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Alternative Custody Schedules: Bird’s Nest Custody

July 7, 2016/in Family Law /by David Patton

Divorce is always difficult—especially when children are involved. Consequently, there will never be a “one size fits all” approach to child custody. Traditional custody arrangements (sole, every other weekend, etc.) may work for some families, but others may benefit from an alternative schedule. Enter: bird’s nest custody. Bird’s nest custody is an alternative method of child custody where the children remain in the marital home, and it is the parents who make scheduled moves between residences. More specifically, one parent will move into the marital home (aka the “nest”) and take care of the children for a period of time while the other parent lives in his or her own individual home or stays with family and friends.

Bird’s nest custody is not right for every family, but it can be beneficial, even as a short-term, transitional solution, when the parents voluntarily consent to the arrangement and are able to communicate respectfully with one another. In return, children can acclimate to their parents’ divorce in a familiar environment, maintain accustomed to patterns of interaction with their school and friends, and be spared the emotional and logistical hassle of regular house switches. Additionally, parents who are not ready to sell the marital home–especially if the housing market is down—can hold off on that step until circumstances are more financially favorable.

Bird’s nest custody is not without a downside—namely, it is expensive. Instead of maintaining two homes, a family must maintain three homes. Parents can try to maintain only two homes by sharing the “off home” as well, but couples must be realistic about their ability to navigate the physical and emotional logistics of two shared residences. Additionally, some couples may not benefit from stalling the sale of the marital home—everything inside the house and the house itself are key pieces of a divorced couple’s property settlement. Without selling the home and its assets, reaching an agreement about the distribution of community property may be difficult.

Psychologically, issues arise for both children and parents. First, bird’s nest custody may leave children, especially young ones, confused about whether or not their parents have truly split. Second, parents may have trouble moving on if they maintain such strong ties to their marital home. Ultimately, a clean break may benefit children and parents more than the environmental stability that results from nesting.

Lastly, most real life attempts to implement bird’s nest custody are not successful. Seldom are divorced couples willing or able to make the approach work—ex-spouses do divorce for a reason! The aim of bird’s nest custody is to reduce a child’s stress, and if the approach leads to more tension and more arguments between the parents, the process will not benefit anybody in the family. Additionally, changes in an ex-spouse’s romantic status usually complicate the arrangement—even if new partners don’t mind moving between residences, rarely would a parent feel comfortable welcoming his or her ex-spouse’s new partner into the “nest.” Moreover, the situation is fairly impossible to implement if a spouse or new partner has children from a previous relationship.

Ultimately, successful implementation of bird’s nest custody requires clearing quite a few hurdles, but the approach demonstrates that alternative and creative custody arrangements do exist—families should not feel bound by traditional custody schedules.

If you are interested in learning more about bird’s nest custody or other alternative custody schedules, please contact the lawyers at Lonich Patton Erlich Policastri—an experienced family law lawyer can help parents craft the best custody arrangement for their children and themselves.

Please remember though that each 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.

Source: Michael T. Flannery, Is “Bird Nesting” in the Best Interest of Children?, 57 SMU L. Rev. 295, 297 (2004)

Going to California, The Quasi-Community Property State

June 27, 2016/in Estate Planning, Family Law /by Michael Lonich

A move to the Golden State has the potential to change the character of your property. Upon arrival in California, meeting with an experienced California estate planning attorney is a must!

Generally, there are two kinds of property systems: community property and separate property. California is one of nine community property regimes in the United States.* Presumptively, community property is all property acquired by a couple during marriage. The community property system gives each spouse a fifty percent (50%) interest in the property, among other characteristics. In California, separate property is all property owned by a person before marriage and all property acquired by gift, bequest, or devise during marriage.

California’s community property system is unique because it also recognizes “quasi-community property.” Quasi-community property includes all property, wherever situated, that would have been treated as community property had the acquiring spouse been domiciled in California at the time of acquisition. For example, if husband bought a car with funds earned during marriage, while living in Minnesota, a separate property state, the property would be the husband’s separate property. However, if husband and wife moved to California and then filed for divorce, the car would be considered quasi-community property. The reason being is that if the husband was domiciled in California at the time he had purchased the car, it would have been characterized as community property. Pursuant to California law, all property acquired during marriage, including a spouse’s earnings, is community property. Therefore, in accordance with the quasi-community property statute, each spouse would have a fifty percent (50%) interest in the car.

The example above is just one of many that may give rise to quasi-community property. Nonetheless, it illustrates the potential effect a move to California can have upon one’s property. Moreover, each state has the authority to make its own property laws. Therefore, it is imperative that when you move to a new state, especially from a separate property state to a community property state, you visit an experienced estate planning attorney.

For more information about quasi-community property or estate planning in general, please contact the experienced estate planning attorneys at Lonich Patton Erlich Policastri for further information. The attorneys at Lonich Patton Erlich Policastri have decades of experience handling complex estate planning matters, including quasi-community property issues, and we are happy to offer you 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 detail general legal issues, it is not legal advice. Use of this site does not create an attorney-client relationship.

*https://www.irs.gov/irm/part25/irm_25-018-001.html

Finding Your Divorce Attorney: 3 Ways to Ensure You Hire the Right One

June 10, 2016/in Family Law /by Gretchen Boger

Hiring the right attorney has the potential to save you time, money, and peace of mind; however, this is no easy task – nor should it be. Getting a divorce is often one of the most difficult, exhausting, and emotionally draining times in a person’s life. It is of utmost importance to hire the attorney that is willing and able to be your guide and advocate through the arcane domain of divorce. Below are three ways to ensure that you are choosing the right attorney.

1. A Referral

With approximately 40% – 50% of all marriages ending in divorce, it is likely that you know someone who has gone through a divorce. While it is not always easy to admit that your union has failed, seeking advice from those who have had to go through the process can play an integral role in deciding who will represent you.

Simply asking them if they would recommend their attorney is indicative of an attorney’s capabilities. However, an attorney who was perfect for someone else may not be perfect for you, and vice versa. Therefore, confide in those who have gone through this onerous process, but be aware that each divorce is unique and each attorney-client relationship is unique, as well.

2. An Internet Search

Today a simple Google search, for example, “Bay Area Divorce Lawyers,” will return dozens of results. The results at the top of the list will most likely be the law firms that specialize in divorce in the Bay Area. Take your time when researching each law firm.

A law firm’s website should indicate its areas of specialization, the attorneys that work there, and the results that the firm gets. More often than not, the website will give examples of the kinds of cases the firm has tried. These examples are important to you. You should be asking yourself, if these examples are similar to your current situation. If so, the firm is one that you should definitely consider. A firm’s website can provide a lot insight about the firm; however, it should not, necessarily, be the determinative factor in your decision making process.

3. A Consultation

If a referral source or your research has resulted in finding an attorney that you like, you should schedule a consultation. A consultation is a time for you and the attorney to decide if working together is the right decision. There are number of things that you should consider when meeting with your potential attorney for the first time.

First, if the attorney is charging you an initial consultation fee, do not let it discourage you from scheduling the consultation. Usually, in other areas of law, when a prospective client meets with an attorney for the first time there is a free 30 minute consultation. However, divorce attorneys may charge an initial consultation fee. The reasons for the fee are to determine if clients can afford attorney’s fees and to deter clients that are “lawyer shopping.” Lawyer shopping occurs when a prospective client meets with a number of different divorce attorneys with the intention of creating a conflict of interest. As a result, any attorney who the client met with is precluded from representing that client’s spouse. One way to deter invidious behavior, such as lawyer shopping, is to charge for the meeting.

Second, the attorney-client relationship is something that should be founded upon honesty, trust, and accountability. The consultation is the appropriate time to meet and decide if working together would be in the best interests of both parties. During the consultation there is a lot of information that each party should receive before making a decision.

As the client, you should make note of the attorney’s demeanor and professionalism. Is the attorney professional, did he or she dress well, was the meeting uninterrupted, did you receive the attorney’s undivided attention, and were you treated with respect? An attorney who dresses well, is professional, and treats you with respect usually correlates to being a fine lawyer.

Third, divorce has the potential to last for years. It is important that you choose an attorney you can be around throughout the divorce. Your attorney is your advocate, and the last thing that you need is to have tension between one another. Therefore, choose someone that you can foresee yourself getting along with. This doesn’t mean your attorney needs to be your best friend, but it does need to be someone that you can work with.

Fourth, hiring an attorney who has dealt with cases similar to yours will most likely save you time and money. While divorce may seem like an ossified area of the law, results are, often times, dictated by specific factual findings and great lawyering. Having an attorney who is familiar with certain situations will increase your chances of reaching a settlement in your best interest. For example, an attorney who has dealt with unique assets and situations (horses, real property out-of-state, blended families, etc.) is more likely to reach a better result and not bill as much for researching these unique circumstances.

Finally, if you decide that the attorney is right for you, you should be ready to get the process started right away. The items that you should bring to the first consultation are: 1) any pleadings, motions, proposed settlement agreements, or any other documentation dealing with the case, 2) your most recent tax returns, 3) a preliminary schedule of assets and liabilities, and 4) your monthly income and expenses. Any other documents or paperwork that you think are relevant should be brought to the consultation, too.

On the other hand, during the consultation, the attorney will be considering whether your case should be taken. Each attorney has their own checklist for determining whether to take on a new client. Generally, an attorney considers if the case is feasible, if he or she is able to work with the client, and if there are any conflicts, among other factors.

Asking for a referral, conducting your own research, and meeting with attorneys are three proactive steps that will ensure that whomever you hire is the right attorney for you. Remember, finding the right attorney is a decision that only you should be making.

If you need any help in finding the right attorney, 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.

DOMESTIC VIOLENCE: PROTECTION THROUGH RESTRAINING ORDERS

June 3, 2016/in Family Law /by Mitchell Ehrlich

That familiar Hollywood story—a short marriage followed by an inevitable divorce—recently took a troubling turn when Amber Heard accused her husband, Johnny Depp, of spousal abuse. Detailing a series of domestic violence incidents, Heard asked a judge for and received a temporary domestic violence restraining order. While the criminal and civil implications of the Depp-Heard marriage have yet to be fully decided, domestic violence is a dangerous crisis that one in four women and one in seven men will experience in their lifetime.*

First, it is important to recognize what qualifies, legally, as domestic violence: abuse or threats of abuse when the abused and the abuser are or have been in an intimate relationship. Abuse includes intentional or reckless physical violence, threats of harm to third parties, and threatening behaviors such as harassment, stalking, or property destruction. Additionally, the abuse does not have to be physical—it can be verbal, emotional, or psychological as well.

Next, if a victim needs immediate help, he or she should call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233). However, victims do have legal options, such as a restraining order, at their disposal as well. A domestic violence restraining order, like the one that Amber Heard received, is a court order that can be obtained by an individual who has been abused (or has been threatened with abuse) by a person with whom he or she has a close relationship. Once in place, a domestic abuse restraining order can be used to enforce the following actions: forbid an abuser to contact or go near the person who requested the order, force the abuser to move out of the victim’s home (even a joint home), pay child support, stay away from family pets, pay bills, and release property, to name a few options.

More specifically, there are four types of restraining orders: 1) an emergency protective order (EPO), 2) a temporary restraining order (TRO), 3) a “permanent” restraining order, and 4) a criminal protective order or “stay-away” order. An EPO can be acquired only by law enforcement and will only last for up to seven days, but judges are available 24 hours a day to grant the order if necessary. If a longer restraining order is needed, a person can seek a TRO—the type of restraining order that Amber Heard sought and received. For a TRO, an individual can go to court and explain to a judge why the order is necessary. If the judge agrees that the requesting person needs protection, a restraining order will be issued, and it will usually last between 20 to 25 days, until the court hearing date. Third, when an individual goes to a TRO hearing, the judge may issue a “permanent” restraining order instead. The order is not actually permanent—it only lasts for up to three years—but a person may request a new order when the previous one runs out. Lastly, sometimes the district attorney will file criminal charges against an abuser. Commonly, the criminal court will issue a protective order against the defendant (the abuser) while the criminal case is ongoing, and if the defendant is found guilty, for three years after the case is over.

Importantly, law enforcement or legal assistance is not necessary to ask for and receive a restraining order, but an experienced family law attorney can ensure that the process is carried out properly and make it easier to handle. For more information about how to best protect yourself when faced with a domestic violence crisis, please contact the lawyers at Lonich Patton Erlich Policastri. Again though, if immediate help is needed, please call 911, a local domestic violence shelter, or the National Domestic Violence Hotline (1-800-799-7233). The circumstances of Amber Heard and Johnny Depp’s divorce are alarming, but at least, they do provide an opportunity to have an open discussion about domestic violence and the tools available to those who need help.

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:

*http://www.cdc.gov/violenceprevention/pdf/nisvs-fact-sheet-2014.pdf

http://www.courts.ca.gov/selfhelp-domesticviolence.htm

“Truly wanted to see a fair and just outcome”- AVVO reviewer

March 9, 2016/in Firm News, In the Community /by Lonich Patton Ehrlich Policastri

David Patton is a family law specialist and partner at Lonich Patton Erlich Policastri. David is an experienced trial attorney with over 22 years of experience. He co-founded the firm’s family law practice and has become one of Silicon Valley’s top family lawyers.

David has represented clients in difficult and complex cases, all while treating his clients with kindness and compassion. He recognizes that these times are some of the most overwhelming and difficult for families, and that is why he works hard and diligently to obtain favorable results.

As one AVVO client reviewer stated: “David (and his partner Mike Lonich) were genuinely interested and invested in my case. They were not solely focused on billable hours, but truly wanted to see a fair and just outcome. That sort of personal commitment went a long way toward making the whole experience, if not enjoyable, at least less miserable. I just wish I had David as my attorney when my divorce first started. I would highly recommend David Patton and his firm to anyone needing competent representation in matters of family law. “

If you have any questions about 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.

http://www.avvo.com/attorneys/95126-ca-david-patton-319088.html

4 questions to ask before hiring a mediator

March 8, 2016/in Family Law /by Riley Pennington

Mediation can be very helpful for spouses going through a divorce. Ensuring a successful mediation requires choosing the right mediator. Before deciding to work with a mediator, parties may consider speaking to those who have worked with him or her in the past. Below are a few suggested questions to ask those who have worked with the mediator:

1.Did the mediator develop a relationship of trust and confidence with you?

2.Was the mediator patient yet tenacious?

3. Would you hire this mediator again?

4.Was the mediator creative?

Sometimes our issues don’t have an easy solution. For example, deciding a custody holiday schedule or deciding who will keep the marital home, can make it difficult to reach an agreement. Hire a mediator that you know is prepared to deal with these complex issues.

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind 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:

Mediation Checklist: What to Know When Hiring Mediators

“Even his opponent called him an ‘excellent family lawyer'”- AVVO reviewer

March 7, 2016/in Firm News /by Lonich Patton Ehrlich Policastri

Mitchell Ehrlich is a partner and certified family law specialist at Lonich Patton Erlich Policastri. He practices exclusively in the firm’s family law practice handling a wide variety of complex family law issues.

Mitchell is very aware of the fact that he practices in a field in which, quite often, his clients and their children are in the midst of an emotionally stressful and financially difficult situation, where their futures seem uncertain and making decisions can be difficult. Accordingly, he endeavors to offer his clients his valuable experience, counsel and advice in not only the many complicated legal issues they face, but also the short term and long term impacts of their decisions on their families.

One AVVO reviewer stated the following: “If you are looking for an elite, top of the class family lawyer, try Mitchell Ehrlich in Lonich Patton Erlich Policastri San Jose. My husband hired one of the most aggressive law firms and kidnapped our daughter to start a divorce. Most lawyers didn’t want to deal w/ that notoriously aggressive law firm. Mitch was not intimidated by them at all . . . I’m forever grateful for Mitch getting the justice done. Mitch seems to also have a strong network in the legal community in Santa Clara County and is familiar w/ other lawyers and judges. He is well known for his knowledge in family law and even his opponent called him an “excellent family lawyer.”

If you have any questions about 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.

http://www.avvo.com/attorneys/95126-ca-mitchell-ehrlich-39856/reviews.html

3 requirements for a successful mediation

March 7, 2016/in Family Law /by David Patton

Mediation allows parties to work in a collaborative environment and reach an agreement satisfying to both sides. The enclosed article suggests mediation as a first step in solving problems and reaching voluntary agreements. Instead of using mediation as a last resort, the article recommends using it as the first step to work out solutions. In particular, using mediation, a less formal alternative than court, makes it less likely that parties will react defensively or overstate their claims. Although the article discusses mediation in a business context, the following three suggested requirements for a successful mediation also serve well in divorce mediation:

(1) a willingness on the part of all the relevant parties to work together to resolve the problem or deal with the situation;

(2) the availability of a trusted “neutral” with sufficient knowledge and skill to manage difficult conversations; and

(3) an agreement on procedural ground rules (i.e., confidentiality, timetable, agenda, good faith effort, etc.)

While divorce mediation works in many situations, it is not always appropriate. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible. If you have any questions about divorce mediation and would like to speak to an attorney, please contact Lonich Patton Erlich Policastri for further information. Keep in mind 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.pon.harvard.edu/daily/mediation/mediation-as-problem-solving/?mqsc=W3827538&utm_source=WhatCountsEmail&utm_medium=PON%20Harvard+Neg%20Insider%20%28Tuesday/Thursday%29%20Standard%20Rule+Neg%20Insider%20%28Tuesday/Thursday%29%20Standard%20Rule&utm_campaign=Neg_WIR_02272016

Uncovering hidden assets during a divorce

February 29, 2016/in Family Law /by Mitchell Ehrlich

Divorces can get ugly. Someone who was once your world suddenly becomes your enemy. One area that can get especially messy is property division. One spouse may try to hide assets in hopes of preventing the other spouse from benefiting from them. Although such action can lead to legal consequences, some spouses, nonetheless, attempt to do so.

The first step should be to try to get the information from your spouse. In an ideal world your spouse will be upfront about all the assets. But if your spouse is uncooperative or you suspect your spouse is hiding assets, it is probably best to contact an attorney to guide you through this process. An attorney can assist you in obtaining financial information from your spouse by using the discovery process.

Some of the discovery tools include:

Document demand: Your attorney can ask your spouse to produce financial documents such as bank statements, tax returns, and recent pay stubs.

Interrogatories: This allows your attorney to ask specific questions to which your spouse will have to answer in writing or admit specific statements that you believe are true.

Inspection demands: This allows you to inspect property that you believe may be of value.

Deposition: During a deposition, your spouse will answer questions under oath. You, your spouse, attorneys and a court reporter will be present. Because this is under oath, your spouse may be penalized for “perjury” if it is discovered he has provided false information. Thus, a deposition is a great way to put some pressure on your spouse to tell the truth.

Perhaps the most powerful aspect of discovery is that if your spouse fails to comply with a request, you may ask the court to order your spouse to furnish financial documents. If your spouse still fails to produce the documents or information requested, the court may impose a “sanction” which can result in a judgment against your spouse on a particular issue or a monetary award for you.

If you have any questions about 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.divorcenet.com/topics/hiding-money-and-assets-a-divorce

Five Holiday Tips During Divorce

December 16, 2015/in Family Law /by Riley Pennington

Holidays are the time in the year in which we all look forward to spending time with our family, friends, and loved ones. Consequently, dealing with divorce during this time of the year can be challenging. However, these five holiday tips may help to ease this difficult time.

1. Choose Who You Spend Time With. The holidays are usually filed with holiday parties and gatherings, however, these events may be stressful for a newly single person. While it is important to practice socializing in your new single lifestyle, you should not force yourself to go to these events. Only go if you expect it will be a pleasant experience for you. If not, then this is also an opportunity to start creating new holiday traditions in which you can find enjoyable.

2. Take A Break From The Divorce. During the holidays, things tend to slow down and not much is likely to get done. For this reason, this time of the year is a perfect time to take a break from the stress of divorce and focus on yourself. Take some time to refresh yourself and do something special to welcome your better life to come, such as reconnecting with old friends.

3. Make Plans to Fill the Voids. Even if you are doing something by yourself, it is still a plan. You can watch a new movie or even read that great book you have been wanting to get to.

4. Get Real. Remember that there is no “perfect family” like those Norman Rockwell paintings. In today’s world, families come in all shapes and sizes, so feel comfortable with your new situation because you are not alone.

5. Be Fair with the Children. While the holidays may be a difficult time for you, it is just a difficult, if not more so, for your children. They need to know that it is okay to spend time with both their parents and that they should not feel obligated to choose one over the other.

These are just a few tips available to individuals dealing with divorce during the holidays. 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 scheduling where your children will spend the holidays, please contact Lonich Patton Erlich Policastri for further information. Keep in mind 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.

Souce: http://www.huffingtonpost.com/divorce-magazine/6-tips-for-divorcing-duri_b_8544912.html

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