“Always has the best advice for you” -AVVO reviewer

Posted October 24, 2016 in Firm News by Lonich and Patton.

Gina Policastri, partner at Lonich & Patton, has gained a reputation for being a compassionate but strong advocate for her clients. She has worked with clients involved in long and difficult divorces.  One AVVO reviewer recently noted that after a lengthy divorce of 6 years that seemed to be going nowhere, Gina was able to finalize his divorce in only 8 months! As the reviewer stated, “She is extremely organized, a hard worker and always has the best advice for you and knows what is needed to do to move your case forward!”

Gina Policastri is a Certified Family Law Specialist.  She handles all areas of family law including high conflict custody cases, complex business valuation and asset division issues and complicated child and spousal support matters.

For more information or to schedule your free ½ hour consultation, please contact Lonich & Patton. Please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  Use of this site does not create an attorney-client relationship.

 

https://www.avvo.com/attorneys/95126-ca-gina-policastri-233500/reviews.html

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Smith/Ostler Order: Accounting for Bonus Income’s Impact on Support Payments

Posted October 19, 2016 in Family Law by Michael Lonich.

When calculating spousal or child support, courts look to a wage earner’s monthly income to determine an appropriate support amount.  However, what if the wage earner spouse or parent receives bonus income in the years after the initial support order is entered?  Support orders can be altered, but the process involves a court room, lawyers, and more legal fees.  In re Marriage of Ostler & Smith offers an alternative answer—the Smith/Ostler order.

A Smith/Ostler order takes into account a spouse or parent’s unearned or prospective income, detailing when and how any future, additional earnings should be incorporated into a support order.  However, because bonus income is prospective only, it may never be realized.  Calculating support based off an unknown and/or unguaranteed dollar amount can underestimate or inflate a support order.  Therefore, to account for the speculative nature of bonus payments, courts deal in percentages.

For example, in the seminal In re Marriage of Ostler & Smith case, the court awarded Wife 15 percent of Husband’s future cash bonuses.  If Husband received a bonus, he would give 15 percent of whatever amount he earned to Wife, but if Husband did not receive any cash bonuses, he would not pay additional support.  Importantly, the original support order would remain intact, and the parties would not need to argue over how much of the bonus income the supported spouse should be paid—the court order took care of those details and created a more easily administered support order.

In addition to cash bonuses, a Smith/Ostler order can account for future stock option income.  For example, in In re Marriage of Kerr, Wife and Husband, while married, improved their standard of living by exercising stock options that had increased in value.  Subsequently, during divorce proceedings, the court award Wife, through a Smith/Ostler order, a percentage of Husband’s income from any future exercise of those same stock options.

However, In re Marriage of Kerr presented an exceptional case where an additional measure besides a percentage amount was necessary to ensure that Husband’s spousal support order was not inflated.  The value of Husband’s stock had increased exponentially after he divorced Wife.  A specified percentage of the stock’s value would have increased Husband’s payments to a point that far exceeded the marital standard of living he shared with Wife.  Thus, the court concluded that under special circumstances, such as the case at hand, use of a Smith/Ostler order is permissible only if the court caps the amount of future income a spouse can receive at a number proportionate to the martial standard of living.

If you are considering a divorce or legal separation and would like more information about how either action may affect your finances, please contact the experienced family law attorneys at Lonich & Patton.  We can help you understand and manage any spousal or child support issues that may arise.

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:

In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33

In re Marriage of Kerr (1999) 77 Cal.App.4th 87

 

 

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Mediation: Taking control of your divorce

Posted October 10, 2016 in Family Law by Michael Lonich.

The underuse of the mediation process seems to be largely attributable to the fact that many people are unaware of what a mediation session is and how beneficial it can actually be. In family disputes, mediation can be extremely rewarding, saving parties time, money and sanity.

The rules of mediation: you create them

In mediation, parties are not bound by many of the rules that govern judges’ decision making. As a result, parties can reach solutions that might not otherwise be available from a court. For example, if there is a dispute over child support or child custody, rather than having a judge decide the amount of support or amount of visitation based on guidelines and factors required by statute,  parties are free to negotiate an amount or time deemed reasonable to both.

The outcomes: you decide them

In mediation, you are free to discuss with your spouse what is important to both of you and try to reach a mutually acceptable agreement.  It differs from litigation in that parties avoid the uncertainty, time and stress associated with going to trial. Parties are  able to hear and understand the other’s point of view and with the guidance of a mediator, this enables parties to reach a middle ground . Because the mediator does not have the authority to make decisions, it is ultimately the parties making their OWN decisions over their OWN lives.

However, a good mediator should have some family law experience and be able to offer practical guidance to the parties. A mediator with family law experience can offer parties insight as to what might and might not be granted in court, ensuring that no request is unreasonable or disadvantageous to the other spouse. This can make the mediation session much more productive.

Progress: in the mediation room and beyond

Lastly, even if you don’t settle all your divorce issues, chances are you did resolve some. Even having resolved one issue is progress.  Further, the tenants of mediation promote cooperation and communication. Thus because parties are provided the opportunity to resolve their own case, mediation tends to reduce hostility and preserve ongoing relationships.

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 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.

 

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Estate Planning for Millennials

Posted September 28, 2016 in Estate Planning by Michael Lonich.

While estate planning may sound like an activity reserved for the baby boomer generation, even Millennials can get in on the fun!  Further, estate planning is not only for people with ample assets—planning for your future can extend to healthcare decisions and even your Facebook account.  Of course, thinking about death—especially one’s own—is hard, but there are many benefits to be reaped from laying out a few guidelines for your loved ones.

To begin, estate planning at a young age may not involve complex financial considerations, but there are two key areas to focus on: healthcare and personal property.

First, once you turn 18 years old, family members no longer have the legal right to access your medical records, and should you become incapacitated, your family would not be able to speak to your doctors or make medical decisions on your behalf.  Estate planning ensures that in the event of your incapacitation, your health is taken care of according to your wishes and by people you trust—

1) Advanced Healthcare Directive: A legal document in which you detail what medical actions should be taken if you are incapacitated or unable to make decisions on your own.  This document can be used to record your preference (or not) for a “do not resuscitate” order.

2) Durable Power of Attorney: A legal document which, should you become incapacitated, gives power to a person of your choosing to make medical or financial decisions on your behalf.  A durable power of attorney works in conjunction with an advanced healthcare directive to ensure that your health preferences are understood and heeded.

3) HIPPA Release Form: This form allows people listed on your advanced healthcare directive to access your medical records.  Access to your records makes it easier for your designated caregivers to make informed decisions regarding your health.

Second, you may not have a lot of assets, but most likely, you do have some treasured possessions.  To prevent your assets from being waylaid by intestacy (in which state laws determine how your property is distributed), consider making a will or trust—

4) Wills and Trusts:  A will and/or trust details to where and to whom your assets will go after your death.  While you may be content to let intestacy laws distribute your estate, creating a will or trust can streamline the process and assure your relatives that they are honoring your true wishes.  Importantly, besides money, you should consider other cherished aspects of your estate.  First, your pet—who will take care of your beloved fur friend?  Second, consider family heirlooms passed down to you through grandma and grandpa—a will or trust ensures that those items fall into the right hands.  Third, do you want to allocate any assets to a significant other?  If you and your partner are not married, he or she is not entitled to any of your assets and will likely receive nothing through intestacy either.  Whether you want to leave money or possessions—valuable or sentimental—a will or trust ensures your significant other receives a piece of your estate.

5) Digital Assets:  Social media accounts and digital files need postmortem management, especially if you would like your family to shut down your various online accounts.  Federal law does not require that websites permanently delete the account of a deceased user.  Therefore, designating a digital “executor” and creating an inventory (with updated usernames and passwords) of your online accounts that details what you would like done with them can ensure your online presence is handled according to your wishes.

Death is a difficult subject, but estate planning ensures that your family is not left without direction for how your final wishes should be carried out.  Therefore, if you are interested in learning more about estate planning, please contact the experienced attorneys at Lonich & Patton.  We can help determine what documents would best safeguard your assets and/or your medical wishes.

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.

 

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Understanding the Spousal Fiduciary Duty

Posted September 9, 2016 in Family Law by Michael Lonich.

Marriage prompts a lot of change—last names, bank accounts, estate plans, housing—but one of the most important changes that arrives once you say “I do” is a fiduciary duty to your new spouse. Fiduciary duty may sound like a term reserved for the boardroom, but a broad fiduciary relationship exists between married spouses as well.

At the most basic level and as prescribed by California Family Code § 721, spouses possess a duty of “the highest good faith and fair dealing,” and “neither spouse shall take any unfair advantage of the other.”  Further, the spousal fiduciary duty includes “the same rights and duties of nonmarital business partners” as outlined in the California Corporations Code.  Although the Corporations Code uses business-centric language, the Family Code incorporates partner-based duties and applies them to spouses.  Thus, spousal fiduciary duties include:  1) allowing access to transaction books, 2) providing full and true information about any community property, and 3) an accounting of any benefit derived from any community property transaction by one spouse without consent of the other spouse.  Additionally, spouses owe each other a duty of loyalty—spouses must refrain from dealing with each other as an adverse interest and must refrain from competing with each other—and a duty of care.

Returning to the Family Code, Section 1100 details the fiduciary duties that accompany the control and management of community property.  Of note is subsection (b): “a spouse may not make a gift of community personal property for less than fair and reasonable valuable, without the written consent of the other spouse.”  In other words, even when giving a community fund-purchased gift to his/her children, a spouse needs the written consent of the non-purchasing spouse.  Typically, a nonconsenting spouse is unlikely to challenge holiday and birthday gifts given to his/her own children, but that spouse does have the legal ability to void the gift and receive compensation for its value—an issue usually raised during a separation or divorce proceeding.

Importantly, even after spouses separate or file for divorce, they still owe a fiduciary duty to one another—until all assets and liabilities have been officially divided, spouses must act with respect to each other and fully disclose all material facts and information regarding community property or debts.

Ultimately, most spouses don’t actually keep (or legally, even have to keep) detailed transaction books in the manner expected of business partners, nor do most spouses actually ask for formal consent before making routine purchases, but it is important to note that unilateral transactions could be used as ammunition in a separation or divorce proceeding.  Therefore, if you are pondering a large purchase or gift, it is wise to document the process, seek the written consent of your spouse, and/or use your own separate property to make the purchase.

If you would like more information about the fiduciary duty you owe to your spouse, please contact the experienced family law attorneys at Lonich & Patton.  From pre-nuptial agreements to divorce proceedings, we can help you understand how the spousal fiduciary duty plays a role in your marriage.

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:

California Family Code § 721

California Family Code § 1100

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