legal separation Archives - Lonich Patton Ehrlich Policastri

The Difference Between Legal Separation And Divorce

April 10, 2020/in Family Law /by Virginia Lively

The idea that you and your spouse may no longer share your lives together can be devastating and it is common for people to get lost in the emotional toll and legal confusion. When the time is right, however, it is wise to educate yourself on your available options for your next steps with your spouse.

Though the terms legal separation and divorce are often used interchangeably in California, they have distinguishing features. Before pursuing one option, it may be beneficial to understand the difference between legal separation and divorce.

Legal Separation vs. Divorce

Both legal separation and divorce refer to a legal process that arranges the division of property, child custody, visitation rights, and a schedule of alimony payments (when applicable).

A divorce is a firm legal division that legally ends the marriage. People who choose divorce over legal separation are often either hoping to become remarried in the future, hoping to dissolve nearly all financial and legal obligations between the spouses, or see no legal benefit of maintaining their marriage

A wedding band sits on fabric after a couple fought over legal separation and divorce.

Though divorce is more common, there are benefits of maintaining a legal separation. With a separation, the spouses’ property and financial assets are still divided, however, the spouses often live separately. The key difference is that spouses who legally separate are still considered legally married and can benefit financially if they so desire.

People who seek legal separation often do so because:

The spouses are having significant difficulties but want the option to work on their marriage in the future
The spouses have not fulfilled the six-month time period that spouses must meet in the state of California before filing for divorce
The spouses do not believe in divorce due to religious or spiritual reasons
One spouse receives health or social security benefits that they wish to continue to share with the other
The spouses want to maintain the tax savings of a married couple
The spouses feel that a separation is less devastating and easier to handle than a divorce

Please keep in mind that certain benefits are not valid after legal separation and it often requires the scrutiny of an experienced lawyer to assess whether the benefits may be shared in a separation.

Often people who undergo a legal separation falsely believe that it is unnecessary to invest in an experienced family law attorney. This mistake can have a devastating financial effect on one spouse if the other spouse hires an aggressive and experienced family law attorney.

The Bottom Line

Though legal separation may appear to be a less complicated process than a divorce, the three most contested issues in a divorce — the separation of assets, child custody and visitation rights, and the schedule of alimony payments — are still all present with legal separation.

Before pursuing a divorce or legal separation, it is advised to speak with an experienced separation and divorce attorney in your area. Lonich Patton Ehrlich Policastri offers free 30-minute consultations for people wishing to educate themselves in family law practice or who have questions regarding their unique situation.

No matter which option you choose, it is important for you to invest in a qualified and reputable family law attorney in San Jose County. LPEP is one of the largest family law firms in the Bay Area, with more than 100 years of combined experience. Set up a free virtual consultation here.

What Parents with a Disability Need to be Aware of in a Divorce

June 1, 2017/in Family Law /by Michael Lonich

Parenting while going through a divorce is hard, but also having a disability adds a new level of complexity that makes it is easy to feel overwhelmed and deflated. This is why it is so important to have a competent lawyer who will advocate for your parentage rights effectively and with care.

The thought of having parentage rights taken away will make any parent’s heart drop. But the chances of a disabled parent facing this nightmare is almost a guarantee. According to the National Council on Disabilities the removal rates of children from disabled parents are dispiriting. For children with psychiatric disabled parents the removal rates were between 70% and 80%; parents with intellectual disabilities were 80%; and parents with physical or sensory disabilities experienced high removal rates and loss of parental rights, as well.

If you are a disabled parent facing divorce or a child custody battle, it is important to find a lawyer who is sympathetic to your situation, who understands your condition, and will be effective in their advocacy for you. This is crucial because there are many unfortunate challenges a disabled parent can face in court.

Disabled parents may experience bias or speculation regarding best interest determinants. When dealing with a child, the court’s main objective is to produce a result that is in the child’s best interest; and a parent’s disability will be considered.

There is also a “no harm” requirement when determining a child’s best interest scenario, where the court factors the mental and physical health of all individuals involved to determine if there is a potential chance for harm to occur to the child. With this requirement, there is no obligation to show that the parent’s disability is actually causing, or will cause, any harm to the child or their environment. This can clearly disfavor any parent dealing with a disability.

If you are a parent who has a disability and is facing a divorce or custody battle, securing knowledgeable and effective counsel is imperative. There are a few key characteristics you should look for your future lawyer.

Of course, a knowledgeable lawyer in family law and child custody is a must, but you also want one who will focus on your parenting abilities and strengths. Your attorney needs to understand the specifics of your diagnosis in order to better advise and understand you. By being knowledgeable on your disability’s characteristics your lawyer will be more equipped to advocate on your parenting strengths and abilities. Finally, you want to find a lawyer who apprehends the benefits and pitfalls of various parental evaluations. Overall, your lawyer should give you assurance that your parental rights are protected and that you are given a fair opportunity to raise your child.

If you are considering a divorce or legal separation and would like more information about child custody and parental disability, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, 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.

Parenting Plans for School-Aged Children After Divorce

May 24, 2017/in Family Law /by Michael Lonich

Children are undoubtedly important members to a family, but when they are caught in the middle of a divorce short and long-term consequences can occur.

Since school-aged children are more mindful than younger children, they are more likely to be affected by a divorce. Thus, in order to limit the negative effects a divorce will have on your child, an agreed upon parenting plan is key.

Having your child affected by disagreements with your ex should never be a goal. Therefore, it is helpful for both parents to set out ground rules in advance. Make sure you both come to an understanding for acceptable behavior by each around your child.

Life is also uncertain, so in the event of an emergency is it important that the other parent knows of changes to phone numbers, work information, or home addresses as soon as possible. In addition to being notified of important contact information, each parent should have access to your child’s school and medical records and allowed to be contacted by your child’s school.

Keep one another informed about your child’s life and school. Education, sports, music programs, and other events are important to your child during this age. It is important for you and your ex to agree upon specific school or extracurricular events each will attend; either alone or at the same time. Remember being present at your child’s events will give them a sense of support in an otherwise turbulent time.

Additionally, clarity and order in a schedule is going to become the best asset you can provide your child. Figuring out a schedule on how you and your ex will handle exchanges, custody, and visitation should be a high priority on the list of “To Do.” These situations are stressful, but exchanges and transitions between homes can be especially hard for children when not carefully handled. Create a consistent weekly or monthly schedule in advance. This schedule should be clear on when and where your child is staying including where the child will spend summer vacations and holidays. Having a consistent schedule in advance allows your child to acclimate to this new lifestyle and will help other areas in their life to become less disturbed. Yet, some terms of divorce can make this objective difficult or even impossible to obtain without the aid of attorneys.

Above all, your child’s comfort should be a main objective. Make sure each home the child is staying at is equipped with all their necessities. This will help them feel secure, cared for, and comfortable. Some things to always keep stocked are: extra set of clothes; favorite books, toys, or games; and specific childcare supplies or medication.

If you are considering a divorce or legal separation and would like more information about how to create a parenting plan suited to your child’s needs, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, 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.

Educational Degrees and Divorce

May 24, 2017/in Family Law /by Michael Lonich

More individuals today have received some sort of professional degree or training than ever before. But with the influx of costs for higher education many married students rely on their spouse for financial support. And upon legal separation or divorce a spouse who supported the other through their education may be entitled to reimbursement for their community fund contributions.

If a spouse chooses to obtain a professional degree or training during their marriage usually two events occur. First, the non-student spouse supports the other financially by paying for the community and educational expenses. Second, after the education is complete, community funds may be used to repay any outstanding loan amount. Upon legal separation or divorce in California these educational loans will be assigned to the spouse who received the education or training and the non-student spouse may have a right to reimbursement for their community contributions. However, California does not recognize an obtained degree or training as community property and therefore its value cannot be divisible upon divorce.

The reimbursement for community fund contributions to a spouse’s education or training is an exclusive remedy governed by Family Code Section 2641. But the spouse seeking reimbursement has a burden to trace the funds to a community property source such as earnings acquired during the marriage. Reimbursement is seen to give a fair “quid pro quo” (this for that) of the community’s investment in the education of a spouse. A supporting spouse may receive reimbursement if the education or training “substantially enhanced” the earning capacity of the spouse or the marriage has ended before the community obtains a benefit from such education. Contributions that may be reimbursed involve payments made with community or quasi-community property to support the student spouse’s education expenditures. These expenses include: tuition, fees, books, supplies, transportation, and directly related educational expenses. However, a spouse will not receive reimbursement for ordinary living expenses since these would have been incurred regardless of a spouse’s educational expedition.

Full reimbursement is not guaranteed though and a court may choose to impose limitations on a spouse’s reimbursement amount if their case’s circumstances warrant such a decision. There are several reasons for a limitation and the ones listed below are by no means exhaustive, but merely illustrative.

A person embarks on an advanced degree or training for a multitude of reasons, one of which may be for better financial standing. Yet, even though there is an expectation that the education will benefit the marital community there is no presumption that the enhancement will be “substantial.” Thus, if a spouse cannot demonstrate the education received in fact substantially enhanced the earning capacity, then reimbursement may be limited.

“Unjust reimbursement” can also limit reimbursement. This occurs when a court determines specific circumstances within a case renders a full reimbursement of the community contributions unfair. For example, if both spouses have obtained a degree or training at the community’s expense a reimbursement to only one would be unjust since both were at one point supported by the other. Unjust reimbursement may also occur when a spouse receives education or training that substantially reduces their need for spousal support. These examples however are merely illustrative and many other circumstances may lead a court to deem full reimbursement to a spouse as unjust.

Finally, a written agreement between the spouses that waives or modifies a reimbursement right may limit a spouse’s amount receivable. Such a waiver or modification must be written expressly; it cannot be agreed upon orally or implied and must be signed by the adverse party.

The achievement of obtaining a degree or training is rewarding for all involved. However, upon legal separation or divorce, rights to reimbursement for community contributions can become complex. If you are considering a divorce or legal separation and would like more information about divorce and educational reimbursement, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri.

Lastly, 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.

How SB 1255 (the “anti-Davis legislation”) Will Impact Your “Date of Separation”

August 29, 2016/3 Comments/in Family Law /by Mitchell Ehrlich

Currently divorcing spouses or couples considering divorce better consult a lawyer soon—a newly enacted statute has changed the method by which California courts determine a married couple’s “date of separation.” On July 25, 2016, the governor of California, Jerry Brown, signed SB 1255 (aka the “anti-Davis legislation”), a bill which amends California Family Code § 771 and adds section 70 to the Family Code. As a result, the existing standard that governs a married couple’s “date of separation” has been changed. Previously, Family Code § 771 instructed that spouses were not separated until they were “living separate and apart”—a phrase which courts interpreted to mean “living in separate residences.” With the passing of SB 1255 though, spouses may now be considered “separated” even if they share a common residence.

A couple’s legal “date of separation” is important because it determines the point at which a spouse’s earnings and accumulations are no longer considered “community property” and instead, are considered a spouse’s own “separate property.” In turn, the difference between community and separate property is important because absent a written agreement stating otherwise, all community property must be evenly divided between divorcing spouses.

SB 1255’s nickname—the “anti-Davis legislation”—came about because of the case its creation abrogates: In re Marriage of Davis. In July 2015, the Davis court held that “living in separate residences ‘is an indispensable threshold requirement’ for a finding that spouses are ‘living separate and apart,’” or in other words, for determining a “date of separation.” However, the Davis court didn’t create new law—it merely affirmed what it believed was the California legislature’s intention when it coined the phrase “living separate and apart” many years ago.

To ascertain the legislature’s intent, the Davis court had to do go back 146 years to 1870 when the phrase was first used in a statute that protected the rights of married women. Similarly to section 771, the 1870 Act did not define “living separate and apart.” However, according to the Davis court, section four of the 1870 Act suggests that the legislature intended for the phrase to require separate residences: a wife, who was “living separate and apart” from her husband and wished to sell her real property without joining her husband, had to record a declaration that included a description of “her own place of residence” and a statement that “she is a married woman, living separate and apart from her husband.”

Additionally, when the California legislature repealed a number of Family Code sections in 1969, it created a new statute (section 5118) that reproduced the 1870 Act language. Once again though, the legislature provided no specific definition of “living separate and apart.” The Davis court reasoned that the legislature’s continued use of the phrase—without defining it—expressed its satisfaction with earlier judicial interpretation of the language.

Further, the Davis court also relied on a notable 2002 case—In re Marriage of Norviel—which concluded that “living apart physically is an indispensable threshold requirement to separation, whether or not it is sufficient, by itself, to establish separation.” Therefore, relying on legislative history and case law, the Davis court affirmed the Norviel holding—spouses had to live in separate residences before they could be considered separated.

While the Norviel and Davis courts may have correctly discerned the original meaning of “living separate and apart,” our modern legislature took issue with their holdings and in response, passed SB 1255. The bill expressly abrogates Norviel and Davis, and rather than provide a specific definition for “living separate and apart,” the legislature did away with the phrase all together. Instead, section 771 (the modern statute that contained the disputed language) now uses the phrase “after the date of separation” to determine when a spouse’s accumulations and earnings transition from “community” to “separate” property. In turn, newly added section 70 defines “date of separation” as a “complete and final break” that is evidenced by two factors: 1) a spouse has expressed his or her intent to end the marriage to the other spouse, and 2) the conduct of the spouse is consistent with his or her intent to end the marriage. Further, section 70 requires that a court look at all “relevant evidence” when making the above determination.

This statutory change was spurred on by Senator John Moorlach (R-Costa Mesa), the author of SB 1255. He believed it was necessary to change the Family Code language because many spouses wish to separate legally in order to protect their personal finances, but also, wish to continue sharing a residence in order to save costs during their divorce. Thus, SB 1255 should better reflect the reality of modern divorce experiences.

While the amended Family Code sections do provide clarity and allow couples more post-separation flexibility, it is important to note that SB 1255 may not be the end of legal disputes about separation dates—in the coming years, case law will further refine section 70. Additionally, couples in the process of a divorce should not let SB 1255 pass by them unnoticed because when the new law goes into effect on January 1, 2017, it may retroactively apply to any cases pending on that date, but this issue still needs to be resolved and addressed by the Family Courts in California. Look for another blog post on this topic specifically. However, consulting now with your attorney to develop a “date of separation” strategy is in your best interest.

If you are considering a legal separation or divorce, please contact the experienced family law attorneys at Lonich Patton Erlich Policastri—we can help you navigate the effects of SB 1255 and answer any questions you may have about how the new law will impact your divorce. The sooner you understand how SB 1255 will affect your current or impending legal plans, the better you can prepare for the new rule when it goes into to effect on January 1, 2017.

Lastly, 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.

Sources:

2016 Cal. Legis. Serv. Ch. 114 (S.B. 1255)

In re Marriage of Davis (2015) 61 Cal.4th 846

In re Marriage of Norviel (2002) 102.Cal.App.4th 1152

Trouble in Springfield: The Simpsons and Changing Family Structures

June 22, 2015/in Family Law /by Gretchen Boger

The Simpsons has become a symbol of American Television with its hysterical spoofs of current events and iconic characters. After 26 seasons, The Simpsons will be addressing a new topic in its 27^th season that has had a steady increase in American life- legal separation and divorce. Executive producer Al Jean told Variety that in its new season, Springfield’s supercouple would be splitting with the appearance of a surprising other woman. “In the premiere [of the 27^th season], it’s discovered after all the years Homer has narcolepsy, and it’s an incredible strain on the marriage,” said Jean. “Homer and Marge legally separate, and Homer falls in love with his pharmacist, who’s voiced by [HBO’s Girls creator and star] Lena Dunham.”

The Simpsons separation is not unusual in modern society. In the United States alone, about 40 to 50 percent of married couples divorce and the divorce rate of subsequent marriages are even higher. In the state of California, the divorce rate per year has grown to every 8 out of 1,000 couples divorcing. Consequently, these rates have led to a change in the American “family values.”

There are many who still fight for the return of the “good old days” and the traditional two- parent household. However, recent research cast doubt as to whether most Americans agree that a healthy family must have the traditional two-parent household. The “reality is that we live in an era of change and controversy with respect to many kinds of values, including values about family life.” In a survey conducted by the Families and Work Institute, a nonprofit New York research group, only two percent of the women and one percent of the men questioned define family values as being about the traditional nuclear family. Additionally, nine out of ten women defined family values as loving, taking care of and supporting each other, knowing right from wrong and having good values, and nine out of ten said that society should value all kinds of families.

In its 27^th season premiere, The Simpsons will reflect this indication of changing family values in American society as it is becoming more prevalent in today’s world. But let’s hope that Springfield’s favorite couple reunite.

If you have any questions about legal separation, divorce, or any other issue, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. 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.

Source: http://www.cnn.com/2015/06/10/entertainment/homer-marge-split-simpsons-feat/index.html

Source: http://www.apa.org/topics/divorce/

Source: http://divorce-laws.insidegov.com/l/5/California

Source: Twila L. Perry, Family Values, Race, Feminism, and Public Policy, 36 Santa Clara L. Rev. 345 (1996).

*Since the writing of this post The Simpsons divorce rumors have been invalidated

Domestic Violence and The Rebuttable Presumption

June 17, 2015/1 Comment/in Family Law /by Gretchen Boger

Acts of domestic violence so often occur behind closed doors. Domestic violence has now been recognized as a “public policy issue with major implications for the health and safety of women and children.” Many surveys have projected domestic violence as the number one cause of injury to women in the United States. Unfortunately, the nature of the criminal justice system makes domestic violence cases harder to prosecute and history has shown that there has been little communication between the prosecutors, police, victim advocates, and the courts. Because of this lack of communication, “the chances are good that some of these problematic cases will slip between the cracks and that battering will continue, sometimes with tragic result.” For this reason, it is not surprising that many victims feel hopeless and decline to report incidents of domestic violence.

Given the faults of the criminal justice system, many victims find themselves without anywhere to turn. Unfortunately, the domestic violence continues and those with children may also suffer. Victims of domestic violence develop post-traumatic stress disorder, anxiety, traumatization, or suffer from some other psychological/physiological effect resulting from the abuse. These negative effects of abuse can cause the victim to experience a variety of symptoms that have a direct bearing on the capacity of her parenting. For example, victims may experience emotional numbness or withdrawal from their children, leaving the children to feel even more isolated in an already distressing situation. Children may feel as though the victim parent does not care about them, when this may be far from the truth. Consequently, these negative effects of abuse compromises the victim’s parenting.

The question then becomes, what happens in child custody cases? The standard used by all family court judges, is the “best interest” of the child rule. However, deciding what is in the “best interest” of the child is often difficult depending on the particular set of circumstances. In a domestic violence situation, where the mother’s parenting was compromised due to years of abuse, but the father has shown that he is still a capable parent- who should be awarded custody? What is in the child’s best interest when an abusive father and an emotionally distant mother seek custody? “Taking custody away from an abused mother seems to penalize her for being the victim of domestic violence, and it discourages other mothers from seeking help or reporting domestic violence for fear of losing custody of their children.” Apart from the effect on the victims, awarding custody to the abusers also teaches children harmful lessons.

The California Legislature has recognized the potential problem that domestic violence can create in the family courts. To address this issue, the California Legislature drafted California Family Code § 3044. For traditional child custody cases, the court is to determine what is in the child’s “best interest” by considering several factors, such as the health, safety and welfare of the child, and the amount of contact that the child has with both parents. In domestic violence cases, the court must also consider any history of spousal abuse. Although the court is given discretion in how much weight they accord each factor, the factors are crucial in helping to guide judges on issues that they should consider in assessing a child’s best interest.

In addition to the factors, the California Legislature did specifically state that domestic violence is detrimental to the well-being of a child. This was codified in California Family Code § 3044. According to this section, if domestic violence is found to have occurred within the previous five years of the custody evaluation, then there is a rebuttable presumption that awarding custody to the abuser is detrimental to the “best interest” of that child. The court must also consider seven factors in determining whether the presumption has been overcome. These factors include, but are not limited to, whether the abuser is restrained by a protective order and has complied with its terms and conditions, whether the abuser has completed a program of alcohol or drug abuse counseling, and whether the abuser has committed any additional acts of domestic violence since the start of the custody case.

Additionally, under this section, a person is found to have perpetrated domestic violence when he or she either “intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another. . . .” It also includes behavior including, but not limited to, “threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to § 6320 to protect the other party seeking custody of the child or to protect the child and the child’s siblings.”

With the rebuttable presumption, the hope is that victims will triumph in seeking custody of their children as they seek to regain control of their lives.

If you have any questions about this rebuttable presumption or any other issue, the Certified Family Law Specialists at Lonich Patton Erlich Policastri have decades of experience handling complex family law matters. 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.

Source: MICHELE C. BLACK ET AL., THE NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2010 SUMMARY REPORT 54 (2011), http://www.cdc.gov/violenceprevention/pdf/nisvs_report2010-a.pdf.

Source: Patrick F. Fagan, Anna Dorminey, & Emily Hering, The Effects of Family Structure on Child Abuse, in CHILD ABUSE, FAMILY RIGHTS, AND THE CHILD PROTECTIVE SYSTEM: A CRITICAL ANALYSIS FROM LAW, ETHICS, AND CATHOLIC SOCIAL TEACHING 155, 171 (Stephen M. Krason ed., 2013).

Source: Alytia A. Levendosky & Sandra A. Graham-Bermann, Behavioral Observations of Parenting in Battered Women, 14 J. FAM. PSYCHOL. 80, 81 (2000).

Source: Cal. Fam. Code § 3020 (West 2000).

Source: Megan Shipley, Note, Reviled Mothers: Custody Modification Cases Involving Domestic Violence, 86 Ind. L. J. 1587, 1589 (2011).

Source: Symposium, Domestic Violence, Child Custody, and Child Protection: Understanding Judicial Resistance and Imagining the Solutions, 11 Am. U. J. Gender Soc. Pol’y & L. 657 (2003).

Source: Cal. Fam. Code § 3011 (West 2013).

Source: Cal. Fam. Code § 3044 (West)

Source: Amy B. Levin, Comment, Child Witnesses of Domestic Violence: How Should Judges Apply the Best Interest of the Child Standard in Custody and Visitation Cases Involving Domestic Violence?, 47 UCLA L. Rev. 813, 826 (2000).

The Ways to End Your Marriage

August 8, 2014/in Family Law /by Mitchell Ehrlich

In California, a marriage is dissolved by (1) the death of a spouse, (2) a final judgment of divorce, or (3) an annulment. Alternatively, if spouses do not want to completely end their marriage but do want to terminate their marital rights, they can (4) file for legal separation. Here is a look into each one:

(1) Death of a Spouse

When a spouse dies, dissolution occurs automatically, as a matter of law. This can be significant in family law proceedings if the spouse dies after divorce proceedings have begun, but before a final judgment of dissolution. In this scenario, spousal status is not officially terminated and the surviving spouse will still be considered “married” for inheritance purposes. Additionally, any pending dissolution proceeding is rendered moot at the death of a spouse and the court has no power to hear any remaining unresolved issues.

(2) Divorce

Divorce is the proceeding that legally ends the marriage or domestic partnership. Under Family Code section 2310, the grounds for divorce may be either “irreconcilable differences” or “incurable insanity.” Most marriages are dissolved on the ground of “irreconcilable differences.” A dissolution granted on the grounds of “incurable insanity” requires evidence – including competent medical or psychiatric testimony – that your spouse is incurably insane. In fact, this ground is so uncommon that there are no known reported decisions defining “incurable insanity” in the dissolution context. Further, it offers no tactical advantage so even if your spouse is incurably insane, pleading irreconcilable differences is much easier.

The determination of whether “irreconcilable differences” exist is essentially a ministerial function and is rarely a matter of contention. California is a no-fault divorce state, which means that any evidence of specific acts of misconduct (such as cheating, gambling, or heavy drinking) is improper. Courts recognize that ending a marriage is an intensely personal decision and only need to be convinced that the marital differences are substantial. Thus, direct proof of objective reasons supporting the divorce is not required.

(3) Annulment

An annulment declares the marriage was not legally valid – it was never entered into – and like other defenses to contracts, an annulment can occur if one party was not of sound-mind at the time of the marriage or if the marriage was procured by fraud.

A famous example of an annulment due to lack of capacity is Ms. Britney Spears’ 55-hour marriage to her high school friend, Jason Alexander, in Las Vegas. Ms. Spears sought an annulment stating that she “lacked understanding of her actions to the extent that she was incapable of agreeing to the marriage because she and Alexander did not know each other’s likes and dislikes, each other’s desires to have or not have children, and each other’s desires as to State of residency.” In other words, she was drunk and this was a joke that went too far.

Marriages can be annulled for fraud, if the fraud relates to a matter that California deems vital to the marriage relationship and the fraud directly affects the purpose of the party deceived entering the marital contract. Usually, annulments based on fraud involve the sexual and procreative aspects of marriage, such as a secret intention not to live with the other spouse or a concealment of sterility. False representations about earning capacity, wealth, or social status are not the type of fraud that will warrant a nullity. Nor will a failure to fulfill wedding vows or commonly understood spousal obligations, such as being a loving and supporting partner.

(4) Legal Separation

The grounds for legal separation are the same as those for a divorce but it does not end the marriage. Legal separation is an alternative to divorce, where the spouses do not want to completely sever the legal status of the marriage. Otherwise, a legal separation operates similarly to a divorce, separating all finances and property.

Spouses often seek a legal separation for religious or other personal reasons, or to retain eligibility for medical insurance, veteran’s benefits, or social security benefits that would have otherwise been lost by a divorce.

If you have any questions about the proper way to end your marriage, please contact our California Certified Family Law Specialists. Our attorneys have decades of experience handling complex family law proceeds and offer 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.

Contemplating Divorce: What to Consider Before You Cut Ties

March 21, 2013/in Family Law /by Gina Policastri

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:

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

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

February 7, 2013/in Family Law /by Gretchen Boger

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.

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