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FAQ

How do I select an attorney?

        Basically, selecting an attorney is a personal choice and much depends on your ability to communicate or connect with the attorney and your feeling of trust in the attorney as a person and in the advice he or she gives you.  However, experience counts.   You  want an attorney who is knowledgeable about the kind of legal matters for which you are seeking representation.  You should ask questions such as, "How long have you been in practice?"   "How many types of these cases have you handled?" "How do the judges decide these types of cases?"

  

  

Do I Need A Will?

        Yes, you need a will if you want any control over who will inherit your property.  Even if you own very little, you can designate a particular piece of jewelry or a cash gift for a person or charity of your choosing.  You can nominate guardians for your young children.  You can express your funeral and burial wishes.  And you may name an executor to carry out your wishes.  The executor, who must be officially appointed as your personal representative by a judge, will collect and manage your assets, pay off debts and distribute your property.  There are generally three types of wills that can be prepared.  One is a formal will which is normally prepared by an attorney.  Another type is a handwritten will (called a holographic will).  Or you can fill out a California Statutory Will form.  If you die without a will (referred to as intestacy), your property will go to your spouse, children or next of kin, according to California's intestate succession laws (Probate Code, Section 6401).  And if you don't have a spouse, or child, or your next of kin cannot be located, your property will go to the state (Probate Code, Sections 6800, 11900-11904). 

Does A Will Cover Everything I Own?

      No.  Generally a will does not control the distribution of life insurance proceeds, retirement plan assets, joint tenancy property, "transfer on death" or "pay on death" accounts and the assets of revocable living trusts (Probate Code, Sections 5000 et seq.)

What Is a Revocable Living Trust?

      With a living trust, your assets are put into the trust during your lifetime and transferred to your beneficiaries when you die.  Most people name themselves as the beneficiaries when you die.  Most people name themselves as the trustee who manages the assets.  This allows you to remain in control of the living trust assets during your lifetime.  You also can revoke or change your living trust.  The main advantage of a living trust is that it avoids probate.  Probate is the legal procedure whereby the court determines what the decedent owned, if there are any debts that need to be paid, and who is entitled to receive the estate. 

There are three potential problems with probate: 

1)   Cost    (3-4 per cent of the gross value of the estate for attorney fees plus court filing                                        fees, newspaper publication costs, and probate appraisal costs),

2)    Delay (it takes 16-24 months to complete the average probate), and

3)    Loss of privacy (probate records are public information and anyone can see who           received assets from the probate and where they live)

A living trust avoids those problems because there are no probate costs, the transfer of the trust property is almost immediate and only the beneficiaries and the trustee need to know the terms of the trust. 

 

  

What about Spousal Support?

9 Common Ways to Calculate Spousal Support

You can ask for spousal support to be paid while your case is going on.  This is called a "temporary spousal support order."  Many counties have formulas for calculating the amount of a temporary spousal support order.  Check your court's local rules for the temporary support guideline.

The judge will not use a formula to figure out how much spousal support to order at the end of your case (call the "final judgment").

When the judge makes his or her final order, the judge must consider the factors in California Family Code section 4320.  The factors they use for calculating spousal support are:

          1.  The length of the marriage

          2.   What each person needs

          3.   What each person pays or can pay (including earnings and earning capacity)

          4.  Whether having a job would make it too hard to take care of the child(ren)

          5.   The age and health of both people

          6.   Debts and property

          7.   Whether one spouse helped the other get an education, training, career, or professional license

          8.   Whether there was domestic violence in the marriage

          9.   Whether one spouse's career was affected by unemployment, or by taking care of the children or home 

Tax Impact

Usually, spousal support is tax deductible for the paying spouse and taxable income for the supported spouse.

When Does Spousal Support End?

  • A court order or judgment says it ends
  • One of the spouses dies
  • The person getting the support remarries

Modification of Spousal Support Overview

Spousal support awards and agreements are modifiable throughout the support period except as otherwise provided by agreement of the parties.

However, unlike child support, the court's continuing power to modify spousal support is dependent on the terms of the court's order.  Unless jurisdiction to award support has been reserved, post-judgment spousal support is limited by the stated duration of the order.

Once the court has "terminated its jurisdiction" over the issue of spousal support, the supported spouse will generally not be able to return to court and seek to extend spousal support.

However, if there is a step-down spousal support order that provides that spousal support will terminate on a certain date absent the party petitioning the court prior, it is possible for the supported spouse to seek that the court further extend support as long as the supported spouse files their request prior to the termination date.

In marriages of less than ten years, the statute provides a presumption that support should be granted for half the length of the marriage.  As a practical matter, in the late 1990's it appears that spousal support duration is linked to a transition period from married life to single life.  The circumstances vary from person-to-person, but the courts tend to disfavor "lifetime support."  Thus, even in a marriage of long duration it is generally possible that the court will terminate spousal support after a "reasonable period of time."

The court will often issue a "Gavron Warning" which provides that the supported spouse must make reasonable efforts to become self-supporting within a reasonable period of time and that failure to do so may be grounds for terminating support.

A "Family support" order may be modified to separate orders for child and spousal support where there has been a change of circumstances justifying increased child support.

 

 



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Address: 912 Perdew Avenue, Suite C Ridgecrest CA 93555
Phone: (760) 446-5300
Fax: (760) 446-1107
Email: contact@waynesilvalaw.com