July 2011 – Lonich Patton Ehrlich Policastri

Lonich Patton Erlich Policastri Co-Sponsors Los Gatos Fiesta de Artes

July 29, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

In the past seventeen years, Lonich Patton Ehrlich Policastri (L&P) has proudly served the needs of thousands of clients and become one of the most respected firms in Northern California. L&P’s commitment, however, extends beyond the needs of its clients and into the South Bay community.

Lonich Patton Ehrlich Policastri is proud to co-sponsor the fortieth annual Fiesta de Artes at the Los Gatos Civic Center grounds on Saturday and Sunday, August 13-14, 2011. Fiesta de Artes is the town’s one and only art and wine festival and will feature 150 artists, gourmet food wine and beer, and live music. For over thirty years, the Fiesta de Artes has drawn visitors from all over the San Francisco Bay Area and L&P is proud to be part of an event that benefits the community.

Single? Time to Start Your Estate Planning

July 26, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

When most people think of estate planning, they think of the later stages of life—perhaps when a family is established or in preparing for the end of life in old age. It is probably the last thing on a young, single person’s to-do list; but it should be at the top.

Single people are out on their own and need to understand how important it is to have estate matters squared away in case of death. If not, tragedy may be followed by unnecessary trauma for the person who ends up managing the estate. Singlehood is not reserved just for the young and carefree; it can happen to anyone at any stage in life. According to U.S. Census Bureau data, singles have overtaken married couples as the majority population. In 2010, singles represented fifty-two percent of all households.

There are a number of complex and emotional issues that could be avoided simply by planning ahead. With couples, the law dictates that the spouse takes care of most issues, whereas singles have no option unless they so designate. It gets especially complicated if minor children are involved as they cannot inherit until they turn eighteen. Singles could benefit from establishing a will (to establish what would happen to assets), a durable financial power of attorney (to designate a person to handle financial affairs in case of incapacity), a medical power of attorney (to appoint a person to make medical care decisions), a living will (to specify what measures can be taken to sustain life in case of incapacity).

If you are interested in learning more about individual estate planning or creating a comprehensive plan to ensure that your family members are well-prepared to handle your estate, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Divorce Today: Navigating through Divorce Lawyers Online

July 25, 2011/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

It used to be the case that people would turn to phonebooks to find an attorney. Based on little more than an affinity for the particular lawyer’s ad—from an appealing graphic or clever quote—people would hire a lawyer. Today, in the world of websites, ratings, and reviews, the landscape is much different. With websites like Yelp and Avvo, providing clients with the opportunity to review their experience with an attorney, finding a qualified lawyer is only a few clicks away.

On Yelp, reviewers may review everything from cemeteries to restaurants to baby furniture. Therefore it shouldn’t be surprising to learn that lawyers and law firms are frequently reviewed as well. In an official blog, Yelp recently summarized what percent of reviews in each business category on Yelp were written by people within five year ranges. Not surprisingly, searches and reviews for divorce lawyers are heaviest in the range of 30s all the way up to the mid-50s, an incredibly wide range of clients.

http://officialblog.yelp.com/2011/06/ages-of-yelp.html

When searching for a lawyer online, it is important to not only keep in mind what legal services you need but the source of the information posted. A younger client does not necessarily seek the same attributes in a lawyer as an older client might. Further, our legal system is adversarial and there is almost always a loser. Clients who are upset with the outcome of their case may take it upon themselves to post overly negative reviews even though it is not an accurate reflection of the representation received. Many times, reviews are not even written by an actual client. So while online ratings and reviews may be incredibly helpful, it is important to be aware of who may be writing them.

The Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization, at Lonich Patton Ehrlich Policastri have decades of experience handling divorce issues for clients in different stages of life. If you are contemplating divorce or separation, please contact the Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Ehrlich Policastri, who can provide you with an in depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Estate Planning Bucket List: Managing Important Documents in Case of Death

July 19, 2011/0 Comments/in Estate Planning /by Michael Lonich

The last thing surviving relatives want to think about when a loved one passes away is managing the affairs of the deceased’s estate. Amid the grief and sorrow, a comprehensive estate plan can help to eliminate these uncertainties and confusion over the probate administration and assist surviving relatives in handling their painful loss.

It is also imperative that family members are aware of where to find an estate plan and other important documents. The Wall Street Journal’s “25 Documents You Need Before You Die” highlights the ramifications of unorganized estate planning documents and notes the most important documents to keep handy. It provides a thorough guide on the steps to take to ensure your estate plan is carried out.

If you are interested in learning more about individual estate planning documents or creating a comprehensive plan to ensure that your family members are well-prepared to handle your estate, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Wyoming Supreme Court Grants Same-Sex Divorce

July 18, 2011/1 Comment/in Family Law /by Julia Lemon

Last month, the Wyoming Supreme Court ruled that the state’s courts have jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada.

This decision slightly enhanced the rights of same-sex couples in Wyoming, but does not address the more controversial issue of whether Wyoming will permit same-sex couples to marry. Wyoming law defines marriage, in part, as a civil contract between a male and a female person. It also provides that all valid, out-of-state marriage contracts are valid in Wyoming. However, this rule is not absolute and is subject to certain recognized exceptions, such as marriages that are deemed contrary to the law of nature, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity because they are contrary to the policy of its laws.

In its opinion, the Wyoming Supreme Court took great care in ensuring the decision was sufficiently narrow, and expressly limited its decision to the issue of divorce in a footnote: “Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before us, is left for another day.” Christiansen v. Christiansen, 2011 WY 90 (2011). Recognizing a valid foreign same-sex marriage for the limited purpose of divorce, however, does not negate the law or policy in Wyoming against allowing the creation of same-sex marriages.

Same-sex marriage was, and continues to be a developing area of family law. New York first considered a similar case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada.

In an effort to simplify the separation process for same-sex couples, the California Legislature recently made significant amendments to the governing law. The State Assembly adopted the Separation Equity Act of 2010 which clarified that same sex couples married outside the state are able to dissolve their marriage in California. Additionally, same-sex couples who married during the brief period in 2008 when it was legal will have the rights and benefits of married couples, including divorce.

If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, please contact the experienced Family Law attorneys at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Planning Ahead for the Costs of Nursing Homes

July 13, 2011/0 Comments/in Estate Planning /by Lonich Patton Ehrlich Policastri

Nursing homes have become an important part of the way we care for our elders. With the population of those who are 65 and older rising, nursing homes will continue to play an integral role in our society. Assisted living, in any form, however, is a very expensive venture and many elders will not have the funds needed to afford this level of care.

“The average [] cost of a nursing home today is $6917 per month, and a typical Alzheimer’s patient will spend $395,000 for their nursing home care after diagnosis,” said Heiser, author of How to Protect Your Family’s Assets from Devastating Nursing Home Costs: Medicaid Secrets (www.MedicaidSecrets.com). That cost is only expected to rise as demand rises so it’s important that preparations begin early. Medicaid—a federal health program, managed by states, for people with low income—is a valuable resource; however, many people assume they cannot qualify for it.

It is important to understand the asset limits for those applying to Medicaid. In California, an individual may have up to $2000 in assets; a couple may have up to $3000. Moreover, some personal assets are not considered in determining Medi-Cal coverage. These include: your primary home, one vehicle, household goods and personal belongings, life-insurance policy with a face value of $1500/person, and prepaid burial plan and plots. The key to protecting your family’s assets from costly nursing homes is planning early and effectively.

If you are interested in learning how to plan for future costs of care, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship

Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases

July 12, 2011/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

Outside the United States, the term “attorney’s fees” is not often heard (there are analogous terms in other countries). It is largely part of the United States legal system and is used to refer to an attorney’s compensation for legal services. While sometimes daunting, especially in family law cases, there are attorney fees payment options specific to family law that are worth knowing.

First, it is important to note that most states, like California, make accepting a contingency fee for a family law case a violation of rules of professional conduct or canons of ethics. Rule 1.5 of the ABA Model Rules of Professional Conduct provides guidelines on attorney’s fees. As it relates to family law, the rule states that a “lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” This rule expressly prohibits attorneys from accepting family law cases on a contingency basis; that is, an attorney’s compensation may not depend on the outcome of the case. This could limit the ability of some parties to obtain a lawyer in divorce proceedings.

However, there are other ways of compensating a lawyer for family legal services. Section 2033 of the California Family Code states that either party to a divorce “may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.” This encumbrance is known as a “family law attorney’s real property lien” (FLARPL) and attaches only to the encumbering party’s interest in the community real property—providing parties to a family law case the opportunity to compensate their attorney following representation. A FLARPL allows a party without liquid assets to access their interest in the home’s equity to compensate a family law attorney in divorce proceedings where they could not otherwise afford it.

While contingency fees are disallowed in the divorce context, parties should seriously consider the option of a FLARPL when obtaining a divorce lawyer. A FLARPL secures attorney’s fees, however, parties may always choose to pay their attorney over time and keep their interest in their home equity instead.

The Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri have decades of experience handling complex and heavily disputed family law issues. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri, who can provide you with an in depth analysis of your issues. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Predatory Unions: Protect yourself and Protect Your Family

July 8, 2011/0 Comments/in Estate Planning /by Michael Lonich

The elderly are a vulnerable population. The wealthy elderly, however, are even more at risk. It is not uncommon to hear horror stories of an elderly parent who marries their caretaker only to have their life savings steadily funneled to unknown sources, discovered only by family members after the death of the elderly. As baby boomers head into retirement, these “predatory unions” are on the rise, as highlighted recently in the Wall Street Journal.

Financial abuse is the theft or embezzlement of money or any other property from an elder. It can be as simple as taking money from a wallet and as complex as manipulating a victim into turning over property to an abuser. In the blink of an eye, an elderly parent may be left unable to provide for their own needs while children and family members may be left without an inheritance.

The most difficult challenge for the children of these elderly is objecting to the property consequences of a parent getting married once that parent dies. In most states, the inheritance rights of widows and widowers trump any estate plan—even if the new spouse wasn’t named in the will, and even if the marriage took place shortly before the death of someone unable to recall the union a few days later. In California, the inheritance rights of widows and widowers are substantial but not as extreme as those previously mentioned. The surviving spouse may receive up to one-half of the decedent’s community property, quasi-community property and separate property.

Estate planning, however, can still be a strong deterrent to elder financial abuse if drafted properly. Estate planning devices may include wills, trusts, powers of attorney, advance health care directives and joint tenancies. Children whose parents put their assets in a trust have a stronger line of defense when the parent marries late in life. Irrevocable trusts cannot be unwound during the parent’s life time, however, if a revocable trust is in place, the paid caregiver should not know about it.

If you are interested in learning how to better protect your own or loved one’s assets, please contact the experienced estate planning attorneys at Lonich Patton Ehrlich Policastri for further information. Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Post-Nuptial Agreements and Spousal Support

July 7, 2011/0 Comments/in Family Law /by Lonich Patton Ehrlich Policastri

Spousal support and prenuptial agreements often make headlines in high profile divorces; however, the lesser known separation agreement (a type of post-nuptial agreement) can also pose difficult issues for divorced couples. In North Carolina, for example, NASCAR Chairman Brian France is fighting to rescind a separation agreement that calls for him to pay more than $40,000 a month in spousal and child support. [NASCAR Divorce Case Gets Messier]. These types of agreements involving spousal support are valid under California law.

Separation agreements—also referred to as property settlement agreements or marital settlement agreements— are often executed by spouses when their marriage breaks down. The parties are free to agree to a division of property rights and/or rights and duties of spousal and child support, and then have a court approve the agreement. There are, however, statutory limitations on agreements regarding spousal support that must be taken into consideration.

One of the primary obligations imposed by statute on married persons is the obligation of support. Spousal support provides one’s spouse with the necessities of life, measured by the lifestyle of the particular parties. This obligation of support has long been regarded as unalterable during marriage. California Family Code section 1620 explicitly states, “Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.” Therefore, spouses in an ongoing marriage may not enter into post-nuptial agreements waiving or limiting the right of either spouse to support the other in the event of separation.

Section 3580 of the California Family Code, however, creates an exception to this prohibition. A husband and wife may agree, in writing, to an immediate separation and may provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage. The important distinction is that this agreement can only be made when a couple is ready for an immediate separation. Absent an immediate intent to separate, a court will not uphold a post-nuptial agreement altering spousal support.

If you have a post-nuptial agreement in place, if you are contemplating having one put together, or if you have been asked to sign a post-nuptial agreement and you are concerned about how it may affect your rights, the Certified Family Law Specialists* at Lonich Patton Ehrlich Policastri have substantial experience in handling post-nuptial agreements. Please call our office to schedule a free 1/2 hour consultation.