Family Law

What is dissolution?

Dissolution is the term California uses for divorce. Both dissolution and divorce are the process by which a marriage between two parties is terminated and their respective legal rights and obligations regarding property, child custody and visitation, and child and spousal support are determined.

Does misconduct by either spouse ever come into play in the final judgment of the court and what does it mean that California is a"no-fault" divorce state?

In most cases, misconduct will not be a factor that influences the final judgment of the court. However, that is not always the case. In some circumstances misconduct may become a factor.  For example, under California law, when making a custody determination, the court must consider whether there is evidence of domestic violence. Also, a determination of whether one party will be awarded spousal support may hinge on the issue of a domestic violence conviction. California law also provides that in making a property award, the court may consider misappropriation of an asset by one party to the detriment of the other.

What are the requirements for filing a petition for dissolution of marriage in California?

In order to file a petition for dissolution (“divorce”) of marriage in California, at least one of the parties must have lived in California for at least 6 months and in the county in which the action is filed for at least 3 months.

Must a parent obtain sole custody in order to be awarded child support?

No. A parent may share both legal and physical custody with the other parent, and, depending upon financial circumstances, may still receive child support based on state guidelines.

California is a community property state; what does that mean?

In a community property state, property is classified as either community property, quasi-community property, or separate property.  Community property generally includes income or assets acquired during the course of the marriage (until the parties physically separate with in an intent not to remain together).  Separate property generally includes property owned by a spouse prior to marriage, and gifts or inherited property received during the marriage.  If you or your spouse or partner were living outside of California during your marriage or partnership, and you had any earnings, bought any real estate, or acquired any other type of property that in California would be community property, that property is called quasi-community property.  Quasi-community property is treated as community property.

What is the difference between spousal support and alimony?

Generally, there is no difference. Spousal support is the term that California law uses to refer to what is called “alimony” or “maintenance” in other states.

Estate Planning

What is Probate?

Probate is the court and process that looks after people who cannot make their own personal, health care and financial decisions. These people fall into two general categories: minor children and incapacitated adults.  Probate is also the legal process for people who have died with just a will or no will at all.  Probate proceedings in some states can be expensive and time-consuming. Additionally, the court proceeding and associated documents are all a matter of public record. Many people choose to avoid probate in order to save money, spare their heirs a legal hassle, and keep their personal affairs private.  One of the best ways to avoid probate is with a properly funded trust.

What is Joint Tenancy With Rights of Survivorship?

This is the most common form of asset ownership between spouses. Joint tenancy has the advantage of avoiding probate at the death of the first spouse. However, the surviving spouse should not add the names of other relatives to their assets. Doing so may subject their assets to loss through the debts, bankruptcies, divorces and/or lawsuits of any additional joint tenants. Joint tenancy planning also may result in unnecessary death taxes on the estate of a married couple.

What is a Will?

The document a person signs to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the willmaker dies and the original will is delivered to the Probate Court. Still, everyone with minor children needs a will. It is the only way to appoint the new “parent” of an orphaned child. Special testamentary trust provisions in a will can provide for the management and distribution of assets for your heirs. Additionally, assets can be arranged and coordinated with provisions of the testamentary trusts to avoid death taxes.

What is a Living Will?

Sometimes called an Advanced Health Care Directive, a living will allows you to state your wishes in advance regarding what types of medical life support measures you prefer to have, or have withheld/withdrawn if you are in a terminal condition (without reasonable hope of recovery) and cannot express your wishes yourself. The Advanced Health Care Directive also gives someone legal authority to make your health care decisions when you are unable to do so yourself. Oftentimes an Advanced Health Care Directive is executed along with a Durable Power of Attorney for Legal and Financial Affairs, which gives someone legal authority to make your legal and financial decisions when you are unable to do so yourself.

What does Intestacy mean?

In California, intestacy is when you die without a will.  If you die without a will, the California legislature has already determined who will inherit your assets and when they will inherit them. You may not agree with the legislatures plan, but roughly 70 percent of Californians currently use it.  You should not allow the legislature to pick your beneficiaries.  You should do it by creating your own estate plan!

What are Beneficiary Designations?

You may avoid probate on the transfer of some assets at your death through the use of beneficiary designations. Laws regarding what assets may be transferred without probate (non-probate transfer laws) vary from state to state. Some common examples include life insurance death benefits and bank accounts.

What Is a Durable Powers of Attorney and When Do I Need One?

These allow you to appoint someone you know and trust to make your personal legal and financial decisions even when you cannot. If you are incapacitated without these legal documents, then you and your family will be involved in a probate proceeding known as a guardianship and conservatorship. This is the court proceeding where a judge determines who should make these decisions for you under the ongoing supervision of the court.  Oftentimes a Durable Power of Attorney for Legal and Financial Affairs is executed along with an Advanced Health Care Directive, which gives someone legal authority to to make your health care decisions when you are unable to do so yourself.

What is a Revocable Living Trust?

This is an agreement with three parties: the Trustmakers, the Trust Managers, and the Trust Beneficiaries. For example, a husband and wife may name themselves all three parties to create their trust, manage all the assets transferred to the trust, and have full use and enjoyment of all the trust assets as beneficiaries. Further “back-up” managers can step in under the terms of the trust to manage the assets should the couple become incapacitated or die. Special provisions in the trust also control the management and distribution of assets to heirs in the event of the trustmaker’s death. With proper planning, the couple can also avoid or eliminate death taxes on their estate. The Revocable Living Trust may allow them to accomplish all this outside of any court proceeding.

What Might Be Included in a Typical Estate Plan?

A typical estate plan might include a revocable inter vivos trust, wills, property management durable power of attorneys, health care power of attorney (advance health care directives), master assignment of personal property assets to the trust, certification of trust, trust transfer deed transferring your primary residence to the trust, recordation of the quitclaim deed, and final instructions regarding the estate planning documents. Your estate planning needs may not be typical and there might be other, different or additional documents that might be a part of your custom drafted estate plan.