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.

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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.

Choosing a guardian for your children: the Value Majority Test

Who finds it pleasant to think about their children being raised by someone else?  No one.  However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you.  Would your child prefer to have a stranger make that decision?  No.  This choice is yours to make.  Get paper, a pen, and try this approach.

  1. List everyone who is a possibility as guardian, even a remote possibility. This might include friends.  Single people.  People with no kids.  People with grown kids.  People who live far away.
  2. Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you.  This is my partial values list as an example to get you started:  parenting style;  attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.

 Now you should have a list of people who rank as good candidates.  You should choose at least three.  What if you have several people who meet the test and make good candidates, but you wish to shorten your list?  Here are some of my observations.  First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe.  Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples.  Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle.  If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian.  Fourth, choose candidates who are likely to keep your children in touch with your family.

Trying this approach should result in at least a few guardian possibilities.  This issue is difficult to think about, but thinking about it is exactly what needs done.

Contact me at julie@juliemillslaw.com if you want to get started on a will to name your guardians.

7 reasons to review your estate plan now

  1. You have no estate plan!  I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney).  If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones.  This could cause unnecessary and unexpected costs, delays, and loss of privacy.
  2. If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan.  Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
  3. Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive?  Are they still capable of serving?  Do you still want them to serve?
  4. Review your beneficiaries. Review who you listed to inherit from you.  Are they still alive?  Do you still want to bequeath to them, or add additional beneficiaries?  You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
  5. Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.”  What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts?  What happens to money in your etsy or ebay store’s PayPal account?  Do you want your spouse to have access to your Facebook account at your death?  Or your emails?  These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
  6. Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless.  You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust.  You can fund while living, or set it up so that this funding occurs at your death.
  7. Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney.  Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.

If you would like to discuss your estate plan, contact me at julie@juliemillslaw.com.

Happy National “Everything You Think Is Wrong” Day!

March 15th is National #EverythingYouThinkIsWrongDay.  Let’s celebrate by reading some things that many people believe, but are wrong:

  1. “Living together for 6 years means we are married.” No, at least not in Ohio.  Common law marriages in Ohio are recognized only if they occurred prior to October of 1991.
  2. “Contracts must be in writing.” Oral contracts are enforceable in many situations.  Exceptions exist, including most contracts for real property.
  3. “The United States Supreme Court has the final say of all laws in the U.S.” The U.S. Supreme Court is the final decider of federal laws and controversies involving federal law.  State supreme courts have the final say over state law.
  4. “I can’t be arrested for public intoxication if I’m on private property.” You can be standing on your front porch, beer in hand, and if you are creating a disturbance you can be arrested for public intoxication.
  5. “I don’t have a will.” You might not have prepared a will, but every state has a plan for your asses should you die without having prepared your own will.
  6. “I don’t need a will because my spouse will get everything anyway.” Not likely true if you had a child together, or you have children from a previous relationship.
  7. “My donations to a nonprofit are tax deductible.” In order for donations made to a nonprofit to be tax deductible to you, the nonprofit must have tax exempt status from the IRS.  Most commonly this is 501(c)(3) status.
  8. “If I’m arrested I’m entitled to one phone call.” This is partly true.  You have a right to one call to an attorney.  Generally the police allow an arrestee to call family or a friend but it is not a right.
  9. “The First Amendment protects your free speech from everyone.” This is a very common myth.  The First Amendment only protects your right free speech against the government, and even that protection has limitations.  People getting fired from a private employer for what they (employees) say is permissible, despite a hundred Facebook commenters lamenting that this person’s right to free speech has been violated.
  10. “If the house is in just my name, my spouse can’t get it if we divorce.”  Not true, typically.  Things acquired during the marriage are subject to equitable division and distribution.  And, equitable doesn’t mean equal, it means fair according to the judge.

Grandparent Visitation Rights in Ohio

Grandparents have rights to visitation with their grandchildren under certain circumstances. If a child’s parents are unmarried; if the child’s parents start divorce, dissolution, or legal separation proceedings; or if one of the parents has died, a grandparent can ask the court for companionship or visitation rights if the grandparent can show he or she has an interest in the welfare of the child. The child’s parents can object, but ultimately the court will decide on grandparent visitation based on what is in the best interests of the child.
 
Sometimes a grandparent with visitation rights believes these rights are permanent. Grandparents can have their rights terminated if a parent can show a change in circumstances that makes visitation something that is not in the child’s best interest. One example of a grandparent having visitation rights taken away is when their son- or daughter-in-law (parent of the child) remarries and the child’s new stepmother or stepfather adopts the child (stepparent adoption). Under Ohio law, the grandparent becomes a “stranger,” legally, to the child. The grandparent would have no rights to visitation, or anything, with the grandchild. Perhaps he or she could still visit with the grandchild, but this would be at the discretion of the parents.
 
Grandparents’ rights to visitation with their grandchildren in Ohio are not as strong as in other states. There are states that permit visitation for grandparents with a grandchild who has been adopted, but Ohio is not one of them. If you have questions, don’t hesitate to reach out to see if I can help at julie@juliemillslaw.com.

Collaborative Divorce: Best for All

Divorce is one of the most recognized life stressors.  According to the “Holmes and Rahe Stress Scale,” it ranks second only after death of a spouse, and is more stressful than imprisonment or death of a close family member.  These are stressors that can cause illness.

As much as many like to market divorce as “a new beginning,” I think most divorcing couples view it as an end, or at least a very impactful restructuring.  The divorce process does not help ameliorate the fight-centered, winner-and-loser view of divorce.  There is a better method to ending a marriage that is not adversarial: “collaborative divorce.”

With collaborative divorce, both parties sign a collaborative divorce agreement detailing what can be done and how it will be done.  If one party breaches the contract, then the party’s attorneys are prohibited from representing them in court.  There are other incentives to follow the agreed-upon rules.  The goal is *negotiating,* where both parties get their needs met and both parties compromise.

Divorce is a major life stressor for the children involved–watching their parents negotiate and restructure the family without acrimony should be the main motivation to seek a collaborative divorce.

For more information, read https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-282.aspx, or email me at julie@juliemillslaw.com.