Where there’s a will, there’s a way…

Here, I want to ask (and answer!) the question, do you need a will (and when and why). The answer, which might be surprising to you, is absolutely YES! With very few exceptions, everyone needs a will.

In my business and in this blog, I have worked hard to educate others on the importance of an estate plan centered around a living trust. A living trust avoids probate, transfers your property easily upon your death, and allows you to avoid fees and taxes (among many other reasons that you can see in my estate planning blog). But your estate plan has other components, and one of these is your will. In an estate plan, your will is called a “pour-over” will because it’s intended to ‘catch’ any property that you have left outside your estate.

Now, you may be asking, what kind of estate plan is it if you leave something out of it?! Well, sometimes we forget (despite the repeated reminders from our friendly estate planning attorney), and sometimes there’s just not time. If you acquire property and pass away before you are able to complete the transfer to your trust, then you want that will to ensure that your property transfers appropriately to your heirs through the probate process.

But in the context of family law, when and why is a will important? Let’s look at this issue in two contexts because they’re very different. First, let’s look at the time when you are going through your divorce or other family law case (where you are restricted from changing/updating your will) and once the action (case) is completed (where you NEED to update it).

The Automatic Temporary Restraining Orders (ATROs) in the Family Law Summons provide,

“Creating a nonprobate transfer or modifying a nonprobate transfer in a manner that affects the disposition of property subject to the transfer, without the written consent of the other party or an order of the court. Before revocation of a nonprobate transfer can take effect or a right of survivorship to property can be eliminated, notice of the change must be filed and served on the other party.”

What? This basically means that you cannot change your will or living trust during the pendency of your action without written consent of the other party or a court order. Note that this includes severing a joint tenancy on a property (which does not require consent but does require advance written notice). So when you are in the middle of a divorce and you pass away, that house you have in joint tenancy goes automatically to your ex. Ouch. But if you don’t know about these restrictions, then you could get into trouble with the court, which is a bad idea. Also, remember this if you’re thinking of filing for divorce.

Once your case is over, however, you really DO need to update your will. In fact, you most likely need a full estate plan that includes a living trust. Hopefully I have convinced you of that by now. If you don’t, then your out-of-date document WILL control the disposition of your assets. To look at recent examples, Brittany Murphy did not update her will when she got married. Heath Ledger never updated his will after his daughter was born (and that caused all kinds of trouble).

Don’t make their mistakes, and always make sure your estate plan is updated to take into account a marriage, divorce, birth, death, or acquisition of property.

Court hearing decorum in California divorce

When you are in the courtroom, you want to act appropriately and avoid angering the judge. If you make the judge mad, he or she will remember it, and you don’t want that hanging over you. Some tips:

-Dress appropriately, like you’re going to a wedding or church. You CAN wear jeans, but if you’re dressed nicely, you’ll act more formally – which would be appropriate – and you’ll look more serious (and honest).

-Don’t interrupt anyone. Wait for a break to request to be heard if you feel you’re being ignored.

-Treat everyone with courtesy and respect, even if you don’t think they deserve it. This includes bailiffs, court clerks and assistants, AND opposing attorneys.

-Don’t get mad, or at least if you do, try to continue to act with courtesy and respect. When you get mad, you lose your perspective, you say things you don’t mean, and you’re likely to get in trouble in one way or another. The depth of your feeling or anger will not win you any points with anyone.

-THANK the judge before you leave, regardless of the outcome.

Going to court in California divorce: Judges are people, too!

We learn that the law is blind, and images of lady justice come to mind when we think of the legal system…right? Well, maybe not all of us.

Most family law attorneys will tell you that decisions on family law issues depend heavily on which county you are in and even which courtroom (in front of which judge). You may think that this is unfair, that judges should apply the law uniformly. But I disagree – this is perfectly natural.

The whole reason we have the legal system is that reasonable people can disagree on many issues. Because of this, we need help in the form of the legal system and litigation. Judges are part of the legal system, and are bound to apply the law in as neutral way as possible. But the law is not always clear enough to apply totally neutrally.

Take this as an example: Parents live in neighboring cities, and each wants their child to attend the school in their neighborhood. The judge is charged with making this decision, and the standard is that the court should act – that is, pick the school – in the best interest of the child. How does the judge make this decision? Judges can look at where the child has gone to school in the past (to avoid disrupting the child’s schedule and established friends), can look to which school is objectively ‘better’ in terms of test scores and the like. The judge can look to see to which parent the child seems more bonded (and thus would be harmed by not being with that parent for school). The judge can look to where the child’s support system – other family members, friends, teachers, church, etc. – are.

But these factors are subjective, to at least a certain extent, and different judges will base their decisions on their own beliefs and experience on which are most important. For example, a judge who just read an article about the critical importance of an extended support system to a child may put more weight on that factor than a judge who hasn’t seen the article.

Similarly, judges are going to have their own opinions on various family law issues. They may tend to weigh certain factors more heavily than others, or tend to rule one way or another. This doesn’t mean that the judge is bad or biased, it just means that the judge is human.

So, what can you do about it? Look, and learn. Attend your judge’s hearings – they’re public! – and see how he or she tends to rule, how he or she runs the courtroom, and what arguments, attitudes, and styles seem to be the most persuasive.

Knowledge is power.

Your family law hearing in California divorce: child custody, child visitation, child support, spousal support, attorney fees…

In most family law cases, one or both parties need the court to help them with initial matters, such as child custody, child visitation, child support, spousal support, and attorney fees.  Because the parties cannot agree on how to handle these matters, a motion is filed with the court, asking the court to make orders on these issues.

After you file your motion with the court, you have to serve it on your opponent. Hopefully, you know that already. Once your opponent receives your motion, he or she has time to file a response. By filing your paperwork in advance, you each have the opportunity to review what the other is saying, and prepare your response to it. This is important because you should never be forced to respond to something about which you do not have advance warning. This goes both ways: you can’t spring something on your opponent and get away with it.

When you get to court on your appointed day and time, remember the following:

1. Get there early to allow yourself to get lost (and find it), to get the layout of the place, and to have time to get settled and take a deep breath.
2. Read the signs posted in and around the courtroom, as these will give you a lot of information about what is going to happen and the specific court’s procedures. Determine which notes apply to you and act accordingly.
3. Take a deep breath and try to relax. You may be waiting a long time.
4. You will probably have the check in and let the court know you are present. Often you check in and give your name (and sometimes case number) to the bailiff or the courtroom clerk.
5. Most counties have a rule regarding a “meet and confer” prior to being heard by the judge. This is a requirement that you at least try to talk to your opponent to work out your differences before the judge will hear your dispute. DO NOT avoid this if it is a county rule in your county, as it will anger the judge that you ignored the rule – and do it even if there is no rule. Making the judge mad is a big no-no in my book.
6. When your case is called, announce your name and approach the tables in front of the judge. You’ll get an opportunity to present your side of the argument, and it’s helpful if you have notes responding to what your opponent is going to say. You know what your opponent is going to say because you read his or her paperwork and also talked to him or her immediately prior to the hearing.
7. Don’t make the judge mad. If he or she cautions you because you have done or said something inappropriate, be sure NOT to repeat your error. One thing that makes most judges mad: interrupting. If you have something to say, find the right time to say it rather than interrupting your opponent or the judge.
8. Once the judge has heard enough, she or he will say so and announce the order. THIS IS WHAT YOU CAME FOR! Take detailed notes because you will need to create a written order from the judge’s words.
9. Before you leave, ask the court for the “Minute Order,” which is the court’s informal notes of the results of the hearing. You can use this to prepare the order. Also, find out which party is preparing the order. Whoever brought the motion generally does this.
10. Thank the judge as you leave, whether you won or lost. Judges work hard and deserve your thanks for taking their time to help you. You may not like their decision, but thank them anyway.

4 reasons why waiting to hire a divorce attorney is a mistake you don’t want to make

Even if you haven’t filed paperwork with the court or even if you haven’t decided 100% that you want to get divorced, you should consult with an attorney.  When you consult with an attorney, there should be no obligation to hire them, and you should be able to come in and get the advice you need and your questions answered.  At least, when you visit my office, that’s what happens.  I even have my clients fill out a form that specifically asks them what questions they most want answered in the consultation.

Here are some of the reasons why consulting with an attorney before you file is a good idea:

  1. If you’ve not decided to divorce yet, you can then at least make an informed decision about what the process is like, the time it takes, the cost, and what you’re entitled to.  Relying on what your cousin Susie or your neighbor John got in his/her divorce will NOT help you.
  2. If you have decided to divorce, then you can make sure that you have all the information – documents, financial information, deeds, insurance documents, etc. – gathered together that you will need.  It only takes a flash of anger from your ex to make this information disappear once you’ve filed and served papers.
  3. You may make a mistake and not even know it.  On countless occasions I have had to unravel mistakes made by unrepresented clients or clients who have gone to a document preparer or a paralegal to file their paperwork.  It costs much more and takes a great deal of time to undo a mistake than it does to do it right the first time.
  4. Mistakes can happen in paperwork, and they can happen in court.  A trained and experienced lawyer is going to know how to act in court and in front of the judge, and if you do so improperly, then you can dig yourself into a hole that’s nearly impossible to get out of.  Your whole life is on the line: your children, your home, your income, your assets, and your future.  Isn’t that worth getting proper advice?

A divorce attorney consultation is a few hundred dollars that will serve you in the long run, and help you to avoid these costly mistakes.

Series Two: Hearings, Courtroom Decorum, Judges and Procedure

I decided to make a small change to my plan from last week (year! decade!). I am going to save my selected issues for a little later, and start on my next series now: hearings, courtroom decorum, judges and procedure.

We’ll start with hearings: what they are and why we have them. When you file for divorce (or any family law action), your goal is to come to a complete and final agreement with regard to your property and your children. Sometimes, this is accomplished in one sitting. Most often, however, it takes a number of meetings and months (if not years) to accomplish this. During the time that you’re working out the final agreement, you will need intermediate orders. These orders help you to determine who will pay for what and when, who will live where, where your children will live, and how they will be supported. This is where the OSC comes in.

An OSC is an Order to Show Cause, which is the way we ask the court for orders on these and other issues. You prepare the OSC asking for what you want and explaining why you need it. An example is:

“I am requesting that the court make orders regarding custody and visitation for our daughter because we are now living apart and need some help coming to an agreement.”

This is, obviously, a very simplified example, and most OSCs are much more detailed and frequently come with detailed declarations regarding the various aspects of the situation.

When you file your OSC with the court clerk, you will receive a hearing before the court any time within about 6-10 weeks after you file. The time lag depends on the court and the county, and can be a really long time. In Solano County, the wait was nearly six months for a time.

Next time, we’ll talk about what happens while you wait for your hearing…