Family Law Archives - Page 26 of 36 - Lonich Patton Ehrlich Policastri

Residency Requirement for Divorce

July 16, 2012/1 Comment/in Family Law /by David Patton

Part Two of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

Katie Holmes filed for divorce in New York, but could she have filed in California instead? At the heart of this issue is if Holmes has met the New York residency requirement. Though a divorce settlement has reportedly been reached between Cruise and Holmes, just last week there was a dispute surrounding the simple filing of the action.

To file for divorce in California, one of the spouses must be a resident of California for six months and a resident of the county for the three months immediately preceding the filing. New York has a longer residency requirement. Holmes has allegedly been secretly renting an apartment in New York on her own for the past year, so she may be able to establish residency.

Residency requirements can be complicated, but the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of a divorce, 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 detail general 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

Grounds for Divorce in California

July 5, 2012/in Family Law /by Mitchell Ehrlich

Part One of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

In the midst of Tom Cruise and Katie Holmes’ divorce, you might be wondering what the grounds are to file for divorce. No, Katie Holmes cannot cite “Dislike for Scientology” or “We’re Just Friends” as a basis for relief.

In California, a divorce can be sought only on the grounds of irreconcilable differences or incurable insanity. California is considered a “no-fault” state. The irreconcilable differences ground is purposely broad. It is intended to represent the actual reasons underlying marital breakdowns and at the same time make irrelevant questions of fault or misconduct by either party.*

Holmes filed for divorce in New York** citing a “no-fault” cause of action called “irretrievable breakdown.” In addition, New York recognizes six other grounds for divorce. As a result of citing “irretrievable breakdown,” neither Cruise nor Holmes can play the “blame game.” It will be interesting to see how the case unfolds and whether or not the parties are able to reach agreements to keep the case out of court and out of the spotlight as much as possible.

The Certified Family Law Specialists*** at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. If you find yourself on either side of a divorce case, 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

* See Marriage of Walton (1972) 28 Cal.App.3d 108, 119.

** Venue, aka proper county for trial, will be featured in Part Two of the blog series next week.

*** Certified Family Law Specialist, The State Bar of California Board of Legal Specialization

Fiduciary Duties Between Spouses: Respect Thy Spouse

June 19, 2012/1 Comment/in Family Law /by Gina Policastri

Husband uses wife’s private shopper and bank account to purchase $1.4 million worth of luxury goods from Neiman Marcus. Wife is bedridden the entire time recovering from a traffic accident. Private shopper is having sexual relations with husband, and earns a commission off of the sales. Neiman Marcus is reportedly refusing to return the goods. (See http://abcn.ws/KsRBy8.) Does wife have any legal recourse for the purchases she did not participate in? This true story is one extreme example of how spouses can breach the fiduciary duties they owe to each other.

Under the California Family Code, spouses are treated much like business partners and must deal fairly and in good faith with each other. The fiduciary duties require an “accurate and complete” disclosure of all transactions and provide that spouses share equal management and control of their community property. These duties are subject to few exceptions and the consequences for breaching them can be severe. If you find yourself on either side of a breach of fiduciary duty claim, the experienced attorneys at Lonich Patton Erlich Policastri can assist you in determining your rights, obligations and exposure.

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 about your fiduciary rights and obligations, 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 detail general 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

From Bonds to Zuckerberg: The Importance of a Prenup in the Silicon Valley

May 29, 2012/in Family Law /by Mitchell Ehrlich

Will Mark Zuckerberg join the list of billionaires who tied the knot without prenuptial agreements?

Mark Zuckerberg is making national headlines for his marriage that took place on May 19, 2012, just one day after the initial public offering of Facebook. The mystery remains: do Zuckerberg and Priscilla Chan have a prenup? All are in agreement that Zuckerberg would be better off with a prenup. Chan reportedly asked Zuckerberg to sign a relationship agreement before she moved to California several years ago to be with him, which outlined, for example, how much time they should spend together. It would not be surprising if she brought up the subject of a prenup first. However, celebrities such as Paul McCartney, Katy Perry and Mel Gibson chose to forgo a prenup. It’s easy to get caught up in the romance of a marriage, but it’s important to mix in a little realism.

California is a community property state, meaning that assets are typically divided 50-50 upon divorce. If Zuckerberg and Chan signed a prenuptial agreement, they would have agreed exactly how to split assets, including his Facebook stock, if their marriage dissolved in the future. The resounding principle behind prenuptial agreements is spouses themselves can determine how their property will be classified; they can agree that what would generally be classified as community will be separate property of one or the other, and conversely, they can change separate property to community property.

The current trends toward delayed marriage, cohabitation, rising divorce and remarriage rates have combined to create a new awareness of the seriousness of the marital contract and the far-reaching consequences that contract, once made, can have on individual lives. Lonich Patton Erlich Policastri can assist you in understanding your legal rights, and help you protect your family.

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 about prenuptial or antenuptial agreements, 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 detail general 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

Defining the Date of Separation

April 25, 2012/2 Comments/in Family Law /by David Patton

Prior to commencing a dissolution proceeding, a couple makes the decision to separate. Under the California Family Code, “separation” requires more than marital troubles. The parties’ legal date of separation occurs when the parties have come to parting of the ways with no present intent to resume their marriage and their conduct evidences a complete and final break in the marital relationship.

The date of separation is important to divorce proceedings because California Family Code section 771(a) states that earnings and accumulations while married persons are living separate and apart must be characterized as separate property. This means that following separation, each spouse’s income and earnings are their own property not to be shared 50/50 as community property.

The parties’ date of separation occurs when both a subjective and objective test have been met. First, either of the divorcing parties must have had the the subjective intent to end of the marriage, i.e., when one or both determined that reconciliation was no longer possible. Second, there must be objective evidence of conduct furthering that intent to end the marriage. In evaluating this factor, California courts will evaluate whether spouse acted or conducted him or herself in such a way that is consistent with the end of the relationship. Some examples of objective conduct might include whether the parties ceased sharing a marital home; actual physical separation of the spouses and obtaining new addresses; whether the parties continued conjugal relations; whether the parties maintained their family lives and continued to attend social outings together; or whether they continue to act jointly in financial matters. No particular facts are per se determinative of a date of separation. Rather, the court will consider all evidence of conduct that bears on the subjective intent of the parties.

When a couple decides to separate, it is important for the spouses to get in touch with an attorney to learn what steps are necessary to ensure the protection of their property. 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

Immigration Obstacles for Same-Sex Couples

April 2, 2012/in Family Law /by Gina Policastri

Love 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

February 23, 2012/2 Comments/in Family Law /by Mitchell Ehrlich

Recently, 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

February 22, 2012/in Family Law /by David Patton

While 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

Partnering Your Prenups and Estate Plans

February 9, 2012/in Estate Planning, Family Law /by Michael Lonich

Premarital, or prenuptial, agreements are usually associated with pre-marriage planning and divorce. However, they also provide several benefits for estate planning. Premarital agreements can protect one spouse from liability for the other spouse’s separate debts and help to implement other estate planning strategies. When premarital agreements and estate plans are considered in concert, couples can maximize financial planning and estate planning goals and avoid potentially triggering unintended tax consequences or inconsistent estate planning.

In California, a community property state, a surviving spouse has a 50% interest in all community property. This right supersedes the terms of a will but may be waived in a premarital agreement, which does not necessarily equate with disinheritance. Waiving community property rights allows spouses to specify the manner in which their assets will be distributed and helps to ensure that estate plans will be carried out as intended. This may be helpful, for example, in a family business setting. If one spouse runs a family business with his or her children, a waiver of community property rights will allow the business to pass more easily to the children without the other spouse acquiring an interest in the business, through divorce or inheritance.

There are several other scenarios in which a premarital agreement may affect an estate plan. Premarital transfers may trigger income and gift taxes; estate tax exemption opportunities for surviving spouses may be missed; and premarital agreements may not comport with estate plans for a family home. Premarital agreements often provide for the disposition of the family home or give the surviving spouse a right to continue living there. However, these provisions in a premarital agreement should be drafted such that they will not impede an estate plan’s ability to execute home-related strategies such as transferring the home to a qualified personal residence trust.

If you are interested in learning more about premarital agreements and estate plans, please contact the experienced family law and 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.

D.C. Provides Same-Sex Couples with Divorce

February 1, 2012/in Family Law /by Mitchell Ehrlich

This summer, the Wyoming Supreme Court ruled that the state’s courts had jurisdiction to grant the divorce of a same-sex Wyoming couple who legally married in Canada. (See Blog). Now, Washington D.C. is set to provide same-sex couples who got married in the District of Columbia with a way to get divorced. (See Article)

D.C. began allowing same-sex marriage in 2010; however, those marriages are not recognized in most jurisdictions, which means that divorce proceedings cannot be started since the marriages are not recognized in the first place. After hearing reports that same-sex couples who wed in D.C. were being denied divorces after moving to jurisdictions that do not recognize same-sex marriage, a D.C. councilman proposed legislation to help give these couples more options. The bill removes a six-month waiting period during which someone seeking a divorce must reside in the district, as long as the marriage took place in D.C.

Same-sex marriage and divorce continues to be a developing area of family law. New York considered a same-sex divorce case in early 2008 when a judge granted a divorce to a same-sex couple married in Canada. An Oklahoma court granted a divorce to a same-sex couple who married in Canada and filed using just their first initials and last names, only to revoke it upon discovering both parties were women on the grounds they were never legally married. As noted in the Wyoming blog post, the California Legislature recently made significant amendments to the law governing same-sex divorces in California. The State Assembly adopted the Separation Equity Act of 2010 which clarified that same-sex couples married outside the state are able to dissolve their marriage in California. Additionally, same-sex couples who married during the brief period in 2008 when same sex marriage was legal have the rights and benefits of married couples, including divorce.

If you have a family law matter and are interested in learning more on the law governing same-sex marriage or divorce in California, 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.

Residency Requirement for Divorce

Grounds for Divorce in California

Fiduciary Duties Between Spouses: Respect Thy Spouse

From Bonds to Zuckerberg: The Importance of a Prenup in the Silicon Valley

Defining the Date of Separation

Immigration Obstacles for Same-Sex Couples

California “Long-Term” Marriages

Every Marriage Needs a Prenup

Partnering Your Prenups and Estate Plans

D.C. Provides Same-Sex Couples with Divorce

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