• September 26, 2016

Spotlight On Family Law: Bill Of Rights For Children Of Divorce

A great article from several months ago by Julie Ross and Judy Corcoran deserves a repost here with proper credit.  They are marriage and family therapists who developed a Bill of Rights of Children of Divorce.  These are very basic tenets that any divorcing parent should follow and something I urge all of my clients – male and female – to bear in mind as they go through the process of dissolving their marriage.

Key points are that children have the absolute right to remain neutral in any post-separation hostility between their parents.  This is especially tough, possibly surprisingly, when the children are a little bit older (11-15 in particular).  By the time they are Tweens kids are grown up enough to have an idea of justice – knowing what’s right and wrong.  It’s part of their mental and emotional development.  Even though they are developing this sense of justice, they only have limited information about what went wrong in their parents’ marriage.  This leads them to take strong positions, often directed at one parent, usually the parent who “left” and can create a divide that can sometimes last for years.  Too often, because both parents are hurting (and I have seen divorces with all stages of emotional nastiness but have never seen one where the parties were not hurting about ending their relationship), the parent with the child “siding” with them will feel some gratification for the support rather than viewing support for them in the same vein as if the support had been “for” the other parent.  Namely, a child choosing sides is a child damaged by the divorce process.

Tweens are the ones generally at the age where choosing a side is an option.  By the time the get deep into their teens, they often could care less except and until the divorce starts impacting their social lives with their friends, younger than the Tween age range, they are often still innocent enough to love both parents unconditionally and without reproach.  Many times I have seen clients bring their Tweens with them to my office because the child is genuinely interested in showing support for one parent or the other and they want to meet the lawyer who is going to help their parent.  I try very hard to discourage this type of behavior because I think it is not healthy for anyone in the situation.

I make it a rule in my divorce practice never to help a parent evade child support obligations – I do this for a reason, I believe that children should never be collateral damage in a divorce and part of my job is to insulate them from bearing the cost of their parents’ difficulties.  By the same token, I let parents know that I will fight aggressively to get them more time with their children – again because I believe it is every child’s right to spend as much time as possible with both parents.   Since child support obligations are based in part on the income differential between parents and the timeshare between parents, fighting for more timeshare is one way of reducing support obligations, but it is not the main goal.  The main goal is to ensure that children spend time as equally as possible with both parents.

Believe it or not, the greatest animosity in most divorces is not the financial part of things.  Virtually everyone who walks in my door knows that in California, community property assets are divided in half and most people have a pretty good idea what their community property assets are before they walk in the door.  Division of assets is not usually that contentious (don’t get me wrong, it’s not a walk in the park either).   The issue from which most other issues arises has to do with the timeshare of each parent with the children.  If we are absolutely honest, the standard 20% timeshare is really not enough for a parent or child to feel like they are living with the noncustodial parent.  It feels like “visiting.”  The visiting parent gets more and more distant from the child’s life the longer the 20% timeshare goes.  As this happens, the child is likely to develop allegiances to the other 80% parent, pushing the 20% even further away.  As allegiances form, the 20% parent feels like an outsider from their own children and possibly as though their ex-spouse is poisoning the children against them.  And you can imagine the downward spiral from there.

In my opinion, most timeshares should try to get to 30-40% assuming a safe living environment in both homes and reasonably adequate means of getting children to and from school.  With that level of timeshare, both parents can feel like they have lots of time with their children and children can genuinely feel like they have a home in both homes.  This ultimately reduces the conflict in divorce case – it’s one thing to break up with your spouse and another thing to lose your home, your spouse, half your assets and your children at the same time.

Of course, lawyers and judges work off “standard plans” and other shorthand ways of resolving legal cases, so in many instances you will end up with the 80-20 split if you cannot come to an agreement with your ex-spouse.  Engaging a lawyer who can work with you and your ex-spouse and ex-spouse’s attorney is a great way of reducing conflict and ultimately saving you not only heartache but also, in the long run, money.  If you are already in the position of having 20% and you want more time, it is really important that you work hard to follow all of the orders in your case, work on your home life, ensure there is a great place for your child to sleep and spend all the time you can with your child.  You or your child will then be in a better position to ask for more time together and you avoid the problem of non-neutrality in children of divorce.

Please give us a call to discuss your case.

  • September 26, 2016

Spotlight On Family Law: Legal Victories And Moral Victories

First Steps

Your soon-to-be-ex is a no good, cheating, lying jerk!  But for all of the nonsense he/she has been pulling for the past twelve years, your marriage would be intact and harmonious.  Now everyone involved is suffering and you don’t just want to get divorced, you want to make them pay.  You want the entire community to know what a jerk they have been and it would make you feel especially good to have the judge dress them down right in front of God and everyone.  You want justice.  In particular, you want the kind of moral justice that demonstrates that you have been in the right and they have been in the wrong.

Every client who walks into my office has a story to tell.  The majority of these stories describe how the marriage broke down, usually littered with broken marriage vows and reasons why the marriage became unworkable.  Many clients hold to the idea that their spouse should be punished for reprehensible behavior – and they often make well-taken points regarding the moral failings of their spouse.

You want to hire a lawyer who is just as outraged as you are – who is dedicated to knocking this jerk out cold for all their bad behavior.  And we do that – but we are also stone cold strategists who do not let ourselves be overwhelmed by the emotional details of particular cases.  I am constantly strategizing your case through short-game, mid-game and long-game approaches.  We are cagey; we think through various approaches, taking victory when it is right in front of us and sidestepping and being patient when the circumstances call for it.  All in all, our goal is to get you what you want.

One of my jobs as an attorney is to help my clients distinguish between moral and legal victories.  Although, at least on its face, California has done away with moral victories –we set most support based on rigid calculations and the majority of child custody and visitation provisions follow general principles even if they are not structured in the same rigid manner.  We can often use facts that sound like the moral failings that my client would like to share about their spouse, but we do so in the context of factual evidence that tends toward leading us to a place we want to be.

Gone are the Days of the Contested Divorce

California did away with contested divorce actions back in 1969.  In the old days, a party would claim that the other party breached the marital contract in order to push up support or to take advantage in the division assets.

There were several important reasons for this: first, to say that people stretched the truth in these actions is an understatement.  The truth is that parties had to allege a violation of the marital compact or continue to live in “marital hell.”  In order to avoid getting nailed with increased support and/or losing out in the division of assets, rather than provide defenses, would essentially claim “recrimination” –or “you did it too.”  This lead to nasty legal battles over essentially who was at fault for the failure of the marriage and long examinations of witnesses and parties about the intimate details of the sex lives and the rest.

Gone from the divorce courts are the types of moral victories that used to be sought in divorce cases.  Now, all it takes is for one party to claim “irreconcilable differences” – which the Court accepts as true – and the parties can proceed to divorce, even if one party makes clear that they disagree.

Legal Victories and Moral Victories

For example, the wife might have been gone five nights a week at her boyfriend’s house during the marriage.  That is a great moral reason for getting divorced, indicating “irreconcilable differences,” all that is needed for a divorce in California.  However, generally speaking, this information is going to prove that the marriage broke down, something that does not need to be proven in California.  What we can use such testimony for is to show that the father, in this case, has been home each night with the children and is thus their primary caregiver.  We use that type of information not to punish the wife for stepping out on the marriage, but to award custody and the lion’s share of custodial timeshare with the children to the father.  Again, the Judge should not (not always, but most of the time will not) consider that the wife was no longer honoring the marriage contract but rather that the wife was not home to take care of the children.

The legal victory is that dad has more custodial time with the kids and thus either a reduced child support payment or a larger child support payment from the wife.  Note, however, that the moral victory the client might be seeking is not front and center.

Using Your Testimony to Get You What You Want

I am often asked to bring out certain types of testimony that is only potentially or tangentially relevant – drugs, alcoholism, previous criminal history, adultery, pornography and other addictions, new boyfriends/girlfriends, immigration status (this is a big one in Santa Maria and the biggest no go since the Court has ruled that undocumented immigrant status is not a “bad act” for dissolution purposes).  I work very diligently to help my clients tell coherent story so that they are heard by the Court, but I am also very aware of the limits of relevance of particular evidence on the one hand and the possibility of doing damage to our case on the other.

The key is to make a presentation of evidence that gets the client what she wants.  So, where a client wants to ensure that she has the bulk of the parenting time and a support payment to match, we will work very hard to show that she is the primary caregiver to the children and that the father works a second job or that the father has a place to move (i.e., with the girlfriend).  What we generally will not do is try to show that the father has taken a new girlfriend, at least not to punish him for it, unless it is relevant to the matter at hand, i.e., custody and support.

Strategy Wins Cases from the Beginning to the End

While my clients are often seeking moral victories, I work with them to understand that the only true victories they are going to get are legal victories – and while these may not seem like moral victories (i.e., the judge may not reproach the bad acting spouse for their behavior), they are the most powerful victories.  By seizing the advantage in early hearings, the party then keeps that advantage throughout much of the matter.

As I have said elsewhere, if you have limited resources, hire a lawyer right at the beginning of your case so that you can seize any legal advantage you can get.  After that, you can spend your money more judiciously by hiring experts and presenting testimony.

My firm strategizes every case from the beginning to the end.  We work  through small trade-offs at the beginning of a matter that  create a greater likelihood that, as the matter plays out to its conclusion, my clients are in the best position to take the things that they want.  Now, this often does not turn into the type of moral victory that they set out to achieve at the outset of the case, but legal victories taste much sweeter than moral victories, and they last much longer too.

  • September 26, 2016

Spotlight On Family Law: Child Support Calculations

Calculating child support is contingent on two major factors: timeshare and income differential between the parties.  In basic terms, if you earn significantly more than your ex-spouse you will likely make a child support payment even if you have the children the majority of the time.  California public policy is that the children’s love should not be bought by the parent with the greater income.  Therefore, the law requires a child support payment equalizer that brings the parents’ income closer together.  However, California also recognizes that raising children costs money and therefore offsets income differential based on the timeshare or percentage time the child is with each parent.

Lawyers and judges use the Dissomaster program to interweave a variety of offsets – including mandatory retirement contributions, health insurance premiums and spousal or child support paid in previous relationships to calculate the support figure.  Contrary to what you might think, new spouse income rarely factors into the equation.  In theory, new spouse income can actually only help reduce your child support payments – if for example your new spouse is a high earner, she will increase your marginal tax rate, thus reducing hte amount of income you receive from your employment.

Child support is a major issue in many divorces – see my article on No Fault Child Custody – and I often tell clients that there is little way to decrease child support without spending more time with their children.  I am firm believer that where both parents are healthy, children should have regular and ongoing time with both parents and that such time should not feel like “visits” but rather like they are home when they are with either parent.  While increasing time share has the benefit for one parent of reducing their support payment, my philosophy behind this approach has everything to do with the children.  Children who see both parents regularly tend to be better adjusted and healthier themselves – in fact, the new research points to regular time with both mom and dad as being the greatest factor to overcoming the difficulties children face after a divorce.  All that said, the reduction in child support payments for the parent increasing their timeshare usually simply leads to more expenditures on the children by that parent (i.e., instead of payment going to the other parent to buy necessities for the children, the support paying parent simply buys them himself).

Thus, increasing timeshare should be a major goal of parents seeking to spend more time with their children rather than parents simply seeking to reduce support obligations.  The judges are very smart and they see through the latter approach quite easily.  I often recommend to support paying parents who really do desire more time with their children that they pay a little bit more than the guideline support level to keep them from “counting hours” and allow for a more free flow of timeshare with the other parent.

Good, healthy parents want to spend time with their children and their children deserve the opportunity to know them and to spend time with them.  The courts tend to lean toward some standardization – say a 20% timeshare – but this can be overcome through demonstrating a healthy and loving home environment that the children want to come to.  I work very hard with my clients and opposing parties/counsel to get agreements made on timeshare and support that work for both parties and ultimately benefit the children who not only get to spend great time with both parents but have the advantage of parents who, though not married, choose to be good co-parents of their children.

  • September 26, 2016

Text Message Anonymizers – Courtroom Evidence

In a recent and ongoing matter, I have come up against something I did not know even existed, the presence of text message anonymizers that apparently allow a user to send a text message to a phone with a fake phone number attached – in my matter, the phone messages were purported to have come from a new spouse to one of the children and then from that child to the new spouse (with inappropriate messages ensuing).

The family court in particular, but the civil and criminal courts as well, are going to have to examine this as a potential roadblock to the admission of text messages as evidence in the courtroom. In my practice, I have watched as lawyers attempt to deal with the submission of text messages as evidence. There has been some evolution from the need to actually submit the phone as evidence in the matter being heard – to demonstrate that the messages have been received on the phone – to taking screen shots of the messages on the phone. Working with the mobile carriers to subpoena text messages has neither been easy nor cheap, so lawyers in relatively lower budget dissolution cases have been trying to find workarounds that allow their clients to keep their phones.

In general, text messaging has been a very effective tool to reduce conflict between parties in dissolution actions. The parties know, and some judges will actually caution them at the outset of a case, that their phones may be plugged in to the overhead projector and text messages displayed for the entire courtroom to read, the theory being that if the message is on the phone, it must have been sent/received by the numbers displayed on the phone.

A text anonymizing program such as “text r us” or “text anonymizer”, both websites, allows a party to send fake messages. When conducting research for this blog post, I tried to register and send test messages to my own phone using the fake number 805-555-5555. The sites both claimed they were “down due to abuse.” Hopefully, the site owners are rethinking the way that messages are sent and received given the great potential for identity theft and other criminal actions.

In my ongoing matter, an entire series of messages – pages and pages worth – was submitted to the court as evidence attached to an affidavit from one of the parties that claimed the other party was using the anonymizing service. If admissible, the evidence is pretty inflammatory in both directions.

What should the court do? Will simple affidavits to the effect of “I did not use a text anonymizer” be enough?

I don’t think so. If text messages, like emails, can be hacked or faked, the court is going to have to take a long hard look at the chain of custody of evidence and return to looking at such evidence with suspicion, requiring a higher burden of proof regarding that evidence. The evidentiary standards in the family court have already been drastically reduced in an effort to get evidence before the court with the minimal amount of cost to the parties. However, the ability to cheaply (free) to fake or hack emails and text messages creates a real burden on the lawyers and the parties and creates an opportunity to fool the court.

My understanding is that the anonymizer websites will allow parties to track IP numbers to show not only that emails and text messages were fake but who faked them. But how do we provide such evidence? If the bar is going to need to retain tech experts to come to testify to the court about how anonymizers work and the IP addresses of the senders, the cost of getting text evidence into the court is going to drastically increase. On the other hand, I think it is important that we acknowledge the degree to which text messaging and the possibility that texts will be displayed in the courtroom, has reduced conflict in dissolution actions.

My suggestion is that, for the time being, court treat all text message and potentially email messages with deep caution given the relative ease for faking the origin of a text or email. I have not yet tried it, but my understanding is that some of the anonymizing programs actually have apps that can be downloaded to smart phones so that when they are sent they look like actual text messages sent from actual phones.

I guess we should have known we were headed in this direction.

  • September 26, 2016

It’s Time To Start Thinking About No Fault Child Custody Proceedings

A great op-ed piece in the New York Times by Ruth Bettleheim on February 18, 2010 tackles a important issue in the family courts: no fault child custody proceedings.  So called “No Fault Divorce” which is now 42 years old in California, paved the way for couples to get divorced based on “irreconcilable differences” and removed the parties’ need to state reasons for divorce.  The idea was to do away with much of the ugliness about actions and extracurricular activities that dog many marriages on the brink of failure.  In many instances, this has been a good thing for those of us who work in the family courts – it reduces our need to tell stories and name-call on behalf of our clients and it also reduces the he-said/she-said battles about infidelities and the like.  With much of that ugliness gone between the parents the leftover issues are usually centered around divvying up whatever is left of the family’s finances and deciding where the children will reside.

Unfortunately, support calculations follow the timeshare.  Because the “best interests of the child” standard is how the Court will determine with which parent the children reside (or at what percentage the children will reside with each parent), this often takes the ugliness that was restricted in the “no fault” divorce proceedings and pushes them into the custody and timeshare proceedings.

Support calculations are based on a rather complex formula that accounts for income differential and timeshare.  So, like it or not, timeshare battles are also typically battles over support payments.  Bettleheim notes this in her article and argues for support payments to be split from timeshare calculations allowing both parents to provide a decent standard of living for their children and then requiring mediation so that the parents can figure out how the child spends time with each parent.

Several thoughtful articles responding to Bettleheim’s piece have suggested that there are problems with this approach because the children’s best interests are constantly changing as they get older.

My suggestion, following Bettleheim, is that we use no fault support calculations based on income differential alone, usually a little more than one party wants to pay and a little less than the other party wants to receive.  Then we let parents work things out with strong mediators trained in the family law.  If they cannot work things out there would be some default custody rules – more like Massachusetts’ Father’s Bill of Rights bill that has been circulating in the legislature (see Boston Globe article here), which would have the judges consider joint parenting plans in making their decisions.  By removing timeshare from support calculations, we would likely get more fairness between the parents as agreed upon by the parents.

I have long advocated to both mothers and fathers that I represent that more equal time is better for everyone (usually – the exceptions are glaring and probably should be mentioned: physical, emotional or sexual abuse, drug abuse, or neglect).  What I argue is not grounds for unequal timeshare that really boils down to: the other parent does it differently than I do (i.e., the routines are not the same; the child won’t sleep in his or her “own bed”; the food is not the same; bedtimes are later, is too strict; is not strict enough, etc. ).

We can continue to proceed down the path we are on, but I think the Courts are a little overwhelmed, good fathers are being lumped in with the old, worn stereotype of the “disengaged” or worse “bad” father, and moms who become single mothers often end up overburdened and frazzled trying to work, do all of the childrearing and have a life at the same time.  But the support factor often keeps everyone fighting over timeshare.

Going forward, the family bar and the California Superior Courts should begin to think about how they can get fathers and mothers on board with a system that recognizes each parent’s talents and the children’s need to know them both at their best and on a daily basis (e.g., to see that dad’s house has the structure and rules that come with daily life and is not just every other weekend Disneyland and that Mom’s house can be fun and playful and full of life when she has time to herself every week).

  • September 26, 2016

Get Your Divorce Worked Out…Outside Of Court

This is a repost of an excellent article by a Chicago divorce attorney with 48 years of practice.  He basically points out that virtually all divorces in which there are any means settle outside of Court, but not before it ends up costing the parties a good chunk of the money they have collectively saved.  In my experience there are three things that cause people to go to Court rather than settle differences outside of Court.

1) They do not understand the law very well:

This should be obvious, but most people neither really understand the legal rights and obligations we owe our spouses when our marriages break up.  They also rarely understand the local judges and the types of decisions they render.  Judges are people too and they have massive caseloads, which is why their decisions can be roughly predicted based on the facts in the case.  This is in no way a criticism – in fact, when the decision processes and outcomes are largely known before you go into Court (and an experienced lawyer can help you understand not only what the law says but what the Courts are likely to do given your facts) they can better settle your case for you with the most minimal cost.  When you go to Court, either against your lawyer’s advice or on your own, you put yourself at the mercy of the Court.  You often don’t really get the chance to tell your story (and if you do, there are so many stories that judges simply don’t have the time to give them anywhere near the amount of deep thought you have given them).  And while your story is novel to you, to the judge it is just another story that sounds like many other stories that have gotten in front of her.

2) They are emotional:

Yes, we are all emotional during a divorce.  It is probably the most emotional time in our lives.  But because of that, in California at least we have so-called “no fault” divorce.  Judges want to keep the emotion out of the courtroom – the issue is not who had an affair or who yelled loudest or whatever, the issue for the judge is how do we divide assets a efficiently as possible as quickly as possible?  Support levels are really the major issue for most divorcing couples where one party may well be writing the other party a check for many years to come (whether for spousal or child support or both).  But the law accounts for this too, trying to keep the emotion out things.  Support levels are generally set by a combination of a State child support calculator (attorneys and Courts use the Dissomaster program) and the local rules – which again, the two lawyers representing you already know and you don’t.

If I have any rule of thumb about support payments it’s this: the support payment will equal more money than the supporting spouse believes he or she can possibly afford to pay and less money than the supported spouse possible believes he or she can live on.

3) The children:

Ok here is the most emotional issue of all for most parties in a divorce and the reason why many both go to Court and stay in Court after they get there.  One party wants more time with the children, believes he or she should have more time with the children and believes that the children should have more time with him or her.  This is a very difficult and very emotional issue.  Both parties feel the “best interests of the child” involve the child spending more time with them.  Tons and tons of research in the area leads both sides to have a lot of ammunition about whether children are better off with good dads or good moms.  Judges are forced to make decisions quickly and in many instances the decisions are not really what either party wants.

Child support is calculated on a mix of differential in income AND timeshare, so timeshare fights over the children also usually entail deep financial consequences.  Mom can’t stay in the home if Dad won’t pay child support at the 80%-20% plan.  Dad can’t afford to get a new home for him and the children without paying support at the 50%-50% level.  What to do?  In my opinion, the best strategies are compromise strategies.  Dad (in this case, but it could be Mom), pays a little more support than he wants but gets more time with the kids (breaking support from timeshare).  Mom gets a little more money than the timeshare would require gives up some time with the kids.  The result is a workable plan – truly workable – where the kids are able to see both parents regularly and both parents have the time to rebuild their lives.

Get an Attorney at the Beginning

You might think this is self-serving, because I am an attorney, but it’s very important that you consider working with an attorney toward a settlement agreement as quickly as possible.  This saves you the preliminary hearings where judges make quick “temporary” decisions that tend to become the rule of the case.  If these early decisions were truly temporary decisions, parents could come together balancing the cost of litigation at $245 an hour or more (for 25-30 hours of attorney time apiece – or roughly one year’s worth of college tuition at the University of California!) against the cost of some additional support.

Do not get me wrong.  There are absolutely times to fight it out in Court, particularly where the children are in real danger.  But you need a good attorney who can help you understand when this time is and when it is not.  Working together with legal counsel, both sides can have a true negotiation in which they understand their rights and obligations toward each other and what the Court is likely to do in their case.  Then they can sit and negotiate fairly and with as limited emotion as possible, getting things worked out the right way, outside of Court.  Litigation should always truly be the last resort, but if it comes after negotiations between the parties and their attorneys, then you will be prepared.

As always, this blog is my own opinion and does not constitute legal advice.  It also does not form an attorney-client relationship.

  • September 26, 2016

Steward Your Parents Assets Like An Emergency Manager: Long-Term Health Care

The number one question I hear in my elder law practice is: how do I help my parents protect their assets from nursing home costs?  Often, the question is coming at a very late stage in the game – usually after the parent is already in the nursing home or assisted living facility.  At this point, it gets a little more complex for a lawyer to help protect the parents’ assets.

Lawyers are a lot like emergency managers – we are usually brought in to a crisis situation with limited tools and resources available and attempt to help guide the best possible outcome under the circumstances.  Emergency managers know that the best way to increase the odds in your favor is to start planning for a crisis before it occurs.  Emergency managers along the Gulf Coast know that a hurricane is coming, just not when.  They make all of the necessary arrangements to resolve 90% of the problems that are easily anticipatable before the crisis occurs and then devote their resources during an event to resolving the unanticipated.  Note that good planning reduces the degree to which an event actually becomes a crisis – it’s only a crisis if you have a number of options and limited resources to deal with consequences.

If you have aging parents, or if you are getting to the time when you are thinking not just about retirement but about what happens when you are less able to care for yourself, it’s a good idea to treat the future as an anticipatable crisis and begin planning for it as early as reasonably possible.  So, because many of us worry (and as a lawyer, I get paid to worry on your behalf) about health care eventualities (note: like the Gulf Coast emergency managers with hurricanes, we know that our parents – and ourselves – will eventually need long term healthcare, just not when), good planning is the key to reducing the degree of crisis we face when it is time for long-term healthcare.

We can learn several keys to protecting the assets you have worked so hard to create from emergency managers.

1)      Emergency Managers assemble their teams.  Work with a lawyer and financial planner as a team to develop avenues to protect and grow your assets with trust vehicles.

2)      Emergency Managers form compacts and agreements before an event.  They work with other counties and states to provide resources while they have them in order to build relationships of trust and confidence for the future.  There is a an understanding that “paying it forward” not only helps build trusting relationships.  Give strategically and early – you can’t take your assets with you but you of course worry about being asset-less as you get older.  Still, it makes more sense to gift assets to your children who will care for you as you age than to use those assets to pay for your nursing home care later.  Giving early is key because Medicare/Medicaid will “look back” 60 months from the date you apply for coverage to see if you gifted any money.  If you have, you can be penalized on receiving coverage for a period of time depending on the size of the gift.

3)      Emergency Managers take stock of their resources before an event.  Emergency managers always take stock of what is available to them, what might be available to them and what probably is not available to them.  This helps them plan for contingencies.  Know your assets.  Take stock of what you have liquid (cash, investments) and the values of assets you currently own (cars, homes, businesses, etc.).  Some assets are not included in the Medicare calculation while others will make it difficult to receive coverage.  Know your income streams and tax liabilities.  In retirement, income can be from pensions, social security, Veterans Administration benefits, dividends, and loan repayment.  Calculate all of this to make sure you know what is going to be coming in.

4)      Emergency Managers use expertise to solve complex problems.  When faced with a complex or novel problem, emergency managers look to experts in a particular field to help them solve them.  Work with an attorney who is experienced in the area of Medicare, to figure out what your liabilities will be and what the law is regarding qualification for Medicare and any other state or Federal benefits to which you might be entitled.  See some of my other blog posts regarding social security and VA benefits.  Working with an attorney with expertise in the field will help you ensure that you are capturing each and every dollar to which you are entitled.

5)      Emergency Managers use their experience to guide their decision-making.  As a side note: attorneys require upfront costs, money you may prefer, in a perfect world, not to spend.  But attorneys worth their salt will save you tens of thousands of dollars above and beyond what they charge you to put things in working order.  Knowing that your assets are protected and that you won’t be burdening your children (or bearing the cost of care for your parents) gives many people restful nights of sleep.  The importance of sleep cannot be overstated – better sleep means you will live healthier and longer.

6)      Emergency Managers do not panic. If you are coming around to planning for long-term care a little late in the game, all is not lost, but it is very important that you do not simply take “self-help” actions like making large gifts, transferring titles, and the like.  As the event comes closer and closer and a crisis looms large, experienced emergency managers do not panic, they take stock of resources and options, they talk to experts, they gather their team and they proceed based on the best information and options available to them.

Thinking and planning strategically is the absolute key to reducing the amount a future event turns into a crisis.  When you know an event is coming, it makes sense to plan for it now to reduce the cost of the event later.  Most of us prefer to delay costs to a future date in hopes of avoiding the inevitable.  This is the greatest cost strategy in terms of both assets/resources and your own stress.  It creates a future scenario when there are limited resources, numerous options and limited time to act.  Good emergency managers know that they can operate in sub-optimal conditions, but they would always prefer to increase their odds by anticipating and resolving threats before they become problems.

  • September 26, 2016

Veterans’ Pension Benefits For The Surviving Spouse

Good news….Veterans! If you served during wartime, even if you were not injured while on active duty, and even if you did not serve overseas or participate in direct combat, you may be eligible to receive a special VA pension benefit.  If you 65 years old or older or are permanently and totally disabled you can claim between $600 to $1,949 per month, based upon your need.  This is also true of a surviving spouse of a wartime veteran, even if the veteran never claimed them.

This pension is usually called a “Death Pension,” or an “Aid and Attendance” pension.  Basically, it is a needs based monthly pension to help the surviving spouse of a veteran manage ongoing monthly expenses.  Paying these expenses with Veterans Administration benefits becomes critical especially if there is a need for long-term care assistance because the spouse can no longer care for himself or herself.

The veteran must have served 90 days of active duty, with at least one day of service, during wartime, which includes:

  • World War II:  December 7, 1941 – December 31, 1946
  • Korean War:  June 27, 1950 – January 31, 1955
  • Vietnam Conflict:  August 5, 1964 – May 7, 1975
  • In-Country Vietnam:  February 28, 1961 – May 7, 1975 if served in the country of Vietnam
  • Persian Gulf War:  August 2, 1990 – Present

The surviving spouse must be able to demonstrate limited financial means in terms of income and assets.  The spouse’s income can be reduced for the purposes of eligibility by out-of-pocket medical expenses, such as in-home care, assisted living expenses, doctors’ fees, prescriptions and insurance premiums, and much more.  This is a key point in elder care planning issues.  As we learned yesterday, the former or surviving spouse can claim either their own social security benefit or half of that of their former spouse (all of it if he is deceased).  If the spouse is also a wartime veteran, there may be both the Aid and Attendance pension and the Social Security benefit that can benefit the spouse.  However, for Medicaid and pension purposes some of this can be calculated after out of pocket medical expenses, given the surviving spouse additional income that can be used for paying non-medical bills.

The surviving spouse will need to demonstrate the need for assistance in daily living activities – usually this is done with a physician or a long-term care facility’s certification.  Almost all debilitating diseases qualify a person directly including: Alzheimer’s, Parkinson’s, Multiple Sclerosis, arthritis, and dementia.

If you think you may qualify for this benefit, get advice immediately from an attorney who can guide you through the VA maze.  Remember that legally, no one can charge you a fee to assist you in filling out your benefits applications. We can help direct you to several local VA accredited attorneys that can help with claims filing and adjudication – our office’s estate planning, trust drafting and elder care practices work directly with VA accredited attorneys to help guide you through the process and ensure that you or your loved ones receive the greatest amount of benefits to which they are entitled.

  • September 26, 2016

Social Security Benefits For Divorced Couples Over 60

Did you know that your parent (likely your mom or grandmother given the earning gap between genders in the 1950s and 1960s) may be receiving less social security than she is entitled to?  Under the social security laws, a divorced spouse can receive social security based on her own income during her working years or choose to receive half of her spouse’s benefit.

The basic social security rule is that a person can collect Social Security benefits based on her own earnings history, or 50% of her spouse or former spouse’s benefit, if it is greater than her own, and 100% if he is deceased.  Many people do not know that in cases of divorced or widowed couples who were married at least ten years, the lower earning spouse can elect to take her own social security or half of her former husband’s (the full amount of his if he is deceased).   The social security benefit claims process does not even require notifying the former spouse and does not affect their benefit at all.

Social security is, for many, a key part of the elder care planning process.  By adding, in some cases, as much as $1,100 if the former spouse is still alive and the social security maximum payment of $2,366 per month if the former spouse is deceased can add major income and relieve some of the stress in the planning process.

You might be eligible for a bigger Social Security benefit based on a former spouse’s earnings record if the marriage lasted at least 10 years, and:

– You are at least 62 years old and unmarried and your former spouse is currently collecting benefits.
– You have been divorced at least two years, your former spouse isn’t collecting benefits and you are both over 62.
– You are over 60 and your former spouse has died.
– Your spouse or former spouse delayed taking Social Security until after his full retirement age.

Please get in touch with me at jude@judeeganlaw.com

or better yet, give us a call, at 805-727-4165 and let us help you with your social security, Medicare, trust and elder care planning needs.

Remember, when it comes to Elder Care, we make housecalls.

  • September 26, 2016

Should You Be Able To Sue Your Spouse’s Mistress?

Here’s an interesting article from Vicki Larson about tort (personal injury) laws in some states that would allow a spouse to sue their spouse’s mistress (or mister) for the emotional harm and suffering the affair has caused them.  To be fair, the (possible) laws are only on the books in seven states while in another 16 states adultery is illegal, but William Corbett, an LSU law professor – and someone I knew professionally while I was a professor at LSU – argued that there were several torts available that might give spurned spouses some redress for the mental suffering they experience when their spouse has an affair.

The point, Corbett argues, is not that such laws would save marriages, per se.  But as he points out, tort law has many policy goals – one of which might be deterrence, or trying to stop a particular type of behavior – but others of which might well be compensation for suffering/injury, revenge, and punishment.  These types of laws – and their application in the adultery context – are an interesting way of seeking to serve these latter goals of the tort system.  Deterrence could be one additional factor.

Let’s be clear…these laws are likely not to apply in California but that does not stop California tort and divorce attorneys from thinking through ways in which they might apply to a particular set of circumstances.  It also helps the spurned spouse cope with the idea that their partner stepped outside of the relationship.  Sometimes it just help to know that others not only have the same feelings, but that in some places they have actually created laws on the books to deal with those feelings.

By the way, breaking the marriage contract – or the promise of a marriage contract (i.e., the promise to marry) – was an action that sounded in contract law in many jurisdictions including our common law cousins in the British Isles until more recently than most would have thought.  And given the huge cost of planing a wedding, often at least by tradition, borne by the bride to be, there are a number of states (OK a few, like Georgia), that will treat a promise to marry contract like any other contract and will consider a case of cold feet or jilted bride to be a breach of contract action and let the bride recover for the costs of the wedding planning.  AND, some states require the jilted bride to give back the wedding ring, but Georgia is among other states that does not consider it a conditional gift and lets the spurned bride keep the ring.

OK, getting back to reality.  In most instances in California, adultery – whether seeking compensation or revenge or punishment – will not create a cause of action in tort law.  Likewise, breaking an engagement will likely not create a cause of action for breach of contract.  But as the laws on the books in 7 states in the first instance and some number of (mostly southern) states in the second instance indicate, if you have been in the situation before, it certainly does seem enticing to make the other person pay for the suffering they have caused.

On the bright side, in the case of the broken engagement, you won’t likely be calling on folks like me to represent you in a divorce action in a few years.  In the case of the adulterous spouse, California has no-fault divorce, meaning you can seek a divorce without having to relive all the gory details of the affair – just quietly file suit, get half of everything and walk away clean with a fresh start.