How to get what you want out of divorce: Strategies, tips and tricks to ensure success at every stage

I’ve created a FREE series on California divorce.  This Series is for individuals who want to learn not just how to survive the process with their money and sanity, but also want to succeed and get what they want in their divorce. You will receive keys to divorce from every aspect, from beginning the process to post-divorce considerations.  CLICK HERE to receive an email every day for seven days on the various topics on divorce in California plus instant access to our FREE 7-page Report, “Things they don’t tell you about divorce in California (and everywhere else!)”.

Recent readers of our Series have said:

“I liked how you linked the forms to the topic, such as the income and expense form.”
“I liked many aspects of the course. It was good to learn about negotiation, which is very helpful to know about.”
“I thought it was very helpful, informative, much more understanding and powerful knowledge before getting divorce.”
“Your information was so clear and answered many of my questions—-thank you.”
“Concise, fast moving for a seven day course.”

CLICK HERE for more information and details about the topics for each day.

Suze Orman’s divorce and finance advice

Some really like, and some really dislike Suze Orman, and regardless of how you feel, she speaks her mind.  She recently weighed in on divorce and finances, and for the most part she has sound advice.

One thing I think needs to be clarified is that, in today’s economy, it can become impossible for one spouse to refinance the house mortgage in their own name alone.  In a perfect world, yes you need to ensure you get your name off the debt so you’re not responsible, but if you both want to keep the house for your own reasons (for the children’s stability, for example, or to try to wait until the market recovers somewhat), then you can include a clause in your divorce decree that makes it clear that you are not responsible for the loan.  If you can, refinance, but if you can’t, it’s not the end of the world.

What is conservatorship in California? Part Two: The process

So, you have a loved one who is no longer capable of taking care of themselves.  Last time, we talked about what a conservatorship is and why you may need one.  Now, we’ll look at the process. Unfortunately, the process is long and can be expensive.  Which is why it is so critical to get a power of attorney ahead of time for your loved ones.  Did you know that your children should have a power of attorney once they reach 18?  If your child is injured, you may not get automatic access to medical records and to make decisions on your adult teen’s behalf.  There’s more information in my article, Have a child heading to college? A few legal documents they need before they leave the house.

The bottom line is that every adult – every adult – needs to have a Power of Attorney in place to protect them should they become injured or otherwise incapacitated.  To be able to make decisions on another’s behalf, a power of attorney is required.  In addition, the health information privacy laws (HIPAA) will restrict who can see medical records unless you have a HIPAA-specific waiver.  If you’re concerned about your loved one not having a power of attorney, and their unwillingness to get one, then get one yourself so you can speak to the process and experience.

If you don’t have one and your loved one becomes incapacitated, then you will need to go to court to apply for a consevatorship.  Once the conservatorship is filed, which in California can cost $435 or more just for the court filing, the paperwork needs to be send to all first-degree relatives (children, parents, siblings, etc.).  A hearing is set to grant or deny the temporary conservatorship, and then a hearing is set for the permanent conservatorship, generally a couple months out.  In the meantime, any other relatives can file their own objections to your petition.  In addition, a court-appointed investigator talks with you, the family member who you think needs a conservatorship, doctors, caregivers, and everyone around in order to do a report for the court, either recommending the conservatorship or not recommending it.

In cases where the family is all on the same page, the process generally goes smoothly.  But this doesn’t change the fact that it can take six months or more, and cost several thousand dollars to accomplish.

What is a conservatorship? Part One: When and why you may want or need to get one

It seems to me that recently I have been inundated with questions about conservatorship in California.  In the Bay Area, much like the rest of California and the United States, there are a large number of aging Americans, including the Baby Boomers, who are getting into their 60s and older.  But most of these inquiries have a lot of confusion and misunderstanding about what a conservator is, when it is possible or appropriate to get, why it’s necessary, who can file for one, and what the general process is.

So, let’s start with the basics.  As we age, many of us will gradually slow down. Perhaps this starts with using the stairs in our house less frequently, and maybe progresses to driving less at night.  Our muscles become weaker, our senses a little duller.  We may get a hearing aid for when we’re out in public.  These are all normal ‘symptoms’ of aging.  As we continue to get older, some of us may have cognitive, or mental, decline as well.  This is more than just forgetting where you’ve put your glasses or keys.

At some point, for some of us as we age, we become no longer able to take care of our own finances and our own health.  We can’t pay the bills, remember to take our medication, or even maintain basic hygiene.  Adult children can spot these issues when they see unpaid or overdue bills lying around the house.  Perhaps a caregiver is noticing and reporting the concerns about hygiene or unusual behavior.  Maybe you are talking to an assisted living community about moving your parent in, and they are concerned about your parent’s mental capacity.

Based on your concerns, you may wish to be the one who makes the financial and medical decisions on behalf of your parent.  It may, in fact, be necessary because your loved one has signs of dementia, paranoia or hostility that make them completely unable to care for their own needs.

If you and your loved one have acted in advance, then you may have a power of attorney that will allow you to make the necessary decisions.  In California, there are two kinds of powers of attorney: one for finances and one for medical care.  An individual who signs a power of attorney must be competent to do so, so if you are in a situation where your loved ones is already mentally compromised, or refuses to cooperate to sign one, then a power of attorney is not an option for you.

This is another reason why advance planning is so critical.  If you wait too long and are unable to get your loved one to sign a power of attorney, then you will need to go through the court process of a conservatorship to obtain decision-making power over your loved one’s finances, medical decisions, or both.  Next time we will talk about the conservatorship process.

An attorney versus online estate planning: Legal Zoom can and WILL hurt you

I see Legal Zoom is being sued for not preparing an estate plan that did what it said it would.  Banks and financial institutions would not accept the Legal Zoom documents to fund the individual’s trust.  As I always tell my clients, your estate plan is not worth the paper it’s printed on unless and until you fund your trust.  And the Legal Zoom documents?  Were seen to be unacceptable to the banks and financial institutions.  In addition, the information given by Legal Zoom on estate planning is supposedly designed to give users a “general understanding of the law” but “is not guaranteed to be correct, complete or up to date.

Really?  Legal Zoom can’t even guarantee that the “general understanding” is correct?  Do you really want to trust everything you’ve worked for – your assets, your estate, and your family, to a company that can’t even get basic law correct?

Further, Legal Zoom tells you, on their website, that 80% of people who fill in blank forms do so incorrectly.  Legal Zoom is, in effect, saying to their users they they are very likely to do the forms wrong, but they should do so anyway.  Why would you do this?  I have seen it time and again, when I send out my intake forms to my estate planning consultations.  Nearly everyone marks something that ultimately is incorrect after we’ve had some time to talk about it.

Finally, a lawyer in Minnesota went through the process of getting a will using Legal Zoom.  You can see his video here.  What is enlightening is that the will was packaged well, and was better than the lawyer expected.  But the reality is that there were MANY provisions, standard, important provisions, that were left out of the will.  A will is a pretty basic document for an attorney to complete, and Legal Zoom couldn’t even get it right.  I won’t go into the detail  of the missing provisions, but suffice to say there were a number of critical paragraphs missing.

Haven’t you worked too hard to leave your estate plan to chance?  Why is it a better option to save $1,500 on an online estate plan, just to cost your family – your closest loved ones – tens if not hundreds of thousands of dollars in untangling your messed up estate plan?!  I know times are tough, and we’re all looking to save dollars where we can.  But this is about your entire life.  Do not work your entire life to screw it up in the end.

I am working on an automated estate planning process that will allow my clients to save up to 50% on their estate plans by inputting their information in an online format.  Their answers, and indeed their entire estate plan, will be personally examined, reviewed, and assembled personally by me, but because of the online aspect, it will be at a significantly lower cost.  This option helps to combine the needs of my clients who know they need an estate plan but want a lower cost, but aren’t willing to risk everything just to save a few dollars.

Secrets of a divorce attorney: Why a free consultation isn’t worth the money

I came across an article recently that purported to give advice on how to select a divorce attorney.  One of the bits of advice was that most “reputable” attorneys will offer a free consultation.  I was stunned to hear this, as I think the precise opposite!  The free consultation from the divorce attorney is a loss leader, which means that it’s free because the attorney is looking for the potential client to pay the big bucks at the end of the consultation. In addition, the attorney doesn’t offer anything of value to the potential client during the free consultation.

Remember, you get what you pay for!

Many attorneys offer a free or reduced-cost consultation and the appointment goes like this: the potential client arrives and fills out some paperwork, finishing after about 10-15 minutes.  Then s/he waits another 5-10 minutes, so the actual appointment starts at least 15 minutes into the alloted “hour.”  The attorney, naturally, want to know what’s going on, so the potential client spends at least 20-30 minutes – often this is closer to 45 minutes – telling their “story” to the attorney.  So, at this point, it’s been 45 minutes to an hour, and the attorney has yet to *do* anything but sit and listen.  At the end of the consultation, the attorney says, well, yes. I can help you with that.  And the retainer will be $10,000.  Or $5,000.  Or $20,000.  So the potential client has paid nothing to get nothing but a very high retainer quote, and the client has (unless s/he has the money) wasted an hour or so of time.

Is that worth it?  Are these the practices of a “reputable” attorney?

A paid consultation can be more worthwhile, as they tend to be a little longer and involve more attorney advice and counsel.  Often, the intake sheet is sent in advance, and the “hour” spent is really an hour. In my office, I ask for and take as much information and documents – as well as your questions – as I can in advance, then when we meet, we can ‘hit the ground running’ since I already know what’s going on and what your most pressing questions are. I spent the FULL hour giving you real advice that you can use now. In our interaction, I am also able to get a feel for you, what you may need & how you can benefit from what I have to offer. This allows me to give you various options (and fees!) for working with me based on your unique situation.

Yes, the consultation costs, but you get what you pay for.

Which would you choose?

Changing child custody and visitation after the divorce is final

So, you got divorced a year ago…or two or five or ten years ago, and you want to make a change to your custody plan. Called a “post-Judgment modification,” it frequently comes up, especially when custody arrangements were made when children were little…and now they’ve grown. Extra-curricular activities, changes in residence or school, and gradual agreed-upon modifications in the custodial plan can cause problems when there’s a disagreement down the road. Or, common too is when the custodial plan just isn’t working.

I frequently get questions about problems with child custody and visitation after a couple has gotten a divorce, or completed their paternity suit and gotten a Judgment. One parent is constantly late or absent, one parent keeps changing the parenting plan, or one parent has a new boyfriend or girlfriend, and the new significant other is causing problems, or there is some problem with the child that one parent thinks is the other parent’s fault.

The answer is that there is a solution to these issues. Once your divorce is completed, or you have a Judgment, any of your orders can be modified upon a showing of a “change in circumstances.” A change in circumstances is some change from the time of your divorce/Judgment that has caused the problem. It could be a work schedule change, a new partner in your ex’s life, a change in residence, a change in the child’s school performance or behavior, or just a change in the situation. Most courts are pretty lenient when it comes to what kind of change is required.

But you do have to file a motion with the court if you can’t get an agreement with your ex about the change. I always recommend starting the easy way, which is sending a letter or email about the change you want, why you want it, and what steps you will take if the ex doesn’t agree. The steps you take may include going back to court, and you have to make that decision before you put it in writing.

If you have been through a divorce, you probably know how tough the court system can be on your wallet, your nerves, and your relationship with your ex, so think hard about whether you want to open up that can of worms. A qualified attorney can help you to assess the pros and cons of each option, and which would be the best for you and your family. If the situation isn’t working, get the advice you need to remedy the situation.

Uncontested divorce (part 2): Mediation when both agree

Another way in which an uncontested divorce comes my way is in the context of a couple who are fairly amicable and would like to work together to complete their divorce. Often, they either agree on everything (how to divide assets, on support, and on child issues) or they have one or two relatively minor issues that they’d like help with.  Often, too, the couple is concerned about (1) completing the process correctly, (2) not having time on their own – with family, work, and other personal concerns – to figure out how best to proceed and fill out all of the documents, (3) making sure nothing is left out because of their lack of knowledge of the “ins and outs” of California divorce, and (4) having someone to reach out to for questions and concerns as the process progresses.

Mediation is the way to go in these circumstances. Mediation is where an attorney (or non-attorney, though I generally recommend working with an attorney-mediator) to help you to come to a resolution of your divorce case. It’s significantly less expensive than litigation and drastically reduces the amount of contention and conflict in the process. Essentially you are working together to come to an agreeable solution. Instead of forcing a stranger – a judge – to make decisions for you, your children, your future and your finances, YOU control the process. It’s much quicker, too, than the traditional divorce process.

If you and your spouse get along reasonably well & just want to get your divorce completed as quickly, painlessly, and with the least expense, consider mediation.

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