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LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
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Is An Annulment Better Than A Divorce?
/in Family Law /by Riley PenningtonNo one enters into a marriage intending for it to end in separation. However, sometimes marriages don’t work out, and couples find themselves considering a divorce. While divorces are more common, they can be a difficult and expensive process. Annulments are another option that some couples may want to consider, though they are not without their own set of challenges.
So, is an annulment better than a divorce? The answer depends on your individual circumstances. Knowing the details of both options and the regulations within California for who qualifies for an annulment or a divorce can help you make the best decision for yourself and your situation.
What is the difference between an annulment and a divorce?
The core difference between an annulment and a divorce is that an annulment voids a marriage, so it’s as if it never happened. Meanwhile, a divorce recognizes the existence of a marriage and is a legal dissolution of said marriage.
The primary consideration in deciding whether an annulment or a divorce is most suitable for your situation is to evaluate the reason, or grounds, for the separation.
Several common reasons are often cited when couples seek a divorce, including imprisonment, abandonment, adultery, or irreconcilable differences. Couples can also seek a no-fault divorce, in which both parties agree that neither party is responsible for actions that lead to the divorce.
Meanwhile, annulments typically occur when either one or both persons have reason to believe that the wedding should not have happened at all. In the state of California, there are several possible “grounds” for an annulment, including situations where a person has been coerced to marry, either partner is engaging in bigamy, either person is unable to make a sound decision due to mental disability or substance abuse, or either person is underage, in an incestuous situation, or related by blood.
A common misconception is that marriages that have only lasted a brief amount of time can qualify for an annulment, but that isn’t always the case. For an annulment to be granted, it must be proven in court that extenuating circumstances such as one of the conditions outlined above occurred. Given these more stringent annulment requirements, they are typically a less common option for couples looking to separate.
Annulments in California
One key difference when seeking an annulment instead of a divorce is that there are not the same guidelines requiring division of property as there would be in traditional divorce proceedings. When an annulment occurs, both parties are typically reverted to their pre-marriage financial state. They wouldn’t split assets like property or monetary holdings in the same way that might happen with a traditional divorce.
However, California does consider the existence of the putative spouse, or a person who, in good faith, was under the belief that the marriage was legal. In these situations, a judge may intervene to divide property and other assets and make a ruling on eligibility for spousal support, which is not typically awarded during an annulment.
Additionally, children born during a marriage that is later annulled are still considered “legitimate” children. Therefore, they remain entitled to parental support from both parents, though a judge may need to step in to clearly define parental rights.
However, California has legal statutes called “presumptions of paternity,” where it is accepted that while a marriage may have been invalid, the husband is the children’s father. This makes it less of a challenge to establish paternity.
Do I need a lawyer for an annulment?
It’s always a good idea to have experienced representation for any legal matter. A seasoned attorney can guide you through the separation process and help determine whether a divorce or an annulment is the right solution for your situation.
If you are looking for help navigating the legal process for a divorce or annulment in California, contact the expert team at Lonich Patton Ehrlich Policastri at 408-553-0801 to schedule a free consultation today.
Should I Get a Prenuptial Agreement?
/in Family Law /by Gina PolicastriMarriage is a thrilling time for any couple, as two people plan to embark on an exciting new chapter together. Getting married is a big step in a relationship, but it is also a life-changing and legally binding event that should be entered into thoughtfully and with all the facts available to you.
One important question to ask before getting married is whether you should create a prenuptial agreement. No couple wants to think about divorce prior to getting married, but prenuptial agreements can be beneficial in case of a split as a tool to help protect each person’s interests.
What is a prenuptial agreement?
A prenuptial agreement, or a “prenup,” is a legal document that outlines how assets and liabilities will be divided in a divorce. Many view prenups as negative, but they can be quite beneficial if executed correctly.
While some feel that a prenuptial agreement can take the romance out of the situation, indeed, it can be the opposite. It’s an opportunity for you and your spouse-to-be to outline your wishes on the financial aspects of a marriage without being in the midst of a possibly emotional divorce situation.
This can alleviate some of the financial strife of divorce by ensuring both parties are clear on how assets will be divided and cut down on legal fees from mediation if a couple cannot reach an agreement during divorce proceedings.
Why do I need a prenuptial agreement?
Typically prenuptial contracts have been thought of as something only the uber-wealthy need, but that’s not the case. Many modern couples can also benefit from having a prenuptial agreement.
Prenups help prevent disputes over property and assets during a divorce. This is especially important if either spouse comes into the marriage with significant assets, such as wealth, property, or a business.
Prenuptial agreements can also be used to outline child custody and support arrangements, protect spouses from debts that were held before the marriage, or protect inheritances for children from previous marriages.
What if I don’t have a prenup?
If there is no prior agreement in place in the case of a divorce, the state’s laws will determine how property is divided, utilizing the state’s standard property rights for married couples.
Typically this means that any assets accumulated during the marriage are to be divided equally, though the exact guidelines can vary from state to state.
Creating a prenup
It is important that you seek professional legal help when drafting a prenuptial agreement to ensure that an agreement will be considered valid if it should be reviewed in court.
A court will examine whether the agreement is unfair or made under coercion and can invalidate the agreement if it appears that either party entered the agreement under duress or undue pressure. Each party should have their own legal representation to ensure that their interests are represented fairly and communicated clearly. An experienced lawyer can also help guide you through the process to ensure that you have the proper documentation in place.
Get An Expert Team on Your Side
When it comes to family law and estate planning, experience matters. For decades, Lonich Patton Ehrlich Policastri has been helping individuals and families with complex family law and estate planning matters. We’re proud to serve the Bay Area and provide our clients with the highest level of legal care possible.
Click here or call 408-553-0801 to schedule a free consultation today.
What Is The Goal Of Estate Planning?
/in Estate Planning /by Michael LonichEstate planning is a necessary process that everyone should undertake. You can ensure your assets are distributed according to your wishes and that your loved ones are taken care of by creating an estate plan. This topic may seem morbid to think about, but it’s essential to have a plan in place so that your loved ones don’t have to worry about it later on.
In this article, we will discuss how estate planning can help you achieve your goals.
What Is The Difference Between A Will And An Estate Plan?
Many people draw up a will and think they have completed their planning. However, having a will and having an estate plan are two different things.
A will is a legal document that dictates guardianship of your minor children and distribution of your belongings upon your death.
An estate plan is more detailed. It includes your will, but it also involves trusts, power of attorney, healthcare directives, and more. Basically, it determines how your assets will be managed upon your death or incapacitation.
Estate Planning Objectives
There are four main objectives when preparing an estate plan:
If you die without a will, the court will decide how to disburse your assets. An estate plan allows you to designate who receives what. It also prevents long, drawn-out court battles between family members, which could become expensive and lead to family turmoil.
In a perfect world, you will live long enough to watch your children and grandchildren grow up. Nobody expects to die young. However, an essential part of an estate plan is preparing for the event that both you and your spouse may die while your children are still minors. You will want to ensure that your children are provided for, both financially and in terms of legal guardianship.
Estate planning allows you to manage your assets to minimize federal inheritance taxes while you are alive.
An estate plan will give you the opportunity to discuss naming a Power of Attorney and how someone will manage your assets in the event you become incapacitated. You can also arrange for a Living Will to discuss advance directives and name a health care proxy to make medical decisions if you cannot do so.
How to Get Started on Your Estate Plan
It can be overwhelming to try to figure out everything on your own. As with any legal document, it is important to consult with an attorney when creating an estate plan. Your attorney can help you create a plan that meets your specific needs.
If you live in northern California, contact one of the Estate Planning Attorneys at Lonich Patton Ehrlich Policastri. Our legal team has years of experience helping people with estate planning and making the crucial decisions regarding their assets. Call us at 408-553-0801 to schedule a free consultation.
Child Custody in Same-Sex Divorces
/in Family Law /by Gretchen BogerWhen two people in a same-sex relationship get divorced, the process of child custody can be challenging to navigate. In California, there are a few key things to keep in mind if you find yourself in this situation.
This article will discuss the types of custody arrangements in same-sex divorces, and where you can go for help.
How Is Custody Determined In California?
California Family Code 3011 requires that child custody be decided based on the child’s best interests. This means that the court will consider several factors when determining which parent should have primary custody of the child. These factors include, but are not limited to:
In 2005, the California Supreme Court effectively expanded child custody, visitation rights, and child custody rights for same-sex divorces by its rulings in two separate family law cases.
In other words, California law doesn’t treat same-sex relationships any differently than opposite-sex relationships. This law extends to child custody arrangements and means that if you are going through a same-sex divorce, you have the same rights as any other parent would when it comes to child custody.
Types of Custody
Judges typically require parents to agree on a parenting plan before going to court. If the parents agree, then the agreement becomes legally binding. In cases where the parents can’t agree, the judge will require them to meet with a child custody mediator. If they still can’t come to a parenting plan with the help of mediation, then the judge will make the final ruling after meeting with both parents separately.
In California, there are two types of custody:
Legal custody can be either sole, where only one parent will make all the decisions regarding the child, and joint, where both parents share responsibility in the decision-making. Sometimes, both parents will share legal custody, but only one parent has physical custody.
Visitation refers to how the child will spend time with each parent.
Family Code 3011 states that “the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”
Get Professional Assistance to Understand Your Rights
If you are going through a same-sex divorce in California, it is essential to understand your rights regarding child custody. If you live in San Jose or the greater Bay Area, contact Lonich Patton Ehrlich Policastri. Our experienced family law attorneys can help you navigate the legal process and ensure that your rights are protected. Call 408-553-0801 and schedule your free consultation.
Why is Estate Planning Important for Families?
/in Estate Planning /by Michael LonichNo matter your age or financial status, you can always benefit from having an estate plan for your family. While it’s difficult to think of what will happen in the event of premature death, estate planning will remove the stress on your family while receiving your possessions.
If you want the best for your spouse and children, you should develop a comprehensive plan. There is more to estate planning than your assets, so learning the various documents in an estate plan is necessary.
This article will cover what estate planning is and why it’s so important for your family.
What is Estate Planning?
When hearing the word “estate,” you may picture a large mansion with numerous cars. However, an estate is considered everything you own–such as your property, investments, cars, bank accounts, and other personal possessions.
By creating an estate plan, you will develop a detailed plan on where these possessions will go in the event of your death. Without a plan, the decisions will be made by state law and probate courts.
In many cases, the decisions made by courts don’t reflect your family’s needs and true desires. For the benefit of your family, you need to develop a plan that includes the necessary documents.
Most estate plans for families include the following documents:
Estate Planning Saves Time and Avoids Taxes
When you don’t have an estate plan, your family will need to wait an extended period to receive your belongings. As the probate courts determine what to do with your items, your assets remain frozen.
This legal process is incredibly time-consuming and can take months or even years to complete. If you want to save your family the headache and stress of this, you should create a will and list the beneficiaries to your investment accounts.
An estate plan will also reduce the tax burden on your family. Fortunately, California has no state estate or inheritance tax that affects heirs. You will still need to pay the federal estate tax and income tax, with an estate plan helping to reduce the burden.
Protect Your Children with Estate Planning
Estate planning is more than determining who receives your investment accounts. If you have young children, you can name who their guardian will be in the circumstance you and your spouse pass away.
While this situation is uncomfortable to think about, you can have peace of mind knowing they will be taken care of by someone you trust. By not including this in your estate plan, the courts will determine your children’s guardians.
Develop the Ideal Estate Plan for Your Family
If you want to ensure your family is protected, you need the help of an experienced team that specializes in estate planning. Our law firm will develop the ideal estate plan for your unique needs. Contact us today at 408-553-0801 for a free consultation!