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Mother walking away from child that is curled up with head against knees in bed. Spousal Abandonment

What is Spousal Abandonment?

February 23, 2023/in Family Law /by Mitchell Ehrlich

At its best, marriage is a permanent partnership between two people who love each other. In the eyes of the law, marriage is also a civil contract that requires a license, witnesses, and registration with the state. When either spouse decides to end the partnership, he or she usually files for divorce, and the family court system helps determine issues related to distribution of assets, spousal support, and custody.

However, sometimes a spouse chooses to leave the marital home, stop fulfilling reasonable responsibilities and duties to the family, and, in some cases, cease all contact instead of filing for divorce and ending the marital contract in family court. Known as spousal abandonment, this type of behavior can have devastating effects on a family.

Types of Spousal Abandonment

There are several types of spousal abandonment, including:

Criminal – withdrawing necessary financial support and refusing to provide for the care of a dependent spouse or minors without just cause
Constructive – creating a hostile or unbearable marital environment (g., through domestic abuse, infidelity, withholding assets, etc.), giving their spouse a justifiable reason to leave
Emotional – completely disregarding a spouse’s feelings or emotional needs

It’s important to note that simply moving out of a shared home does not necessarily qualify as spousal abandonment. As long as the spouse in question continues to provide financial and other support and does not sever all ties with the family, there is no case for marital abandonment.

Spousal Abandonment in California

Since California is a no-fault divorce state, the court system does not recognize spousal abandonment as grounds for divorce, so you would not need to provide evidence of abandonment. Instead, you would likely cite “irreconcilable differences” as your reason for filing, which allows you to move forward quickly with your divorce.

Although spousal abandonment will not affect the divorce filing, the California family court would most likely take it into consideration throughout the divorce process when considering custody, alimony, and property division.

How Spousal Abandonment Affects Divorce in California

When filing for divorce, California requires you to make a good faith effort to locate your spouse and serve divorce papers to inform them of your intent. If your spouse has abandoned you, however, the court might approve alternative means, such as publishing a notice in a newspaper, to serve a spouse who cannot be found.

During the divorce proceedings, a judge might consider spousal abandonment when determining:

Spousal support – your spouse may be required to pay you alimony as a result of their actions.
Division of marital estate – you may be eligible to receive a greater share of marital assets, and/or your spouse may be obligated to repay a more significant portion of shared marital debt.
Child custody and visitation rights – your spouse might receive only minimal visitation rights or may lose parental rights altogether and might be compelled to pay you a greater amount of child support.

We Will Fight For You

If you are the victim of spousal abandonment and considering divorce, it’s important to have someone on your side to help you navigate the California family court system, especially in this complicated situation. At Lonich Patton Ehrlich Policastri we have been helping clients protect their rights and best interests in divorce cases for decades. Please contact us at 408-553-0801 or fill out our online form here for a free, 30-minute consultation to discuss your case and your options. Let us fight on your behalf.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

Can Grandparents Sue for Visitation Rights?

February 16, 2023/in Family Law /by Gina Policastri

You can not overstate the importance of the grandparent-grandchild bond. While siblings, parents, and cousins may be a part of this essential tapestry, there is something uniquely special about grandparents and grandchildren coming together. Grandparents have their own brand of unconditional love that they impart to the youngest generations—one full of shared experience and advice; one loaded with history and tradition. Can Grandparents Sue for Visitation Rights?

Unfortunately, many grandparents are barred from forming healthy relationships due to a variety of factors. Thankfully, in the state of California, there is protection under the law for grandparent visitation rights, but some restrictions are still in place.

Here’s what you need to know if you’re considering suing for visitation rights in California.

An Established Bond with Grandparents

In California, grandparents must prove that they have a close and loving relationship with their grandchild in order to have the legal right to petition the courts for visitation rights. It is not enough to just prove that the grandparent was caring towards the child, as it must be shown that the two were formerly involved in a meaningful relationship and understand each other’s feelings.

Grandparents who can prove this stand a good chance of being granted visitation rights. Active involvement from both sides will help ensure the grandparent-grandchild relationship is worth preserving.

The Child’s Best Interest

When the court is making decisions concerning grandparent visitation rights, their priority is always the child’s best interests. This means they only grant these rights when they are confident that it won’t negatively affect the upbringing of the child. The court will balance the grandparents’ rights against the rights of the parent to make decisions regarding their children.

The Parents’ Marital Status

Typically, the grandparents can’t sue for visitation rights if the child’s parents are married. However, there are exceptions to this rule, such as:

The parents do not live together
The child doesn’t live with either parent
One parent is in prison
The whereabouts of a parent have been unknown for at least 30 days
One of the parents has joined a grandparent’s petition for visitation
A step-parent has adopted the child

Furthermore, a grandparent may petition for visitation if the parents are not married.

Are You Considering Petitioning the Court for Visitation?

A strong relationship between a grandparent and a grandchild is invaluable for both generations. However, navigating the laws surrounding grandparent visitation rights in California can be confusing and complicated. Generally, this requires filing appropriate forms and identifying various factors that establish why such rights would be beneficial to the children. Our attorneys at Lonich Patton Ehrlich Policastri can assist you with petitioning the court and establishing a case for grandparent visitation.

We have years of practicing family law in San Jose and the greater Bay Area and understand the importance of family bonds. Contact us for a free 30-minute consultation by filling out our online form here or calling us at 408-553-0801. We will review your case and help you protect your rights as a grandparent.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

Wooden figurines of family with child and gavel on table in front of judge at table conducting divorce process. ex parte

What is an ex parte custody order?

February 10, 2023/in Family Law /by Virginia Lively

When a couple is getting a divorce, important decisions can become complicated, especially if there are children involved. Child custody requires extensive planning and forethought. In a typical child custody case, the courts look into a variety of things regarding both parents in order to make a decision that is focused on what is best for the child (or children). Both parents are involved in making this decision. However, there is a circumstance known as an ex parte custody order, which allows for court proceedings involving only one parent or guardian to take place without notifying the other.

What is an ex parte custody order?

An ex parte custody order happens when one parent files a legal document with the court in order to get custody of the child, without notifying the other parent of what is happening. Ex parte requests are reserved for imminent and dire emergencies. Some examples of what the courts consider an emergency are situations where the child is at risk of being abducted by the other parent or is suffering from mental or physical abuse. Requesting an ex parte custody order essentially means you formally ask the judge to make a decision immediately, regardless of the other cases the judge had scheduled for that day. Ex parte requests should be reserved for the most utmost emergencies, where the well being of the child is in real danger. If you are confident that the situation requires immediate action and an ex parte custody order is the course of action you need to take, then you need to make sure your homework is done so you can act swiftly and efficiently.

What to do before, during, and after the hearing.

In an average child custody case, both parties are aware of the court date and all of the details. In an ex parte case, one party files the required documents known as “pleadings”, with the assistance of an attorney. The most crucial part of this step is to make sure you have an attorney well versed in family law and knowledgeable on ex parte cases. Since courts in the same state can be very different from one another, make sure your attorney is familiar with the specific court you will be appearing at. Doing your homework is vital. When you arrive at court, sometimes they will have already made a decision based on your pleadings alone. Occasionally, they will want to hear an oral argument from the petitioning party. After the hearing, the ruling will be made in writing.

Here at Lonich Patton Ehrlich Policastri, we understand the importance of settling child custody cases amicably. We have a strong reputation in San Jose and Santa Clara when it comes to helping families with custody cases of all kinds. Contact us today at 408-553-0801 or fill out the form here for a free 30 minute consultation, and allow one of our experienced attorneys to help guide you in the next steps to take for your family.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

Couple sitting on therapy couch after husband's infidelity. Man with arm around woman, woman has head in hands.

Can I Sue My Spouse For Cheating On Me?

February 2, 2023/in Family Law /by Gretchen Boger

Infidelity can be extremely emotionally draining and stressful. If your spouse cheated on you, you may be wondering if, as the injured party, you have any legal recourse to receive compensation for your pain. Although somewhat complicated, there are a few circumstances in which you might be able to bring a civil case against a cheating spouse.

Alienation of Affection

When a third party interferes in a loving relationship between a husband and wife, some states allow what is known as an alienation of affection lawsuit. Usually, this type of claim is filed against the third party, rather than against the spouse, however. Filing an alienation of affection lawsuit requires proof that your marriage was a happy and loving one and that the third party intentionally destroyed your marriage. Unfortunately, only a handful of states still recognize this type of lawsuit, and California is not one of them.

Infliction of Emotional Distress

In California, victims who have suffered emotional anguish as the result of someone else’s actions can sometimes sue for either Negligent or Intentional Infliction of Emotional Distress (NIED or IIED lawsuits). Although adultery can certainly cause significant emotional distress, you should carefully consider what this type of lawsuit entails, including:

Proving the existence of your emotional pain (e.g., through expert testimony of a counselor, etc.)
Establishing how your pain is the direct result of others’ actions
Documenting the severity of your distress and how the trauma has diminished your quality of life
Demonstrating that your spouse’s behavior was outrageous or reckless and intended to cause you emotional distress (i.e., for IIED lawsuits only)

Unless you think you have a very strong case or stand to recoup a large amount of financial compensation from your spouse, filing an NIED or IIED lawsuit may cost more time and money than its worth.

How Infidelity Affects Divorce in California

Whether or not you choose to pursue a civil claim against your spouse for an extramarital affair, you might also be considering divorce. Since California is a no-fault divorce state, you would most likely cite irreconcilable differences, rather than adultery, as the reason for your divorce.

Although the California family court system does not usually take infidelity into account in divorce proceedings, there are certain cases where it can affect custody agreements or spousal support. Also, if your spouse spent marital assets on their affair (e.g., expensive gifts, luxury vacations, or hotel stays), the judge will likely require them to reimburse you for those assets during the division of your marital estate.

Facing Infidelity? We Will Fight For You

Our team at Lonich Patton Ehrlich Policastri has decades of experience dealing with complicated divorce cases in California. We understand the toll that extramarital affairs take, and we work hard to protect your rights and make sure you understand all your options. Call us today at (408) 553-0801 to set up a 30-minute free consultation with our family law experts.

Estate planning attorney working at table on computer with gavel nearby, living trust

Estate Planning: The Difference Between Revocable vs Irrevocable Living Trusts

January 26, 2023/in Estate Planning /by Michael Lonich

You have worked hard to get where you are in life. Maybe you started a business, own a home and property, or have made wise investments. As you think about the future, it’s important to decide how you want those assets distributed and to make a plan to ensure those decisions are implemented. Sometimes people choose to establish a living trust, which is a written, legal document that helps protect your assets while you are still alive and provide for your family after your death. Essentially, you put your assets into a trust and assign a trustee (which can be yourself) to manage the trust property and administer your estate for your benefit during your lifetime and to manage the distribution of those assets after your death.

Although there are several benefits to having a living trust, arguably the most important is that you will protect your estate from the probate process, which can take over a year and incur significant legal fees. A living trust, on the other hand, can usually be settled within weeks. Other advantages include avoiding the probate process in other states if you own out of state property and providing the opportunity for a trusted family member or friend to manage the trust if you become incapacitated. In addition, some individuals choose living trusts because they are more difficult to contest than a standard will.

What assets should be in a living trust?

Generally speaking, you will want to include several different types of assets in your living trust, including:

Bank accounts – checking, saving, and money market
Real estate – homes and property
Investments – stocks, bonds, and mutual funds
Personal property – family heirlooms, jewelry, furniture, etc.
Life insurance policy

Revocable vs. Irrevocable Living Trust

There are two types of living trusts – revocable and irrevocable. Each has its own advantages and drawbacks. The main differences between revocable and irrevocable living trust are:

Flexibility: Revocable living trusts are most commonly used in estate planning since they allow you to amend, add to, or even completely revoke your living trust as the need arises, if your circumstances or finances change. As the name suggests, an irrevocable living trust is less flexible than a revocable living trust, requiring court or beneficiary approval for any changes once it has been notarized and executed.
Ownership: In a revocable living trust, the person who created the trust continues to have ownership or control over the assets in the eyes of the law. Trust property in an irrevocable trust, on the other hand, belongs to the trust itself, rather than the individual.
Asset Protection: Because assets in an irrevocable trust are controlled by the trust rather than the individual who set up the trust, they are better protected against creditor claims than assets in a revocable trust, which are still owned by the individual. If you don’t need to worry about creditors, however, revocable trusts are usually a better choice since you maintain control and can make changes easily.
Tax Savings: Once assets are transferred into an irrevocable living trust, they are no longer considered a part of an individual’s taxable estate. Therefore, your beneficiaries may pay less estate tax after your death. This benefit is especially important for people with more extensive estates or assets.

We Can Help You Protect Your Family’s Future

Estate planning is one of the most important things you can do to protect your loved ones and ensure your long term wishes are carried out. If you’re wondering whether a revocable or irrevocable living trust is right for you, or have other questions about estate planning, our attorneys at Lonich Patton Ehrlich Policastri can help. Please call us today at (408) 553-0801 to set up a free, no-obligation consultation and discuss how our estate planning attorneys can customize our services to your unique situation and needs.

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Contact Us

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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