Friday, November 15, 2013

Estate Planning

We also do estate planning. For many in California it is cheaper to get a living trust done, then the standard cost of probating an estate after you die simply because you own a home. Although we are willing to charge hourly on a sliding scale, most probate attorney's charge based upon the probate statutes, which allow a percentage of the gross estate amount. A person owning a $500,000 home, would likely pay about $12,000 just in attorney's fees. The administrator of the estate could also ask for about $10,000. Eating significantly into the assets that you are leaving your family. Due to this, for those that own property in California, I recommend that they have a living trust.

Here is an article from an estate attorney in Colorado discussing the importance of choosing the right administrator of your estate.

Friday, October 18, 2013

Discrediting Witnesses

Sometimes when I send client's the opposing sides' witness list, they immediately respond with you can't trust John because he is a criminal. When I ask for details, they do not always know or often they are not things that we can use in court.

If you have evidence of the witness being CONVICTED of a felony or of a misdemeanor that is based on a dishonest act (fraud, theft, perjury) within the past 10 years then you can use that to discredit the witness. However if the witness does not testify truthfully, you will need to have a certified copy of the court record indicating the conviction for the crime. Otherwise, you have to drop the issue after the witness answers no to the question regarding convictions. In California, you cannot ask generally about arrests, but you can ask generally about felony convictions that have occurred within the past 10 years.

If you truly believe that one of the witnesses has been convicted of a felony, then it is often a good idea to hire a private investigator to do the background checks. Otherwise you can go down to the various courthouses and do a check based on their name, city, and birth date. However, this often takes a lot of time and visits to various courthouses. The private investigator is often well worth the extra money for their services.

Sunday, September 15, 2013

Put the Child First...

In the heat of a messy divorce, parents often forget to think about the best interest of the children. They do this by focusing on hurting the other parent, failing to realize the impact of fighting in front of the children, or by making negative comments about the other parent within ear shot of the children. All of these things put the children in the middle and often results in emotional harm.

There are often organizations that provide sliding scale services to parents and children in an effort to counter act the impact of divorce of the family unit. In the Bay Area, programs like Kid's Turn ( provide families with workshops to foster communication, explain divorce to the children, and more. In areas where similar programs may not exist, courts often recommend co-parenting sessions with a marriage and family therapist. They do not focus on your relationship, but do focus on being able to put issues aside long enough to have open dialogue about the needs of the children so that parents can share joint legal custody effectively, and to be around each other at important events in the children's lives.

Like it or not, you will likely have to be involved with each other in some way for the rest of your lives - birthdays, holidays, funerals, weddings, graduations, grandkids, etc. Trying to find a method where you can communicate effectively, or at least be in the same room even if not talking at all, is important to do early on so that the children are not put in a position of choosing between their parents.

Friday, August 9, 2013

Child Support Modifications

Part of the initial divorce process is establishing child support. A court will rarely do a dissolution involving children without establishing guideline child support based upon a statute based formula that although based on multiple factors largely depends on the income of each party and the amount of custodial time they have with the children. However where both parties have joint physical and legal custody and where both parents make around the same income so that  neither is on government aid and the children would not  be disadvantaged by withholding support, or in cases where the custodial parent makes significantly more money that the other party, courts will often sign off on an agreement to not order child support. However unlike spousal support where the right for it can be terminated, child support rights exist until the children are 18 years old (or 19 if they are still in high school). 

If a judge signs off on an order for less than the guideline amount set by the state formula then the party receiving support can essentially ask the court for a modification up to the formula amount without there being any changes in income or custodial time. Otherwise in order to get a change in the amount, there needs to be a change in circumstance from when the initial order was made. This change in circumstance is usually someone making more money, less money, or the visitation arrangements changing. All of those circumstances could drastically change the support amount. 

The amount of support does not just automatically change because you get a court order changing the custody and visitation arrangements. It is the responsibility of the parties to either agree to a modification and file it with the court or to request an order from the court to modify the child support. You will only get a change in support from the date that your motion (request for order) is filed with the court, so it is important to act sooner rather than later. 

If the Department of Child Support Services is involved in your case already then you should contact them to help you make changes to the support amount. If you need help enforcing or establishing an initial order for child support, that is something that you your county's Department of Child Support Services can help with as well. However they do not aid in establishing spousal support, creating a custody and visitation order, and many other issues that you should hire an attorney for. 

Sunday, July 7, 2013

Living Trust or Will?

California is one of the states that permits a living trust. Basically you hold on to ownership and control of all of your property while you are alive (without the various tax ramifications of a formal trust) and then when you die the trust owns all of your property - therefore avoiding probate (and the associated costs).

In California, I generally recommend to anyone that owns a home here, that they have a living trust instead of a will. A will needs to go through probate court after you die, and generally costs your estate between $10,000 - 40,000 in attorney's fees. If you have a living trust you may pay $1500 - $5000 up front while you are alive, but you avoid the additional cost of going to probate court.

Often you can get a living trust in a bundle. We do a bundle with a pour over will, a living trust, a power of attorney, and a health care directive all together. Since we charge on a sliding scale, the total cost can be anywhere between $600 - $2500 for this service. Call us today for a quote for you. We also do deals for married couples.

Sunday, March 10, 2013

Why Mediation?

In California, mediation regarding child custody/visitation matters is required prior to the judge issuing a final order in your case. You go into this mediation without your attorneys and meet with a court approved marriage and family counselor who meets with both parties in the hope that they will come to some sort of agreement. California feels that attorney's get in the way, so we are not invited. It is important that you talk to your attorney in advance to prepare you for the mediation.

Additionally in some counties, such as Alameda County, the mediator is a Recommending Counselor, meaning that if you do not reach an agreement, the Counselor will send a recommendation to the court of what they feel is in the child's best interest. The Judge often gives the recommendation great weight because they feel that the mediator must know something that they do not since the rules of evidence are different in court than in the mediator meeting. Additionally the mediator often spends a hour or so with the parties instead of just 15 min in court that the Judge sees them. Due to this it is imperative that you work with an attorney to fully understand what arguments are given higher weight, what you should bring, what issues you should focus on, etc.

Even in counties that do not have a recommendation, the counselor will provide a break down to the court of where each party stands, the likelihood that they will reach an agreement, etc. So it is very important that the mediator be on your side.

Tuesday, February 12, 2013

3 day notices

If you are a landlord and you are serving a 3 day notice to pay or quit it is imperative that the notice includes specific details. Hiring an attorney to help you with this process instead of just using a form you found online is essentially to making sure that you are meeting the up to date requirements. If you take your case all the way to court to do the eviction and your notice was incorrect, the case will be dismissed by the judge and you will have to start all over again. This gives the tenant extra time to live in your house without paying rent, and all the court costs, service fees, and possibly attorney's fees that you paid go right out the window.

Do yourself a favor and pay an attorney to help you draft the 3 day notice. Our service charges $150.00 for a 3 day notice. Additional Service fees may apply.

Tuesday, January 22, 2013

Why it is often worth it to settle

While I understand the desire to either have your day in court or stick it to that cheater, etc it often is not in your best interest. Time and time again we see people pay more in attorney's fees than the asset that they are fighting over. This is all well and good if the object is sentimental, however more often than not it is money that we are talking about.

Sometimes to argue over the value of an asset people will hire specialists to come in an appraise the item (house, jewelry, etc). While sometime this is 100% necessary, it is always important to sit down and evaluate whether it is in your best interest to argue over the difference.

Although we try to educate our clients as much as possible, I often see the other side happily collecting $2000 in attorney's fees to argue over $900. Sometimes it is in your best interest to keep the money in the family and split the asset, or agree on a middle number, etc.

This sometimes is true when it comes to child support and spousal support numbers. Although very formulaic in most cases, when you have to prove how much money someone makes the fees you pay an attorney to dig through discovery documents of taxes, bank account statements, credit card statements, etc. can add up very fast.

Always talk to your attorney about the cost-benefit analysis.

Friday, January 4, 2013

Why you hire a Family Law Attorney

First off when looking for an attorney to hire your family law case, it is imperative that you hire one that practices family law regularly (hopefully primarily). There is a misnomer around attorneys and others that any attorney can handle a family law case because the best interest of the child standard is a little bit less black and white than other areas. However, family law attorneys not only know the statutes, cases, and the general law of the family court system in California, but they also know how the particular judge - or judges in general are likely to react to an issue.

You hire us for this expertise and our overall advice. However there are many clients who then want to focus on one issue in the case, very important to them, but sometimes inapplicable legally to the issue before the judge. They ignore the fact that we are there to get you to be realistic about what a Judge will order and they end up a much worse deal than if they had listened to their attorney's advice.

In California, all parties in family law are required to go to mediation and in Alameda County, Contra Costa county, and some other Bay Area counties as well they are Recommending Counselors - meaning that if the parties do not come to an agreement that they will suggest to the Judge what they feel is the best interest of the parties and the child. Guess what! Almost 100% of the time, the Judge will order what the mediator suggests.

Due to this, you hire your attorney to 1) help with the ton of paperwork required to get a divorce or custody matter, etc resolved and 2) to prepare you for the mediation so that you know what you are willing to agree to in advance and you know what the Judge is likely to rule (or mediator suggest) if you do not come to an agreement. That way you are prepared to be reasonable and may get the other side to agree to something more in your favor than a Judge likely would have ordered.