Featured

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.

Featured

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 .

Featured

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.

Featured

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.

Featured

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 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.

International Travel and Child Custody – What You Should Know

Sometimes it seems that issues around child custody are needlessly complicated to understand. So when a parent who shares custody of a child wishes to travel internationally, he or she should be aware of the additional legal ramifications of taking that child out of the U.S.

In one respect, things are fairly straightforward, at least for residents of California. The state has no statutory prohibitions for international travel with a child, unlike state laws affecting a parent’s decision or desire to relocate with a child out of his or her county of residence to another part of California (or another state). However, other variables, such as travel restrictions in a court order, may impact travel plans.

To understand how child custody may affect international travel, let’s look at the situations (1) where there are no court orders and (2) where a child custody order is in place.

No court orders

If your child doesn’t already have a passport, federal law requires both parents to sign the passport application. To complete this process, both parents can appear in person to present the application or one parent can give the other parent a document of signed consent to indicate their agreement.

In cases where one parent objects to the other parent traveling out of the country with their child, obtaining a passport may prove difficult. Sometimes this may legal proceedings to establish each party’s rights—that is, to file a petition for custody orders.

Another reason why it is important to have the other parent’s consent, (or court orders establishing specific rights), is that various government agencies in the country you wish to visit may require a letter of consent signed by the other parent. This can also apply to customs and/or airline officials who ask to see a signed letter of consent before taking the child’s boarding pass.

A custody order in place

Some child custody orders may include provisions that prohibit or at least limit the extent of international travel with the child (this can apply to domestic travel restrictions as well). Even if there are no specific restrictions, it is a good rule of thumb to make every effort to get the consent of the other parent before making travel arrangements and to ensure that, unless the other parent is in total agreement, such travel does not conflict with either the other parent’s time with the child or with the child’s school attendance.
Even when a custody order is silent on the issue of travel with the child, you may still have to “jump through hoops” regarding, as stated above, passports, letters of consent, and so on. Again, my advice is to always obtain permission for your travel plans, in writing wherever possible.

Nightmare scenarios

What happens should you choose to disregard the other parent’s wishes and travel out of the country with your child without the consent of the other parent? Here are possible nightmarish consequences to consider:

  • The other parent can file a police report with local law enforcement, charging you with parental kidnapping.
  • The other parent can appeal to the U.S. Department of State and set proceedings in motion that charge you with federal parental child abduction.
  • If a custody order exists, the court can deem your actions “contemptible,” laying the groundwork for additional penalties and fines on your part, as well as grounds for a change of custody.

Again, if you must travel to Mexico or elsewhere outside of the U.S. with a child, do everything in your power to get the other parent to consent. Once the other parent has consented, you can travel with the child worrying of facing the above-indicated civil and criminal penalties.

If for some reason you’re unable to obtain consent and still need to travel with your child, promptly consult a family law attorney to explore your other legal options.

Unclear as to your rights under a child custody order? The Law Offices of Ian S. Topf, APC offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.

Is There Such a Thing as an Amicable Divorce?

By its very nature, a divorce proceeding is an adversarial event. But adversarial doesn’t have to be the same thing as bitter or filled with antagonism.

With the high cost of litigation—not to mention the potentially devastating emotional damage on spouses, partners, and their families—it makes sense for the parties involved to try and step back, look to the future and consider a time when all this will be behind them. Doing so may lead the parties to push aside their personal feelings about each other and come up with answers to the various issues raised by their impending dissolution.

Generally speaking, the less complicated the issues are, the more likely it is divorcing parties can reach an amicable resolution. By “less,” I mean situations where a marriage hasn’t lasted very long or involves no children and little property to divide. By comparison, marriages that have endured for several decades, involve numerous offspring, and include episodes of domestic
violence are far more difficult to end in anything like a friendly manner.

Based on my own experience as a family law attorney, I believe there is always hope for an amicable resolution. In one uplifting recent situation, a husband and wife with four children, huge disparities in income, and a mountain of debt, nonetheless succeeded in handling their divorce as cleanly and expeditiously as possible. Both partners were working professionals who still had feelings for each other but realized they could no longer live together. Upon deciding to separate for good, they entered discussions with a couple of key principles in mind:

  • When dealing with children, try as hard as you can to set aside your personal feelings and do what’s best for them. For example, if your job compels you to travel frequently or work 60 hours or more a week, with little to no flexibility in your work schedule, you probably shouldn’t get stuck up on arguing for primary physical custody, knowing you likely won’t be available to attend to your children’s continuous physical well-being.
  • While making arrangements to dissolve a marriage or partnership, understand this isn’t the end of the world. No matter how painful things are right now, there is light at the end of the tunnel and a time will come when you can put these troubling emotions behind you.

In the case I’m talking about, the two people were concerned about how quickly legal fees can escalate when negotiating a divorce. They wanted to minimize the costs involved and the traumatic effect divorce would have on their children. In the end, the husband willingly agreed to pay more in support, so his ex-wife could remain in their marital residence until their kids had graduated from high school.

It may not seem like it at the time but both parties in a divorce proceeding have a lot of control over how things work out. For one thing, consider the wisdom of arguing with your estranged spouse about who gets ownership of a $500 treadmill against the thousands of dollars in fees it will take to get things your way.

Divorce is never easy, but by keeping emotions under control and looking ahead to a brighter future, it needn’t become a permanently embittering experience.

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.

In Need of Estate Planning? Beware DIY Websites

At some point in our lives, many of us will need to create an estate plan to manage our assets—including property, financial holdings, personal belongings—not just for our lifetimes, but for our loved ones after we’re gone. For the most part, there are three types of trust you may want to consider in your estate planning:

  • Living trust—A document concerning the management of your assets which can be amended or revoked at any time during your life.
  • Testamentary trust—A document based on language in a will, covering the management and distribution of your assets.
  • Irrevocable trust—A document with specific distribution provisions that cannot be revoked later on.<li>

The primary reason for a living trust is so you can manage and administer your assets both in life and death, without the intervention or supervision of a court of law. While a living trust in and of itself won’t eliminate estate taxes, it’s the best way to avoid the expensive, time-consuming (and often emotionally traumatic) process of probate.

DIY Websites May Fall Short

Because of the multitude of do-it-yourself (DIY) legal websites available these days, it’s tempting to consider this inexpensive alternative to hiring an attorney or law service that specializes in this area. We urge people to be very cautious when contemplating cheapening out on estate planning.

As we’ve noted in a previous blog post about DIY legal websites, by using such a site, you may fall short of your estate planning goals. Why?

  • Documents provided on these sites may or may not have been prepared by a qualified California attorney.
  • Since California law is subject to change from time to time, these documents may not have been sufficiently updated to meet current legal requirements.
  • Most of these sites don’t offer advice on what documents you need to complete your estate planning goals.</li>

Yes, many DIY legal sites are less expensive than hiring an attorney or even a low-cost service. But remember—you usually get what you pay for.

The vast majority of inquiries for estate planning services with our office start with the request for a will. However, a will serves primarily for use in probate (e.g. guardianship, simple distribution of assets). When you have a will without a trust, your instructions on how to settle your estate has to be approved by a court. The executor of your estate must submit the will to
the court and have it officially recognized before your last wishes can be carried out.

Living trusts and wills can complement each other, such as when a living trust is drafted together with what’s commonly called a “pour-over will.” Such a will is designed to protect any assets which were either forgotten when creating a living trust or left out for some reason. The pour-over will ensures that these assets become part of the living trust upon the individual’s death. It “pours over” all assets that failed to be originally placed in the trust and which now can be distributed as originally intended in the trust.

In California, people who want to pass real estate on to their beneficiaries should look into getting a living trust. Currently, if the value of all the property of your estate is less than $150,000, simplified probate procedures, and/or affidavits to collect your assets without any court proceedings may be available to your beneficiaries. However, if you believe your estate will be
more than that threshold at your death, or if you want to try to ensure your estate passes to your beneficiaries as smoothly as possible, you should contact an estate planning attorney about obtaining a trust.

Have questions or need assistance with your estate plan? 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.

Is It Time to Modify Spousal or Partner Support?

With the holiday season upon us, people often find themselves in a financial crunch, (buying gifts, hosting visiting family members, etc…). The burden of these additional holiday expenses can be especially challenging if you’re either paying spousal,/partner support or even receiving such payments yourself.

That’s why it’s not unusual at this time of year for people to reach out to a family law attorney with this critical question: Is a modification in the amount I’m receiving (or paying) warranted?

The short answer is: It depends. That’s because there are factors involved in the process of modifying such a court order.

In California, spousal/partner support orders are generally modifiable as long as the order is in place, unless there’s specific wording in the order that makes it non-modifiable. So long as your order is modifiable, you must then ask yourself if has there been “a material change in circumstances” since the last support order.

In determining whether a spousal/partner support order should be changed, the court must use objective facts to make subjective decisions such as is the support order enough (or too much) and should the support order continue to exist.

A couple of examples of facts the court might consider include:

  • Has the supporting (i.e. paying) party experienced a substantial change in expenses beyond his or her control? (e.g. A significant increase in mortgage expenses due to unilateral changes from their mortgage lender.)
  • The supported party suffers a major physical disability, affecting his or her ability to make money, again through no fault of their own.

In such cases, the court will re-examine the factors considered in the original court order and determine the possibility of modifying the amount of spousal/partner support.

There are some misconceptions about how spousal/partner support modifications work. A client recently told me, “I was married for 15 years and I’ve been paying spousal support for more than eight years. Isn’t there a rule I should only have to pay for half the length of the marriage/partnership?”

No such rule exists. In fact, the longer the duration of a marriage, the more likely it is the court will extend or allow a support order to go, possibly indefinitely.

Another misconception is that a change in income by either party, in itself, is grounds for a modification of spousal/partner support, (“she is now making way more money than when we were last in court” or “I no longer receive overtime, as I did when the court awarded him spousal support”). Upon addressing this change in a request for modification, the court re-examines ALL of the factors (including additional expenses that a party may now incur that they didn’t before).

When you’re a party in a support matter, you can request the other party’s relevant financial information, regardless of how much time has passed since the court last made orders. In California, there is a form entitled “Request for Production of an Income and Expense Declaration Form After Judgment.” Once a year, you are entitled to mail this form to the other party, at which time they have 30 days to complete and return the form (along with a copy of their most recent tax returns). A failure to comply with this request may expose the other party to fines and/or other penalties.

Such a relatively simple and low-cost effort can shed light on your ability to seek a modification of your spousal support order, providing you helpful information to either support such a request or, in the alternative, to convince you that now is not the time to file.

Spousal support modifications can be a tricky business. To make sure you’re proceeding in the right way, either as the person making payments or the person receiving them, you should seek out professional advice. Find out more about how we can help you determine if a modification is warranted and pursue that modification in court by reaching out to The Law Offices of Ian S. Topf. Free consultation is offered in a variety of issues, ranging from family law/divorce, bankruptcy, and estate planning.

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.