Legal Eaze #40 attorney fees, child support, probate, lost a long trial

Title: February 8, 2006

Q. I just went through a divorce and the attorney’s fees were very costly. I am wondering if the attorney’s fees are tax deductible?

A. Generally, attorney fees and other costs paid in connection with a Dissolution of marriage are nondeductible. There are several exceptions such as attorney fees incurred specifically for production of income, such as spousal support issues in the case, tax advice and preservation of title to a capital asset, such as land, buildings and machinery. Attorney’s fees related to child custody and child support are nondeductible. Your attorney needs to make sure that accurate billing records are kept which allocates the services and expenses into those which may have a tax benefit to the client from those which are purely personal.

Q. Do I have to support my children through college?

A You are obligated to support your children until they are either 18 years old and graduated from high school, or when they turn 19 years old. You do not have to support your children through college, unless you want to.

Q. Does my estate need to be probated if it is worth less than $100,000?

A. No. An estate must reach the threshold amount of $100,000 to require that it be probated. There is an administration procedure sanctioned by the Court for estates worth less than $100,000, which is a very efficient way to have your assets pass to your heirs. However, you must have a will drafted. Otherwise, your assets will pass to persons you may not want to leave anything to, but according to the laws of the California. Nightmarish outcomes have been reached through California intestate laws. Make very sure you have a will spelling out your last wishes with regards to your assets. That way, the state cannot decide who your assets will go to.

Q. I have lost a long jury trial. I want to appeal. What now?

A. Even though you are angry and disappointed, some basic knowledge about the appellate process is necessary before you decide to appeal all the way to the Supreme Court. An appeal is not a retrial. You cannot call witnesses or present testimony. The Court of Appeal is not deciding your case on its merits. It will look for legal error in the trial below. That error may be one committed by the court, the jury, or even opposing counsel. To justify reversal, the error must be prejudicial and result in a miscarriage of justice. Of course, errors often occur during a trial; no trial is perfect. You must show that the error is so significant that it is more likely than not it affected the outcome of the case.

Maxine de Villefranche is an attorney and civil general practitioner with 13 years of experience. She practices law from her Tehachapi office as well as her Lancaster satellite office. She will answer legal questions posed to her by the readers to the best of her abilities. Email your questions to maxinedev@msn.com or fax to (661)825-8880.