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Take Care of Your Legal Needs

It’s more than half way through the year so this is a great time to take care of some essential legal planning responsibilities – and you’ll feel much better when you do.

Estate planning

Many people mistakenly think of an estate plan as something that matters only when they die, but there’s really much more to it than that. With a thorough and carefully prepared plan in place, your loved ones won’t have to experience the additional stress of wondering about your final wishes (health, financial, etc.) should you become physically incapacitated and unable to share those wishes during a highly emotional time.

If you already have an existing estate plan, take the opportunity to review the plan so it reflects any changes that took place prior to now. Such changes might have included:

  • Got divorced or remarried
  • Blessed with the birth or adoption of an additional child in the family
  • Need to remove or replace an agent or beneficiary who passed away
  • New wishes for how you want to have your medical needs addressed

It’s also important to note that, depending on when you first created your estate plan, California law may have changed in ways that invalidate some provisions (or at least affected them so they’re no longer practical). In my legal practice, for example, I’ve come across very old estate plans that haven’t been modified to accommodate requirements under HIPAA (Health Insurance Portability and Accountability Act) and/or the California Probate Code. Without being updated, such plans could run into serious legal problems at a later date; the same problems you have sought to avoid by creating your estate plan in the first place.

Now’s a good time to check with an experienced lawyer to make sure your estate plan is still legally valid and will carry out your wishes, and, if you do not have an estate plan in place, get to it!

Debt relief

Are you one of the many, many Americans who have been accumulating considerable debt lately? Rather than wallow in this predicament, take advantage of free consultation offered by many debt relief attorneys (including myself)!

We can help you design proactive ways to resolve your debt and gain control of your financial situation, so you can actually move forward without this enormous weight on your shoulders. Don’t wait for debt collectors to start coming after you!

Take action

Stop procrastinating! It’s understandable that people put off their legal planning—after all, approaching a lawyer about estate planning or debt relief or any other legal matter seems like a severely negative thing, and most of us naturally drag our feet on these issues, sometimes until it is too late. But think how much better you’ll feel after you address and resolve these matters directly.

For families and individuals who have enrolled in legal insurance plans, such as Hyatt Legal Plans, ARAG, Workplace Options or Legal Access/LegalEASE and Legal Resources, I suggest you take a closer look at what these plans have to offer. Many plans provide full-service benefits for legal matters like estate planning and debt relief. They’re also very helpful for general legal advice on a wide range of legal matters.

Remember—you don’t have to wait until you’re facing a lawsuit (or initiating one) to get in touch with an attorney. We can help you cope with many of life’s challenges and free you up for other important goals in the coming year.

Are you in need of legal counseling or have any questions about the above topics? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

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A Policy You Didn’t Know You Needed – Legal Insurance Policy

Ever had an unexpected legal matter come up and you didn’t know what to do or who to turn to? Legal services have increased during the pandemic. Coping with a legal issue can be expensive, time-consuming, and emotionally overwhelming. Many employers offer a legal insurance plan as part of their employment benefits but those who sign up tend to forget they have it.

A legal insurance plan is similar to a health insurance plan. (Keep in mind this is not liability insurance either.) By enrolling with an employer’s plan, a small monthly amount is deducted from their paycheck. Employees then can gain access to a nationwide network of high quality legal services, attorneys, and legal resources without the costly legal fees. The legal plan provides a list of approved attorneys for you to choose from. When an attorney accepts your case, they submit a claim to the legal insurance plan provider, usually with little to no further expense to you (beyond minor out-of-pocket costs). Some policies may reimburse you for seeking out-of-network services or offer a discount to their legal services.

Every legal insurance plan provider has its own policies and procedures, but in general they cover a full range of personal legal matters such as the following:

Depending upon which legal insurance plan your employer subscribes to, you may have access to these benefits:

Advice and office consultations. Call an attorney for free advice and/or office consultation. Get guidance on your legal rights in a given situation, as well as access to various online tools and resources. This benefit could lead to preventing a serious legal situation from occurring in the first place.

A resource in times of legal trouble. Should you need a lawyer for any of the cases mentioned above (or others), through your insurance plan, you’ll be in a great position to find the right person for your needs. 

Financial benefits: Review the policy’s coverage for services, rates, discounts that are offered. If you’re unsure what legal benefits your employer provides, I urge you to review the policy with your boss or HR representative. Knowing this ahead of time will have you prepared to know your options.

This employer-provided benefit can reduce the stress of anyone with a legal issue, as well as the time and expense involved. You will feel more in control of the situation and closer to resolving the issue and moving on with your life. Legal insurance coverage is a valuable resource to have access to.

The Law Offices of Ian S. Topf belong to a variety of employer-provided legal insurance plans. Contact us for more information about getting a free consultation .

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What You Need To Know About Wills and Trusts

Many have experienced anxiety by reminding themselves of their own mortality with the COVID-19 pandemic. As a result of this, people are reaching out to me for estate planning. They ask if they need a Will or a Trust? Would they be able to get by with just a Will? As an attorney, I will advise if one needs either a Will, a Trust, or both.

What is a Will?
A Will is a document that states the wishes of a person after his/her death. It is a document that can contain provisions for guardianship over minor children as well as distribution of one’s estate after their death. However, a Will on its own has very little power or authority; a person who is responsible for handling another person’s estate, the “Executor”, cannot just take a copy
of a Will to a financial institution, hand it over to the bank representative and obtain the funds of the deceased. The Executor can only act out the terms of the Will after the Will is submitted to the Court (a.k.a. Probate). The Court will then consider the terms set out in the Will to create Orders authorizing the Executor to act. (A Will is generally only words on a paper until it’s
submitted to Probate and the Court takes action on it.) A Will sets up an estate for Probate… so, is a Trust the only means to avoid the expenses and consumption of time (Probate)? Not necessarily…

Do I need a Trust?
A living revocable trust is a legal instrument that sets out ownership of assets, guidelines for the management of those assets while you are still alive, and distribution of assets after you pass away. Generally when you have a living trust created, you still maintain full control over the assets. In California, the extent and value of your assets determine whether a trust is needed or not.

If the value of your estate is $166,250 or more, or if you own real estate, it is strongly recommended to have a living trust to avoid possible probate when you pass away. It allows the designated agent (Successor Trustee) to act/corral assets and distribute them without court intervention.

When is a Trust not needed? Small Estate Petition/Probate Code 13100
In California, if a person’s estate is under $166,250 and does NOT have an ownership interest in real estate, there is an administrative action that can be taken without going to court to corral and distribute one’s assets. One can obtain a Small Estate Petition (Probate Code 13100). This declaration will be presented to the entity (i.e. financial institution, plan administrator, agency)
who currently has control of the assets being sought, under California law, the declaration will give the entity the authority to release the assets to the deceased’s next of kin/legal heir(s).

Example:
A person has three bank accounts and a car in their name. The total assets are $100,000. The personal representative of the estate may be set out in the person’s Will, or, if there is not a Will, the next of kin/legal heir(s) can sign a Small Estate Petition under Probate Code 13100 to collect personal property of a small estate.

Another consideration when making a decision on whether you need a Will or a Trust or both is that a person cannot just focus on the here and now – a Trust will serve as the depository for current and future assets. Anticipate how your estate will look in the foreseeable future before making the decision.

Unsure if you have sufficient estate planning? Check with a lawyer to verify that your estate is in order. Take control of your estate rather than having your state control your assets when you pass. 

If you have any questions about a new estate plan or in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com.

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Time To Review Your Estate Plan

Here we go again… Another year has passed and with it came life events that may have affected your estate plan, if you in fact have one.

The overwhelming truth is that far too many people don’t plan ahead and if they at one time did have the wherewithal to do so, they forget to update as time goes on. If you don’t have an estate plan, now is the time to get started to give yourself peace of mind. Depending on what you want and what your overall situation is, (financial, family, etc.), there are various ways you can go about it.

Estate planning is not just having a trust or a will to plan for what happens after you pass away. It’s also preparing for having someone act when you cannot due to illness (e.g. Alzheimer’s) or other incapacity. If you just have the shirt on your back, you may be able to get away with a durable power of attorney (for your finances) and advance health care directive (medical), but don’t limit yourself to the here and now. Estate planning goes much further than that; the future you – the one with the family of four and a house in the suburbs – will thank you. It’s on you to reach out to a legal professional to see what you really need.

Over the last couple of weeks, I have had individuals come in and want to discuss recent deaths in their family. They want to know how to take care of their recently departed loved one’s estate. In some cases, there was no estate plan in place and others have old estate plan documents, (circa 1980’s), that were never reviewed and updated. I’m seeing more and more situations where trusts were created but only partially funded, (meaning assets actually transferred to the name of the trust), and others not funded at all. By maintaining an account or property in an individual’s name, the third party who controls the asset (e.g. bank, county recorder) will not recognize the trust and, in many cases, the intended beneficiary will need a court order, (e.g. probate), to receive the asset(s). Again, a properly prepared estate plan and some good advice and guidance from an estate planning attorney now will avoid the hassle of probate.

Do You Have An Estate Plan?

Myth: Estate plans are only for the retired or rich so I don’t need one.

Truth: Everyone has an estate. Have a bank account? How about a car? Everyone needs a way to handle their affairs should they get sick or worse.

There are many reasons for creating your estate plan. In my opinion, the two main ones are as follows:

1. To ensure your wishes are carried out during your lifetime and beyond with as little complication, (cost, time, court involvement), as possible.

2. To organize your life by identifying your assets and obligations, as well as making sure you have a plan in place for both. By creating an estate plan, securing your assets, and having your financial obligations inventoried, you are avoiding a scavenger hunt for your loved ones who would have to figure out what you had and what needs to happen.

Depending on the overall value of your estate, not just now but in the anticipated future, you may only need a basic estate plan (Living Trust, Will, Power of Attorney, and Advance Health Care Directive (including a Living Will)).

When Was The Last Time You Looked Over Your Estate Plan?

For those of you who already have had an estate plan prepared, do not think you’re done. Many people take their estate planning documents, thank their attorney, and then stick it away, (hopefully in a fire safe, safe deposit box, or other secure container), and forget about it. Others may bring it out only when their financial advisor or other third party members need to see it.

Estate planning attorneys recommend that you review your estate plan at least every five to seven years but the reality is that there may be life events that may require updates sooner. These include:

-Additional child to the family

-Purchasing a property or other large asset

-Marriage or divorce

-When a child becomes an adult

-When you move to a different state

-When you want to update beneficiaries

-Family member passes away or is disabled

-Changes in your financial goals

-Changes in federal or state laws involving taxes or investments

-Update your medical needs

Check with an estate planning attorney to make sure that your estate is in order and your actual current wishes are documented. Take control of your estate rather than having your state control your assets when you pass away.

If you have any questions about a new estate plan or are in need of updating your existing estate plan, contact the Law Offices of Ian S. Topf, APC by calling (619) 546-9777 or by email: ian@topf-law.com. The Law Offices of Ian S. Topf, APC offer a free consultation on a variety of issues, including estate planning, family law/divorce, bankruptcy, criminal/DUI matters, and landlord/tenant disputes.

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Are You A Tenant Moving Out? What You Need To Know About Security Deposits

Lately, I have been getting requests regarding terminating a tenancy. What is a tenant to do when facing the end of their lease or if there’s a desire either by the landlord or tenant to terminate the lease early? More importantly, and the most frequently asked question on this matter:  what’s going to happen to the security deposit?

California Civil Code Section 1950.5 mandate that landlords have a hard 21 days after the tenant vacates the premises to return part or all of the security deposit and if the security deposit isn’t fully refunded, an itemized list of deductions.

So a tenant wishing to maximize the amount returned from his or her security deposit should follow some basic but important guidelines:

As soon as the landlord is aware that the tenant will be vacating the property, the landlord is required to give the tenant a written notice of the tenant’s options for a pre-move-out inspection of the premises, where the tenant has a right to be present at the time of the inspection, within a reasonable amount of time prior to the actual move-out date.

  • If the tenant agrees, the inspection needs to happen in the final two weeks with an agreed date and time.
  • If no agreement can be reached on a date and time, the landlord can schedule an inspection within 48 hours of the notice.

My advice to tenants is to try to schedule the pre-move-out inspection well in advance of the actual move-out date, just in case there are noted issues/damages. This will allow the tenant plenty of time to remedy the situation on their own rather than leaving it up to the landlord to take care of it after the tenant has left. In many situations, the damages are minor and can be fixed by the tenant themselves at little cost, while landlords generally hire people to make repairs and pass the costs along to their tenants out of their security deposit.

When conducting the inspection, the landlord usually uses a move-out inspection form, which is typically the same as the move-in form, to note any damage/concerns. So long as the tenant is present, both the landlord and the tenant can have input on the notations on the form. From the observations at the inspection, damages can be evaluated and resolved. It is important for tenants to document the condition of the property both at the inspection and when they actually move out – in other words, take photos.

After the inspection, the landlord may or may not provide the tenant with an itemized statement of the landlord’s intended deductions from the security deposit.   These can include professional cleaning, replacing the carpet, drywall repair, etc.  Tenants should not presume that such a list will be provided before move-out and should insist on promptly getting a copy of the form they completed with the landlord at the inspection.

If a move-out inspection takes place prior to the tenant leaving, the inspection form must include a complete evaluation of the condition of the premises and both the landlord and the tenant will be bound by the notations on same, with certain exceptions; a landlord can include anything that was not listed on the pre-move out inspection only if the damages were hidden by the tenant’s possessions. For example, if the tenant’s furniture blocks a cracked baseboard or a hole in the wall, as long as the landlord can show that they did not have access to the area, it can be added to the list after the tenant vacates to hold the tenant liable for any necessary repairs.   Tenants should compare the itemized deduction list, provided by the landlord with the return of their security deposit, with the move-out inspection report and the tenant’s own notes.

Allowable deductions:

  • Repairs for damages other than normal wear and tear.
  • Cleaning (the residence must be clean as it was when the tenant first moves in).
  • Replacing or repairing personal property, such as garage door remote or keys

What is not deducted:

  • Normal wear and tear, such as faded paint (lifetime of paint: 3-5 years), worn carpet (lifetime of carpet: 5-6 years), or loose grout on bathroom tiles (lifetime of tiles: 25 years).
  • If the residence is as clean moving out as when the tenant moved in, then cleaning costs may be objectionable.
  • Defects to the premises existing prior to the tenant moving in.
  • Any damages not noted by the landlord in the move-out inspection, unless the landlord was unable to ascertain the same due to the tenant’s possessions.

Possible deduction – additionally, unpaid rent may be taken out of a security deposit only if the lease specifically provides for such a deduction.

Additional Words of Advice:  During the move-out inspection, the tenant should give the landlord their forwarding address.  Without knowing where to send the security deposit and itemized list of deductions, the landlord will have a reasonable excuse as to why they could not comply with the 21 day time period for the return of the security deposit.  And that 21 day rule holds steep penalties for landlords:  failing to comply Civil Code Section 1950.5 can subject a landlord to penalties of up to two (2) times the amount withheld, effectively requiring payment to the tenant of a total of three (3) times the amount withheld, along with any fees and costs incurred for having to bring same to the Court’s attention.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf, APC offer a free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What does “No-Fault Divorce” Mean?

In the old days, when a husband or wife wanted to get a divorce, they had to give a reason for this momentous decision or prove why their spouse’s actions (such as adultery, abuse, abandonment, or extreme cruelty) made the marriage no longer possible. This approach to dissolving a marriage frequently led to the types of “ugly” divorces we’ve heard so much about.

In the “no-fault divorce” State of California, that’s all a thing of the past. When one spouse or domestic partner decides the marriage or domestic partnership is over, all they have to do is check a box marked “Irreconcilable differences” and legal proceedings get underway. Under California state law, publicly airing out the bad behavior that may have contributed to the end of the marriage/partnership is no longer necessary. Whatever reason lies behind the dissolution is, in essence, irrelevant to terminating the marriage/partnership.

I still get plenty of clients who come to my office and want to tell me the reasons they feel their marriage/partnership is over. And while it’s good to understand why a person has arrived at such an important, life-changing decision, in the eyes of the law it generally doesn’t matter. In California, the only obligation the person requesting dissolution of marriage/partnership has is that he or she must swear, under penalty of perjury, that the marriage is over. As noted in California Family Code Section 2310(a), you must declare that “irreconcilable differences have led to the irremediable breakdown of the marriage.”

Exceptions that affect the process

But even though the Court isn’t concerned with the specific reasons why you’re filing for divorce/dissolution of domestic partnership, certain exceptions can affect the subsequent process. For example, Family Code Section 3044 sets out a presumption against sole or joint custody of a
child for someone found by a Court to have committed domestic violence against the other party or the child(ren) in the last five (5) years.

Domestic violence can also be a factor in the division of property during a divorce/dissolution of partnership proceeding, with the victim of violence potentially being given more than the traditional 50 percent split of community property.

Another question I usually get is how long my divorce/dissolution of domestic partnership will take. Whether there can be an amicable settlement or there are contested matters, in California, there is a six-month waiting period before the Court will terminate the couple’s marital/partnership status. But even with this mandatory waiting period, two parties in a dissolution action can move forward with all the necessary paperwork and processed by the
Court prior to the end of the six-month waiting period, and while the marriage/partnership will be deemed terminated at the six-month mark, other issues (e.g. child custody, support, property/debt division) can be ordered as promptly as when the Judge signs the Judgment of Dissolution. In other words, important matters don’t have to get put on hold during this
mandatory waiting period.

In general, I believe the “no-fault” provision is a good thing. Two people who no longer wish to remain married shouldn’t be forced to stay together. And requiring that some definitive act or event must occur to justify the divorce (as was necessary in the past) only causes more emotional pain for everyone involved (including children whose own future personal relationships may be
influenced by what they witness from their parents) – a situation that does no one any good.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer free consultation on a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

Elements of an Effective Parenting Plan

Whenever a divorce proceeding takes place and children are involved, issues of child custody and visitation inevitably arise. The goal for everyone involved should be to design a custody and visitation arrangement (also called a “parenting plan”) that effectively addresses the health, education, and well-being of the children.

Typically, parenting plans are organized into two components:

Legal custody: This refers to which parent is responsible for making key decisions affecting the child’s daily life, most often those involving education, religious practice, medical needs, and extracurricular activities. As with physical custody, legal custody can also be either sole or joint,
though joint legal custody entitles each parent to participate in decisions about their children’s lives (even if they don’t agree on all of these decisions). In California, the presumption is that both parties can share legal custody, with exceptions where circumstances dictate that one parent should have sole legal custody—as in situations involving domestic violence, abuse, and abandonment.

Physical custody: This relates specifically to where children live and how best to organize their activities. With sole or primary custody, the child lives with one parent most of the time and visits the other parent. With joint custody, a child lives with both parents. In either case, certain questions need to be answered, including: Where should children live during the week and on weekends? Which parent is in charge of the children and at which times? How do children get from one parent to the other?

Physical custody also addresses the issue of each parent’s visitation rights. In my experience, visitation rights can be anything from “no rights” to having the children half (50%) of the time. Additionally, a parent can receive rights to supervised visitation, which generally involves the presence of a third party who monitors a parent’s time with his or her child; although the parties
may agree to have a parent supervise the other parent, especially when it is in the child’s best interest, such as when a parent has previously had little to no contact with the child, to ease the previously-absent parent into the child’s life. Factors determining the need for supervised visitation may include, but are not limited to:

-The child’s relationship to the parent
-Any history of domestic abuse
-A parent’s detrimental conduct (e.g. alcohol or drug abuse)

I believe that generally when it comes to determining these concerns, parents are uniquely positioned to make the best judgment call. In the vast majority of cases, parents have greater personal knowledge of what’s best for their children. By contrast, other participants in a court proceeding—such as lawyers, judges, and other mediators—generally know much less about the
children’s own personal past, present, and future needs.

When parents are sincerely motivated to do what’s best for their children, the results are generally very favorable. Parents know their strengths and limitations best. If they focus on the kids, they can (and should) be able to work things out between themselves.

If this isn’t possible, it’s time to consult a family law attorney and get assistance in creating a workable parenting plan for the future.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation on a variety of issues, ranging from family law/divorce, bankruptcy, estate planning to criminal/DUI matters, and landlord/tenant disputes.

Is Getting a Premarital Agreement a Good Idea?

A premarital agreement (more commonly known as a “prenup”) can be helpful for two parties anticipating marriage in the near future. This document, which must be committed to paper and signed by both parties, is meant to offset some of the issues partners may face should they later
end up in divorce or legal separation.

What’s addressed in a pre-nup and what’s left out

Most issues that can come up during divorce or legal separation can be addressed in a premarital agreement, including spousal support (how much, how long, etc.); the characterization of property (separate or community); property division; and debt characterization and division. In other words, the premarital agreement is useful for covering most of the key areas of potential
dispute should the parties decide to separate.

What the premarital agreement doesn’t address is anything relating to the children of a marriage or domestic partnership. As the courts have determined, the best interests of children can’t be anticipated at the outset of a marriage. All issues relating to children’s needs must be addressed at the time those needs arise.

The terms of a premarital agreement may be altered during marriage if one party or the other does something contrary to its original terms—for example, the husband brings a house into the marriage but later deeds the property over to his wife or arrange for joint ownership. In legal terms, this is called a “transmutation of asset.” Any deliberate changes to the agreement must be
outlined in a written agreement signed by both parties (e.g. amendment or post-nuptial agreement).

What to do before seeing an attorney

Of course, talking about the possibility that your upcoming marriage might fail isn’t a pleasant topic. But if you and your spouse/partner decide a premarital agreement is a good idea, don’t wait until you’re in the attorney’s office to start discussing details.

I can’t emphasize this strongly enough. Not only will discussions between you and your partner save money in attorney’s fees, it’s far preferable to iron out any differences ahead of time. This way, when you do meet with a lawyer, you both come in knowing (or at least having a good idea) about how you see the terms of this proposed prenup.

However, keep this in mind – while a premarital agreement is generally enforceable by law, it is not absolute. Courts can disregard a prenup for a variety of reasons. But it is valuable, nevertheless, because when a divorce or legal separation becomes necessary, this document serves as evidence that both parties anticipated and agreed upon certain terms before the
marriage took place. In most courts of law, a prenup will be given the same consideration as any other evidence submitted in a divorce proceeding.

A final important tip: Don’t make an appointment to initially consult an attorney on a prenup a couple of days before the wedding. Most premarital agreements take anywhere from two weeks to several months to prepare, negotiate, revise and then execute and sign. And the law has a built-in, seven-day required window between the time the prenup is presented to each party and the time the agreement is signed. Waiting until the last minute to address this topic will only delay your happy event.

Is a prenup right for you? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, DUIs and landlord/tenant disputes.

What a Prenuptial Agreement Can and Cannot Do

A pre-nuptial agreement (also called a “prenup”) is a legal contract between two people who intend to get married. This document defines each party’s respective rights and obligations, should the marriage eventually go down the path of divorce or legal separation.

Can be used as evidence in a court of law

In California, prenups are governed by rules outlined in the Uniform Premarital Agreement Act. Such an agreement can be drafted to address present and future property rights, as well as either party’s future entitlement to spousal support and (in a very limited sense) issues relating to any
children the couple might have.

In a court of law, the prenuptial agreement represents a contract that may be enforceable or, at the least, used as evidence of what each party intended at the time they got married. While the court may find a reason to invalidate a part or parts of the prenup, the document can still be used as evidence of each individual’s prior intentions.

To make the prenup more enforceable, it must (a) be drafted under the rules of the Uniform Act and (b) include a stipulation that, at the time of creating the agreement, each party receives a full financial disclosure from the other party—including a complete list of assets, debts, and respective incomes. Each party must then be allowed seven days to review the document before signing it, during which they can, and should, seek the advice of an attorney if they don’t already have one.

Make the best decision for your future

What can be included in a prenup:

  • Under California law, almost anything acquired during the marriage, be it income, property, or debts, is presumed to be community property. This means either party is entitled to half of the assets or responsible for half of the debts, regardless of who acquired them. In some cases, a prenup can alter that presumption—not only by defining assets coming into the marriage as the separate property of the person bringing them into the relationship but also by identifying a person’s acquisitions during the marriage (wages, bank accounts, etc.) as being in that party’s separate property.
  • Both parties may agree on either a waiver of spousal support or other limitations on one
    person’s entitlement to spousal support—that is, the maximum amount of support
    allowed or the maximum duration of payments of spousal support allowed.
  • The parties may agree on other terms of support that courts don’t usually consider, such
    as a child’s eventual college expenses. The prenup can stipulate that one party will
    assume the burden of paying those expenses, an issue usually beyond the court’s
    jurisdiction.

What cannot be included in a prenup:

  • Any terms deemed “unconscionable”—for example, a plastic surgeon earning $500,000 a year is unlikely to be permitted to insist on a waiver of spousal support from his fiancé, a teacher in the public school system, who earns vastly less.
  • Provisions pertaining to child custody, visitation, and child support terms are not allowed in this document.
  • A prenup cannot include terms of “punishment,” such as “If he cheats on me, I get damages of $50,000.”

Should couples intending to get married have a pre-nuptial agreement? The answer varies depending on the individual circumstances, but I believe it’s always a good idea to know what you’re bringing into the marriage and what you’d like to have, should the marriage come to an end. Whatever the case, enlist the services of an experienced attorney to make sure you arrive at
the best decision about your future.

Getting married or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation on a variety of issues, ranging from family law, bankruptcy, debt collection defense, estate planning, criminal defense, DUIs, and general civil matters.

The Pros and Cons of Alternate Dispute Resolutions

Taking your case to court can be costly and time-consuming. In my opinion, it should only happen when there’s no other way for the disputing parties to reach some middle ground. That’s why it’s good to know about other options, such as negotiated settlements, also known in legal circles as Alternate Dispute Resolutions (ADRs).

Each type of negotiated settlement comes with advantages and disadvantages. Here’s how different ADRs stack up:

Settlement Conference

Generally involves the individuals in dispute and their representatives meeting together in-person, over the phone or online, and attempting to resolve the issue themselves.

PRO: Doesn’t require a third-party who’s unfamiliar with the individuals involved or the particulars of their dispute.

CON: No guarantee a settlement conference will work, since the reason parties are in litigation in the first place is because they couldn’t resolve the issue.

Mediation

This type of negotiation includes a professional mediator hired by both sides to try to assist the parties in reaching an agreement. The mediator may or may not be a lawyer, but is almost always trained (and often certified) in mediation techniques. He or she usually has knowledge of the applicable law.

PRO: When both parties are at a standstill, getting a knowledgeable outsider’s perspective can be very helpful. Also, it’s also a good way to see if your position has what’s called “legal standing”—that is, if it’s reasonable and has a decent chance of prevailing.

CON: Hiring a skilled mediator adds to legal expenses, since this individual can charge as much or more than your own attorney does. (The cost is generally split between both parties.) It’s still cheaper than taking a case to court.

Arbitration

This type of proceeding is less formal than a trial but more formal than mediation. The arbitrator, (an individual or multi-person arbitration panel), is a neutral third-party. Both sides in the dispute decide beforehand whether the arbitrator’s decision will be binding or non-binding. (In my experience, binding arbitration is a useful option when a settlement conference or mediation is unsuccessful.)

PRO: Encourages cooperation and a non-hostile approach toward resolving an issue. Also, it’s cheaper and faster than litigation. The rules of evidence and procedure are simpler than those in a court of law. And arbitration proceedings are typically confidential, saving both sides any potential embarrassment or the release of private information.

CON: Costs can add up when choosing both an arbitrator and a venue for the negotiated settlement. If both parties determine the decision will be binding, it’s very difficult to appeal or “vacate” the decision at a later time.

If you’re involved in a legal issue, talk to your lawyer about seeking an alternative dispute resolution that’s suits your specific situation.

Are you in need of legal counseling? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

Protect Your Assets by Keeping Records

When two people fall in love and decide to get married, they don’t want to consider the possibility that at some time in the future they may no longer feel the same way about each other – and that the experience of separation and divorce might turn ugly over issues of community assets and debt obligations.

Sadly, as we all know, this scenario happens all too frequently. But while divorce is an unhappy topic to consider before such a happy occasion as marriage, I believe it’s vitally important to do so. A well-considered and expertly crafted pre-nuptial agreement can set out rights and responsibilities, address issues of property characterization, and minimize the potential legal
costs involved in a lengthy and contentious divorce.

Division is right down the middle

Here’s a common problem I see in my practice: A client comes in who’s been married for 10+ years but doesn’t have a prenup. This person is very unhappy at the prospect of having to divide practically everything he or she owns 50-50 – as generally is required by California community property law. Why? Because, the client says that they came into the marriage with substantial assets acquired well before anyone said, “I do.”

Since California is a community property state, we start with the assumption that, when it comes to property that has been acquired in the course of a marriage, (that is, all the assets as well as debt obligations), the division almost every time will be right down the middle.

A possible exception occurs in cases where domestic violence is involved. If the court determines that one person has been severely injured and is leaving the marriage with substantially diminished capacity to acquire new assets and income, he or she may be entitled to more than a 50-50 division of assets and debts.

The importance of “tracing”

But what about assets and debts acquired either before the marriage or after separation? The key to asserting one’s exclusive rights to property acquired before marriage or after separation is through what’s known as “tracing.” If you can trace the timing of the acquisition of an asset to a date either prior to the marriage or after you and your spouse/partner separated, the court will, in
most cases, take this as proof of separate property belonging to the person who acquired it. The same principle applies to assignment of debt in the divorce.

But tracing depends on accurate documentation – and that’s where many of us fall short. As in the long-term marriage I mentioned above, it’s easy to lose track of any documents you might have concerning the acquisition of assets 10, 15, or 20 years ago. Unless you can produce such documentation, it will be very difficult to establish that any specific asset should be deemed your
separate property.

Things get further complicated when you have to reach out for assistance with documents. Many institutions like banks, expunge records after five years or more. So when it comes to obtaining financial and investment information from long ago, unless you’ve kept good records on your own, you may be out of luck.

I can’t stress this strongly enough. Print out your important documents, (bank statements, credit card statements, etc.), and keep them locked away. You never know when a particular document will prove useful in court.

How can you attempt to avoid all this drama and turmoil? Look into having a pre-marital agreement, even if it casts a momentary shadow over your upcoming wedding celebrations. It’s by far the best way for both parties in a marriage to identify and protect their separate assets and minimize the possibility of being liable for the other’s pre-marital debt obligations, if things take a turn for the worse somewhere down the road.

Is a prenup right for you or just have any questions regarding the above topic? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

What Happens in Small Claims Court?

Clients sometimes come to my office regarding a claim they have on a defaulted personal loan or they want to retrieve a security deposit from a landlord or have some other matter where money is due them. In many cases, the amount they claim is too small to warrant being handled in a
civil court of general jurisdiction, nor does it justify hiring a lawyer to represent them. In cases like these, generally the best option is to bring the matter to small claims court.

In small claims court, the person who brings the action is called the “plaintiff,” and the person being sued is the “defendant.” With the occasional exception, (e.g. corporations), neither side is allowed to have a lawyer present at the small claims hearing, though it is often acceptable and well-advised to speak to a lawyer before or after the court proceeding.

What types of cases go to small claims court? Here are some typical examples:

  • Disputes regarding property damage
  • Personal injuries following a motor vehicle accident
  • Landlord/tenant security deposits
  • Property damage allegedly caused by a neighbor
  • Disagreement with a contractor concerning a home repair or improvement project
  • Dispute in a homeowner association
  • Collection of money owed

Generally speaking, the highest dollar amount an individual plaintiff in small claims court can ask for is $10,000. (Small businesses and government entities are usually restricted to no more than $5,000.) Once both sides have made their case, the matter is left to the small claims judge to decide. Actually, most small claims matters are heard by “temporary” or “pro tem judges,” who are attorneys who have practiced law in California for at least ten years and who volunteer to assist the court in certain types of cases.

The person who brings a dispute to small claims court may also be entitled to receive costs from the defendant. “Costs” refers to filing fees, witness fees, the expense involved in notifying the person you’re suing, etc. The plaintiff may request the court to add these costs to the judgment—the amount of money the court determines should be paid to you.

Issues in small claims court are generally resolved in a rapid and inexpensive manner. Unlike a matter in civil court, which can go on for many months, a case in small claims court is typically heard within 20 to 60 days from the date the claim is filed. Keep in mind – the dockets for most small claims courts are extremely full, you must be ready to present your side as quickly as
possible. When I meet with clients who are scheduled to appear in small claims courts, I advise them to be sure they’re thoroughly prepared ahead of time. This means having evidence on hand to back up your claim, such as:

  • Bills
  • Contracts
  • Receipts/cancelled checks
  • Witness testimony—Usually the witness is required to attend the proceeding
  • Photographs
  • Letters
  • Any other relevant and supporting documents

As noted, both plaintiffs and defendants represent themselves in the small claims court setting. I recommend clients should dress respectably, (a sloppy appearance won’t do anything to help your case), be polite, and reasonable in their presentation.

Small claims court serves a useful purpose in settling certain types of disputes. If you feel you have an issue that seems appropriate for this venue, I advise you to contact an attorney experienced in small claims cases beforehand. The knowledge you can gain may prove extremely helpful when you find yourself standing before the small claims judge.

Do you think you may have grounds for a lawsuit but are worried that it may cost too much to bring it to court? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and civil matters.

What does “Spousal Support” Mean?

Spousal support, (formerly known as “alimony”), refers to the obligation of one party in a marriage or domestic partnership to provide support to their former spouse or partner. California Family Code Section 4320 lays out numerous factors by which a court is mandated to award spousal support. These factors include:

  • Duration of marriage
  • Available resources (including assets and income) of the person seeking spousal support
  • Ability of the other party to provide resources to the supported spouse
  • The reasonable needs and lifestyle requirements of the supported spouse

Spousal support is usually based on how much the supported spouse believes she needs, (for purposes of this post, I’ll use “he” for supporting spouse and “she” for supported spouse), and how much the supporting spouse believes he can pay. Somewhere between these two figures, a final number is determined.

In general, the issue of spousal support revolves around the style of living established during the marriage or domestic partnership. Let’s use this hypothetical example to explain:

Ron is a cardiologist married to Sheila, a schoolteacher. When they first got married, they agreed Sheila would be a stay-at-home mom. She quit her job, thus depriving herself of an income and moved from a rental apartment to an expensive house in La Jolla. During the course of their marriage, Sheila established a very comfortable lifestyle in their exclusive neighborhood. She
had friends there and the couple sent their two children to a costly, local private school.

At some point, Ron and Sheila decide to separate. Sheila is unable to maintain this lifestyle on her own, nor can she realistically expect to do so even if she gets a job. Thus, under the law, she is reasonably entitled to spousal support that will help her live the same style of life to which she’s become accustomed. The question, of course, is how much and for how long? At this point, Ron will be obligated to either accept the terms of spousal support Sheila requests or to demonstrate (a) that he’s unable to make such payments or (b) that his separated spouse is over-inflating her anticipated expenses and/or understating her expected income and resources. If the parties can’t agree on a figure, the issue goes before a Family Court judge.

There’s a common misconception that you can only get spousal support if you’ve been married or in a domestic partnership for a certain amount of time. The truth is, anyone can assert an entitlement to spousal support, no matter how long the marriage/partnership lasted. Typically, the Court’s reasoning goes as follows:

  • A marriage of 10 years or more: Unless the two parties can agree on a date to terminate
    spousal support, the obligation to pay support will continue until the supporting party can
    convince a court that this obligation should come to an end (if, for instance, his ex-wife
    now earns enough to support herself).
  • A marriage of less than 10 years: The two parties can agree on a date of termination for
    spousal support or the Court has some discretion to order a termination date. While this is
    not absolute, the unwritten practice is that the obligation lasts for roughly half the length
    of the marriage.

In my years of practice in this field of law, I’ve encountered many supporting spouses who feel aggravated by the ongoing obligation to support their ex-spouse. I try to lessen the aggravation somewhat by reminding them that, unlike child support, spousal support can be claimed as a deduction on their income taxes and that the supported party has to report what they receive as
income on their taxes. A silver lining? Maybe just a little.

Wondering what you might face should your spouse or partner file for a dissolution of marriage/partnership or legal separation? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

To Stash or Not to Stash: Do I Have to Disclose Everything I own in a Divorce Proceeding?

People who come to my office seeking assistance with a divorce often ask one of two questions, and sometimes both:

  • “Do I have to tell my spouse about everything I own or owe?”
  • “What happens if my spouse is hiding an asset?”

These are important issues that need to be addressed, since the process of dividing assets and debts can determine the quality of life for both partners following their divorce. Any attempts to hide property or mislead the other person by failing to disclose can have serious consequences for everyone involved.

In the course of a legal separation or divorce, California law dictates that each spouse must provide complete information about all of his or her assets (such as property, vehicles, financial accounts, business interests, etc.) and debt (loans, credit card payments, etc.). The statements made by each spouse concerning assets and debts are contained in what’s called a Schedule of
Assets and Debts, and may also be disclosed in Community and/or Separate Property Declarations.

During the legal proceedings, each party is required to serve their financial disclosures on the other party and file a declaration confirming such service of disclosures with the court. Any Judgment of divorce or legal separation entered without such disclosures is generally considered void under California law.

In a situation where there’s an unintentional omission of assets, the court (once alerted to this omission) usually readdresses the division of property to make sure there has been a fair and equal division of assets overall. With an intentional omission of assets, (such as the concealment of a party’s stock options or undeclared cash in the bank), the court may award the other party
more than the typical 50 percent of the community property asset — sometimes up to 100 percent! The court may also demand that the offending party pay attorney fees and costs as sanctions for having to litigate this issue.

So how can one party find out if their spouse or partner is deliberately hiding assets?

A lot depends on the complexity of the particular case, but in general, legal professionals can call upon several resources to obtain information about undisclosed assets. During what’s called the “discovery process,” one party’s attorney can formally request production of relevant documents
and other information from the other party or invoke the power of subpoena to third parties to get necessary information and/or documentation handed over. There’s also the option of hiring a private investigator to do an “asset search”—the results of which are regularly admissible in court.

What happens if a hidden asset is discovered after the division of assets has been completed? Unless otherwise ordered, the court maintains jurisdiction to address this issue should it arise, even after judgment has been rendered. An undisclosed asset can be subject to a further court order after the divorce has been finalized, so long as it is promptly thereafter brought to the
court’s attention.

Post-Judgment penalties for concealing or misrepresenting one’s assets or debts may include payment of the other party’s attorney fees and costs, a dismissal of any of his or her own claims, reallocation of asset and debt division (if possible) and, even, incarceration. That’s why the safest rule of thumb in a divorce proceeding is to always disclose your assets and debts.

Any situation where significant assets or debts are concerned may be too complicated for the parties to resolve on their own. Consulting an experienced family law attorney is your best bet to ensure a proper division of assets and debts before the divorce or legal separation proceeding comes to a close.

Are you in need of legal counseling or have any questions about the above topic? The Law Offices of Ian S. Topf offer a free consultation in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.