The idea that you and your spouse may no longer share your lives together can be devastating and it is common for people to get lost in the emotional toll and legal confusion. When the time is right, however, it is wise to educate yourself on your available options for your next steps with your spouse.
Though the terms legal separation and divorce are often used interchangeably in California, they have distinguishing features. Before pursuing one option, it may be beneficial to understand the difference between legal separation and divorce.
Legal Separation vs. Divorce
Both legal separation and divorce refer to a legal process that arranges the division of property, child custody, visitation rights, and a schedule of alimony payments (when applicable).
A divorce is a firm legal division that legally ends the marriage. People who choose divorce over legal separation are often either hoping to become remarried in the future, hoping to dissolve nearly all financial and legal obligations between the spouses, or see no legal benefit of maintaining their marriage
Though divorce is more common, there are benefits of maintaining a legal separation. With a separation, the spouses’ property and financial assets are still divided, however, the spouses often live separately. The key difference is that spouses who legally separate are still considered legally married and can benefit financially if they so desire.
People who seek legal separation often do so because:
- The spouses are having significant difficulties but want the option to work on their marriage in the future
- The spouses have not fulfilled the six-month time period that spouses must meet in the state of California before filing for divorce
- The spouses do not believe in divorce due to religious or spiritual reasons
- One spouse receives health or social security benefits that they wish to continue to share with the other
- The spouses want to maintain the tax savings of a married couple
- The spouses feel that a separation is less devastating and easier to handle than a divorce
Please keep in mind that certain benefits are not valid after legal separation and it often requires the scrutiny of an experienced lawyer to assess whether the benefits may be shared in a separation.
Often people who undergo a legal separation falsely believe that it is unnecessary to invest in an experienced family law attorney. This mistake can have a devastating financial effect on one spouse if the other spouse hires an aggressive and experienced family law attorney.
The Bottom Line
Though legal separation may appear to be a less complicated process than a divorce, the three most contested issues in a divorce — the separation of assets, child custody and visitation rights, and the schedule of alimony payments — are still all present with legal separation.
Before pursuing a divorce or legal separation, it is advised to speak with an experienced separation and divorce attorney in your area. Lonich Patton Ehrlich Policastri offers free 30-minute consultations for people wishing to educate themselves in family law practice or who have questions regarding their unique situation.
No matter which option you choose, it is important for you to invest in a qualified and reputable family law attorney in San Jose County. LPEP is one of the largest family law firms in the Bay Area, with more than 100 years of combined experience. Set up a free virtual consultation here.
Harassment is a form of abuse that no person should have to endure. It can affect your mood, work performance, sleep schedule and overall well-being which may lead to more issues down the road. This is why it’s best to take the steps of dealing with harassment seriously by hiring a harassment lawyer. Lonich Patton Ehrlich Policastri can better inform you of what harassment is, how their harassment lawyers can help, and what you can do to protect yourself from harassment and domestic violence in the Bay Area.
What Qualifies as Harassment?
Unfortunately, harassment in cases of domestic violence comes in many different forms and is not uncommon. Overall, this type of harassment includes verbal (in person or multimedia communication) or physical actions that create an offensive, hostile, and/or uncomfortable environment for the victim. Sexual harassment includes unwelcome verbal comments or physical actions that are of a sexual nature.
Typically, to be treated as harassment, the action(s) must happen more than once. There are exceptions to this in cases of extreme acts of harassment, aggression, abuse, etc.
Lonich Patton Ehrlich Policastri deals specifically with harassment in regards to domestic violence cases. If you are being harassed and abused by someone close to you, help is available.
35.6% of women and 28.5% of men in the United States have experienced abuse or harassment in some form by an intimate partner in their lifetime. That’s over 1 in 3 women and more than 1 in 4 men (National Domestic Violence Hotline).
If you’re suffering from domestic abuse and harassment, or if you feel unsafe, there are steps you can take.
Meeting with a harassment lawyer is a good idea if you are unsure of what actions to take. Until then, be sure to keep documentation of any occurrences related to the harassment and any information that could be of use later on.
If possible, reach out to someone you can trust. Attempt to find witnesses who will support you and back you up.
Keep records of every important detail regarding your situation in case you need it later. Reach out for assistance if at all necessary, to ensure you are doing the best for yourself.
You may want to consider getting a restraining order for your personal safety and the safety of your children if you have them.
What Harassment Lawyers Can Do for You
Seeking out a lawyer before reporting your harassment may be best for you if there are chances of retaliation from your harasser, or if you are unsure of how to properly report the harassment or domestic violence. There is nothing wrong with contacting a harassment lawyer just to be safe. Domestic violence is a delicate matter that requires knowledgeable and responsible guidance.
Harassment lawyers can help you decide and go through the necessary steps of reporting harassment or abuse following your area’s laws. Helping with descriptive statements and documentation can come as a great help in case nerves or fear set in while attempting to recall events later on.
A lawyer can also help you set up a restraining order with the local authorities. They can work with you to gather evidence proving your claims, and can help develop the stipulations under which you want the restraining order to function and protect you.
In addition to this, harassment lawyers will monitor the behavior regarding your harasser and their responses to the report. A lawyer can aid in ensuring your safety, as well as the accuracy of all legal statements along the way to bring you the best outcome possible.
Luckily, harassment and domestic violence is taken seriously in the Bay Area and surrounding cities, and LPEP is well equipped to dealing with these situations.
The lawyers at Lonich Patton Ehrlich Policastri are here to help those in the Bay Area get the assistance and safety they deserve. Reach out today if you need direction or legal assistance in regards to workplace harassment. We are discreet.
Are you and your spouse considering divorce? It’s a tricky subject and often, a point of contention. Taking the necessary steps to ensure you’re prepared can make all the difference. Hiring a divorce lawyer to help you with divorce planning is recommended for a myriad of reasons; one being that it can prevent a nasty trial in some cases.
Our San Jose divorce lawyers explain what you need to know to prepare for your divorce.
What Is Divorce Planning?
Divorce planning is done by a spouse with the help of a divorce lawyer. In the time leading up to actually requesting a divorce from your spouse, you will work with an attorney to plan out where you are currently and where you want to be after your divorce.
Divorce planning covers all areas of your life from your living situation to child custody. The end goal is to make your divorce as smooth as possible and to result in a favorable outcome for you.
What Areas Should You And Your Divorce Attorney Consider?
- How to tell your spouse – One of the most rattling parts of divorce is deciding how to broach the subject with your spouse. It can be intimidating and often very emotional. An experienced divorce lawyer can work with you to anticipate how your spouse is likely to react to the news, and how best to approach the subject with them for an efficient, logical conversation.
You may also need to plan how to tell your children about the divorce. This is something you can plan ahead of time and then collaborate on with your spouse after you’ve informed them of your decision.
- Where you will live – As a couple, you most likely have acquired property together. At the very least, you are on a lease together. You will need to create a plan with your attorney for where you will live. You can do this by planning out a budget to ensure you can afford new living situations. You will also have to consider where your children will live during the divorce if you have children with your spouse.
- Spousal Support – If you are the breadwinner or the sole earner of your household, be prepared for the financial responsibility you have towards your spouse. You may be required by court to pay spousal support during the divorce proceedings. If you are the non-earning spouse, don’t expect spousal support. It is not guaranteed. It is best to consider getting a job. A divorce lawyer can help inform you of your options, whether you’re the primary earner or the non-earner in your relationship.
- What about the children? – If you have children, there is a lot of planning to be done in this area. For instance, where will they live? Will you and your spouse share custody or do you plan to fight for sole custody? If you’re the primary earner, you will probably have to pay child support. You will need to work with a divorce lawyer to plan for the specifics of this future expense. If you are the non-earner, will you be requesting child support? If you and your spouse live in different districts, where will the children attend school, and how will the custody schedule work around that schedule?
- Paperwork – An experienced attorney can inform you of all the paperwork and documents you will need to file for divorce. They can also guide you through the filing process such as where to file and what the laws are regarding divorce.
Having an experienced divorce lawyer to help you with divorce planning is crucial. They can keep you informed and position you for the best possible outcome for your divorce. Whatever your position in the marriage, Lonich Patton Ehrlich Policastri is prepared to help you. Get strong representation to help you with your plan. Set up a free planning consultation today.
The idea that you will not be around forever is never an easy truth to face, and knowing that you will leave behind loved ones makes it even more challenging.
In order to make the situation easier for your loved ones, it is essential that you take the appropriate actions to guarantee that you will leave them with their intended assets.
The most important thing that you can do to ensure that your property is handled appropriately is to create a last will. A will is a legal document that dictates who will receive your property, names guardians for your children, and even allows you to specify funeral arrangements.
Steps to Creating a Last Will
1. Do Your Research
The most important step in setting up your last will is to conduct research and do your due diligence to ensure that the appropriate legal measures are taken. These specific processes vary by state, thus it is highly recommended to conduct this process with the assistance of a qualified and reputable lawyer.
2. Aggregate Your Assets
When setting up your last will, it is imperative that you create an organized list that includes all your real estate, bank accounts, insurance policies, and retirement accounts. Make sure that all of the account numbers, answers to security questions, and any other necessary information is included.
3. Choose Your Executor
An executor of the will is the person legally responsible for ensuring that all specifications of your will are carried out, your assets are appropriately distributed, and that your financial assets are resolved.
It is highly recommended that this person receives part of your assets since they bear the responsibility of executing your will.
4. Choose Your Beneficiaries
Your beneficiaries are the people who will receive your assets upon your passing. It is important that you are specific with naming the people and stating the amounts that they will receive.
5. Name Guardians for Your Children
If you have children under the age of 18, it is recommended to make a list of at least three guardians (in order of preference) for your children if you pass away. This ensures that there are people of your choosing who will take care of your children if the first choice is unable to do so. If you have the means, it is wise to leave the guardians with financial assistance by naming them as beneficiaries as well.
6. Select a Witness to Sign Your Last Will
You must have a witness sign your will who is not a beneficiary. The number of witnesses involved and the formalities of signing vary by state. It is important that the specifications are carried through exactly as mandated or else your will may not hold up during probate
7. Keep Your Will In a Safe Location
Once your last will has been lawfully created, it is important to keep it in a safe, secure, and accessible location. It is also wise to inform a trusted person, perhaps your executor, of its locations.
Updating Your Last Will
You should always update your will after the event of a significant life event regarding:
- A marriage or divorce
- An acquisition of new property
- The birth of a child
- The death of a spouse
- The sale or purchase of a business
The Bottom Line
If your estate is particularly large, you have joint custody of a property, you own a business, you own property abroad, or if you think someone may question the validity of your will then it is especially important to hire a lawyer for your last will.
Lonich Patton Ehrlich Policastri in San Jose is a reputable law firm whose lawyers make it their priority to protect your assets from an extensive probate process.
If you are living in San Jose and want to leave a legacy for your loved ones, our attorneys will help make your intentions a reality. Set up a free consultation with us.
You may have heard of shareholder agreements but have you heard of the more specific Buy-Sell Agreement? This is a fundamental succession planning tool when it comes to owning and operating a business. It is especially helpful in the case of family businesses.
What Is A Buy-Sell Agreement?
Similar to how a will dictates how assets will be transferred in death, a buy-sell agreement is a legal document that dictates where an owner or partner’s share of a business will go in the case of certain life events (i.e. death, retirement, etc.)
Having an agreement like this in place protects the family business. It protects family assets so that everything stays in the family’s control and so that nothing can be transferred outside the family. These agreements can dictate the succession of ownership.
How It Protects Your Family Business
Often, for a myriad of reasons, one family member or partner will try to sell their share of the business. This can cause issues if they’re trying to sell their share outside of the family.Without an agreement in place, they can sell their share off legally despite their intentions. Setting up a buy-sell agreement means you can dictate how shares and assets are transferred or sold. You can create certain stipulations that prevent a family member from selling outside the family.
It can also help to have an agreement in place in case of a divorce. In California, any assets acquired during a marriage qualify as community property. This means that a spouse of the family owner can lay claim to their share of the family business. If you create a strict buy-sell document that requires the spouse to sell their share back to the company in the case of a divorce, you can prevent the share from transferring outside of the family.
The agreements are meant to be put in place in preparation of certain life events. If there is a divorce, or a retirement or a death, a plan is in place to prevent chaos. It is also great to have in place in the case of incapacitation which can include dementia or other things that prevent a person from acting in a mentally sound way or making informed choices.
Having a buy-sell agreement can assure the long term survival of a family business. Why would you not want to have that added layer of protection?
A Buy-Sell Agreement…
- Ensures shares stay in the family
- Creates a special space where shares can be bought and sold under dictated parameters
- Identifies potential future events and conditions that trigger the agreement. These will determine what happens to that share
- Determines the valuation of business shares
- Specifies the source of funding for the purchase. Where does the money that will be paid in the transfer come from?
If you own a family business or a partner in one, you should consider the benefits of having a buy-sell agreement. That extra protection can ensure the longevity of your company. Live in the greater San Jose and Bay area? Set up your free consultation with Lonich Patton Ehrlich Policastri today.
There are many reasons residents of California seek out power of attorney(POA). If you have an older parent with dementia who struggles to act on their own, POA is a way to assure decisions that need to be made are made soundly. If you are being deployed, granting someone power of attorney can allow them to act for you in necessary areas while you are away. If you own a property and reside far away from it, you can grant POA so that someone who lives closer can manage your property for you. These are just a few instances in which the power of attorney becomes valuable. Most likely, you know why you need POA. The question is, how do you get it?
What Is Power Of Attorney?
POA is a legal document through which a person (aka agent) is appointed to make medical and financial decisions on a person’s (principal’s) behalf.
This seems simple in theory, but there are several types of POA, and that’s where things get a little confusing. When you add the different laws per state, things become very murky for those seeking legal help. Lonich Patton Ehrlich Policastri, a legal firm in San Jose, CA, can help clear things up for California residents by breaking down the types of POA.
What Are The Different Versions Of Power Of Attorney?
There are a few different types of POA. To get started, you need to determine which type is right for your situation.
- Durable – This document allows you to choose someone to act for you financially and medically, and grants decision making power regardless of future incapacitation. The incapacitation addendum for this specific document means that even if the principal becomes incapacitated, the document will remain valid.
An alternate version of this is the Springing POA in which the document only becomes active when the person becomes incapacitated.
- General – This is known as the financial power of attorney as it grants no power over medical decision making. This also differs from the durable POA because it has no incapacitation addendum. This means if the principal becomes incapacitated, the document will become void. This document is effective immediately.
- Limited – This document allows you to choose someone to act in your place for a specific or single duty. Once the duty is complete, the form becomes void. An example of this would be for a real estate transaction that is taking place. POA is only needed on a temporary basis for a very narrow and specific instance.
- Medical – This is also known as a Health Care POA. This grants decision making power for all medical reasons. It also has an incapacitation addendum. It only grants power if the principal is unable to make decisions for themself.
What Happens Next?
So, you’ve determined which document you need. What’s next? There are a couple of legal requirements to complete a power of attorney.
The agent must be 18 years old at least and mentally sound. They should also be someone you trust and can rely on to act in your best interests.
Many people wonder if the document needs to be notarized or witnessed. Based on California law, it can be either.
You can notarize a document for little cost. Some USPS locations now have notaries onsite. While it isn’t required, it is recommended to have real estate matters notarized for solid records.
Having a document witnessed can be a little more intricate. You must have 2 independent witnesses that are adults and mentally sound. The named agent of the POA cannot be a witness. For medical POAs, a healthcare provider or employee of the healthcare provider cannot be a witness either. Once you have your two witnesses, you must sign the document in the presence of the witnesses or you must go through a process known as acknowledgment. This can be as simple as signing the document and calling the witnesses over to say “I signed this. This is my signature.”
If you live in the greater Bay area, such as San Jose, and are in need of legal advice on POA, contact Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations and can help you choose the right document for your situation. Set up your consultation here.
There are a lot of responsibilities when it comes to being a trust administrator. Most likely, if you’ve found yourself in this position, you didn’t know much – if anything – about trust administration beforehand. That can leave you with a lot of questions. The lawyers at Lonich Patton Ehrlich Policastri can shed light on your responsibilities and guide you through the administration process.
To start with, what does a trust administrator do?
Trust administrators have a huge responsibility and little room for mistakes. This can be overwhelming. It’s good to know what kinds of duties you will be responsible for going into the process.
- Valuation Of Assets One of the administrator’s fiduciary duties is to assess the assets in the trust and value them. Valuation allows one to determine the total worth of the trust.
- Deducting Liabilities Once the assets worth has been determined, it is the trust administrator job to deduct all liabilities from the total worth. Liabilities include all costs and expenses of the trust.
- Record Keeping The administrator must keep track of the trust funds, taxes paid, and all correspondence. These records must be completely transparent as beneficiaries can view them at any point, but most commonly every six months or on an annual basis.
- Filing Income Tax Returns The admin is required to file income tax returns yearly for the trust. This is because trust assets are not able to be distributed tax free. However, there can be deductions. Any taxes due are paid directly out of the trust. Go here for some tips on fiduciary tax returns.
- Maintaining And Monitoring Assets It is the duty of the admin to maintain the value of the trust and the assets within it. You need to keep track of spending and costs to try and maintain the worth of the trust over time. This requires you to keep track of and audit any change within the trust. This ties back into record keeping.
- Updating/Informing Beneficiaries Beneficiaries must be informed of the trust and updated on the status of the trust over time. The administrator must share trust expenses among other things with all beneficiaries after the initial notice that the trust exists and they are named a beneficiary.
- Safeguarding Interests This means it is the admin’s job to protect the assets against unauthorized spending or use. What is needed to safeguard an asset varies case to case. An experienced attorney can help you determine what’s right for your situation and how to best protect assets. Contact Lonich Patton Ehrlich Policastri for a free 30 minute consultation on trust administration.
Along with their fiduciary duties, trust administrators are also expected to operate under certain principles.
- Good Faith This means that the administrator must be honest, open and transparent in the way they manage the trust and in the ways they benefit from it. This is incredibly important as the beneficiaries have the right to sue the trust administrator if they fail to act in good faith.
- Prudence/Fairness This requires that the administrator operates under these two principles. Fairness ensures the admin avoids playing favoritism amongst the beneficiaries. Prudence requires that the admin does not make risky investments with the trust which also has a hand in safeguarding the assets.
If you’ve been named a trust administrator, it’s normal to feel overwhelmed. There is so much information and it is a huge responsibility. Reaching out to an experienced estate planning lawyer can set you on the right path and prepare you for the duties ahead. Contact Lonich Patton Ehrlich Policastri for a free consultation.
As the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you. The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.
What Is A Revocable Living Trust?
So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves.
Why Set Up A Living Trust?
In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.
Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money.
If you live in San Jose or the greater Bay area, set up a free consultation with our estate planning attorneys to learn about living trusts.
How To Set Up A Revocable Trust?
There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass.
For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death.
After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate.
Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.
Live in San Jose or close by? Contact Lonich Patton Ehrlich Policastri to find out if a revocable living trust is right for you.
It’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect.
When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.
Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for.
Temporary Spousal Support
The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments.
This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.
While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker.
The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis.
Get In Contact
If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well.
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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.