An affair is a life-altering event. The repercussions of infidelity affect far more people than just the spouse who was cheated on. Often, the party who suffers the most is the most innocent – the children. In addition to their family structure being shaken up, they will now have to split time between both parents. Before this happens, a custody agreement must be arranged in court. So, how does an affair affect custody agreements?

California is a no-fault divorce state.

Here in California, the court system does not need to know the specific reasons why a marriage is being dissolved. Even though an affair might be the reason why a couple is seeking a divorce, the court will rule it as “irreconcilable differences” without determining which party is at fault.

With that being said, infidelity typically has little to no impact on determining child custody. The spouse who was spurned by the affair cannot use being cheated on as a reason to deprive the other parent of custody. The best interest of the child is what the court bases custody rights off of, and a parent’s romantic interests usually don’t have much effect on that.

There are exceptions to every rule.

Although infidelity alone will not have an impact on the custody agreement, other factors which stem from an affair might. For example, if there was domestic violence or substance abuse in the home, that would certainly impact child custody. If the spouse having the affair was neglectful to the children and left them unattended and unsupervised to meet up with their romantic interest, that would also impact custody.

Likewise, if the parent who was cheated on proves to be vindictive and is going to create a negative environment for the children, the court would take that into consideration. The safety and well-being of the children should be the forefront concern for both parents. If either parent is not capable of providing a safe and nurturing environment for their children, that will become a factor in the custody proceedings.

How do I know if an affair will affect my custody agreement?

Every case is different, and there is no “one size fits all” advice when it comes to topics as complex as child custody. Here at Lonich Patton Ehrlich Policastri, we specialize in family law and estate planning. We are located in San Jose, CA, and serve the greater Bay Area. We are one of the largest practices in the Bay Area and we are Board Certified Family Law Specialists. We have been serving the community since 1994. Our attorneys genuinely care about each individual client and we want to take the time necessary to understand your objectives and meet your needs. We have the proper resources, training, and experience to serve your family with the best expertise in the area.

Please give us a call at 408-553-0801 or fill out our contact form for a free consultation. You deserve to know your rights and the best way to proceed with a divorce and custody agreement.

Separation and divorce are difficult for everyone involved, but if you have children the situation can become even more complicated. There are two types of child custody that you must consider: legal and physical. Legal custody refers to who makes the decisions for the child related to things like health care, schooling, and welfare issues. Physical custody refers to who is responsible for providing shelter for the child and who spends the most time with them. Parents can have sole or joint legal or physical custody. In general, a child custody agreement must be approved by a judge in order to be legal and enforceable under state laws. Even though a judge needs to approve the custody agreement, many parents prefer to develop a plan outside of court before bringing it to a judge, which is sometimes more cost-effective and less contentious than a drawn-out trial in court.

Developing a Parenting Plan

The first step in developing a custody agreement is to agree on a parenting plan, which is basically a proposed custody agreement outlining whether custody will be joint or not, the details of visitation schedules for the non-custodial parent, if applicable, as well as the duties and responsibilities of each parent. Parenting plans usually also provide information about parental rights and the rights of other parties who might be involved in the child’s life such as grandparents or stepparents. Although there is no set form for parenting plans, they can be as detailed or as simple as the parties want.

Ways to Arrange a Custody Agreement Outside of the Court

There are a few different ways to arrive at a parenting plan and then custody agreement outside of court:

• Informal Negotiations – if parents have a mostly amicable relationship they might choose to create a parenting plan together through direct communication and discussion without involving outside parties.
• Collaboration – if parents cannot agree on a parenting plan, they might choose to communicate through their attorneys.
• Mediation – if direct communication or collaboration fails to provide the desired results, some parents turn to mediation, a process in which a neutral third party works with both parents and their attorneys. It should be noted that nothing the mediator says or does is legally binding.

Using any of the methods above, once the parents arrive at a parenting plan that is acceptable to both sides, both parties must sign the agreement and present it to the court for approval.

Deciding What is Best for Your Situation

Custody decisions are always delicate because the emotions and well-being of children are involved, but sometimes they can also be complicated by more serious issues such as domestic violence, allegations of abuse or one parent moving far away or even living in another country. Even in less complicated cases, parents going through divorce and fighting for custody tend to be stressed and emotional, which might make it difficult to think clearly or come to an agreement.

Hiring an attorney to assist you can make a particularly difficult time in your life easier. Our team of experienced family law attorneys at Lonich Patton Ehrlich Policastri has been helping families in the greater Bay Area navigate the complicated landscape of custody arrangements and the court system for decades. Call us today at 408-553-0801 to schedule a free half-hour consultation. We would be happy to discuss your options and help you decide on the best path forward in your unique situation.

Divorce can be complicated and draining, both financially and emotionally. While some divorces may include complicated legal battles, there are others that have the simple focus of moving forward. In the case of the latter, the process for divorce can seem simple enough. Having a lawyer to help you navigate the divorce may seem unnecessary.

Filing For Divorce Without a Lawyer

In some parts of the country, it is fast and simple to file for divorce without a lawyer. Areas with strong domestic court systems may offer options to spouses that allow them to file themselves. This could include checklists and forms that help spouses navigate through the divorce process. It may even be possible to expedite the divorce if it falls within certain guidelines.

However, without a lawyer, it can be difficult to understand and follow the rules necessary to obtain a divorce. Learning the process can be overwhelming. Some courts require self-represented parties to take classes that provide information on the divorce process. Other courts do not provide this, instead expecting self-represented parties to obtain the correct information on their own. Additionally, courts that do not offer support in navigating divorces, or do not offer a way to file online, can prove exceedingly difficult for parties representing themselves. Parties must spend hours learning the process, finding the correct documents, and filing them with a clerk. Having a lawyer, who has navigated the process many times and understands what to do, can make life much simpler. While it is possible to file for divorce without an attorney, it can make it a very time-consuming and difficult process.

Alternatives to Hiring a Lawyer

The emotional and financial burden of divorce can make many decisions feel overwhelming. It can be hard to find the right lawyer, especially if you feel your case does not warrant an attorney at all. If hiring a lawyer is not a possibility for you, there are other options. One option is consulting with a lawyer on an as-needed basis. This could include asking an attorney to look over your paperwork before filing or receiving help navigating an online filing process. Consulting with a lawyer when you need to can provide a great balance between doing everything on your own and hiring a lawyer full-time. If hiring a lawyer is not an option because of financial constraints, visiting a family law clinic can be an excellent way to receive quality legal advice. Many clinics offer sliding-scale or flexible payment options, depending on the circumstances.

Determine What’s Right For You

Divorce can be a very tough obstacle to overcome. With so much uncertainty, it can be hard to decide whether hiring a lawyer is the best option for you. While it is not strictly necessary to have an attorney to complete a divorce, it can be extremely helpful. At Lonich Patton Ehrlich Policastri, we would be happy to discuss your options and assist you in understanding what’s best for you. Call us for a consultation today at 408-553-0801.

Almost everyone has heard of prenuptial agreements signed before marriage to protect the couple’s individual assets in the event of the marriage ending in divorce. What you may not have heard of are postnuptial agreements.

What is a postnuptial agreement, and should you consider getting one?

Fact #1: Just like a prenup, a postnup outlines the responsibilities in the marriage, plus the division of assets and the assumption of debt if the marriage fails. However, a postnup is signed afterward instead of signing the agreement before the wedding.

Fact #2: Many couples sign postnups because of changing income or if one spouse inherits property. Some states consider inheritance to be community property. A postnup ensures the beneficiary receives sole possession of the bequest.

Fact #3: When couples get married, it’s hard to know where life’s road will take them. At the beginning of their life together, both may be working and earning equal income. But, at some point, children may come into the picture, and one parent decides to stay at home to raise them. A postnuptial agreement can ensure that the stay-at-home parent is provided for if the marriage fails.

Fact #4: A postnuptial can protect gifts. Some young couples looking to purchase a home may find they can’t afford the down payment. Many times, a parent will help to cover the cost. The house will likely become part of the settlement agreement if the couple divorces. A contract can protect the parent’s investment by stipulating the repayment of the gift if the couple divorces.

Fact #5: It can protect your children’s inheritance. Whether you have children from a previous marriage or your current marriage, a postnuptial agreement can outline the distribution of your assets in the event of death. You can ensure that your children will be provided for no matter what happens with your marriage.

Problems You May Encounter

Many problems can arise when one partner asks for a postnuptial agreement. Sometimes, the agreement can be seen as an indication that there are already problems in the marriage. This can lead to tension and resentment between the spouses.

Also, if the terms of the agreement are unfair, one spouse may be left with insufficient resources, and it may not hold up in court if it is deemed unfair or one-sided.

Opening the discussion may feel like a daunting task. Here are some tips for beginning the conversation:

1. Choose the right timing. Bringing up a postnup during an argument is never a good idea. It should also not be discussed immediately or before a promotion or raise. Instead, pick a time when you are both relaxed.
2. Find a quiet location where you won’t be interrupted.
3. Be open and honest about your financial situation. Discuss your assets, debts, income, and expenses honestly.

You Don’t Have to Go It Alone

If you and your spouse are considering a postnuptial agreement, you will want to contact our experienced family law attorneys at Lonich Patton Ehrlich Policastri. We can help you understand the legal implications of it and assist you in negotiating an agreement that works for both of you. Call us at 408-553-0801 or fill out our contact form to schedule a free consultation.

 

If you find yourself in a situation where you need to file a restraining order, you are likely nervous, scared, and unsure of what may happen. Understanding the process and knowing what to expect during the hearing may ease some of your anxiety.

Why You Might Need a Restraining Order

In California, a restraining order or protective order is a legal order issued by the court that requires one person to stop harming another, whether it is physical, sexual, stalking, threatening, or harassment. The person getting the restraining order is called the “protected person,” and the person on the receiving end of the restraining order is called the “restrained person.”

Restraining orders can include the following:

• Personal conduct orders prohibit the restrained person from committing specific actions
• Stay-away orders that don’t permit the restrained person from being in the same location as the protected person
• Residence exclusion states that the restrained person must vacate the premises where the protected person resides.

There are four different types of restraining orders, including:

• Domestic Violence : to protect someone who is being physically by a person they live with
• Civil Harassment: for protection from someone who is not a close family member or domestic partner, such as a neighbor, distant relative, or roommate.
• Elder or Dependent Adult Abuse: for adults who are unable to care for themselves due to physical or mental disabilities or older (65+) adults. The protective order is put in place for someone who has been physically abused, financially exploited, neglected, or deprived of services such as healthcare visits or medications.
• Workplace Violence: can be requested by an employer to protect an employee from being harassed at the workplace.

What to Expect During the Process

In California, an individual must first file a petition with the court. At the hearing, the petitioner (the person who filed the order) will have an opportunity to present evidence and testimony to support their claims. The respondent (the person the order is filed against) will also have a chance to give evidence and testimony.

The judge will review the evidence and decide whether or not to issue a restraining order. They may impose other conditions, such as requiring the respondent to attend counseling or surrender their firearms.

We’re Here to Help

If you are in a situation where you need to file a restraining order, don’t hesitate to get in touch with our attorneys at Lonich Patton Ehrlich Policastri. Our experienced lawyers have combined litigation experience of over 100 years in family law matters. We will work with you and provide you with support and guidance as you work through this challenging situation. Call us at 408-553-0801 to schedule your free and confidential consultation.