Title: January 17, 2007
Q. I had a car accident and two persons died as a result of the accident. I was at fault. My insurance was insufficient to pay for all the damages caused in that accident. Can my assets be taken away over and above what my insurance paid to the estates of the two deceased?
A. Yes, unless your insurance company settled the lawsuit for the total insurance amount paid to the deceased’s estates. For example, if the damages sustained by the Plaintiffs were $5 million, and the Plaintiffs won $5 million at trial but you only had insurance for $2 million, then $3 million remain unpaid and your assets can be taken to cover the unpaid amount, if you have assets worth that much. Future assets you might obtain may also may be taken away as you accumulate them. Interest also accumulates at 10% per annum on the unpaid balance if the full amount of the judgment is not paid swiftly.
Q. If I have an extramarital affair and have a child issued from that affair, but my husband raises the child as his own and is named as father on the child’s birth certificate, can I later get child support from the true father of the child after I get a divorce from my husband? Can I have the birth certificate changed to reflect the name of the true father and get him involved with his child?
A. After you get a divorce, you can get anyone you want involved with your child, but you need authorization from your now ex-husband to remove his name from the child’s birth certificate. Unless you do that, or litigate the issue, it is unlikely that you will ever be able to pursue the other man for child support. If you have a child out of wedlock, but are married at the time, your husband will be considered the father of your child, unless you let it be known that he is not, and he insists on a DNA test to prove he is not the true father of your child. I realize these incidents occur all the time, but it is not very ethical for you to let your husband believe for years that he is the father of a child, support that child for all that time and then try to get child support from someone else. At the very least, it seems opportunistic and calculating to use the child in that manner.
Maxine de Villefranche is an attorney and civil general practitioner with 14 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
Showing posts with label estate. Show all posts
Showing posts with label estate. Show all posts
Monday, March 23, 2009
Monday, March 16, 2009
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.
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.
Sunday, January 4, 2009
Legal Eaze #15 Fireplace/ Community Property
Originally Printed: February 23, 2005
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
Maxine de Villefranche is an attorney and civil general practitioner with 12 years of experience. She operates her law practice from her new office in town, as well her Lancaster satellite office. She will answer legal questions posed to her by the readers, to the best of her abilities. Please forward your questions to maxinedev@msn.com.
Q. Recently we had our fireplace replaced, only to find out that it smokes and leaves soot on the masonry. All of our attempts to contact the manufacturer and have the problem fixed have been unsuccessful. What do we do?
A. Did the manufacturer install the fireplace or did you have someone else install it? It is possible that the installer did not follow the manufacturer’s instructions, in which case it is the installer who needs to fix the problem rather than the manufacturer. If the manufacturer provided the installation as well, you need to find out how much it would cost to fix the problem and have an attorney write a letter to the manufacturer, specifically requesting the amount it would cost to fix the problem so that you can hire your own repair person if the manufacturer refuses to fix it. If the attorney letter is ignored, then you should sue the manufacturer in Small Claims Court, if the amount is less than $7,500. Small Claims Court is very informal and the fastest way to get results in court without an attorney.
Q. I have read somewhere that California is a “community property” state. What does that mean?
A. It means that when you are married, you develop a community estate during the marriage. Both spouses’ income is considered community property, that is, each spouse is entitled to half of the income made by the other. If you purchase a house during the marriage, each spouse owns half of the equity developed during the marriage. Same goes with a car, furniture, stocks, bonds, jewelry and various other assets. Each party is also liable for the debts incurred by the family. However, such debts are not necessarily divided in half if a divorce eventually is granted because it depends on the income of each party and which party incurred each debt, as well as which party the debt benefited. Generally speaking, both spouses are entitled to half of everything that was acquired during the marriage. However, certain assets could be considered separate property if acquired with inherited or bequested money. An inheritance or bequest is separate property of the party who obtained it through death of a family member.
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