March 2022 - Lonich Patton Ehrlich Policastri

Child Custody in Same-Sex Divorces

March 29, 2022/in Family Law /by Gretchen Boger

When two people in a same-sex relationship get divorced, the process of child custody can be challenging to navigate. In California, there are a few key things to keep in mind if you find yourself in this situation.

This article will discuss the types of custody arrangements in same-sex divorces, and where you can go for help.

How Is Custody Determined In California?

California Family Code 3011 requires that child custody be decided based on the child’s best interests. This means that the court will consider several factors when determining which parent should have primary custody of the child. These factors include, but are not limited to:

The child’s relationship with each parent
Any history of domestic violence of either parent
Illegal drug use by either parent
The age of the child
The child’s preferences
The ability of each parent to provide for the child’s needs
The child’s ties to the community

In 2005, the California Supreme Court effectively expanded child custody, visitation rights, and child custody rights for same-sex divorces by its rulings in two separate family law cases.

In other words, California law doesn’t treat same-sex relationships any differently than opposite-sex relationships. This law extends to child custody arrangements and means that if you are going through a same-sex divorce, you have the same rights as any other parent would when it comes to child custody.

Types of Custody

Judges typically require parents to agree on a parenting plan before going to court. If the parents agree, then the agreement becomes legally binding. In cases where the parents can’t agree, the judge will require them to meet with a child custody mediator. If they still can’t come to a parenting plan with the help of mediation, then the judge will make the final ruling after meeting with both parents separately.

In California, there are two types of custody:

Legal custody refers to who will make important decisions for your child, including education, health care, religious instruction, extracurricular activities, and overall welfare.
Physical custody is who the child will live with.

Legal custody can be either sole, where only one parent will make all the decisions regarding the child, and joint, where both parents share responsibility in the decision-making. Sometimes, both parents will share legal custody, but only one parent has physical custody.

Visitation refers to how the child will spend time with each parent.

Family Code 3011 states that “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”

Get Professional Assistance to Understand Your Rights

If you are going through a same-sex divorce in California, it is essential to understand your rights regarding child custody. If you live in San Jose or the greater Bay Area, contact Lonich Patton Ehrlich Policastri. Our experienced family law attorneys can help you navigate the legal process and ensure that your rights are protected. Call 408-553-0801 and schedule your free consultation.

Why is Estate Planning Important for Families?

March 22, 2022/in Estate Planning /by Michael Lonich

No matter your age or financial status, you can always benefit from having an estate plan for your family. While it’s difficult to think of what will happen in the event of premature death, estate planning will remove the stress on your family while receiving your possessions.

If you want the best for your spouse and children, you should develop a comprehensive plan. There is more to estate planning than your assets, so learning the various documents in an estate plan is necessary.

This article will cover what estate planning is and why it’s so important for your family.

What is Estate Planning?

When hearing the word “estate,” you may picture a large mansion with numerous cars. However, an estate is considered everything you own–such as your property, investments, cars, bank accounts, and other personal possessions.

By creating an estate plan, you will develop a detailed plan on where these possessions will go in the event of your death. Without a plan, the decisions will be made by state law and probate courts.

In many cases, the decisions made by courts don’t reflect your family’s needs and true desires. For the benefit of your family, you need to develop a plan that includes the necessary documents.

Most estate plans for families include the following documents:

Will/Trust
Durable Power of Attorney
Beneficiary Designations
Letter of Intent
Healthcare Power of Attorney
Guardianship Designations

Estate Planning Saves Time and Avoids Taxes

When you don’t have an estate plan, your family will need to wait an extended period to receive your belongings. As the probate courts determine what to do with your items, your assets remain frozen.

This legal process is incredibly time-consuming and can take months or even years to complete. If you want to save your family the headache and stress of this, you should create a will and list the beneficiaries to your investment accounts.

An estate plan will also reduce the tax burden on your family. Fortunately, California has no state estate or inheritance tax that affects heirs. You will still need to pay the federal estate tax and income tax, with an estate plan helping to reduce the burden.

Protect Your Children with Estate Planning

Estate planning is more than determining who receives your investment accounts. If you have young children, you can name who their guardian will be in the circumstance you and your spouse pass away.

While this situation is uncomfortable to think about, you can have peace of mind knowing they will be taken care of by someone you trust. By not including this in your estate plan, the courts will determine your children’s guardians.

Develop the Ideal Estate Plan for Your Family

If you want to ensure your family is protected, you need the help of an experienced team that specializes in estate planning. Our law firm will develop the ideal estate plan for your unique needs. Contact us today at 408-553-0801 for a free consultation!

Can I Do Estate Planning Myself?

March 15, 2022/in Estate Planning /by Michael Lonich

When it comes to estate planning, it’s not a subject most people want to think about. However, estate planning is essential for everyone, regardless of age or wealth. So it’s important to put a plan in place with instructions in the event of your passing, especially if you have children or significant assets. You are preparing a document that can speak for you and clarify your intentions.

It can be tempting to save money upfront using a quick fix solution with services like LegalZoom or RocketLawyer. These platforms provide templated documents that appear professionally written. Still, this seemingly easy solution can cause headaches or lead to costly situations for your heirs if the documents are not correctly set up or are legally unenforceable.

This isn’t to say there are no situations where a DIY solution may be suitable. A simple DIY will may meet your needs if you have modest assets or a clear division of property. However, for more complex situations, the guidance of a legal professional can be invaluable in ensuring your wishes are communicated clearly and without bias at a time when emotions can be running high.

A hasty decision to create a DIY will can leave lasting financial and emotional consequences for your relatives – at best, leading to confusion and at worst, leading to lengthy and perhaps even hostile litigation if you do not make your wishes clear and legally binding.

Working with an impartial legal counselor can help you make unbiased decisions that align with your own wishes, not influenced by family members or friends.

What should an estate plan include?

At a minimum, an estate plan should include three key elements: a will, power of attorney, and healthcare directive. A will is a document that explains to the court how you would like your assets, such as property, investments, valuable possessions, and even businesses, to be distributed. If you have minor children, it’s also essential that you designate a legal guardian so there is a clear plan in the event anything should happen that leaves you unable to care for your children.

You can also designate power of attorney indicating who is authorized to act legally on your behalf or make decisions in the event you are incapacitated. In conjunction with this, a healthcare directive clarifies how you would like medical situations, such as organ donation, to be handled.

Other factors to consider:

In addition to the will, power of attorney, and healthcare directive, there are a few other factors you might want to include in your estate planning.

You can create a funeral plan that provides direction on how you would like funeral arrangements to be handled in the event of your passing. It may also be helpful to outline arrangements for any final expenses, such as a funeral or settlement of debts.

It’s also vital to keep your estate plan up-to-date with significant life events such as marriage, children, or divorce. A lawyer can also help ensure proper custody of the will and note any changes throughout your life, so there are no questions of integrity to the chain of custody.

If you have questions about setting up your estate plan, call Lonich Patton Ehrlich Policastri at 408-553-0801 or click here to schedule a free consultation.

How Spousal Support Works in Same-Sex Divorces

March 8, 2022/in Family Law /by David Patton

In 2015, same-sex marriage was legalized federally in the United States, which meant that same-sex marriages were finally recognized in all states. This decision ensured that same-sex couples could receive the same benefits as heterosexual couples, including legal privileges such as medical insurance, tax benefits, and employee benefits for spouses.

Since the ruling, same-sex couples are navigating divorces for the first time as well. The process is the same in many ways, but there are some unique factors for same-sex couples considering a divorce.

What is spousal support, and how is it determined in a divorce?

Spousal support, also known as alimony, is a payment made from one spouse to another in the event of divorce within a marriage. The spousal support is typically awarded as part of a divorce settlement when one spouse can’t work or is unable to independently earn sufficient income to maintain a marital standard of living after a divorce.

In these cases, a court may award spousal support as a part of the divorce process. Spousal support is typically calculated taking into account a number of factors, including current income, earning potential, work or education experience of each spouse, custody of children, and more.

In a typical divorce, a judge will also look at the length of a marriage, whether there was a pre-nuptial agreement, and whether there was any shared property or assets between the couple.

Are there unique issues or considerations for same-sex divorces?

Although many aspects of divorce are the same for same-sex couples, there are some circumstances that could impact a same-sex spousal support agreement.

Same-sex couples may be more likely to have a less conventional situation when it comes to children. They may have adopted a child together or utilized a surrogate or an egg or sperm donor.

In these cases, the court may need to examine the situation to determine whether both parents have parental rights, and some have questioned whether primary custody typically could be awarded to a biological parent.

Determining the duration of a marriage can also be unique for same-sex marriages: This is because sometimes the relationship has lasted longer than is legally indicated, due to same-sex relationships only becoming formally recognized in the mid-2010s. A couple may have been in a domestic partnership or long-term relationship before that, but it wouldn’t necessarily be documented legally. In certain situations like this, courts may have the discretion to recognize longer relationships.

Shared property and assets can also be a question that comes up in divorce proceedings. There could be a question of how to properly divide assets if an asset was purchased before the marriage became recognized federally.

Since this is still a newer area of the law, many divorces are settled on a case-by-case basis. That’s why it can be important to make sure you have an experienced family law attorney to help you navigate the unique circumstances surrounding LGBTQ+ divorces.

To set up a consultation with one of Lonich Patton Ehrlich Policastri’s experienced California attorneys, click here or call (408) 553-0801.

How Child Custody Mediation Works

March 3, 2022/in Family Law /by Virginia Lively

When a couple decides to separate, nothing is more important than coming together to determine what is in the best interests of their children. It is a difficult situation, as there may be anger and hurt on both sides. Still, a trained mediator can help ensure the best possible outcome for everyone involved, especially the children.

Parents can meet with a private mediator or one appointed by the court. A mediator is a neutral party who will listen to both parents, review different options, and come up with a solution on what is in the best safety and welfare of the children.

What to Expect During a Child Custody Mediation Session

A child custody mediation session is not the opportunity to place blame on the other parent. Instead, it’s essential to come into the session with an open mind and a willingness to listen. A mediation session is an opportunity to come together and decide upon the best co-parenting plan that will have minimal disruption in the child’s life.

There are three main goals of child custody mediation:

Making a plan to co-parent that is in the best interest of the child
Ensuring the plan allows the child to spend adequate time with both parents
Helping both parents to learn effective ways to deal with hurt, anger, and resentment.

A child custody mediation session may last a few hours. It is important to get a good night’s rest the night before to ensure that you are focused and alert. Be prepared to discuss several options regarding your child’s schooling, activities, appointments, transportation, and other daily activities.

Is Child Custody Mediation Mandatory In California?

California family courts want the issue of child custody and visitation settled before any hearings take place. According to Family Code 3170 and 3175, family courts require meditation whenever there is a dispute, and it is mandatory before the parents appear before the judge for child custody rulings.

Is Child Custody Mediation Legally Binding?

A parenting plan can be resolved with either a private mediator or a court-appointed one. However, after the couple arrives at a solution, it goes before the judge. The judge will review and sign the agreement, thus, making it a legally binding document.

In the cases where parents can not come to a solution, the mediator will make a recommendation to the judge. The judge may agree or make some changes, but once the judge signs it, it is legally binding.

Get Help From An Attorney

A child custody mediation can be emotional, and you may be feeling stressed and confused. The attorneys at Lonich Patton Ehrlich Policastri can help you understand the process and what to expect. Our attorneys have years of experience helping parents through the mediation process and can provide you with the guidance you need to make the best decision for your family.

We offer free consultations so that you can get all of your questions answered before making a decision. Contact us today to learn more about how we can help you through this difficult time.

March 2022 LPEP Spotlight: Christina Duarte

March 2, 2022/in Spotlight /by Lonich Patton Ehrlich Policastri