mclarnan-dugan lawareas of practice
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California has established two grounds under which an individual can seek a divorce. The first, and most common ground is irreconcilable differences. The other ground is incurable insanity. California is a no fault state which does not require the showing of fault before a divorce can be granted.
To obtain a divorce in California you must have been a resident of the State of California for the six months immediately preceding filing your Petition for Divorce and a resident of the county you are filing in for at least three months.
There is a statutory waiting period in California which requires that a divorce cannot be final until six months and one day after the Respondent or Defendant has been served with the Summons and Petition for Dissolution.
Under California Family Code the parties may choose to obtain a legal separation instead of a divorce which will give them all of the orders available under a divorce, but will leave them with the status of married and unable to marry another individual at the end of the case.
Once the legal separation is finalized should the parties desire to marry another individual, they must obtain a divorce and commence the divorce process anew.
Property Division and Settlements
● the Real Property acquired and owned by the parties;
● Vehicles owned by the parties;
● Pension Plans, 401Ks, IRAs, Annuities;
● Whole Life Insurance Policies;
● Financial Accounts, Bonds, Stock, Bank Accounts;
● Businesses owned by the parties.
Separate property assets are those which one of the parties brought into the marriage, inherited during the marriage, received by gift during the marriage, or acquired after separation. Separate property assets and debts are awarded to the party owning the asset or incurring the debt. Also included as separate property are:
● Personal Injury Awards for injuries suffered;
● Student Loans;
● Debts incurred before marriage or incurred on separate property of the spouse;
● Pension Plans, 401Ks, IRAs, Annuities acquired before marriage.
Child and Spousal Support
Child support is defined as the ongoing monetary expenditures to cover the children’s necessary needs. California Family Code provides that child support is to be paid each month until the child dies, marries, is emancipated by decree, becomes self-supporting, attains the age of 18 and is not a full time high school student, residing with a parent.
In California child support is determined via a Court authorized computer program and is based upon various factors:
● each parent’s monthly gross (before taxes) income;
● current custody arrangements for the child;
● which parent pays health insurance for the child;
● any other children either parent has that are not from this parent union;
● various other allowable deductions under the Family Code for mandatory retirement payments, union dues, property taxes, and mortgage payments.
California Family Code also provides that uninsured medical expenses, child care costs, and special educational needs shall be shared equally between the parents.
Until the child is no longer entitled to receive child support, the Court retains jurisdiction to modify the support for the best interest of the child.
Spousal Support, also known as alimony, is a financial award intended to maintain the standard of living of the parties. Temporary support is intended to allow the dependent or supported spouse to have the opportunity to maintain the standard of living achieved during the marriage while moving forward to becoming self supporting.
Permanent or long-term support is determined at time of trial and is dependent upon the various factors set forth in Family Code section 4320. Some of these factors include:
● each spouse’s current income;
● what is needed to get the supported spouse back into the work force;
● the amount of time the supported spouse was out of the work force raising children;
● the supported spouse’s previous education and whether any additional education or retraining is needed;
● the length of the marriage, the age and the health of the parties;
● the marital standard of living;
● the age and any special needs of the children;
● any domestic abuse that occurred during the marriage;
Once these and other factors are reviewed by the Court a determination of the amount of permanent or long-term support is set by the Court.
It is the goal of the State of California that the supported party shall be self-supporting within a reasonable period of time.
Spousal support continues until either party’s death, remarriage of the receiving party, cohabitation of the receiving party, modification, revocation, or by further order of the Court, whichever occurs first. The duration of support is dependent upon the facts of each case.
Spousal support is taxable to the recipient and tax deductible to the payor.
Once the parties are divorced medical insurance is no longer available to the spouse of the insured party. Some insurance plans offer COBRA policies which will continue the insurance for the spouse for a period of 36 months. However, the premiums are the responsibility of the divorced spouse.
Legal custody is the right to make legal decisions regarding your children:
● where will they will attend school;
● what religion they will practice;
● what elective medical treatment they will receive;
● what extra curricular activities they will participate in;
● what medical, dental, vision, or counselor they will see.
Physical Custody is the hands on day in day out raising of your children.
● Where are the children going to live?
● Do the parents live close enough to share the children equally? Is there a reason not to?
● Do both parents help with homework?
● Do both attend the agreed upon extra curricular activities?
Both legal custody and physical custody can be sole with the one parent making all of the decisions, the child living with that parent and the other parent having reasonable and continuing visitations; OR they can be joint with both parents making legal decisions and the child going back and forth between the parents’ homes on a reasonable schedule; OR there can also be a combination of joint or sole custody of the children which works best for the family.
For a man to be recognized as the father of a child, he must either sign the Voluntary Declaration of Paternity form provided by the hospital where the child is born and/or file a Petition to Establish a Parental Relationship with the Court and have the Court determine that he is the biological father of the child.
There are many reasons that it is important to establish this parental relationship. Mother may want to establish this relationship to obtain financial support for the child. Father may want to establish this relationship to have a parent/child relationship with the child. The Child may want to establish this relationship to receive financial support, medical and insurance benefits, inheritance, and more importantly the right to form a parental relationship with his father and his father’s family members.
Pre-Nuptial or Cohabitation Agreements
If you are contemplating moving your relationship to the next level in an organized and open manner aimed at improving your communication, a cohabitation or pre-nuptial agreement will allow you to:
● Define each party’s respective property rights following their marriage or commencement of cohabitation;
● Define each party’s right to manage and control all community real and personal property; and, separate real and personal property;
● Define how federal and state income tax returns will be handled;
● Define how the care and support of children from a previous relationship will be handled;
● Define the parties rights to spousal support in the event of a divorce or legal separation;
● Define the responsibility of each party for the joint debts incurred during the relationship.
The parties who mediate their disputes often find that the costs they incur are significantly less than the parties who fight out their disputes in Court. Any issue that is mediated could mean a reduction in your legal fees. Even if the parties do not reach a full settlement and must have the Judge decide a few issues, the cost savings is enormous and the emotional relief is priceless.
Some of the best results are achieved when the parties sit down and mediate their disputes. If a mediated agreement can be reached and turned into Orders, the parties can usually live with them easier than the Orders which are arbitrarily made by a Judge.
If the action is mediated, a full settlement is reached and reduced to writing which is signed by the parties, their fully executed Judgment can be filed with the Court and the parties will not need to go to Court at all.
Unlike collaborative divorce proceedings where the parties are required to hire new attorneys if the mediation process breaks down, the attorney you hire to assist you in mediation can continue to represent you in Court.
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Everyone benefits from having an Estate Plan. Without having even the bare minimum Estate Plan you are leaving the handling of your Estate after your death to the IRS and the State of California. They will make sure your debts are paid and then determine to whom your Estate will be distributed.
No matter how simple or how complicated your Will is, it must be probated. There is no way to transfer your Estate assets from you to your beneficiaries without a Court Order. The Court will make orders that your debts be paid and your assets distributed to your designated beneficiaries. Because your Will is filed with the Court it becomes a public record.
Preparing a Will is relatively inexpensive compared to other Estate Planning methods. The fees which can be charged for probating a Will are set forth in the Probate Code. However, the cost of probating a Will can be substantial and can take months or years to complete. You need to consider what your needs are both presently as well as going forward.
Revocable Living Trust
If you become unable to handle your affairs through either illness or accident, the Successor Trustee of your choosing will take over and follow the instructions set forth in your Trust for handling the Estate during your lifetime. Upon your death the Successor Trustee whom you have appointed will handle your Estate pursuant to your instructions in the Trust.
In order to establish a Trust your assets must be transferred into the name of your Trust so they can be used to take care of your needs during your life time and then transferred to whomever you designated as your beneficiary upon your death. This allows your Successor Trustee to handle your Estate as you have instructed without going through Probate.
In your Trust you can set forth provisions which govern the distribution of your assets, maintaining them in your Trust until the occurrence of a specific event or date at which time they will be distributed. For example where your Estate is being distributed to minors, minors cannot inherit or receive their share of your Estate until they reach the age of majority, which in California is 18 years of age. However, you can instruct your Successor Trustee to provide certain benefits for them, to hold their share of your Estate until they are older, or to distribute only a portion of their share until they have met certain conditions.
Likewise, if you have a beneficiary who is a special needs individual and is receiving government benefits because of their special needs, you can establish a “Special Needs Trust” within your Trust so that person does not directly receive their share of your Estate and lose their benefits.
You can also set up your Trust to take advantage of various tax benefits so you conserve your Estate for your beneficiaries.
Special Needs Trusts
Funds being held in the special needs trust can be used to supply items which will benefit the family member without causing them to lose their benefits. Does your special needs family member need high ticket items such as a wheelchair, a vehicle which has been modified to allow them to be transported, or is it as simple as a tape player to allow them to listen to books on tape? The funds in the special needs trust can be used to purchase items such as these.
If you do nothing to establish an Estate Plan, be it either a Will or a Trust, you are said to have died “intestate”. Without any Estate Plan, upon your death, your Estate will need to be probated.
If you only have a Will, you are said to have died “testate”. Your Will will need to be Probated.
A Declaration of Small Estate is prepared with a copy of the Decedent’s Death Certificate attached and is signed by the beneficiaries, if there is a Will, or by the Decedent’s heirs if no Will. The Declaration can then be presented to the holder of Decedent’s Estate, such as a bank or other holder of the asset, to claim the asset for themselves.
A conservator is an individual you nominate in advance to handle your personal needs should you become incompetent and unable to make decisions for your personal care. The conservator will need to petition the Court to obtain Letters of Conservatorship which allows them to make decisions for your medical and financial needs. They will make decisions as to where you will live, what medical treatment you will receive, and take care of safeguarding your finances by paying your bills and making sure that no one takes advantage of you.
A guardian is a person of your choice who is appointed to take custody of your children should you become incompetent and unable to do so OR die. In your Estate Plan you can nominate a guardian for your children and give instructions on how you want your children raised and how your Estate should be used for their benefit. Quite often the guardian you nominate will be a relative or close friend who you know and trust to take care of your children the way you would want them taken care of.
The guardian will need to petition the Court for Letters of Guardianship to allow them to make decisions for your child’s medical, educational, and financial needs.
Power of Attorney for Asset Management
Power of Attorney for Healthcare
An Agent is appointed by you to make medical decisions for you on a short term basis should you be unable to do so. Once you are again able to make your own decisions, the agent would no longer have the right to make these decisions for you.
Your agent, will have the right to:
● Consent or refuse consent to any care, treatment, service, or procedure to maintain, diagnose, or otherwise affect a physical or mental condition;
● Select or discharge health care providers and institutions;
● Approve or disapprove diagnostic tests, surgical procedures, and programs of medication;
● Direct the provision, withholding, or withdrawal of artificial nutrition and hydration and all other forms of health care, including cardiopulmonary resuscitation;
● Make anatomical gifts, authorize an autopsy, and direct disposition of remains.
This accounting is more than providing the Court with the checkbook register. It includes preparing an accounting showing sales of assets, purchasing of assets, investing of asset and accounting for any change in the Estate.
These accountings can be lengthy and complex documents intended to educate the Court as to what has happened in the Estate during the previous period of time.