Legal Direction For You

Divorce, what a complicated subject. Often relationships that once seemed so secure and happy end with this result. Although it is more common place today, divorce can still be a scary and expensive prospect to those who are going through it. There are those relationships that end as uncomplicated as they started and others whose mess knows no bounds. It can be overwhelming and often even crushing to all parties involved in a divorce, therefore I find that it is even more important to understand the basic elements of a divorce and what you need to do. Here is some information that I have compiled for your review and there is a section afterwards for your questions and or thoughts on this issue. I do this as a part of my business and would be happy to give you whatever guidance and help I can in this area. Feel free to ask questions or make comments below and if more is needed you can schedule an appointment with me on my main website listed in my links section.

Common Steps In the Divorce Process:

Are you considering divorce and wondering what the process will be like? Your state's divorce laws will determine what you go through once you have made the decision. Below is a broad outline describing the sequence of events for most divorce cases. Keep in mind that every divorce is different so, along with these steps you will have issues come up that pertain to your individual divorce.

Legal Separation:
Some states do not have laws that allow a couple to participate in a legal separation. In those states, you are married until a court decides otherwise. If your state laws allow couples to separate legally when one or the other spouse leaves the family residence your attorney will petition the courts for a separation agreement. This agreement protects the interests of both spouses and any children of the marriage by making sure that both parties meet their legal responsibilities to each other. If your state doesn't have laws that allow a legal separation your next step would be to contact your attorney or file a petition with the courts yourself requesting a hearing so that a temporary separation agreement can be ordered. This is done after filing a petition for divorce in states with no legal separation laws on the books.

Original Petition For Divorce:
To begin the divorce process a document called "Original Petition for Divorce" is filed with your local court clerk. In some states, this is referred to as a "Letter of Complaint." Both documents are requests that the court grant a divorce and list any relief the party filing for divorce feels they are due. The original petition will identify the parties to the divorce and any children they may have. The party filing for divorce will have to state a reason as part of the petition or letter. In most states, this will be "irreconcilable differences" or "incompatibility." The person filing for the divorce will be named the "petitioner" by the courts while the other party to the divorce is referred to as the "respondent" or, in some states, the "defendant." The original petition or letter of complaint is then served on the respondent. Normally a member of the local sheriffs office serves the petition. Once the respondent has been served he/she has thirty days to hire an attorney and respond to the original petition for divorce. It is at this time that either party may ask for restraining orders, protective orders or temporary orders pertaining to child support and alimony.

Temporary Divorce Orders:
The court can issue temporary orders that outline specific actions that must take place immediately and last until the final divorce hearing. Examples of things covered in temporary orders are child support, spousal support and child custody. These orders are legally binding and not following them will mean finding yourself in contempt of court. If found in contempt, you can be jailed or fined according to the discretion of the judge.

Divorce Discovery:
"Discovery" is a legal mechanism designed for gathering information about either party to the divorce.
There are five steps to the discovery process. Although states and their laws may vary during the discovery process, the five steps below are common and will probably become a part of your divorce.
Disclosures: Every state has rules of civil procedure and the way disclosure is conducted is determined by those rules. Attorneys for both parties request certain items from the other party. The list of items is sent to the other side and they must respond within thirty days.
Interrogatories: This is a list of questions that the attorneys send to the opposing side. Most states set limits on how many questions and the response time is thirty days.
Admissions of Fact: This is a written list of facts that is directed at the other party to the divorce. The party receiving the list of facts is asked to either admit to or deny each listed fact.
Request for Production: This is a legal mechanism used to obtain documents such as bank statements, statements of income or any documents the attorney feels will benefit his client. The party receiving a request for production is supposed to respond with the documents within thirty days. This part of the process can become a major obstacle to a swift divorce. It seems to be human nature to not want to turn over personal information and many times delay tactics are used at this part of the process.
Depositions: During depositions attorneys will take sworn testimony from the opposing party and any witnesses involved. Anything said during a deposition can be used in court should an agreement not be met and you end up in divorce court.

Divorce Mediation:
If you are lucky, this is as far as you will get in the process. During mediation, both parties to the divorce and their attorneys meat to discuss any conflicts they may have and try to come to an agreement that meets the needs of both. The "mediator" is a court appointed attorney, normally and is there to negotiate a settlement between the parties.

Divorce Court:
If mediation didn't work and there are unresolved issues a trial date will be set. During the trial, both parties have the chance to argue their case before a judge. It's imperative that you discuss, with your attorney, proper courtroom behavior so you can make a good impression on the judge. The judge will then examine all the evidence and make a decision based on what he feels would be a proper divorce settlement and outcome.

After Divorce Court:
Once a judge has made a decision the parties to the divorce will sign the final decree of divorce. The final decree states how any marital property will be divided, any orders pertaining to custody of the children, child support amounts and any spousal maintenance that is ordered and any other issues pertinent to the dissolution of the marriage.

Appealling a Divorce Court Order:
If you feel that the courts orders are unfair you may then file a motion to appeal the order and request a new hearing. This motion is filed with the same judge that put in place the orders and not many judges are going to set aside their own orders. You should not be surprised when the courts deny your motion. When the court denies your motion, you file an appeal with the state appellate court.
Marriages of short duration where there are no children or marital assets to split will see their way through the process rather quickly. If you have children and have accumulated assets during your marriage you should not be surprised when the divorce seems to turn into a long, drawn out and at times, frustrating process. Be patient because the Family Court system is hard at work trying to protect the interest of all parties involved in a divorce action.

Drafting a will can often be a confusing and complicated undertaking to those who are unsure how to proceed. While some wills have to be more complex and detailed than others, all wills have the same basic structure and must include the same basic content to be considered valid in a court of law. I have compiled some of the basic information you will need to successfully draft a will in all its parts, I would still reccommend, however, that you have a legal professional look it over. I do this as a part of my business and would be happy to give you whatever guidance and help I can in this area. Feel free to ask questions or make comments below and if more is needed you can schedule an appointment with me on my main website listed in my links section.

1. Decide what property to include in your will.
To get started, list your significant assets. Then decide which items should (or must) be left by other methods, outside your will. Keep in mind that if you're married, each spouse makes a separate will. You can leave only your share of assets you own jointly with your spouse.

2. Decide who will inherit your property.
For most people, it isn't hard to decide who gets what. (But if you are considering leaving your spouse or children out of your will, see Inheritance Rights.) After you make your first choices, don't forget to choose alternate (contingent) beneficiaries, too, in case your first choices don't survive you.

3. Choose an executor to handle your estate.
Every will must name someone to serve as executor, to carry out the terms of the will. Be sure that the person you have in mind is willing to serve -- the job shouldn't come as a surprise.

4. Choose a guardian for your children.
If your children are under 18, decide who you want to raise them in the very unlikely event that you and their other parent can't.

5. Choose someone to manage children's property.
If you leave property to children or young adults, you should choose an adult to manage whatever they inherit. To give that person authority over the child's inheritance, you can make him or her a property guardian, a property custodian under a law called the UTMA, or a trustee.

6. Make your will.
If you've made the above decisions ahead of time, you can easily make your will in less than an hour, just type or write it out legibly.

7. Sign your will in front of witnesses.
After making your will, you'll need to sign it in the presence of at least two witnesses. If you're using a document called a "self-proving affidavit" with your will (to make things simpler when the will goes through probate court after your death), your signature must be notarized as well.

8. Store your will safely.
Tell your executor where your will is and how to get access to it when the time comes.

What a Will Won't Do
A will isn't the place to handle certain kinds of property or issues. Wills are wonderful, simple, inexpensive ways to address many people's estate planning needs, but they can't do it all. Here are some things you shouldn't expect to accomplish in your will.

Leave Certain Kinds of PropertyYou can't use your will to leave:

Property you hold in joint tenancy with someone else (or in "tenancy by the entirety" or "community property with right of survivorship " with your spouse). At your death, your share will automatically belong to the surviving co-owner. A will provision leaving your share would have no effect unless all co-owners died simultaneously.Property you've transferred to a living trust.Proceeds of a life insurance policy for which you've named a beneficiary.Money in a pension plan, individual retirement account (IRA), 401(k) plan, or other retirement plan for which you've named a beneficiary on forms provided by the account administrator.Stocks or bonds held in beneficiary (transfer-on-death or TOD) form. If you want to change the beneficiary, contact the brokerage company.Money in a payable-on-death bank account. If you want to name a different beneficiary, just fill out a simple form at the bank.Leave Funeral InstructionsWills are typically not read -- or even found -- until days or weeks after a death. That's too late to be of help to the people who must make immediate decisions about the disposition of a body and funeral or memorial services. Instead, make a separate document spelling out your wishes and tell your executor where to find it when the time comes.

Reduce Estate Taxes
If you expect your estate to owe federal estate taxes, you may want to take steps now to reduce the tax liability. A will won't help you avoid taxes. Many kinds of trusts can reduce or postpone the tax bill.

Avoid Probate
Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.

Put Certain Conditions on Gifts
There are also a few legal limitations on what you can do in a will. For example, you cannot leave a gift that is contingent on the marriage, divorce, or change of religion of a recipient. You can, however, try to influence lesser matters. For example, you could leave money "to Jeremy, if and when he goes to college." Making such conditional gifts, however, usually opens a can of worms -- who will enforce the will's conditions, and for how long?

Leave Money for an Illegal Purpose
This one doesn't come up often, but you can't earmark money for something illegal, such as encouraging minors to smoke.

Arrange to Care for a Beneficiary With Special Needs
If you want to provide long-term care for someone, a will isn't the place. Far better to set up a trust that's tailored to the beneficiary's needs. A special needs trust can provide extra income for a loved one with disabilities, without jeopardizing government benefits. Of course, if you have a complicated situation or if you would rather have an expert's advice about your specific situation, you may also want to see a lawyer who's an expert in this field.

Leave Money to Pets
Pets can't own property, so don't try to leave property directly to your pets in your will. Instead, leave your pet to someone who has agreed to provide a good home -- and leave that person some money to help out with pet-related expenses. Some states allow you to set up trusts for animals, but that's probably not necessary if you have confidence in the person you've named to care for your pets after your death.

Now that we have addressed what a will can and cannot do, there are still a few more important aspects surrounding a will that we must review. The most inevitable situation we will run into in our life is our own passing and while a will addresses your estate after death, what if you didn't die? What if you were only physically and mentally incapacitated but alive? Unfortunately many people don't give thought to this until it is too late. Here at Lighthouse Paralegal Service, we are dedicated to not only showing you the importance, but getting you through the process of drafting your Advance Directives with a feeling of security. With that in mind, how does a person properly draft an Advance Directive and what are the important aspects that must be included?

Advance Directives are written instructions regarding your medical care preferences. Your family and doctors will consult your advance directives if you're unable to make your own health care decisions. Having written instructions can help reduce confusion or disagreement.

Advance directives include:

Living will. This written, legal document spells out the types of medical treatments and life-sustaining measures you want and don't want, such as mechanical breathing (respiration and ventilation), tube feeding or resuscitation. In some states, living wills may be called health care declarations or health care directives.Medical or health care power of attorney (POA). The medical POA is a legal document that designates an individual - referred to as your health care agent or proxy - to make medical decisions for you in the event that you're unable to do so. However, it is different from a power of attorney authorizing someone to make financial transactions for you.Do not resuscitate (DNR) order. This is a request to not have cardiopulmonary resuscitation (CPR) if your heart stops or if you stop breathing. Advance directives do not have to include a DNR order, and you don't have to have an advance directive to have a DNR order. Your doctor can put a DNR order in your medical chart.Advance directives are written instructions regarding your medical care preferences. Your family and doctors will consult your advance directives if you're unable to make your own health care decisions. Having written instructions can help reduce confusion or disagreement.

Medical or health care power of attorney (POA). The medical POA is a legal document that designates an individual - referred to as your health care agent or proxy - to make medical decisions for you in the event that you're unable to do so. However, it is different from a power of attorney authorizing someone to make financial transactions for you.

Do not resuscitate (DNR) order. This is a request to not have cardiopulmonary resuscitation (CPR) if your heart stops or if you stop breathing. Advance directives do not have to include a DNR order, and you don't have to have an advance directive to have a DNR order. Your doctor can put a DNR order in your medical chart.