Contact Us
LONICH PATTON EHRLICH POLICASTRI
1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com
LONICH PATTON EHRLICH POLICASTRI
Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com
1871 The Alameda, Suite 400
San Jose, CA 95126
Located in San Jose, Lonich Patton Ehrlich Policastri handles matters for clients in northern California, specifically San Jose and Silicon Valley. Our services are available to anyone within the following counties: Santa Clara, San Mateo, Contra Costa, Santa Cruz, Monterey, San Benito, and San Francisco. For a full listing of areas where we practice, please click here.
MAKE A PAYMENT BY SCANNING THE QR CODE BELOW:
DISCLAIMER
This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.
© 2024 Lonich Patton Ehrlich Policastri. All rights reserved. Privacy Policy
Can I Do Estate Planning Myself?
/in Estate Planning /by Michael LonichWhen it comes to estate planning, it’s not a subject most people want to think about. However, estate planning is essential for everyone, regardless of age or wealth. So it’s important to put a plan in place with instructions in the event of your passing, especially if you have children or significant assets. You are preparing a document that can speak for you and clarify your intentions.
It can be tempting to save money upfront using a quick fix solution with services like LegalZoom or RocketLawyer. These platforms provide templated documents that appear professionally written. Still, this seemingly easy solution can cause headaches or lead to costly situations for your heirs if the documents are not correctly set up or are legally unenforceable.
This isn’t to say there are no situations where a DIY solution may be suitable. A simple DIY will may meet your needs if you have modest assets or a clear division of property. However, for more complex situations, the guidance of a legal professional can be invaluable in ensuring your wishes are communicated clearly and without bias at a time when emotions can be running high.
A hasty decision to create a DIY will can leave lasting financial and emotional consequences for your relatives – at best, leading to confusion and at worst, leading to lengthy and perhaps even hostile litigation if you do not make your wishes clear and legally binding.
Working with an impartial legal counselor can help you make unbiased decisions that align with your own wishes, not influenced by family members or friends.
What should an estate plan include?
At a minimum, an estate plan should include three key elements: a will, power of attorney, and healthcare directive. A will is a document that explains to the court how you would like your assets, such as property, investments, valuable possessions, and even businesses, to be distributed. If you have minor children, it’s also essential that you designate a legal guardian so there is a clear plan in the event anything should happen that leaves you unable to care for your children.
You can also designate power of attorney indicating who is authorized to act legally on your behalf or make decisions in the event you are incapacitated. In conjunction with this, a healthcare directive clarifies how you would like medical situations, such as organ donation, to be handled.
Other factors to consider:
In addition to the will, power of attorney, and healthcare directive, there are a few other factors you might want to include in your estate planning.
You can create a funeral plan that provides direction on how you would like funeral arrangements to be handled in the event of your passing. It may also be helpful to outline arrangements for any final expenses, such as a funeral or settlement of debts.
It’s also vital to keep your estate plan up-to-date with significant life events such as marriage, children, or divorce. A lawyer can also help ensure proper custody of the will and note any changes throughout your life, so there are no questions of integrity to the chain of custody.
If you have questions about setting up your estate plan, call Lonich Patton Ehrlich Policastri at 408-553-0801 or click here to schedule a free consultation.
How Spousal Support Works in Same-Sex Divorces
/in Family Law /by David PattonIn 2015, same-sex marriage was legalized federally in the United States, which meant that same-sex marriages were finally recognized in all states. This decision ensured that same-sex couples could receive the same benefits as heterosexual couples, including legal privileges such as medical insurance, tax benefits, and employee benefits for spouses.
Since the ruling, same-sex couples are navigating divorces for the first time as well. The process is the same in many ways, but there are some unique factors for same-sex couples considering a divorce.
What is spousal support, and how is it determined in a divorce?
Spousal support, also known as alimony, is a payment made from one spouse to another in the event of divorce within a marriage. The spousal support is typically awarded as part of a divorce settlement when one spouse can’t work or is unable to independently earn sufficient income to maintain a marital standard of living after a divorce.
In these cases, a court may award spousal support as a part of the divorce process. Spousal support is typically calculated taking into account a number of factors, including current income, earning potential, work or education experience of each spouse, custody of children, and more.
In a typical divorce, a judge will also look at the length of a marriage, whether there was a pre-nuptial agreement, and whether there was any shared property or assets between the couple.
Are there unique issues or considerations for same-sex divorces?
Although many aspects of divorce are the same for same-sex couples, there are some circumstances that could impact a same-sex spousal support agreement.
Same-sex couples may be more likely to have a less conventional situation when it comes to children. They may have adopted a child together or utilized a surrogate or an egg or sperm donor.
In these cases, the court may need to examine the situation to determine whether both parents have parental rights, and some have questioned whether primary custody typically could be awarded to a biological parent.
Determining the duration of a marriage can also be unique for same-sex marriages: This is because sometimes the relationship has lasted longer than is legally indicated, due to same-sex relationships only becoming formally recognized in the mid-2010s. A couple may have been in a domestic partnership or long-term relationship before that, but it wouldn’t necessarily be documented legally. In certain situations like this, courts may have the discretion to recognize longer relationships.
Shared property and assets can also be a question that comes up in divorce proceedings. There could be a question of how to properly divide assets if an asset was purchased before the marriage became recognized federally.
Since this is still a newer area of the law, many divorces are settled on a case-by-case basis. That’s why it can be important to make sure you have an experienced family law attorney to help you navigate the unique circumstances surrounding LGBTQ+ divorces.
To set up a consultation with one of Lonich Patton Ehrlich Policastri’s experienced California attorneys, click here or call (408) 553-0801.
How Child Custody Mediation Works
/in Family Law /by Virginia LivelyWhen a couple decides to separate, nothing is more important than coming together to determine what is in the best interests of their children. It is a difficult situation, as there may be anger and hurt on both sides. Still, a trained mediator can help ensure the best possible outcome for everyone involved, especially the children.
Parents can meet with a private mediator or one appointed by the court. A mediator is a neutral party who will listen to both parents, review different options, and come up with a solution on what is in the best safety and welfare of the children.
What to Expect During a Child Custody Mediation Session
A child custody mediation session is not the opportunity to place blame on the other parent. Instead, it’s essential to come into the session with an open mind and a willingness to listen. A mediation session is an opportunity to come together and decide upon the best co-parenting plan that will have minimal disruption in the child’s life.
There are three main goals of child custody mediation:
A child custody mediation session may last a few hours. It is important to get a good night’s rest the night before to ensure that you are focused and alert. Be prepared to discuss several options regarding your child’s schooling, activities, appointments, transportation, and other daily activities.
Is Child Custody Mediation Mandatory In California?
California family courts want the issue of child custody and visitation settled before any hearings take place. According to Family Code 3170 and 3175, family courts require meditation whenever there is a dispute, and it is mandatory before the parents appear before the judge for child custody rulings.
Is Child Custody Mediation Legally Binding?
A parenting plan can be resolved with either a private mediator or a court-appointed one. However, after the couple arrives at a solution, it goes before the judge. The judge will review and sign the agreement, thus, making it a legally binding document.
In the cases where parents can not come to a solution, the mediator will make a recommendation to the judge. The judge may agree or make some changes, but once the judge signs it, it is legally binding.
Get Help From An Attorney
A child custody mediation can be emotional, and you may be feeling stressed and confused. The attorneys at Lonich Patton Ehrlich Policastri can help you understand the process and what to expect. Our attorneys have years of experience helping parents through the mediation process and can provide you with the guidance you need to make the best decision for your family.
We offer free consultations so that you can get all of your questions answered before making a decision. Contact us today to learn more about how we can help you through this difficult time.
Debt During Divorce: Who’s Responsible?
/in Family Law /by Gina PolicastriA big question often arises in divorce settlements – who is responsible for the debt? It’s a complex question requiring a degree of nuance in determining. In particular, California divorces have unique circumstances relating to community property.
What is community property?
Community property is a critical concept to keep in mind when initiating the divorce process, especially in California, a community property state. Any income of either spouse and real or personal property acquired by either person during the marriage falls under community property – though this does not include gifts or inheritances.
This means that both spouses share equal ownership rights for any earned income or property – but beware that this means debt also falls under community property.
Who is responsible for any jointly accrued debt?
Under California community property law, any financial obligations incurred during your marriage become the responsibility of both spouses during a divorce. Premarital debts brought into the marriage could also become the responsibility of both parties.
There are, however, some exceptions to this. Separate property is acquired before entering the marriage and therefore does not become shared community property. This can be things like a house or vehicle owned before the marriage. As long as the funds for payments on this property come from a separate source and not from income generated during the marriage, the property remains separate.
If funds do become mixed, this is considered co-mingled property and can be tricky to sort out. This can happen in situations where an initial property was considered separate but was sold, and the funds were then used to buy another asset that was partially paid for with community income as well.
How can you protect yourself from liability?
For individuals who are considering nuptials but haven’t yet said “I do,” a pre-nuptial agreement is worth discussing. An agreement like this might outline that both spouses agree to treat their debts and income separately.
While no one wants to think about a future divorce as you plan a wedding, a pre-nuptial agreement can ensure you and your spouse-to-be are on the same page in the event something should happen down the road. This allows you to discuss with a level head, not in the event of a divorce when emotions are running high.
How can an attorney help?
Although community property can be a complicated matter, it doesn’t necessarily mean that you need to appear before a judge to sort out the property division. Often, attorneys can help a divorcing couple come to an agreement, though note that in California, a judge will still need to sign off on the final agreement with a court order to ensure its validity.
If you have questions regarding a division of debt in your divorce, call (408) 553-0801 or click here to schedule a free 30-minute Family Law or Estate Planning consultation. Lonich Patton Ehrlich Policastri’s experienced attorneys specialize in divorce and family law and can help with your divorce-related debt questions. With over 100 years of combined experience, the Family Law group at LPEP can help you navigate even the most complex of family law and estate planning matters in California.
Recently Divorced? Take Advantage of Potential Tax Breaks
/in Family Law /by Gretchen BogerFor many people, getting divorced is a difficult and life-changing experience. While there are undoubtedly challenges that come with divorce, it’s important to consider that there may also be some potential tax breaks available as both partners go through this process.
Determine your tax filing status
If you were legally married as of December 31, you can file a joint tax return. This allows you to combine your income with your spouse to receive a higher standard deduction.
If you can’t file jointly, you can still consider filing as head of household, which also has the benefit of a bigger standard deduction and more lenient tax brackets. However, only one spouse can file as head of household, and there are several requirements to be eligible: you must have had a dependent living with you for at least half the year, and you must have paid for more than half of the upkeep of your home.
Alimony and Child Support
If you have an alimony agreement put in place before 2018, you can deduct the payments as an above-the-line deduction. However, if you began an agreement after 2018 or changed an existing agreement, the payments will not be considered deductible. The IRS also requires the recipient’s social security number to be reported, so they can track it to make sure it’s reported as received income.
Child support payments are handled in a separate manner. You cannot deduct nor be taxed for any child support payments made or received.
Claiming Dependents
After a divorce is finalized, only the custodial parent can claim children as dependents. The custodial parent is the parent with whom the children live with more nights during the year. This parent can claim the earned income tax credit and other credits such as higher education tax credits.
There is an exception to this – a custodial parent can fill out a Form 8332 waiver and transfer dependent status to the non-custodial parent on a yearly basis. This could make sense in a situation where the non-custodial spouse falls in a higher tax bracket.
Children’s Medical Expenses
If you contribute towards a child’s medical bills, you may also be eligible to include this in your medical expense deductions. This applies even if you aren’t the primary custody holder. However, the expenses would need to exceed 7.5% of your adjusted gross income to be eligible.
Asset Transfers and Sales
It’s important to consider the possible tax implications involved with transfers of assets. While there is no tax responsibility for the recipient when a property is transferred during a divorce, they would be responsible for capital gains taxes on the appreciation of the house if and when it was sold.
You may also decide jointly to sell a home. In this situation, if you have owned the property and lived there for at least two out of the previous five years, both spouses can exclude up to $250K each if filing separately, or $500K if filing jointly.
If you live in the San Jose, CA area and have questions about the tax implications of a pending divorce, call (408) 553-0801 or click here to schedule a complimentary consultation. Lonich Patton Ehrlich Policastri has a team of experienced attorneys specializing in divorce and family law who are ready to help you.