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.

Domestic Violence Restraining Orders in California

Violence in a marriage or non-marital relationship is a serious issue faced by many.  In the event your SO or spouse hurts you or puts you in danger (note: this does not have to be physical violence but can include verbal threats and harassment, among many other things), then you should call 911 immediately.  If you are in a car, drive to the nearest police station. The most important first action in this case is to ensure your safety and the safety of your children.  In many cases, the police officers can issue an Emergency Protective Order that can force your spouse out of the home for a few days, and set you for a court hearing within a few days’ time.

Once you have the protective order and are safe, consider having at least a consultation with a qualified attorney.  You do not want to go into court not knowing what the judge is looking for and/or not being able to prove your case and having the restraining order denied when it should not be.  Even if you cannot afford to hire an attorney, your safety and the safety of your children is worth at least a consultation with a lawyer who will give you REAL advice and not just demand a high retainer to help you. There are also many resources in each county to offer you assistance with paperwork or help to find a safe place to stay.  Check with your local county resources.

Need advice now? Schedule an appointment online, or call us at 925.307.6543.

Why a power of attorney is not enough: Do you have this critical document in your estate plan?

If you created your estate plan more than a couple years ago, you may be missing a crucial piece to the puzzle.  In the past, a power of attorney for health care decisions, which in California includes your advance directive (or living will), was sufficient to name another person (your “agent”) to make health care decisions on your behalf.  But the enactment of HIPAA (Health Insurance Portability and Accountability Act), which was designed to limit the access to your medical records – and was focused on insurance companies – actually resulted in limiting the access to your medical records for everyone, including your agent on your health care power of attorney.

Worse, if you don’t have a health care power of attorney, you may think that your “next of kin” – your spouse, your children, or your parents – will have access to your medical information and to be able to make decisions on your behalf.  Unfortunately, with HIPAA and the stricter privacy regulations on doctors and hospitals, this is not often the case.  While you may be looked to for decision-making, if you want to see the medical records or tests results themselves, for example to get a second opinion, you won’t be able to, not even with a power of attorney.

What’s necessary now is called a “HIPAA Authorization,” which I have been using for a couple years now.  It allows the individuals you designate to have access to your medical records and can save your loved ones from hassle and hardship should you be incapacitated.  I use a separate form document, though my older health care powers of attorney included the HIPAA authorization in the body of the power of attorney.

I’ve talked already about the importance of everyone having a power of attorney once they turn 18, but what is also critically important is that you have all the correct documents in your estate plan as well, and a complete estate plan includes a HIPAA authorization.

Need advice now? Schedule an appointment online, or call us at 925.307.6543.

Is estate planning obsolete? Think again!

I have heard rumblings that estate planning is no longer necessary because the estate tax exemption is over $5 million per person, so only those with more than that need to do any estate planning.  Here are the reasons why they are dead wrong:

  1. Probate costs. When you don’t have an estate plan and you have $150,000 in property in California, your estate goes through the process of probate, which can cost your estate tens of thousands of dollars in unnecessary fees.  Creating a living trust avoids probate.
  2. Probate time/length.  The probate process can also take several years to complete, leaving your heirs in a state of limbo after you’re gone.
  3. Powers of attorney.  Even if your estate does not reach the $150,000, everyone 18 and over needs to have powers of attorney to determine who will make medical decisions on their behalf, have access to their medical records, and handle their finances should they become incapacitated.  Parents (and spouses) do not automatically have this right, which is why anyone 18 or over needs to have these documents.
  4. Distributing your estate to whom you want.  If you do not create an estate plan outlining who gets your estate, the government has an estate plan for you, and it may not be to your liking.  YOU have the choice and responsibility to determine who gets your estate, but if you don’t make the decision, then someone else will.
  5. Disinheriting heirs in a blended family.  If you have a family with step-children, you could easily dis-inherit them by leaving all of your property to your spouse (a common non-plan estate plan).  If your spouse inherits everything you have when you pass away, because you hold title to your property in joint tenancy, then your spouse will have control over how to distribute the estate at the second spouse’s death, which could very likely end up with your biological children getting nothing.
  6. Naming a guardian for your children.  Once you have children, it is imperative to name a guardian for them.  If you don’t, then a judge who has never met you, your children, or your family will get to decide.  In this case, anyone can petition to become your children’s guardian, and without naming someone, you open up the very real possibility of your children becoming the subject of a lengthy and nasty custody battle when you’re gone.
  7. Planning for your elder years and death.  Medical advances have led to longer lives, but this has also meant that we spend a longer period of time in decline, where we may need care.  We need to plan for that time and for that care while we are still healthy, and by getting our affairs in order, we can accomplish this.
  8. Having dignity in your last years.  When we don’t plan for our decline, then we can find ourselves caught off-guard and without the means or ability to take care of ourselves.  In that case, we may become dependent – or worse, burdensome – on others, generally our family.  Many of us would rather decide in advance how we want to handle our aging: where we want to live, who we want to care for us, how we want to be cared for.  If we don’t plan, then we get stuck with whatever is available.
  9. Saving your family untold grief.  Anyone who has experienced the decline of a loved one understands the difficulty in making caregiving decisions and end of life decisions, not to mention the passing of the estate.  By creating a comprehensive estate plan, we save our families from having to make impossible decisions at every turn.  At a time when family should be able to take the time to grieve and band together, too often there are many decisions to be made and fighting over what’s “best” or what you would have wanted.  These are YOUR decisions to make.  Shouldn’t YOU make them?

Ready to make your FREE appointment online?  Or you can call us at 925.307.6543.

Child support and the dependency exemption: Who claims the child?

In a divorce with children, the issue of child support arises, generally, very quickly. I’ve written about child support before, but today wanted to tackle the issue of the dependency exemption. There are still many couples that have one parent as the primary wage-earner and one parent who is the primary child care provider. In the event of a divorce, the wage-earner finds him- or herself trying to balance work and child rearing, and the child care provider must face both sharing the joys and obligations of child upbringing as well as heading out into the job market.
In a first divorce hearing in California when the couple has children, the issue of child support is frequently on the table. In California, child support is calculated using a software program, and the two main factors considered are timeshare spent with the child(ren) (stated as a percentage) as well as each party’s income. Once child custody and visitation is worked out, at least on a temporary basis, then child support can be calculated. Often, the higher wage-earner is looking to claim the child for tax purposes because the higher wage-earner will receive a higher benefit from that exemption.
What may be unclear to both parties, however, is the way child support is calculated in California. The software program takes each party’s gross income (that’s income before taxes) and the program itself calculates your taxes. Therefore, the program is designed to know which party will receive the highest benefit from the child exemption as well as what the benefit is. In California, too, it is presumed that the parent with the highest percentage of timeshare with the child will receive the tax exemption. This presumption can be shifted to the lower-timeshare parent, however not without consequences. Because the dependency exemption confers a benefit on the party who claims it, generally when the lower-timeshare parent claims the child, this results in a higher dollar amount of child support paid.
Therein lies the rub. I have had many clients who have insisted that they claim the child for tax purposes, but once the amount of increase in child support becomes clear, their tune changes instantly. In cases where the lower wage earner makes little to nothing, however, most courts will generally order the dependency shift because the lower earner gets no or almost no benefit from the exemption.
Which would you prefer? A lower monthly amount of child support or the dependency exemption? In most cases, it depends on the specifics of the situation, timeshare, and incomes…yet another reason why there are no “easy” divorces.

Need advice now? Schedule an appointment online, or call us at 925.307.6543.

Is it helpful or harmful that your lawyer knows your ex’s lawyer in California divorce?

A divorce attorney who works for a time in one place gets to know the other attorneys in the area & how they operate.  In one county where I practiced for several years almost exclusively, I knew who was a pushover, who was sharp as a tack, who would cave right before trial, who was sneaky, who I could trust, and who would mean the case would cost double or triple what I expected.  Often, my clients would ask about the other lawyer, and I would share what I knew.

Often, too, my clients would express dismay, frustration and sometimes even anger that I knew and was friendly with the other lawyer.  They thought it would make me “softer” and not fight as hard for them.  They thought my friendship came “above” my responsibilities to them as a client.  It’s unfortunate that I was unable to convince them of how very wrong they were.  I am not the only one who has experienced this, and this article describes well what I am explaining here.

First, they never understood that I take my job and my responsibility to vigorously advocate for my clients very seriously.  Regardless of who is opposing me, I am going to fight for my client in the same way.  I operate by acting in my client’s best interests, and we discuss our strategy before every case.  I will be more cautious when working with someone I can’t trust, but my behavior does not change markedly from case to case and client to client.  Obviously, when pushed I will push back and I can – and will – get down in the trenches and fight when appropriate.  But in many cases this is not necessary and serves only to escalate the cost of the case.

Second, by knowing my opposing counsel, I know what to expect from them, good or bad.  When it’s a friend of mine, I can expect that they won’t blindside me or screw me over.  That helps my client, helps the case, and keeps costs down.

Similarly, my friends trust me as well, so they are more likely to work more easily with me and, as a consequence, work with their client to make the case more reasonable.  In cases with lawyers I am friendly with, there’s more of an attitude of “trust but verify” – we can agree on things in principle, while proof is in process.  With other lawyers, we may need to more through expensive discovery before we can even sit down to start to discuss the issues.  While it may seem that time cools the fires of anger, resentment and vengefulness, it is often the opposite. The longer the case drags on, the harder it can be to settle.

So, which would you prefer?  I would want an attorney who knew my opposing counsel well, and was friendly with them.

Need advice now? Schedule an appointment online, or call us at 925.307.6543.

Estate planning guide: when, how and why to update your existing plan

One of the most common estate planning questions I get is when and why you would need to update your estate plan. Here are your guidelines:

  1. Has the value of your estate increased substantially since your last update?  Do you have more than $5 million if you’re single, or $10 million if you’re married?  Is this a change from before?  If so, then you may want to consider a review of your estate plan.
  2. Did you complete your powers of attorney before 2003?  In California the forms changed at that time, so now would be a good time to take another look.
  3. Are your beneficiaries on your retirement and life insurance accounts updated?
  4. Does your estate plan reflect your current family and desires for distribution to them?  Or has there been a birth, death, marriage or divorce since your last estate check up?  If so, you may need a review.
  5. Are you protected for a time (the time) when you are unable to think or care for yourself? Do you have your powers of attorney? Long-term care?  Advances in medical care mean we will live longer, but at the same time we will more likely experience a diminishing of capacity before we pass on.  Without these basic planning tools, we leave our family with these burdens.  Are you approaching 50?  If you don’t have long-term care yet, now is the time to get it.  You can’t wait until you need it or you won’t qualify.
  6. Have you chosen a guardian for your minor children?  If you don’t, then your children could become the subject of a custody battle if something happens to you, or they could be place in foster care while the decision is being made.  Don’t take this risk!

If it has been a while since you created your estate plan, or you don’t have one at all, now is the time to put the tools in place to protect your family and your assets.  Schedule a FREE appointment online, or call us at 925.307.6543.

How to save money in California divorce

Divorce can be very expensive.  Not only are you separating households, now working with the same funds but supporting two homes (and two rents/mortgages, two sets of utilities, expenses of duplicate furniture, etc…), but you may be taking time off work for court hearings, spending money on filing fees, and – of course – hiring a lawyer.  And lawyers?  Can be very expensive.

I do what I can to keep the costs down for my divorcing clients, from offering flexible options for payment (no, not monthly payments but I generally try to “break down” the case into more financially-manageable pieces for the client), family law coaching, and divorce mediation, but the cost is not entirely under my control.  What my clients do – or don’t do – essentially drives the path and cost of the divorce.  So, regardless of whether you have an attorney or not, here are some ways to keep the costs of your divorce down:

  1. Manage your emotions.  Divorce is incredibly difficult even in the best of circumstances.  It is likely that you have some strong emotions around it.  But the court and legal process generally will not be concerned about these emotions, and the more  you bring them into your divorce, the more you will likely pay.  Whether it’s spending excessive time with your attorney discussing the emotional issues or pursuing a losing issue because of an emotional attachment, emotions can bankrupt you when they take center stage in your divorce.
  2. Get professional help. As a part of managing your emotions, get the support you need for them by finding qualified mental health professionals to help you through it.  Your lawyer, your family, and your friends will be a great support during this time, but do not mistake any of them as qualified advice helping you through the roller coaster of emotions in divorce.  Find a therapist if you need one.
  3. Get – and get rid of – qualified professional help when appropriate.  Hire professionals who are going to work with you, for you, and who are on the same page as you.  If you feel like your lawyer doesn’t care, or is gouging you, or won’t pay attention to you or return your calls, then get rid of him/her.  Your divorce is yours, and you should have legal counsel that you feel comfortable with, who understands what is important to you, and who is reasonable and professional about fees.  Same with your therapist.
  4. Play fair.  The court and legal process in California has no patience for bids for revenge.  Mud-slinging and nasty declarations for the purpose of hurting the other party can not only rebound and hurt you, but can cost you unbelievable amounts of money.  They also drag on the process, increase the hostility between you and your spouse, and ultimately hurt your children.
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