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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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Immigration Obstacles for Same-Sex Couples
/in Family Law /by Gina PolicastriLove and marriage transcends borders all over the world. It is not unheard of for travelers to meet locals and fall in love and live happily ever after. In the United States, however, this happenstance does not have a happy ending for same-sex couples.
Federal law prohibits immigration authorities from treating same-sex couples the same as married heterosexual couples. See Immigration, marriage laws leave same-sex couples in limbo. Foreign same-sex spouses are viewed neither as married nor as a citizen. As a result, they cannot leave the country to visit family or friends for fear that they may not be allowed back into the United States and they may not be allowed to work either. While a U.S. citizen who marries a foreigner of the opposite sex can apply for a green card for the spouse to stay in the country and eventually become a citizen, a U.S. citizen who marries a same-sex foreigner cannot.
The Defense of Marriage Act (DOMA) does not allow same-sex couples to receive federal benefits available to opposite-sex couples no matter if they are married, in a civil union, or living in a state that recognizes same-sex marriage. Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized cases involving immigrants with serious criminal records and seemingly granted extra discretion in cases involving binational same-sex couples. However, until Congress repeals DOMA or the courts strike it down, DHS will continue to enforce it.
Federal courts in Massachusetts and California have ruled DOMA unconstitutional and the Justice Department is no longer defending DOMA in federal court, however, the status of binational couples remains in the balance. The San Jose family law attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Erlich Policastri. Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues. 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.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
California “Long-Term” Marriages
/2 Comments/in Family Law /by Mitchell EhrlichRecently, L.A. Lakers basketball star Kobe Bryant’s divorce from Vanessa Bryant made national headlines. There has been speculation and discussion regarding the size of Vanessa’s potential divorce settlement, particularly due to the length of their marriage, which was more than ten years. See L.A. Times, Kobe Bryant divorce: Prenup could have ‘saved half of his fortune.’ It has been posited that Vanessa purposefully waited until after their ten-year anniversary to ensure spousal support for a lengthy period. However, while Vanessa will likely receive a significant amount of spousal support (Kobe’s net worth is estimated at $300 million), the focus on her “wisely waiting ten years to divorce” should not necessarily garner the attention it has.
According to California Family Code section 4336, there is a rebuttable presumption that a marriage of ten years or more (from the date of marriage to the date of separation) is a marriage of “long duration” for purposes of retaining spousal jurisdiction which could lead to lengthy support orders or even lifetime support. This does not mean, however, that shorter marriages will not be considered marriages of “long duration.” Courts have discretion to determine a marriage to be of “long duration” after evaluating and weighing underlying facts. So while ten years of marriage may appear to be the magic number, it is not the only way a court will retain spousal support jurisdiction. It is possible that a trial court could determine Kobe and Vanessa’s marriage was lengthy even if they were married for less than ten years.
The court’s ability to retain spousal support jurisdiction effectively creates an indefinite term support order, meaning spousal support could continue for life. But because the court retains jurisdiction, it also has jurisdiction to modify or terminate the order upon a showing of “changed circumstances.” Under Family Code section 4320, a court considers and weighs the various factors (including the duration of the marriage), and a “reasonable period” to become self-supporting, which could be shorter or longer than one-half the length of the marriage. There may be cases where (because of age, health, etc.) self-support may not be a realistic expectation at all. Thus, despite their ten-year marriage, a court retains the power to modify any support order following the divorce.
While Kobe and Vanessa’s divorce will likely not play out in the courts, it is likely that Vanessa will see receive a substantial amount of spousal support for an extended duration. The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling spousal support issues in marriages of both short and long duration. If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues. 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.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
Every Marriage Needs a Prenup
/in Family Law /by David PattonWhile a prenuptial agreement may not be the most romantic gesture, every couple can benefit from creating one, even if at the time of marriage there are little assets. Assets may accumulate during the marriage and even young couples just starting their own careers should want to make sure that what they acquire during marriage is not left for a court to divide.
While prenups are often associated with divorce, discussing hypothetical scenarios can help to shed light on relationship expectations and help ensure decisions are made accordingly. Many people also do not realize that post-nuptial agreements are possible. The only catch is that they can be more difficult to procure and enforce as there are additional requirements. Waiting until the last minute to think about a prenuptial agreement can result in unnecessary pressure and force more couples into the more difficult post-nuptial route.
Of the many considerations in discussing a prenuptial agreement, none is more important than the fact that California is a community property state. This means that couples’ assets are typically divided 50/50 despite any special circumstances. Any couple that would prefer anything besides equal division needs a prenup to avoid it. Attorneys have compared prenups to life insurance policies, no one enjoys imagining the worst-case scenario but having a policy or prenup in place can make a significant life event less difficult.
The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you are interested in learning more prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri for further information. 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.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
How a Charitable Remainder Trust Might be Right for You
/in Estate Planning /by Michael LonichA charitable remainder trust (CRT) provides the ability to control income flow as needed, which is very helpful when it comes to retirement planning. Given the current economy’s uncertainty, many may be reluctant to make donations to charity in case they encounter cash-flow problems in the future. However, many charities are also facing financial setbacks and need more support now than ever before. A CRT may be the answer for those who are charitably inclined but concerned about having sufficient income for the future.
A CRT has the ability to fund the charity of your choice while potentially boosting cash flow, shrinking the taxable estate, reducing or deferring income taxes, and providing investment planning advantages. CRTs are irrevocable trusts which provide you, and potentially your spouse, with an income stream for life or a term of up to twenty years. Upon termination of the trust term, the remaining trust assets are distributed to the charity, or charities, of your choice.
Among other advantages, CRTs helps to facilitate tax-efficient investment strategies. For example, rebalancing your portfolio typically generates taxable income; however, contributing those assets to a tax-exempt CRT allows investors to freely reallocate assets without undue concern about immediate tax consequences. CRTs are also helpful in selling highly appreciated assets that would generate substantial immediate capital gain and capital gain taxes. Rather than selling those assets, contributing them to a CRT and allowing the trustee to sell them allows for reinvestment of the proceeds in more diversified assets with greater returns unburdened by capital gains taxes.
While CRTs offer a great deal of flexibility and retirement planning advantages, they require careful planning and solid investment guidance to ensure proper structure and funding. If you are interested in learning more about retirement and estate planning, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. 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.
When it Might be Appropriate to Have Your Parent Conserved
/in Estate Planning, Probate /by Michael LonichYour parents have always been put together and independent. However, as time passes and you notice them becoming forgetful or unable to handle their day-to-day affairs, you are unsure of how to proceed as their mental states begin to deteriorate. Should they be conserved?
Generally, the legal definition of capacity is the mental ability to adequately function. In California, the Probate Code allows a court to appoint a conservator of the person for a person who is unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter; a conservator of the estate for a person who is substantially unable to manage his or her own financial resources or resist fraud or undue influence; or a conservator of the person and estate for a person described in both of the previous categories.
If a conservator is appointed, he will be responsible for managing your parent’s affairs. The conservator does not have to be a family member, although it often is. Once appointed, the conservator will owe a duty of care to your parent and will be held accountable by the court.
There are other options, however, if conservatorship is too extreme. Sometimes, elderly parents realize they need assistance and ask for it. In this scenario, families can avoid the expense and emotional turmoil of having a parent conserved and family members can assist parents with their finances or hire a professional. Other options include creating a durable power of attorney for property or a living trust. These documents generally appoint an agent or trustee to manage your parent’s financial affairs.
If you are interested in learning more about ensuring your parents are able to manage their day-to-day lives as they grow older, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. 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.