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.

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:

• Family law
• Debt matters
• Wills and estate planning
• Defense of civil lawsuits 
• Traffic violations
• Juvenile court issues
• Real estate law
• Identity theft
• Personal injury

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 .

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.

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.

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.

How a Reaffirmation Agreement Can HelpYou During Bankruptcy

A Chapter 7 bankruptcy is a legal action that allows a person to eliminate most of his or her debts. With respect to unsecured debts, such as general consumer debts, credit card debts, and any other debts that aren’t secured by some form of collateral, the vast majority, if not all, will be wiped out.

A question I usually get is what happens to secured debts in a Chapter 7 matter? A secured debt is when the creditor has a lien on your property to protect the creditor’s rights as to the underlying loan obligation. For example, with the typical car loan, the agreement with the lender will include the lender placing a lien on the car, in case you stop paying on the loan. This permits the creditor to repossess the vehicle.

If you face bankruptcy and have one or more secured debts, there are different options available to resolve the situation:

• You can surrender the property to the lender or other financing company and wipe out
  your personal liability for the debt.

• You can redeem the property by buying it outright for the then-market value. If you make
  a lump-sum payment for the fair amount value of any item of property, a bankruptcy
  court will allow you to keep the property and eliminate any remaining debt against that
  property. (The fair-market value has to be agreed upon by the lender or ordered by the
  court).
  • Let’s say you have a car worth $4,000, but the conditions of the financing agreement with the bank means you still owe $12,000 on the car. By writing a check for $4,000, you can keep the car and see the remaining $8,000 debt wiped out.

• Finally, you can sign a reaffirmation agreement. This is a contract between you, the
  debtor, and the creditor, which allows you to maintain your interest in the property. To
  use another example involving a car: You have a car worth $6,000 and you owe $9,000 in
  debt against the car. You don’t have the funds to buy the car outright (as in example #2),
  but through a reaffirmation agreement, you agree to adhere to the terms of your car loan,
  thereby keeping the vehicle while continuing to make payments per the original contract.

A reaffirmation agreement is a good option if you wish to keep your car, but can’t buy it outright—a car being, of course, close to essential for many people.

A few other points on this subject:

• When you file for bankruptcy, any debts that are not reaffirmed or ordered by the court to be non-dischargeable or non-dischargeable by law are wiped out. In other words, if you do not sign the reaffirmation agreement, the debt against your car is eliminated—but since the lender has a lien on the car, they have the right to repossess the vehicle at any time.
• Many creditors, such as mortgage lenders, do not offer reaffirmation agreements. But,
  generally speaking, if you continue to make payments on your mortgage, they are
  unlikely to initiate foreclosure actions.

There are times when signing a reaffirmation agreement can have negative consequences. When you sign this agreement, it gets processed by the bankruptcy court. If you lose your job or otherwise default on your debt, the creditor has the same rights as if you never went through bankruptcy at all. The creditor can also refuse payment and repossess the property if they wish.

If you face a bankruptcy situation and have secured debt on the property you are thinking about keeping, a reaffirmation agreement is an option worth exploring. Be sure to contact an experienced, knowledgeable bankruptcy attorney before making any such decisions.

Are you in need of legal assistance regarding debt relief options or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from bankruptcy, debt collection defense, estate planning, family law, as well as DUIs and civil matters.

How Can You Avoid Falling into the Bankruptcy Trap?

There’s a familiar—and dangerous—cycle I regularly see with regard to debt and bankruptcy relief. Many people come to the conclusion that they’re carrying more debt than they can afford, so they file for bankruptcy, get relief from those debts, and then fall into the same debt-incurring behavior. Eight years pass, (the legal period between filing for another Chapter 7 bankruptcy), and because they lack any other options, they once again file for debt relief. This “bankruptcy trap” is a terrible spot to find yourself in and I advise clients to do everything possible to avoid it.

If you’ve experienced this situation and want to make some serious changes in your life, here are options for improving your chances of breaking the cycle:

Take the required classes in credit counseling seriously. Since 2005, it’s been mandatory in California that anyone seeking bankruptcy relief must attend two required classes. The first class, on credit counseling, actually takes place before your bankruptcy filing. In this class, counselors offer informal opinions about what course of action might be most beneficial for you—applying for debt relief, working out a household budget, etc. While in most cases, filing for bankruptcy is inevitable, I believe there’s value in getting a third party to objectively assess your situation. The second class, taken during the bankruptcy process, is called a “debtor education class.” Individuals learn about moving forward following bankruptcy, receiving valuable advice on budgeting, rebuilding credit, and avoiding credit scams and other pitfalls. I urge my clients—and anyone else in the same situation who reads this post—to take these classes very seriously. They can be very useful in helping you turn your life around.

Design a sensible budget. When you file for bankruptcy (especially Chapter 7), you’re showing the court that your net income is insufficient to pay your reasonable expenses. Chapter 7 helps you eliminate substantial debt but you still walk out of the process with that same budget. Now, it’s time to reassess your expenses, which is easier to do than reassessing your income. What
expenses can you get rid of and what expenses should be paid first? Sticking to a sensible budget plan will take you a long way toward financial stability.

Schedule your payments. It’s vitally important to pay your bills on time since prompt payment makes up a key portion of your credit score. Missing payments negatively affect your credit score and limit your opportunities to bounce back from bankruptcy. On the other hand, making payments on time improves your credit score, which in turn makes future credit opportunities
easier to attain—and often with lower interest rates. This can be very helpful when the time comes to apply for a car loan or borrow money to pay rent.

Apply for credit. Many people mistakenly believe that if they file for bankruptcy, they’ll never be able to get a credit card again. On the contrary—credit card companies will see you as a “clean slate” and do everything they can to get your credit card application. It’s OK to apply for a new credit card, as long as you read the fine print. Many so-called credit card opportunities
come with astronomically high interest charges attached (as high as 25-30% annual rates). Signing up for one of those will only send you back down the path to debt.

Fortunately, by doing your due diligence, you may find yourself eligible for lower interest-rate credit cards or a secured or pre-paid credit card. When you stay on top of your payment schedule, the bank (or other entity) that offers the card will report those positive payments—thus affecting your credit score in a positive way. Then you’re on the way to establishing your good
credit.

Be smart. Know your limits. Create and maintain a workable budget. Then you’re much less likely to fall prey to the dreaded bankruptcy trap.

Are you in need of legal counseling for bankruptcy or debt issues or have any questions regarding the above? The Law Offices of Ian S. Topf offer free consultation on a variety of issues, ranging from bankruptcy, family law, and estate planning to traffic violations and landlord/tenant disputes.

How Does a Child Support Order Get Enforced?

The principle behind laws regarding child support in California is very simple. The parents of children born in the course of a marriage (or conceived out of wedlock) are legally responsible for the financial support of their offspring, regardless of whether or not those parents are living with their child(ren).

Typically, an order for child support is issued by the Court by agreement of the parties or after a Court hearing, where the judge has determined that one party is entitled to receive assistance from the other party in financial support for their child. These child support orders can arise in proceedings for divorce, dissolution of domestic partnership, paternity, or one partner’s petition for the establishment of custody of the child.

Whatever the circumstances, once a child support order has been issued, the supporting parent is legally obliged to obey that order. Failure to do so can be deemed by the Court as willful non- compliance, which can lead to contempt proceedings and if the supporting parent is found guilty, may be punishable with time in jail.

Enforcement options

Of course, when it comes to enforcing a child support order, things don’t always go smoothly. Once the custodial parent has a court order, she (for purposes of this discussion) has different options for ensuring that the order gets enforced. She can hire an attorney to enforce the order or a private child support collection agency to service that debt. The collection agency works much the same as similar agencies charged with collecting credit card(s) or other types of debts. They can garnish that person’s wages, put a lien on property, etc.. but they almost always charge a fee for their services.

Another option for enforcing a child support order is using the Department of Child Support Services (DCSS). Utilizing DCSS has advantages and drawbacks. First off, its services are free. Also, DCSS is connected to multiple state government agencies, such as the Employment Development Department and the Department of Motor Vehicles—meaning they have access to records that can be very useful in collection activities against a non-paying supporting parent. DCSS can also:

• File a petition to establish and/or enforce a child support order.
• Report the failure to provide child support to credit agencies, increasing the difficulty for the supporting parent to get a loan.
• Put a hold on that parent’s bank account.
• Attach a lien on that parent’s property or vehicle.
• Ask an employer to garnish wages.
• Confiscate IRS tax refunds.
• Suspend a driver’s, professional and/or recreational license.
• Assist the Court in issuing an arrest warrant.

The chief disadvantage in relying on DCSS to enforce a child support order is that, like all government agencies, it’s overworked and understaffed. With recent cutbacks in government spending, DCSS has downsized its personnel and struggled to keep pace with state-of-the-art computer technology. Going through DCSS, therefore, requires a lot of patience since results may be a long time coming.

A lot depends on the specific nature of the child support order. A family law firm like mine does have a great deal of enforcement tools at our disposal to enforce the child support order, such as processing and serving a wage garnishment order on the supporting parent’s employer. If you feel you need assistance in the enforcement of your child support order, I would suggest you contact an attorney to explore your options.

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 in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning to criminal/DUI matters and landlord/tenant disputes.

How Does Foreclosure Work?

In today’s economy, many people find themselves underwater with regard to their monthly expenses. When their total monthly debts amount to more than the money they’ve got coming in—and, as is usually the case, the monthly mortgage payment represents their larges expense—people sometimes opt to neglect this big debt and pay off their smaller, more manageable debts instead.

In my opinion, this is the wrong action to take. Mortgage lenders (such as banks) generally prefer partial payment to no payment at all. If they feel an effort is being made to meet the mortgage obligation, they’re less likely to initiate the dreaded foreclosure proceedings, and may even reach out to the homeowner with possible loan modification options.

Foreclosure is the process wherein a mortgage lender attempts to take possession of real property (e.g. house, condominium). When you sign your mortgage paperwork, you give your lender the ability to proceed with a foreclosure action when you fail to make your required mortgage payment. As with all contracts, it is important to read all documents you sign to ensure clarity and understanding. I recommend that every homeowner reading this article go back and read your mortgage paperwork, specifically your Deed of Trust, to educate yourself on the actual rights and responsibilities of both you and your lender.

Most mortgage agreements grant the mortgage lender the right of acceleration of the loan after one or more missed payments, causing the loan to be completely due and payable upon the lender’s demand. The mortgage lender will mail the homeowner a “Notice of Default” and record a copy of the Notice with the County Recorder. This Notice gives the homeowner a period of time (90 days in California) to exercise their “right of redemption”, i.e. the right to catch up on any or all missed or partial payments and make themselves current.

If the homeowner is unable to become current on their loan, the lender may opt to proceed with one of two ways:

(1) Pursue a judicial foreclosure (rarely done in California) by initiating a foreclosure action with the local Court; or

(2) Pursue a non-judicial foreclosure, where the property is placed in the hands of a foreclosure trustee and eventually sold at a Trustee’s Sale.

All of this is typically spelled out in your mortgage paperwork, which is why, again, I encourage people to review their mortgage documents very carefully.

Soul-search time

The foreclosure process generally takes a good deal of time, anywhere from four to six months or more after a notice of default is served.

At this point, it’s time to do a soul-searching. A reality check to determine whether or not you truly believe you can keep the property. Is what caused you to miss your mortgage payment(s) the result of a temporary hardship that can be quickly remedied or part of a larger, more critical situation where you’ll continue have problems making payments no matter what you do?

If you’ve missed payments because you were temporarily out of work but are once again resuming employment, aggressive negotiations with the mortgage lender may ease the situation and avoid foreclosure. Mortgage lenders generally don’t want to go through with foreclosure if they don’t have to if they have some assurances that future mortgage payments will be made. They’ll typically respond favorably to a plan that results in making payments current and agree to halt the foreclosure process.

Actions a borrower can take

Many lenders offer loan modification programs and I encourage people facing the possibility of a future foreclosure to look into them sooner than later. That’s the good news. But it’s important to note that such programs may not necessarily solve the issues that caused problems with a mortgage payment in the first place. A mortgage lender’s idea of a modification may only apply to a reduction in the overall interest rate or adding missed payments to the back end of your loan—with no actual reduction in your required monthly payment — and there’s no guarantee that this will alter your ability to comply with the terms of the mortgage in the future.

Also, please take note that a mortgage lender’s foreclosure department is not required to delay the foreclosure process while the loan modification process is pending. These are usually two separate departments and they typically do not communicate with each other automatically. (It’s usually the homeowner who needs to make sure that both departments are aware of the situation to avoid a foreclosure during attempts of loan modification).

If a person feels they can’t keep up with house payments, there may be actions to take to avoid having a foreclosure on your credit report. These actions include proceeding with selling your property, even if it is in a short sale due to little to no equity in the property. While a short sale is still a negative mark on your credit, it usually is much better than having a foreclosure on your record.

Another last-ditch effort is looking into your bankruptcy relief options. In Chapter 13 bankruptcy action, the Court will allow you to make up your arrears so long as you are able to make your current monthly payments as well. Pursuing Chapter 13 bankruptcy relief with a good-faith plan (whereby you make up the missed payments) will not only help to stop the foreclosure process but should also help you regain control of your household finances to keep the mortgage lender from further pursuit of foreclosure.

Foreclosure is a complicated legal process that can take a homeowner on a dangerous roller- coaster of confusion and extreme emotions. If you find yourself facing foreclosure, seek legal advice or assistance. A skilled attorney can offer the best guidance for finding the solution that works best for you.

Are you in need of legal assistance or have any questions regarding the above topic? The Law Offices of Ian S. Topf offers a free consultation in a variety of issues, ranging from bankruptcy, debt collection defense, estate planning, family law, as well as DUIs and civil matters.

How Does The Court Determine Child Visitation Privileges?

In California, there is a presumption that, in general, a mother and father (or domestic partners) can work together to raise a child jointly, even after they no longer live in the same household. This is referred to as “joint legal custody.” It involves collaborating on decisions that directly affect the health, welfare, education, and religion of the child (or children).

That’s one aspect of child custody. The other key component is called “physical custody,” relating to where the child actually lives and who takes care of him or her daily. Whether by a parenting plan agreement reached by both parties or through a court decision made due to a dispute between the parents, one of the two parties will be designated “primary physical
custodian.” The conditions of that parent’s custody are subject to whatever visitation rights the other person receives—rights which can range from “no visitation” (in those rare cases where one party’s even seeing the child is deemed to be detrimental to the child’s best interests) up to equal periods of time with each parent.

Types of visitation include:

• “Reasonable visitation” – The most common form of visitation. These rights can vary
  from visiting the child on weekends and alternating holidays to an equal timeshare
  (where each party has, in effect, equal rights of reasonable visitation with the child). A
  primary physical custodian is generally selected by the Court to cover a few critical areas,
  such as school placement of the child. This primary physical custodian is entitled to
  declare the child as a tax exemption and as a dependent on their income taxes—unless
  there is a prior agreement to the contrary.
• “Restricted (supervised) visitation” – In these cases, the Court determines the child cannot be left alone with one party, so the other parent or a third party (friend, family member, social worker) must be present to supervise the visit. This can happen when the Court decides that someone must be present to witness interactions between the child and the visiting parent, in the event of future legal disputes regarding child visitation rights, or just to make sure that there is a peaceful and, hopefully, meaningful visitation between a parent and a child.

An effective parenting plan should include provisions for regular visits (weekly, biweekly, monthly) as well as holidays and vacation time with the child. The schedule can be different for different children in the family, such as in situations when each child is on a different school schedule, or when children have different extracurricular schedules.

When determining the parties’ respective future rights to custody and visitation, the Court usually looks for answers to the following questions:

• How were the two parties taking care of the child before the divorce proceedings began and since then?
• Who has been the primary physical custodian?
• Is the current arrangement working? Can it continue to work? Is it truly in the child’s best interests?

The two parties involved may have different answers to these questions, which then leads to the Court stepping in and deciding for both of them.

In my opinion, the two parties in a divorce proceeding (or dissolution of domestic partnership) should do everything they can to attempt to work out a parenting plan agreement between themselves. After all, who knows the best interests of their child better than they do? When they can’t work it out, the decision is left up to a judge who doesn’t know either party or the child
involved. And a prolonged legal dispute makes the whole experience more expensive, time-consuming and emotionally turbulent for everyone involved.

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 in a variety of issues, ranging from bankruptcy, family law and estate planning to traffic violations and landlord/tenant disputes.

What is Community Property and How is it Divided?

In California, “community property” is defined as the marital interest in an asset or debt that was obtained or incurred between the date of marriage/registration of a domestic partnership and the date of separation. When I initially sit down with a client who’s going through a divorce or dissolution of domestic partnership, I start by drawing two lines on a piece of paper: (1) DOM/DOR – date of marriage/registration and (2) DOS – date of separation. Then we begin itemizing each asset the client and/or their spouse/partner has an interest in (and his or her debt obligations) and determine where each item falls on the timeline — if the asset/obligation is
entirely before the DOM/DOR or entirely after the DOS, the presumption will be that the asset/obligation is the “separate property” of the person whose name is on the asset/obligation. Everything else will be presumed to be, at least in part, “community property.”

A common misconception among clients is that community property is limited to any asset or debt that is jointly held. But according to California law, everything obtained or incurred in a marriage or domestic partnership between DOM/DOR and DOS is presumed community property. Each party has a 50% interest in that property and/or a 50% obligation, where debts are
involved.

Evaluating community property assets

Many assets have both a separate property and a community property component. During the course of the divorce or dissolution of domestic partnership, attorneys for both parties help evaluate assets in those terms and determine what each side is entitled to.

For example, let’s say Bob has $5,000 in a bank account on the day he marries Kathy. During their marriage, Bob deposits and withdraws funds from this account, which is kept in his name. The paychecks he deposits into that account during their marriage are community assets. On the date of separation, his bank account totals $15,000. Bob continues depositing funds (e.g. his paychecks) into that account, those post-separation funds being separate property. And, by the time of the actual divorce, the account has grown to $20,000.

How does this asset get divided between Bob and Kathy?

Here’s the calculation: Bob had $5,000 in the account prior to marriage and $5,000 of additional deposits after the separation. That’s $10,000 of Bob’s separate property. This leaves another $10,000 from deposit activity that took place during the marriage. This last figure is community property, to which Kathy is entitled to half. Therefore, Bob gets $10,000 in separate property and
$5,000 in community property, and Kathy has a claim toward the remaining $5,000 as her interest in the community property portion of this asset.

Start documenting now!

My advice is, when you decide to initiate your divorce or dissolution of domestic partnership, try to obtain documentation about the value of any assets you had on DOM/DOR (and the balance of any debt obligation), as well as any other documentation as to how those assets or debts have been treated throughout the marriage or partnership. When two people embark on a marriage or domestic partnership, it’s difficult to think about what might happen to their property in the event of a dissolution. The longer you go in a marriage/partnership, the more difficult it becomes to retrieve that documentation. Such information can be crucially important in asserting your entitlements in the characterization and division of your assets and debts.

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 in a variety of issues, ranging from bankruptcy, family law, estate planning to traffic violations, and landlord/tenant disputes.

How to Go About Child Custody the Right Way

In general, “child custody” refers to all the important decisions regarding the raising of a child, including his or her health, education, and welfare. Custody is basically divided into two parts: (a) legal custody (the decision-making part) and (b) physical custody, as in who is responsible for the child’s physical well-being. Unless the parents share joint custody (equal time with each parent), a decision must be made as to who will serve as primary custodian and who gets time- allotted periods of physical custody (also referred to as “visitation”).

In California, generally, estranged couples have several options concerning child custody:

• Resolve things between themselves and/or through their attorneys.
• Work out a parenting plan through private mediation.
• Devise a solution using court-sponsored mediation services (e.g. Family Court Services).

Private mediation involves the use of a third-party counselor or professional mediator to help work out a parenting plan acceptable to both parties.

In disputed custody cases where a case has been filed in court, the courts offer a free mediation service through Family Court Services (FCS), where parties meet with a child custody mediator, without lawyers. If despite everyone’s best efforts, no agreement is reached, the mediator makes a recommendation to the court as to what he/she believes the parties’ parenting plan should entail and each party will have an opportunity to dispute or agree to the terms presented before the court adopts a parenting plan for the parties.

In my opinion, private mediation may be the most successful option, provided the two parties can afford to pay both attorney and third-party mediator fees. Whichever option you choose, keep these suggestions in mind:

• Document everything. The more you can document who said what, at what time,
  and what happened when, the stronger your custody case will be. Simply saying,
  “Well, he said he would pick her up after school every day” isn’t the same as having a
  detailed log where you noted this statement at the time it was made and the dates and
  times that he failed to abide by said statement. When it comes to documentation in a
  custody dispute, there’s no such thing as overkill.
• Don’t lash out. Losing your temper or shouting at the other party during custody discussions/mediation only demonstrates to the mediator that you’re quick-tempered and unable to control your feelings. This will inevitably detract from what you most want to convey—your love and concern for the child.
• Avoid the negative. It will only hurt your case if you continually emphasize what a bad parent your spouse is. What counts is letting the mediator know what you bring to the table—such things as a flexible work schedule, a nurturing home environment, a support system of family and friends. The old saying, “You catch more flies with honey,” applies in this situation.

Finally, please remember that when child custody is in dispute, what matters most is protecting and caring for the children involved, not whatever is best or most convenient for the parents.

Are you in need of legal counseling for a child custody dispute? 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.

How to Prepare to Meet with an Attorney

If the time comes to meet with an attorney, it’s in your own best interest to come as prepared as possible. Being prepared saves time and money. Why? The more time an attorney needs to become familiar with your legal issue, the more expensive it is for you.

Frequently, I’ll ask a client for bank statements and other paperwork relating to a bankruptcy or debt issue. They would send back a “document dump”—a banker’s box full of random, disorganized papers. The time it takes for me (or my assistant) to go through the box and get things in order is time charged to the client. Getting organized before the meeting can save hours of an attorney’s billable time.

Here are more tips on how to prepare for a meeting with an attorney:

Documents and Summary

Make copies of everything you plan to take to the meeting. Keep the original documents together and stored in a safe place. Relevant documents might include:

• Legal contracts
• Correspondence (print and email)
• Photographs
• Bank statements
• Credit card statements

As best as possible, organize these materials according to date, so the attorney can review a timeline of events. It’s also helpful to prepare a written summary of the facts about whatever issue you plan to discuss. This includes:

• The names and contact information for people involved in the dispute
• Any important background facts
• The day the issue or problem began
• A chronological description of relevant events (including what happened, when it
  happened, where it happened and, if applicable, why it happened)
• How things stand right now with this issue

“Bundle” your questions

Many don’t always think to prepare questions ahead of time when seeking the assistance of an attorney and that’s OK . Every time a client calls with a different question that occurs to them – they may be charged an attorney fee for each phone call or email. A more efficient and cost-effective way to get answers in a single phone call is to bundle your questions together in the order of most urgent to least urgent matter.

In summation: a little time spent getting ready will save you time and money if you have to meet with an attorney.

Develop a Game Plan for Separation or Divorce

If you and your spouse face impending separation or divorce, there are important legal and emotional factors to consider. Whether you intend to hire a lawyer to represent you in Family Court or you wish to represent yourself, here are several things to keep in mind:

Put a game plan together. The legal process of divorce or legal separation can be costly and time-consuming but you can take action to avoid unnecessary expenses and time spent. The key, as I tell all of my clients, is preparation. Before embarking on the process of filing for divorce/legal separation, living through litigation, and dealing with the final judgment, you should develop a game plan to see you through. Create a budget for future expenses of the legal process, develop a timeline for where you want to be in the process and at what times, attempt to anticipate potential obstacles (e.g. cooperation or lack thereof of your spouse) that may delay the process and identify possible solutions to avoid/alleviate those obstacles.

Shore up emotional support. Even under the best of circumstances, divorce is an emotional roller-coaster for everyone involved. There will be moments of happiness (knowing you’ve made a decision that hopefully improves your life), but there will be many more feelings of anger, depression, sadness, and regret.

It’s easy to see how maintaining one’s composure throughout the process is a real challenge. Get prepared by cultivating (or strengthening) an “emotional support system.” This usually consists of trusted family members, friends, a clergy person, a therapist, or someone else with whom you can confide and share your feelings.

Prepare your children. Regardless of how amicable the impending process may be, your children will be negatively affected. There’s no way around it.

If possible, talk with your spouse or partner about how best to approach the children to explain to them what is going on now and what will happen next. I don’t mean discussing the legal issues, rather, focus on how their lives will probably change during and after the process. Help them find a way to deal with their emotions and the prospect of separation anxiety that will likely occur. It’s far better to address this beforehand rather than wait for children to act out as a result of the divorce/separation.

Compile your financial information. If you haven’t already done so, compile both yours and your spouse’s financial information and documentation that are held individually or jointly – including assets, debts, income, and expenses.

Once proceedings get underway, you’ll be glad you put all this together in advance. After the divorce petition is filed and litigation starts, this will not only save you time, but even the most well-meaning people begin playing games, concealing important details about assets and debts, etc., that can lead to costly discovery efforts and will ultimately affect the final resolution of the key issues of support and property/debt division.

In many marriages, one or the other spouse is often in the dark about household finances. One spouse handles most, if not all, financial matters (paying bills, depositing checks, etc.) and the other person lives in “willful blindness” of the grand scheme of the household finances. That’s all well and good when people are in a happy situation with trust all around, but it’s the worst possible scenario in the event of divorce or separation. At that point, the person who hasn’t been involved is generally clueless about the status of individual and joint assets. This puts them at a disadvantage when it comes time to either negotiate a global settlement or present your case in court.

Set goals for life after divorce or separation. As difficult as it is to imagine, you will have a new life after this painful episode. Try to see yourself after the legal process is over. Where do you want to be after the divorce judgment comes in? What do you want out of the settlement and what are you willing to accept? (These questions apply both to finances and child custody, where
appropriate.) The court expects you to be willing to negotiate, so your attorney needs to know ahead of time what is your “ceiling” (i.e. what would be optimal for you) and what is your “floor” (i.e. what you would accept) in the overall settlement of the various pending issues of your matter (e.g. custody, support, assets, and responsibility for debts).

Again, preparing for the road ahead in advance of the legal process is the best thing you can do for yourself and your loved ones. Otherwise, that road will be a very bumpy one and much more expensive than it has to be.

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, and estate planning to criminal/DUI matters and landlord/tenant disputes.

If You Move Out During a Divorce – Do You Lose the House?

Many issues arise in the course of a divorce proceeding but some of the most common (and most commonly misunderstood) relate to a couple’s marital residence. Who will live in the house while the legal action is pending? Can both spouses continue to reside there? Should they? Who’s responsible for maintaining the property (including general maintenance, payment of the mortgage, HOA, property taxes, etc.)? If I move out, am I sacrificing all rights to the property?

The answer to the last—and probably most important—question is No. Many clients mistakenly believe that if they leave a house during a divorce proceeding, the other party gets it outright. This is a myth.

By moving out of the house, you don’t give up your interest in the property—or any other substantive legal rights connected with owning the property. Until otherwise ordered by the Court or by mutual agreement with your spouse, you still retain the privilege of possession and the ability to profit from the sale or rental of the house. If while a divorce is pending, one party needs to address an issue involving the house, he or she can present the issue through a motion—though a Court will not generally order a sale or division of the house while a divorce is still pending, except when accepting an agreement of the parties or in emergency situations (e.g. foreclosure is imminent).

In California, community property law dictates that, in the vast majority of cases, each party is entitled to 50% of all community assets. While a divorce is underway, there’s usually insufficient information to determine a fair distribution of community assets, so the Court won’t permanently award the house to one party or another until it’s clear the other party will be awarded other assets whose value is equal to the equity in the house.

When children are involved

Of course, there are several factors involved in determining who should remain in the house while a divorce is pending. One of the key concerns involves any children of the parties.

For example, if the couple has lived in the house for the past decade, they may not want their children to undergo the emotional turmoil often involved in relocating elsewhere. In these cases, the best option may be for the parent who is primarily responsible for the care of the children to continue residing in the house with the kids. After that is established, both sides must work out if that parent can be solely responsible for maintaining the residence or if the other parent will need to contribute to payments and upkeep.

Even when one party remains in the residence with the children, he/she doesn’t necessarily get a greater ownership interest in that property. Any temporary arrangements made to address this issue can always be altered by a later agreement or a court ruling. A temporary order or agreement does not mean a decision has been set in stone.

Final disposition

As the divorce proceeding nears conclusion, the issue of final resolution of the marital residence is looked at more closely by both sides. While the house can be put up for sale at any time by agreement of the parties, this is certainly not the only possible outcome. The usual options for final disposition of the residence includes:

• One spouse buys out the other spouse and gets awarded the property to herself.
• One spouse buys out the other.
• The couple sells the house together and split the proceeds.

Another possibility involves what’s called “deferred disposition.” As part of a divorce settlement, both parties may agree to hold off on dealing with the disposition of the property until some future contingency occurs, such as the graduation from high school by their youngest child.

In any event, issues related to real estate should be addressed early and often during the course of a divorce. Speak to an experienced attorney to get more information on this issue.

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.