The idea that you will not be around forever is never an easy truth to face, and knowing that you will leave behind loved ones makes it even more challenging.
In order to make the situation easier for your loved ones, it is essential that you take the appropriate actions to guarantee that you will leave them with their intended assets.
The most important thing that you can do to ensure that your property is handled appropriately is to create a last will. A will is a legal document that dictates who will receive your property, names guardians for your children, and even allows you to specify funeral arrangements.
Steps to Creating a Last Will
1. Do Your Research
The most important step in setting up your last will is to conduct research and do your due diligence to ensure that the appropriate legal measures are taken. These specific processes vary by state, thus it is highly recommended to conduct this process with the assistance of a qualified and reputable lawyer.
2. Aggregate Your Assets
When setting up your last will, it is imperative that you create an organized list that includes all your real estate, bank accounts, insurance policies, and retirement accounts. Make sure that all of the account numbers, answers to security questions, and any other necessary information is included.
3. Choose Your Executor
An executor of the will is the person legally responsible for ensuring that all specifications of your will are carried out, your assets are appropriately distributed, and that your financial assets are resolved.
It is highly recommended that this person receives part of your assets since they bear the responsibility of executing your will.
4. Choose Your Beneficiaries
Your beneficiaries are the people who will receive your assets upon your passing. It is important that you are specific with naming the people and stating the amounts that they will receive.
5. Name Guardians for Your Children
If you have children under the age of 18, it is recommended to make a list of at least three guardians (in order of preference) for your children if you pass away. This ensures that there are people of your choosing who will take care of your children if the first choice is unable to do so. If you have the means, it is wise to leave the guardians with financial assistance by naming them as beneficiaries as well.
6. Select a Witness to Sign Your Last Will
You must have a witness sign your will who is not a beneficiary. The number of witnesses involved and the formalities of signing vary by state. It is important that the specifications are carried through exactly as mandated or else your will may not hold up during probate
7. Keep Your Will In a Safe Location
Once your last will has been lawfully created, it is important to keep it in a safe, secure, and accessible location. It is also wise to inform a trusted person, perhaps your executor, of its locations.
Updating Your Last Will
You should always update your will after the event of a significant life event regarding:
A marriage or divorce
An acquisition of new property
The birth of a child
The death of a spouse
The sale or purchase of a business
The Bottom Line
If your estate is particularly large, you have joint custody of a property, you own a business, you own property abroad, or if you think someone may question the validity of your will then it is especially important to hire a lawyer for your last will.
Lonich Patton Ehrlich Policastri in San Jose is a reputable law firm whose lawyers make it their priority to protect your assets from an extensive probate process.
If you are living in San Jose and want to leave a legacy for your loved ones, our attorneys will help make your intentions a reality. Set up a free consultation with us.
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You may have heard of shareholder agreements but have you heard of the more specific Buy-Sell Agreement? This is a fundamental succession planning tool when it comes to owning and operating a business. It is especially helpful in the case of family businesses.
What Is A Buy-Sell Agreement?
Similar to how a will dictates how assets will be transferred in death, a buy-sell agreement is a legal document that dictates where an owner or partner’s share of a business will go in the case of certain life events (i.e. death, retirement, etc.)
Having an agreement like this in place protects the family business. It protects family assets so that everything stays in the family’s control and so that nothing can be transferred outside the family. These agreements can dictate the succession of ownership.
How It Protects Your Family Business
Often, for a myriad of reasons, one family member or partner will try to sell their share of the business. This can cause issues if they’re trying to sell their share outside of the family.Without an agreement in place, they can sell their share off legally despite their intentions. Setting up a buy-sell agreement means you can dictate how shares and assets are transferred or sold. You can create certain stipulations that prevent a family member from selling outside the family.
It can also help to have an agreement in place in case of a divorce. In California, any assets acquired during a marriage qualify as community property. This means that a spouse of the family owner can lay claim to their share of the family business. If you create a strict buy-sell document that requires the spouse to sell their share back to the company in the case of a divorce, you can prevent the share from transferring outside of the family.
The agreements are meant to be put in place in preparation of certain life events. If there is a divorce, or a retirement or a death, a plan is in place to prevent chaos. It is also great to have in place in the case of incapacitation which can include dementia or other things that prevent a person from acting in a mentally sound way or making informed choices.
Having a buy-sell agreement can assure the long term survival of a family business. Why would you not want to have that added layer of protection?
A Buy-Sell Agreement…
Ensures shares stay in the family
Creates a special space where shares can be bought and sold under dictated parameters
Identifies potential future events and conditions that trigger the agreement. These will determine what happens to that share
Determines the valuation of business shares
Specifies the source of funding for the purchase. Where does the money that will be paid in the transfer come from?
If you own a family business or a partner in one, you should consider the benefits of having a buy-sell agreement. That extra protection can ensure the longevity of your company. Live in the greater San Jose and Bay area? Set up your free consultation with Lonich Patton Ehrlich Policastri today.
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There are many reasons residents of California seek out power of attorney(POA). If you have an older parent with dementia who struggles to act on their own, POA is a way to assure decisions that need to be made are made soundly. If you are being deployed, granting someone power of attorney can allow them to act for you in necessary areas while you are away. If you own a property and reside far away from it, you can grant POA so that someone who lives closer can manage your property for you. These are just a few instances in which the power of attorney becomes valuable. Most likely, you know why you need POA. The question is, how do you get it?
What Is Power Of Attorney?
POA is a legal document through which a person (aka agent) is appointed to make medical and financial decisions on a person’s (principal’s) behalf.
This seems simple in theory, but there are several types of POA, and that’s where things get a little confusing. When you add the different laws per state, things become very murky for those seeking legal help. Lonich Patton Ehrlich Policastri, a legal firm in San Jose, CA, can help clear things up for California residents by breaking down the types of POA.
What Are The Different Versions Of Power Of Attorney?
There are a few different types of POA. To get started, you need to determine which type is right for your situation.
Durable – This document allows you to choose someone to act for you financially and medically, and grants decision making power regardless of future incapacitation. The incapacitation addendum for this specific document means that even if the principal becomes incapacitated, the document will remain valid.
An alternate version of this is the Springing POA in which the document only becomes active when the person becomes incapacitated.
General – This is known as the financial power of attorney as it grants no power over medical decision making. This also differs from the durable POA because it has no incapacitation addendum. This means if the principal becomes incapacitated, the document will become void. This document is effective immediately.
Limited – This document allows you to choose someone to act in your place for a specific or single duty. Once the duty is complete, the form becomes void. An example of this would be for a real estate transaction that is taking place. POA is only needed on a temporary basis for a very narrow and specific instance.
Medical – This is also known as a Health Care POA. This grants decision making power for all medical reasons. It also has an incapacitation addendum. It only grants power if the principal is unable to make decisions for themself.
What Happens Next?
So, you’ve determined which document you need. What’s next? There are a couple of legal requirements to complete a power of attorney.
The agent must be 18 years old at least and mentally sound. They should also be someone you trust and can rely on to act in your best interests.
Many people wonder if the document needs to be notarized or witnessed. Based on California law, it can be either.
You can notarize a document for little cost. Some USPS locations now have notaries onsite. While it isn’t required, it is recommended to have real estate matters notarized for solid records.
Having a document witnessed can be a little more intricate. You must have 2 independent witnesses that are adults and mentally sound. The named agent of the POA cannot be a witness. For medical POAs, a healthcare provider or employee of the healthcare provider cannot be a witness either. Once you have your two witnesses, you must sign the document in the presence of the witnesses or you must go through a process known as acknowledgment. This can be as simple as signing the document and calling the witnesses over to say “I signed this. This is my signature.”
If you live in the greater Bay area, such as San Jose, and are in need of legal advice on POA, contact Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations and can help you choose the right document for your situation. Set up your consultation here.
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There are a lot of responsibilities when it comes to being a trust administrator. Most likely, if you’ve found yourself in this position, you didn’t know much – if anything – about trust administration beforehand. That can leave you with a lot of questions. The lawyers at Lonich Patton Ehrlich Policastri can shed light on your responsibilities and guide you through the administration process.
To start with, what does a trust administrator do?
Trust administrators have a huge responsibility and little room for mistakes. This can be overwhelming. It’s good to know what kinds of duties you will be responsible for going into the process.
Valuation Of Assets One of the administrator’s fiduciary duties is to assess the assets in the trust and value them. Valuation allows one to determine the total worth of the trust.
Deducting Liabilities Once the assets worth has been determined, it is the trust administrator job to deduct all liabilities from the total worth. Liabilities include all costs and expenses of the trust.
Record Keeping The administrator must keep track of the trust funds, taxes paid, and all correspondence. These records must be completely transparent as beneficiaries can view them at any point, but most commonly every six months or on an annual basis.
Filing Income Tax Returns The admin is required to file income tax returns yearly for the trust. This is because trust assets are not able to be distributed tax free. However, there can be deductions. Any taxes due are paid directly out of the trust. Go here for some tips on fiduciary tax returns.
Maintaining And Monitoring Assets It is the duty of the admin to maintain the value of the trust and the assets within it. You need to keep track of spending and costs to try and maintain the worth of the trust over time. This requires you to keep track of and audit any change within the trust. This ties back into record keeping.
Updating/Informing Beneficiaries Beneficiaries must be informed of the trust and updated on the status of the trust over time. The administrator must share trust expenses among other things with all beneficiaries after the initial notice that the trust exists and they are named a beneficiary.
Safeguarding Interests This means it is the admin’s job to protect the assets against unauthorized spending or use. What is needed to safeguard an asset varies case to case. An experienced attorney can help you determine what’s right for your situation and how to best protect assets. Contact Lonich Patton Ehrlich Policastri for a free 30 minute consultation on trust administration.
Along with their fiduciary duties, trust administrators are also expected to operate under certain principles.
Good Faith This means that the administrator must be honest, open and transparent in the way they manage the trust and in the ways they benefit from it. This is incredibly important as the beneficiaries have the right to sue the trust administrator if they fail to act in good faith.
Prudence/Fairness This requires that the administrator operates under these two principles. Fairness ensures the admin avoids playing favoritism amongst the beneficiaries. Prudence requires that the admin does not make risky investments with the trust which also has a hand in safeguarding the assets.
If you’ve been named a trust administrator, it’s normal to feel overwhelmed. There is so much information and it is a huge responsibility. Reaching out to an experienced estate planning lawyer can set you on the right path and prepare you for the duties ahead. Contact Lonich Patton Ehrlich Policastri for a free consultation.
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As the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you. The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.
What Is A Revocable Living Trust?
So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves.
Why Set Up A Living Trust?
In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.
Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money.
There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass.
For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death.
After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate.
Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.
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It’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect.
When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.
Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for.
Temporary Spousal Support
The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments.
This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.
Permanent Alimony
While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker.
The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis.
Get In Contact
If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
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As the grandparent of a child whose parents are going through a divorce, many questions can be raised. Will the grandparents be able to maintain visitation of the child? In some cases, if the parents are unfit, can the grandparents be granted full custody? What about joint custody? Lonich Patton Ehrlich Policastri are experienced family law attorneys with knowledge in grandparents rights. Getting the help of a trusted attorney can give you peace of mind and guide you through this challenging time.
Grandparents Rights: Visitation
A grandparents rights to visitation vary state to state. In San Jose, the option for visitation is granted only under specific circumstances. If the parents live separately, are unmarried or a child does not live with either parent or is in the individual care of a step parent, visitation rights may be requested. They may also request visitation if a parent is deceased or if one parent has not been found for over a month. Parents can petition for a grandparent to have visitation rights. If at least one parent agrees to visitation, California courts will consider it. The parents can also refuse visitation rights. If both parents decide they don’t want the grandparents to have visitation, courts will usually determine it is not in the best interest of the child despite any bond that has been formed with the child.
Joint Custody
If you live in San Jose and are seeking joint custody of your grandchild, the good news is it’s possible. Lonich Patton Ehrlich Policastri Family Law can help you gain joint custody. So, when can a grandparent try for joint custody? If custody to a parent/ parents is proven to potentially harm the child, primary custody to a non parent may be awarded. California also operates under the policy of the best interest of the child. If it is proven to be in the best interest of the child to live with their grandparents, joint custody is possible. At the end of the day, it comes down to a stable, safe environment for the child to be raised in.
Full Custody
This is more complicated as California courts typically like to keep parents and children together. There are specific cases where a child may be placed in the full care of a grandparent. For example, if the parents of the child have died, custody may be granted to grandparents. As with joint custody, if parental custody is deemed unsafe or not in the best interest of the child, custody may be granted to a non parent. Parents can also grant full custody to the grandparents or lessen their chance at custody if the child has lived with the grandparents for over a year.
Grandparents rights are circumstantial and very complicated. It’s best to acquire the help of an experienced family law attorney such as those at Lonich Patton Ehrlich Policastri. Get a free 30 minute consultation to go over your options. You don’t have to face this situation alone.
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/bigstock-Grandparents-With-Grandchildre-94466849-min.jpg10671600Lonich Patton Ehrlich Policastrihttps://www.lpeplaw.com/wp-content/uploads/2019/02/LPEP_PC.pngLonich Patton Ehrlich Policastri2019-10-10 23:22:382019-10-10 23:22:40What Are Grandparents Rights In Child Custody?
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
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What Goes Into Setting Up A Last Will?
/1 Comment/in Estate Planning /by Lonich Patton Ehrlich PolicastriThe idea that you will not be around forever is never an easy truth to face, and knowing that you will leave behind loved ones makes it even more challenging.
In order to make the situation easier for your loved ones, it is essential that you take the appropriate actions to guarantee that you will leave them with their intended assets.
The most important thing that you can do to ensure that your property is handled appropriately is to create a last will. A will is a legal document that dictates who will receive your property, names guardians for your children, and even allows you to specify funeral arrangements.
Steps to Creating a Last Will
1. Do Your Research
The most important step in setting up your last will is to conduct research and do your due diligence to ensure that the appropriate legal measures are taken. These specific processes vary by state, thus it is highly recommended to conduct this process with the assistance of a qualified and reputable lawyer.
2. Aggregate Your Assets
When setting up your last will, it is imperative that you create an organized list that includes all your real estate, bank accounts, insurance policies, and retirement accounts. Make sure that all of the account numbers, answers to security questions, and any other necessary information is included.
3. Choose Your Executor
An executor of the will is the person legally responsible for ensuring that all specifications of your will are carried out, your assets are appropriately distributed, and that your financial assets are resolved.
It is highly recommended that this person receives part of your assets since they bear the responsibility of executing your will.
4. Choose Your Beneficiaries
Your beneficiaries are the people who will receive your assets upon your passing. It is important that you are specific with naming the people and stating the amounts that they will receive.
5. Name Guardians for Your Children
If you have children under the age of 18, it is recommended to make a list of at least three guardians (in order of preference) for your children if you pass away. This ensures that there are people of your choosing who will take care of your children if the first choice is unable to do so. If you have the means, it is wise to leave the guardians with financial assistance by naming them as beneficiaries as well.
6. Select a Witness to Sign Your Last Will
You must have a witness sign your will who is not a beneficiary. The number of witnesses involved and the formalities of signing vary by state. It is important that the specifications are carried through exactly as mandated or else your will may not hold up during probate
7. Keep Your Will In a Safe Location
Once your last will has been lawfully created, it is important to keep it in a safe, secure, and accessible location. It is also wise to inform a trusted person, perhaps your executor, of its locations.
Updating Your Last Will
You should always update your will after the event of a significant life event regarding:
The Bottom Line
If your estate is particularly large, you have joint custody of a property, you own a business, you own property abroad, or if you think someone may question the validity of your will then it is especially important to hire a lawyer for your last will.
Lonich Patton Ehrlich Policastri in San Jose is a reputable law firm whose lawyers make it their priority to protect your assets from an extensive probate process.
If you are living in San Jose and want to leave a legacy for your loved ones, our attorneys will help make your intentions a reality. Set up a free consultation with us.
Buy-Sell Agreement In Family Business
/0 Comments/in Business Law, Estate Planning /by Lonich Patton Ehrlich PolicastriYou may have heard of shareholder agreements but have you heard of the more specific Buy-Sell Agreement? This is a fundamental succession planning tool when it comes to owning and operating a business. It is especially helpful in the case of family businesses.
What Is A Buy-Sell Agreement?
Similar to how a will dictates how assets will be transferred in death, a buy-sell agreement is a legal document that dictates where an owner or partner’s share of a business will go in the case of certain life events (i.e. death, retirement, etc.)
Having an agreement like this in place protects the family business. It protects family assets so that everything stays in the family’s control and so that nothing can be transferred outside the family. These agreements can dictate the succession of ownership.
How It Protects Your Family Business
Often, for a myriad of reasons, one family member or partner will try to sell their share of the business. This can cause issues if they’re trying to sell their share outside of the family.Without an agreement in place, they can sell their share off legally despite their intentions. Setting up a buy-sell agreement means you can dictate how shares and assets are transferred or sold. You can create certain stipulations that prevent a family member from selling outside the family.
It can also help to have an agreement in place in case of a divorce. In California, any assets acquired during a marriage qualify as community property. This means that a spouse of the family owner can lay claim to their share of the family business. If you create a strict buy-sell document that requires the spouse to sell their share back to the company in the case of a divorce, you can prevent the share from transferring outside of the family.
The agreements are meant to be put in place in preparation of certain life events. If there is a divorce, or a retirement or a death, a plan is in place to prevent chaos. It is also great to have in place in the case of incapacitation which can include dementia or other things that prevent a person from acting in a mentally sound way or making informed choices.
Having a buy-sell agreement can assure the long term survival of a family business. Why would you not want to have that added layer of protection?
A Buy-Sell Agreement…
If you own a family business or a partner in one, you should consider the benefits of having a buy-sell agreement. That extra protection can ensure the longevity of your company. Live in the greater San Jose and Bay area? Set up your free consultation with Lonich Patton Ehrlich Policastri today.
How To Get Power Of Attorney In California
/0 Comments/in Estate Planning /by Lonich Patton Ehrlich PolicastriThere are many reasons residents of California seek out power of attorney(POA). If you have an older parent with dementia who struggles to act on their own, POA is a way to assure decisions that need to be made are made soundly. If you are being deployed, granting someone power of attorney can allow them to act for you in necessary areas while you are away. If you own a property and reside far away from it, you can grant POA so that someone who lives closer can manage your property for you. These are just a few instances in which the power of attorney becomes valuable. Most likely, you know why you need POA. The question is, how do you get it?
What Is Power Of Attorney?
POA is a legal document through which a person (aka agent) is appointed to make medical and financial decisions on a person’s (principal’s) behalf.
This seems simple in theory, but there are several types of POA, and that’s where things get a little confusing. When you add the different laws per state, things become very murky for those seeking legal help. Lonich Patton Ehrlich Policastri, a legal firm in San Jose, CA, can help clear things up for California residents by breaking down the types of POA.
What Are The Different Versions Of Power Of Attorney?
There are a few different types of POA. To get started, you need to determine which type is right for your situation.
An alternate version of this is the Springing POA in which the document only becomes active when the person becomes incapacitated.
What Happens Next?
So, you’ve determined which document you need. What’s next? There are a couple of legal requirements to complete a power of attorney.
The agent must be 18 years old at least and mentally sound. They should also be someone you trust and can rely on to act in your best interests.
Many people wonder if the document needs to be notarized or witnessed. Based on California law, it can be either.
You can notarize a document for little cost. Some USPS locations now have notaries onsite. While it isn’t required, it is recommended to have real estate matters notarized for solid records.
Having a document witnessed can be a little more intricate. You must have 2 independent witnesses that are adults and mentally sound. The named agent of the POA cannot be a witness. For medical POAs, a healthcare provider or employee of the healthcare provider cannot be a witness either. Once you have your two witnesses, you must sign the document in the presence of the witnesses or you must go through a process known as acknowledgment. This can be as simple as signing the document and calling the witnesses over to say “I signed this. This is my signature.”
If you live in the greater Bay area, such as San Jose, and are in need of legal advice on POA, contact Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations and can help you choose the right document for your situation. Set up your consultation here.
What Does A Trust Administrator Do?
/2 Comments/in Estate Planning /by Lonich Patton Ehrlich PolicastriThere are a lot of responsibilities when it comes to being a trust administrator. Most likely, if you’ve found yourself in this position, you didn’t know much – if anything – about trust administration beforehand. That can leave you with a lot of questions. The lawyers at Lonich Patton Ehrlich Policastri can shed light on your responsibilities and guide you through the administration process.
To start with, what does a trust administrator do?
Trust administrators have a huge responsibility and little room for mistakes. This can be overwhelming. It’s good to know what kinds of duties you will be responsible for going into the process.
Along with their fiduciary duties, trust administrators are also expected to operate under certain principles.
If you’ve been named a trust administrator, it’s normal to feel overwhelmed. There is so much information and it is a huge responsibility. Reaching out to an experienced estate planning lawyer can set you on the right path and prepare you for the duties ahead. Contact Lonich Patton Ehrlich Policastri for a free consultation.
What Is A Revocable Living Trust And Why Should You Have One?
/0 Comments/in Estate Planning /by Lonich Patton Ehrlich PolicastriAs the holidays approach, you might be thinking about family more. You want to take care of your loved ones, and while it’s a hard subject to discuss, you need to make sure everything is prepared when something happens to you. The holidays are a good time to put your affairs in order and make sure your estate is in place so that when that time comes, your family can get through the process as easily as possible. If you know anything about probate, you probably know how time-consuming and expensive it is. A revocable living trust creates the opportunity to avoid probate and is an amazing estate planning tool.
What Is A Revocable Living Trust?
So, what is a revocable living trust? A trust is an arrangement with a third party to hold assets that will eventually be passed to a beneficiary. A revocable living trust means that the stipulations of the trust can be changed while the trustor is living and capable, as their situation evolves.
Why Set Up A Living Trust?
In estate planning, setting up a living trust is recommended for a common reason – to avoid probate. Probate is the lengthy court process in which the passing of assets are determined by a judge. It can take months to several years depending on the case.
Many people don’t even have wills, let alone trusts. Wills are important to putting your affairs in order, but they cannot avoid probate. For assets to pass through a will, you must die first – unlike a living trust – and all assets must go through probate whether you have a will or not. Living trusts are usually able to bypass the probate process altogether, saving your loved ones time and money.
If you live in San Jose or the greater Bay area, set up a free consultation with our estate planning attorneys to learn about living trusts.
How To Set Up A Revocable Trust?
There are a few steps that go into setting up a living trust. You must set up the trust while you are alive. You will need to work with an attorney to figure out the trust’s specifications such as who assets will pass to and how they must pass.
For example, you can create a joint living trust for yourself and your spouse. If one spouse dies, the assets will pass to the living spouse, and after their death, the assets will pass to whomever you name beneficiary next in line. You can stipulate that the assets or property only pass under certain conditions such as if your daughter graduates college. This allows you to control and protect your assets, even after your death.
After you’ve worked with an estate planning attorney to put together a trust, you’ll have to fund the trust. This requires you to place property and assets in the name of the trust. Instead of the property being under the name “John Smith,” it will be titled “John Smith, Trustee of the John Smith Trust.” Forgetting to fund your trust can result in added expenses upon your death and a lengthy process to distribute assets in probate.
Living trusts aren’t right for every situation however, so you should consult with an experienced estate planning attorney before setting one up.
Live in San Jose or close by? Contact Lonich Patton Ehrlich Policastri to find out if a revocable living trust is right for you.
How Much Alimony Do I Qualify For?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriIt’s common to have questions about alimony during divorce cases. The laws on alimony differ state to state. In California, alimony is referred to as spousal support and can be issued in two forms. Lonich Patton Ehrlich Policastri, experienced lawyers in divorce and separation, have broken down these two types to help you know what to expect.
When a couple is going through separation, they often wonder about alimony. Will they have to pay it? Do they qualify to receive it? How much will they receive? The truth is the answer varies case by case. Like many things in law, everything is specific to your case and your needs.
Alimony is a legal order to make support payments to one spouse during or after the divorce. In San Jose, there are two types of spousal support : Temporary and Permanent. Just because you qualify for one does not guarantee you’ll qualify for the other. Find out which one you may qualify for.
Temporary Spousal Support
The purpose of temporary support is to maintain the status quo of the household prior to divorce during the separation case. The time frame this is owed will vary depending on the case. A spouse will be ordered to pay temporary support until a judgement is reached. This can last as briefly as 6 months or up to several years. The amount you will receive is calculated via a software program. The gross monthly income for both you and your spouse is input into a computer program and processed. An amount for monthly payments is then submitted to the court along with who is responsible for those payments.
This type of support is common in cases where the primary breadwinner runs off and refuses to support the other partner. The other partner may have given up a career or education to stay at home and look after the family. This places them at a disadvantage and the court will often order temporary support to help. If the primary breadwinner refuses to pay support, the payments can be taken directly out of their paychecks. Temporary alimony can be issued in addition to child support.
Permanent Alimony
While temporary support is decided exclusively on gross monthly income, the court uses more discretion when determining permanent support. Both parties will go to trial over the amount owed. Factors that go into determining the amount to be paid and the length of payments are net income of both parties, if children are involved, age of both spouses, the health of both spouses and if both parties have a job or if one is in need of training. The purpose of permanent support is to transition the lower earning spouse into a lifestyle that is sustainable and allows them to be self sufficient. It is also to compensate the lower earning spouse for any damage caused to their earning potential. This refers to what we mentioned in temporary support; a case where one spouse gave up a career or education to be the homemaker.
The amount of time spousal support is owned depends on the length of marriage according to San Jose law. If a marriage is determined short term (less than 10 years), half the length of the marriage is typically rule of thumb but not guaranteed. Long term marriages (10+ years) are more open ended. They can be paid for 10 years or even longer. There’s no way to give a definitive answer to this as it’s determined on a per person basis.
Get In Contact
If you live in San Jose, CA and have questions about alimony, reach out to the experienced attorneys at Lonich Patton Ehrlich Policastri. They offer free 30 minute consultations. Find out your chances of receiving temporary or permanent support. If you have children, you can learn about child support as well.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
What Are Grandparents Rights In Child Custody?
/0 Comments/in Family Law /by Lonich Patton Ehrlich PolicastriAs the grandparent of a child whose parents are going through a divorce, many questions can be raised. Will the grandparents be able to maintain visitation of the child? In some cases, if the parents are unfit, can the grandparents be granted full custody? What about joint custody? Lonich Patton Ehrlich Policastri are experienced family law attorneys with knowledge in grandparents rights. Getting the help of a trusted attorney can give you peace of mind and guide you through this challenging time.
Grandparents Rights: Visitation
A grandparents rights to visitation vary state to state. In San Jose, the option for visitation is granted only under specific circumstances. If the parents live separately, are unmarried or a child does not live with either parent or is in the individual care of a step parent, visitation rights may be requested. They may also request visitation if a parent is deceased or if one parent has not been found for over a month. Parents can petition for a grandparent to have visitation rights. If at least one parent agrees to visitation, California courts will consider it. The parents can also refuse visitation rights. If both parents decide they don’t want the grandparents to have visitation, courts will usually determine it is not in the best interest of the child despite any bond that has been formed with the child.
Joint Custody
If you live in San Jose and are seeking joint custody of your grandchild, the good news is it’s possible. Lonich Patton Ehrlich Policastri Family Law can help you gain joint custody. So, when can a grandparent try for joint custody? If custody to a parent/ parents is proven to potentially harm the child, primary custody to a non parent may be awarded. California also operates under the policy of the best interest of the child. If it is proven to be in the best interest of the child to live with their grandparents, joint custody is possible. At the end of the day, it comes down to a stable, safe environment for the child to be raised in.
Full Custody
This is more complicated as California courts typically like to keep parents and children together. There are specific cases where a child may be placed in the full care of a grandparent. For example, if the parents of the child have died, custody may be granted to grandparents. As with joint custody, if parental custody is deemed unsafe or not in the best interest of the child, custody may be granted to a non parent. Parents can also grant full custody to the grandparents or lessen their chance at custody if the child has lived with the grandparents for over a year.
Grandparents rights are circumstantial and very complicated. It’s best to acquire the help of an experienced family law attorney such as those at Lonich Patton Ehrlich Policastri. Get a free 30 minute consultation to go over your options. You don’t have to face this situation alone.
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.
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
/5 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
/3 Comments/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.