Posts

Fiduciary Duties Between Spouses: Respect Thy Spouse

/1 Comment/in /by

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

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

The Certified Family Law Specialists*  at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you are interested in learning more about your fiduciary rights and obligations, contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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

Immigration Obstacles for Same-Sex Couples

/in /by

Love and marriage transcends borders all over the world.  It is not unheard of for travelers to meet locals and fall in love and live happily ever after.  In the United States, however, this happenstance does not have a happy ending for same-sex couples.

Federal law prohibits immigration authorities from treating same-sex couples the same as married heterosexual couples.  See Immigration, marriage laws leave same-sex couples in limbo.  Foreign same-sex spouses are viewed neither as married nor as a citizen.  As a result, they cannot leave the country to visit family or friends for fear that they may not be allowed back into the United States and they may not be allowed to work either.  While a U.S. citizen who marries a foreigner of the opposite sex can apply for a green card for the spouse to stay in the country and eventually become a citizen, a U.S. citizen who marries a same-sex foreigner cannot.

The Defense of Marriage Act (DOMA) does not allow same-sex couples to receive federal benefits available to opposite-sex couples no matter if they are married, in a civil union, or living in a state that recognizes same-sex marriage.  Last summer, the Department of Homeland Security issued new deportation guidelines that prioritized cases involving immigrants with serious criminal records and seemingly granted extra discretion in cases involving binational same-sex couples.  However, until Congress repeals DOMA or the courts strike it down, DHS will continue to enforce it.

Federal courts in Massachusetts and California have ruled DOMA unconstitutional and the Justice Department is no longer defending DOMA in federal court, however, the status of binational couples remains in the balance.  The San Jose family law attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you are contemplating divorce or separation, contact the San Jose divorce lawyers at Lonich Patton Erlich Policastri.   Our Certified Family Law Specialists* can provide you with an in-depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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

California “Long-Term” Marriages

/2 Comments/in /by

Recently, L.A. Lakers basketball star Kobe Bryant’s divorce from Vanessa Bryant made national headlines.  There has been speculation and discussion regarding the size of Vanessa’s potential divorce settlement, particularly due to the length of their marriage, which was more than ten years.  See L.A. Times, Kobe Bryant divorce: Prenup could have ‘saved half of his fortune.’  It has been posited that Vanessa purposefully waited until after their ten-year anniversary to ensure spousal support for a lengthy period.  However, while Vanessa will likely receive a significant amount of spousal support (Kobe’s net worth is estimated at $300 million), the focus on her “wisely waiting ten years to divorce” should not necessarily garner the attention it has.

According to California Family Code section 4336, there is a rebuttable presumption that a marriage of ten years or more (from the date of marriage to the date of separation) is a marriage of “long duration” for purposes of retaining spousal jurisdiction which could lead to lengthy support orders or even lifetime support.  This does not mean, however, that shorter marriages will not be considered marriages of “long duration.”  Courts have discretion to determine a marriage to be of “long duration” after evaluating and weighing underlying facts.  So while ten years of marriage may appear to be the magic number, it is not the only way a court will retain spousal support jurisdiction.  It is possible that a trial court could determine Kobe and Vanessa’s marriage was lengthy even if they were married for less than ten years.

The court’s ability to retain spousal support jurisdiction effectively creates an indefinite term support order, meaning spousal support could continue for life.  But because the court retains jurisdiction, it also has jurisdiction to modify or terminate the order upon a showing of “changed circumstances.”  Under Family Code section 4320, a court considers and weighs the various factors (including the duration of the marriage), and a “reasonable period” to become self-supporting, which could be shorter or longer than one-half the length of the marriage.  There may be cases where (because of age, health, etc.) self-support may not be a realistic expectation at all.  Thus, despite their ten-year marriage, a court retains the power to modify any support order following the divorce.

While Kobe and Vanessa’s divorce will likely not play out in the courts, it is likely that Vanessa will see receive a substantial amount of spousal support for an extended duration.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling spousal support issues in marriages of both short and long duration.  If you are contemplating divorce, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri, who can provide you with an in depth analysis of your issues.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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

Every Marriage Needs a Prenup

/in /by

While a prenuptial agreement may not be the most romantic gesture, every couple can benefit from creating one, even if at the time of marriage there are little assets.  Assets may accumulate during the marriage and even young couples just starting their own careers should want to make sure that what they acquire during marriage is not left for a court to divide.

While prenups are often associated with divorce, discussing hypothetical scenarios can help to shed light on relationship expectations and help ensure decisions are made accordingly.  Many people also do not realize that post-nuptial agreements are possible.  The only catch is that they can be more difficult to procure and enforce as there are additional requirements.  Waiting until the last minute to think about a prenuptial agreement can result in unnecessary pressure and force more couples into the more difficult post-nuptial route.

Of the many considerations in discussing a prenuptial agreement, none is more important than the fact that California is a community property state.  This means that couples’ assets are typically divided 50/50 despite any special circumstances.  Any couple that would prefer anything besides equal division needs a prenup to avoid it.  Attorneys have compared prenups to life insurance policies, no one enjoys imagining the worst-case scenario but having a policy or prenup in place can make a significant life event less difficult.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you are interested in learning more prenuptial or post-nuptial agreements, please contact the Certified Family Law Specialists* at Lonich Patton Erlich Policastri for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

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

Partnering Your Prenups and Estate Plans

/in , /by

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

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

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

If you are interested in learning more about premarital agreements and estate plans, please contact the experienced family law and estate planning attorneys at Lonich Patton Erlich Policastri for further information.  Please remember that each individual situation is unique and results discussed in this post are not a guarantee of future results.  While this post may include legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

D.C. Provides Same-Sex Couples with Divorce

/in /by

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.

 

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

/in /by

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

 

Loss of Parental Rights = Loss of Standing in Proceedings Concerning the Child

/in /by

Once a parent has acquiesced to a termination of parental rights, he or she has no remaining legal interest in the child’s affairs.  This means the parent also does not have standing to appeal orders relating to the child’s placement.  A recent California Supreme Case affirmed this rule.

In In re K.C., 52 Cal. 4th 231 (2011), K.C.  was one of eight siblings, two of whom were deceased and the other five of whom were placed with grandparents after separate juvenile dependency proceedings resulting in the termination of Mother’s and Father’s parental rights as to the five siblings.  While an infant, K.C. was removed from his mother’s custody and placed with a foster family who wished to adopt him.  K.C.’s grandparents petitioned for K.C. to be placed with them, however, the child services agency doubted their ability to care for a sixth child and was concerned with the parents’ continued access to the kids.  Father did not object to the termination of his parental rights and supported Grandparent’s request.  The trial court denied Grandparents’ petition and they failed to timely appeal.  Instead, Father appealed the order.  However, he did not object to the judgment terminating his parental rights but limited his argument to the issue of K.C.’s placement.

On appeal, the Fifth District Court of Appeal dismissed Father’s appeal and held that Father could not show that the placement decision affected his parental rights and he thus was not aggrieved by the decision.  The California Supreme Court affirmed this decision.  Only an aggrieved person has standing to appeal, otherwise the party does not have rights or interests injuriously affected by the decision in an immediate and substantial way.  Since Father acquiesced to the termination of his parental rights, he relinquished the only interest in K.C. that could render him an aggrieved party.

Throughout child custody or parental termination proceedings, proper objections must be made if a parent does not want to risk losing standing to appeal judgments concerning the child.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex child custody and divorce 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

Relocation and Child Custody

/in /by

When parents share joint custody of their children, one party’s desire or need to relocate can require reevaluation of existing custody orders and can be an extremely complicated issue.

Recently, the California Court of Appeal for the Third District addressed a “move-away” issue in a case involving an unmarried couple and their minor daughter.   After the parties’ relationship ended in December 2007, the mother moved to Washington with the child, then later returned to California.  Upon her return, the father petitioned for custody of their daughter; in response, the mother filed a motion requesting permission to move back to Washington with their daughter.  The trial court granted the parents joint legal and physical custody and denied mother’s request to move with the child.  Thereafter, mother requested to move to Washington with the child several more times.  At trial, she testified that she was moving to Washington because she had a job prospect and family support there.  However, the court apparently did not believe that she would move without her daughter, and denied mother’s request to move with the child because it thought it would be disruptive to the child to leave her father and friends.  Therefore, the prior joint custody order remained in place.  It was impossible for mother to comply with the joint physical custody order if she moved to Washington, and therefore, the court’s decision effectively prohibited her from moving even without her daughter.  The mother appealed and the appellate court found that the trial court order amounted to a coercive attempt to get the mother to change her plans to move.  The court does not have the ability to prohibit a parent from moving, only to determine where the child should live as a result of the parent’s decision to move.  They reversed and remanded the decision for reconsideration.

The appellate court noted that in joint custody cases, when a parent is considering a move that makes the existing custody plan unworkable, the court must consider the child’s best interests de novo and make a determination of what physical custody arrangement would be in the child’s best interests- either relocating with the moving parent or remaining with the non-moving parent and having visits with the moving parent.   Then, the court must fashion an appropriate parenting plan that takes into account the fact that the parents live in separate states.

Jacob A. v. C.H., 196 Cal. App. 4th 1591 (2011).

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed custody issues like this one.  If you are contemplating moving and have joint custody of your child, 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

Actor Jon Cryer Ordered to Continue Child Support Payments Despite Having Primary Custody

/in /by

“Two and a Half Men” television show actor Jon Cryer pays his former wife a hefty $8,000 per month in child support, even though he has close to full custody of their son.  Cryer has 96% of the parenting time while Sarah Trigger Cryer only has 4%.

The two married in 2000 and divorced four years later.  Sarah, also an actor, has not had a job since 2005 and is not inclined to look for work.  Jon and Sarah each remarried and Sarah had a second child.  Following a divorce from her second Husband, Sarah had custody of both her children when, in 2009, the two boys were removed from her after she was accused of being an unfit parent by Jon for leaving their son unsupervised, admonished by the court for negligent parenting, and allowed her second child to be injured while under her care.  Jon was awarded physical custody of their son.

Thereafter, Jon requested a reduction of his child support payments from $10,000 per month to zero, as he was now the sole custodial parent.  However, the trial court simply lowered the payments to $8,000 per month.  On appeal, the court determined that despite Jon’s increased timeshare, any further reduction would be against the best interests of their child and have a detrimental effect,  pointing to the fact that Sarah was in the process of reunifying with their son, and that a reduction in support would not allow her to maintain the home that their son would eventually return to once they were fully reunified.

Child support and child custody issues are difficult and complicated.  The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child support issues.  If you are involved in a contested child support case, contact the Certified Family Law Specialists* 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.

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

 

Free 30-Minute Family Law or Estate Planning Consultation

0 + 1 = ?

Contact Us

LONICH PATTON EHRLICH POLICASTRI

1871 The Alameda, Suite 400, San Jose, CA 95126
Phone: (408) 553-0801 | Fax: (408) 553-0807 | Email: contact@lpeplaw.com

LONICH PATTON EHRLICH POLICASTRI

Phone: (408) 553-0801
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.

MAKE A PAYMENT BY SCANNING THE QR CODE BELOW:

DISCLAIMER

This web site is intended for informational purposes only and is not legal advice. Nothing in the site is to be considered as either creating an attorney-client relationship between the reader and Lonich Patton Ehrlich Policastri or as rendering of legal advice for any specific matter. Readers are responsible for obtaining such advice from their own legal counsel. No client or other reader should act or refrain from acting on the basis of any information contained in Lonich Patton Ehrlich Policastri Web site without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.

About | Why LPEP | Contact | Blog

© 2024 Lonich Patton Ehrlich Policastri. All rights reserved. Privacy Policy

LPEP COVID-19 Office Protocol