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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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Declaration of Disclosure
/in Family Law /by Michael LonichWhat is a declaration of disclosure?
A Declaration of Disclosure provides a spouse with a complete and accurate disclosure of all assets and liabilities you have. The Declaration of Disclosure includes:
Do I have to fill out a declaration of disclosure?
In a proceeding for dissolution of marriage or legal separation, California law requires that parties exchange a general inventory of all assets and liabilities they may have. California requires a declaration of disclosure for many policy reasons including to avoid dissipation of the community estate before distributions, to ensure fair and sufficient child and spousal support and of course to facilitate the division of community assets.
How and when do I exchange a declaration of disclosure?
There are two types of disclosures required by the State of California, a preliminary disclosure and a final disclosure. The exchange of preliminary declarations is an interim step toward the requisite exchange of more comprehensive final declarations of disclosure before a marital settlement agreement can be reached or entry of the ultimate judgment.
The preliminary disclosure must be exchanged at the time of the service of the petition for dissolution or any time during the pendency of the action. Characterization and valuation details are not required in a preliminary disclosure.
In a final disclosure, characterization and valuation details are required. Like the preliminary declaration requirement, service of final declarations is mandatory.
Further, both spouses have a continuing duty to immediately, fully and accurately update and augment their disclosures when any changes may occur.
Will my assets and liabilities become public record?
The extensive disclosures required by California law could reveal private information which, if filed with the court, would become a public record. The threat of public access might discourage full and truthful disclosures; therefore the preliminary and final declarations are not filed with the court and will not become public record. However, while the declarations of disclosure themselves are not filed with the court, each party must file proof of service of each of the required declarations; and likewise, as to any amended declaration of disclosure.
If you are considering dissolution or separation and need help preparing a declaration of disclosure, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
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.
Spousal Support: The Basics
/in Family Law /by Michael LonichThe 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. Thankfully, the courts have established a system where you can still be supported by your spouse after marriage through the means of spousal support.
What is Spousal Support?
Sometimes after a divorce, there is a financial gap or disparity left between the two former spouses. Spousal support seeks to correct that by helping the supported spouse maintain the same standard of living established during their marriage.
Therefore, in its most basic definition, spousal support are 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 timeframe 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. This is called a “temporary spousal support order.” The goal with temporary spousal support is that the supported party will eventually become financially self-sufficient within a reasonable period of time.
Additionally, support can also be ordered by a judge once the divorce becomes final, which is called “permanent (or long-term) spousal support.”
How is Spousal Support Calculated?
For temporary spousal 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 spousal support order for a permanent spousal support order. 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 Do I Go About Getting Spousal Support?
If you or a loved-one are going through a divorce and would like more guidance through the process, including petitioning for spousal support, please contact our attorneys at Lonich Patton Elrich Policastri. We offer free 30 minute consultations with our Family Law Specialists.
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.
The Ins and Outs of Life Insurance During Divorce
/in Family Law /by Michael LonichLife insurance is usually not high on the list of concerns during a divorce. However, it is important to know that under certain circumstances life insurance can be an important asset.
In California, Can Life Insurance be Divided?
California is a community property state, which means that anything earned by the couple is owned equally be each partner. When life insurance is purchased with community money it is possible that the proceeds of the life insurance policy may be community property.
There are two types of life insurance: whole life insurance and term life insurance.
The first type of life insurance is whole life insurance. For whole life insurance, the policy accumulates a “cash value”. The amount of the policy that was purchased with community money is considered to be divisible property in divorce.
The second type of life insurance is term life insurance. Term life insurance is a contract providing only coverage during a specified term and has no cash value. Term life insurance purchased with community money is community property. However, the property in term life insurance is the right to have coverage during the individual term paid for with community money. Because the couple has already received the “benefit” of the policy during the marriage, the policy is not considered to be a divisible asset.
If the partner for whom a term life insurance policy is maintained were to pass away during a term in which any community funds were used to purchase the term policy, a portion of the policy proceeds would be community property and subject to division in a divorce.
Can Life Insurance be Awarded as Child or Spousal Support?
California family law provides broad discretion in matters of spousal and child support. A judge may order a parent to buy an insurance policy with the child or spouse named as the beneficiary.
California law allows life insurance to be awarded for child support because the obligations of the parent extend beyond death. A judge may order a life insurance policy as child support when the judge believes that the ordered parent may have trouble providing for the child.
Life insurance awards for spousal support allows a judge to order a spouse to purchase a policy with the other spouse named as the beneficiary. The judge’s ability to order life insurance as spousal support is directly stated in California Family Code section 4360.
Is There Anything Else to be Aware of?
It is important to remember that a life insurance policy is a separate contract from marriage. The named beneficiary of a life insurance policy does not automatically change following a divorce. The holder of the policy must contact the life insurance provider to request a change of beneficiaries.
Another item to keep in mind is that even if a life insurance policy is not discussed during divorce proceedings, it can be brought before a judge later as an “omitted asset.” The judge may then decide on whether the policy should have been divided or have been included in an award of support.
Determining the rights to life insurance in divorce can be complicated. It is important to understand your rights to a life insurance policy both during and after divorce. If you have questions about your or your partner’s life insurance policy, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
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.
Reverse Mortgages: How it Works
/in Estate Planning /by Michael LonichWhat is a reverse mortgage and why would I want it?
A reverse mortgage is a type of home loan which can be used for any purpose. Unlike a standard home loan where you make monthly payments, with a reverse mortgage, the lender makes payments to you.
A reverse mortgage provides a way to use the equity accumulated in your house without losing ownership of your house or increasing your monthly payments.
When Can I get a Reverse Mortgage?
To obtain a Reverse Mortgage, you must be at least 62 years of age and the house must be your primary home, where you live at least six months out of the year.
The amount of the Reverse Mortgage is affected by many factors, however generally the value of the Reverse Mortgage increase with your age and the value of your house.
How does a Reverse Mortgage Work?
There are two types of reverse mortgages available, Home Equity Conversion Mortgages (HECM) and proprietary reverse mortgage.
HECM are federally-insured, widely available and have no income requirements. Proprietary reverse mortgages are not federally-insured as they are borrowed through private lenders, however they allow for higher loan amounts. The choice of reverse mortgage that is best for you will depend on your circumstances and needs.
You as the homeowner get to choose how the reverse mortgage is received. The payments may be received monthly, lump sum, or as a credit line. Interest is only charged on the amount received and the interest is added to the loan balance. This means that you do not have to pay the interest up front. Additionally, as the payment from the reverse mortgage is a loan, it is not considered income and is not taxable.
Once you have received the payments, there are no restrictions on how the money may be used. The money can be used to supplement your income, pay debts, or even to buy a new home.
A reverse mortgage will continue until all borrowers permanently move out of the house, sell the house, or the last surviving borrower passes away. Once the reverse mortgage ends, the loan becomes due, which can be paid by the sale or refinance of the house.
Is There Any Cause for Concern with a Reverse Mortgage?
A reverse mortgage can provide invaluable assistance in retirement and is the one of the few ways to access the equity you have built up in your home without increasing your monthly payments. However, there are several things to be aware of and consider before you make the decision to get a reverse mortgage.
The first thing to be aware of is that reverse mortgages often have higher fees than standard mortgages. These fees are rolled into the reverse mortgage and will further reduce the amount of equity you have accumulated in your house.
Second, the loan amount becomes due when the house is sold. As the sale of a house may happen unexpectedly it is important to consider the likely hood of this happening and the impact the reverse mortgage will have on the sale.
A final consideration is the effect the reverse mortgage will have on your estate. As you continue to receive payments, the equity in your house is reduced which will affect the amount received by your heirs.
Is a Reverse Mortgage right for me?
A reverse mortgage is a financial tool available to those who understand how the loan works. When considering a reverse mortgage, it is important to understand as much as you can about the reverse mortgage process, and balance that with your needs.
If you are thinking about a reverse mortgage loan, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri. We offer free half-hour consultations.
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.
California Divorce: What is a Moore Marsden Analysis?
/1 Comment/in Family Law /by Michael LonichWho or What are Moore and Marsden?
Moore and Marsden are two cases decided by the California Supreme Court and the California Appellate Court in 1980 and 1982 respectively. These cases dealt with the issue of how to determine the community property interest in a house.
Generally, a house purchased before marriage will be treated as the purchaser’s separate property. However, during marriage if the mortgage is paid with community funds a portion of the value of the house may become community property. Because California is a community property state, this means all community property is divided equally in a divorce.
When do I Use a Moore Marsden analysis?
The decisions of the Moore and Marsden cases are the basis for what is called the Moore Marsden analysis. The Moore Marsden analysis applies a formula to determine what portion of a house is community property due to mortgage payments made during marriage with community funds.
To apply the Moore Marsden analysis, you need to have two key factors. First, any mortgage payments made must be made with community funds. Second, these payments must include payment of the loan principal and not only interest.
How do I Apply a Moore Marsden Calculation?
If you meet the above two factors, you must compare the market value of your home at the time of your marriage and the market value at them time of your divorce proceedings to calculate the amount the house has increased in value during the marriage.
You then compare the amount principal paid during the marriage to the total purchase price of the house to calculate what percentage of the purchase price was paid during the marriage.
Next you take the percentage of the purchase price that was paid by the community and compare that to the amount your house has increased in value during marriage and add to it the amount of the principal paid by the community to calculate the total amount of the house that the community is entitled to.
Finally, in a divorce this amount is divided between the spouses because it is community property.
For example, if your house was worth $100,000 at the time of marriage and $200.000 at the time of divorce, then the house has increased in value by $100,000.
If you purchased the house for $50.000 and during your marriage paid off $10,000 of principal with community funds, then 20% was paid by the community.
Using the above examples, you take the percentage paid by the community, 20%, of the amount your house increased in value, $100,000, and add the amount of principal paid during the marriage, $10,000, which equals $30,000. This means that the community would be entitled to $30,000 of the $200,000 house.
This would mean that in the above example, each spouse would be entitled to $15,000 as community property is divided equally. The remainder of the house value and the balance due on the loan is kept by the spouse that purchased the house with separate funds before the marriage.
Is There Anything Else I Should be Aware of?
In a typical divorce, there are many additional factors that may be involved in the calculation. Refinancing and home improvements made with community funds both influence the calculation. Further, it may simply be difficult to agree on the required values of the home with your spouse.
Because of the complex nature of the Moore Marsden analysis, it is important to discuss your circumstances with a knowledgeable expert. If you own a home and are considering divorce, please contact one of the experienced attorneys at Lonich Patton Ehrlich Policastri.
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.