Tragically, Tom Petty passed away in 2017.
He left behind his wife, Dana Petty, and daughters, Adria Petty and
AnnakimViolette, from a previous marriage.
Before he passed away, Tom Petty had prepared an estate plan. Upon his death, Dana was appointed as the sole trustee of Tom Petty’s entire estate. In the documents, there was a provision included that required Dana, and Tom’s two daughters, Adria, and Annakim, to participate equally in the management of the estates’ artistic assets.
Unfortunately, it turns out that Tom
Petty’s estate plan was not as precisely written as the lyrics he was famous
for.
The Beginning of a Long Lititgation
Adria Petty and Annakim Violette filed a
lawsuit against Dana Petty for the court’s interpretation of the term “participate
equally” in regards to the estates’ artistic assets. The daughters believe that
the term “participate equally” would mean that Adria, Annakim, and Dana each
get a vote with majority rule. Dana did not have the same interpretation of the
same term.
Dana Petty responded to the lawsuit by claiming that as sole trustee, she alone has the authority to create the entity that will manage the estate’s assets and that “participate equally” applies only to management of that entity. As a result, this disagreement of definition sparked an extremely long and arduous litigation to decide what the document’s language meant.
Determining the Meaning of Language in
Estate Plans
When an estate plan has terms with an
unclear interpretation, it will lead to many issues including expensive
litigation. The court process for interpreting an estate document can be
complicated when the language used in an estate document can be interpreted in
multiple ways.
Firstly, In California, to determine what the settlor intended, the court will have the express language of the document examined. If the language is determined to be clear and definite by the court, the analysis will end and the matter is settled. However, if the court believes the language to be ambiguous, the court will then consider the circumstances under which the estate was created.
Secondly, and finally, if the court determined the document’s language to be ambiguous, the court will attempt to place itself in the estate creator’s shoes. The court will exercise its independent judgment of the estate creator’s intention by examining evidence that is uncontested from outside the document. For example, the court may consider when the document was created, if there the documents were created by an attorney, and what kind of state of health the settlor was in. If that is the case, the process could potentially be excruciatingly long no matter how large or small an estate may be.
How Do I Get Legal Assistance for Estate Planning?
Involving the court in determining your wishes is costly, time consuming, and frustrating for your beneficiaries. If you are interested in planning your estate, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri to assist in drafting your documents with the most clear and definite language possible.
Meanwhile, 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 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.
Child Custody Attorney In San Jose, CA
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriChild custody can be a living nightmare for most. The fight for custody can arise in many situations, from divorce to one parent moving away or mistreatment of kids. It’s important to get a family lawyer who can help you navigate this rocky time as smoothly as possible.
If you’re looking for a child custody attorney in San Jose, Lonich Patton Ehrlich Policastri is here for you. There are a few important things to consider when looking into a family law attorney.
Does The Attorney You’re Looking At Specialize In Family Law?
You need a lawyer who specializes in family law. If you have a lawyer who practices in many different areas, they won’t be well equipped to help you like you deserve. Choosing an attorney who deals with child custody cases regularly means they will know the ins and outs of the system that other lawyers won’t.
How Long Has This Lawyer Been Practicing Family Law?
Experience matters. How long have they practiced family law? How many child custody cases have they handled in the past 12 months? At a minimum, the lawyer you choose should have practiced family law for 5 years. Lonich Patton Ehrlich Policastri has decades of experience with family law. They know the ins and outs of child custody cases and most likely know about the judges in the area and their leanings.
What Court Are You Going To?
This may seem like a minor question, but it matters. An experienced child custody attorney in San Jose is going to know the courts and proceedings that go on there. More importantly, they will know of the different judges and council. They will know if a judge leans towards mothers more frequently or if they have any biases. This will work in your favor because they can help you build a stronger case. Find out how often your attorney has been to the court and how they can use this information to your benefit.
What Do Their Testimonials Look Like?
You can learn a lot about a lawyer from their customer testimonials. With the internet, it’s easier than ever to hear from all sorts of people what their experience was like. This means you can make the most informed decision. LPEP Law prides itself on being assertive, effective and compassionate with their clients and cases. You want an attorney who cares about your situation and cares about your kids.
How Do They Communicate With You?
It’s all too common when hiring a lawyer, to talk to them once and after accepting your case, you don’t hear from them for months. You want an attorney who will stay in communication with you and keep you updated on how your case is progressing. Child custody is expensive and stressful. You want to know it’s in good hands and you want to be reassured throughout the entire process that what’s in your best interest is being done. A competent attorney will keep you in the loop.
Child custody is one of the hardest things you can go through, and it’s overwhelming to know where to start. That’s why LPEP Law offers a free 30 minute consultation. This can give you insight on how to move forward and what steps you need to take, specific to your case. You can schedule your 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.
Tom Petty’s Estate is Having a Breakdown
/0 Comments/in Estate Planning /by Michael LonichTragically, Tom Petty passed away in 2017. He left behind his wife, Dana Petty, and daughters, Adria Petty and AnnakimViolette, from a previous marriage.
Before he passed away, Tom Petty had prepared an estate plan. Upon his death, Dana was appointed as the sole trustee of Tom Petty’s entire estate. In the documents, there was a provision included that required Dana, and Tom’s two daughters, Adria, and Annakim, to participate equally in the management of the estates’ artistic assets.
Unfortunately, it turns out that Tom Petty’s estate plan was not as precisely written as the lyrics he was famous for.
The Beginning of a Long Lititgation
Adria Petty and Annakim Violette filed a lawsuit against Dana Petty for the court’s interpretation of the term “participate equally” in regards to the estates’ artistic assets. The daughters believe that the term “participate equally” would mean that Adria, Annakim, and Dana each get a vote with majority rule. Dana did not have the same interpretation of the same term.
Dana Petty responded to the lawsuit by claiming that as sole trustee, she alone has the authority to create the entity that will manage the estate’s assets and that “participate equally” applies only to management of that entity. As a result, this disagreement of definition sparked an extremely long and arduous litigation to decide what the document’s language meant.
Determining the Meaning of Language in Estate Plans
When an estate plan has terms with an unclear interpretation, it will lead to many issues including expensive litigation. The court process for interpreting an estate document can be complicated when the language used in an estate document can be interpreted in multiple ways.
Firstly, In California, to determine what the settlor intended, the court will have the express language of the document examined. If the language is determined to be clear and definite by the court, the analysis will end and the matter is settled. However, if the court believes the language to be ambiguous, the court will then consider the circumstances under which the estate was created.
Secondly, and finally, if the court determined the document’s language to be ambiguous, the court will attempt to place itself in the estate creator’s shoes. The court will exercise its independent judgment of the estate creator’s intention by examining evidence that is uncontested from outside the document. For example, the court may consider when the document was created, if there the documents were created by an attorney, and what kind of state of health the settlor was in. If that is the case, the process could potentially be excruciatingly long no matter how large or small an estate may be.
How Do I Get Legal Assistance for Estate Planning?
Involving the court in determining your wishes is costly, time consuming, and frustrating for your beneficiaries. If you are interested in planning your estate, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri to assist in drafting your documents with the most clear and definite language possible.
Meanwhile, 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.
Family is More Than Just DNA: Stepparent Adoptions
/0 Comments/in Family Law /by Riley PenningtonStepparents play an important role in a child’s life. Many stepparents want to solidify their role as a child’s parent and fully accept the responsibilities and joys that come with it. Making the choice to adopt a child is an incredibly personal one, and likely comes with a slew of questions for both the parent and the child.
What Is A Stepparent Adoption?
A stepparent adoption is when the spouse of a child’s custodial parent (the parent the child lives with) adopts that child. It is the policy of the Social Services Agency that the custodial parent and the stepparent be married for at least one year prior to the adoption.
What Does the Process Entail?
Generally, to complete a stepparent adoption, the stepparent and custodial parent will first fill out the necessary forms and file a petition in the county in which the stepparent resides. Then, there will be a hearing in court on the matter, in which the child to be adopted, the custodial parent, and the adopting stepparent all attend. The court will then decide to grant the adoption or not.
The process can be also be broken down into 6 steps:
What Consent Do I Need?
The stepparent will need to get consent from the birth parent who is giving up custody of the child. If the birth parent does not want to sign a consent form, you can file a petition to end their parental rights.
However, there is always a question as to whether the birth parent’s consent is required. To answer this question, you have to determine whether that birth parent has consent rights under Family Code §§ 8604-8605 and the Uniform Parentage Act, and/or whether there are grounds to dispense the birth parent’s consent pursuant to Family code §§ 7800 or 8606.
You will also need to obtain the consent of the parent who is retaining custody of the child—in other words, the custodial parent. The custodial parent must sign a consent, in front of the Court Investigator, a court clerk, or a notary public, allowing his or her spouse/partner to adopt the child.
*Understanding consent can be tricky. For clarity, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
What Does the Court Consider?
The court’s primary concern in an adoption is the child’s best interest. The court hopes to maximize a child’s opportunity to develop into a stable, well-adjusted adult. The court will determine the least detrimental alternative for safeguarding the child’s growth that maximizes the child’s sense of being wanted.
What Happens After The Hearing?
If an adoption is entered, the adopted child and stepparent sustain the legal relationship of parent and child. They can enjoy all of the rights and duties of that relationship. This means that the stepparent has the right to make educational and medical decisions for the child, enter into contracts on the child’s behalf, and discipline the child among other things. Stepparents then can experience all the other joys and hardships that come with being a parent.
How Do I Start The Process?
If you seek to start the adoption process for yourself or a loved one, or have questions about birth parent consent to adoptions, please contact one of the experienced 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.
Declaration of Disclosure
/0 Comments/in Family Law /by Michael LonichWhat is a declaration of disclosure?
A Declaration of Disclosure provides a spouse with a complete and accurate disclosure of all assets and liabilities you have. The Declaration of Disclosure includes:
Do I have to fill out a declaration of disclosure?
In a proceeding for dissolution of marriage or legal separation, California law requires that parties exchange a general inventory of all assets and liabilities they may have. California requires a declaration of disclosure for many policy reasons including to avoid dissipation of the community estate before distributions, to ensure fair and sufficient child and spousal support and of course to facilitate the division of community assets.
How and when do I exchange a declaration of disclosure?
There are two types of disclosures required by the State of California, a preliminary disclosure and a final disclosure. The exchange of preliminary declarations is an interim step toward the requisite exchange of more comprehensive final declarations of disclosure before a marital settlement agreement can be reached or entry of the ultimate judgment.
The preliminary disclosure must be exchanged at the time of the service of the petition for dissolution or any time during the pendency of the action. Characterization and valuation details are not required in a preliminary disclosure.
In a final disclosure, characterization and valuation details are required. Like the preliminary declaration requirement, service of final declarations is mandatory.
Further, both spouses have a continuing duty to immediately, fully and accurately update and augment their disclosures when any changes may occur.
Will my assets and liabilities become public record?
The extensive disclosures required by California law could reveal private information which, if filed with the court, would become a public record. The threat of public access might discourage full and truthful disclosures; therefore the preliminary and final declarations are not filed with the court and will not become public record. However, while the declarations of disclosure themselves are not filed with the court, each party must file proof of service of each of the required declarations; and likewise, as to any amended declaration of disclosure.
If you are considering dissolution or separation and need help preparing a declaration of disclosure, please contact one of the experienced 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.
Spousal Support: The Basics
/0 Comments/in Family Law /by Michael LonichThe 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. Thankfully, the courts have established a system where you can still be supported by your spouse after marriage through the means of spousal support.
What is Spousal Support?
Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses. Spousal support seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.
Therefore, in its most basic definition, spousal support are 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 timeframe 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. This is called a “temporary spousal support order.” The goal with temporary spousal support is that the supported party will eventually become financially self-sufficient within a reasonable period of time.
Additionally, support can also be ordered by a judge once the divorce becomes final, which is called “permanent (or long-term) spousal support.”
How is Spousal Support Calculated?
For temporary spousal 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 spousal support order for a permanent spousal support order. 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 Do I Go About Getting Spousal Support?
If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for spousal support, please contact our attorneys at Lonich Patton Elrich Policastri. We offer free 30 minute consultations with our Family Law Specialists.
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.
The Ins and Outs of Life Insurance During Divorce
/0 Comments/in Family Law /by Michael LonichLife insurance is usually not high on the list of concerns during a divorce. However, it is important to know that under certain circumstances life insurance can be an important asset.
In California, Can Life Insurance be Divided?
California is a community property state, which means that anything earned by the couple is owned equally be each partner. When life insurance is purchased with community money it is possible that the proceeds of the life insurance policy may be community property.
There are two types of life insurance: whole life insurance and term life insurance.
The first type of life insurance is whole life insurance. For whole life insurance, the policy accumulates a “cash value”. The amount of the policy that was purchased with community money is considered to be divisible property in divorce.
The second type of life insurance is term life insurance. Term life insurance is a contract providing only coverage during a specified term and has no cash value. Term life insurance purchased with community money is community property. However, the property in term life insurance is the right to have coverage during the individual term paid for with community money. Because the couple has already received the “benefit” of the policy during the marriage, the policy is not considered to be a divisible asset.
If the partner for whom a term life insurance policy is maintained were to pass away during a term in which any community funds were used to purchase the term policy, a portion of the policy proceeds would be community property and subject to division in a divorce.
Can Life Insurance be Awarded as Child or Spousal Support?
California family law provides broad discretion in matters of spousal and child support. A judge may order a parent to buy an insurance policy with the child or spouse named as the beneficiary.
California law allows life insurance to be awarded for child support because the obligations of the parent extend beyond death. A judge may order a life insurance policy as child support when the judge believes that the ordered parent may have trouble providing for the child.
Life insurance awards for spousal support allows a judge to order a spouse to purchase a policy with the other spouse named as the beneficiary. The judge’s ability to order life insurance as spousal support is directly stated in California Family Code section 4360.
Is There Anything Else to be Aware of?
It is important to remember that a life insurance policy is a separate contract from marriage. The named beneficiary of a life insurance policy does not automatically change following a divorce. The holder of the policy must contact the life insurance provider to request a change of beneficiaries.
Another item to keep in mind is that even if a life insurance policy is not discussed during divorce proceedings, it can be brought before a judge later as an “omitted asset.” The judge may then decide on whether the policy should have been divided or have been included in an award of support.
Determining the rights to life insurance in divorce can be complicated. It is important to understand your rights to a life insurance policy both during and after divorce. If you have questions about your or your partner’s life insurance policy, please contact one of the experienced 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.