Prenups and Millennials

A prenuptial agreement is an agreement that concerns ownership of a marrying couple’s assets should the marriage fail.  According to the American Academy of Matrimonial Lawyers, 51% of attorneys surveyed cited an increase in the numbers of millennials seeking counsel to prepare prenups.  The top three reasons given for getting a prenuptial agreement were 1) protection of separate property, 2) alimony and spousal maintenance, and 3) division of property.

Does this signify that millennials are more “prepared-conscious”?   Maybe.  Millennials are conscious of debt and trying to be free from it.  Saving money appears to be a goal for many in the millennial demographic.

Or, the reason for the increase in millennials pursuing prenuptial agreements might just be that they are marrying later, and have more assets to protect.  When you marry young, you are combining nothing with nothing.  When you marry in your late twenties, and in your thirties, you have likely been working and saving, perhaps you’ve received inherited assets, you have likely furnished an apartment or home.  A prenuptial agreement is the most effective way to safeguard your assets.

To discuss if a prenuptial agreement is for you, contact me at julie@juliemillslaw.com.

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Newly-divorced parents, and the start of school: create a “School Parenting Plan”

Now that the July 4th holiday is over, it signals to me that half the summer is over.  It wasn’t like this when I was in school, where we didn’t return until after Labor Day.  But now, July 4th seems to be summer’s midpoint.  With a new school year approaching, I’d like to offer some tips to newly-divorced readers who have children about to head back to school.

We all remember the anxiety of starting a new school year.  Adding divorce and two households instead of one results in compounded anxiety for children.  Parents must find ways to manage the routines of homework and after-school activities with an ex spouse in order to bring structure to their children’s lives.  To help children ease into a new school year, divorced parents should develop a shared School Parenting Plan.

First, start a plan together that deals exclusively with the school year.  Simply agreeing to develop this plan is the first step, since it shows that you both value your child’s academic performance, and can come to agreement on school-related matters.

Second, determine before school starts how you, as parents, will deal with the school.  Prepare the school and teachers with information about your new situations.  Will both parents attend parent-teacher conferences?  Will you attend all meetings related to your child together?  Will you request separate conferences and meetings?  Who will be dropping off and picking up your children if they don’t ride the bus?  Will stepparents attend meetings and conferences?

Third, develop terms and conditions with school work.  Be as specific as possible.  Will one parent assume responsibility for daily homework?  Will the other parent assume responsibility for larger assignments, research projects, the science fair, etc.?  What does “assuming responsibility” mean—the parent will work with the child, know what the school expects, help the child meet deadlines?  Will one parent be responsible for one child, the other parent responsible for another child?

Fourth, address parental responsibility with after-school activities and sports.  Will one parent be responsible for taking the kids to practices, the other parent to games?  Or one parent with the first four weeks of responsibility, the other parent will be responsible for the last four weeks of a sports season?  Mom is responsible for activities on Mondays, Wednesday and Fridays, while Dad is responsible for Tuesdays, Thursdays and Saturdays?  What about financial considerations—who will be paying for what?

Fifth, sync your routines as much as possible, and keep a shared calendar.  Try to set the same rules around homework, dinner and bedtime so going from the routine at Mom’s house to Dad’s house is more predictable.  A shared calendar, such as Google Calendar, means that everyone has the same expectations and knowledge regarding everyone’s school schedule.

Parents who work together on a shared School Parenting Plan ensure a more stress-free and seamless transition for their kids from summer to the new school year.  Do you want to develop a shared school parenting plan?  Do you have a plan that has worked well?  If you have any questions regarding school parenting plans, please contact me at julie@juliemillslaw.com.

Divorce–special considerations for when a child has special needs

Divorce with a special needs child–the special considerations that need addressed by divorcing parents, their attorneys, and courts could fill a book.  This much-shorter blog post will try to shed light on why this topic requires more careful attention.

Divorce is a difficult and painful process for everyone involved.  Parents must work out arrangements for custody, visitation, and child support.  Standard child support “tables” or calculations, and general “parenting plans” spelling out visitation, guide most divorcing parents in making their decisions.

“Standard” or “general” guidelines, tables and plans are to be assessed carefully, however, when the divorcing parties have a child with special needs.  A typical child support calculation, or standard visitation schedule, might be completely inappropriate for situations where a child has disabilities.  Why?

Visitation often includes alternating weeks, or weekends, where a child goes back and forth between parents’ homes.  For a child on the autism spectrum, for example, such a disruption in routine might be unbearable and ultimately unworkable.  Or, if a child with a disability requires durable medical equipment that cannot be transported, one parent might have to visit their child where the equipment is located—in his or her ex-spouse’s home.  The child’s interests must come first, and in these situations, working out visitation can be tricky.

Child support for a child on varying medicines, therapies and treatment programs that might not be covered by insurance cannot be calculated by standard tables.   Child support payments might need to be made to a special needs trust to avoid disqualifying the child from receiving means-tested benefits (typically, Medicaid).

Spousal support for a parent who gives up his or her career to care for a disabled child—a full-time job—takes on special consideration.  Division of retirement and marital assets must account for the parent who forfeited his or her earnings potential and social security credits to serve as caregiver for a disabled child.

This post mentions only a few of the myriad of issues that are presented with divorcing parents who have a child with a disability.  Parents, their attorneys, and courts need to assess what special needs exist, how to address what is needed, and how to incorporate those needs into visitation, custody, and child support.

If you are considering divorce and have a child with special needs, feel free to contact me with any questions at julie@juliemillslaw.com.

Divorce Basics–A short primer

What is the difference between a divorce and a dissolution of marriage? Divorce and annulment?

Dissolution in Ohio is simply an uncontested, non-adversarial divorce.  With divorce versus annulment, in a divorce the marriage is coming to an end.  In an annulment, the marriage is treated as if it never existed.

What is the difference between a divorce and a separation?

A divorce ends the marriage.  A legal separation takes many legally-enforceable steps you would take with a divorce—division of property, determination of child support, custody of children, division of debts, etc.–without ending the marriage.

What is required to file for divorce in Ohio?

To file for a divorce in Ohio, you need to reside in the state for at least 6 months prior to filing.  You must have lived in the county where you are filing for 90 days.  If you file for dissolution, at least one spouse has to have lived in Ohio for at least 6 months.  If you live in Ohio and your spouse lives in another state, you can still file for divorce in Ohio.

Can same-sex couples get divorced in Ohio?

Yes.  Since the United States Supreme Court’s decision in Obergefell v. Hodges, marriage and divorce rights are granted to same-sex couples.

How are a divorcing couples’ assets and debts split in a divorce?

Ohio splits marital property according to rules of equitable distribution.  “Equitable” might be construed as “fair,” versus an equal division or distribution.  If one spouse has gambled away significant assets, then the court might distribute more assets to the victim spouse, instead of dividing what assets remain in an equal manner.

What is the difference between “marital property” versus “separate” property?

Marital property includes assets acquired during the marriage.  Assets that are not marital property are considered non-marital property, or separate property.  However, some assets acquired during marriage can be considered “separate property” such as gifts and inheritances, property identified as separate property in a prenuptial or post-nuptial agreement, income derived by separate assets, among others.

If you want to discuss separation, dissolution or divorce in Ohio, contact me at julie@juliemillslaw.com.

When should I update my estate plan?

An estate plan consists of a last will and testament, possibly a trust, along with additional documents necessary for situations involving incapacity or death.  Additional documents can include a financial power of attorney, advance directives (living will for end-of-life decision making, and a healthcare power of attorney), and a funeral declaration, among other documents.

You should review your estate plan every five years to see that it still reflects your wishes.  However, if any of the following occur, then you should review your estate plan sooner:

Marriage: if you get married, or particularly if you get re-married, you need to review your estate plan.  If you are married and die without a will, state laws of “intestacy” (dying without a will) might not result in a distribution of your assets as you would want.  Furthermore, divorce and re-marriage do not automatically remove your ex-spouse from existing documents.

Children (birth, adoption or marriage):  the critical reason for reviewing an estate plan after you add a child to the family is to name a guardian who will care for your child should you (and your spouse, if married) die.  This is not a decision that should be left to a judge you do not know.  Another reason is to direct assets to provide for your child if you are gone.

Divorce: many states have laws that treat ex-spouses as having “predeceased” their divorced spouse in certain situations with some estate planning methods.  It is best to not assume that such a law will pertain to your documents. Part of your divorce or dissolution journey should include an estate plan that removes your ex from your documents.

Death of a spouse: if a spouse dies, you want to be certain that you have successors listed in estate planning documents, and you want to update deeds and titles to property.  For example, if you have a financial power of attorney and your spouse is the only person you named to serve as agent, you will need to update this document with the names of others.  If you owned property jointly with your spouse, you will need to remove your spouse’s name if you intend to convey that property (you’ll need to have a new deed prepared to your home).

Change in assets:  when you acquire assets, you should ensure that your estate plan addresses where those assets will go upon your death.  If you have 8 acres that your two children will inherit and plan to divide equally, and then acquire 5 more acres, who will inherit the 5 acres if you do not specify it in your estate plan?

Relocation:  most estate plan documents are valid in other states if you move, as long as the documents were executed properly in the state where you lived when they were prepared.  There are special considerations in some instances, however, when you move.  For example, if you move from a community property state to a common law property state, or vice versa, then you should definitely have your current estate plan reviewed by an attorney in your new state.  Additionally, bond might be required for out of state executors and others, so you might consider choosing in-state people to serve in these fiduciary roles.

Change in status of guardian, trustee or executor:  did the person you named as the guardian of your child die?  Move to Europe?  Become incapacitated?  The same consideration is valid for an executor or trustee.  If yes, consider reviewing your documents to remove them and replace with alternatives.  Perhaps after you named your cousin to serve as the guardian of your three children, she has had four children—would she be able to care for seven children?  After you named your brother to serve as guardian of your child, he started a career where he travels more than he is home—would that be a suitable situation for your child?

Your estate plan reflects your wishes for the way everything will be handled at your death, and designates certain people to carry out those wishes.  Both the plan, and the people designated in the plan, should be current.

Contact me at julie@juliemillslaw.com to discuss reviewing and updating your estate plan.

Divorce: Do you need an attorney?

Do you need an attorney when getting a divorce?

Because I’m an attorney, stating “yes” might make me appear self-serving.  The short answer to whether you need an attorney if you are getting a divorce is “it depends” (the classic attorney answer).   I’ll narrow my answer further: “yes” you should have an attorney unless a few factors apply to your marriage.

Divorce is an overwhelming time.  Whether you initiate the divorce, want the divorce or not, people are generally filled with anxiety and fear over the divorce process, finances and their future, with good reason.  Add to that worrying about children if you have them, and this time is the worst time to be handling your own divorce, or making major life changes and decisions on your own.  For these reasons, I believe that the majority of divorcing people should have a divorce attorney.  If children are involved, having an attorney is critical.

Before discussing why you should have a divorce attorney, I want to discuss situations when you might not need one.  After all, many people have gone through a divorce without an attorney.  These factors might make representing yourself more of an option:

  • There are no children of the marriage;
  • There is no real estate and few assets from the marriage; and
  • Your marriage was short (5 years or less).

Negate all of the listed factors above, if:

  • There are children of the marriage;
  • There is real estate, significant assets including retirement plans and pensions;
  • Your spouse has retained counsel; and
  • Your divorce is contested.

There are so many reasons you should have an attorney that are often overlooked.  One overlooked reason is taxes.  Taking the income of one household and splitting it in two has many tax implications and can be very complicated.  Another reason is identifying assets.  Finding and dividing assets equitably requires the experience of a lawyer, unless you know how to divide a pension via a QDRO.  Custody and child support also require the experience of an attorney.

If you do decide to hire an attorney, bring your last tax return and retirement plan documents to the first meeting.  Bring a list of your assets and liabilities.  Know what services the attorney’s fee covers, as many do not include deed preparation or QDRO preparation.  Have questions prepared.

Divorce is very stressful.  I recommend hiring an attorney unless you are certain, after reading the factors listed, that you do not need one.

If you want to discuss your divorce, please contact me at julie@juliemillslaw.com.

All I want is a simple will.

Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many.  In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required.  Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.

“All we want are simple wills.”  This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids.  That does sound simple:  Mike and Carol Brady’s will would leave everything to each other then to their kids.  What could go wrong?

A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will.  First, name your executor.  Second, name “guardians for young children.”  Third, describe how assets will be divided and distributed.  Fourth, sign in front of two witnesses, then have them sign.  This is great too—again, what could go wrong?  This does sound easy.  Who needs an attorney!

Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally).  The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted.  In most states, stepchildren do not inherit (unless specifically named).  Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.”  Mike dies, and all of his assets go to Carol.  Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.”  At Carol’s death, she had inherited all of Mike’s assets from when he died.  Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy.  Those are her children.  Greg, Peter and Bobby are her stepchildren.  What do the boys get?  Nothing under this standard, simple will!

Now let’s examine the do-it-yourself article.  Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that.  However, “Name guardians for young children.”  I name my brother John Doe and his wife Jane as guardians because they know and love my kids.  What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians.  What if my brother John is killed in a car accident—does my sister-in-law keep my kids?  She would if both are named.  Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?

The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.”  That appears easy to do—divided evenly among my 3 kids.  I see that phrase often in wills, “to my children equally.”  Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate.  But what if Kid 3 died before Dad?  An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).

Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”).  Simple wills are not that simple in many instances.