It used to be that a mother was seen as the primary caregiver of a child. This led to custody often being awarded to mothers over fathers. Things have changed and the courts realize that fathers have a substantial effect on a child’s life. Fathers rights are legitimate and you’re just as likely to gain custody as the mother – barring certain circumstances.
Determining Custody
Child custody in California is determined by the best interest of the child. This is a standard used in San Jose and the rest of California to maintain equality in custody cases. This means that the court will determine which parent has the best interest of the child in mind and will provide the best environment for the child.
As a father, you have the right to seek custody of your child. You and the mother both have the right to request visitation rights. Both parties are viewed as equal by the courts. Just like in any child custody case, there are a few things that could prevent you from gaining visitation rights or custody of your kids.
If there is evidence of child abuse, domestic abuse, drug abuse, or addiction by either party, this will impact child custody.
The courts make it a priority to keep both parents as involved in their kids’ lives as possible. This is because, in San Jose, the courts believe children benefit from a healthy loving relationship with both parents.
As a father, if you have a better relationship with your child and are better able to care for them, the courts are likely to award you custody. This is all based on case to case, however.
Paternity And Custody
To be eligible for child custody, a male must prove (or have done so previously) parentage or paternity. In San Jose, these terms are used synonymously.
Paternity can be established in a variety of ways.
VDP – This is a voluntary declaration of paternity. It is used when a child is born in a medical setting and both parents or parties acknowledge each other as the legal parents through signing this form. This adds the father as the rightful parent on the birth certificate alongside the mother.
Paternity/ Parentage Action – A paternity test can be ordered by multiple parties to determine parentage. A potential father seeking to legitimize his claim or a mother using the services of the child support agency are a couple examples.
In some cases, paternity may have already been established. A child born in marriage is considered to be the child of both married parties. If the parents are unmarried but are living together in a familial situation, the male is considered the child’s father. This is, of course, if he has taken on a parental role with the child despite not being the biological father in some cases.
Fathers Rights And Child Support
To be determined as the primary caregiver and custodian of a child means that child will live with you. You are responsible for housing and caring for the child the majority of the time, and can determine where they live. The other parent may be granted visitation rights, barring any circumstances mentioned above that jeopardize the safety of the child.
As the primary custodian, you have the right to request child support from the other party. This is a sum paid monthly that helps with the costs of raising your child.
https://www.lpeplaw.com/wp-content/uploads/2019/01/Father-3-Kids.jpg15362304Lonich Patton Ehrlich Policastrihttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngLonich Patton Ehrlich Policastri2019-10-05 19:48:262019-10-05 19:48:28What Are Fathers Rights In Child Custody?
Custody is an in depth subject with plenty of nuance. It can be complicated to know where to begin. If you’re in the middle of a dispute over child custody or you’re simply wondering how to navigate this with your ex partner, these questions will get you started.
1. What is the definition of child custody and the difference between sole and shared custody?
Child custody regards the legal relationship between a parent or guardian and a child. There are two types of custody – physical custody(responsibility to house and take care of the child) and legal custody(the right to make decisions regarding the child).
Shared custody, also known as joint custody, is where both parents have the right to care for and make decisions regarding the kids. If there are differences between the two parents that cannot be resolved on certain issues of raising their kids, one parent or an appointed social worker must have the final word or power of decision.
Sole custody means one parent has full authority over custody of a child. They make the final decisions on how to raise and care for the child. The other parent has a right to voice their opinion but the parent with sole custody decides the final result.
2. What is the difference between arbitration and mediation in a Child Custody matter?
Arbitration and mediation share many similarities. They both involve a neutral third party such as an impartial judge or counselor or lawyer.
In arbitration, the impartial third party sits down with the two parties in a custody case. Both parties submit evidence and documents to the arbitrator to prove their case. The arbitrator will then make a legally binding decision based on what has been submitted. While this decision can be appealed, it is very difficult. You must prove the third party was non neutral.
Mediation is a favored way to avoid court based litigation. A neutral third party will guide the two parties towards settlement of issues in an amicable fashion. This is different from arbitration as any decisions reached are non binding.
Lonich Patton Ehrlich Policastri helps people in San Jose and Santa Clara avoid litigation through arbitration and mediation. If you need help with custody, contact them for a free 30 minute consultation.
3. In the state of California, is one parent more likely to be granted sole custody than the other?
While, in the past, it was common for mothers to receive custody over fathers, things have changed. In areas such as San Jose and Santa Clara, CA, both parents are considered equally in custody cases. Barring any drug problems or domestic violence and abuse, sole custody could be awarded to either party based on the best interest of the child. The rare exception is if a child is particularly young and would best be served living with one party.
4. In the State of California, how is child custody determined?
In California, custody is not biased towards the sex of a parent. Custody is determined based on the standards of the best interest of the child. This includes the health and safety of kids and ideally a continuing relationship with both parents.
Courts tend to favor the parent who is able to put personal issues in the relationship aside. This means they are able to maintain amicable contact with their ex for the sake of the child.
Gender, race, religion, sexual orientation, handicap or financial status does not impact the decision of custody. The law in California tries to make the process as fair and equal as possible.
5. How does child custody differ for married parents versus unmarried parents?
Regardless of whether a child is born out of wedlock, child custody decisions are all made on the same principle – the best interest of the child. However, there is an important distinction in child custody cases for married versus unmarried parents.
In cases in which a child is born out of wedlock, the mother of the child is considered the custodial parent, meaning the parent who has sole physical and legal custody. The father of a child born out of wedlock has no legal custody rights until paternity has been established or a Court Order has been established regarding custody and visitation.
In cases in which the parents of a child are married, both parents are considered legal guardians and custodial parents, unless otherwise stated by the Court. Although it is an extra step, once paternity has been established, the standard for custody determination for unmarried parents and married parents is the same.
6. What does the term “best interest of the child” mean and how do you prove what the best interest of the child is?
“Best interest of the child” is the legal standard by which most courts base decisions in child custody cases. This means that custody and visitation decisions and discussions are made by a judge based on what will best support and promote the development, well-being, and happiness of the child. There are many factors that are considered when determining the best interest of the child such as child’s age and preference, consistency, mental and physical well-being of parents, safety and parental ability. These factors may vary from state to state.
7. What is the difference between legal custody versus physical custody?
Legal custody is the right a parent has to make decisions about the child’s well-being and how they are raised. This includes decisions about schooling and medical care. It also determines if a parent has the right to get information about the child.
Physical custody is the right and responsibility to physically house and care for a party’s kids. This includes how much time a child will spend with each parent.
8. What is child support and how does it work with child custody?
Child support is financial installments paid monthly to one parent or guardian of a child in order to help with the expenses of raising and caring for said child.
Whether or not a parent owes child support is determined by a few factors. One of these factors is timeshare percentage. This is the amount of time per year one parent spends with their child. The court also considers the gross monthly income of both parents. Child support can include add ons such as medical funds that health insurance doesn’t pay for. The amount of child support you pay can be modified over time.
9. Modifications of Custody Agreements: what if there is a change in the agreement or if a move away order has been presented?
Modifications are changes to a custody agreement. These are common as circumstances change over time, affecting the original agreement put in place by a judge or parenting plan. To approve a modification, one must prove a change in circumstance with facts and evidence. Some changes in circumstances include:
Change In Job Or Income – If a parent has a new job that pays more or less, this can affect the status of the custody agreement and the amount of child support a parent owes.
Change In Age Of Children – This can affect what’s in the best interest of the child and can impact the child’s wishes. The child’s wishes, when old enough, is considered by the court and has a significant impact.
When A Parent Violates A Custody Order – If a parent violates a custody order, they can be held in contempt of court. This does not always mean a modification will be approved but can affect the outcome in certain circumstances.
If A Parent Is Imprisoned – This can affect custody due to the limitations of being in prison. Being in prison can change how much child support a parent may pay, but the parent in prison will have to submit the modification to prove this change in circumstance. If they don’t, a significant amount of child support can accrue during their sentence.
Drug Problems Or Abuse – If a child is proven to be in a dangerous situation since the original order was put in place, this is solid ground for a modification in the custody order.
Move Away Orders – Move away orders are complicated. If a parent is considering moving, they should speak to the other parent immediately. The moving parent will have to go to court and ask permission to move. A parenting plan was set in place either through the plan the parents themselves worked out or the plan a judge set up. This plan determined what was the best interest of the child and if one parent wants to move away, it has to be evaluated if that is in the child’s best interest or if it will compromise that.
It is not typically considered what is in the best interest of the parent if it negatively impacts the child. However, if a parent is moving for a new job opportunity – one that will lead to the advancement and improvement of the life of a child – that results in the happiness of the parent, a judge will consider approving the modification. A judge will also consider approving the modification if a parent has a new serious relationship and their new partner is moving for a job opportunity. Once and if you’ve moved, you will have to request the original court transfer jurisdiction to the new court in your new state. The original court that had jurisdiction over your custody case will usually maintain jurisdiction.
Another option is to have the DCSS do the mod for you. This is a very drawn out process however and isn’t for everyone.
10. Can an attorney help avoid needless litigation or other concerns during the Child Custody process?
Choosing the right family law attorney can help you avoid litigation. No one wants a difficult custody battle. It isn’t good for you or your child. By choosing an experienced, compassionate lawyer, you have a better chance of mediation or arbitration. Your attorney should be able to tell you what the likely outcome of the case will be and what you should expect based on your situation. You could also lean on a family counselor or neutral third party such as a lawyer to help you develop a parenting plan both parties agree upon. This is one way to avoid litigation and make the process of custody as smooth as possible.
If two parents create a parenting plan out of court, it is advised to have the document reviewed by a lawyer to make sure it is in the best interest of the child before signing it. If you’ve created a parenting plan out of court, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri for help reviewing the document. The court will then review the plan. Parenting plans are temporary until they are finalized by a court. A judge will consider any allegations or threats to the child’s safety before approving the plan. Once approved, the plan becomes a court order and cannot be violated.
The decision to get divorced can be a difficult one; especially if you are unsure of how you are going to financially support yourself after severing ties from your former spouse. On the other hand, you might be wondering what you may owe your spouse during and after the divorce. These questions of alimony and spousal support can be difficult and complex, so it is important to consult a knowledgeable San Jose spousal support attorney; especially the attorneys at Lonich Patton Ehrlich Policastri.
What is Spousal Support?
Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses with one spouse making substantially more than the other. Spousal support, also sometimes referred to as “alimony,” seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.
In its most basic definition, it is payments made from one spouse to the other. In other words, the financially stronger spouse makes payments to the supported spouse that follow the amount of money and time frame ordered by the court during the divorce proceedings.
What Types of Spousal Support Are There?
A party can ask for spousal or partner support to be paid while their case is still ongoing. There are two types of support that are awarded by the court.
The first type of support orders is called a “temporary spousal support order.” The goal with a temporary order is that the supported party will eventually become financially self-sufficient within a reasonable period of time.
The second type of support order that could be awarded is “permanent support” or “long-term support.” A permanent order can also be ordered by a judge once the divorce becomes final.
How is Support Calculated?
For temporary support, judges generally use a formula to calculate the amount.
On the other hand, judges consider a number of different factors to determine a final support order for a permanent spousal support. These factors include: the earning capacity of both parties and standard of living established during the marriage, the length of the marriage, and any evidence of domestic violence. If the court refuses to make an award of spousal support, the reason may be attributed to the dual careers of the couple and each party’s income earning potential.
How Does One Go About Getting Support?
If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for support and alimony, please contact a San Jose spousal support attorney at Lonich Patton Ehrlich Policastri. Our firm offers free 30-minute consultations to new clients.
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.
https://www.lpeplaw.com/wp-content/uploads/2019/09/counting-3125587_1920.jpg10791920Lonich Patton Ehrlich Policastrihttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngLonich Patton Ehrlich Policastri2019-09-20 01:21:552019-09-20 01:21:58Spousal Support Attorney, San Jose, CA
When an individual is appointed to be the executor of an estate, they are entrusted with many duties and responsibilities. The executor is required to act for the estate using ordinary care and diligence. It is important, especially in estate planning, to know the difference between an executor of an estate and a power of attorney.
What Is The Difference Between An Executor Of An Estate vs Power Of Attorney?
It is important when it comes to estate planning to know the difference between an executor of an estate vs power of attorney. An executor is the individual who is responsible for managing all affairs of an estate of an individual who has died. A power of attorney is an individual selected and specified on a legal document that that individual has the authority to act for another individual in legal or financial matters.
What Is An Executor’s Responsibility With Estate Taxes?
The executor has a fiduciary duty to pay the estate’s taxes when there is enough money in the estate available to pay the taxes. Failing to pay an estate’s taxes even negligently is a breach of the executor’s fiduciary duty owed to the estate. If it is shown that the executor caused the estate to incur unnecessary taxes, then the executor may be charged for the part of the taxes that resulted from the executor’s action or negligence.
When an executor breaches a fiduciary duty, the executor may be personally liable for the consequences of that action. However, if the executor acted reasonably and in good faith, the court may excuse the breach.
What If There Is Real Estate Or Physical Property Involved With The Estate?
It is important to remember that an estate is not strictly limited to financial assets. There may be physical property involved with an estate as well. An executor of an estate must keep track of all property that is involved in an estate. The law may include real estate property, bank accounts, cash, and even stock or bond certificates as property of the Estate. Our firm, Lonich Patton Ehrlich Policastri can help with specifications for those who have estates or are executors of an estate in San Jose or Santa Clara County.
What Are My Next Steps As An Executor In San Jose?
Paying the federal and state income taxes on the estate, including for the year the creator of the estate passed away, are only one of the many duties owed to the estate by the executor. If you have been appointed an executor or have concerns with an estate’s executor based out of San Jose, please contact our office for a consultation with our estate planning attorneys. The attorneys at Lonich Patton Ehrlich Policastri offer free 30-minute consultations.
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.
https://www.lpeplaw.com/wp-content/uploads/2019/01/Attorney-Sitting-doing-Paper-Work.jpg49127360Michael Lonichhttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngMichael Lonich2019-09-13 19:37:432019-09-13 19:39:51What To Know When Becoming An Executor Of An Estate
Going through a divorce or separation is an extremely complicated and emotional time. Thankfully, you do not have to go through the process alone. A high net worth divorce attorney will have your best interests at heart and will help you through this difficult time. Separation is never easy, but it does not have to be hard with the guidance of an experienced lawyer, especially in San Jose.
San Jose sits in the heart of Silicon Valley, the epicenter of innovation and technology. It would be no surprise that you or your former spouse have come to San Jose to work and have worked hard for what you own and shared. You probably have acquired a lot of assets during your marriage such as property or finances. When it comes down to splitting up what you own during a divorce, you might not know where to start or what you are entitled to. Interestingly enough, many people in this town do not know just how much they have or the value of what their assets actually are. This is where an experienced lawyer would come in to help.
What Is A High Net Worth Divorce?
In this San Jose, it would not be a surprise if your case is considered a high net worth divorce. A “high net worth divorce” has traditionally been defined as a divorce involving more than one million dollars in net liquid assets. These types of divorces come with their own set of additional challenges and complications that only a knowledgeable lawyer can help you navigate. One of the complicates may be defining your assets and potential tax consequences that come with it. Additionally, things like pre-nuptial agreements, real estate, businesses, stock options, and retirement assets will be at issue in the divorce proceedings. These items may make the process go from a simple dissolution to a complicated and contested mess. Let our divorce attorneys help you through this complex process.
If your divorce is considered “high net worth”, you should seek the advice of our high net worth divorce attorneys at Lonich Patton Ehrlich Policastri. Our divorce attorneys know the intricacies of this unique type of separation and can fight for your needs accordingly. Choosing the wrong divorce attorney could be detrimental to your case. The right lawyer will listen to your concerns, have a strong courtroom presence, and devote the time and attention necessary to secure a beneficial outcome for you. Even though emotions are running high, a good high net worth divorce attorney will cut through emotional distractions to avoid escalating conflict and avoid a lengthy and costly legal battle. Our knowledgeable lawyers will guide you on how to protect your assets and are dedicated to achieving an outcome that is beneficial to you.
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.
https://www.lpeplaw.com/wp-content/uploads/2019/01/pexels-photo-265730.jpeg12801920Lonich Patton Ehrlich Policastrihttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngLonich Patton Ehrlich Policastri2019-09-13 16:57:582019-09-13 16:58:00How to Choose a High Net Worth Divorce Attorney in San Jose, CA
Divorce is very nuanced. There are many things to consider which can make an already difficult situation more challenging. Lonich Patton Ehlich Policastri has put together a comprehensive guide of the most commonly asked questions. Get an answer to your divorce question now.
1.What Is The Difference Between Divorce Mediation And Divorce Collaboration?
Mediation is when a neutral third party is hired to facilitate resolution of issues between two people during a divorce. The mediator helps with paperwork, mutual communication between all parties, and securing 60%-70% of goals or desires are met for each party.
Collaboration is a binding contract between both parties and their attorneys stating neither will go to court. If this contract is breached, the parties will have to fire their attorneys and start the process over. Attorneys can help clients identify what’s important to them and how to work through issues. It is common to have non lawyer professionals involved in collaborative divorce. Mental health professionals, divorce coaches and financial specials can add clarity to emotions and difficulties that arise during the resolution of a marriage.
2. How Much Does It Cost To Get Divorced?
This is probably the most common divorce question. The answer is different for everyone. It depends on what issues you have. Do you have children? If so, you will need to deal with the issue of custody. How will your property be divided? Do you own a business together? What if one of you needs spousal support? Is there a post nuptial or a prenuptial agreement? All of these factors impact the cost of your divorce. The best way to find out what cost you’re looking at is to call an attorney. If you live in San Jose, Lonich Patton Ehrlich Policastri offers a free 30 minute consultation that can answer tough questions like this.
3. How Long Will A Divorce Take?
The answer for this divorce question is similar to the question above. It depends on your unique situation. The attorney you work with will need to know of any estate plans, businesses or property you and your spouse own. They will also need to consider any children and custody agreements involved. It depends on how much you and your spouse agree upon. If you go through mediation or collaboration, it could take less time than going through litigation.
4. How Is Property Divided In A Divorce?
In California, this comes down to two rules: Community property and Separate property. Separate property is anything you acquired before your marriage and that hasn’t been commingled or shared between the two parties during the marriage. If you owned a house before your marriage and have kept it separate from community property, that is added to your separate income when division begins.
Community property is anything acquired during the marriage or shared during the marriage. This includes a family home, cars, debts or anything earned or gifted during the marriage. Community property is divided during the dissolution of the marriage. This doesn’t mean it is necessarily divided in half. If you have two assets of equal value, one person may receive one while the other party receives the other; an example being a house and a retirement savings plan.
5. What Are My Rights During A Divorce?
You have rights protected under the Bill of Rights. You have the right to a fair trial; the right to a safe trial free of harassment from a spouse or their attorney. You have the right to see your child unless a court states otherwise. Speaking with an experienced attorney such as the ones at Lonich Patton Ehrlich Policastri is the best way to learn about your rights during your divorce. Get your questions answered in a free 30 minute consultation.
6. How Does The Court Decide On Child Custody During A Divorce?
Child custody is decided based on many factors. Often, during the case, temporary custody is assigned. This allows the child to have a stable routine they can depend upon and prevents their lives from being upended. Judges can be hesitant to change this plan when deciding on permanent custody as they don’t want to remove that stability from the child’s life. Temporary custody can be an indicator of the end result of child custody, but it isn’t guaranteed. Once divorce is filed, the state your child currently resides in becomes their home state. If a parent wants to move out of the state or relocate, this can affect the outcome as well.
Judges consider the wellbeing of the child over everything else. This means they will look into any history of mental illness, drug abuse or addiction, and financial stability (to name a few). Courts tend to favor the spouse who is able to put their differences and issues from the divorce aside for the betterment of the child. This means the more level headed you are, the better.
7. Does My State Have A Separation Requirement?
This is a crucial divorce question to research before filing. In San Jose, CA, there is no separation requirement. You must have lived in CA for 6 months before filing for divorce however. Once you have filed, you must wait another 6 months before the finalization of your divorce. If you file for legal separation in the state of California, there is no waiting period making it a great option for those who haven’t lived in the state for 6 months.
If you don’t know if your state has a separation requirement, the best way to find out is to research your state laws or contact a local divorce attorney.
8. How Do I File For Divorce?
This is another common divorce question clients ask. To be eligible for a divorce in CA, you must have lived in the state for 6 months. When it comes to counties, you must have lived in the specific county you file in for 3 months.
Before no fault divorce existed, a spouse had to provide a reason for the dissolution of marriage. This typically involves extramarital affairs or domestic violence and the practice is still common in some states. In California, all divorces are no fault which means one party can simply want a divorce from the other without providing a “fault.” This means that wrongdoing has no impact on the division of assets according to the judge.
After filing, there’s a 6 month waiting period for the finalization of divorce. You and your spouse can work collaboratively to make a plan for child custody and property division without legal assistance and if that doesn’t work you can seek help from a mediator. This is where you might consider collaborative divorce or mediation. The last option is divorce litigation which is also the messiest. This should be a last option if you and your spouse cannot agree on anything.
You may not need to go to court if you are able to resolve issues and division of assets through mediation or collaboration. This is an ideal situation and all papers can be filed with the court with a judgement on your case sent in the mail. Sometimes you may still be required to show up for a hearing in these cases.
If you opt for divorce litigation, the matter will be handled in court and this can be pricey. If you can avoid litigation, it’s in the best interest of everyone involved. However, at LPEP Law, they know how contentious divorces can get and understand not everyone will be able to settle their issues out of court.
10. How Do I Decide On A Divorce Lawyer?
You should make sure your divorce attorney specializes in family law and divorce cases. You want someone who has handled a myriad of divorce situations and will work to get you the best possible outcome.
Ask how many years of experience they have. If you’re going to court, do they know the court and the judges who preside there? Are they board certified? These are all important questions to ask when deciding on a lawyer.
Financial issues following a separation can be complicated. Proper divorce planning and record-keeping can be invaluable to a smooth divorce proceeding. Determining what is community property and what is separate personal property can become complicated very easily. For example, you may ask “What happens to my house after divorce?”
Seemingly simple issues such as who stays in the community home and who pays the mortgage after separation carry significant weight. To assist in these issues, Epstein Credits and Watts Charges are used.
Epstein Credits And Community Property
In 1979, the case Marriage of Epstein gave the court the power to order Epstein Credits. Epstein Credits are used to determine the amount one spouse will be reimbursed for debts paid after separation but before trial. Epstein Credits allow a spouse who pays community expenses or debt after separation to be reimbursed for their one-half share of the expense or debt. An example of this is a mortgage on a community property home. This does not apply to separate personal property.
When requesting Epstein Credits, it is important to keep accurate records. Records should include the expenses or debts made and from what sources the expenses or debts were paid from. The more extensive the records kept, the easier it will be to determine what reimbursement may be made from Epstein Credits. Proper divorce planning can assure you have all the records you need to proceed with this process. Further it is important to raise the issue of Epstein Credits as early as possible. This helps to avoid extra complexity at trial.
Watts Charges And Community Property
The case Marriage of Watts in 1985 introduced the concept of Watts Charges, allowing a spouse to charge the other spouse for the use of a community asset after separation. While Watts Charges can apply to almost any community asset, a common situation that arises after separation is that one spouse will remain in the community owned home exclusively. When one spouse remains in the community home the other spouse may charge that spouse one-half of the community home’s fair monthly rental value.
Courts prefer that prior written notice of the intent to seek Watts Charges be given. This notice simplifies issues at trial. It makes it known that Watts Charges are within the reasonable expectations of the spouses. Like Epstein Credits, the earlier that a claim for Watts Charges are raised the better. The claim will be retroactive to when written notice was given.
Epstein and Watts Together
In some circumstances, Epstein Credits and Watts Charges may partially or even completely offset each other. If a spouse is both living in the community home and paying the mortgage, if the mortgage payment is equal to the value of the monthly rent, the two will offset each other. If however if the value of the rent is higher than the mortgage payment, the difference in value will still be owed to the respective spouse. It is also possible to owe both Epstein Credits and Watts Charges. Consider if a spouse is living in the community home, and the other spouse is paying the mortgage for the property. In this case, the spouse living in the home may owe both the one-half rent and the one-half payment of the mortgage.
Regardless of the circumstances surrounding separation and community property, these financial issues are complex. They are best addressed by a knowledgeable and experienced attorney. If you are separated or looking at a high net worth divorce, please contact one of the experienced attorneys at Lonich, Patton, Ehrlich, Policastri. They offer a 30 minute free consultation where they can assist you with divorce planning and answer any questions you may have.
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.
https://www.lpeplaw.com/wp-content/uploads/2019/01/Handing-Over-Keys-Estate-Planning.jpeg26113917Alexis Revelohttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngAlexis Revelo2019-09-06 18:38:192019-09-06 18:38:21How Is Property Divided After Divorce?
There are so many reasons to need a family law attorney. It’s important to choose the right one for your situation. If you’re in Santa Clara County, Lonich Patton Ehrlich Policastri can help. They specialize in family law and have collectively over 100 years of litigation experience.
Where Should You Start?
When looking for a family law attorney, you should find out if they specialize in your needs. Family Law is a broad area of expertise and most law firms with a focus in family law handle a range of cases such as…
These are just a handful of cases that a family law attorney works on. If you’re unsure if a family lawyer is right for you, contact Lonich Patton Ehrlich Policastri. They offer a free 30 minute consultation where they can answer your questions and determine if hiring a family law attorney is your best course of action.
Are They Board Certified?
Along with specialization, you want to make sure whomever you hire is board certified. This means your attorney has extensive experience and credibility in their career. You can check if they are board certified on your state bar’s association website.
At Lonich Patton Ehrlich Policastri, they pride themselves on being experienced and board certified. This allows them to offer you some of the best legal advice in Santa Clara County.
Along with checking for board certification, you should hire someone who is highly reviewed. You can find reviews for lawyers easily by looking on yelp or google, and often law firms have a testimonials page.
Do They Have A Team?
You want to hire a family law attorney who has a team to work with. A law firm who doesn’t have a team of paralegals or other assistants runs the risk of being stretched too thin.
So, how can you tell if they have paralegals or other assistants? You will often find a page on the website with a list of attorneys who work at the firm. This will include other team members. For instance, LPEP Law has a page titled “Our Attorneys” that introduces the partners and attorneys in the practice.
The main thing to remember when hiring a family law attorney is to feel like your case is cared about. You want an attorney who will invest in your case and will work hard to get the best possible outcome for you.
Are they being honest about the reality of your case? Are they keeping you up to date with the progression of it? Do they empathize with you and share similar values. All of these are important questions to ask when considering a family lawyer.
Find out if Lonich Patton Ehrlich Policastri is the right choice for your situation. Set up a free consultation.
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Separation and divorce are very difficult issues to navigate. If you are preparing for a divorce, there are a multitude of challenges that you must prepare for. However, having a knowledgeable San Jose divorce attorney – like the attorneys at Lonich Patton Ehrlich Policastri – will significantly lessen your burden. When preparing to meet with a San Jose divorce attorney for the first time, it is important to gather and have available certain personal information.
What Information Will You Need?
It is important have some basic information for both yourself and your spouse ready. Your full names, dates of birth, and social security numbers are a good start. Additionally, have both your and your spouses contact information, address, phone number, and e-mail address. Another important piece of information to have is a document showing proof that you are a California resident. This can be a mortgage bill or home utility bill for instance.
Other valuable information to gather in preparation of your divorce or separation include employment information for both yourself and your spouse. You should obtain the employer’ name, address, and phone number, for both you and your spouse. Gather information about the length of you and your spouse’s employment. This should include monthly or annual salary, and at least the last three income tax returns you filed.
What If Children Are Involved?
Regarding any children you and your spouse may have, there are a few things you’ll need. First it is important to have available a list of all children from the marriage’s names including the children’s dates of birth, social security numbers, and health insurance coverage. Additionally, it would be good to note what the current custody arrangement is between you and your spouse. If you anticipate custody being an issue during your divorce, vocalize this. Include if there are any children from a previous marriage for either you or your spouse. List their names, dates of birth, social security numbers, and whether there is child support being received or paid for any of the children.
Finally, if there is some additional information that will be of great assistance to the divorce attorney you meet, provide it to the attorney either before or during your first meeting. The date and place your wedding took place should be provided. Further, a list of any the marital problems involving alcohol or drug abuse, or domestic abuse, that led to divorce. Lastly, your attorney will need the name of your spouse’s attorney if your spouse is represented. They will need to know where to serve your spouse with divorce papers.
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.
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The second season of HBO’s Big Little Lies was overflowing with entertaining drama. One of the leading storylines involved Meryl Streep’s character, Louise. She was a concerned and doting grandma fighting for child custody over Nicole Kidman’s character, Celeste’s twin sons. There were many scenes involving attorney meetings, legal strategy and exciting witness examinations in a gut-wrenching trial. But how much of what was portrayed on screen happens in real life? Could a grandparent in San Jose, for instance, fight for joint custody over their grandchildren?
The short answer is yes; especially with the help of a dedicated attorney at Lonich Patton Ehrlich Policastri. However, this issue is somewhat complicated, so the help of a knowledgeable attorney in San Jose is crucial.
What You Should Know About Grandparents And Child Custody
Parents have the legal right to the custody, care, and control of their children. However, there are many situations where a grandparent assumes the role of primary caregiver for their grandchild. Yet, a grandparent’s parental role in their grandchild’s life does not give a grandparent the legal right to the custody, care and control of their grandchild.
A grandparent can fight for child custody under California Family Code§ 3041: “Custody award to nonparent.” Under this code, the court must make a finding that (1) granting custody to a parent would be “detrimental” to the child and (2) that granting custody to the nonparent is required to serve the best interest of the child. Because of this, it is less likely that a grandparent would receive joint custody. However, if this is a concern of yours, please contact an attorney at Lonich Patton Ehrlich Policastri in San Jose.
Although parents have a fundamental right to custody of their children, this right is not absolute. What is of upmost importance is the child’s fundamental right to have a home placement that is safe. They deserve a home that is stable, and permanent. It is up to the court to decide whether that be with their parents or grandparents. Potentially, the court could decide upon another third party. At the end of the day, the court bases its decision off what is in the best interest of the child. This “best interests” approach allows courts to comprehensively look at all circumstances in determining which home environment a child would be happiest and most successful.
Get In Contact With An Attorney
These issues can get extremely complicated and hard to understand. Therefore, if you or a loved one is a dedicated grandparent hoping to fight for child custody or want to learn more about joint custody options, please contact one of the dedicated attorneys at Lonich Patton Ehrlich Policastri in San Jose. You can set up a free consultation here.
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.
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Free 30-Minute Family Law or Estate Planning Consultation
What Are Fathers Rights In Child Custody?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriIt used to be that a mother was seen as the primary caregiver of a child. This led to custody often being awarded to mothers over fathers. Things have changed and the courts realize that fathers have a substantial effect on a child’s life. Fathers rights are legitimate and you’re just as likely to gain custody as the mother – barring certain circumstances.
Determining Custody
Child custody in California is determined by the best interest of the child. This is a standard used in San Jose and the rest of California to maintain equality in custody cases. This means that the court will determine which parent has the best interest of the child in mind and will provide the best environment for the child.
As a father, you have the right to seek custody of your child. You and the mother both have the right to request visitation rights. Both parties are viewed as equal by the courts. Just like in any child custody case, there are a few things that could prevent you from gaining visitation rights or custody of your kids.
If there is evidence of child abuse, domestic abuse, drug abuse, or addiction by either party, this will impact child custody.
The courts make it a priority to keep both parents as involved in their kids’ lives as possible. This is because, in San Jose, the courts believe children benefit from a healthy loving relationship with both parents.
As a father, if you have a better relationship with your child and are better able to care for them, the courts are likely to award you custody. This is all based on case to case, however.
Paternity And Custody
To be eligible for child custody, a male must prove (or have done so previously) parentage or paternity. In San Jose, these terms are used synonymously.
Paternity can be established in a variety of ways.
In some cases, paternity may have already been established. A child born in marriage is considered to be the child of both married parties. If the parents are unmarried but are living together in a familial situation, the male is considered the child’s father. This is, of course, if he has taken on a parental role with the child despite not being the biological father in some cases.
Fathers Rights And Child Support
To be determined as the primary caregiver and custodian of a child means that child will live with you. You are responsible for housing and caring for the child the majority of the time, and can determine where they live. The other parent may be granted visitation rights, barring any circumstances mentioned above that jeopardize the safety of the child.
As the primary custodian, you have the right to request child support from the other party. This is a sum paid monthly that helps with the costs of raising your child.
If you’re a father seeking information on fathers rights, contact an experienced attorney at Lonich Patton Ehrlich Policastri. We offer free 30 minute consultations.
10 Common Child Custody Questions
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriCustody is an in depth subject with plenty of nuance. It can be complicated to know where to begin. If you’re in the middle of a dispute over child custody or you’re simply wondering how to navigate this with your ex partner, these questions will get you started.
1. What is the definition of child custody and the difference between sole and shared custody?
Child custody regards the legal relationship between a parent or guardian and a child. There are two types of custody – physical custody(responsibility to house and take care of the child) and legal custody(the right to make decisions regarding the child).
Shared custody, also known as joint custody, is where both parents have the right to care for and make decisions regarding the kids. If there are differences between the two parents that cannot be resolved on certain issues of raising their kids, one parent or an appointed social worker must have the final word or power of decision.
Sole custody means one parent has full authority over custody of a child. They make the final decisions on how to raise and care for the child. The other parent has a right to voice their opinion but the parent with sole custody decides the final result.
2. What is the difference between arbitration and mediation in a Child Custody matter?
Arbitration and mediation share many similarities. They both involve a neutral third party such as an impartial judge or counselor or lawyer.
In arbitration, the impartial third party sits down with the two parties in a custody case. Both parties submit evidence and documents to the arbitrator to prove their case. The arbitrator will then make a legally binding decision based on what has been submitted. While this decision can be appealed, it is very difficult. You must prove the third party was non neutral.
Mediation is a favored way to avoid court based litigation. A neutral third party will guide the two parties towards settlement of issues in an amicable fashion. This is different from arbitration as any decisions reached are non binding.
Lonich Patton Ehrlich Policastri helps people in San Jose and Santa Clara avoid litigation through arbitration and mediation. If you need help with custody, contact them for a free 30 minute consultation.
3. In the state of California, is one parent more likely to be granted sole custody than the other?
While, in the past, it was common for mothers to receive custody over fathers, things have changed. In areas such as San Jose and Santa Clara, CA, both parents are considered equally in custody cases. Barring any drug problems or domestic violence and abuse, sole custody could be awarded to either party based on the best interest of the child. The rare exception is if a child is particularly young and would best be served living with one party.
4. In the State of California, how is child custody determined?
In California, custody is not biased towards the sex of a parent. Custody is determined based on the standards of the best interest of the child. This includes the health and safety of kids and ideally a continuing relationship with both parents.
Courts tend to favor the parent who is able to put personal issues in the relationship aside. This means they are able to maintain amicable contact with their ex for the sake of the child.
Gender, race, religion, sexual orientation, handicap or financial status does not impact the decision of custody. The law in California tries to make the process as fair and equal as possible.
5. How does child custody differ for married parents versus unmarried parents?
Regardless of whether a child is born out of wedlock, child custody decisions are all made on the same principle – the best interest of the child. However, there is an important distinction in child custody cases for married versus unmarried parents.
In cases in which a child is born out of wedlock, the mother of the child is considered the custodial parent, meaning the parent who has sole physical and legal custody. The father of a child born out of wedlock has no legal custody rights until paternity has been established or a Court Order has been established regarding custody and visitation.
In cases in which the parents of a child are married, both parents are considered legal guardians and custodial parents, unless otherwise stated by the Court. Although it is an extra step, once paternity has been established, the standard for custody determination for unmarried parents and married parents is the same.
6. What does the term “best interest of the child” mean and how do you prove what the best interest of the child is?
“Best interest of the child” is the legal standard by which most courts base decisions in child custody cases. This means that custody and visitation decisions and discussions are made by a judge based on what will best support and promote the development, well-being, and happiness of the child. There are many factors that are considered when determining the best interest of the child such as child’s age and preference, consistency, mental and physical well-being of parents, safety and parental ability. These factors may vary from state to state.
7. What is the difference between legal custody versus physical custody?
Legal custody is the right a parent has to make decisions about the child’s well-being and how they are raised. This includes decisions about schooling and medical care. It also determines if a parent has the right to get information about the child.
Physical custody is the right and responsibility to physically house and care for a party’s kids. This includes how much time a child will spend with each parent.
8. What is child support and how does it work with child custody?
Child support is financial installments paid monthly to one parent or guardian of a child in order to help with the expenses of raising and caring for said child.
Whether or not a parent owes child support is determined by a few factors. One of these factors is timeshare percentage. This is the amount of time per year one parent spends with their child. The court also considers the gross monthly income of both parents. Child support can include add ons such as medical funds that health insurance doesn’t pay for. The amount of child support you pay can be modified over time.
9. Modifications of Custody Agreements: what if there is a change in the agreement or if a move away order has been presented?
Modifications are changes to a custody agreement. These are common as circumstances change over time, affecting the original agreement put in place by a judge or parenting plan. To approve a modification, one must prove a change in circumstance with facts and evidence. Some changes in circumstances include:
It is not typically considered what is in the best interest of the parent if it negatively impacts the child. However, if a parent is moving for a new job opportunity – one that will lead to the advancement and improvement of the life of a child – that results in the happiness of the parent, a judge will consider approving the modification. A judge will also consider approving the modification if a parent has a new serious relationship and their new partner is moving for a job opportunity. Once and if you’ve moved, you will have to request the original court transfer jurisdiction to the new court in your new state. The original court that had jurisdiction over your custody case will usually maintain jurisdiction.
There are a couple recommended ways to handle custody modifications. The first option and most recommended expedites the process and allows for a more personalized experience. Reach out to Lonich Patton Ehrlich Policastri for a free 30 minute consultation for help with modifications to custody agreements.
Another option is to have the DCSS do the mod for you. This is a very drawn out process however and isn’t for everyone.
10. Can an attorney help avoid needless litigation or other concerns during the Child Custody process?
Choosing the right family law attorney can help you avoid litigation. No one wants a difficult custody battle. It isn’t good for you or your child. By choosing an experienced, compassionate lawyer, you have a better chance of mediation or arbitration. Your attorney should be able to tell you what the likely outcome of the case will be and what you should expect based on your situation. You could also lean on a family counselor or neutral third party such as a lawyer to help you develop a parenting plan both parties agree upon. This is one way to avoid litigation and make the process of custody as smooth as possible.
If two parents create a parenting plan out of court, it is advised to have the document reviewed by a lawyer to make sure it is in the best interest of the child before signing it. If you’ve created a parenting plan out of court, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri for help reviewing the document. The court will then review the plan. Parenting plans are temporary until they are finalized by a court. A judge will consider any allegations or threats to the child’s safety before approving the plan. Once approved, the plan becomes a court order and cannot be violated.
Spousal Support Attorney, San Jose, CA
/1 Comment/in Family Law /by Lonich Patton Ehrlich PolicastriThe decision to get divorced can be a difficult one; especially if you are unsure of how you are going to financially support yourself after severing ties from your former spouse. On the other hand, you might be wondering what you may owe your spouse during and after the divorce. These questions of alimony and spousal support can be difficult and complex, so it is important to consult a knowledgeable San Jose spousal support attorney; especially the attorneys at Lonich Patton Ehrlich Policastri.
What is Spousal Support?
Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses with one spouse making substantially more than the other. Spousal support, also sometimes referred to as “alimony,” seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.
In its most basic definition, it is payments made from one spouse to the other. In other words, the financially stronger spouse makes payments to the supported spouse that follow the amount of money and time frame ordered by the court during the divorce proceedings.
What Types of Spousal Support Are There?
A party can ask for spousal or partner support to be paid while their case is still ongoing. There are two types of support that are awarded by the court.
The first type of support orders is called a “temporary spousal support order.” The goal with a temporary order is that the supported party will eventually become financially self-sufficient within a reasonable period of time.
The second type of support order that could be awarded is “permanent support” or “long-term support.” A permanent order can also be ordered by a judge once the divorce becomes final.
How is Support Calculated?
For temporary support, judges generally use a formula to calculate the amount.
On the other hand, judges consider a number of different factors to determine a final support order for a permanent spousal support. These factors include: the earning capacity of both parties and standard of living established during the marriage, the length of the marriage, and any evidence of domestic violence. If the court refuses to make an award of spousal support, the reason may be attributed to the dual careers of the couple and each party’s income earning potential.
How Does One Go About Getting Support?
If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for support and alimony, please contact a San Jose spousal support attorney at Lonich Patton Ehrlich Policastri. Our firm offers free 30-minute consultations to new clients.
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.
What To Know When Becoming An Executor Of An Estate
/0 Comments/in Estate Planning /by Michael LonichWhen an individual is appointed to be the executor of an estate, they are entrusted with many duties and responsibilities. The executor is required to act for the estate using ordinary care and diligence. It is important, especially in estate planning, to know the difference between an executor of an estate and a power of attorney.
What Is The Difference Between An Executor Of An Estate vs Power Of Attorney?
It is important when it comes to estate planning to know the difference between an executor of an estate vs power of attorney. An executor is the individual who is responsible for managing all affairs of an estate of an individual who has died. A power of attorney is an individual selected and specified on a legal document that that individual has the authority to act for another individual in legal or financial matters.
What Is An Executor’s Responsibility With Estate Taxes?
The executor has a fiduciary duty to pay the estate’s taxes when there is enough money in the estate available to pay the taxes. Failing to pay an estate’s taxes even negligently is a breach of the executor’s fiduciary duty owed to the estate. If it is shown that the executor caused the estate to incur unnecessary taxes, then the executor may be charged for the part of the taxes that resulted from the executor’s action or negligence.
When an executor breaches a fiduciary duty, the executor may be personally liable for the consequences of that action. However, if the executor acted reasonably and in good faith, the court may excuse the breach.
What If There Is Real Estate Or Physical Property Involved With The Estate?
It is important to remember that an estate is not strictly limited to financial assets. There may be physical property involved with an estate as well. An executor of an estate must keep track of all property that is involved in an estate. The law may include real estate property, bank accounts, cash, and even stock or bond certificates as property of the Estate. Our firm, Lonich Patton Ehrlich Policastri can help with specifications for those who have estates or are executors of an estate in San Jose or Santa Clara County.
What Are My Next Steps As An Executor In San Jose?
Paying the federal and state income taxes on the estate, including for the year the creator of the estate passed away, are only one of the many duties owed to the estate by the executor. If you have been appointed an executor or have concerns with an estate’s executor based out of San Jose, please contact our office for a consultation with our estate planning attorneys. The attorneys at Lonich Patton Ehrlich Policastri offer free 30-minute consultations.
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.
How to Choose a High Net Worth Divorce Attorney in San Jose, CA
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriGoing through a divorce or separation is an extremely complicated and emotional time. Thankfully, you do not have to go through the process alone. A high net worth divorce attorney will have your best interests at heart and will help you through this difficult time. Separation is never easy, but it does not have to be hard with the guidance of an experienced lawyer, especially in San Jose.
San Jose sits in the heart of Silicon Valley, the epicenter of innovation and technology. It would be no surprise that you or your former spouse have come to San Jose to work and have worked hard for what you own and shared. You probably have acquired a lot of assets during your marriage such as property or finances. When it comes down to splitting up what you own during a divorce, you might not know where to start or what you are entitled to. Interestingly enough, many people in this town do not know just how much they have or the value of what their assets actually are. This is where an experienced lawyer would come in to help.
What Is A High Net Worth Divorce?
In this San Jose, it would not be a surprise if your case is considered a high net worth divorce. A “high net worth divorce” has traditionally been defined as a divorce involving more than one million dollars in net liquid assets. These types of divorces come with their own set of additional challenges and complications that only a knowledgeable lawyer can help you navigate. One of the complicates may be defining your assets and potential tax consequences that come with it. Additionally, things like pre-nuptial agreements, real estate, businesses, stock options, and retirement assets will be at issue in the divorce proceedings. These items may make the process go from a simple dissolution to a complicated and contested mess. Let our divorce attorneys help you through this complex process.
If your divorce is considered “high net worth”, you should seek the advice of our high net worth divorce attorneys at Lonich Patton Ehrlich Policastri. Our divorce attorneys know the intricacies of this unique type of separation and can fight for your needs accordingly. Choosing the wrong divorce attorney could be detrimental to your case. The right lawyer will listen to your concerns, have a strong courtroom presence, and devote the time and attention necessary to secure a beneficial outcome for you. Even though emotions are running high, a good high net worth divorce attorney will cut through emotional distractions to avoid escalating conflict and avoid a lengthy and costly legal battle. Our knowledgeable lawyers will guide you on how to protect your assets and are dedicated to achieving an outcome that is beneficial to you.
If you or a loved one are going through a divorce and are in need of a high net worth divorce attorney in San Jose, please reach out to the experienced divorce attorneys at Lonich Patton Ehrlich Policastri.
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.
10 Common Divorce Questions
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriDivorce is very nuanced. There are many things to consider which can make an already difficult situation more challenging. Lonich Patton Ehlich Policastri has put together a comprehensive guide of the most commonly asked questions. Get an answer to your divorce question now.
1.What Is The Difference Between Divorce Mediation And Divorce Collaboration?
Mediation is when a neutral third party is hired to facilitate resolution of issues between two people during a divorce. The mediator helps with paperwork, mutual communication between all parties, and securing 60%-70% of goals or desires are met for each party.
Collaboration is a binding contract between both parties and their attorneys stating neither will go to court. If this contract is breached, the parties will have to fire their attorneys and start the process over. Attorneys can help clients identify what’s important to them and how to work through issues. It is common to have non lawyer professionals involved in collaborative divorce. Mental health professionals, divorce coaches and financial specials can add clarity to emotions and difficulties that arise during the resolution of a marriage.
2. How Much Does It Cost To Get Divorced?
This is probably the most common divorce question. The answer is different for everyone. It depends on what issues you have. Do you have children? If so, you will need to deal with the issue of custody. How will your property be divided? Do you own a business together? What if one of you needs spousal support? Is there a post nuptial or a prenuptial agreement? All of these factors impact the cost of your divorce. The best way to find out what cost you’re looking at is to call an attorney. If you live in San Jose, Lonich Patton Ehrlich Policastri offers a free 30 minute consultation that can answer tough questions like this.
3. How Long Will A Divorce Take?
The answer for this divorce question is similar to the question above. It depends on your unique situation. The attorney you work with will need to know of any estate plans, businesses or property you and your spouse own. They will also need to consider any children and custody agreements involved. It depends on how much you and your spouse agree upon. If you go through mediation or collaboration, it could take less time than going through litigation.
4. How Is Property Divided In A Divorce?
In California, this comes down to two rules: Community property and Separate property. Separate property is anything you acquired before your marriage and that hasn’t been commingled or shared between the two parties during the marriage. If you owned a house before your marriage and have kept it separate from community property, that is added to your separate income when division begins.
Community property is anything acquired during the marriage or shared during the marriage. This includes a family home, cars, debts or anything earned or gifted during the marriage. Community property is divided during the dissolution of the marriage. This doesn’t mean it is necessarily divided in half. If you have two assets of equal value, one person may receive one while the other party receives the other; an example being a house and a retirement savings plan.
5. What Are My Rights During A Divorce?
You have rights protected under the Bill of Rights. You have the right to a fair trial; the right to a safe trial free of harassment from a spouse or their attorney. You have the right to see your child unless a court states otherwise. Speaking with an experienced attorney such as the ones at Lonich Patton Ehrlich Policastri is the best way to learn about your rights during your divorce. Get your questions answered in a free 30 minute consultation.
6. How Does The Court Decide On Child Custody During A Divorce?
Child custody is decided based on many factors. Often, during the case, temporary custody is assigned. This allows the child to have a stable routine they can depend upon and prevents their lives from being upended. Judges can be hesitant to change this plan when deciding on permanent custody as they don’t want to remove that stability from the child’s life. Temporary custody can be an indicator of the end result of child custody, but it isn’t guaranteed. Once divorce is filed, the state your child currently resides in becomes their home state. If a parent wants to move out of the state or relocate, this can affect the outcome as well.
Judges consider the wellbeing of the child over everything else. This means they will look into any history of mental illness, drug abuse or addiction, and financial stability (to name a few). Courts tend to favor the spouse who is able to put their differences and issues from the divorce aside for the betterment of the child. This means the more level headed you are, the better.
7. Does My State Have A Separation Requirement?
This is a crucial divorce question to research before filing. In San Jose, CA, there is no separation requirement. You must have lived in CA for 6 months before filing for divorce however. Once you have filed, you must wait another 6 months before the finalization of your divorce. If you file for legal separation in the state of California, there is no waiting period making it a great option for those who haven’t lived in the state for 6 months.
If you don’t know if your state has a separation requirement, the best way to find out is to research your state laws or contact a local divorce attorney.
8. How Do I File For Divorce?
This is another common divorce question clients ask. To be eligible for a divorce in CA, you must have lived in the state for 6 months. When it comes to counties, you must have lived in the specific county you file in for 3 months.
Before no fault divorce existed, a spouse had to provide a reason for the dissolution of marriage. This typically involves extramarital affairs or domestic violence and the practice is still common in some states. In California, all divorces are no fault which means one party can simply want a divorce from the other without providing a “fault.” This means that wrongdoing has no impact on the division of assets according to the judge.
After filing, there’s a 6 month waiting period for the finalization of divorce. You and your spouse can work collaboratively to make a plan for child custody and property division without legal assistance and if that doesn’t work you can seek help from a mediator. This is where you might consider collaborative divorce or mediation. The last option is divorce litigation which is also the messiest. This should be a last option if you and your spouse cannot agree on anything.
For help filing in Santa Clara county, contact Lonich Patton Ehrlich Policastri.
9. Will I Have To Go To Court?
You may not need to go to court if you are able to resolve issues and division of assets through mediation or collaboration. This is an ideal situation and all papers can be filed with the court with a judgement on your case sent in the mail. Sometimes you may still be required to show up for a hearing in these cases.
If you opt for divorce litigation, the matter will be handled in court and this can be pricey. If you can avoid litigation, it’s in the best interest of everyone involved. However, at LPEP Law, they know how contentious divorces can get and understand not everyone will be able to settle their issues out of court.
10. How Do I Decide On A Divorce Lawyer?
You should make sure your divorce attorney specializes in family law and divorce cases. You want someone who has handled a myriad of divorce situations and will work to get you the best possible outcome.
Ask how many years of experience they have. If you’re going to court, do they know the court and the judges who preside there? Are they board certified? These are all important questions to ask when deciding on a lawyer.
If you’re considering divorce in San Jose, contact Lonich Patton Ehrlich Policastri for a free 30 minute consultation. They can help you decide if mediation, collaboration or litigation is the right option for you. Get any divorce question you have answered.
How Is Property Divided After Divorce?
/0 Comments/in Family Law /by Alexis ReveloFinancial issues following a separation can be complicated. Proper divorce planning and record-keeping can be invaluable to a smooth divorce proceeding. Determining what is community property and what is separate personal property can become complicated very easily. For example, you may ask “What happens to my house after divorce?”
Seemingly simple issues such as who stays in the community home and who pays the mortgage after separation carry significant weight. To assist in these issues, Epstein Credits and Watts Charges are used.
Epstein Credits And Community Property
In 1979, the case Marriage of Epstein gave the court the power to order Epstein Credits. Epstein Credits are used to determine the amount one spouse will be reimbursed for debts paid after separation but before trial. Epstein Credits allow a spouse who pays community expenses or debt after separation to be reimbursed for their one-half share of the expense or debt. An example of this is a mortgage on a community property home. This does not apply to separate personal property.
When requesting Epstein Credits, it is important to keep accurate records. Records should include the expenses or debts made and from what sources the expenses or debts were paid from. The more extensive the records kept, the easier it will be to determine what reimbursement may be made from Epstein Credits. Proper divorce planning can assure you have all the records you need to proceed with this process. Further it is important to raise the issue of Epstein Credits as early as possible. This helps to avoid extra complexity at trial.
Watts Charges And Community Property
The case Marriage of Watts in 1985 introduced the concept of Watts Charges, allowing a spouse to charge the other spouse for the use of a community asset after separation. While Watts Charges can apply to almost any community asset, a common situation that arises after separation is that one spouse will remain in the community owned home exclusively. When one spouse remains in the community home the other spouse may charge that spouse one-half of the community home’s fair monthly rental value.
Courts prefer that prior written notice of the intent to seek Watts Charges be given. This notice simplifies issues at trial. It makes it known that Watts Charges are within the reasonable expectations of the spouses. Like Epstein Credits, the earlier that a claim for Watts Charges are raised the better. The claim will be retroactive to when written notice was given.
Epstein and Watts Together
In some circumstances, Epstein Credits and Watts Charges may partially or even completely offset each other. If a spouse is both living in the community home and paying the mortgage, if the mortgage payment is equal to the value of the monthly rent, the two will offset each other. If however if the value of the rent is higher than the mortgage payment, the difference in value will still be owed to the respective spouse. It is also possible to owe both Epstein Credits and Watts Charges. Consider if a spouse is living in the community home, and the other spouse is paying the mortgage for the property. In this case, the spouse living in the home may owe both the one-half rent and the one-half payment of the mortgage.
Regardless of the circumstances surrounding separation and community property, these financial issues are complex. They are best addressed by a knowledgeable and experienced attorney. If you are separated or looking at a high net worth divorce, please contact one of the experienced attorneys at Lonich, Patton, Ehrlich, Policastri. They offer a 30 minute free consultation where they can assist you with divorce planning and answer any questions you may have.
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.
Selecting A Family Law Attorney In Santa Clara County
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriThere are so many reasons to need a family law attorney. It’s important to choose the right one for your situation. If you’re in Santa Clara County, Lonich Patton Ehrlich Policastri can help. They specialize in family law and have collectively over 100 years of litigation experience.
Where Should You Start?
When looking for a family law attorney, you should find out if they specialize in your needs. Family Law is a broad area of expertise and most law firms with a focus in family law handle a range of cases such as…
These are just a handful of cases that a family law attorney works on. If you’re unsure if a family lawyer is right for you, contact Lonich Patton Ehrlich Policastri. They offer a free 30 minute consultation where they can answer your questions and determine if hiring a family law attorney is your best course of action.
Are They Board Certified?
Along with specialization, you want to make sure whomever you hire is board certified. This means your attorney has extensive experience and credibility in their career. You can check if they are board certified on your state bar’s association website.
At Lonich Patton Ehrlich Policastri, they pride themselves on being experienced and board certified. This allows them to offer you some of the best legal advice in Santa Clara County.
Along with checking for board certification, you should hire someone who is highly reviewed. You can find reviews for lawyers easily by looking on yelp or google, and often law firms have a testimonials page.
Do They Have A Team?
You want to hire a family law attorney who has a team to work with. A law firm who doesn’t have a team of paralegals or other assistants runs the risk of being stretched too thin.
So, how can you tell if they have paralegals or other assistants? You will often find a page on the website with a list of attorneys who work at the firm. This will include other team members. For instance, LPEP Law has a page titled “Our Attorneys” that introduces the partners and attorneys in the practice.
The main thing to remember when hiring a family law attorney is to feel like your case is cared about. You want an attorney who will invest in your case and will work hard to get the best possible outcome for you.
Are they being honest about the reality of your case? Are they keeping you up to date with the progression of it? Do they empathize with you and share similar values. All of these are important questions to ask when considering a family lawyer.
Find out if Lonich Patton Ehrlich Policastri is the right choice for your situation. Set up a free consultation.
What Personal Information Do I Need To Prepare When Considering A Divorce
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriSeparation and divorce are very difficult issues to navigate. If you are preparing for a divorce, there are a multitude of challenges that you must prepare for. However, having a knowledgeable San Jose divorce attorney – like the attorneys at Lonich Patton Ehrlich Policastri – will significantly lessen your burden. When preparing to meet with a San Jose divorce attorney for the first time, it is important to gather and have available certain personal information.
What Information Will You Need?
It is important have some basic information for both yourself and your spouse ready. Your full names, dates of birth, and social security numbers are a good start. Additionally, have both your and your spouses contact information, address, phone number, and e-mail address. Another important piece of information to have is a document showing proof that you are a California resident. This can be a mortgage bill or home utility bill for instance.
Other valuable information to gather in preparation of your divorce or separation include employment information for both yourself and your spouse. You should obtain the employer’ name, address, and phone number, for both you and your spouse. Gather information about the length of you and your spouse’s employment. This should include monthly or annual salary, and at least the last three income tax returns you filed.
What If Children Are Involved?
Regarding any children you and your spouse may have, there are a few things you’ll need. First it is important to have available a list of all children from the marriage’s names including the children’s dates of birth, social security numbers, and health insurance coverage. Additionally, it would be good to note what the current custody arrangement is between you and your spouse. If you anticipate custody being an issue during your divorce, vocalize this. Include if there are any children from a previous marriage for either you or your spouse. List their names, dates of birth, social security numbers, and whether there is child support being received or paid for any of the children.
Finally, if there is some additional information that will be of great assistance to the divorce attorney you meet, provide it to the attorney either before or during your first meeting. The date and place your wedding took place should be provided. Further, a list of any the marital problems involving alcohol or drug abuse, or domestic abuse, that led to divorce. Lastly, your attorney will need the name of your spouse’s attorney if your spouse is represented. They will need to know where to serve your spouse with divorce papers.
If you are separated and planning a divorce or simply considering your options, please contact one of the experienced San Jose Divorce attorneys at Lonich Patton Ehrlich Policastri. We offer free consultations for new Family Law clients.
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.
Can A Grandparent Have Joint Custody Of A Child With A Parent?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriThe second season of HBO’s Big Little Lies was overflowing with entertaining drama. One of the leading storylines involved Meryl Streep’s character, Louise. She was a concerned and doting grandma fighting for child custody over Nicole Kidman’s character, Celeste’s twin sons. There were many scenes involving attorney meetings, legal strategy and exciting witness examinations in a gut-wrenching trial. But how much of what was portrayed on screen happens in real life? Could a grandparent in San Jose, for instance, fight for joint custody over their grandchildren?
The short answer is yes; especially with the help of a dedicated attorney at Lonich Patton Ehrlich Policastri. However, this issue is somewhat complicated, so the help of a knowledgeable attorney in San Jose is crucial.
What You Should Know About Grandparents And Child Custody
Parents have the legal right to the custody, care, and control of their children. However, there are many situations where a grandparent assumes the role of primary caregiver for their grandchild. Yet, a grandparent’s parental role in their grandchild’s life does not give a grandparent the legal right to the custody, care and control of their grandchild.
A grandparent can fight for child custody under California Family Code § 3041: “Custody award to nonparent.” Under this code, the court must make a finding that (1) granting custody to a parent would be “detrimental” to the child and (2) that granting custody to the nonparent is required to serve the best interest of the child. Because of this, it is less likely that a grandparent would receive joint custody. However, if this is a concern of yours, please contact an attorney at Lonich Patton Ehrlich Policastri in San Jose.
Although parents have a fundamental right to custody of their children, this right is not absolute. What is of upmost importance is the child’s fundamental right to have a home placement that is safe. They deserve a home that is stable, and permanent. It is up to the court to decide whether that be with their parents or grandparents. Potentially, the court could decide upon another third party. At the end of the day, the court bases its decision off what is in the best interest of the child. This “best interests” approach allows courts to comprehensively look at all circumstances in determining which home environment a child would be happiest and most successful.
Get In Contact With An Attorney
These issues can get extremely complicated and hard to understand. Therefore, if you or a loved one is a dedicated grandparent hoping to fight for child custody or want to learn more about joint custody options, please contact one of the dedicated attorneys at Lonich Patton Ehrlich Policastri in San Jose. You can set up a free consultation here.
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.