Cliché Cabaret

While every divorce is different, many are quite the same.  Every divorce has a reason; and rare is the divorce without animosity.  Most divorces have assets and debts to divide, and most have more of one than the other.  But one thing that absolutely every divorce has is a cliché.

Huffington Post blogger Randall M. Kessler recently listed his Top 10 Divorce Clichés.  You can read his version here, but I’ll add my own spin.

10.  “Its not about the Money”:  Yes, it is (most of the time).  If its not about how much he or she will “get”, its about how much he or she will have to be responsible for.  Or rather, why the client shouldn’t be responsible for their spouse’s bad decision, shopping problem, etc.  While those bad decisions or habits might be the cause of the breakdown of the marriage, in most cases, both spouses will have to deal with the results in finalizing the divorce.

 9.  “Just wait until the judge hears what he/she did“.:   Most people want vindication for being the “good spouse”.  People want to tell their story and hear affirmation that the divorce is the other spouse’s fault.  The reality is, at least in New Jersey, the court really does not care whether one person was a bad husband or a bad wife.  You don’t get rewarded for putting up with crap (excuse the slang).  Nor does the offending spouse get punished.  There are a few narrow exceptions of course; but if one spouse had an affair or always spent too much at the mall – by and large, it is not relevant to the divorce process and the court does not have time to hear about it.
8.  “I can’t believe they are going to bring that up“.:  Anger has a way of festering.  The things that bothered your spouse years ago still bother him or her today.  While it’s probably not relevant (see #9), that does not mean the emotional impact doesn’t exist.
7.  “I want him/her to go to jail for perjury.”:  Real life is not “Law & Order”.  People lie, bend the truth or sometimes just perceive facts differently.  Perjury is a crime.  Lying under oath can be prosecuted.  But proving it can be difficult and in a divorce proceeding, odds are the lie was not significant enough to impact the case or to change the outcome.  No one condones lying.  And if you lie to your attorney and they find out – you’ll be looking for a new attorney.  But from a practical perspective, if your spouse lies in the divorce process, you need to weigh the risk/benefit factor of pursuing a criminal complaint.
6.  “I’d rather pay my lawyer than pay my spouse anything”.  You might feel that way at the moment, but when the bill comes, you might feel differently.  Arguing a point based on principle is always a recipe for disaster.  Your lawyer will tell you what you are realistically facing in terms of a support obligation.  Fighting it into the ground does nothing but run up your legal bill.
5.  “I don’t care how long it takes.”  Yes, you do.  No one wants to be embroiled in a divorce any longer than necessary.  Divorce takes time.  Even an uncontested default divorce can take 2-3 months.  If there is anything of substance to discuss in your divorce, it is going to take time to sort out.  You will get tired; you will want to put it behind you.  A good lawyer will help you understand the realistic time frame.  Dragging it out does not help anyone.
4.  “Can’t you tell the judge what a jerk he/she is?”  See #9.  No, your lawyer cannot tell the judge what a jerk the other spouse is.  And really – most of the time – the judge does not care.
3.  “I want a “shark” for a lawyer”.  I absolutely hate this cliché.  Early in my career a prospective client once asked “You sound awfully nice, are you sure you can be a bitch?”   I was stunned.  I did not know how to respond.  I was naïve and I wanted to assure the client that yes, I could be the biggest bitch they  needed me to be.  But I was very troubled by the question and the mere suggestion that I should be a bitch.   So I called the judge for whom I had served as law clerk for advice.  I will remember his advice forever.  He said “Don’t ever mistake civility for weakness”.   That prospective client was asking me to be unprofessional and to sway from my ethical obligation as a lawyer; and that is something I refuse to do.  Your divorce is filled with your emotions.  As lawyers, we are not emotionally involved.  We do not need to be angry or aggressive to get a good result.  A good result comes from professional and spirited advocacy using the facts as best we can.  Can a lawyer turn lemons into lemonade?  Sometimes, but only when he or she acts professionally in the mixing process.
2.  “He (or she) is a narcissist”.:  Most people use this phrase when they perceive the other spouse is only thinking about him or herself.  Truth be told there are some real narcissists out there.  But looking out for your own best interest does not make you a narcissist.  Bottom line, in a divorce – a little bit of “narcissism” is expected on both sides.
1.  “Its just stuff.”  Wonderful!  Glad to hear it!  You’re right, it is just stuff.  Of course I would never suggest that my client should sit back and get taken advantage, but I also do not want my client to get stuck on the value of the living room sofa or who should get the pots and pans.   “It’s just stuff”.  Focus on the big picture and get through the divorce.  Then have fun picking out a new couch.
An experienced professional lawyer will help you through the divorce process in a myriad of ways.  When you come to me with a cliché, I will do my best to tactfully help you navigate beyond it.  For more information or to schedule a consultation, I can be reached at 609-601-6600.   Find my Facebook page  too!

MYTHBUSTERS

As I have said so many times before, every legal case is different and one cannot be compared to any other.  The outcome of your friend or neighbor’s legal case is generally irrelevant to your own.  However, in an effort to educate in a general sense, I offer the following fictional scenarios (with made-up names, of course) which may give the reader helpful information to begin a thoughtful analysis of his or her own circumstance.

There will be six scenarios; two posted each week for three weeks.  Check back often to see the new scenarios and the truths or myths discussed.

SCENE #6:   “Paul” and “Priscilla” have a newborn baby but recently broke up. Priscilla is breastfeeding the baby.  Paul is entitled to joint legal and physical custody of the child.  Priscilla will have to pump her milk or allow Paul to use formula on his parenting days….. Is this truth or fiction?

ANSWER #6:  As with all of these scenarios, the answer depends on the facts of the case.  However, assuming Paul and Priscilla are both average people, with no negative histories such as drug use, violence, etc., and that both of them have adequate housing with a dedicated place for the baby to sleep, then it would not be unusual for a court to award joint legal and physical custody to both parents.  Just because a mother is breastfeeding does not mean that the father cannot enjoy equal time with his child.  With modern conveniences of breast pumps, and good quality formula available, fathers can participate in the feeding and associated bonding with their children.  A mother cannot expect a court to give greater deference to her choice to breastfeed her baby to the exclusion of the father.  This can be difficult for a mother to accept, but from the court’s perspective, the issue of custody and parenting time must be viewed from what is in the best interest of the child.  And, courts usually always begin with the basic premise that it is in a child’s best interest to have equal time with both parents – even during the newborn infancy phase.

Often, the custody/parenting time issue resolves itself when the parties recognize the realities of their schedules.  In the choice between breast milk or formula, let the pediatrician decide what is best and then work out the practicalities with the help of modern conveniences.

 

SCENE #5:   “Krystal” and “Ken” were divorced seven years ago after 20 years of marriage.   As part of the divorce settlement Ken was required to pay alimony.  Krystal’s boyfriend stays over a few nights per week but still maintains and rents an apartment of his own.  Krystal’s alimony from Ken will continue…. Is this truth or myth?

ANSWER #5:   If Krystal is “cohabitating” with her boyfriend then alimony will end.  Exactly what constitutes cohabitation is a fact sensitive analysis and is not necessarily dependent on the number of nights the “friend” stays over, or even if he or she maintains a separate household.  In fact, our caselaw states that cohabitation requires stability, permanency and mutual interdependence.  It involves a mutually supportive, intimate personal relationship in which a couple has undertaken duties and privileges that are commonly associated with marriage or civil union, but does not necessarily maintain a single common household.

In analyzing the situation, courts will look at the couple’s finances, social circle, household chores, and other relevant information.

 

SCENE #4:  “Darla” and “Drew” have a 2 year old daughter. The relationship has soured.  Darla won’t let Drew see their daughter.  Drew has tried to reason with her but Darla told him she does not want child support and that he should just stay out of their lives.  Since Darla does not want child support, Drew has no legal right to see his child…. Is this truth or myth?

ANSWER #4:  It is a myth that parenting time (formerly called “visitation”) is contingent on the payment of child support.  In fact, the law in New Jersey is that both parents have a right to see their child (barring any negative or dangerous circumstances such as drug use or abuse of the child).  In addition, both parents have a legal obligation to support their child.  Thus, no parent can legally “waive” child support.  And, if a parent does not pay child support the other parent cannot refuse to allow parenting time.

In this scenario, Drew has  a right to see his daughter and to have parenting time during which he can develop a relationship with her independent of Darla.  If Darla is refusing to allow Drew to see his child, then Drew may have no choice but to file a motion to establish custody and a parenting schedule.  In addition, Drew and Darla have an obligation to support their daughter.  Thus, the Court will want to see proof of income such as pay stubs and tax returns from both parents to establish the appropriate amount of child support.

 

SCENE #3: “Jake” and “Jennifer” have been married for 10 years. Jennifer owned a home when they first started dating and Jake moved in when they got engaged.  Since the house is only in Jennifer’s name – she gets to keep it when they divorce….  Is this truth or myth?

ANSWER #3:  Jake has an equitable interest in the value of the home. Although the deed to the house may be in Jennifer’s name, assuming the house has increased in value since they married, Jake is entitled to his equitable share – typically 50% of the increase in value over the 10 year marriage.  It is important to understand the real estate market and the value of homes in a given area.  A licensed real estate appraiser can assist with determining the change in value.

 

SCENE #2: “Steve” and “Susan” have been married for 17 years.  Steve is a teacher and has a pension; Susan has a good job and contributes to an IRA regularly.  When they split up, Steve will keep his pension and Susan will keep her IRA…. Is this truth or myth?

ANSWER #2:   It is a myth to conclude that simply because an account was in one spouse’s name that it belongs 100% to that spouse.   In a divorce, Steve and Susan are each entitled to an equitable share of the martial portion of other spouse’s retirement accounts.  For example, with regard to Susan’s IRA – assuming all of the funds or value was acquired during the marriage, then Steve is entitled to his equitable share – typically 50%.  If any of those funds in the account were contributed by Susan prior to the marriage, then that value is excluded from equitable distribution.

Steve’s pension is a future benefit.   Similarly, if Steve contributed to the pension for the entirety of the marriage then Susan is entitled to her equitable share.  Unlike an IRA or a 401K, a pension is a future benefit; it cannot be liquidated in present day.  As such, dividing a pension is more complicated and requires the assistance of a forensic accountant to assess the value of that benefit at the point in the future when it is anticipated that the member (Steve) will retire.

Most retirement accounts (IRAs, 401Ks, pensions, etc.) require a Qualified Domestic Relations Order (QDRO) to legally split the entitlements.

Of course, parties are free to negotiate and settle their divorce as they please, and Steve and Susan could choose to agree that they would each keep their own assets.   They should each have an attorney to advise if this is a wise and fair decision.

 

SCENE #1:  “Bob” and “Brenda” never married but lived together as “common-law” husband and wife for 20 years.  They have children and both of their names are on the house and mortgage.  Bob earns significantly more than Brenda. When they split up, Brenda is entitled to alimony, child support and half of the house…. Is this truth or myth?

ANSWER #1:  “Common law” marriage is a myth in New Jersey.  You are either legally married or not.  A legal marriage (between heterosexual or same-sex couples) or civil union gives rise to certain rights or obligations in the event of divorce, including the potential for alimony and equitable distribution.  Child support, however, is an entitlement to the child of the relationship regardless of the parties’ marital status.  Thus, the child is entitled to  be supported by his or her parents and the parents have the legal obligation to do so.

If Bob and Brenda own a house together; i.e., the deed is in both of their names, then they must either agree to sell the house, or in the absence of an agreement, one party can bring an action for partition and force a sale.  Both parties would still be obligated on the mortgage.

 

 

It’s Your Divorce – Not Theirs

When you get divorced, it is only natural for your friends or family members to lend “support” by giving advice regarding everything from picking the right lawyer to how much alimony you “deserve” or whether you should get to keep the patio furniture.  The problem however, is that friends and family members have no business putting their well-meaning nose into your divorce.  They might think they are helping, but they’re not.

This article from blogger Marc Baer with The Huffington Post explains that divorcing people tend to attract well-meaning friends, relatives and bystanders who think they should offer advice on how to manage the divorce.  The common result, unfortunately, is to fuel conflict, anger and aggression in the divorcing person which prolongs the divorce and complicates the resolution process.

Every divorce is fact-sensitive.  Your neighbor or cousin’s divorce is entirely different than yours and the results should be tailored to each specific case.  The job of your divorce lawyer is to clearly explain the law and how it relates to the facts of your case, and then use the law to advocate for your goals, provided those goals are within the range of what’s fair.   The job of your friends and family is to listen, offer encouragement and provide companionship both during and after the divorce.

For more information, call the office for a consultation: 609-601-6600.  Check out my professional Facebook page too!  “Like” the page for interesting links and helpful information right in your news feed!

Job Satisfaction

It’s Friday.  How was your week?  I had a good one.

When I tell people I practice Family Law the usual first comment or question I receive is “Wow, you must hear all sorts of things!”.  (Yes I do, and it makes me appreciate all the good in my own life.)  The second comment is usually “That must be rough”.  (Only if I let it be).   Truthfully, I enjoy what I do.  As a lawyer my job is to help people;  I help by advocating for their interests to achieve a result that meets their needs or goals, or by providing legal advice to help them make logical decisions.   Most of my clients need me like they  need a plumber or an electrician.  They have a legal issue and they recognize the need to retain an attorney to assist in resolving that issue.  My work is not nearly as glamorous or exciting as TV and movies make it seem.

People who come to my office are usually angry, sad, nervous or bitter.  The bitter people are never going to be happy because, well – they’re just bitter in general.  The angry client usually settles down once we get moving on the divorce or motion, etc.  The sad people are only sad temporarily, and by the time the case is over they see the light of a new phase of their lives.  And the nervous clients are only nervous because they are uneducated about the process.  Once I explain it, their nerves relax.

But every so often I have a client who needs help.  Literal help.  As in “something bad might happen”.  These clients are scared or feeling desperate.  The case is usually somewhat challenging because there is a sense of urgency.  When I help these clients the appreciation they show makes me gleam.  They smile, they thank me, they show relief.  And I get to go home at the end of that day feeling like I made a difference in their life, and knowing in my heart that I “done good”.  I had one of those cases this week.  As I close out this Friday I will enjoy my weekend and begin anew on Monday still coasting on the tails of that feel-good energy; ready to help new clients and tackle new problems.

Happy Weekend!   ~Stephanie

 

Caring For Aging Parents: Information You Can Use

I recently posed a question on my FB page and asked what topic my followers most wanted to hear about.  One of the responses was “Caring for aging parents”.   ABC News did a series in 2011 which addressed many of the various concerns.   I highly recommend reviewing the series as it can answer a lot of questions and provide insight.

From my perspective, the most important thing is to make sure your parents have a Will, Living Will and Durable Power of Attorney.  These are basic estate planning documents that all adults, regardless of age, should have in place.  They become especially important for older folks because once our mental faculties start to decline, it is too late to draft these legal documents.  A person needs to be of “sound mind” and capable of making decisions in his or her best interest at the time these documents are prepared.  Ask your parents if they have these documents and where they are stored.  (Knowing where these documents are located will help you access them in the event of an emergency.)  If they have never prepared these documents, or if they are outdated, then a trip to the lawyer’s office is needed.

What exactly is a Durable Power of Attorney?   Check out my article  for a more detailed explanation.

For people with large investments and assets, a more complex estate planning strategy should be explored.  I can review your basic information and discuss your options.  I can even refer you to other professionals for a more detailed analysis and plan.

Most older folks have modest financial assets, and unfortunately the costs associated with long term care are enormous.  Often, older folks come to depend on their grown children; either for a place to live or for help with daily care such as meals, grooming, medication, financial management, etc.  If your parent is residing in your home, and if they are contributing money toward your household, you should consider drafting a formal document such as a Caregiver Agreement that itemizes what expenses they are paying.  A document like this serves as proof of what your parent’s money is being used for, and could be vital evidence for use in a Medicaid application – which  may be the only means of paying for future long term care in a nursing facility.

If your parent becomes mentally incapacitated – either due to a medical incident such as a stroke, or progressive decline such as dementia or Alzheimer’s, it may be time to seek guardianship.  Being someone’s guardian gives you the legal authority to make decisions for that person, buy and sell their property, and generally manage their life.  In New Jersey, a guardian will be required to make yearly reports to the court, and become bonded to insure the guardian acts in the ward’s best interest.  If you want to become a guardian for your parent, you should retain an attorney to guide you through the process.

Finally, it is important to remember that there are many older people who become victims of abuse, both physical and financial, by greedy and self-serving family members or friends.  Do you remember Mickey Rooney?  Did you know he was victimized by his step son?    That step-son later settled a civil suit and agreed to repay more than $2.8 million.  Sadly, he probably never received it.  Mickey Rooney died in 2014 with an estate worth only $18,000.  He left it all it to a different step-son and excluded the rest of his entire family.

Mickey Rooney’s case is not an isolated incident.  In my practice I am often appointed by the court as a temporary guardian for an older individual.  The older population is very vulnerable and I have seen, first hand, how a person’s life savings was slowly stolen by a manipulative family member.  Other times, the money is innocently “given away” by an older person who, because of dementia or Alzheimer’s, does not realize the gravity of their decision.   Check out this link for tips on how to protect yourself or your older loved ones.

Stay in touch with your aging parent(s) and get to know who they socialize with or with whom they spend time.  The more connection you have with them, the faster you will recognize a potential problem.   And, if you choose to take a more involved role, make sure you get the legal authority to make decisions.  Doing so will protect you and protect your loved one.

For more information or to schedule a consultation, contact the office directly at 609-601-6600.

Best, Stephanie

 

Celebrating Your Child’s Graduation As a Divorced Parent

Its that time of year… graduation season.  When your child is graduating, whether from high school or college, you are likely to feel tension or stress in experiencing this milestone with your Ex.  Try not to let your feelings, past or present, toward your Ex get in the way of your joy for your child.  Here are some simple tips for getting through the event with your emotions intact:

1.  Take the initiative and contact your Ex in advance:  If you know your Ex or soon-to-be-ex will be attending the graduation or celebratory event, see if you can agree not to discuss the divorce or any emotionally charged issues such as financing for college, or who was there for all the late-night projects during school.  Chances are you have already argued these issues ad nauseam, or you will have plenty of time to iron out the details of the issue later.  Just agree to grin and bear it.   Put a smile on your faces for your kid’s sake.

2.  Reassure your child of your well-being.   Parents often pretend that their kids don’t know about their resentful feelings toward the Ex; but the reality is, all too often, the kids have heard the snide remarks or have felt the animosity.  Don’t let your kids think they should not celebrate just because it might cause you angst.  Take the time to quietly reassure them that they have a right to be proud, a right to be happy, and a right to expect family to peacefully celebrate with them.

3.  Respect the unexpected Guest.  If your Ex has a new spouse or partner, its natural to feel uncomfortable.  But if your former spouse wants to bring along their new partner, you really don’t have the authority to say no.  Going solo can feel isolating, so bring along a friend or other relative to stand by your side to help you feel more secure.

 4.  Celebrations big and small:  If a graduation party is being planned, try to negotiate a neutral location to eliminate any perceived “home turf” advantage.  Ideas include restaurants, banquet halls or parks.  If that isn’t feasible, then host a smaller event separate from your Ex.  Be sure to keep the guest list limited to your side of the family or your friends.  Do not overlap the guest list or try to out-do your Ex on the grandiosity of the event.  A small intimate celebration can sometimes be more enjoyable and can even keep costs down.

5.  Understand that your emotions are normal.  Know that feelings such as regret, resentment, remorse, anger or sadness are all normal emotions for divorced couples.  Those feelings soften over time, but significant milestones for your children are likely to dredge them back up.  Expect them, try to manage them, and maybe have a plan in place in case you become overwhelmed.  Sit near the door for easy exit to get some air or a cold drink.  Pull yourself together and go back in.  It will be over soon enough.

The above tips work just as well for weddings too!  Enjoy the season and these precious milestones!

For more information or to schedule a consultation, call the office 609-601-6612.

“Shop Local” For Your Lawyer

I am sure you have seen the advertisements; you know, for those legal document review and preparation companies.  Some of those legal service companies have recently added a feature where you can speak with an attorney and get legal advice, or subscribe to a legal advice plan.  In an instant, with zippity speed, you can seemingly have all of your legal questions answered or documents prepared without leaving the comfort of your couch, or interrupting your busy day.

I can see why it sounds very appealing.  But to be honest, those commercials and the services and products they offer, drive me crazy.  Here’s a little disclaimer: I have never used one of those services or even called to inquire about the specifics.  All I want to do is give you my spin on why shopping local is better.

Usually we hear the phrase “shop local” around the holidays.  The idea is to patronize or give your business to a local independant shop over a large “big box” chain or corporate conglomerate.  There are many reasons people might want to “shop local”.  For example: Shop local to support a family owned business; shop local to support the use of locally grown or organic ingredients, shop local because local usually means small and hence a more personal service experience, or finally, shop local in an effort to stimulate your local economy.   These are all great reasons to shop local.  And I suggest to you that the same reasons apply when you are “shopping” for legal advice or for a lawyer to prepare legal documents.

A local lawyer is often from the area where he or she practices.  The local lawyer might know some of the same people you know, might use the same car repair shop or have children in the local schools.  A local lawyer will be familiar with the procedures of the local courthouse and have a good working relationship with other local lawyers; i.e., your potential adversary.

Much like locally grown “ingredients”, a local lawyer will usually use local experts and consultants to assist with your case.  Those local experts and consultants will hopefully have a good working relationship with the lawyer and be able to offer competitive rates and fees which will serve to benefit you.

A local lawyer will undoubtedly provide a personal service experience.  He or she lives and works in the area.  The lawyer’s reputation for quality personal service is the bedrock for continued growth of that lawyer’s practice.  What is quality personal service?  To me, it means my client has my attention; my client’s phone call or email will be returned and I often answer my phone directly; my client will speak with me for follow up questions – not the next lawyer in the queue; and I will have explained to my client what to expect or the reasons for my professional legal opinions.  I do those things for two reasons; (1) it is the right thing to do, and (2) I hope that my satisfied client will refer others.  In other words, as a local lawyer, I have skin in the game.

Finally, retaining a local lawyer will stimulate your local economy because that lawyer lives and works in the area, will use the same car repair shop, support the local schools and youth sports teams and rely upon local experts and consultants, who in turn, will use the same car repair shop, support local youth sports… you get the idea.

Some people are stimulated by the cost factor, thinking that a legal service or document preparation company will be less expensive.  Well, often those legal service plans offered by online or telephone legal service companies are monthly service plans for which you pay a monthly contract price, even if you are not actively using the service.  Does that sound like a bargain?   Most local lawyers bill you for services performed either on an hourly basis, contingency or flat fee arrangement.  When you meet with and retain a local lawyer you will have the opportunity to ask questions about the fee structure and sometimes negotiate a fee arrangement that works for you.  Again, it comes down to creating a professional relationship with a lawyer that suits your personal needs.

Put a face to the name and create a professional relationship with someone you will be proud to call “your lawyer”.  I can assure you, we local lawyers are proud to service our friends, neighbors and local entrepreneurs just like you.

For more information or to schedule a consultation, call the office at 609-601-6600.  I look forward to working with you.

Stephanie

 

Separation and Custody: Should You Move Out?

Deciding to separate from your spouse prior to or during divorce is a big decision.  In situations involving domestic violence, the alleged offending spouse can be ordered to leave.  But in most cases, one spouse or the other must make the decision to leave.  You may wonder if there are consequences – especially regarding custody or parenting time – if you are the one who moves out; and the answer is yes.

In this article I will refer to the “marital home”.  But the same principles discussed herein apply to non-married parents who reside together while raising a family.

If you are considering a break-up or separation it is likely due to sustained tension in your relationship and household.  Separating can ease some of the tension between you and your spouse (or co-parent), but you should be prepared for the impact on your children.  If you leave and take your children with you, be prepared for your spouse or co-parent to seek a structured parenting time arrangement with the children.  If you leave and permit your children to remain with your spouse in the marital home, be prepared that your access to your children may be limited.  The reasons for this can vary, but may include the ages of the children, work schedules, school or extracurricular schedules, or simple anger and resentment from the other spouse or even your kids.

You will not have free rein to come and go in and out of the marital home once you leave.  Further, it would not be unusual for your children, especially older children, to feel like you abandoned them and then harbor resentment against you by refusing to spend time with you.  You can petition the court for a structured parenting or visitation schedule, but you cannot force your children to enjoy your time together.  I am not suggesting that all kids will be angry or resentful.  But I have seen situations where an older child’s logical and reasonably expressed feelings are given due regard by a court.  A custody analysis always begins with the “best interest of the child” standard which usually includes the concept that all children are entitled to quality time with both parents.  Making that happen is the challenge.  Counseling or family therapy may be ordered by a court to preserve or repair a parent/child relationship.  Of course, if you are subject to abuse or other forms of domestic violence you should do everything necessary to protect yourself and your children – including moving out – and the history of domestic violence will be important in a custody analysis.

Consult with an experienced family law attorney prior to leaving the home.  Your lawyer can evaluate your particular circumstances and give you guidance on how best to proceed to strengthen and advance your overall custody goals.

For more information or to schedule a consultation, contact the office at: 609-601-6600.

Best, Stephanie

 

Power of Attorney vs. Guardianship: An Important Distinction

There are times in our lives when we rely on our parents, become a parent, or need “parental” oversight.  When we are young, our parents protect us, teach us, play with us and help us grow.  When we become a parent, we do these things for our own children.  And when our parents become older, we are often called upon to take a parental role in their lives.  Sometimes our parents ask us for help; other times, we must initiate legal action to allow it.

Parents of disabled children often must continue their parental role, even after their “child” reaches the age of 18.  Many are surprised to learn that they cannot legally conduct their adult disabled child’s affairs without obtaining guardianship.

Many people have heard the term “Power of Attorney”, but few really know what it means.  It sounds so formal, almost regal.  But in reality, it is a simple document that grants authority in another to conduct business and affairs that we would do for ourselves, if we were able.  For instance, a person could suddenly be injured in an accident that leaves them unable to pay their bills or manage their affairs.  The Power of Attorney that that person executed will go into effect and allow their agent (friend, adult child, etc.) to pay bills, have access to bank accounts, manage, buy or sell real estate, or negotiate other business on their behalf.  The key is that the Power of Attorney was executed before the person became ill or incapacitated.

So what happens if a person never executed such a document but becomes injured, or starts showing signs of dementia or Alzheimer’s?  Unfortunately, it is too late for a Power of Attorney; once a person becomes incapacitated, they lack the legal standing to draft a Will, Power of Attorney or other legal document.  A Guardianship action is now the only answer.  In simple terms, a Power of Attorney is voluntary; a Guardianship is involuntary.

We all know someone who was tragically hurt, or whose parent is failing, physically and mentally.  They aren’t taking care of themselves, the bills are not getting paid, or they are putting trust in strangers who are taking advantage of their vulnerable status.  When these things happen, it is time to seek Guardianship.   Similarly, when children with developmental disabilities reach the age of 18, their parents must initiate a guardianship action so that they may  legally make decisions for their adult child.

A Guardianship essentially strips the “incapacitated person” of their freedom and independence; that which our Constitution stands to protect.  As a result, courts take guardianship actions very seriously and will not appoint a guardian for another unless it is clear that the individual is incapacitated to the extent that they are unable to manage their affairs.  A Guardianship requires the testimony or certification of at least two physicians who have examined the individual and opined that the person lacks the ability to care for him or herself or the capacity to understand the consequences of their actions.  The Court will also appoint an attorney to represent the alleged incapacitated person to conduct an independent inquiry into the person’s mental and physical condition, as well as interview and evaluate the person seeking guardianship to ensure there is no mal-intent.  The attorney will report to the court on whether the alleged incapacitated person truly needs a guardian, and whether the proposed guardian will take appropriate care of the incapacitated individual and honor the incapacitated person’s wishes and desires as best as possible.    It is a process that is certainly more expensive than a Power of Attorney, and can take 6-12 weeks, on average, to complete.

The best advice is to prepare a Power of Attorney while you are still mentally and physically healthy.  This will permit your family or friends to care for you and your affairs immediately in the event you become incapacitated.  For parents of disabled children, see a lawyer in advance so you are prepared to establish guardianship when your child turns 18.

For more information or to discuss facts specific to your case, schedule a consultation.

CONSULTATION COUNTDOWN: What You Need To Do, Know and Bring With You To Your Consultation

I meet with all types of potential clients.  There are those who come to the consultation just looking for general information.  There are others who come in with bags and boxes of paperwork – only some of which is helpful to me as a lawyer.  Many people come in and want information about a potential alimony or child support obligation or entitlement.  But without necessary financial information, it is next to impossible for any lawyer to provide an educated answer.

So I created a 28 day countdown of things to do, information to gather and stuff to bring with you to your consultation.

Day 28: Look for last year’s tax return. Make a copy.

Day 27: Find your most recent mortgage statement showing monthly payment and principal balance. Make a copy.

Day 26: Do you or your spouse have a pension, IRA, or 401K? Snag that end of year statement and make a copy.

Day 25: What is your health insurance situation? If you’ll need to find coverage, check for open enrollment periods and get an estimate of cost.

Day 24: Figure out the average of each of your monthly utility bills including water/sewer, electric, gas or oil, cable, telephone (including cell). Make a list.

Day 23: Take note of any credit cards used by you and your spouse. Write down the balances and how much you pay each month.

Day 22: How much do you spend, on average, each month on groceries for the family? Figure it out.

Day 21: If you have children, do you pay for work related child care, private school or pre-school? Write down the cost per month.

Day 20: Call to schedule your consultation so you can get a time that is convenient for you.

Day 19: Make a copy of your driver’s license, & health and auto insurance cards.

Day 18: Do you have life insurance? Write down the company, policy number, coverage and beneficiary. But do not make changes.

Day 17: Think about miscellaneous household costs. Do you pay a landscaper or for snow removal? Figure out the average monthly cost.

Day 16: Do your children take lessons such as music, dance or karate? Figure out the average monthly cost.

Day 15: How much do you spend on restaurants per month? Write it down.

Day 14: Do you or your family belong to a gym or private club? Figure out the average monthly cost for dues or membership fees.

Day 13: Do you or your spouse have regular commuting expenses such as tolls or parking? Calculate the average monthly cost.

Day 12: Do you or your spouse regularly donate to charity? Figure out the average monthly contribution.

Day 11: Pets…. they can be expensive. Do you have family pets? How much do you spend on them per month? This information could be relevant in a divorce.

Day 10: Are you or your spouse owed a significant sum of money from someone? Make note of the circumstances and how much.

Day 9: Have you or your spouse been gifted money from relatives? Make note of the amount and why it was gifted.

Day 8: Have you considered where you will live afer divorce? Identify your goals.

Day 7: Today is a holiday. Take some time to de-stress and enjoy the day.

Day 6: Do either you or your spouse have chronic health issues? Make notes of any conditions and medications.

Day 5: What will you tell nosy family members or friends? Write down one or two sentences to use as a position statement as to why you do not need to discuss it. Your lawyer will help you.

Day 4: What are your initial questions? Write them down so you do not forget to ask.

Day 3: Take a look at the pile of information and notes you have accumulated. Organize it as best you can.

Day 2: Review the entire countdown on my blog. Did you miss anything?

Day 1:  Review and become familiar with the information you collected. I bet you learned something along the way! Tonight, toast to yourself in 2017! Moving forward – one way!

Did you call for your consultation yet?  Call now for an appointment.  609-601-6600.

Best, Stephanie

 

Family Law, Divorce & Guardianships. An experienced and respected attorney you can trust.