how the SECURE Act changes can impact your estate plan, contact the Law Office of David Knecht, at 707-451-4502. We are an

Can I Force My Ex to Sell the House in California?

The question of whether you can force your spouse to sell the home in a divorce seems like a simple one, but the answer can sometimes involve complex analysis.  It is an issue that often arises because the home is one of the largest investments many married couples make. 

This article will provide some helpful background information to assist you in understanding potential issues, but we recommend seeking legal guidance on your specific situation, given the complexity of the issues and the significant value the home for many families.   

  1. California Family Code §2550.  California Family Code §2550 governs the division of property in a California Divorce.  The full text can be found here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550.
  2. How does this law apply in practice?  This law provides that family court judges must divide the community estate equally, but this doesn’t speak to one specific asset, such as the house.  It refers to the whole of the community property estate, which will include other assets, such as money in the bank, vehicles, etc., and also debts, such as credit card debt, student loans, etc. 
  3.  What is the bottom line?  When Section 2550 applies the home, the bottom line is that one party may be awarded the home, but only when there is equality in the totality of the division of assets such that the other party’s right to reimbursement or an equalization payment is honored.  It is also true that a judge can order the sale of the home as per the authority provided by this law.   
    • What is partition and how is it used in a divorce to force the sale of the home
  4. Where is the law governing partition?  You can find California Code, Code of Civil Procedure §872.210 here: https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-872-210.html
  5.  Can Partition be Used in Divorce?  No, unless there are special circumstances involved, a partition action is specifically excluded for divorce proceedings:  “an action between spouses or putative spouses for partition of their community or quasi-community property or their quasi-marital interest in property may not be commenced or maintained under this title.”

Consult with the Law Office of David Knecht

If you have questions about how your home will be divided in a divorce or any other family law question,  please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and can be a knowledgeable advocate for you.  

 

Probate Guardianship Frequently Asked Questions

Are you facing an incurable illness and wondering what will happen to your children?  Have you decided on a friend of family member to appoint as the guardian for your precious children, but you are confused as to the process?  If these questions are at the forefront of your mind, please contact the Law Office of David Knecht.  We have answers.  If you are in the process of educating yourself on the basics, here is an overview of some of the frequently asked questions about probate guardianship with information derived from the following: https://www.courts.ca.gov/1215.htm?rdeLocaleAttr=en.  

What is Guardianship?

Guardianship is a court process where a person who isn’t the child’s parent is given custody over the child (authority and responsibility to care for the child) or custody over the the child’s property. 

Who can be a Guardian?

The range is wide of parties who could qualify to be a guardian, from relatives to friends to interested parties. 

Can I name a Guardian for my children in my will?

Yes, you can name a guardian for your children.  You can write a letter naming a guardian or include it in your will.  If both parents are dead, the court will decide who the guardian is, but the court will take into consideration your recommendation.

Can I ask for a Guardian for my children if I am dying?

Yes, if you have an incurable illness and legal custody of the child, you can ask the court to appoint a join guardian, which can make the transition easier when you pass away.  This can give peace of mind to a parent who is facing an early death.  If the court approves the joint guardianship, both of you will act as parents when you are alive and then the joint guardian will have full custody of the child without another guardianship hearing. 

Can a child ask for a Guardian?

Yes, if a child is 12 years old or older, he or she can ask the court for a Guardian. 

Where can I go for answers about Guardianship?

If you have questions about Guardianship, the attorneys at the Law Office of David Knecht, have extensive experience in all aspects of family law and estate planning and can answer your questions.  Contact us at 707-451-4502 for more information.  

What to Do About the Mortgage When Getting a Divorce in California

For many families, their house is the most valuable asset, so the question of what happens to the house is extremely important.  The answer can depend on many factors, so this article will give an overview of some of the possibilities and considerations.  If you’d like to understand how the law will impact your specific circumstances, contact  us at the Law Office of David W. Knecht for a consultation.  We have extensive experience in family law and can help you understand how the factors discussed in this article will apply to you, your property and your family. 

  • Determine whether the home is separate or community property.
  • Home purchased prior to marriage, generally separate.  If the home was purchased prior to the marriage by one spouse and no community assets were used to make payments on the home, then it would typically be separate property. This is a general rule and there may be exceptions which are beyond the scope of this article.   
  • Home purchased during marriage, generally community.  If the home was purchased during the marriage, it is likely community property.  In California, the presumption is that property acquired during the marriage is community property and not separate property.
  • Separate property means one spouse will get it, community property means it is a shared asset. If the house is separate property, the owner will get the house.  If the house is community property, the house can be divided between the couple by agreement or court order.   See https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM&sectionNum=2550 and https://codes.findlaw.com/ca/family-code/fam-sect-2581.html

which state that the presumption is that community property is divided equally. 

  • Sell and divide profits.

The most obvious option is to sell the house and divide the profits between the spouses.  This is clean and is often perceived by the parties as equal.  This is a good option when neither spouse can afford the house alone. 

  • Buy out.  

A buy out option is where one spouse pays the other their share of the value of the home and keeps the home.  This can be advantageous if the home if financed with a favorable interest rate, or if the home has special value in terms of sentimental value or location or design that can’t be duplicated by an alternative house. The spouse considering a buy out should weigh various factors such as the mortgage payments, interest, utilities, insurance and maintenance costs. There can be important tax implications to this decision.  For example, if by court order or agreement one spouse pays the mortgage as a form of spousal support, then the spouse paying the mortgage can claim a tax deduction for support payments, and the spouse receiving would need to claim the payments as support income.  Consulting a tax professional or your attorney on the tax consequences of the division of the house is a important step in the divorce process. 

  • Deferred Sale

A court can enter a deferred sale order to benefit their minor children as a way of lessening the impact on the children.  With a deferred sale order, one spouse and the children stay in the home but both own the home jointly for a certain length of time.   (See https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3800.&lawCode=FAM)

There are many important considerations when contemplating a divorce, and the division of the home is one of the most vital aspects to plan out in advance.  If you are interested in more information about how your home would be divided in a divorce, please contact the Law Office of David W. Knecht, at 707-451-4502.

Getting a Divorce? Here Are The Basics

Today’s article will be a question and answer about divorce basics in California with source material derived from:  https://www.courts.ca.gov/1032.htm

  • Is divorce the only way to end a marriage in California?

No, divorce is the most common way to end the marriage, but annulment and legal separation should not be forgotten.  Legal separation may be the preferred in certain situations, for example, if a party can retain health insurance through the other spouse and continue empl9yer contributions.  In that instance, if neither party was eager for the divorce to be final or to remarry, then legal separation for a time may be more advantageous than divorce. 

  • Is California a no fault state? 

Yes, California is a no fault state.  You do not have to prove a basis for a divorce and can obtain it solely on the basis of irreconcilable differences, which basically means you just don’t get along with each other. 

  • Is it better to be the one that files first?

The party that files is not important from a judicial perspective.  The court doesn’t give any preference to the person who is first to file.  However, taking the initiative to get the case started may be an advantage or a disadvantage for your strategy in your specific case.  That depends on your personal circumstances and objectives.  

  • Can a divorce impact my immigration status? 

A divorce may impact your immigration status, so it is important to get information on your circumstances as soon as possible.  

  • Can a divorce affect my health insurance? 

Yes, if your health insurance is covered under your spouse’s plan, then it’s important to consider your health insurance options before finalizing a divorce.  There are different options for protecting your health coverage, and you’ll want to negotiate the best option for you. 

  • Will a divorce limit relocation plans?

If you will be sharing custody of children, then divorce can affect relocation plans, so this is a vital consideration in the process if you are planning a significant move.  

  • Where can I get help with a divorce to make sure I think through all the important concerns?

If you need help with a divorce, please contact the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law and have the knowledge and expertise to answer your questions. 

Negotiating a House Buy Out in a Divorce in California

Protecting your assets is one of the most important considerations when getting a divorce, and the home is typically the most valuable asset for most families.  A buyout is when one spouse wants to keep the house and decides to pay the other spouse for their interest.  A buyout might be preferable to one spouse for many reasons:  keeping continuity for the children, if the house is sentimental, to avoid the cost of moving, to avoid paying taxes on a sale of the home, if the house is financed with a good interest rate, etc.  This article will discuss the steps to work through to make a good buy out offer. 

  • Determine who owns the home. 

California courts presume that a home acquired during the marriage is community property, meaning that the home needs to be divided 50/50.  However, the analysis of whether the home is community or separate property can be more complicated than that, for example, if the home was purchased prior to the marriage or if the home was inherited by one spouse.  Although a detailed analysis of these rules is beyond the scope of this article, the first step in the buy out process is to determine whether the home is, in fact, community property.   See https://codes.findlaw.com/ca/family-code/fam-sect-2581.html for the presumption that the home is community property. 

  • Determine the value of the home. 

There are many ways to determine the value of the home.  The most thorough may be to obtain one or more assessments from a licensed property assessor.  The process involved generally includes looking at comparable homes in the area, which are properties with similar square footage, condition and year in the same neighborhood.  However, if the expense of a formal assessment is cost prohibitive, you can also obtain a comparative market analysis from a realtor.  A comparative market analysis (CMA) is an estimate based on recently sold, similar properties in the immediate area.  If you don’t want to pay a professional, you can also do your own research on homes through Zillow or Redfin. 

  • Consider the financing. 

Your buyout offer may require a refinance of the mortgage.  It is often helpful to talk to a lender and find out the rates and cost of the refinance before approaching your ex-spouse with a buyout offer.  This way you have your “ducks in a row” before beginning a negotiation process. 

  • Don’t forget the paperwork. 

Property is transferred through paperwork called a deed.  A commonly used document is a quitclaim deed.  A quitclaim deed transfers whatever interest the grantor has to the other person.  This means that if there are liens or other encumbrances on the property, then those will also be transferred in the quitclaim deed.  This deed will remove the spouse transferring their interest from the title. 

If you need help with a divorce and in particular if you’d like an advocate in the home buyout process, please contact the Law Office of David Knecht, at 707-451-4502.  We have extensive experience in family law.