5 Strategies for a Successful Financial Divorce Settlement

You are probably new to the divorce process, so you may be at a loss on how to successfully negotiate the financial side of your divorce settlement.  This article will highlight five of the most important strategies for success in sorting out the money side.

  1. Be prepared to change your mind and don’t draw lines in the sand with the other party until you know what’s for certain the best course of action for you. Over the course of a separation and divorce process, one or both parties often have a change of perspective on what’s the best course of action.  For example, initially a party may want to keep the home or sell the home. Often expectations of custody arrangement play into this, where on parent may want to keep the home to keep the stability for the children in terms of schools, neighbors, activity programs, etc.  As the terms of child custody become clearer, you may find it more advantageous to sell the home or rent it, or your original plan may end up being the best.  Your goal is to look after the best interest of yourself and your children, so it’s often best to avoid drawing lines or going to battle until you know for sure what you want. You don’t want to pen yourself into a decision that ends up being disadvantageous.
  1. Look into the tax consequences and financing realities of each decision course. Initially couples tend to gravitate to simple solutions:  sell the house, sell the business, have one spouse buy the other out, etc.  This may be the best for you, but it may not.  Talk to a professional about the tax implications of each course of action.  For example, if you have to liquidate tax deferred investments in order to finance a buy out, then it may not be in your best interest to do so.  If selling a business at this juncture will significantly impact its value, maybe that is not the right decision. Talk to the experts and open your mind to solutions that may initially be more complicated, but may pay big over the long haul.
  1. Be conservative and avoid making big decisions until your divorce is finalized. Negotiating the finances is emotional and stressful for all parties involved, and it is typically a very bad time to make huge changes in your life. Avoid changing or quitting a job during this time if possible. Keep the status quo as much as possible financially. Don’t do anything to destroy value in any of your assets or to hide income or assets from the other spouse. 
  1. Try to settle quickly and efficiently. Some cases cannot be settled and in those instances you should feel entitled to enforce your rights.  However, in many instances a negotiated settlement saves money for both parties.  To the extent you can, take your emotions out of the picture and look at the numbers.  Educate yourself as soon as possible on the options and the ramifications of each option. The more you can take the lead in finding meeting ground that is favorable to you and acceptable to the other party, the faster your finances will be settled and you can move forward.  Typically neither party will benefit from dragging the process out. 
  1. Consult the right people. You will get a lot of advice from family, friends and coworkers. Listen to that advice and take it for what it is worth. However, take the time to consult people with experience and knowledge. The final decision is always in your hands, but the right professionals can give you the information necessary to make good decisions.

4 Potential Consequences of Your Second DUI

If you are facing your second DUI, you are probably somewhat familiar with the process and the punishments. Don’t give up on your case, as you may have defenses and arguments that can get the charges dismissed or reduced. This article is to give you an idea of what consequences you are facing if your defenses are not successful to help you understand the worst case scenario, and it assumes you are 21 or over.  

Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license for a year on a second DUI. You could have your licenses suspended for up to 2 years. The court suspension is two years, which can be run concurrently with the DMV suspension. It’s possible to apply for a restricted license after three months of DMV suspension.  
    • You need to request a hearing with the DMV within 10 days if you want to dispute the DMV suspension.
  • Interlock Device:  The judge can order you to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

Court Ordered Counseling and Probation

  • 18 Month Programs:  If this is your second conviction in 10 years, you will likely be ordered to complete an 18 month program.  For a third offense, you would typically be looking at a 30 month program. You may also be ordered to attend AA, or Mother’s Against Drunk Driving (MADD) or other programs.
  • Probation: Probation is typically 3-5 years.

Jail Time – Max is 1 year

  • Jail Time:  Minimum of 96 hours in county jail, and maximum of one year jail time.

Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $1800- $2700. Additionally, you will likely incur costs of defense attorney, costs for counseling, interlock device, and SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.

 

Men:  Who to Turn To If You Can’t Save Your Marriage and Divorce Is Imminent

Men, we know that it can be rough on you when you want to save your marriage, but you feel like there are issues that just can’t be resolved. When you reach that point, you may wonder what you should do to plan for the future.  Who should you turn to? This article will help you navigate the troubles that may come your way soon.

It’s never too early to educate yourself:  Consult an attorney who is experienced in divorce law.

Knowledge is power.  So, whether you’ve made the final decision or whether you are still in the mix of determining what to do, it’s never too early to consult with someone who can give you advice about your exact circumstances and assets. Here are some things you’ll want to discuss:

  • Children: discuss with your attorney how you can plan custody to best accommodate your work schedule and other commitments.
    • For example, what is your work schedule?  What is your spouse’s work schedule or does she primarily take care of the kids? Do you plan to move out of state?
  • Assets: Divorce is expensive for both parties because the assets will be split. Talk with your attorney about the assets you have and your preferred means of managing them in a divorce.
    • For example, do you want to sell the home or keep one spouse in it? Do you have a preference on dividing the cars?  Are there assets that have sentimental value or are meaningful to you in a way that goes beyond their monetary value?
  • Debts:  If you have school loans, car loans, credit card debt, mortgage debt, or any other kinds of debts, you need to plan for the division of these debts with your attorney.
    • Consider in advance any court costs that will be involved in the divorce, mediation fees, and legal fees.

Protect Your Mental Health and Amp up Your Physical Well-Being:  Turn to friends and family and other trusted advisors for encouragement.   

Plan for a tough time ahead. No matter how bad a marriage is, a divorce can still take a toll on both parties because it is a change. Things will be different.

  • Understand and anticipate powerful emotions.  During a divorce you may experience greater emotions of isolation, discouragement, despair, anger or bitterness.  Prepare for this by bolstering your own mental toughness.
    • Reach out to old friends. Go to lunch or the gym. Remember the good times.
    • Although you may not want to tell your family that divorce is imminent, it doesn’t hurt to contact them and renew family bonds so that those relationships are close for when you need the support.
  • Amp up your physical health. It’s common for men to forego their regular exercise or to take on bad eating habits during stressful events in their lives, and a divorce is commonly a stressful event that takes its toll on men’s health.
    • Do what works for you to keep yourself feeling good. Whether that’s setting fitness or nutrition goals, or working out with a buddy, or finding more time to be in nature, or running, etc., you need to do what works best for you personally to maintain good health.

Hard times are an inevitable part of a man’s life, and many guys will confirm that a divorce can be challenging.  If you prepare yourself with knowledge, protect your mental health, and amp up your physical well-being, you will be in a strong position to make the most out of the divorce process.

 

How to Go After a Noncustodial Parent for Child Support

We’ve all heard of child support, which is the amount of money a court orders one or both parents to pay to support their children’s living expenses.  A common complaint is that one parent is not fulfilling his or her child support obligations.  This article will explain the procedure for enforcing child support and provide information on free resources to assist in the process.

  1. Get an Order. An Order is a written document by the Court that shows entitlement to child support.  A verbal promise from one spouse to another is not an Order.
  • If you and the other parent agree. If you do not have an Order, but you and the other parent can come to an agreement about the amount, then you memorialize that in writing and then the Judge will approve it if he or she feels it is in the best interest of the child.
  • If you and the other parent do not agree. If you do not have an Order, and you and the other parent cannot come to an agreement, then you will have to file an action for child support.
  1. Motion for Contempt. The next step, once you have the Order in hand, is to file a Motion for Contempt.  You have probably heard of being “in contempt” of court in a criminal matter.  In a civil matter, such as a divorce, a Motion for Contempt basically asserts to the Court that the other party has not obeyed the Court’s order.  If the Judge grants the Motion for Contempt, then the other parent can be ordered to pay fines or serve jail time.
  • Time limit. Timing is very important!  Be sure to file your Motion for Contempt within three years from the payment is due to avoid having the statute of limitations run.
  1. Driver’s License Penalties. If the payment is more than 30 days late on child support, the DMV may refuse to issue or renew a drivers’ license.  If the payment is more than 120 days late for child support, the State of California can revoke the non-paying parent’s license.
  1. Can interest be charged on missed support payments?  Yes, interest accrues at the rate of 10% per year.
  1. Available Resources.
  • If you are looking for other government resources relating to child support, visit childsup.ca.gov. This website is run by the California Department of Child Support Services and may have helpful resources to assist you.

 

4 Things You Didn’t Know About Shoplifting and Theft In California

If you have been charged with a crime in the theft category, you may have some questions about shoplifting or theft.  This article addresses some common questions.

Is it a crime if you didn’t leave the store?  Yes it can be. You can still be convicted of a crime, if you took something but didn’t leave the store.  If you look at the elements below, you will notice that the prosecutor doesn’t have to prove that you moved the item out of the store.  Still, the prosecutor must prove that you had intent, so that’s one area that can be attacked in the prosecution’s case if, for example, you intended to pay for the item but put it in a pocket or a purse without thinking.

What does the prosecution have to prove to convict me of petty theft?  The summary below will show you the general  elements of petty theft:  

  • taking possession of property owned by someone else
  • without the owner’s consent
  • with the intent to remove it from the owner’s possession
  • moving it, and keep it for a period of time
  • value of property is $950 or less.

What does the prosecution have to prove to convict me of shoplifting?  The summary below will show you the general  elements of petty theft:  

  • entering a commercial establishment (for example, a store)
  • while the establishment is open during regular business hours
  • with the intent to steal items worth less than $950

How can you fight a theft charge?  

  • Lack of intent – You can show that you had no intent to steal the item.  For example, if you purchased many expensive items and forgot to pay for the milk that was at the bottom of the cart, then those factors would indicate that not paying for the milk was an oversight rather than an intentional taking.   
  • Accident/Mistake– This defense also attacks the intent element by showing that you were unaware of the item or that it was a mistake.  For example, if a child or friend put the item in your pocket without your knowledge, you could claim that it was a mistake.  Or, if you thought the item had been previously purchased by a family member or friend, then that could show a valid accident or mistake.
  • Belief the property belonged to you – This defense is also a subset of lack of intent and can be used when you believed that the property was yours and not someone else’s property.
  • Consent from the owner – If the owner said or did something that made you believe that they consented to your use or taking of the property, then this is also a defense.

 

 

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

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

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

From there, there are three main scenarios:  

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

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

3) the defendant stays in jail.

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

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

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

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

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

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

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.   

What Kind of Fees Can I Expect with a DUI Charge?

Unfortunately, the cost of a DUI is very high.  This article will summarize some of the costs that you can anticipate, as well as give you helpful links to find out more.  Your attorney can also advise you on the costs to be anticipated, and can help you prepare for the road ahead.

  1. Impound Fees.  If your vehicle was impounded, you will be on the hook for administrative fees, plus the cost of towing and storage.  The administrative fee depends on where the vehicle was impounded, but for instance, the cost in Vacaville can be $234.  (See https://www.dmv.ca.gov/portal/dmv/detail/dl/fees/miscdl_fees#misc_duireissue).  Also, be aware that the vehicle can only be released to the Registered Owner.  However, if the owner is incarcerated, then the jail can provide a Vehicle Release Form.
  2. Driver’s License Fees.  These vary depending on the age of the driver, and whether it is a first or second offense, but to give you an idea of the ballpark the Reissue Admin Fee for a Driver over 21, is $125.  This link will give you the specifics:  https://www.dmv.ca.gov/portal/dmv/detail/dl/fees/miscdl_fees#misc_duireissue.
  3. Bail Fees.  If you have been incarcerated, you can anticipate a bail bonsdmen fee.  The way it works is that the court sets the bail.  The bonds company charges you a fee (usually a percentage of the amount of bail), and then the bonds company pays the full amount to the court.  When you appear at your hearing, the bonds company receives their money back, but they earned the fee.
  4. Court Fines.  These can run you at least $2,000.  According to the Yolo County Sentencing Guidelines for Infractions and Misdemeanors, Effective August 25, 2016, the minimum fine to be imposed for a DUI is $1958.  
  5. Other Miscellaneous Court Fines and Fees.   The Court will likely impose misc. fines and fees which total at least $300, depending on the jurisdiction.  See the excerpt below from the Yolo County Sentencing Guidelines for Infractions and Misdemeanors, Effective August 25, 2016.
  6. Screen Shot 2017-10-23 at 8.57.36 PMCounseling – The amount of counseling ordered and the cost of the classes varies, but a conservative estimate would be at least $200 for counseling and classes.
  7. Restitution – If the DUI involved an accident, the court may order restitution, which means that you will have to pay for the damages incurred by the other driver.
  8. Interlock  – An interlock device is placed in your car so that your breath alcohol level is checked before you can drive.  The cost can vary depending on the make and model of the vehicle and the company you choose.  One company surveyed charged a $60 installation fee and 69.95 plus tax per month.  
  9. Insurance – Automobile insurance rates are higher for those who have been convicted of a DUI.  To reinstate your license after a DUI, you will have to file a Proof of Insurance Certificate (SR-22).  These sites can give you more information about the insurance needed.  https://www.dmv.ca.gov/portal/dmv/?1dmy&urile=wcm:path:/dmv_content_en/dmv/pubs/brochures/fast_facts/ffdl35 

 

 

What Is the Typical Legal Procedure for a Standard Divorce

When you are embarking on a journey, it is important to have an overview of where you are now and where you are going.  Similarly, with a separation, divorce or an annulment of a marriage or domestic partnership, an overview of the system will help you plan ahead.  This article will give you a view of a big picture, but be aware that this is a generalized summary that will certainly vary depending on the unique facts of your case, your assets and your family.  

1. Petitioner Files Paperwork.  The Petitioner is the person who files the paperwork to get the divorce process started.  The forms needed to start your case in California can be found at this site:  http://www.courts.ca.gov/1229.htm

2. Serve the Forms.  The other party (Respondent) needs to know what paperwork is filed.  To accomplish this, a person serves the forms to the Respondent.  The Petitioner can’t serve the forms themselves because the Petitioner is a party in the case.

3. Respondent Responds.  The Respondent has 30 days to reply to the paperwork that is served.  There are 4 possible scenarios here:

  • Respondent Doesn’t Respond.  The Petitioner waits 30 days and files the appropriate paperwork for a Judgment.  
  • Respondent and Petitioner Work Out a Written Agreement. Respondent doesn’t respond but the Petitioner files the written agreement between Respondent and Petitioner and the paperwork for a judgment.   
  • Respondent Files a Response and Written Agreement (“Uncontested Case”).  This is the “uncontested case,” where one of the parties files and Appearance, Stipulation and Waiver and a Proposed Judgment.
  • Respondent Files a Response (“Contested Case”).  The Respondent files a response, but the parties can’t agree, so it proceeds to the next step toward trial.  

4. Disclose Financial Information.  Both parties are required to fill out disclosures of financial information within certain timeframes. This is where you submit information, and you must not withhold information or be dishonest about any information.

 

5. Orders.  During the process, either party can request temporary orders relating to child support, spousal support, custody, etc.

 

6. Mediation.  Mediation is where an attorney or an arbitrator assist the parties in seeing whether they can come to an agreement on important issues such as dividing the assets or time with the children.

 

7. Trial Preparation and Trial.  There are various steps that can lead to trial.  The discovery stage is where parties are trying to get more information from each other.  They can do this with interrogatories, which are questions posed that are required to be answered.  Requests for admissions is where you submit a statement to the other side that they have to affirm or deny.  There are also requests for production, where certain documentary evidence can be requested.  Deposition is sworn testimony where a person is asked questions while they are under oath.  These steps help the parties prepare for a trial, where the judge will make a decision on the issues presented.

 

8. Final Judgment and Timing. Your divorce will be finalized by a document that is signed by a judge.  This is when the proposed Judgment that was filed by one of the parties is signed by the Judge and becomes a Final Judgment.  Be aware that in California, you have to wait until 6 months after the case is filed and the Respondent has been served before the Judgment is Final.

 

9. Additional Resources.  This is just a primer on the divorce process, but there are many resources for more information.  One very helpful resource can be found at http://www.courts.ca.gov/1225.htm.