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Man signing a postnuptial agreement with attorney
Mitchell Ehrlich

Do I Need an Attorney for a Postnuptial Agreement?

December 14, 2022/in Family Law /by Mitchell Ehrlich

Marriage is a beautiful partnership between two people. While the majority of people are familiar with prenuptial agreements, also known as “prenups”, less people are aware of postnuptial agreements. If you entered into your marriage without a prenup, take heart – it is not too late to make a legal move to protect the financial future of yourself and your loved ones. Postnups are not as common as prenups, but are still a powerful tool that can be used to protect yourself from a complicated divorce. No one plans to get divorced, but it is a reality for many marriages. 

What Does a Postnuptial Agreement Do?

Postnuptial agreements are laid out to protect both parties, and can significantly reduce stress in the event of a divorce. When a couple decides to get divorced in the state of California, their assets and debts that they acquired while married are split between the two in what is deemed the most equitable way. But what happens if a major financial event happens to one member of the couple after they say their vows? This is where the opportunity for a postnuptial agreement becomes significant. Whether one spouse receives an inheritance, starts a new successful business, or even acquires a large debt, a postnup is a way to clearly dictate who receives that financial asset or burden if a divorce occurs. While the benefits of a postnup are similar to those of a prenup, postnuptial agreements can be more difficult to enforce. This is because there is a higher risk of one spouse being forced to sign the agreement against their wishes. In order to make sure you have a valid and enforceable postnuptial agreement, you need to hire an experienced and meticulous attorney.

What Are the Benefits of Hiring an Attorney to Draft the Postnup?

Since the intended goal of a postnuptial agreement is to protect and benefit both parties, not just one, having each party have an attorney to serve their interests in drafting the agreement is vital. Not only will the attorney provide wise counsel and valid insight, but the attorney will also be able to create an agreement that will be enforceable in court. Having an attorney present during all steps of drafting the agreement will also lessen the chances of one spouse being able to claim they were coerced into signing the document. Experienced attorneys understand the complexity of dividing assets and debts during a divorce, and know the necessary details to pay attention to in order to create a legally-binding document that is both fair as well as transparent.

Contact Lonich Patton Ehrlich Policastri Today For a Free Consultation.

If you believe that a postnuptial agreement is the right choice for you and your spouse, give us a call today at 408-553-0801 for a free, no-obligation 30-minute consultation. Our board-certified attorneys have decades of experience and a passion for helping our clients. Family law can be complex, so place your trust in the experts here at LPEP Law. We are happy to answer any of your questions and help walk you through the next steps. 

https://www.lpeplaw.com/wp-content/uploads/2022/12/Signing-a-postnuptial-agreement.jpg 473 1279 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2022-12-14 17:33:232023-03-20 21:57:58Do I Need an Attorney for a Postnuptial Agreement?
Man and woman signing divorce papers, bifurcated divorce
David Patton

What Is A Bifurcated Divorce & When Is It Granted?

December 6, 2022/in Family Law /by David Patton

Divorce is a difficult process under the best of circumstances. The process can become even more complicated and contentious when spouses can’t agree on anything. The term “bifurcate” means to split something into two separate pieces. Therefore, in a bifurcated divorce, the court grants the divorce itself before resolving other issues in the case.

What is the Purpose of a Bifurcated Divorce?

Deciding to end a marriage is always a complicated choice, and the process can be even more complex if significant assets or children are involved. A bifurcated divorce can be helpful when the parties want to move on with their lives but cannot agree on other matters, such as property division or spousal support. 

Bifurcation may be requested at any time during the proceedings, but it is most commonly sought early on, typically soon after filing the petition or responsive pleading. 

This type of divorce is typically used when one party is seeking to remarry and needs to resolve the issue of divorce before doing so. California does require a six-month waiting period after a divorce is finalized before a spouse can remarry. However, a bifurcated divorce speeds up the process by separating the dissolution of the marriage from the other issues.

It can also benefit couples who have been married for a long time and have complex financial issues that must be resolved. After the court issues the judgment of divorce, a separate trial will be set to settle the other problems, such as:

  • If a prenuptial agreement is valid
  • The date of the separation and the date to use for the valuation of marital assets
  • Determining which property is marital and which is separate
  • The division of marital property
  • The valuation of a shared business or the increase in value of a company during the marriage
  • Physical and legal custody of any children
  • Parenting time of both parents
  • Child and spousal support
  • Any other issues

The Pros and Cons of a Bifurcated Divorce

This type of divorce can help couples who want to avoid a lengthy and contentious divorce process. It can also be beneficial for couples who wish to keep their finances separate during the divorce. In addition, a bifurcated divorce can help protect assets and ensure that property is divided fairly. Finally, a bifurcated divorce can give couples more control over the divorce process. 

However, there are also a couple of potential drawbacks to consider. First, a bifurcated divorce can be more expensive than a traditional divorce, as it requires two separate court appearances. Also, it can be emotionally exhausting as you and your ex-spouse work through the contested issues.

Discuss Your Concerns With Our Experienced Lawyers

If you are considering a bifurcated divorce, it’s essential to seek legal advice from an experienced family law attorney who understands California’s laws. Our lawyers at Lonich Patton Ehrlich Policastri know that each situation is unique, and we will work with you for the best possible outcome for your particular circumstances. Contact us for a free consultation to see how we can help you by calling (408) 553-0801.

https://www.lpeplaw.com/wp-content/uploads/2022/12/BifurcatedDivorce.jpg 692 1595 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2022-12-06 22:22:062023-03-20 21:57:22What Is A Bifurcated Divorce & When Is It Granted?
Man removing a wedding ring before cheating on spouse, paying alimony
Gretchen Boger

Can You Avoid Paying Alimony If Your Spouse Cheats?

November 30, 2022/in Family Law /by Gretchen Boger

Infidelity is one of the most common reasons for a marriage to end in divorce. If you find yourself in the unfortunate situation of your marriage unraveling because your spouse cheated on you, you might be wondering whether you can avoid paying alimony since you were not at fault. Although some states still allow you to file for divorce based on adultery, California is a no-fault divorce state. Cheating does not reduce or eliminate your spouse’s eligibility to receive alimony. However, alimony is not automatic or mandatory in California, and there might be a few steps you can take to protect yourself.

Types of Alimony in California

Alimony, or spousal support, is the higher-earning spouse’s financial payment to the other during and/or after a divorce, usually to help the recipient get back on their feet or maintain their standard of living. There are two types of alimony in California: temporary and long-term.

  • Temporary Alimony – Usually paid while the divorce process is underway to help maintain the standard of living until the divorce is final. This spousal support is meant to help the recipient become financially self-sufficient, given enough time. Lasting anywhere from 6 months to several years, the judge usually relies on a preset formula to determine the amount.
  • Long-term Alimony – Once the divorce is final, the judge might order spousal support that continues for an extended period of time. Long-term alimony is sometimes called rehabilitative alimony because the judge will usually encourage the recipient to try to become self-supporting through education, training, or work experience.  

Although spousal support is usually paid monthly, there is an option known as lump sum alimony where the individual pays the entire alimony debt at once. This option might be preferable to avoid further interactions with the recipient.  

How Does the Judge Decide?

When determining the amount of support and length of time the alimony should be paid, California family court judges consider several factors, including: 

  • Duration of marriage – For a shorter marriage, alimony payments might not be ordered.
  • Age and health of both spouses – If the lower-earning spouse is still young and healthy, they are more likely to become self-supporting in the future so might receive less alimony.
  • Standard of living while married – If a couple had a high standard of living while they were married, a judge might order alimony payments to the lower-earning spouse so that they can sustain that lifestyle alone.
  • Earning capacity of each spouse – The spouse with the higher earning capacity is more likely to be ordered to pay alimony. 
  • Any other relevant factors – This catchall category allows the judge leeway to consider all other issues when deciding on fair spousal support.

Can I Avoid Paying Alimony? 

Since alimony is not mandatory in California, you might be able to avoid paying spousal support. If your spouse decides to cohabitate with a new partner, for instance, those new living arrangements might effectively ease his or her financial situation, which might negate the need for alimony. Alternatively, if you can provide evidence that your spouse is able to work and support themselves without additional financial help, any alimony payments ordered might be decreased or terminated. Choosing a knowledgeable attorney can significantly increase your chances of avoiding alimony payments.

An Experienced Advocate Can Help You

Divorce can be complicated and emotionally draining. When infidelity is involved, divorce can be even more stressful. Having an experienced team on your side can ensure that decisions are made in your best interest, and you are protected. At Lonich Patton Ehrlich Policastri, we have an expert team specializing in Family Law with in-depth understanding of spousal support issues and guidelines. If you have questions about alimony, please call us today at (408) 553-0801 for a free 30-minute consultation. We’re here to help.

https://www.lpeplaw.com/wp-content/uploads/2022/11/ManRemovingWeddingRing.jpg 410 899 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2022-11-30 19:47:242023-03-20 21:54:44Can You Avoid Paying Alimony If Your Spouse Cheats?
Child embraces father at front door of home while mother watches, moving out after divorce, custody arrangements
Gina Policastri

How to Handle Child Custody When One Parent Wants To Move

November 22, 2022/in Family Law /by Gina Policastri

When one parent wants to move with the children, custody arrangements can become very complicated. If you are in this situation, it is essential to know your legal rights and options. This blog post will help you understand what to do if your ex-spouse wants to move with the children and how you can protect your rights as a parent.

How is Child Custody Determined in California?

In California, child custody is the legal right of a parent to have a child live with them. Custody can be either physical or legal. Physical custody means that the child lives with the parent, while legal custody refers to the parent’s ability to make decisions about the child’s education, health, and welfare. 

Child custody can be joint, meaning that both parents have equal rights and responsibilities, or sole, meaning that only one parent has custody. Visitation, or time-sharing, refers to the amount of time that the child spends with each parent.

Custody is typically determined by a judge based on what is in the best interests of the child. 

How “Move-Away” Situations are Handled

Sometimes situations arise where one parent may need to relocate to a different area for work or to be closer to family. If the moving parent has sole physical custody, then it is the other parent’s responsibility to show that the move would be harmful to the family.

However, if parents share joint physical custody and one parent wants to relocate, they must notify the other parent of their intent to move. The parents can discuss changes to the visitation schedule and ensure the non-moving parent can maintain a relationship with their child. If the parents can reach an agreement, they need to file a child custody modification with the court.

But, if the non-moving parent doesn’t want the child to move, the relocating parent must show how the move would be in the child’s best interest.

Courts generally consider the following factors when making a decision about relocation: 

  • The reasons for the move
  • The impact of the move on the children’s schooling, extracurricular activities, and relationships with friends and extended family
  • The ability of the non-custodial parent to maintain a relationship with the children after the move
  • The wishes of the children, depending on their age.

In some cases, other factors may also be considered, such as the move’s financial impact on both parents or the effect on special needs children. Ultimately, however, the court will always prioritize what is in the child’s best interests in making a relocation decision.

Understand Your Options for Custody Arrangements

If you are a parent facing the possibility of your child’s other parent moving away, it is crucial to understand your legal options. Our attorneys at Lonich Patton Ehrlich Policastri have extensive experience helping parents in all types of custody cases, including those involving relocation. If you live in San Jose or the greater Bay Area, contact us for a free consultation. We want to learn about your unique situation and help you determine how best to proceed. Fill out our contact form by clicking here or call us at 408-553-0801.

https://www.lpeplaw.com/wp-content/uploads/2022/11/ParentMovingHuggingChild.jpg 415 900 Gina Policastri https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gina Policastri2022-11-22 19:57:132023-03-20 21:49:24How to Handle Child Custody When One Parent Wants To Move
Mother holding special needs child, parent of a child with special needs
Michael Lonich

Why Estate Planning is Essential for Parents of Children with Special Needs

November 15, 2022/in Estate Planning /by Michael Lonich

As the parent of a child with special needs, it can be difficult to think about the future when you will no longer be able to personally provide the loving care your child needs and deserves. One important way that you can continue to provide for your child, however, is to have an estate plan in place to ensure they have the legal, financial, and other support they need both now and in the future when you are no longer able to advocate on their behalf. 

What An Estate Plan Includes

Estate planning is not contingent on having a substantial amount of wealth and is not limited to distribution of your assets alone. Rather, estate planning is the process of organizing both your financial and personal affairs to ensure that your final wishes are honored and your loved ones are taken care of after you are gone. For families, estate plans can allow you to assign insurance beneficiaries, plan for funeral expenses, and establish guardianship for living dependents, which is vital if you have young children or children with special needs who might never be in a position to effectively manage an inheritance on their own.

Special Needs Trust

If you are the parent of a special needs child, you must balance giving your child a portion of your estate with ensuring that those finances do not negatively impact your child’s eligibility to receive needs-based public benefits like Medicaid, Social Security Income, or the Supplemental Nutrition Assistance Program. Many of these benefits are only available to low-income individuals with limited assets, so leaving a lump sum of money as an inheritance to your special needs child might not be in their best interest. Instead, you should consider setting up a special needs trust (SNT), which allows you to leave the property and other assets to your child without disqualifying them from government-funded benefits. Setting up an SNT has the added benefit of allowing your loved one to receive assets from other people, including family members, as well.

If you choose to set up an SNT, you must also appoint a trustee to manage the funds on your child’s behalf. Your trustee will use the funds to support your special needs child’s quality of life, paying for anything he or she might require in the future, which could include, among other things:

  • Food 
  • Transportation
  • Rehabilitation 
  • Clothing 
  • Medical care
  • Entertainment
  • Vacations 
  • Hobbies 

It is important to include specific instructions in your SNT documents about how you want your appointed trustee to distribute the funds to properly care for and support your child. 

Are You the Parent of a Child with Special Needs? We Can Help Protect Their Future.

The best time to begin estate planning, especially if you have a special needs child you want to provide for, is now. Although it can be uncomfortable to consider the inevitable, developing an estate plan can help ease your mind that your wishes will be carried out, and that your family will be protected in the future. Navigating all the different components of a comprehensive estate plan can be daunting, but the estate planning attorneys at Lonich Patton Ehrlich Policastri Law can help guide you every step of the way. In fact, our attorneys have particular expertise and experience in developing special needs trusts. Call us today at 408-553-0801 to schedule your free consultation. 

https://www.lpeplaw.com/wp-content/uploads/2022/11/ParentWithSpecialNeedsChild.jpg 757 1920 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2022-11-15 20:59:472023-03-20 21:47:41Why Estate Planning is Essential for Parents of Children with Special Needs
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Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com

Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, and San Benito. For a full listing of areas where we practice, please click here.

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