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LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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Can a victim of domestic violence lose their parental rights?
/in Family Law /by Gina PolicastriThe harrowing issue of domestic violence casts a long shadow over countless lives, including those of children who sadly end up caught in the middle of domestic abuse incidents far too often.
Many victims of domestic abuse become concerned about their parental rights. In this article, we’ll explore the legal factors associated with domestic abuse and parental rights, explaining California’s laws around domestic violence and child custody.
The definition of domestic violence in California
California’s Domestic Violence Prevention Act (DVPA) forms the bedrock of the state’s legal approach to domestic abuse. According to this act, domestic violence encompasses a wide range of abusive behaviors that occur within intimate relationships, including but not limited to:
The DVPA is designed to protect individuals in various types of intimate relationships, including married couples, domestic partners, individuals in dating relationships, cohabitants, and those who share a child in common, regardless of whether they have ever lived together.
California’s laws around domestic violence and child custody
When domestic abuse occurs within a family, one of the most pressing concerns is the well-being and safety of any children involved. In California, as in many other states, there are specific laws and guidelines in place to address domestic violence within the context of child custody and visitation arrangements.
The best interests of the child standard
In California, the primary consideration in all child custody and visitation decisions is the best interests of the child. This legal standard guides judges in determining custody arrangements that prioritize the child’s physical and emotional well-being above all else.
Domestic violence’s impact on child custody
The presence of domestic abuse within a family can significantly impact child custody proceedings. California law acknowledges that exposure to domestic abuse can be harmful to children, even if they are not direct victims of the abuse. Consequently, courts take allegations and evidence of domestic violence seriously when making custody determinations.
Rebuttable presumption against custody for abusers
California law includes a rebuttable presumption against awarding custody to a parent who has been found to have committed domestic violence within the past five years against the other parent or the child.
This means that the court will generally assume that it is not in the child’s best interests to be placed in the custody of an abusive parent, unless the accused abuser can present evidence demonstrating that it would indeed be in the child’s best interests.
Can a victim of domestic violence lose their parental rights in California?
While the presence of domestic abuse can have significant implications for child custody decisions in California, it does not automatically result in the termination of parental rights for the abuser or the victim.
The court’s primary concern is the child’s best interests, and custody determinations are made on a case-by-case basis, considering all relevant evidence and circumstances. Survivors of domestic violence are encouraged to seek legal counsel to navigate these complex legal proceedings effectively and safeguard the well-being of their children.
Protect your rights with LPEP
It is crucial for any victim of domestic abuse involved in a child custody dispute to have legal representation. At Lonich Polich Ehrlich Policastri, our attorneys are highly experienced in both domestic violence and California family law. We can help you advocate for your rights and protect your children’s safety.
Contact us here for a free consultation, or call 408-553-0801 to get started.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
Estate Planning for Surviving Spouses: What to Do ASAP
/in Estate Planning /by Michael LonichIf you recently lost your spouse, you are likely dealing with many emotions – grief, disbelief, and shock, to name a few. In addition to facing this incredibly difficult experience, you probably now have the responsibility of managing the estate and ensuring your financial security.
We’ll explore some of the steps you should take immediately so that your affairs are taken care of from an estate planning perspective.
1. Get several copies of the death certificate
One of the first steps you should take as a surviving spouse is to obtain several copies of your spouse’s death certificate. They will be essential as you navigate legal and financial matters in the upcoming months. You may need them for closing bank accounts, selling property, and distributing assets to beneficiaries. By having multiple copies, you will be sure to have the necessary documentation in hand when you need it.
2. Review your spouse’s estate plan
Even if you believe you know everything about your spouse’s financies, you will want to take some time to review all of their legal and financial documents. These can provide information on the distribution of assets and provide a complete picture of your own financial future.
It can also help ensure that you are prepared for any unexpected events that may arise.
3. Notifications
You will need to inform the appropriate parties of your spouse’s passing. This includes Social Security Administration, insurance providers, credit card companies, banks, credit bureaus, and anywhere else your spouse held assets, both separate and joint accounts.
Not only does this assist with a smooth transfer of assets, but it also helps prevent unauthorized access to the accounts, fraud, or identity theft.
4. Review your own estate plan
If you and your spouse had a joint estate plan, now is the time to review and update it. Many couples name their spouse for the financial and medical powers of attorney, executor, and beneficiary. If that is your situation, you will need to revise your estate plan.
You might also need to change the beneficiaries on your retirement accounts and life insurance policies. Furthermore, if you and your spouse had joint ownership of assets, you may want to update your estate plan to include “transfer on death” instructions.
5. Understand the tax implications
You should know how taxes will impact your inheritance and your shared financial assets. Proper planning can help ease tax liabilities down the road. California has protections in place for widows and widowers, often referred to as widow’s rights.
Navigating the complexities of an estate plan can be difficult, especially when you are grieving over the loss of your spouse. Working with a professional estate planning attorney can help make the task less daunting. Our attorneys at Lonich Patton Ehrlich Policastri have the experience you need. They can guide you through the process and help you understand the legal and financial documentation and tax implications.
You don’t have to go through this alone. Contact us at 408-553-0801 for a free consultation, and let us help you find peace of mind during this difficult time.
Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
You Filed for Divorce, Now What?
/in Family Law /by Mitchell EhrlichAs with most legal processes, divorce involves several steps, and it can be confusing to know what you need to do and in what order. You’ve taken the first step and filed divorce papers with the California family court. What happens now? The following is a brief outline of the process you will need to follow to get divorced in California.
Serve your divorce papers
Once you have filed divorce papers, you must ensure that your spouse is formally notified, which is known as “serving” divorce papers. Although it’s possible to serve papers by having them mailed to your spouse & your spouse acknowledging receipt formally (note that you cannot mail them yourself), this method can be unreliable. Most people choose to have a server (an adult who is not related to your case) deliver the papers to their spouse in person.
Your spouse must respond within 30 days. If your spouse chooses not to respond by the deadline, which is known as a default, you can move forward with the divorce without your spouse’s input.
Prepare your financial disclosures
You are legally required to share information about your finances (including all debts and assets as well as your salary and income) with your spouse in order to be granted a divorce. Although you do not file financial documents with the court, you do file a form acknowledging that you and your spouse have completed this step.
Come to an agreement
At this point, you and your spouse must make several decisions regarding a host of important issues: child custody and support, visitation rights and schedules, dividing the marital estate, spousal support, what happens to your home, who gets the pets, paying attorney fees, etc. There are a few different ways to arrive at an agreement during this process:
You don’t have to do it alone. Consult with family law experts.
The California court system has published a self-help guide to give you a better idea of what to expect throughout the divorce process in California. However, working with professionals who have experience with the judicial system, like the family law attorneys at Lonich Patton Ehrlich Policastri (LPEP Law) can make the entire process less stressful, especially if your divorce is complicated or contentious.
Our attorneys have been helping clients navigate the life-changing and difficult issues related to divorce for decades. We will walk with you every step of the way. Contact us today at 408-553-0801 for a free, 30-minute consultation to discuss your situation. We’re ready to help.
Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
What to do With Retirement Accounts After Death
/in Estate Planning /by Michael LonichBy the time some people reach retirement age, they have accumulated a substantial nest egg consisting of 401k’s, pensions, and IRAs. They saved with the intent of having a comfortable lifestyle during their golden years. But what happens to an individual’s hard-earned assets once they pass away? Understanding what happens with retirement accounts after death can help provide peace of mind for the account holder and their loved ones.
After someone passes away, the first step is locating all of their retirement accounts and contacting the financial institutions. If the deceased named a beneficiary for their accounts, the assets will go directly to them without needing to go through probate. However, the funds will become part of the deceased’s estate if there is no beneficiary. In that event, they will need to go through probate.
Probate is the legal process that involves authenticating the deceased person’s will, if one exists, and settling their estate, which includes paying debts and distributing assets to heirs or beneficiaries.
The duration of the probate process can vary widely depending on the complexity of the estate, taking anywhere from several months to a couple of years.
The relationship between the deceased and the beneficiary can also impact what happens to the retirement accounts. A spouse is able to transfer the funds of a 401k or IRA into their own IRA. Or, they can choose to take it over. In that event, there are three options:
Non-spouse beneficiaries of an inherited IRA have different rules based on whether they are a designated beneficiary or an eligible designated beneficiary.
A designated beneficiary is a person whom the deceased named to inherit the balance of an IRA or other type of retirement account. They can be any person chosen by the account owner
On the other hand, an eligible designated beneficiary is a specific classification, such as:
One key difference is that a designated beneficiary is required to follow the 10-year rule. Furthermore, any distribution from the account is considered taxable income.
However, eligible designated beneficiaries have different rules that allow them to stretch out distributions over their lifetime or the deceased’s, providing potential tax benefits.
Navigating the rules for inherited retirement accounts can be complex. Each person’s situation is unique, so getting professional advice is essential. Our attorneys at Lonich Patton Ehrlich Policastri have the expertise you need and can help ensure that your retirement accounts are part of your estate plan. Contact us for a free consultation by calling 408-553-0801 so you can protect your family’s financial future.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
When Can You Get an Annulment in California?
/in Family Law /by Virginia LivelyMarriage is a sacred union binding two people together, symbolizing a commitment to love, support, and share their lives. However, there are times when a marriage may prove untenable or legally invalid, leading individuals to seek an annulment rather than a divorce.
Obtaining an annulment in California is not a straightforward process, as it requires meeting specific criteria and following a distinct set of guidelines. In this article, we’ll discuss the grounds on which an annulment can be granted in California.
What is an annulment?
An annulment is a legal process that declares a marriage to be void, essentially treating it as though it never legally existed. It aims to restore the parties involved to their pre-marital status, erasing the legal consequences that arise from marriage.
An annulment is not a remedy available for every unsuccessful or short-lived marriage. Instead, it is reserved for specific situations where the marriage can be proven to have been fundamentally flawed or legally invalid.
What’s the difference between divorce and annulment?
In a divorce, the law recognizes the marriage as valid, and the process involves the termination of a legally recognized union. A divorce legally ends a valid marriage and addresses issues such as property division, spousal support, child custody, and visitation rights. It recognizes the existence of a marital relationship and seeks to provide a fair and equitable resolution for the parties involved.
An annulment, on the other hand, treats the marriage as though it never legally existed. It declares the marriage to be void or voidable, usually due to specific legal defects or circumstances that existed at the time of the marriage. As a result, an annulled marriage carries fewer legal consequences compared to a divorce, and the division of property and financial matters may be treated differently compared to a divorce.
When can you get an annulment in California?
Under California law, there are various grounds upon which an annulment can be granted.
A void marriage is considered legally invalid from the beginning, and no legal annulment proceeding is necessary. In California, examples of void marriages are incestuous or bigamous marriages.
Voidable marriages are considered legally valid until an annulment is sought and granted. The following grounds may render a marriage voidable in California:
How to file for annulment
The first step toward marriage annulment is to ensure you make the deadline for annulment based on the statute of limitations. At Lonich Polich Ehrlich Policastri, we have dedicated experts who can help you navigate the complexities of filing for annulment in California.
To learn more about the process, or discuss your unique circumstances, call us at 408-553-0801 for a free consultation, or contact us here.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.