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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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-05-29 09:56:442021-12-22 21:30:05From Bonds to Zuckerberg: The Importance of a Prenup in the Silicon Valley

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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2012-04-25 10:24:392021-12-22 21:30:16Defining the Date of Separation

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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Gina Policastri https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gina Policastri2012-04-02 09:19:262021-12-22 21:30:26Immigration Obstacles for Same-Sex Couples

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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-02-23 12:44:152021-12-22 21:30:35California “Long-Term” Marriages

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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 David Patton https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png David Patton2012-02-22 10:00:392021-12-22 21:30:45Every Marriage Needs a Prenup

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.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2012-02-09 11:48:242021-12-22 21:31:16Partnering Your Prenups and Estate Plans

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.

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-02-01 10:42:262021-12-22 21:31:24D.C. Provides Same-Sex Couples with Divorce

Maximizing Retirement: Where a Divorce Might Benefit You

January 30, 2012/in Estate Planning, Family Law /by Michael Lonich

If you’re elderly and divorced, you might be getting shorted on Social Security payments by collecting lower benefits than you might be eligible for, based on the earnings history of a former spouse.  (See Wall Street Journal Article)  A person can collect SS benefits based on (1) his or her own earnings, (2) fifty-percent of her spouse or former spouse’s benefit, if it greater than his or her own, or (3) one-hundred-percent if he is deceased.  Divorced spouses must have been married ten years or longer and the person seeking a former spouse’s higher benefit must currently be unmarried, unless she remarried after age 60, in order to receive larger monthly benefits.

The Wall Street Journal provided this example:

Let’s say your mother was married in the 1950s or 1960s for at least a decade. Perhaps she was out of the work force raising children and subsequently worked at low-paying jobs, so her benefit might be, say, $800 a month.

By contrast, her former husband—with more years in the work force and higher wages—might be eligible for a monthly benefit of $2,000. (Social Security benefits currently max out at $2,366 a month.)

Your mother might not realize she can collect a total of $1,000 a month if her former spouse is alive, and $2,000 a month if he isn’t.  If the Social Security Administration determines she is eligible for higher benefits, she also will receive retroactive amounts going back six months.  For the woman in the example above, that would be a lump sum of either $1,200 (six times $200) or $7,200 (six times $1,200).

The fact that the ex-husband might have remarried does not affect what his current spouse will receive nor does it require any involvement with the former spouse.  The Social Security Administration should have former spouse earnings history, whether alive or not, and make it determination based on those records.

If you are interested in learning more about divorce or preparing for your retirement, 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.

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2012-01-30 09:45:302021-12-22 21:31:34Maximizing Retirement: Where a Divorce Might Benefit You

California Case Update: Form of Title Presumption Controls Characterization of Life Insurance Policy

January 24, 2012/in Family Law /by Mitchell Ehrlich

California is a community property state, which means that all property, with certain exceptions, acquired during marriage is considered to be a part of the marital community and not one’s separate property.  At common law, there is a rebuttable “form of title” presumption which, absent a contrary state law or proof as to otherwise, deems record title as determinative of the property’s characterization as separate or community.  In a 2011 California Appellate Court case, the Second District confirmed that this rule applies when a life insurance policy is in the name of one spouse.

In Marriage of Valli, 195 Cal. App. 4th 776 (2011), Husband purchased a $3.75 million life insurance policy on his life with community property funds and put the policy in Wife’s name.  Husband and Wife were married for twenty years with three young children.  At the time of purchase, Husband had been experiencing medical problems and wanted to ensure his family was taken care of.  Husband put everything in Wife’s name so that she could use it to take care of the children or disburse it as she saw fit.  When the couple decided to separate, there was a dispute as to whether the policy was community property or the wife’s separate property.

The trial judge found that the policy was community property because it was acquired during the marriage and the policy’s premiums were paid during marriage.  The appellate court reversed the trial court holding that the “form of title” presumption applied and the policy was therefore Wife’s separate property.  The court reasoned that the act of taking title to property in the name of one spouse during marriage with the consent of the other spouse effectively removed that property from the general community property presumption.  This presumption can only be overcome by clear and convincing evidence that there was an agreement that the title did not reflect the parties’ intent.  In Valli, Wife established that the policy was taken in the Wife’s name, and Husband failed to rebut the title presumption with any evidence of an understanding with Wife that, despite the policy being in her name, they did not intend the policy to be Wife’s separate property.

While decisions made during marriage may seem appropriate at the time they are made, it is important that marital partners take the time to consider every scenario that may arise in the future.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  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

 

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-01-24 09:48:312021-12-22 21:32:30California Case Update: Form of Title Presumption Controls Characterization of Life Insurance Policy

Ensuring Your Child’s Safety

January 13, 2012/1 Comment/in Family Law /by Mitchell Ehrlich

George Molho, a kidnapping survivor, has recently shared his experiences from when his father abducted him in 1978 and moved them to Greece from his home in Texas.  In sharing his story, Molho (for more information on his new memoir, Scarred, see www.georgemolho.com), a passionate advocate for child kidnapping and abuse victims, is trying to bring awareness to the problem and efforts to develop solutions that protect children.

As a seven-year-old in 1978, Molho was taken from his home in Houston by his father, a man with a bad temper, obsessive need for control, and desire to inflict pain.  At the time, no one, not even his mother, believed Molho when he predicted his father’s plan and tried to warn them.  When young children express fear or concern about even a close friend or family member, adults tend to chalk it up to shyness, a ploy for attention, or fantasy, Molho said.  “Trust your child’s instincts,” he says.  “If they act uncomfortable around someone because they can’t verbalize their feelings, or if they tell you they’re uncomfortable, trust them.  No matter who it is, if they tell you a person scares them, protect them.”

Molho also offers these lesser-known tips for protecting children from kidnappers, whether they’re friends or family:

  • Teach children how to fib on the phone.  If they’re home alone, for instance, and someone calls asking to speak to their mother or father, they might say, “My mother’s busy in the kitchen right now and asked me to answer the phone and take a message.”  Put them to the test by having someone they don’t know, one of your friends or co-workers, call.
  • Make approved lists of people who will deliver any important news to them.  If Mom or Dad is in trouble or hurt, only these people will know and will tell the child.  Even if Uncle Bob tells them Mom is in the hospital and the child needs to go with Uncle Bob, if he’s not on the approved list, the child should not go.  This is a common ploy.
  • Teach them, train them and give them permission to defend themselves.  This is very important and it saves lives. Most children are taught to be polite and respect adults; it’s far safer to risk offending an adult – even if it turns out the adult meant no harm.  Screaming, kicking and running away are perfectly acceptable if a stranger grabs your arm – even if the stranger is smiling sweetly.

Family law proceedings can be contentious.  Emotions tend to run high for all those involved; sometimes this leads to actions that endanger the safety of the children caught in the middle.  George Molho’s tips may help ensure the safety of your children.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child custody 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

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2012-01-13 14:35:242021-12-22 21:32:57Ensuring Your Child's Safety
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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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