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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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Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases
/in Family Law /by David PattonOutside the United States, the term “attorney’s fees” is not often heard (there are analogous terms in other countries). It is largely part of the United States legal system and is used to refer to an attorney’s compensation for legal services. While sometimes daunting, especially in family law cases, there are attorney fees payment options specific to family law that are worth knowing.
First, it is important to note that most states, like California, make accepting a contingency fee for a family law case a violation of rules of professional conduct or canons of ethics. Rule 1.5 of the ABA Model Rules of Professional Conduct provides guidelines on attorney’s fees. As it relates to family law, the rule states that a “lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” This rule expressly prohibits attorneys from accepting family law cases on a contingency basis; that is, an attorney’s compensation may not depend on the outcome of the case. This could limit the ability of some parties to obtain a lawyer in divorce proceedings.
However, there are other ways of compensating a lawyer for family legal services. Section 2033 of the California Family Code states that either party to a divorce “may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.” This encumbrance is known as a “family law attorney’s real property lien” (FLARPL) and attaches only to the encumbering party’s interest in the community real property—providing parties to a family law case the opportunity to compensate their attorney following representation. A FLARPL allows a party without liquid assets to access their interest in the home’s equity to compensate a family law attorney in divorce proceedings where they could not otherwise afford it.
While contingency fees are disallowed in the divorce context, parties should seriously consider the option of a FLARPL when obtaining a divorce lawyer. A FLARPL secures attorney’s fees, however, parties may always choose to pay their attorney over time and keep their interest in their home equity instead.
The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed family law issues. 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
Predatory Unions: Protect yourself and Protect Your Family
/in Estate Planning /by Michael LonichThe elderly are a vulnerable population. The wealthy elderly, however, are even more at risk. It is not uncommon to hear horror stories of an elderly parent who marries their caretaker only to have their life savings steadily funneled to unknown sources, discovered only by family members after the death of the elderly. As baby boomers head into retirement, these “predatory unions” are on the rise, as highlighted recently in the Wall Street Journal.
Financial abuse is the theft or embezzlement of money or any other property from an elder. It can be as simple as taking money from a wallet and as complex as manipulating a victim into turning over property to an abuser. In the blink of an eye, an elderly parent may be left unable to provide for their own needs while children and family members may be left without an inheritance.
The most difficult challenge for the children of these elderly is objecting to the property consequences of a parent getting married once that parent dies. In most states, the inheritance rights of widows and widowers trump any estate plan—even if the new spouse wasn’t named in the will, and even if the marriage took place shortly before the death of someone unable to recall the union a few days later. In California, the inheritance rights of widows and widowers are substantial but not as extreme as those previously mentioned. The surviving spouse may receive up to one-half of the decedent’s community property, quasi-community property and separate property.
Estate planning, however, can still be a strong deterrent to elder financial abuse if drafted properly. Estate planning devices may include wills, trusts, powers of attorney, advance health care directives and joint tenancies. Children whose parents put their assets in a trust have a stronger line of defense when the parent marries late in life. Irrevocable trusts cannot be unwound during the parent’s life time, however, if a revocable trust is in place, the paid caregiver should not know about it.
If you are interested in learning how to better protect your own or loved one’s assets, 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.
Post-Nuptial Agreements and Spousal Support
/in Family Law /by Mitchell EhrlichSpousal support and prenuptial agreements often make headlines in high profile divorces; however, the lesser known separation agreement (a type of post-nuptial agreement) can also pose difficult issues for divorced couples. In North Carolina, for example, NASCAR Chairman Brian France is fighting to rescind a separation agreement that calls for him to pay more than $40,000 a month in spousal and child support. [NASCAR Divorce Case Gets Messier]. These types of agreements involving spousal support are valid under California law.
Separation agreements—also referred to as property settlement agreements or marital settlement agreements— are often executed by spouses when their marriage breaks down. The parties are free to agree to a division of property rights and/or rights and duties of spousal and child support, and then have a court approve the agreement. There are, however, statutory limitations on agreements regarding spousal support that must be taken into consideration.
One of the primary obligations imposed by statute on married persons is the obligation of support. Spousal support provides one’s spouse with the necessities of life, measured by the lifestyle of the particular parties. This obligation of support has long been regarded as unalterable during marriage. California Family Code section 1620 explicitly states, “Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.” Therefore, spouses in an ongoing marriage may not enter into post-nuptial agreements waiving or limiting the right of either spouse to support the other in the event of separation.
Section 3580 of the California Family Code, however, creates an exception to this prohibition. A husband and wife may agree, in writing, to an immediate separation and may provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage. The important distinction is that this agreement can only be made when a couple is ready for an immediate separation. Absent an immediate intent to separate, a court will not uphold a post-nuptial agreement altering spousal support.
If you have a post-nuptial agreement in place, if you are contemplating having one put together, or if you have been asked to sign a post-nuptial agreement and you are concerned about how it may affect your rights, the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have substantial experience in handling post-nuptial agreements. Please call our office to schedule a free 1/2 hour consultation.
*Certified Family Law Specialist, The State Bar of California Board of Legal Specialization
Kelsey Grammer wants to split siblings in divorce- Not entirely unprecedented
/in Family Law /by Mitchell EhrlichMedia outlets reported that actor Kelsey Grammer, who is embroiled in a contentious divorce with his third wife Camille Grammer, put together a proposal in which the parties would live in separate parts of the country (he in Chicago, Camille in California) and they would each have primary custody of one of their two children; splitting up the siblings.
While not entirely unprecedented, it would be difficult for Mr. Grammer to convince a judge or custody evaluator that it would serve the children’s best interests to split up their two children and have each live thousands of miles apart.
In fact, based on the appellate court decision in Marriage of Williams (2001) 88 Cal. App. 4th 808, Mr. Grammer is unlikely to prevail. In Williams, the court held that California policy affords strong protection to sibling relationships and that—absent compelling circumstances, such as extraordinary emotional, medical or educational needs—an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children’s best interest.
While Mr. Grammer’s arguments in favor of splitting up the siblings are not known, he would face a difficult challenge in this instance.
The Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues. If you are in the midst of a custody dispute involving multiple children or if one might arise soon and you are concerned about the possibility of your children being separated from his or her siblings, please contact the Certified Family Law Specialists at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.
Spousal Support Waivers in Pre-Nuptial Agreements Given Further Protection
/in Family Law /by Mitchell EhrlichThe California Appellate Court recently upheld a spousal support waiver in a pre-nuptial agreement despite the fact that, under current California Law, the provision should be struck down as invalid.
In the May 24th, 2011 appellate court decision of In re Marriage of Howell, the California Court of Appeal for the Fourth District enforced a future spousal support waiver of a pre-nuptial agreement signed in 1999; despite the fact that under California Family Code section 1612, the provision should have been invalidated. Family Code section 1612, which is part of the Uniform Pre-Marital Agreement Act, provides in subsection (c) that:
Any provision in a premarital agreement regarding spousal support, including, but not limited to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal support provision is sought was not represented by independent counsel at the time the agreement containing the provision was signed, or if the provision regarding spousal support is unconscionable at the time of enforcement.
Mrs. Howell signed the pre-nuptial agreement, containing a waiver of future alimony, at her husband’s request. At the time, she could not afford to hire an attorney to review the agreement and her husband (then, fiancé) did not offer to pay the cost for her to consult with an attorney.
At the trial court level, the court invalidated the spousal support waiver finding that Family Code section 1612, enacted in 2002, did in fact apply retroactively to the agreement, fully executed in 2002. On appeal, the appellate court did a full analysis of whether the statute should be applied retroactively to a 1999 agreement. Finding that it constituted a “material change in the law” and that it was not intended to apply retroactively, the appellate court ruled that the trial court erred in retroactively applying the statute and upheld the validity of the spousal support waiver.
If you have a Pre-Nuptial Agreement in place, if you are contemplating having one put together, or if you have been asked to sign a pre-nuptial agreement and you are concerned about how the Howell decision and Family Code Section 1612 may affect your rights, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have substantial experience in handling pre-nuptial agreements. Please call our office to schedule a free half hour consultation.