California family law Archives - Page 4 of 5 - Lonich Patton Ehrlich Policastri

Controversial Custody Decision Sparks National Attention of Child Custody Issues

August 12, 2011/in Family Law /by Julia Lemon

An Oregon woman, Trisha Conlon, fought to keep her two teenage sons out of the care and custody of their father, John Cushing, after learning he reconciled with his first wife, Kristine Cushing. Already the makings of a classic soap opera, the story only gets more twisted.

In 1991, Kristine Cushing was married to John Cushing and they had two daughters who were 4 and 8. One night while they slept, she shot and killed both daughters. After pleading insanity due to the side effects of Prozac, Kristine was acquitted of all charges and spent the next decade in a mental institution undergoing psychiatric monitoring. During that time, John Cushing met and married Trisha Conlon. They had two children together: two boys who are currently thirteen and fourteen years old.

Following the deterioration of their marriage, Trisha and John divorced. The two entered into a shared custody agreement where the elder son lived with Trisha during the school year, the younger son lived with John during the school year, and both sons split the holidays and vacations between each parent. This arrangement worked until Trisha learned that John had reconciled with his first wife, Kristine, after her release. Now, Trisha is fighting to have the court modify the original custody agreement based on the potential danger to her children. The trial court denied her request, ruling that Kristine did not pose a threat to the children since the boys had spent time with her since 2008 without any problem. Trisha is currently appealing. Final child custody parenting plans may not be modified absent a material change of circumstances and may be difficult to revisit. While the general public will likely view the current living arrangement as a material change, it is unclear how the court will rule.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed child custody issues. If you are contemplating divorce or seeking to modify an existing child custody agreement, 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

Divorce Today: Navigating through Divorce Lawyers Online

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

It used to be the case that people would turn to phonebooks to find an attorney. Based on little more than an affinity for the particular lawyer’s ad—from an appealing graphic or clever quote—people would hire a lawyer. Today, in the world of websites, ratings, and reviews, the landscape is much different. With websites like Yelp and Avvo, providing clients with the opportunity to review their experience with an attorney, finding a qualified lawyer is only a few clicks away.

On Yelp, reviewers may review everything from cemeteries to restaurants to baby furniture. Therefore it shouldn’t be surprising to learn that lawyers and law firms are frequently reviewed as well. In an official blog, Yelp recently summarized what percent of reviews in each business category on Yelp were written by people within five year ranges. Not surprisingly, searches and reviews for divorce lawyers are heaviest in the range of 30s all the way up to the mid-50s, an incredibly wide range of clients.

http://officialblog.yelp.com/2011/06/ages-of-yelp.html

When searching for a lawyer online, it is important to not only keep in mind what legal services you need but the source of the information posted. A younger client does not necessarily seek the same attributes in a lawyer as an older client might. Further, our legal system is adversarial and there is almost always a loser. Clients who are upset with the outcome of their case may take it upon themselves to post overly negative reviews even though it is not an accurate reflection of the representation received. Many times, reviews are not even written by an actual client. So while online ratings and reviews may be incredibly helpful, it is important to be aware of who may be writing them.

The Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization, at Lonich Patton Erlich Policastri have decades of experience handling divorce issues for clients in different stages of life. If you are contemplating divorce or separation, please contact the Certified Family Law Specialists as certified by The State Bar of California Board of Legal Specialization 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.

Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases

July 12, 2011/in Family Law /by David Patton

Outside the United States, the term “attorney’s fees” is not often heard (there are analogous terms in other countries). It is largely part of the United States legal system and is used to refer to an attorney’s compensation for legal services. While sometimes daunting, especially in family law cases, there are attorney fees payment options specific to family law that are worth knowing.

First, it is important to note that most states, like California, make accepting a contingency fee for a family law case a violation of rules of professional conduct or canons of ethics. Rule 1.5 of the ABA Model Rules of Professional Conduct provides guidelines on attorney’s fees. As it relates to family law, the rule states that a “lawyer shall not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.” This rule expressly prohibits attorneys from accepting family law cases on a contingency basis; that is, an attorney’s compensation may not depend on the outcome of the case. This could limit the ability of some parties to obtain a lawyer in divorce proceedings.

However, there are other ways of compensating a lawyer for family legal services. Section 2033 of the California Family Code states that either party to a divorce “may encumber his or her interest in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties.” This encumbrance is known as a “family law attorney’s real property lien” (FLARPL) and attaches only to the encumbering party’s interest in the community real property—providing parties to a family law case the opportunity to compensate their attorney following representation. A FLARPL allows a party without liquid assets to access their interest in the home’s equity to compensate a family law attorney in divorce proceedings where they could not otherwise afford it.

While contingency fees are disallowed in the divorce context, parties should seriously consider the option of a FLARPL when obtaining a divorce lawyer. A FLARPL secures attorney’s fees, however, parties may always choose to pay their attorney over time and keep their interest in their home equity instead.

The Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex and heavily disputed family law 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

Post-Nuptial Agreements and Spousal Support

July 7, 2011/in Family Law /by Mitchell Ehrlich

Spousal support and prenuptial agreements often make headlines in high profile divorces; however, the lesser known separation agreement (a type of post-nuptial agreement) can also pose difficult issues for divorced couples. In North Carolina, for example, NASCAR Chairman Brian France is fighting to rescind a separation agreement that calls for him to pay more than $40,000 a month in spousal and child support. [NASCAR Divorce Case Gets Messier]. These types of agreements involving spousal support are valid under California law.

Separation agreements—also referred to as property settlement agreements or marital settlement agreements— are often executed by spouses when their marriage breaks down. The parties are free to agree to a division of property rights and/or rights and duties of spousal and child support, and then have a court approve the agreement. There are, however, statutory limitations on agreements regarding spousal support that must be taken into consideration.

One of the primary obligations imposed by statute on married persons is the obligation of support. Spousal support provides one’s spouse with the necessities of life, measured by the lifestyle of the particular parties. This obligation of support has long been regarded as unalterable during marriage. California Family Code section 1620 explicitly states, “Except as otherwise provided by law, a husband and wife cannot, by a contract with each other, alter their legal relations, except as to property.” Therefore, spouses in an ongoing marriage may not enter into post-nuptial agreements waiving or limiting the right of either spouse to support the other in the event of separation.

Section 3580 of the California Family Code, however, creates an exception to this prohibition. A husband and wife may agree, in writing, to an immediate separation and may provide in the agreement for the support of either of them and of their children during the separation or upon the dissolution of their marriage. The important distinction is that this agreement can only be made when a couple is ready for an immediate separation. Absent an immediate intent to separate, a court will not uphold a post-nuptial agreement altering spousal support.

If you have a post-nuptial agreement in place, if you are contemplating having one put together, or if you have been asked to sign a post-nuptial agreement and you are concerned about how it may affect your rights, the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have substantial experience in handling post-nuptial agreements. Please call our office to schedule a free 1/2 hour consultation.

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

What is “Sole Custody”?

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

The term “sole custody” refers to one of California’s several types of child custody arrangements. A parent with “sole custody” may have sole physical custody, sole legal custody, or exclusive custody. Each type of custody arrangement has unique rights that attach to it.

If a parent has sole physical custody, he has exclusive physical custody of the child without having exclusive legal custody. This means that the parent with the sole physical custody has the right to have the child live with him/her, subject to the other parent’s visitation rights (if any). However, a custodial parent who only has sole physical custody is not entitled to make all the important decisions regarding the child.

On the other hand, a parent with sole legal custody is awarded exclusive rights and responsibilities regarding child care decisions relating to health, education, and welfare. However, unless sole physical custody is also granted, the parent does not have sole control over the child’s residence and supervision.

Exclusive custody is a combination of sole legal and sole physical custody. The parent with the exclusive custody has the right to make decisions regarding the child’s residence, health, education, and welfare. The non-custodial parent, however, may retain secondary visitation rights detailed by court order. In addition, an exclusive custody order does not terminate the other parent’s parental rights or due process interest in parenting. The parent without exclusive custody retains the right to seek and obtain custody modification based on a proper showing of changed circumstances.

Please contact our child custody 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.

Santa Clara County Child Custody & Visitation Process: Part I

March 7, 2011/in Family Law /by Julia Lemon

In California, the procedure for deciding child custody and visitation issues in a family law case can vary slightly from county to county. This discrepancy is a result of the local court rules each county has in place. While the Santa Clara County child custody and visitation procedure may differ slightly depending on the particulars of a case, a general outline of the process is detailed below.

In Santa Clara County, if custody/visitation are contested, the child custody and visitation process begins when one parent files an Order to Show Cause (OSC). An OSC is a court order that requires the other parent to appear in court. After an OSC is filed, a hearing date is set. In addition, the parties are also ordered to sign up for a mediation date and a parent orientation class.

At the initial hearing on the moving party’s OSC, the judge may issue temporary custody/visitation orders at the initial hearing. In addition, in every case with contested custody/visitation issues, the parties must attend a parent orientation class. Parent orientation is a mandatory class that briefs parents about the child custody process, mediation, and proper behavior during the process. Next, the parents attend mediation. The purpose of mediation is to reduce any conflict that exists between the parties. In addition, it serves to give the parties the time to develop a mutually satisfactory custody and visitation agreement. If a successful full or partial agreement is reached, the mediator drafts the agreement into a written document. The mediator then sends the written document to the parties. Either spouse may object to the agreement by timely serving a written objection to the other party. If an objection is served, the case proceeds to a Judicial Custody Conference (JCC). If no objection is served, the mediated agreement becomes a custody order. If no agreement is reached during mediation and the mediator feels further mediation would be fruitless, the mediator will refer the parties to a Judicial Custody Conference (JCC).

A JCC is conference between the parties and the judge assigned to the case. During the conference, the judge does not make orders. Instead, the judge helps the parties reach a settlement by weighing in on the remaining custody or visitation disputes.

For information about the remainder of the Custody and Visitation Process in Santa Clara County, please see the upcoming Part II of this blog series. If you are considering a divorce, please contact our firm 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.

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.

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.

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.

What Does “Joint Custody” Mean?

February 9, 2011/in Family Law /by Gina Policastri

“Joint custody” is a complex legal term that can have several meanings. The term may refer to one of California’s several types of child custody arrangements including “pure” joint custody, joint legal custody, or joint physical custody. Each different joint custody arrangement has separate rights attached to it.

First, “pure” joint custody refers to an arrangement where neither parent has sole physical or legal custody of the child. This means that each parent has the equal right to control and supervise the child and to share custodial time with the child.

Second, joint legal custody exists where both parents share the rights and responsibilities of making decisions about the child’s health, education, and welfare. It is important to note that joint legal custody can be granted without granting joint physical custody. This means that one parent may have the right to have the child live with them (subject to the other parent’s visitation rights), while both parents share the responsibility for making important decisions regarding the child.

Third, joint physical custody exists where both parents have the right to have the child present in their home for significant periods of time. Physical custody may be shared so that the child is assured he/she will have continued and frequent contact with both parents.

For more information, please contact our San Jose child custody lawyers 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.

Posts

Controversial Custody Decision Sparks National Attention of Child Custody Issues

Divorce Today: Navigating through Divorce Lawyers Online

Economics of Family Law: Alternatives for Attorney’s Fees in Family Law Cases

Post-Nuptial Agreements and Spousal Support

What is “Sole Custody”?

Santa Clara County Child Custody & Visitation Process: Part I

Is Summary Dissolution Right for You?

What is Summary Dissolution?

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

What Does “Joint Custody” Mean?

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