How to file for divorce in California

Filing for divorce in California is pretty simple – you just file a form with the clerk. After making the difficult and emotional decision (usually it’s emotional and difficult; there are exceptions), the actual filing can be a bit anticlimactic, if pricey.  All you need to do is fill out the Family Law Summons, Petition, and the Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which is a form you need only if you have children of the marriage.  All three forms are pretty straightforward, but they do need to be completed properly to ensure your rights are protected.

For example, the Family Law Petition outlines the basic issues in the case.  It isn’t a formal request for anything, but rather is a form that defines the universe of the issues in your case.  It is the Family Law RFO (Request for Order) or motion that gets you before the judge asking for the judge to make orders, not the Petition.  So if you mark on your Petition that you want your ex to pay your attorney fees, you won’t get those unless and until you also file a court motion, which is separate from the Petition.  Many of my clients come in to my office, upset that their ex has marked something on the Petition, when there’s nothing to get upset about.

Of course, once you have filed the documents, you need to serve them on your ex, which can be easy or difficult, depending on your situation.  Of course, you cannot serve the documents – they must be served by someone who is not you but is over 18 years of age.

And with that, your divorce is underway…

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How to qualify for MediCal for nursing home care and keep your assets

To qualify for Medi-Cal, one must not have more than $2,000 of countable assets and $35 in income each month. But this rather scary figure leaves out the rest of the story, which is considerably less frightening.

First, the asset rules. The $2,000 limit is for “countable” assets only, and countable assets do not include your home (and furnishings/contents within your home), your car, your retirement (IRA, 401k – though there are special rules for these so don’t ever assume you can properly plan on your own with an article about Medi-Cal basics) and certain other assets. In addition, if you are married, your spouse can keep up to $119,220 (in 2016) in countable assets.

In terms of income, the spouse of a married applicant can keep ALL income in his/her name and can even receive income from the Medi-Cal applicant spouse if the well spouse’s income is below about $3,000. The rest of the income of the applicant spouse goes towards their “share of costs” for the nursing home care, and is likened to a copay or deductible.

But that’s not all. First, there are legal ways to transfer your assets to protect them, in effect keeping more than the stated limits (there are pros and cons to these kinds of arrangements, but my clients pretty uniformly consider the cons to be far less difficult than paying $10,000 or more a month on nursing home care). This kind of Medi-Cal planning is quite common even though it’s not very well known. In addition, it can be possible to ask the court to increase the limits in certain situations. There are a lot of available options for qualifying for Medi-Cal if you have more than $2,000 in assets – or more than $119,220 – even if your assets and estate are substantially more than these limits.

Give us a call at 925.307.6543 or click here to make an appointment directly using our online scheduling. We have offices all over the Bay Area for your convenience, with our main office in Dublin and satellite offices in Oakland, Walnut Creek, San Francisco, San Mateo, Palo Alto, Sunnyvale, San Rafael and Antioch.

What’s the difference between Medicare & MediCal for nursing home care?

Medicare and Medi-Cal are different governmental programs, both of which can be used to pay for nursing home care. Medicare is health insurance that is federally-funded and available to those 65 and over or are disabled. There are no income or resource requirements for Medicare. Medicare will pay for up to 20 days of skilled nursing home care after three days of hospitalization. Medicare will also pay for additional nursing home care days past day 20, up to a limit of 100 days, with a daily co-pay and only if the individual continues to show improvement in the condition that sent them to nursing care. Anyone in skilled nursing home care past 100 days must either pay on their own for the care (“private pay”) or apply for Medi-Cal. Once approved, Medi-Cal will pay for skilled nursing home care indefinitely, regardless of whether the patient improves or not. Monthly expenses for skilled nursing home care averages around $8,000 monthly in California, but very often in practice can cost between $10-15,000 monthly.

If you think it’s confusing, you’re not alone. Getting older is not for the weak! We’d love to help you out if you need more information. Give us a call or schedule a free consultation today!

Getting a divorce in California? Here’s how to decide if you need a lawyer

Making the decision to get a divorce can be very difficult, but once the decision has been made, deciding whether you can do it on your own or if you need an attorney can be nearly as difficult.  How do you find someone? How do you know if they’re any good? What is it going to cost? These are all important concerns that can make the process of hiring an attorney – or even just interviewing one – difficult. Here are a few tips to get you started:

1. Determine if you can do it on your own. You and your ex getting along?  That’s a good first step.  Do some research and see if it looks like something you can figure out by yourself, or if it seems so complicated that you need help.
2. Ask friends and family members if they know someone they can recommend.  If you get a recommendation, ask them why they are recommending that person – someone’s fabulous attorney could be your nightmare.
3. Interview more than one attorney.  Attorneys vary widely in their approach, mannerisms, attitude, skill and professionalism.  Find someone who you think you can work with successfully.
4. Consider alternative options, such as mediationor unbundled services. Some attorneys, like us, will give you help on only the issues you need & you can handle the rest. This can both bring down the cost and the hostility of the divorce.
5. When you meet with an attorney, ask them questions about how they approach their cases, whether they have had cases like yours before, and what they will do to help you keep costs down.  Set the expectations up front so you both are clear.  Ask about how often and in what way you will communicate, too, so neither of you ends up frustrated later.

Need more help? You can use the link to the right to schedule an appointment online.

Getting divorced? How to avoid disaster by steering clear of these all-too-common mistakes

I’ve talked before about how divorce is nearly always much more expensive and time-consuming than you ever expect it to be – frequently many times more – and given tips on how to not only reduce this time and expense, but how to reduce the stress and toll the divorce process has on you and your children.  Particularly in California divorce, and divorce in the Bay Area, courts are overcrowded and lawyers expensive, so this problem is exacerbated.

There are things you can do to ease the process – for example, hiring an experienced attorney to help you – but there are also things you can do in your relationship with your ex that will make the process go more smoothly.  The marriage may be over, and even perhaps the friendship and trust that certainly existed at some point, but if you have children, there is still going to be a relationship of some sort, and what you say and do – how you conduct yourself – will have a large bearing on what the post-divorce relationship looks like.  Even if you don’t have children with your ex, you still have to maintain a relationship to get through the divorce process.  Here are some tips to help you through:

1. Divorce is hard.  It’s hard on both of you.  Focusing on the reasons for the divorce or bringing up old arguments will do nothing but make it all worse.  The marriage is over, don’t dwell on these things.  If you have issues – anger, sadness, resentment – then work on them with a qualified therapist.  Don’t make it worse on you, your ex and your children by hanging on to issues that no longer matter.  One qualifier: if the issues you’re focused on involve concerns about your children (substance abuse, violence, neglect, for example), then these are relevant to the divorce case.  Never listening to you, not picking up socks, and that pesky affair are not generally going to be issues that move your case along.
2. Make sure you know what you’re talking about before you open your mouth.  Threatening to “take custody” or to quit your job to avoid child support or bad-mouthing your ex’s lawyer do nothing but make the emotions in your case escalate.  Yes, we all can say things we don’t mean when we’re angry.  All the more reason to think before speaking to your ex.  This is agreat articleabout the nasty things spouses say to each other in a divorce – and why they’re empty threats.
3. This is an issue I’ve talked about before – as soon as you possibly can, start thinking of the divorce in business-like terms.  Once you decide to divorce, the court and legal process essentially strips all emotion out of the equation and gets to the business of dividing assets, determining appropriate support, and working out the child custody and child visitation schedule.  Try to look at the divorce as a business transaction, because that’s what the court is doing.  It’s the break-up of a family unit, so each side gets half of what’s in the family.  Removing your emotions in the court process (and keeping them reserved for therapy, for example) will help to move the process along because you will not be delaying the process on emotional grounds.
4. One last tip for those working with legal professionals: refuse to work or stop working with someone who is making the process worse.  Unfortunately for you, lawyers benefit financially when cases take longer and are more acrimonious.  If your lawyer tells you to stop talking to your ex (saying all communication has to be through the lawyers) or discourages you from making a reasonable settlement in favor of an expensive trial, find someone else to work with.  You’ll all be better served in the long run.

Or, I suppose if you have endless funds, time and anger, you can do all of the above, fight for years, and make a few lawyers rich.  It happens, all too often.  Remember, you get to choose how your divorce proceeds.  Which will you choose?

So, your spouse has hired a lawyer in your California divorce. What do you do? How to negotiate with OPC (opposing counsel)

One of the most terrifying things you can experience in a divorce is coming into court, expecting the hearing to be between you and your spouse, and finding out that your spouse has hired an attorney.  It can be scary.  Lawyers vary, too, in how they deal with unrepresented litigants.  I am always polite but firm.  I know one attorney who is outright nasty, from calling the other party names to threatening them to yelling at them.  You can’t always expect that an attorney is going to be civil…or even professional, unfortunately.

So, what do you do?  First, if you find yourself in the situation, and you want to or think you can hire an attorney, ask the judge at your hearing to continue (postpone) the hearing so you don’ t have to go forward and get steamrolled by the attorney.  Then get thee some legal advice and/or a lawyer, ASAP!  Generally judges will allow unrepresented parties a break if blindsided by an attorney at a hearing.

Second, if you get an attorney or other help or not, make sure you learn as much as you can about your case and the law.  The more you know, the better decisions you’ll make and quite possibly, the less you’ll pay for your attorney. Third, remember that the attorney is getting paid to do a job, and is also a person as well as an attorney.  If the attorney is rude or says things you don’t like, it’s not because they have it out for you.  They’re doing their job.  They also may be a fantastic attorney, or they may not be so knowledgeable or experienced.  They may be having a bad day.  They may hate their client.  You just don’t know what’s going on in their head, but if you treat them like you would treat your ex (react emotionally, take offense to everything, or reject everything they say simply because they’re saying it), it’s not going to be productive.

Fourth, remember to keep your eye on the ball (and the bill!).  Don’t spend $1,000 on attorney fees over a $500 stereo.  If the other attorney has a reasonable proposal, don’t refuse to agree to it out of mistrust. I’ve had many clients insist that I draft settlement documents because they didn’t trust the other side.  In certain cases, this is appropriate since the other side might be sneaky. But in many cases, this just isn’t true and by having your own attorney prepare documents, you’re just upping the bill for yourself.

Finally, try to keep it together.  If you tend to be overly emotional, see a therapist.  Lawyers won’t help with this at all – they’re not trained for it and they’re much, much more expensive than a therapist.  As soon as you can and as much as you can, try to view the divorce as a business relationship breaking apart.  This is the way the court sees it, so the sooner you get on board, the better.  This may see impossible, but it can and should be done as it will be better for everyone.

Want more help? Use the link to the right to schedule an appointment online.

Divorce in the new year? What you need to get started & exclusive offer

I read a recent article about divorce in the new year, and wanted to take the opportunity to give a little advice I have learned over the nearly 15 years I have been practicing divorce law: get the information you need before you make a decision.  Do you think you’re headed for divorce in 2017? Have you already decided, and what’s left is to pull the trigger? Are you wanting to proceed but perhaps anxious, nervous or scared about the process, time and expense involved?

I offer comprehensive consultations because I think that it’s critical for anyone thinking of divorce to understand your rights and the various options open to you and your circumstances (here’s a bit more about our consultation philosophy).  Even if you haven’t decided, getting the accurate and specific-to-you advice can help you to make a more informed decision. In addition, it can help you to understand what to expect, which can make the entire process easier.  Divorce is hard enough as it is – anything that can make the process easier is extremely valuable.

So whether it’s signing up for my FREE divorce series, getting a book on divorce, or scheduling a consultation with us, get the information you need before you decide on your course of action.  To make this easier, I am offering a 30% off discount for consultations scheduled in January. Instead of the usual $300 cost, mention this blog post and I’ll give you an hour of my time for $200 – 1/3 of my regular hourly rate!

To remind you of what you get in a consultation with me: I want to spend our time answering your questions and giving you the most advice I can.  To that end, I try to gather as much information about you and your situation as I can, in advance. I’ll look at your documents, review a written narrative of what’s going on, have you complete my intake form so we don’t waste time with me gathering basic information, and get a list of your specific questions.  That way, we can hit the ground running when you come in to see me. The hour is packed with information you can use immediately and I don’t know of any attorney who does what I do.

What are you waiting for?  Call me at 925.307.6543, email me directly at cmm@mcphersonlawgroup.com or schedule an appointment by clicking here.

I’ve heard about Medi-Cal planning but is it really legal…?

This is such a common question! We try not to be offended by it, because of course we would never do anything that is illegal or unethical. But we do understand that you don’t know us (yet) and may not be aware of our honesty, high ethics and good moral character. For more on our personal mission to help seniors, click here for “Christina’s Story.” But back to the question:

There are a couple reasons why Medi-Cal planning is still something you may not have heard much about. First, the strategies for Medi-Cal planning have changed a lot over the years. In the 1980s, spending down your estate was really the only option and lawyers weren’t very involved. It was really only those with really large estates that were doing any kind of planning. As time passed, those qualifying for Medi-Cal started giving their assets to their children for safekeeping, essentially, and this strategy worked for a long time. But when the economy crashed in 2009, many aging parents saw their children use and spend their money out of what they saw as necessity to save their own homes when they were struggling. Thus the strategy for gifting to adult children became less attractive and lawyers started to look at what else would be possible. Then lawyers realized that the strategies used for very wealthy clients to preserve their estates could also be used for smaller estates to qualify for Medi-Cal, and a somewhat new area of law was born. Because it’s rather new and the rules are so complex, most lawyers either don’t know about it or choose not to handle benefit planning. But not knowing about it doesn’t mean there’s anything untoward or unethical or illegal about it!

But you may still be wondering how all of this is legal, especially if you’ve never heard that there are ways to qualify for Medi-Cal if you have more than the maximum income and assets. We’ll return to the tax analogy that’s already served us: One way to understand is to think about the income tax return you file every year & the income tax you pay. We have in our society certain resources, such as accountants/CPAs (and bookkeepers!), and programs such as TurboTax that help us to reduce the taxes we would otherwise pay without these resources. Just think of what we would do if all we had was an IRS tax return form and the IRS instructions to file our taxes, and no help from anyone or anywhere?! Indeed, the government/IRS is not going to come to us with tips and assistance for us on how to reduce our taxes! It is up to the CPAs to review the tax code and its changes and inform us of ways we can lower our tax obligation. In fact, in law school I learned that there is a court case whose specific holding was an explicit right for Americans to do all they can (within the limits of tax and other laws) to reduce our tax payments. We have the right to do this, which you may not know, but strategies to reduce taxes are much more well-known because we all pay taxes (and want to reduce them!). The Medi-Cal benefit and application are as complex as a tax return. But in contrast to tax strategies, Medi-Cal is not only not well-known, but the resources to help seniors remain lean and hard to find. But that doesn’t mean they’re untested or unethical or illegal. Just like with reducing taxes, we’re carefully examining and evaluating all of the rules and regulations, abiding by them, and taking advantage of the options and opportunities available to us within the confines of these rules and regulations. We do nothing that’s remotely illegal and have very high ethical standards that we maintain.

Want more information? Get in touch! We’d be happy to help you & your family.

An attorney who makes house calls?!

Yes, I make house calls.  In fact, the majority of my appointments are in my client’s homes.  I do have an office in Dublin, & several other offices around the Bay Area for Elder Law clients (VA and MediCal benefit planning clients), but I find that the house calls are more common, more appreciated, and better all around.  Here’s why:

1. Many of my clients are older and appreciate not having to travel to an appointment.  I had a client who lived just about 6 miles from my office, but in his mind, my office was in another country!
2. I offer flexible appointment times, such as weekends and evenings, so making the appointment at a client’s home is easier for travel.
3. I appreciate being able to avoid Bay Area traffic, so I work with my clients so we all avoid it.
4. I am not the kind of attorney who sits in her office all day, waiting for the phone to ring, so I am often on the go anyway.
5. It’s not weird.  Really, it never is.  We usually sit in the dining room, at the table, and everyone is more relaxed and comfortable.
6. Ah, comfort.  No one likes to talk about their eventual demise and dividing up their stuff amongst their family.  Being in a safe, familiar environment instead of a stuffy attorney’s office can make it easier (not that my office is stuffy!).
7.  I work with networking partners who work all over the Bay Area, and if I have a referral from Santa Rosa or South San Jose, I can work with them due to my willingness to travel.

My tag line is “Unlike any attorneys you’ve ever met.”  I use this because many of my clients, friends and referral partners tell me this.  I want to blast the stereotypes of lawyers being distant, hard to reach and talk to, stuffy, boring, inflexible, and dismissive.  I know that my clients are putting their lives into my hands, so I want to treat that as if it is the most precious gift, as it is.  My clients and their families deserve the best, so this is what I give to them.

Why do I need Medi-Cal for nursing home care? Doesn’t Medicare pay for that?

Medicare and Medi-Cal are different governmental programs, both of which can be used to pay for nursing home care. Medicare is health insurance that is federally-funded and available to those 65 and over or are disabled. There are no income or resource requirements for Medicare. Medicare will pay for up to 20 days of skilled nursing home care after three days of hospitalization. Medicare will also pay for additional nursing home care days past day 20, up to a limit of 100 days, with a daily co-pay and only if the individual continues to show improvement in the condition that sent them to nursing care. Anyone in skilled nursing home care past 100 days must either pay on their own for the care (“private pay”) or apply for Medi-Cal. Once approved, Medi-Cal will pay for skilled nursing home care indefinitely, regardless of whether the patient improves or not. Monthly expenses for skilled nursing home care averages around $8,000 monthly in California, but very often in practice can cost between $10-15,000 monthly.

If you think it’s confusing, you’re not alone. Getting older is not for the weak! We’d love to help you out if you need more information. Give us a call or schedule a free consultation today!