Family Law Archives - Page 25 of 36 - Lonich Patton Ehrlich Policastri

Cohabitation Agreements: A Beneficial Tool For Both Parties

July 8, 2013/in Family Law /by Gina Policastri

So your relationship is going well and you’ve decided to start living together. Before couples get married, many consider creating a pre-nuptial agreement. But you’re just moving in together, just testing the waters – no harm, no foul, right? Not necessarily.

Although it may seem like no legal consequences can arise from simply living together*, California recognizes a particularly pesky action: the Marvin claim. In 1976, the California Supreme Court held that express contracts between non-marital partners are enforceable.** In Marvin, Lee and Michelle lived together as an unmarried couple for seven years and Michelle claimed Lee promised to take care of her for the rest of her life. Although Michelle was ultimately unable to provide proof of an implied contract, the Court’s holding was clear: express contracts between unmarried couples are fair game and enforceable.

As a result, with the sharp increase in the number of cohabitating couples in the past decade, a cohabitation agreement is a highly useful tool for unmarried couples to consider – much like a prenuptial agreement is for married couples. Some factors, amongst many more, to keep in mind when drafting a cohabitation agreement include:

Everything must be voluntary: cohabitation agreements must be entered into freely and voluntarily – just like prenuptial agreements.
Put everything in one document: include an integration clause that provides that the document signed by you and your partner constitutes the entire agreement – that there are no other outside agreements or oral agreements to be taken into consideration.
Put everything in writing: have a clause that requires all amendments to be made in writing, preventing the possibility that one party will later argue that later oral or implied changes were made to the original agreement.

A cohabitation agreement can benefit both the Lee’s of the relationship – the wealthier partner who has financially more to lose, and the Michelle’s of the relationship – the “weaker” partner who relied upon a partner’s promise to her financial detriment. If you are interested in creating a cohabitation agreement or reviewing your current cohabitation agreement, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex Family Law matters and are more than happy to meet with you and offer you a free consultation.

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.

*1 in 4 people living together believes they have the same legal protections as married couples (http://www.guardian.co.uk/money/2013/mar/09/cohabitation-agreement-essential-non-married-couples).

**Marvin v. Marvin, 18 Cal. 3d 660 (1976)).

Educational Debt: Be Smart at Divorce

June 24, 2013/in Family Law /by David Patton

Upon divorce, many people find that they are still saddled with substantial educational debt. So, where does that debt go? It depends. California is a community property state. When a couple divorces, each spouse receives fifty percent of all assets earned during the marriage. Similarly, a couple must split whatever debts they have acquired during the marriage. (For example, if you owe $10,000 on a particular credit card, each spouse is responsible for $5,000 of that debt or a debt of equal value.) Simple enough, right?

Not always. The allocation of educational debt at divorce can look much different. “A loan incurred during marriage for the education or training of [one spouse] shall not be included among the liabilities of the community for the purpose of division….but shall be assigned for payment by the [student spouse].”*

It is sometimes said that “the debt follows the debtor” in this situation. Usually, the student-spouse will keep the loan taken out for his or her education. Take, for example, the situation where a husband takes out a loan (in his name) to pay for his wife’s nursing credential. There, it is likely that the wife will be solely responsible for paying off that debt after dissolution, not her husband. (So, if you and your spouse have no debt except for your spouse’s student loans, you may be able to walk away from the marriage debt-free!)

On the other hand, however, the distribution could be much more complicated. Educational loans come into play in several ways upon divorce depending on when the loan was taken out and whether payments were made during marriage. Here are some scenarios you could face:

If your student-spouse took out an educational loan during your marriage and your combined earnings were used to repay that loan, you might be a candidate for reimbursement. In this situation, you could potentially receive half of whatever was paid for the student-spouse’s educational costs (e.g., tuition, books, transportation, supplies).
On the other hand, if your student-spouse took out an educational loan during your marriage and your combined earnings were used to fully repay that loan, you may not be able to recover all of those expenses. If the student-spouse can show that the community (you, your spouse, and the property acquired by you and your spouse during marriage) substantially benefitted from the educational loan, the community may not receive a reimbursement .
- For example, if you put your husband through medical school but have been enjoying a high standard of living due to his increased earning capacity, you may be out of luck as the non-student spouse. Nevertheless, every situation is unique, and depending on the specific circumstances of your case, reimbursement could still be on the table and it is worthwhile to investigate fully.
If the student-spouse took out the loan before the marriage, the debt incurred is probably the student-spouse’s separate property obligation, meaning that you will not be liable for repayment of that loan.**
If both spouses went to school during marriage, there could be a reduced right to reimbursement or offset of the resulting debt.
Additionally, the likelihood of reimbursement could be reduced for a non-student spouse if the education or training funded by that spouse enables the student-spouse to engage in gainful employment that substantially reduces the student-spouses need for financial support.
- In the long run, keeping spousal support payments in mind, eating the educational debt could be best alternative when compared with financially supporting your ex for many years to come (or indefinitely).

There are several different ways the educational-loan story can pan out. Similar to other areas of family law, the outcome really depends on the facts of that case.

Needless to say, educational debt problems can be complicated under California law, and you may need legal assistance to ensure that debt distribution is fair at divorce. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn more about handling educational debt at divorce. Our attorneys have decades of experience handling complex family law matters.

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.

*Quoting California Family Code §2641.

**See California Family Code §2627.

The Indian Child Welfare Act: Child Custody and Adoption Issues Hit The Supreme Court

June 13, 2013/in Family Law /by Gretchen Boger

Family law cases, albeit important, are almost never heard by the U.S. Supreme Court because the Tenth Amendment typically leaves family matters to the states. However, a recent custody clash over an adorable Native American girl has found its way to our nation’s highest court, giving the Justices an opportunity to scrutinize the 1978 Indian Child Welfare Act (ICWA). The law was put in place to protect the one-third of Native American families who were losing their children to white foster and adoptive parents. However, as you will see, this 35-year-old law and its sweeping effects may be out of place in today’s modern society.

At the heart of the current dispute is a three-year-old girl who is the product of a relationship between a Cherokee Indian man and a Hispanic woman. The couple was previously engaged but, when the couple broke up before the child’s birth, the father let the pregnant woman know that he was relinquishing all of his parental rights. The child was born, put up for adoption, and spent two years with her adoptive parents until a South Carolina Court ordered that the girl be returned to her biological father. Apparently, the child’s father only intended to relinquish his parental rights to the Mother—not to an adoptive family—and he objected to the adoption four months after the adoption took place.

The little girl’s adoptive family is devastated, and rightfully so. If the state of South Carolina was permitted to apply its standard child custody procedures, and the “best interest of the child” standard adopted by many states including California, the biological father would have had no rights whatsoever and the little girl could have remained with the parents who raised her from infancy. Nevertheless, in the United States, the U.S. Constitution and Federal Statutes enacted by Congress are the supreme law of the land and completely trump any state laws that come into conflict. Justice Kennedy noted, “What we have here is a question of a federal statute which…displaces the ordinary best interest [of the child] determinations of the state courts.”

The Supreme Court will deliver its opinion on this case later this month. In all likelihood, the effects of the decision will reach not only families interested in domestic adoption, but will also touch on the bigger question that asks who is best-suited to handle family law matters or determine parenthood—the states and their family courts or the federal government? We should have an answer soon.

As you can see, even simple family law matters like adoption can quickly become complicated. If you have any questions relating to adoption or any other family law issue, please contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law matters and would be happy to meet with you for a free consultation.

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.

My Spouse Won’t Sign: Till Death Do Us Part?

June 5, 2013/in Family Law /by Mitchell Ehrlich

When contemplating divorce, it is hard to ignore the “what-ifs” that inevitably arise. Questions like, “who will get the house?” and “where will our kids end up living?” are complicated, and you will inevitably receive the typical lawyer response from your attorney—“it depends.” This is because most questions regarding divorce really do depend on the circumstances of your case. While there is substantial California family law which the Court will apply to the facts of your particular case, it is impossible to predict or guarantee outcomes with absolute certainty. In some cases it can take months before you see concrete results. Nevertheless, there is one great guarantee with divorce law in California: as long as you are a California resident*, you are entitled to a divorce if you want one.

We have all seen a movie where one party is trying to obtain a divorce, but the other party just won’t sign the divorce papers. Sometimes the other party is a romantic who is holding out for reconciliation, but nine times out of ten, the other party refuses to cooperate out of spite. Worried this could happen to you? Never fear! If the only certainty you have is that you want a divorce, then go ahead and make preparations to file:

“Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through.”**

The State has your back; California law will not force you to be prisoner to a broken marriage. Unfortunately though, no one can promise that your divorce experience will not resemble a scene from a movie (but there is a way out if your personal life resembles a drama fit for Lifetime). Whether or not anyone is “at fault,” you can file for divorce and either your spouse responds to your papers, or the court will make a decision for him or her. If you are ready to liberate yourself, or are interested in learning more about the divorce process, contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law matters and would be happy to meet with you for a free consultation.

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.

*A “California Resident” is a person who has lived in California for the last 6 months and has lived in the county where the party desiring a divorce has lived for the last 3 months.

**Source: California Courts: Judicial Branch of California, “Options to End a Marriage or Domestic Partnership,” found at: http://www.courts.ca.gov/1224.htm

Spousal Support: Are You Entitled to Any?

June 3, 2013/in Family Law /by David Patton

Ashton Kutcher and Demi Moore’s divorce has been stalled – and purportedly because Demi, who’s estimated to be $10 million richer than Ashton, is seeking spousal support from him in order to renovate her $25 million Central Park apartment. Though it doesn’t appear fair at first glance, courts take into consideration various factors to determine spousal support that could result in a judgment in Demi’s favor.

In regards to your case, could you be entitled to spousal support? Or conversely – could you obligated to pay spousal support for your wealthier spouse? As always in law, it depends.

California courts determine spousal support by taking various circumstances into account, as set forth in California Family Code Section 4320.* They include, but are not limited to:

How much the earning capacity of the party seeking support is affected from unemployment due to devoting time to domestic duties during the marriage;
How much the party contributed to the supporting party’s education, license, or career;
The ability of the supporting party to pay spousal support;
The ability of the supported party to work without interfering with the interests of their children;
The needs of each party (determined by the standard of living established during the marriage);
The duration of the marriage;
The age and health of the parties; and
Any other factors the court determines are “just and equitable.”

Depending on how Demi and Ashton’s attorneys present these fact-sensitive issues, Demi just might get to renovate her sprawling New York apartment – on Ashton’s (many) dime(s).

Spousal support can be a complicated and confusing issue. If you have any questions regarding your spousal support rights and obligations in the event of a divorce, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex dissolution proceedings and are more than happy to meet with you.

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.

*Cal. Fam. Code § 4320

Private Justice: Family Law’s Low-Hanging Fruit

April 2, 2013/in Family Law /by Mitchell Ehrlich

If you are contemplating divorce, there is one question you ought to ask: is a private judge right for me? The answer could be a positive one if you are looking to conclude your divorce quickly and would prefer to avoid the crowded (and very-public) family court. What’s the catch? Well, private temporary judges (typically retired veteran family lawyers) must be compensated for their time much like an attorney.

Nevertheless, hiring a privately compensated temporary judge could be an investment for you and your family. Although there is a cost on the front end, a private judge will undoubtedly have more time to devote to your case. This means that your divorce could be finalized in a fraction of the time with a private judge, compared with the several months or even years that you could spend tied up in the public family court . Your judge will apply the exact same California family law statutes, evidentiary codes, and rules of court as a publicly-sitting family judge. However, the scheduling flexibility that comes with a private judge means that you can work through your case on your time. As a result, you and your spouse will spend less time in litigation, potentially saving your family a great deal of money and stress in the long run.

Private judging is legal in Santa Clara County and can be requested through the Clerk’s office. A private judge may not be the best option for every family, so talk to your family lawyer for more information. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn more about the possibility of pursuing divorce with a private judge. Our attorneys have decades of experience handling complex family law matters and have worked directly with private judges in the past.

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.

Contemplating Divorce: What to Consider Before You Cut Ties

March 21, 2013/in Family Law /by Gina Policastri

Divorce is simple, right? Absolutely not, unfortunately. There is a great deal to consider—financially and emotionally—before filing for a divorce. In some startling ways, divorce slams one chapter of your life closed. Nevertheless, obtaining a divorce decree could be the first step into the first chapter of the new life you’ve been dreaming of.

Natasha Burton’s article, “What I Wish I Knew Before I Got Divorced”* features solid considerations for individuals who are thinking about divorce or legal separation. Though Burton’s article was written for a female audience, the predominant message of the article applies to everyone: be prepared in more ways than one. Some noteworthy observations and considerations:

Recovery from divorce could take you a long time—which is absolutely normal.
Choose your legal counsel wisely.
Create a detailed plan for tackling your future living expenses.
Take a hard look at your joint finances and educate yourself.
Be ready for “unexpected” costs like health insurance.
Being vengeful toward your spouse will probably harm your family in the end and is public record.
Being divorced is not something to be ashamed of.
The holidays will be hard—really hard.
Your children will suffer from the divorce and may act out.
Finally, divorce can be completely worth it.

These considerations highlight just how far reaching the impact of a divorce can be and why it is so important to be fully prepared. Take it from Burton and be prepared from the start by choosing your legal counsel wisely. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn about your legal options. Our attorneys have decades of experience handling complex family law matters.

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.

*Used with permission via email from Women’s Day author Natasha Burton.

I’m Officially Divorced, Now What?

March 14, 2013/in Family Law /by David Patton

You’re officially divorced and positive that everything in your life is settled (legally, anyway). Unfortunately, that might not be the case if your estate planning documents still reflect your old marital status. Fortunately, any provisions in your existing Will that leave assets to your ex-spouse will be revoked by law after divorce. Nevertheless, it is imperative that you actively take steps to create a new will and generally update your estate plan to ensure that the appropriate individuals in your life will control your legal rights and property when you die or become incapacitated. That is, unless you still wish to bequeath property to your ex-spouse at death. Since that is probably not the case, here are some estate planning changes to consider after divorce:

Close any joint accounts like credit cards or savings accounts that you shared with your ex.
Create a fresh Will and update any Guardianship provisions regarding what will happen to your children in the event that something happens to both you and your ex-spouse.
Update any Trusts and reevaluate who your beneficiaries should be and how much property you’d like them to receive and when.
Update all insurance policies, IRA’s, 401k’s, or any other retirement accounts that may name your ex as a beneficiary. These will not automatically change after divorce.
Destroy or revoke your previous Durable Power of Attorney if it named your ex-spouse and create a new one.
Destroy or revoke your previous Advance Health Care Directive if it authorized your ex-spouse to make future health care decisions on your behalf.

It is important to remember that at death, according to the court, whatever your legal document says goes. So, if you do not want your ex-spouse to receive certain property or benefits, you should see a licensed attorney to revoke your old estate plan and incorporate your current wishes into a new one. Hopefully, an updated estate plan can give you some peace of mind as you begin your new life after divorce.

The attorneys at Lonich Patton Erlich Policastri have years of experience handling complex estate planning matters including wills and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information and a free half-hour consultation.

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.

Annulment: Cleaning the Marital Slate

February 15, 2013/in Family Law /by Gina Policastri

Whether or not we care to admit it, Kim Kardashian remains in the spotlight. Consequently, so do her legal troubles. Kardashian and Kris Humphries were famously married in August 2011. Their nuptials allegedly cost $11 million and the wedding itself was televised as a special on the E! Television network. After 72 days of marital bliss, Kardashian filed for divorce in October 2011.

Although the couple split almost two years ago, Kardashian and Humphries remain legally married. Their divorce has never been finalized because Humphries is seeking an annulment. Humphries believes that Kardashian fraudulently lured him into marriage for financial gain as Kardashian reportedly made $1 million from the wedding. Humphries claims she had planned to take the money and run. Kardashian, of course, claims that she married for love.

In the eyes of the law, a successful annulment makes a marriage disappear as if it never happened.* There is a fundamental difference between a judgment of dissolution and a judgment of nullity. While a judgment of dissolution terminates a valid marriage, a judgment of nullity declares that the marriage was invalid from the start. In California, a marriage built upon a fraudulent foundation is not a marriage at all. An annulment is, however, much more difficult to attain than a divorce.

According to California Family Code Section 2210, a marriage that is voidable may be declared a “nullity” only in the event at least one of six specific conditions existed at the time of marriage:

Infancy
Bigamy
Unsound Mental State
Fraud
Force
Physical Incapability

The certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of an annulment, 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Retirement Benefits: I Earned Them So They Are Mine, Right?

February 7, 2013/in Family Law /by Gretchen Boger

When parties consider divorce or separation they are rightfully concerned about their property. For example, parties may contemplate who will get the house, the dog, the cars, or even the family’s prized Dyson vacuum cleaner. But what about retirement benefits? They don’t typically rank at the top of the “coveted marital property” list, but maybe they should. If you have worked for an organization for most of your adult life, you and your spouse may be entitled to substantial benefits.

Under the California Family Code, retirement benefits are divisible community property assets and will be affected by divorce, legal separation, or termination of domestic partnership. Even if the party that earned the benefits has not yet retired and has no immediate plans to retire, all retirement benefits accrued during a marriage or domestic partnership are fair game when the parties decide to part ways. In fact, the non-earning spouse is generally entitled to fifty percent of any retirement assets accumulated during the marriage.

Division of retirement benefits can be complicated and may implicate complex tax issues. The Lonich Patton Erlich Policastri team, which includes several certified Family Law Specialists who are certified by the State Bar of California Board of Legal Specialization, offer decades of experience handling complex family law matters. If you are contemplating divorce, legal separation, or termination of a domestic partnership or have been served in an action for divorce, legal separation, or termination of a domestic partnership, 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

Cohabitation Agreements: A Beneficial Tool For Both Parties

Educational Debt: Be Smart at Divorce

The Indian Child Welfare Act: Child Custody and Adoption Issues Hit The Supreme Court

My Spouse Won’t Sign: Till Death Do Us Part?

Spousal Support: Are You Entitled to Any?

Private Justice: Family Law’s Low-Hanging Fruit

Contemplating Divorce: What to Consider Before You Cut Ties

I’m Officially Divorced, Now What?

Annulment: Cleaning the Marital Slate

Retirement Benefits: I Earned Them So They Are Mine, Right?

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