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Palm Springs Law Blog

Wednesday, May 6, 2015

I'm a Consumer! What has the California Attorney General's Office and the Department of Consumer Affairs Done for Me Lately?

The Attorney General heads up the California Department of Justice (DOJ), and according to the department’s mission statement, has broad responsibilities to enforce laws fairly and impartially; ensure justice, safety and liberty for everyone; encourage economic prosperity, equal opportunity and tolerance; and safeguard California’s human, natural, and financial resources for this and future generations.  Justice is served by helping to prevent and prosecute criminal activity, protect consumers from victimization, and promote public safety.

 

The Attorney General can’t give specific legal advice about personal problems or represent individual Californians, but whether you realize it or not, your life is touched by many of the Attorney General’s actions every day. Here are some of the major areas that are designed to support your safety, general welfare, and quality of life:

 

  • DOJ bureaus are responsible for a variety of regulatory responsibilities in the areas of narcotics, gambling, and firearms control. They carry out laws, assist other state and local law enforcement agencies, and provide education to the public. The Bureau of Investigation has wide-ranging duties including information and intelligence networks, an anti-terrorism program, and special operations units that combat violent criminals, gangs, drug and human trafficking, and fraud.

 

  • The DOJ collects, analyzes and reports crime statistics, and maintains criminal history records for use by law enforcement and other authorized agencies. An individual may request a copy of his or her own criminal record. DOJ maintains a central index for cases of child abuse throughout the state, and handles international child abduction cases together with the U.S. Department of State under the Hague Convention; and domestic child abduction cases together with the California Child Abduction Task Force.

     

  • “Megan’s Law” information and locations for registered sex offenders may be accessed by applying on-line through the DOJ website. There is a searchable database for people who have gone missing, and you can subscribe to a Missing Persons Bulletin which covers children, dependent and voluntarily missing adults.

     

  • Elder abuse may become more prevalent as our aging population grows rapidly. The DOJ has responsibility for prosecuting abuses and policies that lead to neglect and poor quality of elder care in skilled nursing homes, hospitals and residential care facilities. Criminal history data is provided to employers of unlicensed persons providing in-home supportive or personal care services to dependent or elderly adults.

     

  • The DOJ handles many consumer fraud and complaint issues. Their website oag.ca.gov/programs offers detailed information about consumer concerns such as debt collectors, homeowners associations, e-crime, identity theft, loan modification fraud, antitrust issues, corporate fraud, lemon law, prescription drug monitoring, and many other problems that affect Californians.

 

  • Consumer questions and complaints may be filed with an on-line complaint form which is sent to the Attorney General’s Public Inquiry Unit, and will be forwarded on to other state agencies if they are responsible for regulation of the issue.

 

The California Department of Consumer Affairs (DCA) regulates and issues licenses in several hundred business and professional categories.  The DCA has

bureaus and boards that carry out the legal requirements for each of the specialties. All individuals and/or groups covered by these rules must apply for and be granted a license or certification to operate and practice in the state of California. You may check to see if someone has a valid license by going to www2.dca.ca.gov.

 

From your hair stylist, CPA, car mechanic, doctor, realtor, contractor, to your appliance repairman, pharmacist, pest control service, mental health counselor, security guard, and funeral director, all, and many more, are required to meet regulations for practice and must be licensed. The DCA handles complaints from consumers in all areas, and works together with the California Attorney General and local district attorneys to prevent and prosecute fraud in the marketplace.

 

Consumers are encouraged to make complaints and report problems when issues with business and professional practitioners are serious. Issues with certain businesses and practitioners might be resolved through the department’s Complaint Resolution Program. For other disputes, the DCA may recommend new approaches to resolving the problems, or possibly mediation, or filing suit in small claims or civil court.  File a complaint on-line at www.dca.ca.gov/online_services/complaints.

 

The DCA also offers important free information covering a wide range of consumer issues. There are guides for business and professional categories that are licensed, and a variety of others which offer important tips for handling concerns ranging from disasters to consumer fraud.  One well-known guide is “California Tenants – A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities”.  This is an excellent

brochure, giving a clear explanation of California rules and what they mean.


Wednesday, April 22, 2015

Money Matters

I handle estate planning for people who have a handful of assets, tons of assets, and everything in between. Other people have serious financial problems, and I help them file bankruptcy, so they can get a fresh start. And some folks are married or registered domestic partners and need me to file for a dissolution of the relationship. Whatever your fortune or misfortune, money and other assets are usually the focus of my work. Here are some notes and suggestions that can help protect what you already have, or regain a solid footing when you need it:

 

  • Finding Money:  You or a family member may have money waiting for you.

    Unclaimed monies must be turned over to the state by financial institutions and

    other companies. The state then must try to find the rightful owners. There is no charge to check these two official websites to search for unclaimed property:

     

    www.Unclaimed.org            www.MissingMoney.com

     

    Be wary of companies that charge you or send “special offers” to locate funds for you. Some are legitimate, but some are not. Check the above websites first.

 

  • Finding More Money:  Did someone pass away recently? Could you be the beneficiary of a life insurance policy? To get any information from insurers, you must have the authority to discuss the matter with them. You must be the executor or administrator of the decedent’s estate, a member of the immediate family; or have written authorization from that person for the insurer to release information to you. You will need a certified copy of the death certificate and as much information as you can find about the policy itself. Contact the insurer’s main office to see if they are permitted to talk to you as a possible beneficiary. If the death was a long time ago, it is likely that the funds have already been turned over to the state and will turn up on the websites listed above.

 

  • Marrying for Money:  When you marry or register as domestic partners in California, look carefully at both of your financial situations. You each bring

separate property to the union, and can choose whether to keep all of your property separate, or co-mingle some or all of it. What you acquire after the union

will usually belong to both of you as community property. You can choose how to identify all of your property by creating a pre-marital or post-marital agreement.

 

  • Splitting Up Money:  Sometimes things just don’t work out. You married,

    registered, or were in a committed relationship, and now you want out. Were you smart and signed that pre- or post-marital or cohabitation agreement? If you did, your path to single life should be fairly smooth. Everyone is clear on who owns what and who gets what when the relationship ends.

     

    Forgot those agreements in the thrill of romance? Unless you both agree completely on who is entitled to all the assets and debts, your escape from the union is likely to be painful. To dissolve a marriage or registered partnership, each person must provide very detailed financial information and documents that will serve as a basis for the two of you and the court to determine what is a fair settlement of your property. If your partnership was simply a committed relationship, it is not recognized as a union in California, and you and your partner must sort things out by yourselves. A civil lawsuit could be filed to try to settle disagreements, but the process is very complex and expensive.

 

  • Erasing or Reducing Debts:  Financial problems can hit any of us, any time.

    Student loan debts drag many of us down. Although most of these debts can’t be discharged in a bankruptcy, some can be reduced or forgiven through various programs. Get a job in public service, government or with a non-profit entity. Join the military. Apply for the Income-Based Repayment Plan. For certain student loans, become a public school teacher in a low income area. There are many other forgiveness programs that could help. Check first with your loan provider, who should be able to identify the programs that might work for you.

 

Housing debts are a major contributor to bankruptcies. If your mortgage is more than the value of the property and it is tough making the payments, it is possible the lender will foreclose and you will lose your home. There are several good refinancing programs available now. Check with your lender for options.

 

If refinancing doesn’t work, and you are in genuine financial distress, consider

bankruptcy. It can often stop an imminent foreclosure, help reduce or wipe away your other debts, and make it possible for you to retain your home and start off with a clean slate.

 

  • Giving Away Money:  Many folks give gifts to family members and charities. There may be tax consequences for these gifts, and it is crucial that you check with your tax professional to review these first. When choosing charitable organizations for your gifts, do careful research. Are they well-managed and are  they actually accomplishing what they set out to do? Use these websites to learn:

    www.CharityNavigator.org    www.Guidestar.com    www.MinistryWatch.com


Wednesday, April 8, 2015

Good News - Bad News: Challenging the Culture of Discrimination

The LGBT community in the U.S. has made huge gains in human rights and equality in the past few years. This brief scorecard highlights some of the major victories:

 

  • The federal government and 35 states plus Washington DC now recognize same-sex marriage

  • The “Don’t Ask Don’t Tell” policy in U.S. Military service was repealed

  • Laws against bullying and harassing students now exist in 49 states, with at least 18 states and DC specifically addressing sexual orientation and gender identity as protected categories

  • The federal 2009 Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act specifically protects LGBT persons from violence

 

This is great news  -  these advances are awesome, and we are keeping the momentum, pushing on the legal front for marriage equality in all the remaining states, inclusion of LGBT categories in all anti-bullying laws and additional protection from hate crimes.

 

So where does that leave us with tolerance and equality for our LGBT community? Clearly, there is a lot of hard work ahead. How is it that a person in 2015, in the United States of America, can lose his or her job, or be disqualified from renting or buying a home, because of sexual orientation or gender identity?  How can it be that LGBTQ youth are discriminated against by school teachers and school boards simply because of their diversity? How can anyone justify continuing to criminalize HIV when we now understand the disease and how to prevent or minimize it?

 

Let’s take a look at these and other serious issues that still face us. They are the focus of individuals and organizations who hope to move us forward in this new year:

 

  • Two of the most basic human requirements – shelter and a job to earn a living  -  can be denied to people who aren’t straight. 29 states and many federal agencies have no laws giving equal rights in housing or employment to most LGBT persons.

  • Federal legislation to address employment discrimination based on sexual orientation and/or gender identity has been pending for years in Congress. The current version has been watered down, and may not be the best solution at this time. Its chances of passage are unknown for this coming year.

  • A majority of states who don’t specifically include LGBTQ youth in their anti-bullying and anti-harassment laws make it possible for a continuing culture of

    cruelty, intimidation and discrimination against this group. Such youth in schools are subject to verbal and physical abuse by other students, and sometimes by teachers and other officials as well. This leads to a high rate of truancy, dropping out of school, and a distressing suicide rate. Suicide is the leading cause of death among LGBTQ youth.

  • It is estimated that 40% of homeless youth are LGBTQ. Forced out of their homes, with no family, friends or community support, they may enter into a foster care system which often perpetuates the harassment and victimization they faced at home or in school. Or they are forced to rely on minor crimes or sex for survival, and eventually end up in the juvenile justice system, which again offers little but discrimination and abuse.

  • Domestic violence is, sadly, very common in the U.S., and most experts agree that it occurs just about equally in same-sex and opposite-sex relationships. But not all states have laws or policies that provide equal protection and support for both straight and LGBT victims. And LGBT victims are much less likely to report abuse, call for assistance or receive help or support in the community. Fear of

    negative attitudes and discrimination by agencies and officials; fear of exposure or outing someone; and fear of making the LGBT community look bad are some of the reasons such victims fail to report abuse, and have a difficult time escaping violent relationships.

  • According to Lambda Legal, 39 states have HIV-specific criminal statutes or have brought HIV-related criminal charges in the past 2 years. There were more than 80 prosecutions during that period. This organization and others are working to challenge convictions and reform existing HIV laws to reflect and support the current scientific knowledge of HIV, its prevention and treatment.

 

These serious issues, and many others, affect the daily lives of everyone in the LGBT community; and reflect faults in U.S. and state human rights policies that have no place in our country. Lack of tolerance and community support for any minority affects all of us. There is no positive value for our society when anyone perpetuates a culture of discrimination and harassment. It is our obligation to work toward equality in every part of our lives.

 

You can help by giving your voice, time and financial support to the many organizations that work hard for equality. Here are a few to consider:

 

Lambda Legal                                     Equality California  

Human Rights Campaign                    American Civil Liberties Union

     Southern Poverty Law Center             PFLAG

     GLAAD                                                The GLBT National Help Center  


Wednesday, March 25, 2015

When Life Throws You Questions, You Need Answers

A new year is ahead of us, and some of these real-life questions and answers may help you make and keep resolutions that will pay off in the future:

 

Question:  Joanne and Marie are planning to marry in January. They know they need a marriage license from the county clerk. Is any other paperwork required before they can have their wedding ceremony?

 

Answer:  No other paperwork is required by the state or county, but there are several important issues that should be reviewed by the couple before they marry. When their status changes from single to married, many of their rights and responsibilities will change, too. Ownership of assets like a home, bank and investment accounts, and beneficiaries of retirement funds, insurance policies and annuities may need to change. There may be tax advantages and disadvantages that need to be considered. It is wise to sign a pre-marital agreement that spells out who owns what. This new chapter in their lives needs a rock-solid legal and financial footing. The marriage license is just a piece of paper – the icing on the cake.

 

Question:  U.S. citizens Sammy and Dejohn were live-in partners for 2 years, and decided to jump on the marriage bandwagon in Palm Springs last year. Everyone was doing it. Now, things are falling apart, and they are going their separate ways. Dejohn is moving back to his family’s original home in Jamaica, to settle down there near his relatives. Since Jamaica doesn’t recognize same-sex marriage, is Sammy still married, in case he wants to marry someone else in the future?

 

Answer:  The two guys are still married under U.S. laws and those of many other countries. They should file for a dissolution and move on. Bigamy is never a good idea.

 

Question:  Calvin and Greg are in their 60’s and have lived together for 24 years.  Recently, Greg had a stroke, is developing some memory problems, and is not fully able to care for himself. Calvin is taking physical care of him, but Greg’s sister is handling his medical bills and personal paperwork. Recently, she brought over some papers, which she persuaded him to sign. Then she told Calvin that Greg had given her authority over all his finances, and she is going to make some major changes in his bank and investment accounts. Calvin is really concerned, because he and Greg have several joint accounts and own the house together. What should Calvin do?

 

Answer:  If this couple ever registered as domestic partners, or married each other, it is likely that Greg can’t give away spousal rights just by signing a paper. Also, Greg can’t sign over the joint ownership of the home and bank accounts.  However, in joint accounts, either owner is entitled to use of the whole account. Technically, if the sister is now Greg’s legal agent, she could take all the funds out of the bank accounts, leaving Calvin with nothing. Calvin should consult an attorney immediately, to find out what he  can do to protect his share of the assets. And definitely contact the local elder abuse authorities – it is possible the sister used undue influence to obtain control of Greg’s finances.

 

Question:  Wally and Susan’s mother was a smart lady, and she created a simple Will for herself on her computer. As assets, she listed her house and personal property, including 2 antique cars, some valuable art pieces and jewelry. Wally, Susan, nephew Randy, and 3 friends were listed as beneficiaries, with the items each would receive. She signed the Will, had it notarized, and put it away in her safe deposit box, where it was found when she passed on 12 years later.

 

Mother named Randy as executor in the Will, and as required, he petitioned the probate court to give him authority to manage her estate and distribute all her property. Everyone was shocked to learn that the Will wasn’t valid. California Wills require at least two disinterested witnesses, not a notarization. Aside from that, the list of assets was sorely out of date – in need of money, mother had disposed of many of the items over the years, including most of the personal property promised to her beneficiaries. And 2 of the 3 friends had passed away. The Will said nothing about what would happen to their bequests if they departed. And mother’s house now had a reverse mortgage, and no equity left in it at all. What more could go wrong?

 

Answer:  Wills must meet very specific requirements to be valid in California. In spite of her intelligence, mother made several critical mistakes: the most obvious were not knowing the legal requirements for a valid Will; not providing for what would happen if named beneficiaries passed away before she did; and not updating her Will regularly to keep the list of assets and property current. Now, Randy must ask the court to probate an “intestate” (without a Will) estate, and appoint him administrator to pay off debts and distribute any remaining assets to the statutory heirs, who, under California rules, are normally the next of kin. Wally and Susan are mother’s closest relatives. Randy is farther removed, so he and the remaining friend have no right to inherit anything.


Wednesday, March 11, 2015

So You Agreed to be a Trustee - Now What?

We help lots of clients with their estate plans, crafting Wills and Trusts and other documents that are designed to protect people and their assets. A revocable living trust is often a good choice because it provides for the smooth transfer of property if the owner becomes incapacitated or dies. It usually avoids handling the estate through a probate court, which is a public process that can be very costly and time-consuming.

 

For every trust, there must be a trustee  -  the person who is authorized to manage and control all the property in the trust. In a revocable living trust, the initial trustee is usually the person who created the trust (called the grantor or settlor) – the owner of the property transfers everything into the name of the trust, and then controls it as the trustee. A great advantage of a trust over just having a Will is that a successor trustee takes over if that person becomes incapacitated or passes away, and there is no need to go to probate court to have someone appointed. The successor trustee continues to manage the property in whatever way the terms of the trust require.  

 

For single individuals, or partners who are not married or registered domestic partners, the choice for a successor trustee is usually a relative, partner or friend. These people agree to be the trustee if and when something happens. Although the estate in a trust may not need to be probated, California has strict legal requirements for the performance of trustees and the management of trust property. It is very important that a successor trustee understand the role he or she will play, and the rules that must be followed.

 

Trusts can range in value from a few thousand to many millions of dollars. As you might expect, a successor trustee’s time and effort will be proportional to the complexity of the estate. But the legal requirements are the same, regardless of the value of the estate.

Most important is the responsibility of the trustee as a fiduciary – managing the assets in the trust for the benefit of others. Heirs and beneficiaries are usually named, and the trust states how the assets of the estate will be divided up among them after all bills are paid and other requirements met. The trustee is responsible for conserving the assets, growing them, if possible, and delivering the assets to the beneficiaries.

 

Most trustees are ordinary folks who have no experience with managing estates for other people, so they usually retain an attorney to help them administer the trust. Lots of details must be handled over a period of months or years. An estate planning attorney is familiar with all of the duties spelled out in the Trust Administration sections of the California Probate Code, and can assist the trustee with all of those administrative tasks.

 

Whether the trustee has an attorney or not, it is essential to document everything that happens. Notices of the trust administration and copies of the trust document must be sent to all beneficiaries and heirs. The estate must be valued on the date of death, which may require professional appraisals of personal and real property. Liquid assets such as cash, bank accounts and money market funds must be transferred into a trust account. All valid bills, invoices and other creditor claims must be paid out of this account, along with any expenses for maintaining property or administering the estate.

 

Account statements must be kept in order and reviewed regularly to track the continuing value of the estate. Investments need to be managed to avoid or minimize any losses. If there is real property, it may need to be sold and the proceeds deposited into the trust account, or be distributed directly to beneficiaries before the trust administration is closed.

 

Once all debts have been paid, and all assets are in the form required for distribution, there is usually a final accounting. This details everything that happened to estate assets from the first valuation on the date of death to the current date. Unless they waive it in writing, all beneficiaries and heirs are entitled to an accounting at least once a year. If the trust administration continues into additional years, an interim accounting must be sent out at the end of each year, and the final accounting is done just before distributions are made.

 

If the trustee does not have an attorney, it is strongly recommended that a CPA or other accounting professional be retained to prepare the accounting and handle the filing of required personal and estate tax returns. Failure to follow tax laws can result in serious losses to estate assets and to beneficiaries and heirs. 

 

Finally, distributions are made according to the terms of the trust. The trustee will write checks on the trust account for cash bequests, and transfer other personal and real property as required. At this point, the trustee may write a check to himself or herself for serving as trustee and administrator of the estate, if the trust terms permit it. The amount will be stated in the trust, or if not, will be determined by local customary fees based on the trustee’s detailed records of hours spent and tasks performed.

 


Wednesday, March 4, 2015

Refreshing Your Financial Future

The U.S. Supreme Court’s DOMA decision last year opened up over a thousand  marital benefits and obligations never before available to people in legal same-sex marriages. Among these is the right to file a joint bankruptcy with one’s spouse, just as straight married persons have always been able to do.

 

Let’s take a quick look at financial issues, bankruptcy, and how they affect same-sex couples:

 

In California, large numbers of bankruptcies were filed during the “Great Recession” of the past few years. Loss of assets in the financial market, loss of jobs, and underwater mortgages were the primary reasons. Now, as the economy improves, there is a substantial decline in bankruptcies, and prospects are good for most people. But, even for people who have managed their finances well over the years, a sudden job loss, major illness, accident, or failure of a small business can tip the balance and cause catastrophic money problems.

 

People with financial difficulties may start falling behind on car payments, credit cards, mortgages. Creditors start hounding them. Lawsuits may be filed against them to recover monies owed. When the courts issue default judgments, liens might be placed on their possessions, or salaries may be garnished by the creditors. Once debtors are trapped in this whirlpool of actions, it is likely that bankruptcy is the best way out. It is far too late to negotiate a way out of debt.

 

Bankruptcy can resolve your creditor issues, and give you a fresh start. If lawsuits are pending, foreclosures are imminent, or wages are being garnished, it is usually possible to stop these actions if a bankruptcy petition is filed. There are two types of bankruptcy to consider, and both can help rebuild your finances:

 

Chapter 7 gives you the chance to clear away most debts, through a “discharge” of debts by the bankruptcy court. Let’s say you have substantial debt, and not enough income to pay it off over a reasonable period of time. You have few or no assets (such as lots of equity in a home, multiple cars, large stock market investments, etc.) that the bankruptcy trustee can sell to pay off the creditors. Of course you may retain certain necessities (home, car, bank account, etc.) if they fall within the dollar limits of the exemptions allowed by the state or federal government. If you qualify, you file a Chapter 7 bankruptcy petition, and it takes about 4 to 6 months to discharge your debts. After that, you have a clean slate for the future.

 

Chapter 13 gives you the opportunity to continue paying off most or all debts over a 3 or 5 year period, under the protection of the bankruptcy court. In this case, you have sufficient steady income so you can create a plan to pay down the debts. The plan is administered by the bankruptcy trustee and you pay the trustee an agreed-upon amount of money each month. The funds are distributed to the approved creditors, and at the end of the plan period, you are essentially debt-free.

 

In both types of bankruptcy, certain debts such as most recent back taxes, student loans, alimony and child support, and some others are not dischargeable.

 

What should same-sex couples consider if they are thinking of bankruptcy? It is important to remember that some states don’t recognize same-sex marriage at all, but the federal rule allowing joint bankruptcy filing applies to legally married couples in every state. In states that do recognize same-sex marriage, the rule may also apply to registered domestic partners. California is a community property state, and registered partners have nearly all the same rights and obligations as married spouses. Joint petitions are allowed for both married and registered same-sex couples. But the rule does not apply to other domestic partners, even though they may have shared finances and property, and been together for many years.

 

How do you decide between filing a joint petition and individual petition? It can save time and money to file a joint petition. A single filing fee, lower attorney fees, one hearing instead of two, and other reasons make it an advantage over filing individual petitions. On the other hand, in a Chapter 7, being married could sometimes be a disadvantage. Whether filing a joint or individual bankruptcy, if both spouses have income and property, assets are totaled and there may be difficulty meeting the means test in either type of petition.

 

What if you are not married or registered? You can’t file a joint petition, but one or both of you can file individually. Joint debts will be eliminated for both partners if both file petitions. They will be discharged for only the personal liability of one partner, if only one files. The other partner will remain liable for the joint debts after the petitioner’s case is closed.

 

Whether you are married, registered or single, be sure to consult an attorney about your particular situation and the best way to file for bankruptcy. Doing it right will mean a new and refreshing financial future.

 

 


Wednesday, February 25, 2015

Broken Relationships - Avoiding the Fallout

 

LGBT relationships run the gamut from simply living together (cohabitation) to marriage. Most couples form lasting unions, but there will be rifts in others that lead to a break-up, with the two individuals going their separate ways. Financial differences or problems are a common result of the failures, and disagreements can result in emotional crises, costly court cases, and judgments that neither party likes. A little careful planning can usually avoid most or all of the drama. Here are some of the things to consider:

 

Cohabitation

 

Many partners have been in long-term cohabitation relationships, because domestic partner registration or marriage weren’t available to them. For others, cohabiting is simply a casual, convenient and voluntary way to live together. They may not realize that there can be specific responsibilities the partners have under civil law. They may not be able to just walk away if they decide to separate.

 

Civil Court (as opposed to Family Court) handles disputes cohabiting partners might have over the terms of their relationship. Were promises made and not kept? A partner must prove a legal basis for a claim, such as an oral, written, express or implied contract. The Court will determine whether there was an enforceable contract, and if so, whether it has been breached by one or both of the parties. These lawsuits (popularly known as “palimony cases”) can be very expensive, take many years, and are difficult to win.

 

A Cohabitation Agreement is the best way to avoid financial disputes in the relationship. The partners identify their financial contributions to the relationship, and what they expect to take away from the relationship if they separate. If the partners don’t want a formal agreement (“It’s not romantic”; “We would never do anything to hurt each other”), then it is essential for each partner to maintain individual bank and investment accounts, not hold title to any assets in joint ownership, and not contribute any money toward the purchase of any asset (house, car, etc.) that is only in the name of the other partner. Never give up a job or other assets because a partner promises support, without a specific agreement in writing stating the promise and that the partner will not be left destitute if the relationship ends.

 

Marriage and Registered Domestic Partnerships (RDP’s)

 

In California, marriage and RDP’s are essentially identical. Under state law, spouses and registered partners have very clear and defined obligations to care for and support each other. They can’t just say goodbye and walk away if one of them has trouble with money, gets sick, or finds a new love-outside the union. If they want to end the union, they must file a petition for dissolution of marriage and/or RDP.

 

Family Court handles the dissolution process, and supervises all the steps that must be taken to ensure that the final judgment will be fair and equitable. The expense of dissolution and the emotional toll on spouses or partners is directly related to whether the couple can agree to an amicable split. Each must disclose detailed financial information to the other, including listing all assets and debts. If minor children are involved, there will be a comprehensive review of their current status and a determination will be made about the best plan for their future support and care. Pets, too, are often part of the picture, and their welfare must be carefully considered in a judgment. The dissolution process can take anywhere from a minimum of 6 months to a year or two, depending on how quickly the couple can reach agreement on all the terms.

 

Pre-marital or pre-RDP agreements are the best way to avoid future conflicts and disruption of personal lives when a marriage or RDP ends. Post-marital or post-RDP agreements may be created if the union has already taken place. Based on many of the dissolution cases we have handled, these agreements should be essential for any couple sincerely making a long-term commitment to each other. Couples can gain security or lose a fortune by choosing to enter or not to enter into such agreements.

 

Both Pre-marital/RDP and post-marital/RDP agreements must meet strict California legal requirements, including:

 

  • The agreement must be made voluntarily, and not under fraud, duress, or undue influence

  • Parties to the agreement must have legal capacity to enter into an agreement

  • The agreement may not be unconscionable

  • The agreement must not be against public policy

  • Full disclosure of each party’s assets, debts and financial details must be made

  • There must be independent legal counsel for each party, unless that right is

    properly waived in a separate writing (in our practice, both sides are always represented by independent counsel)

 

Every relationship faces an uncertain future. Agreements are roadmaps that make each relationship stronger and more secure. They provide clear understanding of each person’s financial status and obligations, and are the foundation for a couple’s future, no matter what happens.


Friday, September 26, 2014

Same-Sex Marriage: Down the Primrose Path

It’s been a year since the landmark U.S. Supreme Court decision allowed federal recognition of same-sex marriages. The LGBT community is still rejoicing, and with great energy, is pushing ahead for equal rights in all the other aspects of our lives. 

 

What have I seen in my practice this year? Many committed same-sex couples getting married - some quietly, some with joyous celebrations, and a few with reckless and thoughtless abandon. Most have lots of questions about what the legal and financial effects of marriage will be. Those who have come to me for answers are eager to “do things right” and protect themselves and their future. Some who rush into marriage without thinking, or without understanding the consequences, may not make it into the future together.

 

Here are a few of the questions and issues I have worked with recently:

 

  1. If we marry, does everything we own become community property?

    That depends on how you own the property before you marry, and how you

    agree to acquire new property after you marry. Do you already have joint bank

    and investment accounts? Do you own your house as joint tenants? Do you

    share legal title on your car? It is likely that these will be considered community property once you marry. If you are Registered Domestic Partners, you are already subject to community property rules, and marriage will not change that.

 

  1. We own a checking account together, and furniture and things in the house, but we want to keep our investments and other property separate after we marry. I want to stay owner of our house. How can we do that?

    The very best way is to create a pre-marital agreement that clearly identifies each person’s separate property and the couple’s shared property. This agreement will also state who will own new property acquired by either or both after marriage. Both partners agree that all property will be covered under the agreement during the marriage. And if there should be a breakup in the future,

    there will be little or nothing to argue about when dividing up their assets and debts. A pre-marital agreement usually must be signed by both parties at least seven days before the date of marriage, so it is not something that can be put off until the last minute.

     

  2. We just want to be sure that once we are married there won’t be any problems with everyone recognizing that we are now legally responsible for each other.

    You will have your marriage license, if anyone asks. But in most states in the U.S., this will be meaningless. In spite of federal recognition of same-sex marriages, they are only legal in 19 states and the District of Columbia right now. In all the other states, lawsuits are pending, but will not be quickly resolved. If you travel to other countries, most do not recognize marriage equality at all, and some criminalize homosexual behavior of any kind.

     

    For legal protection, married and unmarried same-sex couples should have all the important documents that spell out the rights of partners and spouses to make personal and medical decisions in case of emergency, incapacity or death.

    At a minimum, there should be an Advance Health Care Directive, and a means to provide this immediately to medical and other professionals in an emergency.

     

    You may not want to carry the actual documents around with you all the time, so there are some excellent organizations that store them for you electronically, and can provide them 24/7, any day of the year. We provide this service to most of our clients.  You are issued an emergency access card, the size of a credit card, to carry in your pocket or wallet. It provides the information necessary to access your documents right away. This can give partners and spouses a solid legal foundation for their relationship, and peace of mind, no matter where in the world they might be.

 

  1. My old partner and I were Registered Domestic Partners (RDP) years ago, and then split up. Now I am going to marry my new partner. Will this be a problem?

    Unfortunately, yes. You are not free to marry a different person until your RDP is terminated. In nearly all cases, you are required to file for a dissolution (divorce), just as if you had been married. You must file a petition with the court, and go through the process of serving notice to your old partner, dividing up assets and debts, and agreeing to a settlement of your affairs that the court will find is fair for both of you. A dissolution can take anywhere from 6 to 8 months to a year or two, depending on the amount of cooperation between partners in getting all the paperwork filed, and any disagreement as to how to settle things.

     

 

 


Tuesday, July 1, 2014

Cross Your Fingers and Fill in the Blanks

You’ve heard enough about estate planning from your family and friends. You’re finally convinced that you need to do something to protect yourself, your partner, your property. But, you say, “I’ll be darned if I’ll pay a high-priced attorney to fill out a few forms”. You saw an ad for a complete estate plan package for $995.00  -  just go on-line, down-load all the forms, fill them out and the job’s done. You don’t have to meet with an attorney, think about it, or even leave your home to do all the estate planning you need. 

Or you heard about a “document service” where a paralegal provides you with several forms, you fill them out, and she puts them in a nice, neat file folder for you. Cheap, over and done with.

And guess what? Your local office supply store sells pre-printed legal forms. Pick them up, fill in the blanks, and you’re good to go. Why not take advantage of these or other low-cost shortcuts to peace of mind? 

There are very strong reasons why most people should avoid these methods. Wills and Trusts require careful thought and sound legal advice. Tax planning is an important part of it, too. An estate plan isn’t just an assortment of forms and documents. It is a map for the future that considers all the aspects of your present life, requires decisions about what might happen to you and your family, and is crafted so the plan will continue to evolve as time goes by.

A recent court case illustrates one major hazard of do-it-yourself documents: 

A Florida lady filled out an “E-Z Legal Form” when she made out her Will. She wanted to leave all of her property to her sister, then to her brother, if her sister predeceased her. The sister did die first, and the brother claimed he was entitled to the entire estate. But the pre-printed Will stated that all “listed” items should go to the brother. Not all of the lady’s assets were listed. And the Will did not have a residuary clause (and not even any room on the form to add such a clause) providing for the disposition of property not listed in the document.

Two of the lady’s nieces (children of another brother, already deceased) brought action. After lengthy arguments on both sides, the court decided that the listed items must go to the brother, as the Will provided, but the unlisted assets must pass outside the Will, to the nieces, who were the next heirs in the line of succession.   Although it may have been the lady’s intent that her brother inherit all of her estate, the Will did not say so, and it did not provide any way for him to claim the unlisted items. Concurring Justice Barbara Pariente commented, “While I appreciate that there are many individuals in this state who might have difficulty affording a lawyer, this case does remind me of the old adage ‘penny-wise and pound foolish.’”

Pre-printed forms can’t possibly include all the language needed to cover the wide range of possibilities and probabilities that are part of our everyday lives. There is no single Will, Trust, Power of Attorney or any other pre-printed form or pre-written format that can meet the needs of everyone. How would you know if some essential language is missing, or certain statements can cause problems, or your intent is not truly reflected in the document? How do you know what you don’t know?

Attorneys have studied the laws (and the court cases) and get to know you and all the details of your particular situation. They recognize the hazards and pitfalls of missing or incorrect language, and draft comprehensive documents that fit you like a glove. You are not a John Doe, and your estate plan shouldn’t be, either.

For those of us in the LGBT community, it is even more crucial that our plans cover the  unique family, health and property issues we face because we still lack equality under most state and some federal laws. A properly crafted estate plan gives us the visibility and legal standing that is so essential to protect our families and our assets. Our special needs require special planning.

There should be ads and articles in the newspaper and magazines cautioning people against using pre-printed legal forms. But attorneys often chuckle about this. They don’t plan to run any ads. They get a lot of business from clients who tried the do-it-yourself approach and found the documents unusable when they were needed. Folks who wanted to save a little money bought a lot grief for themselves or their families.

In the court case, the lady may have tried to save herself a few dollars by filling in the blanks, but in the end her estate had huge attorneys’ fees and two years of wasted time. The nieces, of course, were delighted with the E-Z Legal Form she used. They came out over $100,000 ahead. Definitely not the result the lady wanted.


Tuesday, June 3, 2014

Planning a Trip? Some Legal Tidbits for LGBT Safety

You have an itinerary, reserved your lodging, bought your plane ticket and shopped for new clothes. Are you ready to hit the road? No, not yet. You have homework to do. You aren’t really prepared to go until you learn about safe travel for people in the LGBT community. 

Gay rights issues can complicate our plans, whether we are travelling within the U.S. or to international destinations. Some states and countries have laws supporting LGBT equality, may recognize same-sex marriage or registered partnerships, and offer a relatively comfortable gay scene in which we can be pretty much ourselves. Some other states (especially in rural areas) and countries are much more conservative, don’t recognize gay relationships and may have little or no tolerance for physical shows of affection. Finally, in many areas of the world, laws and customs demonize and criminalize homosexuals. To be safe, exercise discretion wherever you are. 

You can find out about travel situations from local LGBT groups, or trusted and savvy travel agents or tour operators. They know the attitudes and issues of the country or city. Be especially careful if you intend to frequent cruising areas or internet chat rooms. Police in some countries have been known to carry out entrapment campaigns.

The often open and relaxed nature of gay scenes can mask criminal activity. Be wary of new-found “friends” who may simply be out to exploit you. Stay alert to the people and the area around you, and stay away from places that aren’t well lit or seem suspicious.  It makes sense to give your itinerary to a relative or friend, and to have a plan with your travel partner for possible emergency situations that could arise.

Check your health care coverage to see what medical care will be covered outside the U.S. Many policies provide for very limited or no services at all in other countries, and you may need a supplemental health insurance policy to provide coverage in case of a medical emergency. Make sure to have a copy of your Advance Health Care Directive with you.

In my practice, I encourage my clients to electronically store all their important documents in an account such as LegalVault or DocuBank. Your health care directive, personal medical information, Will or Trust, power of attorney, list of credit cards, copy of passport, and any other important documents are securely stored, and can be accessed via internet, wherever you are. An emergency card lists your personal agents to be contacted, and gives medical professionals immediate access to your health care directive 24/7, anywhere in the world.

Don’t use hotel or other public computers or Wi-Fi networks to access your personal or financial data. You have no way of knowing whether they are secure.

It is best not to bring debit cards on a trip, but if you must access cash at ATM’s, use ATM machines in bank lobbies rather than other locations. Banks are most likely to be secure, and usually have camera surveillance.

Don’t bring your checkbook, social security card, or more than two credit cards. Keep only your driver’s license and one credit card in your wallet, and keep the second credit card in the hotel safe (or in your luggage if on the road) in case your wallet is stolen.

Consider carrying a “sham” wallet with a few dollars and some old hotel key cards or other worthless plastic cards in it. If a thief targets you, hand over the sham wallet, and he is likely to run away thinking he made a big score. You will still have your regular wallet, which you should always keep in a buttoned shirt or pants pocket.

The Smart Traveler Enrollment Program is a valuable service of the U.S. Department of State, offering assistance in an emergency. You file your travel plans on-line, and then you can be contacted in case of a family or other emergency at home, or a crisis or change in safety level in the areas you are planning to travel to or through. 


Monday, April 21, 2014

Property Ownership and the Do-It-Yourself Blues

Most married couples and registered domestic partners living in California soon learn about community property. “What’s mine is yours and what’s yours is mine” governs most property ownership here. Pre- or post-marital agreements and state law will provide clear guidance for settling property issues, if the relationships end. 

But what about partners who don’t marry or register? Do California statutes govern their separate and joint property? No. They are two individuals with no recognized legal relationship, and they usually don’t have any legal responsibility for each other or for each other’s property.  

What happens if one of them becomes ill or dies? Or if they just decide to split up? I see

the fall-out from broken relationships every day in my practice. And this is what really worries me. There are far too many unmarried or unregistered couples who do nothing to protect themselves and their assets. Or think there are simple do-it-yourself tools for protecting themselves. Worst of all, some believe that a “palimony” suit can resolve everything, if they split up and disagree about assets.  

Couples often buy a home together, and open joint checking and savings accounts.  They may own cars, buy furniture, make other investments together. Who owns all these things? Both of them? What if one paid a little more of the down payment on their home than the other? Does he or she own a little more of the property? How much more? Is it a gift to the one who paid less?  

One “simple” way to share property is to own it as joint tenants with right of survivorship. Cash accounts, investments, houses and cars can be owned this way.  If one partner dies, the other fully owns the property. No probate. No hassle. It was ours, now it’s mine. But this is a risky way to protect yourself and your property. Here are a few of the very serious pitfalls: 

          If one joint owner has a legal liability, creditor judgment, or is found at fault in an

accident, the entire bank account, house or other property can be taken, even

though the other joint owner is not involved.

           Joint ownership of a house, for example, requires the agreement and signature

of both owners to sell, refinance, rent out, or carry out other transactions. One

owner can act only for his or her share of the property, not the entire property.

Suppose the two owners disagree about selling or managing the property? There

can be deadlock until mediation or some other intervention resolves it.

           If one joint owner becomes mentally incapacitated, the property is in legal limbo.

It might be necessary to go through a lengthy, expensive court process to secure

a conservatorship for the incapacitated partner, so the other can legally manage the entire property.

           If one joint owner dies, even if there is a Will or Trust passing his or

          her ownership share to someone else, the other joint owner automatically

becomes full owner of the property.  Wills and Trusts have no control over

property owned in joint tenancy.

           There may be tax consequences for transferring property into joint tenancy. 

          Adding a joint tenant to your bank account or house title is a gift, subject to your

          annual gift exemption of $14,000.00. If over that amount, you may owe taxes on

          the gift, depending on your financial situation.

Do-it-yourself estate planning rarely works, and simple tools like joint tenancy are very risky. Too often someone is left crying the blues. There are far better ways for couples to manage their assets, and most of them can be easily obtained with a little planning ahead and the good advice of your attorney.


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