Separate Property vs. Community Property

Washington state recognizes two major types of property ownership in the context of marriage: separate property and community property. It's important to recognize the legal definitions of both property types, as well as the differences between the two.

Separate property refers to property that was individually owned by one spouse individually before the marriage. Separate property may also include property that was received as a gift or inheritance during the marriage, and property that was acquired after the spouses separated. RCW 26.16.010. Sometimes if separate property is mixed with community property the lines can be blurred.

Examples of Separate property:

• Gifts and/or Inheritances
• Assets and/or debts acquired prior to the marriage
• Property listed in a prenuptial or postnuptial agreement

Community property refers to property that is owned by both spouses together, and is generally property that was acquired during the marriage by either spouse, regardless of who earned the money or whose name is on the title. RCW 26.16.030.

Examples of Community property:

• Real Property (land and buildings)
• Income
• Vehicles, Furniture, and other moveable assets
• Joint bank accounts
• Debts or assets acquired during the marriage
• Stocks, 401k accounts, royalties

Washington state is a community property state, which means that absent a prenuptial or postnuptial agreement, all property acquired during the marriage is generally considered to be community property. In the event of a divorce or legal separation in Washington state, generally each spouse will retain their separate property, however, the court does have the authority to divide separate property in certain situations. Community property is subject to division between the spouses. There may be different factors to consider on what that split may look like.

LAST WILL AND TESTAMENT

A Last Will and Testament is a legal document that declares an individual to manage the estate and final wishes of the deceased. If you pass away without drafting a valid Will, your preferences may not be fulfilled posthumously. If probate is necessary a Will will provide a smoother process to the individuals carrying out your wishes. 

Importance of Having a Will

A Will delivers peace of mind when done correctly. Not only do Wills distribute your assets as you wish, but they also can nominate a guardian to care for minor children. Having a will enables the named executor (the individual in charge of following the terms of your will) to easily navigate your wishes.

Frequently Asked Questions 

What Happens if I Die Without a Will?

If you pass away without having an active Will in place, your death is considered intestate. Washington State statutes then determine who has a right to inherit your property. Washington is a community property state, so the surviving spouse has a right to all Community Property as a default. Separate Property would be divided between your surviving spouse and your children.

What Makes a Will Valid?

In Washington State, a valid Will must be signed by the testator (individual creating the Will) and two disinterested witnesses. A disinterested witness is an individual who aren't blood related and aren't inheriting anything from you. Consider legal counsel, friends, or anyone you trust to be a signed witness. 

Where Do I Start?

Draft a list of your assets and debts, listing any and all valuable personal property that you may possess. Begin listing out who you would like to inherit specific assets, and therefore who you would like to include in your will. Decide on who you plan to name executor(s) of your estate -- this could range from a spouse to a friend, adult child, or another relative. Consider burial requests and division of your esate.

Committed Intimate Relationships

What is a Committed Intimate Relationship?

Some people may have heard of the concept of common-law marriage, where a couple holds themselves out as a married couple for a long period of time creating the legal status of a marriage, even though they never actually got married. Washington State does not recognize common law marriages, but it does recognize a legal doctrine called “committed intimate relationship” (CIR). There are some similarities between the two concepts, but there are also differences. If a CIR exists certain assets and debts may be divided (both parties claim an interest), even if a marriage was not in existence.

What are the elements a court may consider?

The court does not offer a definite definition of when a CIR might apply. While length of the relationship is a pretty important consideration, the courts of Washington have set forth numerous variables. The court will consider the following factors: 

·         How continuous the couple has been living in the same home;

·         The duration of the relationship;

·         The extent the couple has pooled resources (e.g. bank accounts, mortgages, etc.);

·         The intent of the parties (e.g. discussed having children together, marriage, and/or creating wills together); and

·         Purpose and benefits of the relationship (e.g. friendship, love, sex, and mutual support). 

If such a relationship exists what does this mean?

If such a relationship exists property of even an unmarried couple may be equitably divided.  Community property tends to refer to all property acquired between a husband and wife while they are married, minus gifts or inheritance. Community property would apply to both debts and assets. Often property acquired before the relationship or after the relationship would be considered separate property. While not always the case, often times, when property is considered community it is divided equally 50/50.

Unlike a marriage, CIR’s have limitations. A person who was in a CIR is not able to receive maintenance (alimony) and may not receive attorney fees. Possibly, a person may be able to receive a share of the other person’s retirement benefits though, similar to marriage. 

What are my options and rights?

Often a CIR might come into effect in two different ways. It can be a stand alone concept where the parties never get married, yet a person can make a claim that property during the length of the relationship be divided. A CIR could also be relevant when the parties do get married, and the court is trying to determine when the relationship started for community property distribution purposes. A community relationship might exist before the actual date of marriage if a CIR existed before the parties got married. Therefore, this would create a longer time period in determining what property should be considered community property. An attorney is going to be in the best position to sort these issues out.

What if the two of us do not want such relationship to exist?

The best way to avoid a CIR and the possible results of such a relationship would be to sign a non-marital cohabitation agreement.

Feel free to give my office a call if you have any additional questions.

Luke Larson (Managing Attorney at Legal State of Mind)

Website: www.legalstateofmind.com 

Email: luke@legalstateofmind.com

How am I Going to Pay for my Legal Issue?

There are various ways in which legal fees and costs of hiring an attorney can be paid. Some options may work better for others. Understanding the various options will help you find a way to afford the cost of hiring an attorney.

How Does a Retainer Work?

It is not uncommon for attorneys to request that a client put up upfront money before the attorney begins work on a client’s case. This helps ensure the attorney that the client will be able to pay for their services. As representation goes along the attorney will send out an invoice for work done and deduct funds from the retainer. The retainer will need to be replenished if funds run low, and the attorney may not be able to continue to represent the client if there are no longer any funds. The attorney client engagement letter provides more details about how this might work. If there is money left over in the retainer after representation is completed the funds will be returned to the client. One of the problems with retainers is that not all individuals have a large amount of upfront money to put in a retainer. If that is the case, a client should ask about flat rate agreements or unbundled services.

How do Flat Rate Agreements Work?

After awhile an attorney tends to get a sense about how much time they are going to spend on a certain type of case. For this reason, it is sometimes easier to just offer a flat rate price. Clients may prefer a flat agreement because they have a fixed understanding of what their legal needs are going to cost, avoiding the unpredictability of choosing a retainer. Additionally, some attorneys will allow clients to be on a payment plan to pay off their flat rate amount. Therefore, unlike a retainer they are not initially required to put up a large amount of money. For my Firm, I have found flat rate fees to be best suited for estate planning, probate, simple criminal misdemeanors, and occasionally family law cases. I usually do not allow flat fees for divorce cases because it is difficult for me to predict how much time I am going to spend on the case. Therefore, for divorces I may require a retainer or some form of unbundled representation.

What is Unbundled Representation?

Unbundled representation is a form of a flat fee agreement, but it typically addresses a portion of a case instead of the entire case. For example, unbundled attorney services refers to situations in which a client hires an attorney to assist with specific elements of a matter such as legal advice, document preparation, document review and/or limited court appearances. The client and attorney agree on the specific tasks to be performed by the attorney and the client hires the attorney to perform only those specific tasks. The attorney may or may not enter an appearance with the court. When possible I would always recommend that a client go with full representation, as it is sometime difficult for a lawyer to jump in and only handle a small section of a case. I also think there are advantages of a lawyer working on a case from beginning to end. However, this is a good option for individuals who do not have the money for full representation. 

How Does a Contingency Agreement Work?

Under a contingency fee structure the attorney will only get paid if they are successful on your behalf by getting a settlement or judgment through trial. It is not uncommon for the contingency percentage to be around 33% increasing up to 40% if a trial is required. The positive of such an arrangement is that a client is able to retain an attorney without having to put up any upfront costs. Such arrangements are more fitting for areas of law such as Personal Injury. In general, my Firm does not do contingency cases.

Conclusion

Hopefully, this helps clarify any confusion about the payment of attorney services. All the above mentioned options are possibilities through my office. Not all attorneys provide these options though. It is important that no matter what option you choose the attorney client engagement letter is clear about the scope of representation and how matters are to be paid for. 

Let me know if you have any questions.

Luke Larson (Managing Attorney at Legal State of Mind)

Website: www.legalstateofmind.com 

Email: legalstateofmind.com

DUI Do's and Don'ts

 

What should I do if I consumed a few drinks and get pulled over?

Whenever you are planning on having a couple drinks, I highly recommend you find alternative transportation or plan to use a designated driver.  In Washington State, it is possible to get a DUI even if you blow under the limit of 0.08, requiring one to be extra careful.  However, it is quite common to have a few drinks at a friend's house or restaurant and drive home.  Because of the easiness to blow over the legal limit, a DUI charge tends to be a numbers game, where 28% of people at some point of their life will receive one.  You should not feel like a bad person or immediately plead guilty.  It is important to consult with an attorney in order to know your options.

What should I do when the police officer starts asking me a lot of questions? 

Generally, people will get pulled over for a traffic infraction or because of reasonable suspicion.  When pulled over for a traffic infraction the officer is limited to asking for ID, checking for warrants, making sure you have insurance and registration, and potentially writing a ticket.  In order for the initial stop to turn into a DUI and arrest the officer needs probable cause.  This is commonly done by your behavior, smell of alcohol, bloodshot eyes, and any tests you agree to.  It is their obligation to show probable cause for your arrest, and you should not assist them in this.  Be calm and give short responses to their questions, as you do not need to explain yourself.  If you have any illnesses or injuries you should mention these in your answers.  If you decide not to answer any more questions politely say so, as you are not under an obligation to do so. 

How should I respond to a request to do field sobriety tests? 

If a police officer asks you to step out of the car and do these field tests, the officer likely believes at this point that you are under the influence of alcohol/drugs.  You are not required to take them.  If you wish, you can politely tell the officer you do not wish to do these tests and that you would only be willing to do a chemical sample, if necessary.  Most people fail these tests no matter what, and they may just provide more evidence against you.

What about a request to blow into a portable device?

You are not required to take the portable breath test, and may instead ask to take the official test at the station.  If you are confident you are under the limit you can agree to take the portable breath test.  If you blow over the legal limit, the officer will find this to be sufficient probable cause to arrest you.  Because of the inaccuracy of this test, it is generally not allowed into evidence if you go to court. 

Should I request a blood sample instead of a breath test?

A blood sample is much more accurate than the breath test, however, there are ways to attack the validity of the sample.  The advantages to a blood sample is that it will take much longer for a sample to be taken.  Therefore, your BAC may have fallen by then.  However, do not request this option if you are likely well over the limit.

Do I need to take the breath test at the station?

Yes, there are automatic consequences if you do not take this test. 

What happens next?

You should contact me the next day after the incident, and I will explain the process and options.


Email:  Legalstateofmind@gmail.com
Website:  www.legalstateofmind.com

Put Those Pesky Past Convictions Behind You

Do not let pesky old convictions hang over your head. If you have been convicted of a misdemeanor or a class B/C felony, you may qualify in the State of Washington to have your conviction vacated. If you are having trouble finding a new place to live or a better job, vacating old charges can make your life easier, and brighter. Vacating a record grants you the legal fiction that a past crime never happened. You can confidently say no, you never committed that specific crime to prospective work places and land lords.  There are restrictions on the types of crimes which have been vacated, and a few conditions which may disqualify you.

              

For example, violent or sexual convictions may not be vacated. DUIs are also stuck with you forever[1].  You cannot vacate operating a railroad while intoxicated, in the unlikely event you operated a railway train while drunk. But, if you have not convicted a new crime in any state, have never had another conviction vacated, and never had a restraining order, your misdemeanor or class b/c felony might be eligible to be cleared. 

If you have a misdemeanor you are looking to forget and move on from, you need only have completed all required prison, probation, etc. for the crime and not have been in trouble since. Give Legal State of Mind a call and we will begin filing your motions and serving the prosecuting attorney. After that, we will have to go to the hearing and ask the Judge to sign the order vacating the conviction. The Judge will sign it, and the clerk will send a copy to the law enforcement agencies where you have a criminal history. Getting an attorney early on so all the forms are properly filled out, filed, and served is very important to the success of your motion. This is the rest of your life; you want the details to be perfect. 

For people looking to vacate a class B or C felony, it may be a touch more difficult. When seeking to have your class B felony cleared, you need to wait ten years, not have any current criminal charges, or be convicted of new crimes. Violent offenses cannot be vacated, nor crimes against other people. If you have a class C felony, you need only wait five years instead of ten before filing motions to have your conviction vacated. As with misdemeanors, call Legal State of Mind to begin working on your motions as soon as possible. 

If your charge is successfully vacated, you may then petition to have your firearm rights restored. Past convictions can often feel like a sign taped to your forehead saying “criminal.” Avoid this feeling! Finding a better job, a better place to live, going across the border to Canada can all be made infinitely easier. Don’t let your past mistakes weigh you down forever. 

Taylor Waters, Legal Assistant at Legal State of Mind
Email:  Legalstateofmind@gmail.com
Website:  www.legalstateofmind.com

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[1] Which is why getting a competent attorney as soon as you are charged with a DUI is extremely important.

The Consequences and Problems of LegalZoom

What Exactly is LegalZoom?

 A common misconception about LegalZoom is that the company is made up of lawyers who provide legal advice on various legal issues.  In reality, the people who fill out your documents are called Legal Document Assistants (LDA's).  The requirements for this title is that you have high school diploma and two years of education or experience somehow in the legal field.  The company walks a fine line between offering legal services but not engaging in the unlawful practice of law.  In very small print at the bottom of the page, which took me awhile to find, it states the company's disclaimer:

"Communications between you and LegalZoom are protected by our Privacy Policy but not by the attorney-client privilege or as work product. LegalZoom provides access to independent attorneys and self-help services at your specific direction. We are not a law firm or a substitute for an attorney or law firm. We cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies."

What are the Problems with LegalZoom?

Because of the confusion of what exactly LegalZoom provides there have been several lawsuits against them for the unlawful practice of law.  There are also several lawsuits by individuals against the company for flawed documents, however, unlike attorney's, the standards they face for incompetent work is lower.  The primary way that LegalZoom tries to avoid complaints of unlawfully practicing law is by gathering generic and simple data from people and placing that information into their legal document.  This ensures that anything requiring legal advice or questions can be avoided.  The LDA's who fill in the documents cannot give opinions on whether people are following a sound legal strategy or if their decisions make legal sense.  In addition, there have been reported issues of LegalZoom not keeping up with the current laws of your state.

Is there a Middle Ground?

 There are two common arguments in favor of LegalZoom:  the first being that they fill a void for the lower middle class or low income who cannot afford an attorney and that attorney's charge too much for their services.  Assuming that the legal documents created by LegalZoom are not flawed, I would agree that some form of legal document such as a Will would be better than nothing.  Also, there are some attorney's that may have much higher rates for their legal services, compared to LegalZoom.  The reason that I created my website is to offer a middle ground where you get the detailed analysis and review that an attorney provides without the high costs.  I do this by offering my services through an online format where I send you a detailed questionnaire and give you my recommendation of what documents you need and how to structure them.  My services are also limited to the states of Washington and New York where I can keep well informed of the laws specific to those states.  Additionally, unlike a large company, I can get to know my clients at more of a personal level in order to best reach their objectives in life.  Please let me know if you would be interested in my services.

Luke Larson, Attorney & Counselor at Law
Email:  Legalstateofmind@gmail.com
Website:  www.legalstateofmind.com