Trust, Wills And Probate Attorney

Blog Posts, Trust, Wills And Probate AdminNo Comment on Trust, Wills And Probate Attorney

What is a Living Trust?
It is a written legal document that partially substitutes for a will. With a living trust, your assets (your home, bank accounts and stocks, for example) are put into the trust, administered for your benefit during your lifetime, and then transferred to your beneficiaries when you die. Your estate avoids probate. Most people name themselves as the trustee in charge of managing their trust’s assets. This way, even though your assets have been put into the trust, you can remain in control of your assets during your lifetime. You can also name a successor trustee (a person or an institution) who will manage the trusts’ assets if you ever become unable or unwilling to do so yourself.

The most common living trust is revocable. Such a trust may be amended or revoked at any time by the person or persons who created it (commonly known as the trustor(s), grantor(s) or settlors(s)) as long as he, she, or they are still competent.

Your living trust agreement:

  • Gives the trustee the legal right to manage and control the assets held in your trust.
  • Instructs the trustee to manage the trust’s assets for your benefit during your lifetime.
  • Names the beneficiaries (persons or charitable organizations) who are to receive your trust’s assets when you die.
  • Give the guidance and certain powers and authority to the trustee to manage and distribute your trust’s assets.

The trustee is a fiduciary, which means he or she holds a position of trust and confidence and is subject to strict responsibilities and very high standards. For example, the trustee cannot use your trust’s assets for his or her own personal use or benefit without your explicit permission. Instead, the trustee must hold trust assets solely for the benefit of the trust’s beneficiaries.

The Living Trust Services We Provide Include:

  • An analysis of your need for a trust.
  • The type of trust that best suits your needs.
  • Preparation of single living trusts and joint living trusts for married persons
    and domestic partners
  • Preparation of Pour-Over Wills
  • Preparation of Durable Powers of Attorney for Asset Management
  • Preparation of Advance Healthcare Directives
  • Preparation and recording of Trust Transfer Deeds

Spousal support in family law proceedings

Family Law AdminNo Comment on Spousal support in family law proceedings

During the pendency of a proceeding for dissolution of marriage or legal separation and at the time of final judgment, the court may order a party to pay any amount necessary for the support of the other party. This is known as spousal support (formerly alimony) and may be classified as either temporary or permanent spousal support. Temporary spousal support is ordered during the pendency of the proceeding prior to a final judgment of dissolution of marriage or legal separation. Its purpose is to preserve the living standards of the parties as close as possible to the status quo. See Family Code Section 3600. It is normally based upon temporary support guidelines utilized by the courts which primarily consider the relative incomes of the parties and which promote consistency in temporary support orders. The use of temporary guidelines is not mandatory, however, and the court has wide discretion in determining the proper amount of temporary spousal support. Temporary spousal support can be ordered based upon the agreement of the parties or by the court after a hearing requested by the party seeking support.

Permanent spousal support is ordered at the time of judgment, either after a trial or a settlement agreement entered into between the parties. Although it is often referred to as “permanent,” it is always subject to modification (unless the parties agree that it is non modifiable) and may, in fact, have a specified termination date or be ordered to automatically step down. Regardless of the amount and duration of the actual spousal support payment order, if the marriage is considered to be “long term” (10 years or longer from date of marriage to date of separation), the court must, at the very least, “indefinitely” retain jurisdiction over spousal support, so as to have the power to make future orders establishing or modifying spousal support if the circumstances warrant. See Family Code Section 4336. When determining the amount of permanent spousal support, the court cannot rely on temporary support guidelines. The court must consider all of the factors contained in Family Code Section 4320, including the standard of living of the parties, age and health of the parties, incomes of the parties, needs of the parties, ability to pay of the supporting spouse, the marketable skills of the supported spouse, and many other considerations.

If a supported spouse is “cohabiting with a person of the opposite sex” after an order for spousal support is made, this creates a “rebuttable presumption” of decreased need for spousal support. However, it does not automatically terminate spousal support. The party seeking to terminate or reduce the support must file a request for hearing with the court, which will then determine whether support should be terminated or reduced. See Family Code Section 4323.

Is a new spouse or nonmarital partner’s income considered in child and spousal support?

Blog Posts, Divorce law AdminNo Comment on Is a new spouse or nonmarital partner’s income considered in child and spousal support?

Often, clients want to know whether the income of their new or subsequent spouse or nonmarital partner is considered by the courts in determining the amount of child support or spousal support that the client will have to pay. The general answer is that it is not considered. However, there are some exceptions, and the rules are different depending on whether the court is determining child support or spousal support.

Where the issue is child support, Family Code Section 4057.5 (a)(1) says that the income of the obligor (paying) parent’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying child support, except in an extraordinary case where excluding that income would lead to extreme and severe hardship to any child subject to the child support award, in which case the court shall also consider whether including that income would lead to extreme and severe hardship to any child supported by the obligor or by the obligor’s subsequent spouse or nonmarital partner.

The code section goes on to state that such “extraordinary case” where the court may consider new spouse or nonmarital partner income includes a case where the parent voluntarily or intentionally quits work or reduces income, or who intentionally remains unemployed or underemployed and relies on a subsequent spouse’s income. However, in the absence of such an extraordinary case, the court will not consider the income of a new spouse or nonmarital partner.

If the court did determine that there was an “extraordinary case” such that new spouse income should be considered, the Family Code section limits the discovery of that income to W2 and 1099 tax forms except where the court determines that application would be “unjust or inappropriate.”

Where the issue is spousal support, Family Code Section 4323 (b) clearly prohibits the consideration of the paying spouse’s new spouse or nonmarital partner income. The code section specifically provides that the income of a supporting spouse’s subsequent spouse or nonmarital partner shall not be considered when determining or modifying spousal support.