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.
About | Why LPEP | Contact | Blog | Data Breach Information
© 2024 Lonich Patton Ehrlich Policastri. All rights reserved. Privacy Policy
Same Sex Divorce in California
/in Family Law /by David PattonFor same-sex couples, the right to marry comes with the right to divorce. Though no one enters a marriage intending to divorce, it is a necessary process for married couples who understand that marriage is no longer the best fit for them.
While many aspects of divorce proceedings in California are the same for same-sex couples and heterosexual couples, there are certain aspects of the law that are particularly nuanced with respect to same-sex couples. Some of the differences can be advantageous for same-sex divorce, while others reflect the biases against same sex couples that are still ingrained in divorce law.
Child Custody Arrangements
The most contentious issue of divorce cases involving children tends to involve child custody arrangements. In the state of California, both parents are able to legally obtain parental rights of their children. In divorce proceedings involving same-sex couples who both have parental rights, both spouses are typically considered with custody arrangements. However, in marriages in which only one parent has parental rights, a judge may consider the biological parent as having more rights in the custody arrangement. Similar to heterosexual divorce litigation, factors involving parental roles and relationships with the child are considered as well.
Alimony Payments
When it comes to alimony, judges have the authority to treat same-sex couples differently than heterosexual couples. This differentiation isn’t due to biases within the law, but rather is due to the fact that many same-sex couples were been living together for years prior to being able to become legally married. In the case of one spouse being financially dependent on the other for a significant period prior to the marriage, the judge may factor that time into the alimony arrangements.
Dividing Retirement Accounts
While the division of retirement accounts is rather straightforward with heterosexual couples, it is often a convoluted process with same-sex litigation.
Domestic Partnership
Another layer that further complicates same sex divorce in California is if the couple obtained a domestic partnership prior to their marriage. If so, then the couple will need to terminate the domestic partnership in addition to ending the marriage. While this process is streamlined for heterosexual couples, it serves as another hurdle to overcome with same sex divorce.
Same Sex Divorce in California
In order to get divorced in California, you must meet California’s residency requirements. Either you or your spouse must have lived in:
If you and your spouse have been in California for at least six months but have lived in different counties, you can file in either county. If you are unable to satisfy the residency requirement, you have the option to file for a legal separation. After the required time has passed and you qualify for a divorce, your attorney can file an “amended petition” to request a divorce decree instead.
How to Facilitate a Smoother Same Sex Divorce
Since same sex divorce is a new area of practice, there are still many gray areas of the law that are open to interpretation. Due to the ambiguous nature of same sex divorce law, it is recommended to hire a same-sex divorce lawyer who is experienced with divorces between spouses of the same sex. Our team of qualified lawyers at LPEP represents one of the largest family law firms in San Jose, California. Contact our offices here to schedule a free 30-minute consultation in which you will learn your recommended course of action to protect your rights in your divorce litigation. You can also learn more about same-sex divorce here.
How Long Does Probate Take?
/in Estate Planning, Probate /by Michael LonichProbate is a dreaded process for many, full of uncertainty. Most people haven’t heard of probate prior to losing a loved one. It is a process that nearly every estate must pass through (with exceptions, of course). Many people find themselves wondering, how long does probate take? To answer this question, you need to understand how the process works.
What is Probate and How Long Does Probate Take?
Probate is the legal process that validates the legality of a will. In this process, a judge determines the validity of a will and declares it legal or invalid. How long does probate take? This process can last from six months up to two years. However, some probate cases have been known to drag on for years. While most probate proceedings are not as time-consuming, cases with high-assets, missing financial information, or cases that do not have a will tend to be significantly lengthier. It is highly recommended to hire an attorney to assist you with expediting the process and protecting the decedent’s assets.
Typically when a will is included, the cases are on the shorter side, however, if the judge believes that part of the will is invalid, the process will be much more extensive.
What Happens During Probate?
The first step is to establish an estate representative to represent the beneficiaries during the court proceedings. An estate representative is typically the executor of the will if a will exists, or it can be another person that is close to the deceased person.
During the legal process, personal representatives of the probate court will collect all assets and pertaining information, and provide the court with a basic catalog of the assets and determined worth.
Next, the beneficiaries of the inheritance are determined, based on either the will or their relationship to the deceased person. After the beneficiaries are determined, the representatives determine how and when the funds should be distributed. If there is a valid will, then this would be per the directions of the will and the reality of meeting logistical demands.
Finally, the beneficiaries examine the document describing the distribution of assets and determine if they approve the process, or raise any objections if need be. Once this step is complete, the court approves the estate distribution process and the assets pass probate.
Does My Estate Have to Pass Probate?
Some people chose to allow their loved ones to bypass the probate process by passing their inheritance through a revocable living trust instead of a last will. Revocable living trusts designate assets to a trustee, who is then responsible for distributing the assets to the beneficiaries. This allows the transference of assets without a lengthy process.. It is typically advisable to create a revocable living trust if you own real property and want to avoid the costly delay in the process.
While revocable living trusts are the most common alternative, other strategies include asking a qualified lawyer to create joint ownership of property or gifts, or pay-on-death accounts and registrations.
Understanding How an Attorney Can Help You
If you are uncertain and need to know how long does probate take in regards to your case, it is highly recommended to discuss your options with a qualified probate attorney. Call our office today to set up a free 30-minute consultation with LPEP. Our reputable law firm in the Bay Area specializes in high-net-worth estate planning. Our large team represents some of the best talents in the San Jose and Santa Clara areas, providing you with the necessary resources to protect your assets and work through the process. Set up a free 30 minute consultation here. (Virtual options available)
What Is Probate?
/in Estate Planning, Probate /by Michael LonichWhen a loved one passes away, you’re consumed with grief. The last thing you want to think about is how assets are divided up. Unfortunately, dealing with assets and the estate is necessary in the aftermath of one’s passing. If you’ve recently lost someone you care about, you may find yourself wondering “What is probate?” Learn what it is and how you can navigate this legal process.
What Is Probate?
Probate is a legal process that occurs after someone passes away. In this process, a court determines how that person’s assets will be divided up. It also dictates how creditors will be paid. Having a valid will can make all the difference in how this process unfolds. You may have heard bad things about probate. This usually has to do with how time-consuming and lengthy the process is. The probate process is paid for out of the estate, so the longer a case goes on, the more depleted the estate will become.
Testate vs. Intestate Wills
Testate means there is a valid will in place, while intestate means there was no will, or the will was proven to be invalid. If the will is valid, the court will use this to name an executor and follow some of the last wishes laid out in the will, if not all of them. When a person dies intestate, the assets will be distributed via California probate law on intestate succession. There will be a court-appointed representative in charge of distributing assets. Dying intestate can elongate the probate process, so setting up a final will and testament can greatly help your loved ones in the future. Regardless of whether your loved one died intestate or testate, some of the steps for probate are the same.
1. Notification
The executor named in the will or appointed by the court is responsible for notifying all creditors and heirs of the probate proceedings. California probate law allows creditors up to one year to place a claim against the estate for repayment. After that window has expired, they may not file a claim in most cases. All heirs, including the ones not mentioned in the will need to be notified of the proceedings. Any heir that sees fit has the right to contest the will. Waiting for all heirs to come forwards and for creditors to come forward is one of the lengthier steps to probate.
2. Debts & Taxes
The executor is in charge of paying off debts and taxes using the assets and estate. The executor must file both personal and estate tax returns if the estate is over a certain income. This adds time to the probate process as it generally takes the IRS 3-4 months to process estate tax returns. Any claims of debt against the estate made in the one year period after notification will need to be paid off using the estate. When an executor is named, they are responsible for the estate and its financial management. If you are the executor of an estate and need help with probate proceedings, contact our San Jose lawyer, Michael Lonich. He is an expert in estate planning and probate.
3. Assets & Division
After debts and taxes have been taken care of, and if no heirs have decided to contest the will, asset division can begin. With the help of a judge, assets will be passed on how the will lays out or how the court dictates. If an heir does decide to contest the will, probate cannot begin until these proceedings are completed. The contesting of a will can take years to resolve, which is a drain on the estate and extends the probate proceedings indefinitely.
What is probate and what steps must an estate go through for assets to be distributed? If you are an executor or an heir in a probate case and have questions about the next steps, contact our legal offices at Lonich Patton Ehrlich Policastri. We offer free 30 minute consultations – both virtually and in person. You can set your consultation up here.
Spousal Benefits for Same-Sex Marriages
/in Family Law /by Riley PenningtonIn recognition of Pride month, it is important to highlight the spousal benefits that were awarded to same-sex couples when same-sex marriage became legal. Although same-sex marriage was legalized in California in 2013, the United States Supreme Court held in Obergefell v. Hodges, that same-sex marriage was legal federally. This decision awarded many couples spousal benefits they were denied for so long.
What are Spousal Benefits?
In some situations, couples can receive advantageous benefits simply because they are married that non-married couples do not have access to. Some spousal benefits include social security benefits, health insurance, tax benefits, retirement, among others. In California, same-sex couples initially had to register as domestic partners to gain access to some of these benefits or they were outright denied altogether. However, since the landmark case Obergefell, same-sex couples are now eligible for spousal benefits that have historically been exclusive to heterosexual couples. This highlights a large step forward for equal same-sex couple rights to many Californians.
Social Security Spousal Benefits for Married Same-Sex Couples
If you are not eligible for social security because you have never worked or paid an insufficient amount into social security, you could potentially claim spousal benefits and receive some of your spouse’s social security. This allows you to receive up to 50% of your spouse’s social security payments and it does not impact the amount they receive. In order to claim these benefits, you must be 62 or older, your spouse must already be receiving social security and you must be married for at least a year. Some exceptions may apply to some cases.
Employer-Provided Health Insurance Coverage for Married Same-Sex Couples
When an employer offers their employees health insurance, generally that employee can extend their health insurance coverage to their immediate family which includes their spouse and their children. Historically, same-sex couples were not able to maintain health insurance for their partners because the state did not recognize their union. This often would put a burden on the non-employee partner to secure their own health insurance which could be costly. However, now that same-sex marriage is recognized as a legal marriage in the state of California, a same-sex spouse can be insured on their spouse’s employment provided health insurance absent any restrictions or barriers.
Tax Benefits for Married Couples
Married couples are potentially eligible for a multitude of tax benefits simply because they married that non-married couples are ineligible for. This includes filing a joint tax return which could lead to a lower amount of income taxed for both individuals. As mentioned above, a spouse can receive tax free health care coverage from their spouse’s employer. Additionally, same-sex married couples are also eligible for many tax benefits involving executing an estate. This is merely a small snapshot of the various tax benefits that married couples enjoy.
How Do I Learn More About What Spousal Benefits I Qualify for?
If you or a loved one would like to learn more about spousal benefits, please contact one of our experience attorneys at Lonich Patton Ehrlich Policastri for additional information here.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may include legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.
What To Expect When You’re Expecting: Navigating The California Adoption Process For Same-Sex Couples
/in Family Law /by Gretchen BogerDuring Pride Month we commemorate and pay tribute to those who bravely protested during the 1969 Stonewall Riots and paved the way for the LGBT activists of today. We celebrate those who continue to fight for equality and recognize the ongoing struggle to solidify basic human rights for all. One right that cannot be overstated is the ability to create and maintain families with dignity. Many LGBT couples define this right as the ability to adopt a child in same-sex couple adoption.
Adoption in California
Each state has its own laws, procedures, and regulations regarding same-sex adoption, but in California, the law treats same-sex couples the same as any other prospective parent or couple. The state permits same-sex couples, as well as LGBT individuals, to pursue several adoption methods, all of which are the processes used by opposite-sex couples. The different types of adoption include:
Each option presents its own set of risks, some involving potential legal struggles with the biological parents, others possibly subjecting parents to extensive nuanced legal procedures and requirements. As such, seeking the advice of an attorney is helpful in determining what adoption plan is right for you.
Same-Sex Couple Adoption
Of course, in a perfect world, prospective parents in a same-sex relationship would not be subjected to evaluative procedures that differ from those of parents in an opposite-sex relationship. However, it is no secret that both express and implicit biases exist in our society and unfortunately, these predispositions can cause people to lose sight of the most important factor in adoption: the best interest of the child. As such, it is possible that an agency may conduct a more intrusive investigation for a same-sex couple. Such treatment may cause the process to be lengthier, and consequently more costly. In California, agencies are prohibited from discriminating based on sexual orientation and gender identity. However, if you believe you are facing any sort of discrimination, it is important to speak to an attorney about your options.
What Are the Next Steps?
Adoption is an inherently personal matter and can often be a very complicated and emotional process. As such, seeking legal assistance will help lessen the pressures that already come with starting a family. Our experienced same-sex adoption attorneys at Lonich Patton Ehrlich Policastri are able to lessen the burdens of the legal process and give you the time to fully enjoy the excitement of welcoming a new member into your family.
If you or a loved one are looking to adopt or have any questions about how to adopt as a same-sex couple, please set up a free virtual consultation with one of our experienced attorneys at Lonich Patton Ehrlich Policastri. You can set up your free virtual consultation here.
Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.