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Newark Family And Estate Law Blog

If you are thinking about ending your marriage, you may have some concerns about your financial future. Fortunately, you are likely to end up with roughly an equal share of the marital estate. You may also be eligible for spousal support to help you make ends meet after your divorce.

While dividing your home, vehicles, cash and savings may be straightforward, your retirement accounts may be a different matter. That is, in California, the typical process for dividing marital assets may not work for retirement funds. Consequently, you may need to obtain a qualified domestic relations order during your divorce.

What is a QDRO?

In simple terms, a QDRO is a court order that directs the retirement plan administrator to pay funds to you instead of your spouse. Judges in California may not automatically issue a QDRO. Accordingly, your divorce attorney may need to petition the court for one.

When do you need a QDRO?

Not all retirement plans require QDROs. Still, if your spouse has a private pension, an IRA or a 401(k), you probably need to request one. On the other hand, many government and military pension plans are exempt from the QDRO requirement. Likewise, any plan that does not operate under the Employee Retirement Income Security Act of 1974 may not require a QDRO.

How does a QDRO work?

A QDRO tells the plan administrator how much of your spouse’s pension you should receive. It may also dictate the number of payments or time period for payments. Essentially, the QDRO works by giving the plan administrator the information necessary to pay benefits appropriately.

Your and your spouse’s retirement accounts may be a substantial part of your marital estate. Ultimately, by knowing when and how to obtain a QDRO, you can be certain you receive the retirement funds you deserve after your divorce.

Estate planning can be difficult, especially if you’re new to the United States and don’t speak the language. That’s why it’s important to find an attorney who speaks your language and understands English, too, so that you can fully understand the laws that impact your estate plans and the decisions that you’re making.

If you’re a child who speaks English but have a parent who does not, it’s a good idea to come with them when they see their attorney. You’ll want to talk to your aging parent about estate planning and their advance care plans ahead of time, so that you can prepare to have a discussion and support their choices.

Making a will is essential, but not all Americans do it

You probably know that a will is important, but did you realize that only around 42% of Americans have one? Not setting up a will or planning for care in advance is bad news though, because it can cause extreme financial and emotional strain on those around an aging adult. If they pass away, it’s their families that have to pick up the pieces and cope with their death as well as handling their estate.

Why talk about advanced care plans and estate planning early?

If your parent is getting older and hasn’t yet created an estate plan, now is the time to bring it up. Starting the process now helps reduce the risk of disputes after your parent’s death and reduces the overall strain on the family if they pass away or can no longer take care of themselves.

Additionally, advanced planning helps your loved one state their wishes and make them known to those who will care for them in old age or work with the estate after they pass away.

Though it may be difficult, it’s important to talk to your parents about their end-of-life wishes and to discuss what they’d like to see happen with their end-of-life care, funeral and assets. They are alive now, so it’s worth discussing what they’d like to see happen and to make sure those wishes are carried out by developing a strong will and estate plan.

Since your parent does not speak English fluently, it’s smart to work with an attorney who is fully bilingual and who can help them understand the gravity of the situation. That way, you can all have an open, honest conversation with the right education.

A divorce is a time of considerable changes, but this isn’t necessarily a bad thing. One thing that can add some challenges is when you have children together. You have to take the children into account for every decision you make during the split.

Some people will think that there will be a sudden shift in life during the divorce. While it is true that you will have some differences in your new life, there are some aspects that might not change as much as you thought.

Bad spouses can make excellent parents

It is easy to fall into thinking that the type of spouse your ex was is the same time of parent they will be. This isn’t necessarily the case. Even a person who was a horrible spouse can still be a loving and attentive parent. You should focus on how your ex interacts with your children now so that you can feel more secure in them being an active part in the kids’ lives. Your children need to know that you encourage their relationship with the other parent, so be sure you are taking steps to make this happen.

People don’t magically change with divorce

The issues that you had with your ex before the divorce might not matter once you are separated, but you shouldn’t think that this means you or your ex will magically become different people. There will likely still be anger and hurt feelings while both adults adjust to the changes. It is going to take time to break the thoughts and feelings that have become ingrained, so be patient and work with your ex toward having a mutually respectful relationship that enables you to raise your children as a team.

You won’t be able to fully leave your ex alone

Because you have children, there is going to be some level of communication that has to happen. Co-parenting is a big consideration since both parents still need to be involved with the kids. You can expect that you will have to see your ex at major events for the children. These include sports events, graduations, school activities, church functions, weddings and other similar occasions. If you set the guidelines early in your co-parenting relationships, you will find that these events may go more smoothly. One thing that can’t be negotiable is mutual respect.

During this time of transition, you need to put together a solid parenting plan. This outlines what you and your ex must do to raise the children.

Moving from one home to another is a big transition for some people. When you have children, they will have to make this transition often as they move from one parent’s home to the other parent’s home. This can be difficult, especially when they aren’t quite sure about what is going on.

You will have to find ways that you can help them to transition as well as possible. Trying to make these times easier can help them to feel less stress and to adjust to the situation better. Some children might begin to settle into the adjustment period better as time goes on so be sure to encourage them to keep the right attitude as they learn how to live with this new way of life.

Belongings in each home

Instead of having your children bring their clothing and toiletries back and forth between homes, each parent should have these things for them. Some items, such as school bags or “lovies,” might need to be brought with the children, but they won’t feel settled if they have to continually pack bags. Being able to keep their things at their parents’ homes can help them to feel like they belong.

Transition days focused on the children

Transition days aren’t ones on which you should bring up contentious matters. Let these days be focused on the children so they can have as little stress as possible. Any issues that you have with your ex can be discussed in private when the children aren’t around.

Traditions help them thrive

You can set traditions for the child to look forward to on transition days. These don’t have to be expensive or flashy. You may order pizza for dinner on transition day and enjoy a movie with your child. Cooking a meal together or planning the meals for the time your child will spend with you might also be a good idea.

Relay the schedule in advance

Your children should know the schedule in advance of changeover days. You can do this with a calendar on their phone if they are older or with a paper calendar if they are younger. Try not to go too far in advance because this can confuse some children. Instead, focus on how many days the child has remaining with you before going to your ex’s house. Your ex can handle the countdown to the child coming back to your home.

Review your parenting plan periodically to ensure that it is still being followed. If there are issues that come up, this plan can give you an idea of how to address them. As the children mature, the plan might need to be modified accordingly.

When a couple parts ways, they must divide their property and debts. However, each state has its own guidelines on how a couple should do this. California is a community property state, which means that community property will most likely be divided equally.

Most of the property you and your spouse acquired throughout your marriage is considered community property because when you got married, you and your spouse became one legal community. However, you or your spouse probably also have separate property that is not subject to division in divorce.

How can I tell what is community property and what is separate property?

If you or your spouse acquired an asset or a debt during your marriage, it is most likely community property. Community property also includes money earned during your marriage and anything purchased with those earnings. However, gifts given to only one spouse and inheritances do not count as community property, even if they were acquired during the marriage.

In addition to gifts and inheritances, separate property includes any asset or debt that someone acquired before marriage. Also, any money earned from separate property is also separate property, and any items that were purchased with that money are also separate property.

What is comingling?

Some types of property are especially difficult to classify as either community or separate property. This can be because a property is both community and separate property at the same time, a situation called comingling.

Comingling can occur when an asset, which someone acquired before marriage, is sold and the proceeds are put toward a community asset. It can also occur when community funds are used to add value to the separate asset.

This may occur if one person owns a house before marriage, but then sells that house after marriage and puts the proceeds toward a down payment on a different house. Because both spouses probably contribute to mortgage payments, the separate property was mixed with community property.

Comingling can also occur in retirement benefits if they were earned while one spouse worked the same job before and after marriage. Comingling of any asset can make that assets more difficult to divide.

If you think divorce may be in your future, it can be helpful to prepare for your divorce by listing all of your assets and debts. Then, you can try to classify each, noting whether you believe it should be considered community property, separate property or comingled property. With a good understanding of the property you have and the classifications for that property, you may be able to work more efficiently in negotiations or in court.

For many people, the only thing more emotionally complicated than considering their own mortality is the thought of their parents’ mortality. It’s also common for the adult children of older parents to believe that their parents have everything well planned and under control. Unfortunately, that isn’t always the case.

Even extremely organized and cautious people often put off estate planning for a variety of reasons or may fail to create a thorough estate plan. Sometimes, it is discomfort with facing the inevitability of death that makes people want to avoid this process. Other times, it is a lack of understanding about what is truly necessary for a comprehensive estate plan in California.

While it may not be a pleasant discussion, talking with your parents about their estate planning wishes is a necessary conversation. You can review their wishes and help ensure they’ve committed them to legal documents.

A last will probably isn’t enough

One of the most common estate planning mistakes is the assumption that all a person must do is create a last will that allocates their various assets to members of their family. The truth is that an estate plan is much more than just a last will.

It is also a way to provide a safety net in the event of medical incapacitation and a means of providing family members with guidance about important medical and funeral decisions. If your parents created a last will but not a comprehensive estate plan, you might want to talk to them about expanding their estate planning.

Creating a living will means making a power of attorney and describing medical preferences in an advance medical directive. Having your parents put their wishes in writing will make them easier to follow in the event of a sudden medical emergency.

Older estate plans may require a modern update

Families grow and change over time, but estate plans remain the same unless someone takes the time to change them. Another major oversight many people fall victim to with estate planning is the assumption that the process is over once they create a few documents.

However, family circumstances can change at any time with little warning. Those changed circumstances could necessitate updates to the last will or an expansion of the family’s estate plan. For example, the death of a family member would mean they should no longer be a beneficiary. The birth of a child or their diagnosis with special needs could mean that you will need to restructure the estate plan to provide for that individual.

Whether you need to create a living will or update a last will with your parents, sitting down with an estate planning attorney can help you make the best decisions to protect your family’s assets.

Despite what we would all like to believe, it is not uncommon for one or both parents to be estranged from a child. As the saying goes, you cannot choose your family. Sometimes people simply don’t get along, and that can breed more problems that eat away at the family tree.

When it comes time to create or update an estate plan, some parents question just how to handle their estranged child in their documents. Here are some considerations.

Navigating estrangement and inheritance

  • Mediation. You have likely considered mediation or some form of family counseling, you may have even tried it in the past. Before making any decisions about inheritance, it is wise to work with a trained counselor.
  • Partial inheritance. Some parents decide that dividing an inheritance equally among beneficiaries is unfair. In those cases, an inheritance can be divided however you see fit. If one beneficiary will receive less, it is important to include the proper “no contest” language.
  • Total inheritance. Despite best efforts, reconciliation is not always possible. Still, some parents will choose to leave the estranged child in the will, in equal amounts to avoid creating problems for loved ones left behind.
  • Total disinheritance. A decision to disinherit a child over the age of eighteen is within your rights. However, it requires finesse. The ramifications of such a drastic decision can often be felt for generations. An attorney well-versed in estate planning can help you walk through the common obstacles and help you move on.

Estate planning is all about your protecting loved ones. Sometimes, the people you love need protecting from themselves. Sometimes the people that you love need protecting from your estranged child. Regardless of circumstances, the decision of who to include in your estate plan is up to you. Remember that there is always someone here to help.

You maybe have heard about probate before. Oftentimes the term holds negative connotations. Many people want to avoid this process, but don’t fully know why. These bring up various questions, and it’s important to learn more about it early on. In doing so, you will know whether it’s necessary or not.

What is probate?

Probate is a legal process in which the court distributes your assets after you pass away. When someone doesn’t have a will, all their assets fall under the control of state law. The state then determines who receives your assets. In addition, they consider any debts.

While the California probate process is a valid last option, some individuals and families want to avoid it altogether. There are a few reasons why, which includes:

  • Probate is expensive. Since probate happens in court,your loved ones will most likely need an attorney. In addition, the procedure is directed by an executor, who also receives fees that are pulled from your assets. Court fees, appraisal fees and all other expenses could result in thousands of dollars, which could have gone to your heirs instead.
  • Probate is time-consuming. Anything that happens within court takes time. The probate procedure involves filling out documents and forms under court supervision. Moreover, transferring property to your heirs can take anywhere from six months to 2 years.
  • Probate is court-controlled. Rather than you or your loved ones making important decisions, a judge determines how your assets are distributed. They decide which heirs your estate will go to just by browsing some documents.

How do you avoid probate?

Most people own both probate and non-probate assets. It’s possible that probate assets need to be transferred in court. Aside from that, there are still ways to ensure a majority of your assets avoid probate court, such as:

  • Living trusts: A living trust protects various assets from probate, like real estate, bank accounts and vehicles. Similar to a will, you will name someone as a successor trustee, and then transfer ownership to yourself as an additional trustee. When you die, your successor trustee will then transfer those assets to your predetermined heirs.
  • Joint ownership: In California, spouses may opt for either a joint tenancy or right of survivorship. These are both forms of joint ownership in which if one spouse passes, the surviving spouse inherits those assets. This option requires some extra paperwork, and include other aspects of estate planning. Since California is a community property state, additional steps are needed if you want to keep property separate.

Every individual and family has unique estate planning needs. Sometimes the probate process works for people, while others want more control of their assets. It’s important to explore different options when dealing with your financial future.

Estate planning is an ongoing process, not something you do once and forget about. When major life events happen, like a spouse filing for divorce, you will want to revisit and update your estate planning documents to ensure they reflect your current wishes.

It is important to update estate planning documents during the divorce process to protect yourself and your end of life wishes. Forgetting to update these documents could leave your spouse in control of making decisions for your well-being, if something unexpected happens to you before the divorce is finalized rendering you unable to make decisions for yourself. Your spouse could even inherit your personal belongings or other personal assets that he or she may not have gotten in the divorce.

According to a recent Forbes article, the following are some estate planning actions you can take during a divorce:

  • Change your power of attorney. When married, you may have chosen your spouse as your agent in a medical power of attorney or a durable (financial) power of attorney. You will need to revoke any power of attorney that gives him or her control of your end of life decisions. You will also want to appoint someone else, like a responsible adult child, as your agent.
  • Update your will. Although you must be careful not to give away anything that is completely or partially owned by your spouse, you can alter what you would like done with the items you solely own. If this is not done and you die before the divorce is finalized, your spouse could end up with everything.
  • Find out what you can and cannot alter. Your spouse is likely the beneficiary on any life insurance, retirement accounts and pensions you may have. In most cases you will not be able to alter these documents until after the divorce is finalized, but it is a good idea to create a list of these assets now and form an awareness of what changes you are allowed to make and when you are allowed to make them.

Although there are several estate planning documents you cannot alter during your divorce, by updating what you can, you ensure you retain as much control as possible if you die or are incapacitated before the divorce is finalized. However, because estate planning is an ongoing process, you must also plan to revisit your documents after your divorce is finalized to make additional changes you might not be able to make now.

If you and your spouse have separated or agreed to a divorce, one of the two of you will have to bite the bullet and file for divorce sooner or later.

Doing so may be no simple task, you’ll need to make some difficult decisions and gather a lot of documentation. Is going through these steps worth the hassle? Are you better off getting your spouse to file or are is there a payoff for initiating a divorce first?

Being prepared

Divorce involves dividing nearly everything you own and arranging a custody order if you have children — arguably some of the biggest, most life-changing decisions you’ll have to make. These are not issues to procrastinate.

The first step to resolving an issue is to put the measures in place to handle it. Filing for divorce first is advantageous in that it requires you to prepare by:

  • Collecting necessary documentation — copies of relevant financial and legal documents, such as tax returns, vehicle registrations, insurance policies, bank statements, paychecks, real estate records, your will, retirement account statements and more
  • Hiring an attorney — In some cases, it’s best to hire your attorney first because if your spouse has a consultation with other attorneys in the area, they will not be able to serve you due to their relationship with your spouse (even if they are not hired by your spouse)
  • The best strategy — Acquiring the services of an attorney beforehand will also allow you and your lawyer time to develop a strategy that outlines how you and your spouse can work through the divorce and what your priorities and expectations should be for the process

Maintain access to your bank account

In less agreeable divorces, your spouse may take, spend or hide assets if prior to the divorce. Under California law, you may file for temporary emergency orders that can protect your marital financial assets immediately and last until the divorce has been settled.

If circumstances do not permit an emergency order, you’ll still be in a better place to save for the divorce process, open a credit card in your name and take other steps to prepare yourself financially for this transition.

Custody of your children

In some circumstances, you may also request a temporary emergency order to establish temporary custody of your children. However, these are typically issued in situations where the other parent’s involvement with the children could be dangerous.

You should speak to a lawyer about whether your specific case may have grounds for a judge to grant you a temporary emergency order.

An attorney can also help provide guidance on other related divorce issues, such as what your financial outcome might look like, how long the process may take, which custody plans may be best for your unique circumstances and more.