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My Spouse Won’t Sign: Till Death Do Us Part?

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When contemplating divorce, it is hard to ignore the “what-ifs” that inevitably arise. Questions like, “who will get the house?” and “where will our kids end up living?” are complicated, and you will inevitably receive the typical lawyer response from your attorney—“it depends.” This is because most questions regarding divorce really do depend on the circumstances of your case. While there is substantial California family law which the Court will apply to the facts of your particular case, it is impossible to predict or guarantee outcomes with absolute certainty.  In some cases it can take months before you see concrete results.  Nevertheless, there is one great guarantee with divorce law in California: as long as you are a California resident*, you are entitled to a divorce if you want one.

We have all seen a movie where one party is trying to obtain a divorce, but the other party just won’t sign the divorce papers. Sometimes the other party is a romantic who is holding out for reconciliation, but nine times out of ten, the other party refuses to cooperate out of spite. Worried this could happen to you? Never fear! If the only certainty you have is that you want a divorce, then go ahead and make preparations to file:

“Either spouse or partner can decide to end the marriage, and the other spouse/partner, even if he or she does not want to get a divorce, cannot stop the process by refusing to participate in the case. If a spouse or domestic partner does not participate in the divorce case, the other spouse/partner will still be able to get a “default” judgment and the divorce will go through.”**

The State has your back; California law will not force you to be prisoner to a broken marriage. Unfortunately though, no one can promise that your divorce experience will not resemble a scene from a movie (but there is a way out if your personal life resembles a drama fit for Lifetime).  Whether or not anyone is “at fault,” you can file for divorce and either your spouse responds to your papers, or the court will make a decision for him or her. If you are ready to liberate yourself, or are interested in learning more about the divorce process, contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex family law matters and would be happy to meet with you for a free consultation.

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.

 

*A “California Resident” is a person who has lived in California for the last 6 months and has lived in the county where the party desiring a divorce has lived for the last 3 months.

**Source: California Courts: Judicial Branch of California, “Options to End a Marriage or Domestic Partnership,” found at: http://www.courts.ca.gov/1224.htm

Spousal Support: Are You Entitled to Any?

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Ashton Kutcher and Demi Moore’s divorce has been stalled – and purportedly because Demi, who’s estimated to be $10 million richer than Ashton, is seeking spousal support from him in order to renovate her $25 million Central Park apartment. Though it doesn’t appear fair at first glance, courts take into consideration various factors to determine spousal support that could result in a judgment in Demi’s favor.

In regards to your case, could you be entitled to spousal support? Or conversely – could you obligated to pay spousal support for your wealthier spouse? As always in law, it depends.

California courts determine spousal support by taking various circumstances into account, as set forth in California Family Code Section 4320.* They include, but are not limited to:

  • How much the earning capacity of the party seeking support is affected from unemployment due to devoting time to domestic duties during the marriage;
  • How much the party contributed to the supporting party’s education, license, or career;
  • The ability of the supporting party to pay spousal support;
  •  The ability of the supported party to work without interfering with the interests of their children;
  • The needs of each party (determined by the standard of living established during the marriage);
  • The duration of the marriage;
  • The age and health of the parties; and
  • Any other factors the court determines are “just and equitable.”

Depending on how Demi and Ashton’s attorneys present these fact-sensitive issues, Demi just might get to renovate her sprawling New York apartment – on Ashton’s (many) dime(s).

Spousal support can be a complicated and confusing issue. If you have any questions regarding your spousal support rights and obligations in the event of a divorce, or you are simply looking for more information regarding your legal options, please contact our California Certified Family Law Specialists (as certified by the State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri. Our attorneys have decades of experience handling complex dissolution proceedings and are more than happy to meet with you.

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.

 

*Cal. Fam. Code § 4320

Private Justice: Family Law’s Low-Hanging Fruit

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If you are contemplating divorce, there is one question you ought to ask: is a private judge right for me? The answer could be a positive one if you are looking to conclude your divorce quickly and would prefer to avoid the crowded (and very-public) family court. What’s the catch? Well, private temporary judges (typically retired veteran family lawyers) must be compensated for their time much like an attorney.

Nevertheless, hiring a privately compensated temporary judge could be an investment for you and your family. Although there is a cost on the front end, a private judge will undoubtedly have more time to devote to your case. This means that your divorce could be finalized in a fraction of the time with a private judge, compared with the several months or even years that you could spend tied up in the public family court . Your judge will apply the exact same California family law statutes, evidentiary codes, and rules of court as a publicly-sitting family judge. However, the scheduling flexibility that comes with a private judge means that you can work through your case on your time. As a result, you and your spouse will spend less time in litigation, potentially saving your family a great deal of money and stress in the long run.

Private judging is legal in Santa Clara County and can be requested through the Clerk’s office.  A private judge may not be the best option for every family, so talk to your family lawyer for more information. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn more about the possibility of pursuing divorce with a private judge. Our attorneys have decades of experience handling complex family law matters and have worked directly with private judges in the past.

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.

Contemplating Divorce: What to Consider Before You Cut Ties

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Divorce is simple, right? Absolutely not, unfortunately.  There is a great deal to consider—financially and emotionally—before filing for a divorce. In some startling ways, divorce slams one chapter of your life closed. Nevertheless, obtaining a divorce decree could be the first step into the first chapter of the new life you’ve been dreaming of.

Natasha Burton’s article, “What I Wish I Knew Before I Got Divorced”* features solid considerations for individuals who are thinking about divorce or legal separation. Though Burton’s article was written for a female audience, the predominant message of the article applies to everyone: be prepared in more ways than one. Some noteworthy observations and considerations:

  1. Recovery from divorce could take you a long time—which is absolutely normal.
  2. Choose your legal counsel wisely.
  3. Create a detailed plan for tackling your future living expenses.
  4. Take a hard look at your joint finances and educate yourself.
  5. Be ready for “unexpected” costs like health insurance.
  6. Being vengeful toward your spouse will probably harm your family in the end and is public record.
  7. Being divorced is not something to be ashamed of.
  8. The holidays will be hard—really hard.
  9. Your children will suffer from the divorce and may act out.
  10. Finally, divorce can be completely worth it.

These considerations highlight just how far reaching the impact of a divorce can be and why it is so important to be fully prepared.  Take it from Burton and be prepared from the start by choosing your legal counsel wisely. Contact the certified Family Law Specialists (as certified by The State Bar of California Board of Legal Specialization) at Lonich Patton Erlich Policastri to learn about your legal options. Our attorneys have decades of experience handling complex family law matters.

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.

*Used with permission via email from Women’s Day author Natasha Burton.

I’m Officially Divorced, Now What?

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You’re officially divorced and positive that everything in your life is settled (legally, anyway). Unfortunately, that might not be the case if your estate planning documents still reflect your old marital status. Fortunately, any provisions in your existing Will that leave assets to your ex-spouse will be revoked by law after divorce. Nevertheless, it is imperative that you actively take steps to create a new will and generally update your estate plan to ensure that the appropriate individuals in your life will control your legal rights and property when you die or become incapacitated. That is, unless you still wish to bequeath property to your ex-spouse at death. Since that is probably not the case, here are some estate planning changes to consider after divorce:

  1. Close any joint accounts like credit cards or savings accounts that you shared with your ex.
  2. Create a fresh Will and update any Guardianship provisions regarding what will happen to your children in the event that something happens to both you and your ex-spouse.
  3. Update any Trusts and reevaluate who your beneficiaries should be and how much property you’d like them to receive and when.
  4. Update all insurance policies, IRA’s, 401k’s, or any other retirement accounts that may name your ex as a beneficiary. These will not automatically change after divorce.
  5. Destroy or revoke your previous Durable Power of Attorney if it named your ex-spouse and create a new one.
  6. Destroy or revoke your previous Advance Health Care Directive if it authorized your ex-spouse to make future health care decisions on your behalf.

It is important to remember that at death, according to the court, whatever your legal document says goes. So, if you do not want your ex-spouse to receive certain property or benefits, you should see a licensed attorney to revoke your old estate plan and incorporate your current wishes into a new one. Hopefully, an updated estate plan can give you some peace of mind as you begin your new life after divorce.

The attorneys at Lonich Patton Erlich Policastri have years of experience handling complex estate planning matters including wills and living trusts. If you are interested in developing an estate plan or reviewing your current estate plan, contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information and a free half-hour consultation.

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.

Annulment: Cleaning the Marital Slate

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Whether or not we care to admit it, Kim Kardashian remains in the spotlight. Consequently, so do her legal troubles. Kardashian and Kris Humphries were famously married in August 2011. Their nuptials allegedly cost $11 million and the wedding itself was televised as a special on the E! Television network. After 72 days of marital bliss, Kardashian filed for divorce in October 2011.

Although the couple split almost two years ago, Kardashian and Humphries remain legally married. Their divorce has never been finalized because Humphries is seeking an annulment. Humphries believes that Kardashian fraudulently lured him into marriage for financial gain as Kardashian reportedly made $1 million from the wedding. Humphries claims she had planned to take the money and run. Kardashian, of course, claims that she married for love.

In the eyes of the law, a successful annulment makes a marriage disappear as if it never happened.* There is a fundamental difference between a judgment of dissolution and a judgment of nullity. While a judgment of dissolution terminates a valid marriage, a judgment of nullity declares that the marriage was invalid from the start. In California, a marriage built upon a fraudulent foundation is not a marriage at all. An annulment is, however, much more difficult to attain than a divorce.

According to California Family Code Section 2210, a marriage that is voidable may be declared a “nullity” only in the event at least one of six specific conditions existed at the time of marriage:

  1. Infancy
  2. Bigamy
  3. Unsound Mental State
  4. Fraud
  5. Force
  6. Physical Incapability

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 complex family law matters.  If you find yourself on either side of an annulment, contact 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.

Retirement Benefits: I Earned Them So They Are Mine, Right?

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When parties consider divorce or separation they are rightfully concerned about their property. For example, parties may contemplate who will get the house, the dog, the cars, or even the family’s prized Dyson vacuum cleaner. But what about retirement benefits? They don’t typically rank at the top of the “coveted marital property” list, but maybe they should. If you have worked for an organization for most of your adult life, you and your spouse may be entitled to substantial benefits.

Under the California Family Code, retirement benefits are divisible community property assets and will be affected by divorce, legal separation, or termination of domestic partnership. Even if the party that earned the benefits has not yet retired and has no immediate plans to retire, all retirement benefits accrued during a marriage or domestic partnership are fair game when the parties decide to part ways. In fact, the non-earning spouse is generally entitled to fifty percent of any retirement assets accumulated during the marriage.

Division of retirement benefits can be complicated and may implicate complex tax issues. The Lonich Patton Erlich Policastri team, which includes several certified Family Law Specialists who are certified by the State Bar of California Board of Legal Specialization, offer decades of experience handling complex family law matters. If you are contemplating divorce, legal separation, or termination of a domestic partnership or have been served in an action for divorce, legal separation, or termination of a domestic partnership, please contact 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.

Settling Your Divorce Amicably

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Part Three of a blogging series covering the Cruise and Holmes divorce.

Statements issued by Tom Cruise and Katie Holmes confirm that they have settled their divorce amicably. Cruise and Holmes had a prenup, which allegedly provided that Holmes could be awarded up to $3 million for each year of marriage. The prenup was not all-inclusive of their rights and obligations, however, as it likely did not account for their daughter, Suri. What does a divorce settlement entail?

Through a marital settlement agreement (MSA), parties seeking a legal separation, dissolution or judgment of nullity attempt to resolve their contested disputes and claims. An MSA typically addresses the characterization of assets, payment of child support and spousal support, child custody and visitation, attorney fees and costs, and other rights and obligations.  Usually, an MSA is incorporated into a judgment of dissolution, and the rights and obligations of the ex-spouses are governed by the terms of the final judgment.

Mediation is an efficient, collaborative, and amicable way to create an MSA. Managing Partner Michael E. Lonich is a highly experienced litigator who specializes in mediating divorces and complex family issues. Spouses can utilize mediation whether represented by an attorney or not, and it can be a cost and time effective alternative to advocate based litigation. By amicably and collaboratively reaching a divorce settlement, Cruise and Holmes were able to determine their rights and obligations without excessive court intervention.

If you find yourself on either side of a divorce or are interested in our mediation services, contact the Family Law group at Lonich & Patton 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.

Residency Requirement for Divorce

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Part Two of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

Katie Holmes filed for divorce in New York, but could she have filed in California instead? At the heart of this issue is if Holmes has met the New York residency requirement. Though a divorce settlement has reportedly been reached between Cruise and Holmes, just last week there was a dispute surrounding the simple filing of the action.

To file for divorce in California, one of the spouses must be a resident of California for six months and a resident of the county for the three months immediately preceding the filing. New York has a longer residency requirement. Holmes has allegedly been secretly renting an apartment in New York on her own for the past year, so she may be able to establish residency.

Residency requirements can be complicated, but the Certified Family Law Specialists* at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you find yourself on either side of a divorce, 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

Grounds for Divorce in California

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Part One of a blogging series covering legal issues presented in the Cruise and Holmes divorce.

In the midst of Tom Cruise and Katie Holmes’ divorce, you might be wondering what the grounds are to file for divorce. No, Katie Holmes cannot cite “Dislike for Scientology” or “We’re Just Friends” as a basis for relief. 

In California, a divorce can be sought only on the grounds of irreconcilable differences or incurable insanity. California is considered a “no-fault” state. The irreconcilable differences ground is purposely broad. It is intended to represent the actual reasons underlying marital breakdowns and at the same time make irrelevant questions of fault or misconduct by either party.*  

Holmes filed for divorce in New York** citing a “no-fault” cause of action called “irretrievable breakdown.” In addition, New York recognizes six other grounds for divorce. As a result of citing “irretrievable breakdown,” neither Cruise nor Holmes can play the “blame game.”  It will be interesting to see how the case unfolds and whether or not the parties are able to reach agreements to keep the case out of court and out of the spotlight as much as possible.

The Certified Family Law Specialists*** at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters.  If you find yourself on either side of a divorce case, 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.

* See Marriage of Walton (1972) 28 Cal.App.3d 108, 119.

** Venue, aka proper county for trial, will be featured in Part Two of the blog series next week.

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

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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.

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