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How to Start a Legal Separation

May 18, 2023/in Family Law /by Mitchell Ehrlich

Marriage is a legal, long-term partnership between two people who love each other and share their lives. Unfortunately, marriage might not always be the happy ending you imagined. Sometimes spouses realize that they want to live independently of each other, but there are compelling reasons to avoid divorce. A legal separation agreement might be an option in these cases.

What is Legal Separation?

As with divorce, legal separation is legally binding. Spouses live separately and maintain independent personal lives, but remain eligible to receive the financial and insurance benefits of a married couple because the legal ties of marriage remain intact. Both spouses sign a legal separation agreement that sets out the details of important issues like:

  • Division of property and debt
  • Child custody and visitation rights
  • Child and spousal support
  • Business ownership interests
  • Legal fees

When to Choose Legal Separation

If you are considering divorce, when might you pursue legal separation instead? There are several situations or reasons that lead couples to choose legal separation, including:

  • Residency requirements – California requires that at least one of the spouses be a resident of the state for 6 months and in the United States for at least 3 months before divorcing. Legal separation requires only one spouse to live in California with no time requirement.
  • Personal beliefs – Some people or families are personally opposed to divorce, so alternative options are preferable.  
  • Religious beliefs – Many religions view marriage as sacred, so divorce is discouraged.
  • No waiting period – In divorce, couples must wait 6 months from the time divorce papers were first served. Legal separation has no waiting period.
  • Insurance benefits – If one spouse is covered on the other spouse’s health care plan, they can continue to receive benefits.
  • Convenience – Legal separation can sometimes be simpler, quicker, and more cost effective than divorce.

Starting the Process of Legal Separation

Once you’ve decided on legal separation, what steps should you take? 

  • File a petition for legal separation. This court document is a legal document that begins the process in family court. You will pay a filing fee and serve the petition to your spouse, similar to divorce papers.
  • Develop a separation agreement. You and your spouse should make decisions and outline the responsibilities of each party with regard to assets, debts, living expenses, custody and visitation of children, living arrangements, etc. Although this process can be done informally or through a mediator, it’s usually a good idea to get legal advice, especially if communication with your spouse is poor. If you cannot come to an agreement, the judge will step in and make decisions for you.
  • Accept the family court’s final judgment of legal separation.

It’s important to remember that just living separately is not the same as legal separation.

Helping Spouses Establish Legal Separation

Because the legal separation agreement sometimes serves as the basis for a later divorce settlement, it’s vital to develop this document carefully. An experienced lawyer can help you consider the future impact of both your personal and financial decisions. 

The family law attorneys at Lonich Patton Ehrlich Policastri have a great deal of experience with clients who choose legal separation whether because of religious, financial, or business considerations. Contact us today at 408-553-0801 for a free, 30-minute consultation to discuss your goals and options. We can walk you through the process and make sure your best interests are protected.

 

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

 

https://www.lpeplaw.com/wp-content/uploads/2023/05/bigstock-Disappointed-African-American-411399262.jpg 600 900 Mitchell Ehrlich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Mitchell Ehrlich2023-05-18 19:05:552023-05-18 19:07:26How to Start a Legal Separation

5 Tips for Navigating Child Custody

May 11, 2023/in Family Law /by Virginia Lively

Separation and divorce are difficult, emotionally wrenching situations. When your children are involved, it can become even more stressful. You want the best for your children, and you also want to be as involved in their lives as possible. The following tips can help with navigating child custody issues with your co-parent.

1. Educate yourself about the child custody process and your rights

It’s important to have access to reliable information about child custody and parental rights in California. To help you make sense of this complex issue, the attorneys at Lonich Patton Ehrlich Policastri (LPEP Law) offer a free download entitled, “Child Custody Myths vs. Facts.” Some of the most helpful information includes: 

  • How child support works in joint custody situations
  • How your child’s preference affects a court’s custody decisions
  • Your rights if your co-parent is alienating your child’s affection toward you
  • How to obtain delinquent child support payments

2. Make a good case for yourself

When determining custody issues, a judge will consider specific criteria with regard to the children’s living environment. It’s a good idea to be proactive and present yourself in the best light possible.

  • Make sure your home is safe, clean, and comfortable.
  • Be ready to demonstrate your ability to care for your children’s basic needs – food, shelter, clothing, transportation, and school supplies.
  • Keep yourself healthy both physically and mentally.
  • Maintain a good working relationship with your co-parent.
  • Stay involved in your children’s activities and education.

3. Stay organized and document as much as possible 

Depending on your relationship with your co-parent, you may be required to prove that you are dependable, responsible, and able to care for your children well. Keeping detailed notes about the visitation schedule you have established, your children’s calendar (e.g., doctor’s appointments, school events, holidays, etc.) and child support payments will help demonstrate in court that you are a capable and involved parent.

Although the involvement of both parents is usually preferable, if your former spouse is abusive in any way, puts your children at-risk in an unsafe environment, or does not have appropriate living arrangements to host your children, it’s vital to document any of those negative situations and present them in court.

4. Maintain positive communication

Do your best to keep all communication with your ex-partner, especially written communication like emails and texts, as civil as possible. Fighting with your former spouse in public or in front of your children is clearly not in your children’s best interests and can make an already tense situation worse. Even if you feel that they are being unreasonable, it’s important to stay constructive and polite on your end. If your child custody negotiations become contentious, your former spouse will not be able to use your words and actions against you. 

5. Hire an experienced family law attorney

Nothing is more important than being in your child’s life. Working out child custody and parental visitation issues can be daunting, especially when emotions are high. The experienced and compassionate family law attorneys at Lonich Patton Ehrlich Policastri understand the importance of family and can walk with you through the stresses of child custody litigation. Having experts on your side can help protect your parental rights and work toward the best possible outcome for your family. Call us today at 408-553-0801 to schedule a free 30-minute consultation. 

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

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How to Support Your Children During Divorce

April 27, 2023/in Family Law /by Gretchen Boger

Divorce is a difficult experience for any couple, especially one with children. Even if divorce is the best path forward for you and your partner, it can be a very challenging experience for children to navigate. It’s important to support your children throughout the process, but how do you do that? Let’s discuss how to best support your child during divorce. 

How do children react to divorce?

Children react differently to divorce depending on their age, personality, and specific family circumstances. Some children feel very guilty and blame themselves, while others may start acting out and experiencing difficulties at school. 

Younger children tend to not understand the situation and often experience confusion and sadness. Older children often experience worry and guilt, while teenagers may become angry, withdrawn, and not want to talk about the situation. 

It’s important to support your child, regardless of how they react. Here are some simple steps you can take to help your children navigate this complicated time in their young lives. 

Tips for supporting your child during a divorce

  • Communicate honestly: Divorce is very confusing for kids. It’s important to communicate openly and honestly with your children. Explain the situation to them as clearly and accurately as you can, and encourage their questions. 
  • Create a stable environment: Stability, consistency, and routines are important for all children, especially during a major life event like a divorce. Do your best to maintain their original routine and keep their surroundings familiar. 
  • Offer reassurance: Reassure your child that both you and their other parent love them. Make sure you communicate that your love for your child is entirely separate from your divorce. You may feel this goes without saying, but kids often need to hear it. 
  • Encourage time spent with the other parent: Don’t put your child in a position where they feel like they can’t spend time with their other parent. Support their contact, whether it’s visiting in person, a phone call, or whatever works best. 
  • Inform teachers if necessary: If you have school-age children, consider discussing the situation with their teachers. This helps the teacher look out for and support your child as they navigate this situation. 
  • Lead by example: Whatever feelings you may harbor towards your ex, refrain from sharing these thoughts with your child. Set a good example and vent your frustrations elsewhere.
  • Consider counseling: Counselors and therapists with experience in divorce are amazing resources. Don’t be afraid to reach out to seek help for your child – a counselor can provide strategies for navigating this situation with your kids. 

Contact us to discuss the complexities of divorce

At Lonich Patton Ehrlich Policastri, we take care of the legal side of divorce proceedings, leaving you with more time for what’s really important. With more than 100 years of combined litigation experience, you can trust our team of divorce litigation specialists to negotiate on your behalf and ensure you receive what you are entitled to during divorce proceedings. 

Questions? Discuss your situation with a divorce litigation expert by calling 408-553-0801 or setting up a free consultation today.

 

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

https://www.lpeplaw.com/wp-content/uploads/2023/04/bigstock-Caring-Father-Caucasian-Man-Da-463309609.jpg 506 900 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2023-04-27 17:30:082023-05-11 18:22:21How to Support Your Children During Divorce

How to Manage a High-Asset Divorce

April 20, 2023/in Family Law /by Gina Policastri

Divorce is a difficult and emotionally draining experience, especially when high-value assets are involved. With family networks, businesses, investments, wealth management strategies, and other financial components at stake in the divorce proceedings, it’s important for divorced couples to consider all of their options before making any drastic decisions. 

Regardless if you choose to settle or engage in litigation, there are specific considerations that you must take into account to ensure the fair division of assets and liabilities for both parties involved. 

What is Considered a High-Asset Divorce?

A high-asset divorce involves significant assets of different types. This could include financial accounts, investments, real estate or other properties, business interests, and various personal possessions. Therefore, there are unique and complex issues when dissolving the marriage. They also typically involve other considerations, such as spousal support, child support, and tax liability issues.

As such, couples need to be aware of the special attention required for their situation so that everything is correctly managed and accounting for all assets can be as accurate as possible. Doing this ensures each party is fairly compensated according to their contributions toward the marriage. 

What Assets Are Not Included in the Divorce?

California is a community property state, meaning that any assets or property obtained during the marriage is considered legally owned by both spouses and must be divided equally in a divorce. This includes all real estate, bank accounts, investments, retirement benefits, and other assets accumulated during the marriage. It’s important to note that it also encompasses all debts the couple incurred.

However, certain assets are exempt. These include inheritances or gifts received during the marriage and property acquired by either spouse before marriage.

Furthermore, a business started before the couple married won’t be considered community property. However, if the other spouse contributed to the growth of the company, then it may be regarded as a marital asset.

How Do I Prepare For a High-Asset Divorce?

Preparing for a high-asset divorce may seem daunting, but there are steps you can take to ensure that the process is as smooth and stress-free as possible. You must have comprehensive documentation of all assets and related information, including saving records related to investments, stocks, bank accounts, real estate holdings, business interests, and any other item with possibly confusing ownership laws. Hiring a forensic accountant may help with this process.

High-Asset Divorce Mistakes

A divorce is stressful, and couples must pay extra attention to avoid costly mistakes. Most commonly, divorcing spouses make the mistake of not fully disclosing all of their financial holdings. Whether intentionally or unintentionally, this omission can lead to accusations of fraud.

Another mistake is underestimating the complexity of these types of divorces. It’s vital that you partner with an experienced lawyer. Our attorneys at Lonich Patton Ehrlich Policastri will work with you to develop a strategy that protects your interests. Contact us for a free consultation to review your options. We will work diligently to ensure you receive what you are entitled to.

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

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Child Custody After the Loss of a Guardian

April 13, 2023/in Family Law /by Virginia Lively
The loss of a custodial parent or guardian can have devastating effects on a child. During this
emotional and tumultuous time, loved ones and close family friends want to support the child
and provide as much stability as possible. But who ultimately gets custody after the loss of a
guardian?

If there is a surviving parent, California family law states that he or she is entitled to full custody
rights. However, there might be valid reasons that the surviving parent should not have full
custody, such as the parent:
  • Did not exercise prior visitation rights
  • Presents a danger to the child
  • Is unable to care and provide for the child
  • Is unwilling to bear responsibility for the child
  • Has a residence that presents an improper or inadequate living arrangement.

In cases where the non–custodial parent is unfit to be granted custody, another interested third
party, usually a close relative or family friend, can file a guardianship request in probate court.

Who can request guardianship?

Any adult who is able to properly raise a child can request to become the child’s legal guardian.
Usually, grandparents, close relatives, neighbors, other family members, family friends, or other
caring adults with a vested interest in the child’s life, such as teachers, are the ones who
request guardianship. The probate court determines whether the adult requesting guardianship
is fit to fulfill all the duties and responsibilities usually fulfilled by a parent.

It’s important to remember that even if the court determines that the surviving parent should not
have legal guardianship, he or she could still have visitation rights if continued contact is in the
child’s best interests. Similarly, the siblings, grandparents, and other family members of the
deceased parent might also receive visitation rights.

Becoming A Ward of the State

Unfortunately, in cases where the living parent cannot care for the child and no other interested
parties seek to become the child’s guardian, the court might choose to place the child in the
foster system as a ward of the state.

How to Protect Your Child’s Best Interests

Although it’s difficult to think about not being around to care for your child, it’s important to have
a plan in place to ensure that the right person of your choosing gets custody after your death. A
detailed
will and estate plan can give you peace of mind that your child’s rights and assets will
be protected and that your specific wishes will be followed with regard to custody. Appointing a
guardian that you trust is one of the most loving things you can do and could help relieve some
of the stress on those you leave behind during a very emotional time.

We Can Help You Safeguard Your Child’s Future

At Lonich Patton Ehrlich Policastri, we specialize in both family law and estate planning, so we
have years of experience in helping parents make sure their family’s futures are well protected.
Call us today at 408-553-0801 for a free consultation. We understand how important family is,
and we would love to speak with you about what you need to provide the best for yours.

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

 

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Can You Amend a Postnuptial Agreement?

March 2, 2023/in Family Law /by Gretchen Boger

Creating a postnuptial agreement after marriage is a great way to protect yourself and your assets in the event of a divorce. While thinking about divorce after saying “I do” isn’t top of mind for most couples, a postnup provides transparency and understanding in your marriage. So let’s say you have established a postnup, but now several years have passed and your situation has changed. Are you still bound and tied to the original postnup, or can you amend a postnuptial agreement to reflect current circumstances?

Can a postnuptial agreement be amended?

Yes. Like a prenup, a postnup can also be edited and amended after it has been created. Situations change, and life happens. Certain events that might make it necessary to update an existing postnuptial agreement include:

  • Having children
  • Purchasing new property
  • Starting up a new business
  • Receiving a large inheritance

Likewise, you can update your postnuptial agreement if you or your spouse has acquired a new debt and you want to make sure you have a legally binding agreement in place detailing who that responsibility will go to in the event of a divorce. Postnuptial agreements are tailored specifically to the needs of both spouses involved, and no two are alike. They are created and modified to reflect the unique circumstances and desires of each respective party. 

In order to make any amendments, both parties must agree on the changes being made. However, there are circumstances that would prohibit making any modifications to an existing postnup. These situations include if the couple is currently separated or seeking a divorce. Additionally, if the amendments being made would adversely affect any children involved, those changes would not be possible to make. The postnup, just like a prenup, can even be revoked if both parties mutually agree on getting rid of it.

How do you amend a postnuptial agreement?

The most important thing to do in order to make an amendment to your existing postnuptial agreement is to consult with a trusted attorney. Here at Lonich Patton Ehrlich Policastri, we have a team of dedicated attorneys with the expertise to navigate these matters. Since postnuptial agreements (and amendments made to them) can sometimes be difficult to enforce, it is imperative to have a skilled attorney guide you through the process in order to ensure that you have an enforceable document that will hold up in court and also satisfies the desires of both parties. We are one of the most prominent firms in the Bay Area and have the resources and experience to help guide you and your family. If you have questions about creating or amending a postnuptial agreement, give us a call today at 408-553-0801 or fill out our online form here for a free 30-minute consultation. 

Disclaimer: this article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.

https://www.lpeplaw.com/wp-content/uploads/2023/03/bigstock-The-Bride-And-Groom-Sign-In-Th-464816763.jpg 600 900 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2023-03-02 18:54:522023-03-02 18:59:10Can You Amend a Postnuptial Agreement?

What is Spousal Abandonment?

February 23, 2023/in Family Law /by Mitchell Ehrlich

At its best, marriage is a permanent partnership between two people who love each other. In the eyes of the law, marriage is also a civil contract that requires a license, witnesses, and registration with the state. When either spouse decides to end the partnership, he or she usually files for divorce, and the family court system helps determine issues related to distribution of assets, spousal support, and custody.

However, sometimes a spouse chooses to leave the marital home, stop fulfilling reasonable responsibilities and duties to the family, and, in some cases, cease all contact instead of filing for divorce and ending the marital contract in family court. Known as spousal abandonment, this type of behavior can have devastating effects on a family.

Types of Spousal Abandonment

There are several types of spousal abandonment, including:

  • Criminal – withdrawing necessary financial support and refusing to provide for the care of a dependent spouse or minors without just cause
  • Constructive – creating a hostile or unbearable marital environment (g., through domestic abuse, infidelity, withholding assets, etc.), giving their spouse a justifiable reason to leave
  • Emotional – completely disregarding a spouse’s feelings or emotional needs

It’s important to note that simply moving out of a shared home does not necessarily qualify as spousal abandonment. As long as the spouse in question continues to provide financial and other support and does not sever all ties with the family, there is no case for marital abandonment.

Spousal Abandonment in California

Since California is a no-fault divorce state, the court system does not recognize spousal abandonment as grounds for divorce, so you would not need to provide evidence of abandonment. Instead, you would likely cite “irreconcilable differences” as your reason for filing, which allows you to move forward quickly with your divorce.

Although spousal abandonment will not affect the divorce filing, the California family court would most likely take it into consideration throughout the divorce process when considering custody, alimony, and property division.

How Spousal Abandonment Affects Divorce in California

When filing for divorce, California requires you to make a good faith effort to locate your spouse and serve divorce papers to inform them of your intent. If your spouse has abandoned you, however, the court might approve alternative means, such as publishing a notice in a newspaper, to serve a spouse who cannot be found.

During the divorce proceedings, a judge might consider spousal abandonment when determining:

  • Spousal support – your spouse may be required to pay you alimony as a result of their actions.
  • Division of marital estate – you may be eligible to receive a greater share of marital assets, and/or your spouse may be obligated to repay a more significant portion of shared marital debt.
  • Child custody and visitation rights – your spouse might receive only minimal visitation rights or may lose parental rights altogether and might be compelled to pay you a greater amount of child support.

We Will Fight For You

If you are the victim of spousal abandonment and considering divorce, it’s important to have someone on your side to help you navigate the California family court system, especially in this complicated situation. At Lonich Patton Ehrlich Policastri we have been helping clients protect their rights and best interests in divorce cases for decades. Please contact us at 408-553-0801 or fill out our online form here for a free, 30-minute consultation to discuss your case and your options. Let us fight on your behalf.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

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Can Grandparents Sue for Visitation Rights?

February 16, 2023/in Family Law /by Gina Policastri

You can not overstate the importance of the grandparent-grandchild bond. While siblings, parents, and cousins may be a part of this essential tapestry, there is something uniquely special about grandparents and grandchildren coming together. Grandparents have their own brand of unconditional love that they impart to the youngest generations—one full of shared experience and advice; one loaded with history and tradition. Can Grandparents Sue for Visitation Rights?

Unfortunately, many grandparents are barred from forming healthy relationships due to a variety of factors. Thankfully, in the state of California, there is protection under the law for grandparent visitation rights, but some restrictions are still in place.

Here’s what you need to know if you’re considering suing for visitation rights in California.

An Established Bond with Grandparents

In California, grandparents must prove that they have a close and loving relationship with their grandchild in order to have the legal right to petition the courts for visitation rights. It is not enough to just prove that the grandparent was caring towards the child, as it must be shown that the two were formerly involved in a meaningful relationship and understand each other’s feelings.

Grandparents who can prove this stand a good chance of being granted visitation rights. Active involvement from both sides will help ensure the grandparent-grandchild relationship is worth preserving.

The Child’s Best Interest

When the court is making decisions concerning grandparent visitation rights, their priority is always the child’s best interests. This means they only grant these rights when they are confident that it won’t negatively affect the upbringing of the child. The court will balance the grandparents’ rights against the rights of the parent to make decisions regarding their children.

The Parents’ Marital Status

Typically, the grandparents can’t sue for visitation rights if the child’s parents are married. However, there are exceptions to this rule, such as:

  • The parents do not live together
  • The child doesn’t live with either parent
  • One parent is in prison
  • The whereabouts of a parent have been unknown for at least 30 days
  • One of the parents has joined a grandparent’s petition for visitation
  • A step-parent has adopted the child

Furthermore, a grandparent may petition for visitation if the parents are not married.

Are You Considering Petitioning the Court for Visitation?

A strong relationship between a grandparent and a grandchild is invaluable for both generations. However, navigating the laws surrounding grandparent visitation rights in California can be confusing and complicated. Generally, this requires filing appropriate forms and identifying various factors that establish why such rights would be beneficial to the children. Our attorneys at Lonich Patton Ehrlich Policastri can assist you with petitioning the court and establishing a case for grandparent visitation.

We have years of practicing family law in San Jose and the greater Bay Area and understand the importance of family bonds. Contact us for a free 30-minute consultation by filling out our online form here or calling us at 408-553-0801. We will review your case and help you protect your rights as a grandparent.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

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What is an ex parte custody order?

February 10, 2023/in Family Law /by Virginia Lively

When a couple is getting a divorce, important decisions can become complicated, especially if there are children involved. Child custody requires extensive planning and forethought. In a typical child custody case, the courts look into a variety of things regarding both parents in order to make a decision that is focused on what is best for the child (or children). Both parents are involved in making this decision. However, there is a circumstance known as an ex parte custody order, which allows for court proceedings involving only one parent or guardian to take place without notifying the other.

What is an ex parte custody order?

An ex parte custody order happens when one parent files a legal document with the court in order to get custody of the child, without notifying the other parent of what is happening. Ex parte requests are reserved for imminent and dire emergencies. Some examples of what the courts consider an emergency are situations where the child is at risk of being abducted by the other parent or is suffering from mental or physical abuse. Requesting an ex parte custody order essentially means you formally ask the judge to make a decision immediately, regardless of the other cases the judge had scheduled for that day. Ex parte requests should be reserved for the most utmost emergencies, where the well being of the child is in real danger. If you are confident that the situation requires immediate action and an ex parte custody order is the course of action you need to take, then you need to make sure your homework is done so you can act swiftly and efficiently.

What to do before, during, and after the hearing.

In an average child custody case, both parties are aware of the court date and all of the details. In an ex parte case, one party files the required documents known as “pleadings”, with the assistance of an attorney. The most crucial part of this step is to make sure you have an attorney well versed in family law and knowledgeable on ex parte cases. Since courts in the same state can be very different from one another, make sure your attorney is familiar with the specific court you will be appearing at. Doing your homework is vital. When you arrive at court, sometimes they will have already made a decision based on your pleadings alone. Occasionally, they will want to hear an oral argument from the petitioning party. After the hearing, the ruling will be made in writing.

Here at Lonich Patton Ehrlich Policastri, we understand the importance of settling child custody cases amicably. We have a strong reputation in San Jose and Santa Clara when it comes to helping families with custody cases of all kinds. Contact us today at 408-553-0801 or fill out the form here for a free 30 minute consultation, and allow one of our experienced attorneys to help guide you in the next steps to take for your family.

Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter. 

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Can I Sue My Spouse For Cheating On Me?

February 2, 2023/in Family Law /by Gretchen Boger

Infidelity can be extremely emotionally draining and stressful. If your spouse cheated on you, you may be wondering if, as the injured party, you have any legal recourse to receive compensation for your pain. Although somewhat complicated, there are a few circumstances in which you might be able to bring a civil case against a cheating spouse.

Alienation of Affection

When a third party interferes in a loving relationship between a husband and wife, some states allow what is known as an alienation of affection lawsuit. Usually, this type of claim is filed against the third party, rather than against the spouse, however. Filing an alienation of affection lawsuit requires proof that your marriage was a happy and loving one and that the third party intentionally destroyed your marriage. Unfortunately, only a handful of states still recognize this type of lawsuit, and California is not one of them. 

Infliction of Emotional Distress

In California, victims who have suffered emotional anguish as the result of someone else’s actions can sometimes sue for either Negligent or Intentional Infliction of Emotional Distress (NIED or IIED lawsuits). Although adultery can certainly cause significant emotional distress, you should carefully consider what this type of lawsuit entails, including:

  • Proving the existence of your emotional pain (e.g., through expert testimony of a counselor, etc.)
  • Establishing how your pain is the direct result of others’ actions
  • Documenting the severity of your distress and how the trauma has diminished your quality of life
  • Demonstrating that your spouse’s behavior was outrageous or reckless and intended to cause you emotional distress (i.e., for IIED lawsuits only)

Unless you think you have a very strong case or stand to recoup a large amount of financial compensation from your spouse, filing an NIED or IIED lawsuit may cost more time and money than its worth.

How Infidelity Affects Divorce in California

Whether or not you choose to pursue a civil claim against your spouse for an extramarital affair, you might also be considering divorce. Since California is a no-fault divorce state, you would most likely cite irreconcilable differences, rather than adultery, as the reason for your divorce. 

Although the California family court system does not usually take infidelity into account in divorce proceedings, there are certain cases where it can affect custody agreements or spousal support. Also, if your spouse spent marital assets on their affair (e.g., expensive gifts, luxury vacations, or hotel stays), the judge will likely require them to reimburse you for those assets during the division of your marital estate.

Facing Infidelity? We Will Fight For You

Our team at Lonich Patton Ehrlich Policastri has decades of experience dealing with complicated divorce cases in California. We understand the toll that extramarital affairs take, and we work hard to protect your rights and make sure you understand all your options. Call us today at (408) 553-0801 to set up a 30-minute free consultation with our family law experts. 

https://www.lpeplaw.com/wp-content/uploads/2023/02/CoupleTherapy.jpg 526 1275 Gretchen Boger https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Gretchen Boger2023-02-02 23:48:442023-03-21 23:36:16Can I Sue My Spouse For Cheating On Me?
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Phone: (408) 553-0801
Fax: (408) 553-0807
Email: contact@lpeplaw.com

1871 The Alameda, Suite 400
San Jose, CA 95126

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