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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Happy *World Adoption Day*! #WorldAdoptionDay

Not flesh of my flesh, nor bone of my bone, but miraculously still my own.  Never forget for a single minute, you didn’t grow under my heart but in it. — Fleur Conkling Heyliger
Happy “World Adoption Day“!  One of the best steps to take once you adopt a child is to make sure you have an estate plan in place to secure your child’s future.  You need, at least, a last will and testament naming someone to serve as guardian if something happened to you.  A trust that can provide for your child’s education and well-being should be considered.
Under Ohio law, as with most states, children who were adopted are considered legally no different than children who were born to the parent or parents.  They inherit under the statutes of descent and distribution and other laws without regard to being adopted.  Ohio has a special interest in adoption thanks to Wendy’s founder Dave Thomas and his foundation, the Dave Thomas Foundation for Adoption, which finds adoptive families for children waiting in foster homes.
Congratulations to all families touched by adoption.  #worldadoptionday

Probate: What is it?

“Probate” is a court-supervised legal process that happens after someone dies.  The purpose of probate is to make sure that the debts and taxes of the person who died are paid, if possible, and that the deceased’s assets are distributed according to how he or she intended.

  1. Assets: generally, only the assets belonging solely to the person who died are probated. Other assets can often be transferred outside of probate, such as real property held in survivorship (your deed will say “survivorship”), many assets with beneficiary designations such as retirement accounts and life insurance and assets held in a trust.   These are just a few items on a long list.
  2. What starts the probate process? You file the deceased person’s will with your local county probate court.  Then, a timeline begins ticking where you file certain documents within certain timeframes, creditors have a certain deadline by which they need to respond if the deceased had debts, etc.
  3. Do I need an attorney? It depends. If real property (house, land) is involved then hiring an attorney is highly recommended.  If there are few assets, no real property, then perhaps an attorney might not be necessary.  The attorney’s fees are paid by the estate.
  4. How long will the probate process take? It typically takes about nine months but can take longer if certain taxes are owed or if there is a will contest.
  5. What will I have to do as the Executor? File the will with the probate court, gather and safeguard the deceased’s assets, have assets appraised, pay final bills, and distribute assets.

Contact me if you need guidance or representation through the probate process at julie@juliemillslaw.com.

The Classics: Fab Four of Estate Planning Mistakes

  1. “I’m not wealthy so I don’t have an estate: Everyone has an estate.  Estate planning is about what you own, not just what everything is worth.  If you have a car, a house, a bank account, or anything, you have an estate.  Estate planning encompasses how you plan for the distribution of your assets.  Estate planning can be a simple will, or it can be complicated trusts.
  2. Pets. Legally, pets are your personal property.  As with all property, you should plan for what will happen to them if you die.  Obviously this takes on critical importance with pets, since so many pets end up in cages in shelters when their owners become incapacitated or when they die.  Include instructions for the care of your pet in your will, or set up a pet trust.
  3. Designation of agents, naming of executors and trustees. Most clients do not want to “play favorites” with naming their children as agents to powers of attorney, executors in a will, trustees to a trust, so they want to name all three (or however many) children as “co-“ agents.  Under some states’ laws, co-agents can act independently of each other without requiring signatures on everything of, say, all three children.  This can still be a nightmare.  Financial institutions prefer one person for their own liability reasons.  Unless there’s an odd number to break a tie, disagreements can hamper efforts to care for an incapacitated parent or deal with estate matters.  If all three signatures are required, this can be burdensome if all three children live in separate states.  Choose one child—typically the closest geographically and most responsible financially—then list other children as successors.  (Choosing a guardian for your children is crucial also.  See this important post.)
  4. Buried or cremated? Where? Besides arguments over the distribution of belongings, the other main creator of arguments is decisions surrounding burial, cremation, and cemetery location.  Be absolutely clear in your estate plan about what you want.  Do you want buried?  If yes, in what cemetery?  Do you want cremated instead?  If yes, do you want your ashes scattered (and where), or stored in an urn (and with whom)?  Fights occur because of cemetery location first, since extended family want you in your hometown even if you’ve lived away for decades.  Disposition of your body is the second cause of fights, in my experience.  Some people are abhorrent to thinking of a loved one decomposing in a grave, or being reduced to ashes in an oven.  Finally, if you choose cremation and want your ashes scattered, be sure your wishes are legal.  The wish to “throw my ashes up in the air as you’re going down Space Mountain at Disney World” is not legal.

Contact me at julie@juliemillslaw.com to discuss your will or trust, or planning for your pet.

Students with Disabilities: Sect. 504 Plans Can Be Critical

A student who has an Individualized Education Plan (IEP) is a student who has a disability that is impeding the student’s ability to learn.  Not every disability impedes the ability to learn, however.  Examples might include having diabetes, cancer, epilepsy, using a wheelchair or crutches.  If your child has a disability that does not impede her ability to learn (meaning no IEP), what law protects her if she needs an accommodation?  Section 504 of the Rehabilitation Act of 1973.  It is more relevant than ever.

I’ve heard Sect. 504 plans called IDEA-lite (IDEA is federal law controlling IEPs) because it gave “something” to students with disabilities who don’t qualify for IEPs.  A student with a disability, but where his or her ability to learn was not affected, would often get a health or nursing plan.  For example, a child with diabetes would receive shots at certain times.  These plans, unlike IEPs, lacked enforceability.  Parents had to rely on the good will of the school to see that accommodations or services were provided in such a health or nursing plan.

That changed with new ADA regulations (affecting Section 504) and clarification from Congress that students with disabilities are entitled to evaluation to determine if a Sect. 504 plan is necessary.  In fact, the Office for Civil Rights held that a school placing a child on a “health plan” violated the law by not evaluating for a Sect. 504 plan, in violation of the district’s child-find mandate.

Why does it matter that the school must evaluate for a Sect. 504 plan, even if it puts the child on the country’s best individualized health plan?  Accountability.  Procedure.  Remedies.  The best individualized health plan is only beneficial if it is fulfilled, if procedures are adhered to.  If this very-best-health-plan isn’t followed, then there is no enforcement mechanism.  There is no federal (or possibly state) law to turn to for holding the school accountable.  To the contrary, if a Sect. 504 plan is not followed, the school can be held accountable under federal law, and remedies can be sought under federal law.  We want to believe that our child’s school will do what it agrees to do, but we also want a law to invoke if the school doesn’t.

Contact me at julie@juliemillslaw.com with any Sect. 504 or special education questions.

A great IEP article applicable to life

I like this article by Lisa Lightner titled “6 ways to get your IEP school year off to a great start!” because it can translate to other life situations, including legal matters.  Replace “IEP” (Individualized Education Program, a document developed for a school child needing special education) with dispute with a neighbor, or complaint with a company over a product or service to see that it has applications to many situations.  It focuses on mindset, boundaries, rational approach, documentation, and outcome.  Have a positive mindset–give people a reason to want to help you, not do everything they can to avoid you; know your boundaries in the matter and where you draw the line–some things are non-negotiable, so decide what they are and stick to them; act in a rational manner and leave emotions and pettiness at the door; keep thorough written records and documentation–negotiating from evidence in front of you is far more compelling; and keep your focus on the outcome, not the behavior of the people, so if you want a replacement product then focus on that, not how customer service did this or a manager said that.  Here is the article from the special education blog “A Day in Our Shoes” :

  1. Use this as a chance for a fresh start. Regardless of what has happened in the past, resolve to let everyone start with a clean slate. I’m not saying forgive and forget, if you or your child has been horribly wronged, but give them a chance to do the right thing. Chances are that many of your IEP team members are new this year, so be positive. Give everyone the benefit of the doubt, once. Remember, previous team members may have told your new team negative things as well, so dispel it! Be polite, courteous, and make them wonder why anyone would ever say that you are difficult to work with.
  2. Don’t be a drama mama. Not every situation requires that we amp up to 10 right away. Take a deep breath. Evaluate the situation. Is it a non-negotiable or significant safety issue? Stay level headed. I see a lot of words get tossed around in the Facebook group like “That’s a violation!” or “That’s illegal!” Ok, it may be, but there’s no need to be so dramatic all the time. Drama mamas yell “That’s an IEP violation!” while it may be more productive to say to yourself, “Ok, they are not following the IEP, and my child is not receiving XYZ. What can I do to help fix this?” If someone tries to engage you in petty behavior, don’t.
  3. Keep good records. Document, but only for yourself in the beginning. New school years can be hectic. Therapy sessions may be missed. Scheduling snafus will happen. Like I said above, give everyone the benefit of the doubt, once. Keep good records so that if things do not get on track within the first two weeks or so, you have the data.
  4. Review the IEP. Re-familiarize yourself with it, particularly if you haven’t looked at it in a while. What are your non-negotiables? Certain things like life threatening food allergies, insulin, elopers….some things cannot be skipped even one time.  Make notes of what you want to keep a high priority and what needs to be changed.
  5. Be solution oriented. Don’t just approach your team with problems. Have a few solutions ready for them to implement.
  6. Use the IEP process. There are 5 portions of the IEP process that are particularly conducive to parent participation. Use them. Be fully engaged in the entire IEP process, and stay away from doing things that are not helpful or part of the process. Examples would be cc’ing people on emails who really do not need to be involved, ignoring chains of command and stuff like that.
  7. Stay child focused. When evaluating situations, stay away from what staff members did or didn’t do. Stay focused on what your child did or did not receive, that they need, per their IEP.

The IEP process certainly has its flaws, but it is the system that we’ve been given to use. Use it. You can use it to your advantage. Know your rights, read your procedural safeguards. Regardless of the history between you and your team, you can change it around. Focus on what you can control, and what is going to help your child.

Contact me at julie@juliemillslaw.com with any IEP or special education questions.

The Service Dog at Outback Steakhouse

I see more confusion with laws covering service animals than almost anything else.  Most surprising is when attorneys are dispensing incorrect information (this article is replete with incorrect information).  Business owners who conduct their own research (even on reputable sites) or consult with their attorney still get conflicting advice.  So, what is the law on service animals for businesses?

First, businesses contemplating their rights and responsibilities regarding service animals are under the coverage of the Americans with Disabilities Act (ADA).  Businesses are “places of public accommodation” under the ADA and include restaurants, hotels, stores, medical offices, theaters, schools, recreation facilities…  If you are thinking about your friend with an emotional support rabbit in her apartment, or the woman who took her emotional support pig on the airplane with her (true story.  Pig defecated in the aisle and caused passengers to get sick), then this post does not apply to you.  The rabbit in the apartment and the pig on the plane are both under coverage of different federal laws.

Second, the only species that businesses are required by the ADA to accommodate are dogs and miniature horses.  Yes, miniature horses are about the size of large dogs, easily trained, and typically have more than double the working life (24 years) than a dog (10 years).

Third, a service animal should be almost invisible to patrons, completely attune to its handler.  A dog running around, decked out in overly-obvious service dog vests, running up to others, is likely not a service dog.  The yellow lab I saw at O’Hana at Disney World that was covered in service dog vest and patches, and had his front paws up on the table while looking at its person and begging for food—not a trained service dog.  The large Great Dane sitting in a booth at Outback Steakhouse, eating off a plate?  Service dog or not, the restaurant was not required to permit the dog to eat at the table and off of a plate.  In these instances, businesses can ask the handler to remove the animal.

Myths about service dogs:

  • They must be registered or certified. (No.)
  • They must have “papers.” (No.)
  • They must wear identifying vests, or other garb. (No.)
  • They must be formally trained.  (No.)
  • They can be made to wait outside while their handler eats or shops inside. (No.)
  • They cannot go into hospitals. (They can go to into hospitals, including staying in the hospital room, accompanying to medical testing.  They can be refused into “sterile’ areas such as operating rooms and burn units.)
  • They cannot go into food prep areas. (If the public can go there, a service dog can go there.  The kitchen, where customers can’t go?  Then no.  The kitchen, like at Buca di Beppo that has a table for dining that is situated basically in the kitchen?  Then a service dog can go to that table.)
  • They can’t be pit bulls. (They can be, and they are.)
  • They aren’t permitted somewhere if someone has allergies or fear of dogs.  (Not true.  The Department of Justice specifically states that allergies and fear of dogs are not valid reasons to exclude.)

With very, very few exceptions, a service animal can go wherever its handler or the public goes.  A service animal is not a pet and is, under the law, no different than other medical equipment such as a wheelchair or oxygen tank.  Federal law such as the ADA trumps state law and local codes, including health codes, zoning laws, city codes, breed ban legislation, and other state and local laws.

Contact me with any questions at julie@juliemillslaw.com.