Family Law Archives - Page 30 of 35 - Lonich Patton Ehrlich Policastri

Is Summary Dissolution Right for You?

March 1, 2011/in Family Law /by David Patton

If you are looking for a simplified divorce process, you may be interested in learning more about summary dissolution. Summary dissolution involves less paperwork and you do not have to appear in court. However, you must meet certain conditions before you qualify for a summary dissolution.

First, you and your spouse must have agreed in writing to a division of your assets and debts. In addition, you must have been married for five years or less, and have no children from the relationship. Neither party may own a home or real estate, the value of the community property must be less than $25,000, and combined debts must not exceed $6,000. Both partners must also waive spousal support.

If you meet the requirements, a summary dissolution may be appropriate for your situation. Both spouses must agree to all of the terms of a summary dissolution. In addition, either spouse may cancel the summary dissolution for any reason before the dissolution is final.

For more information on summary dissolution, please contact our Bay Area divorce attorneys at Lonich Patton Erlich Policastri. 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.

Is Property Acquired After the Date of Separation Still Community Property?

February 25, 2011/in Family Law /by Julia Lemon

In California, the legal date of separation occurs when (1) at least one spouse has the subjective intent to end the marriage and (2) there is objective evidence of conduct that reflects that intent.

California is a community property state. This means that under California law, most property acquired by married persons during their marriage while living in California is presumed to be community property. Property that is acquired prior to marriage, or during marriage by gift, bequest, or devise, or as income from property owed prior to marriage is presumed to be separate property of the receiving spouse. After the date of separation, the earnings and assets acquried by one spouse are generally considered that spouse’s separate property.

For more information on legal separation (property division?), please contact us. 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.

What is Summary Dissolution?

February 25, 2011/in Family Law /by Mitchell Ehrlich

Summary dissolution is a California divorce procedure that allows couples meeting certain qualifications to divorce quickly and simply. Some of the qualifications for a summary dissolution are discussed below.

In order to qualify for summary dissolution, the couple must have been married for no more than five years. Prior to filing for summary dissolution, at least one of the spouses must have been a resident of California for at least 6 months and a resident in the county where the dissolution was filed for at least 3 months.

In addition, “irreconcilable differences” must have caused the breakdown in the marriage. The couple must have no minor children. This means that no child of the relationship was born before or during their marriage. Also, the wife (to the best of her knowledge) must not be pregnant, and the couple must not have adopted any children during their marriage. However, the couple may have adult children.

In order to qualify, the couple also must not have any real property interests other than short term leases. Therefore, couples who own homes are not eligible for summary dissolution. The couple may only have a maximum of $6,000 in unpaid debts incurred by either or both parties during the marriage. This number, however, does not include the balance left on a debt from an automobile purchase.

If a couple qualifies for summary dissolution, they can proceed with a divorce without having to appear in court. However, because there is no trial or hearing in a summary dissolution, couples do not have the right to appeal the case or to ask for a new trial (since there was no trial). For couples who do not qualify for summary dissolution, they may proceed to obtain a divorce through the regular dissolution process. Under the regular dissolution process, couples may ask for a court hearing or a trial. If either party is unsatisfied with the judge’s final decision at trial, he or she may appeal the decision to a higher court.

For more information about California divorce or to find out about all of the summary dissolution requirements, please contact our San Jose divorce attorneys at Lonich Patton Erlich Policastri. 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.

What is a California Emergency Protective Order?

February 24, 2011/in Family Law /by David Patton

Note: People can tell what internet sites you have visited on your computer. Be safe, and use the internet at a local library, friend’s house, or at work!

An emergency protective order (EPO) is a court order that protects victims from domestic violence by prohibiting the victims’ abusers from coming within a certain distance of the victim. You can obtain an EPO by calling 911 and reporting domestic violence to the police. You can ask for this order at any time – day or night. An EPO may also grant the victim temporary custody of his or her children. However, an EPO and other restraining orders do not guarantee the safety of you and/or your children. If you continue to fear for your safety after the issuance of an order, the California Bar suggests you consider moving into a domestic violence shelter or the home of a friend or relative who is not known to the abuser.

An EPO remains in effect for five court days or seven calendar days, whichever is shorter. For a longer-term restraining order, you must apply for a Temporary Restraining Order (TRO) at the local courthouse. If a TRO is granted, it will take effect as soon as the restrained party is served a copy of the court papers. The TRO will stay in effect for a period not exceeding three weeks, pending a court hearing. At the hearing, the judge will decide whether a “permanent” restraining order is warranted, which can stay in effect up to three years.

It is important to note that under California law, a wide variety of activity can constitute grounds for a domestic violence protective order. California law defines domestic violence as abuse towards an intimate partner or family member. Domestic violence stems from the abuser’s need to control. It includes threats, annoying phone calls, stalking, unwanted sexual touching, hitting, the destruction of personal property, and other actions. Victims may be a spouse, dating partner, someone you lived with, or a relative related by blood or marriage. It affects same-sex partners as well as heterosexual couples. Both children and adults can be the victims of domestic violence.

For more information about emergency protective orders and temporary restraining orders, please contact the San Jose family law attorneys at Lonich Patton Erlich Policastri. 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.

An Action to Establish Parentage Might Help You Obtain Child Support from Your Child’s Other Parent

February 23, 2011/in Family Law /by Gina Policastri

A parentage action is a court proceeding in which the court makes a determination of child’s legal parents. Quite often this is not in dispute, but sometimes parentage is disputed for various reasons. Where the parents are not married, a parentage action or at least a determination of parentage is required as part of any effort to obtain child support, visitation, or custody. Either the mother father (even if disputed) of the child can file this type of action.

It is important to know that the legal parents of a child have an obligation to financially support their child. A legal parent also has the right to obtain custody and/or visitation rights in relation to the child.

For more information about how you can establish parentage of your child, please contact our family law attorneys at Lonich Patton Erlich Policastri for more 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.

Marital Debts: What You Need to Know

February 22, 2011/in Family Law /by David Patton

The community estate (i.e. a married couple’s community property and quasi-community property) is generally liable for either party’s premarital and pre-separation debts. This rule applies regardless of which spouse has management and control of the property, and regardless of whether the debts were incurred to benefit both spouses.

The community may be liable for child support and spousal support obligations arising from one spouse’s prior marriage even though the other spouse did not personally incur the original obligation. The community, however, may be reimbursed when community property is used to pay the other spouse’s child/spousal support if the obligor spouse had separate property income available to use to satisfy the debt. The community estate is generally not liable for debts one spouse incurs while the spouses are living separate and apart from each other.

For more information about California divorces, please contact the Santa Clara divorce attorneys at Lonich Patton Erlich Policastri. 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.

Premarital Agreements vs. Marital Agreements vs. Marital Settlement Agreements

February 17, 2011/in Family Law /by Mitchell Ehrlich

California family law is quite complex. For those who are not familiar with the workings of California law, it may be very difficult to differentiate between the terms “premarital agreement,” “marital agreement,” and “marital settlement agreement.”

A premarital agreement is a contract that is executed between two prospective spouses. The premarital agreement, or “prenup,” is entered into in anticipation of marriage with the idea that it will become effective upon the marriage of the two prospective spouses. Premarital agreements often address issues of the parties’ present and future property rights. Premarital agreements must comply with certain formalities to be enforceable.

A marital agreement, or postnuptial agreement, is a contract that is executed by spouses during marriage. This type of contract affects the rights and obligations incident to an ongoing marriage, both during life and after death. Post-nuptial contracts can be broad in scope, laying out in comprehensive detail the parties’ rights and duties towards each other and the characterization of property. This category also includes “transmutation” agreements, which are contracts changing the property status of a specific asset from its current form to another form (e.g. separate property to community property). Like a prenuptial agreement, marital agreements must comply with certain formalities in order to be enforceable. Additionally, spouses entering into postnuptial agreements must comply with their fiduciary obligations and act with the “highest good faith and fair dealing” towards one another.

A marital settlement agreement (MSA) is executed as part of a dissolution of marriage or legal separation. The MSA typically addresses the parties’ ownership of marital property and other rights and obligations in relation to divorce or separation. Usually, an MSA is incorporated into a judgment of dissolution, and the rights and obligations of the ex-spouses are governed by the terms of the final judgment.

Note that the same rules governing these agreements between spouses also generally apply to domestic partnerships. For more information about prenuptial agreements, marital agreements, or marital settlement agreements, please contact us.

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.

Is a Legal Separation the Best Option for You?

February 16, 2011/in Family Law /by Julia Lemon

If you do not want to proceed with a divorce but are interested in separating from your spouse, a legal separation might be an appropriate remedy. A legal separation may be appropriate for couples who have religious or other personal reasons for not wanting to proceed with a divorce. For example, some couples may not want to proceed with a divorce at the present time because a divorce may make them ineligible for medical insurance.

A legal separation is not a legal end to your marriage. In fact, if you are legally separated and decide to remarry, you must first obtain a judgment of dissolution for your first marriage. However, a legal separation does allow you to live apart from your spouse while making separate financial, parenting, and property decisions.

To find out more about legal separations, please contact Lonich Patton Erlich Policastri. 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.

Is a Divorce Right for You?

February 15, 2011/in Family Law /by David Patton

If you are currently living in northern California and are contemplating ending your marriage through a divorce, here is some basic information on what a divorce entails. A “divorce,” or “dissolution of marriage,” legally terminates your marriage or domestic partnership. After you are legally divorced, you are considered “single” and are free to remarry or enter into a new domestic partnership. However, a divorce is not right for every couple.

If you want to end your financial and personal life with your partner, but do not want a legal divorce, there are other alternatives for you. Some people may choose to pursue a “legal separation” instead. This is often done for religious reasons. A legal separation does not end a marriage or domestic partnership. Rather, it allows you to live apart and make independent decisions on finances, property, and child care issues.

Another alternative to a divorce is an annulment. However, this option is very rare. An annulment occurs when a court finds that your marriage or domestic partnership was never valid in the first place. Marriages may be void because the marriage was incestuous, bigamous, fraudulent, or one of the spouses lacked capacity to enter into the marriage.

For more information about divorce, legal separation, and annulment, please contact our attorneys at Lonich Patton Erlich Policastri. 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.

Steer Clear of Potential Spousal Support Tax Pitfalls

February 11, 2011/in Family Law /by Mitchell Ehrlich

Generally speaking, spousal support is taxable to the recipient and is deductible by the payor. For example, if you are paying spousal support to your ex-wife the money she receives would be taxable to her as income. Likewise, generally you would be able to deduct it on your tax return. However, you may not be aware that there are several exceptions to this rule. In fact, it is necessary that you closely observe the spousal support formalities in order to take advantage of deducting payments to your ex-spouse.

In order for spousal support payments to be deductible, they must be made in cash. However, in this context, “cash” is not only currency. It can also include check or money orders payable on demand. The payment itself must be received on or on behalf of the supported spouse, and the spouse must be entitled to this payment under a divorce or separation instrument. As an illustration, if you and your ex-spouse privately decide you will pay her a certain amount per month, you cannot deduct this amount from your taxes as the payment was not made pursuant to a divorce/separation instrument. On the other hand, if your Marital Settlement Agreement states that you must pay your ex-wife, you can likely deduct the payments on your taxes.

In addition, the payment obligation must be limited by the recipient spouse’s death. For example, assuming that your settlement agreement requires you to make payments beyond your ex-spouse’s death, none of these payments are deductible support.

These are just some of the several requirements for deductible spousal support. For more information about making sure you are following the proper tax rules in relation to your spousal support payments, please contact the San Jose divorce attorneys at Lonich Patton Erlich Policastri. 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.