5 Assets Not to Forget in a California Divorce

There are a few categories of assets that are sometimes missed by couples getting a divorce. This article will discuss five important asset classes to remember in a California divorce so that the division of assets is fair, accurate and equitable.  At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

Bitcoin, Ethereum, or other Cryptocurrency or alternative currency. 

With the popularity of investing in cryptocurrency greatly increasing, this is one important asset class to divide in a divorce.  Crypto assets can be missed because they can be traded through Venmo, or various platforms like Coinbase that the other spouse may not be aware of.  The timing on when it is purchased is important, as well as the issue of whether there were any gains made during the marriage.

Stock options. 

 

Stock options that are granted subject to employment can present a challenge when dividing assets in a divorce.  This can occur because the options may not have vested yet or the employment upon which the options were based may have occurred before the marriage as well as during the marriage.  Even though nonvested stock options may have no present market value, you may want to retain an interest in the shares and potential profits.  This area of family law can be very complex, and possibly the best way to position yourself well relating to stock options is to obtain advice from an experienced divorce attorney who can analyze and comment on your specific situation.

Stimulus money. 

 

If you received stimulus money during the course of your marriage, then this is an asset that can be split as part of the divorce settlement.

Pension plans. 

 

Some employers, particularly the state or federal government, still offer pension plans, and if these were earned during the marriage, it’s an important source of income not to forget in a divorce settlement.

Military Benefits. 

A service member’s military pension in an extremely valuable asset and can be divided just like any asset.  It is important to include military pensions and other military benefits in a division of assets.

Conclusion

At the Law Office of David Knecht, at 707-451-4502, we have extensive experience in divorce in California and can help you with complex questions relating to valuation and division of assets in a California divorce.

 

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!

 

5 Ways to Save Money on Your California Divorce

Many people considering divorce are fearful of the cost and how the expense of a divorce may negatively impact their future long-term.  This article will help provide suggestions on how to save money on a California divorce.     

  1. Prepare and Organize Your Information.  If you prepare and organize your information in advance of meeting with your attorney, your meeting with him or her will be more effective.  You can make a list of all your assets and liabilities.  You can do research online to assess the value of your home, vehicles, and other assets.  When you organize this information into a concise summary, you will be better prepared to have an efficient discussion.  
  2.  Give Consideration to Your Priorities, Questions and Concerns.  Many issues in divorce require careful thought and consideration so that you can establish your ideal outcome.  For example, what would be the best custody arrangement for your schedule?  Where would you like to live now and in the future?  What assets are important to you to keep and what do you not mind selling?  Your attorney will certainly be invested in helping you achieve your ideal outcome, but in order to do that he or she will need to work with you to find out what that target is. 
  3. Choose a Support Person.  Decide a support person who can be there for you when you need impartial advice, a shoulder to cry on, or just a listening ear.  This support person will be essential in helping you process the many emotions involved in a divorce.  This will save you money by helping you set reasonable goals, make good decisions, and keep the time you are paying your attorney focused.  
  4. Communicate in Writing When Possible.  One way to save cost in any legal case is to communicate in writing, when it makes sense.  If you need to send your attorney a quick thought or note, an email or text can be quicker and cheaper than a phone call. 
  5. Choose Your Attorney Carefully.  One of the most important ways to save money in a divorce is to hire an attorney who is experienced in family law.  Some people are tempted to hire a friend or family member who is a lawyer with the idea that they may get a better deal going with someone they know.  Unfortunately, when you hire someone who does not have experience, you may be spending more money because they may have to come up to speed on family law issues on your dime.  

Consult with the Law Office of David Knecht

If you want a lawyer who is effective, efficient and experienced, while still being cognizant of cost, please contact the attorneys at the Law Office of David Knecht, at 707-451-4502.  

 

Resources to Help in Divorce in California

Many parents are looking for online resources to help themselves or their children cope with the changes in the family that happen with divorce.  The California Courts in collaboration with other have created a website with information to help parents, kids and teens deal with divorce.  This article will summarize some of the helpful sections, and the full site can be found here:  www.familieschange.ca.gov

 

  •  Dealing with Change.  

 

If you are looking for information about parenting responsibilities, children’s rights and responsibilities, what changes to expect, parenting strategies, keeping the kids out of the conflict or even abuse in the home, this section will provide helpful resources.  Go to www.familieschange.cal. gov/en/parents/dealing-change

 

 

  •  Feelings and Emotions.  

 

This section provides resources to help your children process the gamut of feelings and emotions during and after divorce or separation.  It describes how your children may feel, gives suggestions on how to create an environment that allows children to experience and express emotions, gives guidance on identifying feelings, and suggestions for problem solving and dealing with behavioral changes in children.  Go to www.familieschange.ca.gov/en/parents/feelings-and-emotions

 

 

  •  Telling the Children

 

One of most difficult aspects of divorce or separation can be telling the children about the impending changes.  This is a crucial step that will influence how your children will feel about the situation.  The site recommends planning out the discussion with your ex-spouse so that if possible, you can agree on how to deliver the news, anticipate questions, address concerns, and make the discussion as calm and positive as possible.  This section has detailed information on questions such as how to explain why parents separate, how to keep lines of communication open and how to talk to teachers, coaches and extended family.   Go to www.familieschange.ca.gov/en/parents/telling-children

 

 

  • Child Support

 

Child Support is one of the first things parents should think about when they separate.  It is the amount of money that a court orders a parent or both parents to pay each month to help pay for the support of the child (or children) and their living expenses.  California’s child support law is based on the principle that even though parents may separate or divorce, children are entitled to the financial support of both parents.  This section has information on child support responsibilities, guidance on how to figure out what a parent should expect to pay or receive, information on how to calculate other types of expenses and also additional resources.  

Go to www.familieschange.ca.gov/en/parents/child-support

 

 

  •  Other Resources

 

There are many resources available to help California families through separation and divorce.  Some of these are listed on the Families Change site at www.familieschange.ca.gov/en/parents/resources.

 

 

  • Talk to an Attorney

 

If you want to talk to a knowledgeable and professional attorney about your questions relating to separation, divorce, child support, or any other family law issue, the attorneys at the Law Office of David Knecht, have extensive experience in family law.  Contact us at 707-451-4502 for more information.  

 

California Infant Custody Laws

Are you considering a divorce,  but you are worried about what will happen to your infant?  Although divorce is never easy, you can at least take comfort in the fact that the state’s laws are based on a standard that puts the child first:  the best interest of the child.

What is the best interest of the child?

There are many factors a judge could consider to determine what is in the best interest of the child.  These include the child’s age and health, the emotional ties to each parent and other caretakers, and each parent’s physical and emotional ability to care for the child.  These are just a few of the many factors that can roll up into the best interest of the child analysis.  

What are some factors specific to babies that a court may consider?

If a child’s health, safety and welfare are the most important priorities, then some issues specific to babies will likely be extremely important.  For example, important considerations might be whether your child is breastfed or bottlefed, the safety of the baby’s living environment, and whether both parents are capable of providing for an infant’s needs.  Infants  need much more hands-on care and careful supervision than older children, so those infant-specific needs will be part of the court’s analysis.   Unfortunately, there are no hard and fast rules to allow a prediction of exactly how a judge would rule in a case, but we can predict many of the factors that will likely be considered.

What is the difference between legal infant custody and physical infant custody?

Most people have heard about custody, but there are actually two types of custody:  legal custody and physical custody.  Legal custody is a parent’s authority to participate in decisions about a child’s health, welfare and education.  Physical custody is the child’s physical presence with the parent. 

Is the decision about my child’s custody always in the hands of the judge?

Many parents come to an agreement between themselves about child custody.  Sometimes a mediator is used to facilitate the negotiations.  If the parents can reach an agreement, then the next step is to take that agreement to the judge who will approve it if it is in the best interest of the child.  

Do you need to talk to a lawyer about the custody of your infant?

If you have questions or concerns about the custody of your infant or would like a consultation on any divorce related legal issue, contact the Law Office of David Knecht.  We have extensive experience in all aspects of family law and can answer your questions.  Contact us at 707-451-4502 for more information.  

Do I Have to Pay My Spouse’s Attorney Fees in a California Divorce?

A question that often arises in a divorce is whether one spouse has to pay the other spouse’s attorney’s fees, and like many areas of the law, this legal question does not have an easy yes or no answer.  This article will talk about how the process works in determining whether the wife has to pay the attorney fees or whether the husband has to pay the wife’s attorney fees or whether each party pays their own.  

Family Code 2030

You can read the California Family Code Section 2020 that talks about this question here:  https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=2030.&lawCode=FAM

Each party needs to have equal access to representation

One key part of this law states that the court should ensure that each party has equal access to representation.  To accomplish this goal, the court can order one party to pay the other party or the other’s party’s attorney.  

What does “equal access to representation” mean?

A legal case from 2009, known as Alan S. v  Superior Court of Orange County, helps explain what “equal access to representation” means.  You can read the full opinion here:  https://scholar.google.com/scholar_case?case=9789715232219912999&q=divorce+attorney+fees+alan+s.+&hl=en&as_sdt=6,45

The Alan S. case clarified that a  common misconception is that the purpose of Family Code 2030 is to redistribute money from the greater income party to the lesser income party.  In other words, some people incorrectly believe that this law is in place to make the money “fair” by forcing the richer party to pay the fees of the poorer party.  The Alan S. case clearly explains that equalizing disparate incomes is not the purpose. The purpose is to equalize access to legal representation. 

The idea is that both sides should have the opportunity to retain counsel, not just the one with the greater financial strength.  In fact, the Court in this case was quite clear on that point, and even italicized the take-away message of the case with this explanation: “The whole point of this case, after all, is that each side should have an equal opportunity for legal representation in the upcoming child custody hearing.”

Does the party with greater financial resources always have to pay for the other spouse’s legal fees?

Another common misconception is that the party that is wealthier always has to poay for the other spouse’s legal fees.  That is not the rule, as the decision turns on access to legal representation and not just the difference in incomes between the two parties.  For example, in the Alan S. case, the lower court’s ruling that Alan S. had to pay his wife’s attorney fees was reversed because the court reviewed the  circumstances and concluded that the equal opportunity standard in this instance did not justify an attorney fee award.  

How can you find out whether one spouse will have to pay the other spouse’s attorney’s fees in your divorce?

If you have questions about paying a spouse’s attorney fees, please contact us at the Law Office of David Knecht.  We have extensive experience in all aspects of family law and can answer your questions.  Contact us at 707-451-4502 for more information.  

First Steps in Dealing with the Estate when Someone Dies

When a person passes, the family and friends left behind will often wonder what to do.  This article will provide an overview of how to deal with the estate.  Source: https://www.courts.ca.gov/8865.htm.  It isn’t uncommon for people to feel completely overwhelmed with the task of figuring out the estate when they are already overcome with grief and pain from the passing, so feel free to reach out to the Law Office of David Knecht for a consultation on how we can help you through this difficult time. 

 

  • Find out who will be the estate representative. 

 

The first step is to find out who will be the estate representative.  If there is a will, then the person named as executor in the will is the representative.  If there is no will, there are two possibilities:  Under certain conditions, the estate can pass through simplified procedures informally, and under other conditions, the case has to go through a formal probate court case where the court appoints an administrator. 

 

  • The estate representative should start gathering information and fulfilling duties. 

 

The role of the estate representative is to  are many important steps the estate representative is to take care of the estate and make sure it is distributed correctly.  This can include many steps, a few examples of which are as follows:  Get certified copies of the death certificate, find the will, collect and safeguard assets such as bank account funds, life insurance proceeds, veteran’s benefits, Social Security death and survivor benefit, real property (homes, cabins), collect the mail and any important papers, cancel credit cards and subscriptions, and manage digital assets (like a social media profile), notify the Franchise Tax Board, notify the Social Security Administration if the decedent was receiving monthly social security, prepare the decedent’s final income tax returns.  It’s a challenging task to identify and manage all of the duties involved. 

 

  • Identify the heirs and beneficiaries. 

Identifying the heirs and beneficiaries can be challenging.  It is usually decided by the terms of a will (if there is one), by state law if there is no will or if there is a problem with the will, or by other estate planning documents like beneficiary designations, living trusts or join tenancy arrangements.  There can be problems with a will.  For example, if a will is out of date, and a beneficiary has already died.  Many people find that an attorney can provide assistance in this key step of identifying heirs and beneficiaries. 

 

  • Inventory the property of the person who has died.

Make a list of assets and debts, which includes real property like a home or a farm, and personal which can be tangible property like cars, furniture, etc or intangible property, like stocks and bonds.  Find out how it is owned and the value of the property or debt on the date of death.  Consider whether the property is shared with perhaps a spouse or a business partner. 

 

  • Determine the best transfer process. 

 

When you’ve made your list of all the property, to whom it should be transferred, and what the value of it is, then final step is to determine the procedure for transfer.  There may be simplified procedures available or it may have to be done formally in probate court. 

Conclusion

Death is difficult, and the legal process for handling the estate can be confusing and stressful to deal with on your own. The Law Office of David Knecht, at 707-451-4502, can help you navigate the sometimes complex and confusing steps in settling the estate when someone dies.  Contact us today. 

 

Can You Use Simplified Procedures to Transfer an Estate?

When a loved one passes and you face the task of settling their legal and financial affairs, you may be wondering if you need to go to probate court to obtain title to the property.  The answer to this question can be complex and depends on a variety of factors such as the amount of money involved, the type of property and who is claiming the property.

Did the decedent designate a beneficiary? 

 

If the person who passed (called a decedent), named on or more beneficiaries to receive the asset, then a simplified procedure may be used to transfer the property.  Common examples of this situation would be life insurance proceeds, retirement accounts, pensions, annuities, bank accounts, stock accounts or property in a living trust. 

How was the property owned?

 

Another important factor is looking at the type of title ownership, or in other words, how the property was owned.  For example, was the property owned in a joint tenancy such that the surviving owner gets the entire property?  Was the property community property with the right of survivorship, such that the surviving spouse or partner would likely get the entire asset

Was the property community property?

 

The community property analysis may not be as simple, however.  An example is if the asset appears to community property without an explicit right of survivorship and whether a will designating that the property be divided in other ways.  It’s important in community property situations to ensure that the property was not somehow changed to separate property through agreement or otherwise. 

What type of benefit is involved?

 

Certain types of benefits can usually be collected without probate court.  These include benefits such as social security survivor benefits or benefits as a dependent of a deceased veteran. 

Find Answers to Your Questions

California Courts have publicly available resources explaining the probate process at https://www.courts.ca.gov, but these resources are often insufficient to answer every question.  Contact the Law Office of David Knecht, at 707-451-4502. We have extensive experience and can help make this process easier to navigate. 

 

What is Probate and What Are the Steps?

Probate means that there is a court case that deals with deciding if a will exists or is valid, figuring out who the decedent’s heirs or beneficiaries are, assessing how much the property is worth, taking care o the decedent’s financial responsibilities and transferring the property to the heirs or beneficiaries.  

In a probate case, the executor (if there is a will) of an administrator (if there is no will) is appointed by the court as a personal representative to collect assets, pay the debts and expenses, and then distribute the remainder of the estate to those who have the legal right to inherit.  All this is under the supervision of the court.  The entire case can take between 9 months to 1.5 years, perhaps longer or shorter. 

This article which summarizes information from the California Courts found at https://www.courts.ca.gov/42629.htm,  will give you an overview of the steps you need to take when a case must go through the probate process.  For help navigating the system and answers to your questions, please contact the Law Office of David Knecht, at 707-451-4502. We have extensive experience and can help you fulfill your responsibilities to the estate and to the memory of your loved one. 

  1. Within 30 days of person’s death, take the original will to the probate court clerk’s office and send a copy of the will to the executor or to a person named in the will as a beneficiary if the executor cannot be found. 
  2. The petitioner must start a case by filing a Petition for Probate and any other required forms in the county where the person who died lived (or in the California county where that person owned property if the person lived outside California). 
  3. Certain steps ensue after the case is filed, including a hearing date, notice requirements to various parties, and paperwork review by the examiner or the judge.
  4. The personal representative gathers assets and prepares an inventory and appraisal form.  An appraisal of nonmonetary assets often will also be needed.
  5. Creditors are formally notified and debts are paid.
  6. A final income tax return is prepared for the person who died.
  7. The probate court figures out who gets what property.
  8. The personal representative may be required to file additional forms to confirm the sales of real property.
  9. A final estate tax return is required under certain circumstances.
  10. The personal representative reports to the court on how the estate was handled and a hearing is typically held for the court’s review.

After all the filings are reviewed and the judge is satisfied that everyone received their property properly from the estate, the court discharges the personal representative from his or her duties.

 

 

 

How to Understand the Words Used in Probate Cases

Losing a loved one is heart-breaking, and this time of mourning can be even more challenging for the family or friends that now have the responsibility to manage the property that is left behind.  Probate is the court process for distributing the assets, paying debts, and settling the financial affairs of the person who has passed.  It is an area of the law with its own vocabulary, and understanding the terms will help you navigate the system.  The definitions below can also be found on https://www.courts.ca.gov/documents/Common_Words_Probate_Cases.pdf

The Law Office of David W. Knecht helps trustees and executors administer trusts and probates.  We will spend time with you explaining the process and tasks involved in successfully administering a trust or probate estate.  We also prepare Wills, Living Trusts, Durable Powers of Attorney and Advance Health Care Directives to meet client’s estate planning needs.  Additionally, we represent clients in trust litigation and will contests, representing trustees, executors, beneficiaries and other intended parties.  Contact us at David Knecht Law at 707=451-4502 for help with any probate needs. 

Administrator: the person (usually the spouse, domestic partner, or close relative) that the court appoints to manage the estate of person who dies without a Will. The administrator is also called the personal representative of the estate. 

Beneficiary: a person who inherits when there is a Will. 

Decedent: the person who died. 

Decedent’s Estate: all real and personal property that a person owned at the time of death. 

Executor: a person named in a Will and appointed by the court to carry out the dead person’s wishes. The executor is also called the personal representative of the estate. 

Heir: a person who inherits when there is no Will. 

Holographic Will: a Will that is handwritten, dated and signed by the person writing the Will. 

Intestate: when someone dies without leaving a Will. 

Intestate succession: the order of who inherits property when someone dies without a Will. 

Living Trust: a trust set up during the life of a person to distribute money or property to another person or organization. 

Personal Property: things like cash, stocks, jewelry, clothing, furniture, or cars. Personal Representative: the administrator or executor that the court appoints to manage the estate. 

Probate: The court process for distributing a dead person’s assets, paying debts owed by the dead person, and settling the financial affairs of people when they die. 

Real Property: buildings and land. Successor: anyone who has the legal right to receive property of a person who dies, either under the Will or the Probate Code. 

Testate: when someone dies leaving a Will. Trust: an arrangement where property is given to someone to be held for the benefit of another person. 

Will: a legal paper that lists a person’s wishes about what will happen to his or her property after death.

Contact David Knecht Law at 707-451-4502, we are happy to walk you through what you need to know and guide you through each step of the probate process.