November 2022 - Lonich Patton Ehrlich Policastri

Can You Avoid Paying Alimony If Your Spouse Cheats?

November 30, 2022/in Family Law /by Gretchen Boger

Infidelity is one of the most common reasons for a marriage to end in divorce. If you find yourself in the unfortunate situation of your marriage unraveling because your spouse cheated on you, you might be wondering whether you can avoid paying alimony since you were not at fault. Although some states still allow you to file for divorce based on adultery, California is a no-fault divorce state. Cheating does not reduce or eliminate your spouse’s eligibility to receive alimony. However, alimony is not automatic or mandatory in California, and there might be a few steps you can take to protect yourself.

Types of Alimony in California

Alimony, or spousal support, is the higher-earning spouse’s financial payment to the other during and/or after a divorce, usually to help the recipient get back on their feet or maintain their standard of living. There are two types of alimony in California: temporary and long-term.

Temporary Alimony – Usually paid while the divorce process is underway to help maintain the standard of living until the divorce is final. This spousal support is meant to help the recipient become financially self-sufficient, given enough time. Lasting anywhere from 6 months to several years, the judge usually relies on a preset formula to determine the amount.
Long-term Alimony – Once the divorce is final, the judge might order spousal support that continues for an extended period of time. Long-term alimony is sometimes called rehabilitative alimony because the judge will usually encourage the recipient to try to become self-supporting through education, training, or work experience.

Although spousal support is usually paid monthly, there is an option known as lump sum alimony where the individual pays the entire alimony debt at once. This option might be preferable to avoid further interactions with the recipient.

How Does the Judge Decide?

When determining the amount of support and length of time the alimony should be paid, California family court judges consider several factors, including:

Duration of marriage – For a shorter marriage, alimony payments might not be ordered.
Age and health of both spouses – If the lower-earning spouse is still young and healthy, they are more likely to become self-supporting in the future so might receive less alimony.
Standard of living while married – If a couple had a high standard of living while they were married, a judge might order alimony payments to the lower-earning spouse so that they can sustain that lifestyle alone.
Earning capacity of each spouse – The spouse with the higher earning capacity is more likely to be ordered to pay alimony.
Any other relevant factors – This catchall category allows the judge leeway to consider all other issues when deciding on fair spousal support.

Can I Avoid Paying Alimony?

Since alimony is not mandatory in California, you might be able to avoid paying spousal support. If your spouse decides to cohabitate with a new partner, for instance, those new living arrangements might effectively ease his or her financial situation, which might negate the need for alimony. Alternatively, if you can provide evidence that your spouse is able to work and support themselves without additional financial help, any alimony payments ordered might be decreased or terminated. Choosing a knowledgeable attorney can significantly increase your chances of avoiding alimony payments.

An Experienced Advocate Can Help You

Divorce can be complicated and emotionally draining. When infidelity is involved, divorce can be even more stressful. Having an experienced team on your side can ensure that decisions are made in your best interest, and you are protected. At Lonich Patton Ehrlich Policastri, we have an expert team specializing in Family Law with in-depth understanding of spousal support issues and guidelines. If you have questions about alimony, please call us today at (408) 553-0801 for a free 30-minute consultation. We’re here to help.

How to Handle Child Custody When One Parent Wants To Move

November 22, 2022/in Family Law /by Gina Policastri

When one parent wants to move with the children, custody arrangements can become very complicated. If you are in this situation, it is essential to know your legal rights and options. This blog post will help you understand what to do if your ex-spouse wants to move with the children and how you can protect your rights as a parent.

How is Child Custody Determined in California?

In California, child custody is the legal right of a parent to have a child live with them. Custody can be either physical or legal. Physical custody means that the child lives with the parent, while legal custody refers to the parent’s ability to make decisions about the child’s education, health, and welfare.

Child custody can be joint, meaning that both parents have equal rights and responsibilities, or sole, meaning that only one parent has custody. Visitation, or time-sharing, refers to the amount of time that the child spends with each parent.

Custody is typically determined by a judge based on what is in the best interests of the child.

How “Move-Away” Situations are Handled

Sometimes situations arise where one parent may need to relocate to a different area for work or to be closer to family. If the moving parent has sole physical custody, then it is the other parent’s responsibility to show that the move would be harmful to the family.

However, if parents share joint physical custody and one parent wants to relocate, they must notify the other parent of their intent to move. The parents can discuss changes to the visitation schedule and ensure the non-moving parent can maintain a relationship with their child. If the parents can reach an agreement, they need to file a child custody modification with the court.

But, if the non-moving parent doesn’t want the child to move, the relocating parent must show how the move would be in the child’s best interest.

Courts generally consider the following factors when making a decision about relocation:

The reasons for the move
The impact of the move on the children’s schooling, extracurricular activities, and relationships with friends and extended family
The ability of the non-custodial parent to maintain a relationship with the children after the move
The wishes of the children, depending on their age.

In some cases, other factors may also be considered, such as the move’s financial impact on both parents or the effect on special needs children. Ultimately, however, the court will always prioritize what is in the child’s best interests in making a relocation decision.

Understand Your Options for Custody Arrangements

If you are a parent facing the possibility of your child’s other parent moving away, it is crucial to understand your legal options. Our attorneys at Lonich Patton Ehrlich Policastri have extensive experience helping parents in all types of custody cases, including those involving relocation. If you live in San Jose or the greater Bay Area, contact us for a free consultation. We want to learn about your unique situation and help you determine how best to proceed. Fill out our contact form by clicking here or call us at 408-553-0801.

Why Estate Planning is Essential for Parents of Children with Special Needs

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

As the parent of a child with special needs, it can be difficult to think about the future when you will no longer be able to personally provide the loving care your child needs and deserves. One important way that you can continue to provide for your child, however, is to have an estate plan in place to ensure they have the legal, financial, and other support they need both now and in the future when you are no longer able to advocate on their behalf.

What An Estate Plan Includes

Estate planning is not contingent on having a substantial amount of wealth and is not limited to distribution of your assets alone. Rather, estate planning is the process of organizing both your financial and personal affairs to ensure that your final wishes are honored and your loved ones are taken care of after you are gone. For families, estate plans can allow you to assign insurance beneficiaries, plan for funeral expenses, and establish guardianship for living dependents, which is vital if you have young children or children with special needs who might never be in a position to effectively manage an inheritance on their own.

Special Needs Trust

If you are the parent of a special needs child, you must balance giving your child a portion of your estate with ensuring that those finances do not negatively impact your child’s eligibility to receive needs-based public benefits like Medicaid, Social Security Income, or the Supplemental Nutrition Assistance Program. Many of these benefits are only available to low-income individuals with limited assets, so leaving a lump sum of money as an inheritance to your special needs child might not be in their best interest. Instead, you should consider setting up a special needs trust (SNT), which allows you to leave the property and other assets to your child without disqualifying them from government-funded benefits. Setting up an SNT has the added benefit of allowing your loved one to receive assets from other people, including family members, as well.

If you choose to set up an SNT, you must also appoint a trustee to manage the funds on your child’s behalf. Your trustee will use the funds to support your special needs child’s quality of life, paying for anything he or she might require in the future, which could include, among other things:

Food
Transportation
Rehabilitation
Clothing
Medical care
Entertainment
Vacations
Hobbies

It is important to include specific instructions in your SNT documents about how you want your appointed trustee to distribute the funds to properly care for and support your child.

Are You the Parent of a Child with Special Needs? We Can Help Protect Their Future.

The best time to begin estate planning, especially if you have a special needs child you want to provide for, is now. Although it can be uncomfortable to consider the inevitable, developing an estate plan can help ease your mind that your wishes will be carried out, and that your family will be protected in the future. Navigating all the different components of a comprehensive estate plan can be daunting, but the estate planning attorneys at Lonich Patton Ehrlich Policastri Law can help guide you every step of the way. In fact, our attorneys have particular expertise and experience in developing special needs trusts. Call us today at 408-553-0801 to schedule your free consultation.

What Rights Does a Biological Father Have in California?

November 8, 2022/in Family Law /by Gina Policastri

In California, the legal rights of a biological father depend on his relationship to the child’s mother. When a child is born to a couple who are married or in a domestic partnership, the father is automatically considered the child’s legal father.

However, the situation becomes more complicated if the couple is unwed. While the biological mother is automatically listed on the birth certificate, the father’s legal rights depend on establishing legal paternity.

How to Establish Paternity if You Are the Biological Father

There are a few ways to establish paternity in California if you are the biological father.

The first way is to voluntarily establish paternity with the child’s mother. You can do this by signing a declaration of paternity or by filing a Notice of Acknowledgment of Paternity with the California Department of Child Support Services.

The second way to establish paternity is through the courts. This can be done by filing a Petition to Establish Parental Relationship or requesting an Order for Genetic Testing.

Finally, paternity may also be established through the California Department of Social Services if the child is receiving public assistance.

In California, the biological father of a child has certain legal responsibilities. First and foremost, he is responsible for providing financial support for his child. This support can take the form of regular payments, which the court typically sets based on the father’s income and the needs of the child. The father may also be required to provide health insurance for the child and cover other expenses such as childcare or extracurricular activities.

He is also obligated to provide a safe and stable home environment, to ensure that the child has access to adequate medical care, and to provide for the child’s education. Furthermore, the father is expected to take an active role in parenting his child, including spending time with the child on a regular basis and being involved in decision-making.

A father can also petition the court for custody and visitation rights. The father has the right to request joint or sole custody of his child. The court will consider a number of factors in making its decision, including the child’s relationship with the father, the child’s wishes, and the impact of visitation on the child’s safety and well-being. The court will decide based on what is in the child’s best interests. In some cases, this may mean that the father is granted visitation rights rather than full custody.

Know Your Rights

As a biological father in California, you have several legal rights that are important to understand. But, the legal system may be difficult to navigate on your own. If you need help establishing paternity or understanding your responsibilities and obligations, Lonich Patton Ehrlich Policastri can help. Contact us for a free consultation. Our team of experienced family law attorneys can review your case and answer any questions you may have. If you live in San Jose or the greater Bay Area, fill out our contact form or call us at 408-553-0801.

November 2022 LPEP Spotlight: Gretchen Z. Boger

November 1, 2022/in 2022, Spotlight /by Lonich Patton Ehrlich Policastri