1. Expert Panel:
Carole Azran-Dickstein, Esq., Kolodny Law Group (Family Law)
Walter T. Killmer, Jr., Esq., Rodi Pollock Pettker Christian & Pramov (Trusts and Estates)
Robert Dalie, Oppenheimer & Co. Inc. (Wealth Management)
Mark Luttrell, CPA/ABV, Mayer Hoffman McCann P.C. (Forensic Accounting and
Valuation)
KEY FINANCIALAND ESTATE PLANNING ISSUES:
BEFORE, DURING AND AFTER DIVORCE
Copyright © 2014 Expert Webcast

2. 1
WEBCAST LOGISTICS:
The audience is in listen-only mode
Attendees are encouraged to type questions into the “chat” field
Questions will be addressed at the end of the program
Power Point link is available at www.expertwebcast.com
MCLE / CPE processing link is available at www.expertwebcast.com
For technical support, please contact GoToMeeting support: 800-263-6317

3. 2
Carole Azran-Dickstein is a partner at Kolodny Law
Group, a leading Beverly Hills law firm specializing in
complex and sophisticated family law and matrimonial matters
arising out of interpersonal relationships both domestically and
abroad.
Carole has been practicing family law exclusively for over 18
years and has extensive experience handling complex cases
involving significant community property assets, prenuptial
and postnuptial agreements, valuation and division of marital
assets, spousal and child support, child custody, paternity
matters, breach of fiduciary duty issues, and domestic violence.
Her expertise makes her well-suited to handle the family law
needs of individuals and families with large assets.
Carole holds a B.A. degree from UCLA and a J.D. degree from
Loyola Law School, Loyola Marymount University.
9100 Wilshire Boulevard
Ninth Floor, West Tower
Beverly Hills, CA 90212
310.271.5533 Ext:249
azran-dickstein@
kolodnylawgroup.com
www.kolodnylawgroup.com

4. 3
Walter T. Killmer, Jr. is a Principal in Rodi Pollock Pettker
Christian & Pramov. He represents individuals, families,
fiduciaries and nonprofit organizations in the areas of estate and trust
planning, fiduciary administration and charitable giving. Before
moving to Los Angeles, Walter practiced in New York at two large
international law firms, serving at the latter as head of the trusts and
estates practice for seven years. Walter's clients include business
owners, corporate executives, professionals, artists, families with
dynastic wealth, and executors and trustees.
In addition, Walter advises clients in the area of international estate
and tax planning. In his international practice, Walter has represented
non-U.S. persons seeking to invest in the U.S. or who own U.S.
assets; Americans living abroad; Americans who live in the U.S. but
own property in another country; and U.S. residents who are
nationals of another country and may have assets in multiple
jurisdictions.
Walter has lectured on international and domestic estate and trust
topics to banks, investment advisors and bar and community
audiences.
Walter holds a B.A. degree from University of Arkansas and a J.D.
degree from Columbia Law School.
444 South Flower Street
Suite 1700
Los Angeles, CA 90071
213-550-5099
wtk@rodipollock.com
www.rodipollock.com

5. 4
Robert Dalie is an Executive Director – Investments, Oppenheimer &
Co. Inc.. He joined Oppenheimer & Co. Inc. in 2000, and is responsible for
providing wealth management advice to individuals, families and their
fiduciaries across all asset classes. He also oversees the team’s capabilities,
which include creating custom solutions that incorporate insurance, tax
planning strategies, retirement cash flows, and estate planning strategies.
Robert began his career working for an institutional trading team at
Oppenheimer & Co. Inc. In this capacity, Robert’s role included completing
trades, conducting quantitative research, and constructing Excel-based
models.
Robert is a member of the Los Angeles Financial Planning Association
(FPA), and holds the Certified Financial Planner™ (CFP) designation from
the Certified Financial Planner Board of Standards Inc.
Robert graduated from Pepperdine University with BA in business
administration and a BS in sports medicine. He holds the General Securities
Representative License (Series 7), the Investment Company Products/
Variable Life Contracts (Series 6), the Uniform Securities Agent State Law
Examination (Series 63) and the Uniform Investment Adviser Law
Examination (Series 65). He resides in Los Angeles with his wife and four
children.
110880 Wilshire Blvd, Fl. 24
Los Angeles CA 90034
310-446-7501
robert.dalie@opco.com
www.opco.com/summagroup

6. 5
Mark S. Luttrell is a managing shareholder of the national
accounting firm, Mayer Hoffman McCann P.C.
Mark manages the firm’s offices throughout Southern California,
which employ approximately 250 individuals. His primary practice
areas are litigation and valuation consulting.
Mark has been engaged as an expert witness in hundreds of cases
throughout California and Arizona. Mark has spoken on litigation
and valuation topics at over 40 national and state conferences for
groups such as the American Academy of Matrimonial Lawyers,
the AICPA and the California Education Foundation.
Mark is a Certified Public Accountant and holds a B.S. degree in
accounting from San Diego State University.
Bakersfield, CA
661-616-3714
mluttrell@cbiz.com
www.cbiz.com

7. 6
ORGANIZER & HOST:
Anna Spektor is founder and host of Expert Webcast, a sophisticated
digital content resource and source of foremost expertise for the
professional and business communities, domestically and cross-border.
Under Anna's direction, Expert Webcast produces the industry’s leading
programs covering corporate, M&A, restructuring and finance topics,
addressing most pressing issues for business owners, C-level executives,
corporate advisers and institutional investors.
Anna is also a seasoned management consultant, founder of Expert
Presence, specializing in helping professionals (professional services
Firms) and senior executives develop new business, deepen stakeholder
relationships and increase brand awareness.
100 Wilshire Blvd.
Suite 750
Santa Monica, CA 90401
(310) 995-6579
anna@expertwebcast.com
www.expertwebcast.com
www.expertpresence.com

8. 7
MAJOR TOPICS
• Financial and estate planning for individuals before they get married;
• Premarital Agreements and other ways to protect assets before marriage;
• Financial and estate planning for couples after marriage;
• Management and control of community and separate property assets;
• Fiduciary duties between spouses during marriage and after initiation of divorce proceedings;
• Statutory restraining orders effective upon the filing of divorce;
• Modifying wills, trusts and beneficiary designations during divorce proceedings and after divorce;
• Statutory revocation of some (but not all) estate planning provisions for a former spouse;
• Discovery during divorce and the role of a forensic accountant
• Identifying and valuing the community’s estate
• Remarriage vs. cohabitation;
• Community and separate property issues to consider before remarriage;
• Providing for the new spouse in estate planning documents;
• Estate planning provisions for children in a blended family;
• Balancing interests of the new spouse and the next generation;
• Planning for the closely held business and a blended family;
• Financial planning for the non-business owner after divorce and division of community property; and
• The importance of getting your financial house in order after a divorce.

9. 8

10. 9
HYPOTHETICAL
I. FACTS: John Public, a single man in his 40s, never been
married, with no children, sells his privately owned
company to a major corporation netting him
$90,000,000.
A. John meets with his wealth manager to discuss
investment strategy.

11. 10
FINANCIAL PLANNING
The fact that John sold his company and had a life-changing event creates a
need for financial planning.
• Create a balance sheet and cash flow summary
• Analyze how much income John needs to maintain his lifestyle and
future goals
• Maximize income and minimize taxes (residency and entity planning)
is a typical priority when no family or kids are involved
• Carve out a safety net for John, so that his portfolio can sustain his
lifestyle
• Help coordinate a meeting with the trusts & estates lawyer to address
asset protection and separate property protection
• Building out an advisory team is a critical component of the planning
process.

12. 11
B. John meets with his estate planning attorney to discuss his
estate plan.
Pre-transaction estate and tax planning:
• Gifts to family members and charities
• Outright and in trust
• Not affected by subsequent marriage
Execution of basic estate planning documents
• Revocable Living Trust
• Pourover Will
• Advance Health Care Directive
• Power of attorney for financial matters
• Documents to transfer assets to living trust
• Beneficiary designations

13. 12
II. FACTS: About one year later, he meets the woman of his dreams, Jane
Doe, whom he intends to marry. Jane Doe has never been married and has
nominal assets. Neither have children from prior relationships.
A. John meets with his family law attorney to discuss how to protect his pre-marital
assets upon marrying Jane in the event of a divorce:
1. Prenuptial Agreement:
a) The property rights of husband and wife under California law may be
altered by a Prenuptial Agreement or other marital property
agreement. [Family Code §1500].
b) Since there is a huge disparity of pre-marital assets between John and
Jane, it would be advisable for John to consider entering into a
Prenuptial Agreement to protect his pre- marital assets.
c) Given Jane’s nominal assets, she may also want a Prenuptial
Agreement to insure that she is protected in the event of a divorce.
She would want the Prenuptial Agreement to provide a formula
setting forth exactly what she could expect to receive in the event of a
divorce.

14. 13
d) Since John has a very large pre-marital separate property estate, his
Prenuptial Agreement should specify that he not waive his
California statutory right to reimbursement for all of his separate
property contributions used for the acquisition of and improvements
to community property assets.
e) Depending upon the terms of the parties’ Prenuptial Agreement,
John will probably want to keep his pre-marital assets in separate
bank accounts so that these funds do not become commingled with
community accounts or funds acquired during marriage. If his
separate property funds become commingled with community
funds, this will be something the forensic accountants will have to
trace should there be a divorce in the future.
f) John has a duty to make full and accurate representations regarding
his pre-marital assets and liabilities - failure to do so may render the
agreement unenforceable.

15. 14
g) Under California law [Family Code §1615], a premarital agreement is not
enforceable if the party against whom enforcement is sought proves either
of the following:
(1) That party did not execute the agreement voluntarily.
(2) The agreement was unconscionable when it was executed and,
(3) Before execution of the agreement, all of the following applied to that
party
(4) That party did not execute the agreement voluntarily.
(5) The agreement was unconscionable when it was executed and,
(6) Before execution of the agreement, all of the following applied to that
party:
a) That party was not provided a fair, reasonable, and full disclosure of the
property or financial obligations of the other party.
b) That party did not voluntarily and expressly waive, in writing, any right to
disclosure of the property or financial obligations of the other party beyond
the disclosure provided.
c) That party did not have, or reasonably could not have had, an adequate
knowledge of the property or financial obligations of the other party.

16. 15
h) Further, in order for the Prenuptial Agreement to be deemed voluntarily
executed and therefore enforceable, the Court must find all of the following:
(1) The party against whom enforcement is being sought was represented by
independent legal counsel at the time of signing the agreement. So Jane
would need to have her own attorney;
(2) The party against whom enforcement is sought had more than seven
calendar days between the time they were first presented with the agreement
and advised to seek independent legal counsel and the time the agreement
was signed. John has to present Jane with his proposed Prenuptial
Agreement well before their wedding date;
(3) The party against whom enforcement is sought, if unrepresented by
legal counsel, was fully informed of the terms and basic effect of the
agreement;
(4) The agreement and the writings executed pursuant to paragraphs (1)
and (3) above, were not executed under duress, fraud, or undue influence,
and the parties did not lack capacity to enter into the agreement; and
(5) Any other factors the court deems relevant.

17. 16
2. Terms John can include in his Prenuptial Agreement:
a) Division of property on divorce;
b) What assets are community and separate property, including the ownership of
the marital residence;
c) Spousal support obligations;
d) Responsibility for premarital debts and financial responsibilities during the
marriage;
e) Which state’s laws will govern in the event of divorce as opposed to the state
where the parties live at the time of the divorce; and
f) Sunset clause - after the passage of a certain amount of time, the Prenuptial
Agreement will cease to be valid
3. Terms John cannot include in his Prenuptial Agreement:
a) Child support and child custody of the children;
b) Anything that is thought to encourage divorce;
c) Anything "unconscionable" at the time enforcement is sought, especially
where there is a great disparity between the parties’ incomes and assets; and
d) Anything illegal.
e)

18. 17
4. Questionable terms and clauses - a fidelity clause (Catherine Zeta-Jones is
rumored to have one in her Prenuptial Agreement with Michael Douglas); in-law
clause - limiting the amount of time the parties have to spend with their in-laws;
weight watchers clause; drug testing clause; household religion clause; and sexual
frequency clause - may be unenforceable, depending upon the circumstances.
III. MORE FACTS: John and Jane enter into a Prenuptial Agreement and get married.
They buy a house in their joint names (with John using his separate property of
$800,000 for the down payment). John and Jane have two children. During the
marriage, John uses about $500,000 of his separate property to purchase a Porsche
dealership in Beverly Hills over which he has exclusive management and control.
A. John meets with his estate planning attorney to discuss changes in his estate
plan now that he is a married man with two young children.
Execution of new estate planning documents
• Existing living trust becomes separate property trust
• Provisions for spouse and children in separate property trust
• Community property trust
• Changes in trustee, executor, health care agent, agent under POA
• Pourover will - naming guardian of minor children
• Beneficiary designations

19. 18
B. John meets with his wealth manager to discuss his investment strategy, the
management of his asset portfolio and any changes which may be required.
• Review current and future revisions to make sure John’s portfolio mandate
is still accurate
• Ensure that each entity has the appropriate investments included
• Analyze succession planning for the children: will they be part of the
business, and how much should be passed on to them and at what ages
• Discuss idea of family retreats to discuss issues
• Ensure that beneficiary designations are accurate on all retirement type
accounts
• Is appropriate insurance in place

20. 19
C. Family lawyer discusses what John’s fiduciary duties are to the community with
respect to the Porsche dealership.
1. John is subject to the general rules governing fiduciary relationships between
persons having confidential relations with each other, which is a duty of the
highest good faith and fair dealing. John cannot take an unfair advantage over
Jane.
2. This confidential relationship is a fiduciary relationship subject to the same
rights and duties of non-marital business partners, as provided in sections of
the Corporations Code.
3. John’s fiduciary duties to Jane include:
a) Providing Jane with access to the dealership’s books and records for
inspection and copying.
b) Providing Jane with a truthful accounting upon her request concerning
community property.
c) Accounting to Jane and holding as a trustee, any benefit or profit from any
transaction by John without Jane’s consent which involves the community
property.

21. 20
d) Making a full disclosure of material facts regarding the existence,
characterization and valuation of all assets in which the community has or may
have an interest and debts for which the community is or may be liable.
IV. FACTS: Twelve years have passed and John finds out Jane has been having an affair with
the pool boy. John realizes the marriage is over and wants to tell Jane he intends to file for
divorce. The parties have no outstanding debts, the family residence is paid off and the
dealership is extremely profitable.
A. John meets with a family law attorney to discuss a plan before he files for
divorce.
1. Discuss that once John files for divorce the Automatic Temporary Restraining
Orders (ATROs) go into effect and remain in effect until final Judgment is
entered in the matter, absent a court order.
2. The ATROs (pursuant to Family Code §2040) contain the following orders
which are set forth on the Family Law Summons to the proceeding:
a) Restraining both parties from removing the minor children from the state, or
from applying for a new or replacement passport for the minor child or
children, without the prior written consent of the other party or an order of the
court.

22. 21
b) Restraining both parties from transferring, encumbering, hypothecating,
concealing, or in any way disposing of any property, real or personal,
whether community, quasi-community, or separate, without the written
consent of the other party or an order of the court, except in the usual
course of business or for the necessities of life. Notwithstanding these
restraining orders, a party can use community property, quasi-community
property, or the party's own separate property to pay reasonable attorney's
fees and costs in order to retain legal counsel in the proceeding. So Jane
could use community funds to retain an attorney once John files for
divorce.
c) Restraining both parties from cashing, borrowing against, canceling,
transferring, disposing of, or changing the beneficiaries of any insurance
or other coverage, including life, health, automobile, and disability, held
for the benefit of the parties and their child or children for whom support
may be ordered.
d) Restraining both parties from creating a nonprobate transfer or modifying
a nonprobate transfer in a manner that affects the disposition of property
subject to the transfer, without the written consent of the other party or an
order of the court.

23. 22
e) John could still create, modify or revoke his will; revoke a nonprobate
transfer providing that notice of the change is filed and served on Jane
before the change takes effect; eliminate the right of survivorship to
property, provided that notice of the change is filed and served on Jane
before the change takes effect; and create an unfunded revocable or
irrevocable trust.
f) Once Jane is served with the divorce papers, she could create an estate
plan without funding it.
g) John may want to change the beneficiaries on his life insurance policy, but
if the policy was paid for with community funds, this may subject him to a
claim of breach of fiduciary duty by Jane.
3. Once John files for divorce, he is still obligated to comply with his fiduciary
duties to Jane, until all assets are divided; providing prior notice to Jane of all
transactions which are outside the normal course of business.
a) Since during marriage, John was operating and managing the Porsche
dealership which we assume is mostly community property, after the
divorce proceedings are initiated, he has right to the primary management
and control of the dealership and can act alone in all transactions but shall

24. 23
give prior written notice to Jane and her counsel of any sale, lease, exchange,
encumbrance, or other disposition of all or substantially all of the personal
property used in the operation of the dealership. [Family Code §1100]
B. John meets with his estate planning counsel to change his Will, Trust and any other
document which leaves assets to Jane.
Changes to estate planning documents
• Remove spouse as beneficiary
• Children are more likely to inherit at younger ages
• Remove spouse as fiduciary
• Provisions for spouse’s family members or spouse’s charities
• Beneficiary designations for separate property
C. John meets with his wealth manager to ensure his investment strategies are on target
and that Jane is not the beneficiary on any of these accounts or investments.

25. 24
• As path of least resistance, review the current balance sheet and make
suggestions on certain assets that could be split that can be beneficial for
both sides
• Make sure beneficiary information is updated
• Reallocate investments into a more conservative mix, even cash
• The goal is to avoid excessive risk just to spite the ex-spouse
• Case study: situation backfired and estate cut in half during a long,
drawn-out two-year divorce battle
• Typically, liquidity is needed, and cash is better than a fire sale
• Review any private equity, hedge fund, real estate or other illiquid assets

26. 25
V. FACTS: During the divorce, even though there is a Prenuptial Agreement defining the
financial terms upon a divorce, and although Jane has been having an affair, she is very bitter
and tries to take John “for everything he is worth.”
A. Discovery during divorce and the role of the forensic accountant - identifying and
valuing the community estate:
1. John hires a forensic accountant to value the Porsche dealership.
2. John hires a forensic accountant to provide a tracing evidencing no
commingling of bank accounts.
3. Johns hires a forensic accountant regarding his reimbursement claims for the
family residence and other separate property funds used toward acquisition of
community property.
B. Forensic accountant necessary to determine John’s income available for both spousal
and child support.
1. John hires a forensic accountant to perform a Cash Flow Analysis for income
available for support which would include income from all of John’s assets,
including his separate property assets.

27. 26
2. John hires a forensic accountant to perform a Marital Standard of Living
Analysis for support.
VI. Trial/Settlement and the division of assets.
A. Family lawyer discusses a potential division of assets such as the house to Jane, the
dealership to John and John providing a Tammen Note to Jane (with a 10 year
buyout).
1. John would most likely want to keep the Porsche dealership and buyout Jane’s
community interest in the dealership. Jane would probably want to keep the
family residence and remain there with the children.
2. Other issues include child and spousal support and custody of their 2 children.
B. Forensic accountant discusses a Tammen Note.

28. 27
VII. Post-Divorce Financial Planning
A. John meets with estate planning lawyer to discuss possible changes to his estate
planning.
1. In the context of a remarriage for John - preserving his assets for his children
from the first marriage rather than going to new wife.
2. Financial planning for the new wife (and children if there are new children).
Post-divorce estate planning
• Consolidate assets in separate property trust
• Review beneficiary designations
• Estate taxes likely to be incurred sooner
• Guardians and trustees for children
B. John meets with wealth manager to discuss possible changes to his investments and
management of his assets.
• Get a copy of the divorce decree; figure out from a tax standpoint what will be
split in kind vs. QDRO pension or retirement assets vs. cash buyout

29. 28
• Re-establish lifestyle and spending needs, back into cash flow models, taking into
account the new split balance sheet and then back into a bogie investment return that
needs to be achieved to make goals realistic
• Rebalance the portfolio and re-position assets based on new roadmap
• Change beneficiaries on all insurance and retirement accounts to reflect the divorce
and make sure titles of accounts are updated to reflect new trusts
C. Family lawyer to discuss future cohabitation versus remarriage - as it pertains to
spousal support for Jane.
1. If Jane and her new boyfriend were to live together, this would give rise to a
rebuttable presumption that she has a decreased need for spousal support.
[Family Code §4323(a)(1)]. This rebuttable presumption would have no
impact on John’s child support obligations.
2. The income of Jane’s new boyfriend would not be considered when
determining or modifying spousal support.

30. 29
VIII. FACTS: John falls in love with his personal trainer, Suzy, and wants to get
married.
A. John meets with estate planning counsel to discuss estate planning for Suzy
while at the same time making sure his children from his marriage with Jane
are protected, discuss marital trusts, life insurance and lifetime gifts.
B. Estate planning lawyer discusses private foundations and donor advised
funds with John.
Preserving assets for children
• Marital trusts
• Life insurance
• Lifetime gifts
New spouse and children in a blended family
• Family businesses
• Private foundations and donor-advised funds

31. 30
Disclaimer
Expert Webcast does not provide legal services or accepts or assumes
responsibility, or has any liability, to any person in respect of this
communication.
The purpose of this communication is to provide information as to
developments in the law. It does not contain a full analysis of the law nor
does it constitute an opinion of any of the speakers on the points of law
discussed.
You must seek specific legal advice on any particular matter which
concerns you. If you require any advice or further information, please
obtain competent legal representation.