Blog
Free 30-Minute Family Law or Estate Planning Consultation
LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, especially San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.
DISCLAIMER
This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.
What Is Divorce Mediation And Is It Right For You?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriWhat if it was possible to get a divorce without going to court? If you could end your marriage without all the hurt feelings and animosity, would you? Divorce mediation provides the opportunity to dissolve a marriage without putting children in the middle of a conflict, and without terminating a good relationship between both parties. It provides the means to co-parent successfully with your ex while both of your personal interests are looked after. What is divorce mediation though, and is it right for you?
What Is Divorce Mediation?
When people think of divorce, they imagine hostile court hearings and expensive legal fees. Divorce mediation is an option two parties can choose that is cost-efficient and less conflict-oriented. In this method, two parties hire an impartial third party to negotiate an agreement between them. In this mediation, the mediator will walk you through a series of complex issues, taking both of your interests into account, and will help you agree on a settlement. Mediation aims to reach an agreement that satisfies both parties’ needs and wants, maintains an amicable or neutral relationship between the exes, and avoids the expensive legal fees from divorce litigation. Mediation is also popular because of the privacy it provides. There are no public records of what goes on in mediation sessions.
People tend to favor mediation because it gives them more control over their divorce and how different matters are handled. Some of the matters a mediator will help you with include:
Divorce mediation also helps with overall communication between a couple. If a couple is getting a divorce, it’s common that their communication methods are strained and ineffective. Having a divorce mediation lawyer trained in mediation and communication can vastly improve communication between two parties. Sometimes you just need a neutral third party to see things fairly.
When Mediation Isn’t Right For You
There are many instances in which mediation is a great decision. However, there are also plenty of circumstances in which mediation is not an option. One of the most common instances where mediation is not recommended is in the case of domestic violence. Because of the nature of the relationship between a domestic violence victim and an abuser, there is a heightened risk of tension turning violent. There’s also an increased risk that the abuser will intimidate the victim or threaten them, and they will agree to terms that aren’t actually equatable.
If one party does not want to get divorced, mediation may not be an option. Mediation relies on both parties being open and willing to communicate and separate. If one party is resistant or unwilling to do this, mediation isn’t an option.
If you have questions on whether divorce mediation is right for you, you can contact an experienced attorney at Lonich Patton Ehrlich Policastri. We’re located in San Jose, CA, and serve surrounding areas. Our lawyers are trained in mediation and collaborative divorce and can help you through this difficult time as easily as possible. We offer free 30 minute consultations, in person and virtually. Set yours up here.
How To Make A Temporary Restraining Order Permanent
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriDomestic violence restraining orders are incredibly helpful when you find yourself in a dangerous and abusive situation with some close to you. The court will grant these orders to you after an evaluation of the events leading up to you asking for a DVRO. There are various kinds of restraining orders – Emergency protective orders(EPO), temporary restraining orders(TRO), permanent restraining orders(PRO), and stay away orders. If you’ve already been granted a temporary restraining order, and are afraid for when it ends, how can you make it a permanent restraining order?
What is a Permanent Restraining Order?
A permanent restraining order is the strictest order in the state of California. Judges hand these out cautiously, and at their discretion. The circumstances which warrant a permanent order are usually severe, making acquiring one more challenging for victims. Don’t let this discourage you from seeking help. An experienced DVRO attorney can help you get the protection you need.
While a permanent restraining order isn’t actually permanent, it does last significantly longer than a temporary restraining order which spans 20-25 days on average. The span of a TRO depends on when your court date is scheduled. In California, a permanent RO can last up to 5 years. At that point, you can file for a new PRO with the courts to maintain protection.
Not only do PROs last longer, but they also have more severe consequences if the order is breached. A person who violates a PRO can be charged for each individual instance that they violated the order. So, if they violated the order 3 times, they can be charged with 3 separate counts. Violations can warrant penalties and fines, probation, and jail time.
During a permanent restraining order, both parties are prohibited from contacting one another for the duration of the order, even if the victim no longer wants the order. This means that the abuser can still be penalized if they communicate with the victim, even if they were not the one who initiated contact.
How To Make A TRO Permanent
After a judge has issued a temporary restraining order, a court date will be set by a judge. The victim will be protected until their court hearing (approximately 25 days). At this hearing, the victim and the accused abuser will both have a chance to present their case for why a PRO should or should not be granted. This is why having legal representation is so important. The victim will need to make a strong case for why a permanent restraining order should be put in place, as judges are very particular about granting these long term orders. If the victim does not show up to court, the temporary restraining order and its protection will end. If the accused does not show up, they will not be allowed to make a case against a PRO. The judge will make their decision without the input of the accused party. If the judge decides to put a PRO in place, they will determine the length of the order, having it last as long as 5 years.
If children are involved, you may file a restraining order on behalf of the child, or, if they are 12 years or older, they can file a RO themselves. Because of the nature of domestic violence in the case of children, PRO cases can often involve rulings on child custody and support.
If you need help in presenting your case for a permanent restraining order to the courts, or need help acquiring additional child custody orders in regards to PROs, get in touch with our San Jose restraining order attorneys. We have over 100 years of collective experience handling family law cases like TROs and PROs. Set up a free 30 minute consultation here. We also offer virtual consultations in light of COVID-19.
What’s the Difference In Collaborative Divorce vs Mediation?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriDespite the dramatization of divorce, it doesn’t always have to be a messy, contentious process. Often, couples who are in agreement that a divorce is in the best interests of both parties can finalize the divorce agreement without a long trial. If you and your spouse both agree to negotiate a fair and equitable settlement, then learn about collaborative divorce vs mediation. One may be the best path for you. It will cost significantly less — as divorce litigation can result in a much more expensive divorce. It will also help you and your spouse avoid a long and stressful litigation process.
Who Collaborative Divorce vs Mediation Will Benefit
For some couples, the formal court litigation process is necessary. Collaborative divorce and mediation work best for the following types of spousal situations:
Before deciding between collaborative divorce vs mediation, it is important to understand what both options can mean for your divorce settlement.
What is Collaborative Divorce?
Collaborative divorce is the process of negotiating a divorce settlement in a four-way conversation with both spouses and their collaborative mediation attorney.
Many people chose collaborative divorce because it may save them from going to court, but still requires qualified collaborative divorce lawyers to represent their interests. Oftentimes, collaborative divorce requires a third-party accountant and a child custody specialist so that they may determine an equitable division of property and a child custody arrangement that is in the children’s best interest.
Once the spouses and their attorneys reach an agreement, the details are presented to a judge in a trial setting, in which the judge quickly reviews and typically approves the divorce settlement. Since the spouses reached an agreement before the court hearing, the process is usually shorter and less stressful than typical divorce litigation.
What is Divorce Mediation?
Divorce mediation is the division of property that is facilitated by a divorce mediation specialist.
The divorce mediation specialist does not need to be a qualified divorce attorney, however, couples with high-asset-net-worth are advised to hire a divorce mediation lawyer.
In this scenario, the mediator speaks to both spouses to obtain background information. Next, the mediator meets with both spouses and goes through the formal mediation process in which both couples share their perspectives and interests. The mediator’s goal is to allow both parties to express their interests and create an equitable compromise. The mediator also ensures that one spouse does not overpower the other spouse during the mediation process.
Although an independent divorce attorney is unnecessary in mediation, some spouses wish to have an attorney who they can speak to after the mediation meetings. Additionally, some spouses feel that they are unable to promote their interests on their own and bring their personal attorney to the mediation meetings. If your spouse brings their attorney, it is highly recommended that you do so as well.
How to Determine If Collaborative Divorce vs Mediation Is Right for You
If you are still uncertain if you and your spouse should choose the collaborative divorce or mediation process, then it is recommended to speak with a qualified divorce attorney.
LPEP is a reputable law firm in San Jose specializing in high-net-worth divorce proceedings. Contact our office today for a 30-minute free consultation so that we can advise you on how to protect your interests without a stressful trial.
What Is Collaborative Divorce?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriDivorce doesn’t always have to be ugly. If you’re going through a divorce or considering one, you probably share the fear of angry confrontations and animosity that divorce brings with many other couples. While mediation can be a good option for couples who want to minimize the negative effects of a divorce and handle the settlement on their own, it isn’t for everyone. Mediation can even negatively impact one of the spouses as it does not rely on the fair assessment of a lawyer for help. Collaborative divorce is an ideal option for couples who want to maintain some sort of relationship, and effectively and fairly divorce with the help of legal counsel. What is collaborative divorce and how does it work?
What Is Collaborative Divorce?
Collaborative divorce is when both parties seeking a divorce acquire individual representation. Then, through a series of 4 way meetings, the couple and their attorneys will work together to reach a fair and amicable settlement. Collaborative divorce is for couples who wish to avoid going to court or avoid building any extraneous animosity between them. The end goal is to have both parties happy with the settlement, rather than one happy and one unhappy.
The Job of Your Divorce Attorney
Collaborative divorce attorneys have specific job responsibilities they must follow to help their clients. They must be trained in negotiations and conflict resolution. They serve to advocate for their clients, maintain level-headedness, and reach a fair agreement. It is in the best interest of the attorney to help their client reach an agreement through collaborative divorce. Otherwise, if an agreement is not reached, the attorney or the attorney’s firm cannot represent the client in court. If you hire a collaborative attorney, and you withhold or pass false information to them, the attorney is required by law to inform your spouse and their representation and to remove themselves from the case. It is in your best interest to remain honest and forthcoming with your attorney, as they are there to represent and help you.
Many people appreciate the collaborative process as it can utilize the help of outside parties such as mental health professionals (among others). Your attorney or your spouse’s attorney have the ability to bring in an outside authority if they feel it will help the process of reaching an agreement. Both parties will be fully aware of the outside party’s presence and their intentions before entering the meeting. This is so both parties can prepare with their attorneys, and this goes for every meeting, not just the ones with an outside authority. As an agreement is reached, it is the responsibility of the collaborative divorce attorney to draft the settlement into a legally binding document. For an agreement to be reached, both parties must agree on all consecutive issues. There has to be unanimous agreement on each issue for a settlement to be reached in collaborative divorce.
If you are willing to negotiate with your partner, want to maintain a good relationship, and want to save money, a collaborative divorce may be the right option for you. Our experienced attorneys are skilled in the art of negotiation and conflict resolution. We want to help you and your soon-to-be ex spouse resolve your differences and come to an agreement that is best for both of your interests. Set up a free 30 minute consultation to discuss your options. Set yours up here.
What Is A Postnuptial Agreement?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriMost people understand what a prenup is, but what is a postnuptial agreement? This is an agreement many couples entering into marriage may not know about, but they should. How can a postnuptial agreement help you and your partner?
What Is A Postnuptial Agreement?
A postnuptial agreement is very similar to a prenuptial agreement. The main difference is that the agreement is entered into after marriage as opposed to before. Just like a prenuptial agreement, a postnup is there to help dictate how assets and real estate will be divided in the case of a divorce. Postnuptial agreements can also help protect one spouse from the other spouse’s debts. While a postnup is most closely associated with infidelity and marital issues, it can be a very beneficial tool for a successful marriage.
How Can A Postnuptial Agreement Help You?
There are many ways that a postnup can help you and your spouse, and protect your interests. In California, property acquired during the marriage is presumed to be community property in a divorce. Community property means that both spouses own the property and assets equally, and they will be equally divided in court. Many California couples choose to create a postnup to avoid this equal division and to instead have assets divided as they wish. What are some examples of a postnup being beneficial?
Affairs & Infidelity
This is probably the most recognized reason for acquiring a postnup. If two parties enter into a marriage trusting one another, and post-marriage that trust is broken, many couples turn towards a postnuptial agreement for help. The potential for the marriage to not work out comes to the forefront of the couple’s mind, and they are forced to think about what the dissolution of their marriage might look like. This causes people to create a postnup to protect their assets and interests and hopefully support restoring trust.
Excessive Arguments & Turmoil
Similarly to an affair, excessive arguments can cause couples to reevaluate the security of their marriage. When couples have a lot of animosity between them, they act impulsively and in anger, and can do things that they may later regret. This is why divorces turn ugly so often. For a couple who recognizes the signs of a marriage going downhill and worry about things getting back on track, setting up a postnup to protect against negative decisions made in anger is a smart decision.
Business Owners
For a spouse or spouses who start a business after they become married, setting up a postnuptial agreement can protect both parties in the case of dissolution of the marriage. A postnup can also protect parties who owned a business prior to getting married. A postnup can protect spouses from debts acquired from a failing business. It can also protect future earnings from being equally distributed between both spouses when one spouse does all the work and solely owns the business.
Inheritance
If one spouse acquires a large inheritance and wants to protect this amount in the case of a divorce, a postnup is a smart decision. It can also protect the inheritance if the spouse invests it into a family business or personal business.
Children & Property Prior to Marriage
If one spouse owns property pre-marriage or has children from a previous marriage that they need to provide for, a postnuptial can protect against an ugly divorce and can maintain one’s assets and real estate.
Debts
If a spouse enters into a marriage with a lot of debt, or if they acquire debt post-marriage, one spouse may want to set up a postnup to protect themselves from being held responsible for a debt they had nothing to do with.
Postnups can be incredibly effective when protecting oneself from an ugly divorce, or from the community property law in California. If you and your spouse are interested in setting up a postnuptial agreement, get in touch with one of our experienced attorneys. Couples seeking a postnup can use the same legal counsel as opposed to a prenup where separate counsel for each party is required. Set up a free 30-minute consultation here to begin setting up your postnuptial today.