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
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.
Mother’s Cancer Prognosis Results in Difficult Decision in North Carolina Custody Case
/in Family Law /by Mitchell EhrlichA judge’s difficult decision in a North Carolina custody case is garnering national attention and criticism and raising questions of what it means to be an unfit parent. Durham County Judge Nancy Gordan ruled that because Alaina Giorano has Stage IV breast cancer and her prognosis is uncertain, her children, 11 year old Sofia and 5 year old Bud, must move from Durham to Chicago to live with their father. She wrote: “The course of her disease is unknown. Children who have a parent with cancer need more contact with the non-ill parent.” The judge also noted that she ruled in favor of the father because he is employed in Chicago and is the family’s sole breadwinner. Theoretically, Ms. Giordano could also move to Chicago to live closer to the children since she is unemployed, but she is undergoing treatment at Duke University and is not inclined to look for a new treatment team since her health is currently stable.
Ms. Giordano is appealing the ruling, and is gathering support from many across the country. Over 7,000 people have signed an online petition urging North Carolina Governor Bev Perdue to overturn the decision. Ms. Giordano has also appeared on the Today Show, where she told Matt Lauer,”I think it is a dangerous ruling for me and my children and how it will affect us, but also for people all over the world with cancer. This is a bad precedent.”
This ruling is sparking a heated debate between commenters on online articles about the case. Many feel that it is unfair to use a cancer patient’s diagnosis against her to deny custody of her children and feel that the children will be traumatized when taken away from their mother during her time of need. Others believe that the ruling is in the children’s best interests, so that they are shielded from the difficulty of their mother’s illness.
Although the above case was decided in North Carolina and of questionable wisdom, the issue of a parent’s physical health and disabilities can be a factor in custody cases and has been addressed by California courts as well. The most prominent Supreme Court case on this issue, In re Marriage of Carney (l979) 24 Cal. 3d 725, 598 P.2d 472, provides that a parent’s disability cannot be the sole basis upon which custody is denied.
However, Carney has been repeatedly cited by non-disabled parents who continue to argue that the court can still consider the health or disability of a parent as one of the many factors in considering whether a child should be in the custody of disabled parent.
To bolster the rights of disabled parents, in late August 2010 California Governor Arnold Schwarzenegger signed SB 1188 into law (effective January 1, 2011 and now California Family Code Section 3049). This law shifts the burden of proof onto the parent who raises the disability. It is hoped that Family Code section 3049 will afford disabled parents greater protection in California family law cases by making it more difficult to use their disability to alter custody or visitation orders.
If you have questions about child custody or visitation and would like to speak with an experienced Family Law Attorney, please contact 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.
There’s No “Hiding the Ball” in Family Law Cases: The Importance of Understanding your Fiduciary Obligations to your Spouse or Domestic Partner
/1 Comment/in Family Law /by David PattonThe California Family Code incorporates the rules of civil discovery that are generally applicable in all civil cases. Discovery is the process by which the parties to a legal dispute obtain information about the other side’s case so that the parties can engage in informed settlement negotiations and prepare their case for trial. Discovery devices include interrogatories (written questions to the other party requiring written responses under oath), depositions (taking oral testimony under oath from the other party), and inspection demands (requiring the other party to produce documents and/or tangible things for inspection).
In an ordinary “arm’s length” civil case (a contract dispute, for example), it is crucial to utilize these procedures effectively, as they are often the only means available to obtain information about the other side’s case. Parties in “arm’s length” civil disputes ordinarily have no independent duty to give the other side any information outside of the discovery process.
While discovery sometimes has its purpose in family law cases, there is an important distinction that makes family law cases unique. Under the Family Code, spouses owe one another fiduciary obligations both during the marriage and after separation. In other words, spouses must act “with the highest fairness and honor” in their dealings with one another. This is the highest duty known to the law. It is akin to the duty an attorney owes to his or her client and the duty owed to a business partner.
Why is this significant? It is significant because it means spouses have an independent obligation to disclose all material facts and information regarding the existence, characterization, and valuation of assets and debts, and all information about income and expenses, without request. This duty applies both during marriage and after separation until the date the asset or liability in question is actually distributed and, as to support and professional fees, until a binding resolution is reached on these issues. A spouse need not conduct formal discovery to enforce these obligations.
The consequences for violating one’s fiduciary duty can be devastating. Emblematic of this is the landmark California Court of Appeals decision in In re Marriage of Feldman, in which the court upheld an order levying $390,000 in sanctions against the husband for the husband’s failure to disclose financial information. The Feldman decision, issued in 2007, has generated much discussion in the legal community and is a significant articulation of the importance of this issue.
Other significant consequences can result from failure to adhere to spousal fiduciary obligations beyond monetary sanctions. It is therefore essential that parties initiating dissolution proceedings are aware of their rights and obligations from the outset, and that they carefully abide by the rules governing fiduciary obligations to avoid adverse consequences down the road.
If you have questions regarding your fiduciary obligations or those of your spouse, please contact the experienced Family Law 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.
Estate and Tax Planning for Married Couples
/in Estate Planning /by Michael LonichWith the recent changes to the tax law for 2011, there is now a $5M unified tax exemption for individuals who pass away in 2011 or 2012. This has created an opportunity to avoid the payment of Federal estate taxes over the next few years.
If you and your spouse are U.S. citizens, you can leave each other any amount with no Federal estate tax exposure. This is referred to as the unlimited marital deduction privilege and provides a significant Federal estate tax shelter. It is especially advantageous with the current high unified credit over the next two years.
However, if you have a large estate, leaving everything to your spouse may result in your spouse having an estate that exceeds the Federal estate tax exemption when he or she dies. In that case, there are a number of other estate tax saving strategies you should consider, some of which are set forth below.
Giving money to charities is always an approach to lower or reduce your taxable estate.
A frequently used approach is to utilize the annual Federal gift tax exclusion ($13,000 per person) by making yearly gifts up to the exclusion amount which will reduce the taxable value of your estate without reducing your lifetime Federal gift tax exemption. Both you and your spouse can make an annual gift of $13,000 per person.
You can contribute to the education of your children or grandchildren by making payments directly to a school as a method to reduce your estate. Direct payments to the school will not impact your unified estate and gift tax exemption.
Appreciating assets are always a little tricky but with the relatively significant unified estate and gift tax exemption, you can give away up to $5M worth of appreciating assets (stocks, real estate, etc.) without triggering any Federal gift tax. Your spouse can do likewise. Although this reduces your unified exemption and is taken against your lifetime exemption, the gifts are valued on the date of the gift and if they continue to appreciate for years while you are still alive you have avoided that additional appreciation being captured in your estate for estate tax purposes. There are other important considerations when contemplating gifting versus passing assets on your death such as utilizing stepped up basis.
An irrevocable life insurance trust (ILIT) can be an important estate planning tool and assist in paying estate taxes. An ILIT is not in your control and thus not a part of your estate and thus is not taxable upon your death. With a typical life insurance policy, although perhaps income tax free, the proceeds are included in your estate for Federal estate tax purposes.
If you have questions regarding estate and tax 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