Housekeeping Tips

I write after a lengthy absence.  Please excuse me, for I have been quite busy.  I gave birth to my second child in June 2012, so my summer was pretty hectic.  Just before I returned to work from maternity leave, my father passed away.  I am the Executrix of his Will, so I have my hands full with obligations there too.  These two events, however, have reminded me that I need to do a little housekeeping; i.e., revise my Will.

The importance of a Will cannot be ignored.  But it is just as important to revise a Will when changes in life occur.  I have a Will; but it was prepared long before life became busy.  I prepared it when I got  married, but never revised it when my first son was born.  Now here I am, 4 years later and the mother of 2 children, and I still have not changed the Will, nor named a guardian for my children.   Moreover, I doubt anyone knows where my Will is located.  Quite frankly, I am not even sure I know where it is.  Which brings me to my first point...

Assuming you have a Will, make sure your family knows where it is located.  When my father died, my brother and I spent an entire day searching his house in Florida looking for it.  We finally found it - on a shelf in the kitchen between cookbooks.  That was the last place I thought it would be.  Without the document, I had to make decisions regarding his funeral based on what I thought he would want.  Thankfully, my decisions were in line with his wishes.  The lesson here:  Preparing the Will is pointless if no one can find it.   Prepare the Will, tell your family where it is, and make sure they have key information such as where you do banking and where you keep records for mortgages, assets, etc.

My second housekeeping tip:  revise the Will when changes occur.  Important changes like the birth of a child, death of a beneficiary, etc. warrant a trip to the lawyer's office to make that revision.  When you have minor children, you need to name a guardian.  If you and your spouse die, who will care for your children?  You might think the answer is obvious; that your parents or siblings will step in to help.  Of course they will.  But what if your parents are ailing and simply cannot do it?  Or what if your sibling or in-law thinks they can provide a better home than the other sibling or in-law?  If you did not name a guardian in your Will, there will likely be a court battle.  Do you want to look down from heaven and see your family pushing and pulling your children in different directions?  Take a few minutes and think about it.   If you were not around, who would you most trust to care for your children on a full-time basis?  And further, can that person or persons handle the task?  You need to make that decision and write it down in your Will.  After all, the purpose of a Will is to direct the finalities of your life.  The purpose of naming a Guardian is to determine who will care for your most precious asset - your child.  

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.  Have a good week!

Stephanie Pedrick

Equitable Distribution: What It Means for You and Your Spouse

Clients often ask whether their spouse will "get half" of everything in a divorce.  It seems to be the biggest fear; that everything they have worked for, will be "given" to their spouse upon divorce.  It is hard to answer that question; obviously I do not want to scare or upset my client, but the fact of the matter is, New Jersey is an equitable distribution state.  But what exactly does that mean?

Equitable Distribution is a means of ensuring that each spouse will maintain a similar standard of living after the divorce as they did during the marriage.   When couples marry, most believe in the fairy tale:  "'Til death do us part".  But when the fairy tale ends, the reality of what was promised in the vows, (and what the law in New Jersey mandates), can be upsetting and frustrating, or a huge relief - depending in which role you find yourself.

Bank accounts, houses, land, pensions, retirement plans, life insurance, jewelry, cars, antiques, and anything else of value can be subject to equitable distribution.  There are certain exceptions, the most common of which is an item that was acquired prior to the marriage, but generally, any asset acquired during the marriage, or which actively increased in value during the marriage will be put into the "pool" of resources to be divided.   Bank accounts are easy to value... if the balance is $1,000, each spouse will probably receive $500.  Pensions and retirement accounts are more complex and require the use of an accountant with special expertise in evaluating those types of assets and determining the amount to which the other spouse is entitled.   Typically, each spouse would be entitled to half of the determined value.  If the owner or member of the plan started contributing prior to the marriage, those funds would be excluded; it is only the funds that were added to the account during the marriage that are subject to equitable distribution. 

It is not just assets that get divided; marital debt is also subject to equitable distribution.  Mortgages, loans, and credit card debt are all examples of debt that must be allocated.

There are many ways to settle a divorce.  Parties can agree that one spouse will take responsibility for a certain debt, but also have the benefit of a certain asset.  It is only the most contentious of divorces that result in a trial and a true liquidation of assets to divide down the middle.

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.  Check out my professional Facebook page too!  I look forward to working on your behalf.  Have a great week!

Stephanie Pedrick

Guardianship or Power of Attorney: Timing Is Everything.

There are times in our lives when we rely on our parents, become a parent, or need parental oversight.  When we are young, our parents protect us, teach us, play with us and help us grow.  When we become a parent, we do these things for our own children.  And when our parents become older, we are often called upon to take a parental role in their lives.  Sometimes our parents ask us for help; other times, we must initiate legal action to allow it.

Many people have heard the term "Power of Attorney", but few really know what it means.  It sounds so formal, almost regal.  But in reality, it is simply a document that grants authority in another to conduct business and affairs that we would do for ourselves, if we were able.  For instance, a person could be suddenly stricken with a medical condition that leaves them in a hospital, perhaps in too much pain or simply unable to pay their bills, or manage their affairs.  The Power of Attorney that that person executed will go into effect and allow their agent (friend, adult child, etc.) to pay bills, have access to bank accounts, manage, buy or sell real estate, or negotiate other business on their behalf.  The key is that the Power of Attorney was executed before the person became ill or incapacitated. 

So what happens if a person never executed such a document and now they are showing signs of dementia or Alzheimer's?  It is too late for a Power of Attorney; once a person becomes incapacitated, they lack the legal standing to draft a Will, Power of Attorney or other legal document.  A Guardianship action is now the only answer.  In simple terms, a Power of Attorney is voluntary; a Guardianship is involuntary.

We may all know someone whose parent is failing, physically and mentally.  They aren't taking care of themselves, the bills are not getting paid, or they are putting trust in strangers who are taking advantage of their vulnerable status.   When these things happen, it is time to seek Guardianship.   A Guardianship essentially strips the "incapacitated person" of their freedom and independence; that which our Constitution stands to protect.  As a result, courts take guardianship actions very seriously and will not appoint a guardian for another unless it is clear that the individual is incapacitated to the extent that they are unable to manage their affairs.  A Guardianship requires the testimony or certification of at least two physicians who have examined the individual and opined that the person lacks the ability to care for him or herself or the capacity to understand the consequences of their actions.  The Court will also appoint an attorney to represent the alleged incapacitated person to conduct an independent inquiry into the person's mental and physical condition, as well as interview and evaluate the person seeking guardianship to ensure there is no mal-intent.  The attorney will report to the court on whether the alleged incapacitated person truly needs a guardian, and whether the proposed guardian will take appropriate care of the incapacitated individual and honor the incapacitated person's wishes and desires as best as possible.    It is a process that is certainly more expensive than a Power of Attorney, and can take 6-12 weeks, on average, to complete.

When I interview a client, I always inquire whether they have a Will and a Power of Attorney.  There is simply no reason not to have both documents.  If you or someone you know is approaching a point in life when help may be necessary, schedule an appointment with a lawyer.  Preparing a Power of Attorney now will save time and money down the road for yourself and your family. 

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.  I look forward to working on your behalf.

Stephanie Pedrick

Changing a Child's Surname Might Be Easier, Or Harder, Than You Expect

            Have you recently been divorced, and now think you might like to change your child’s last name?  Were you and your child’s other parent never married, but your child’s last name is different than yours?  Maybe you’d like to change it now?   Either way, you need to know the legal standard that our court’s employ.

Since 1995, and the case of Gubernat v. Deremer[1] New Jersey courts have held that when parents who are not raising a child together (such as divorced parents or parents who were never married), do not agree about the child’s name, the court must resolve the dispute under the “best-interest-of-the-child” standard with a strong presumption that the name selected by the “custodial parent” is in the child’s best interest.   Does this mean that the custodial parent can change a 7 year old child’s name simply by choice?  No – it’s never that simple.  The strong presumption in favor of the custodial parent’s choice is not irrefutable.  Evidence that the child has used the other parent’s name for a period of time; or that the child has a level of comfort with a certain name can serve to weaken the custodial parent’s choice.  Our courts will scrupulously examine all factors relevant to the best interest of the child; including the length of time the child used one surname, the identification of the child as a member of a family unit, the potential anxiety or embarrassment a child might experience if their surname is different from the custodial parent and any preference the child might express, if sufficiently mature. 

Recently, one panel of the Appellate Division, distinguished the presumption established by the Gubernat case, and held that the presumption in favor of the custodial parent’s choice does not apply to children born to married parents.  In other words, the choice of the custodial parent of a child born out of wedlock is entitled to greater deference than the choice of the custodial parent who was divorced from the child’s non-custodial parent.  The reason given for the distinction is that a child born “in wedlock” was originally named by a marital partnership with the intent that the designation remain permanent.   Just this week, however, on March 6, 2012, another panel of the Appellate Division declined to adopt such a view, and reiterated the standard of Gubernat, that the custodial parent’s choice is presumed to be in the child’s best interest, regardless of whether the child was born “in” or “out” of wedlock. 

It is interesting to note however, that both recent cases commented that consideration should perhaps be given to the parties’ settlement agreement (if one exists).   For if the parties expressed a position in a written agreement regarding the child’s name, then the standards for enforcement of an agreement, or modification because of changed circumstances, might apply.  These comments suggest that our courts will continue to address this issue, and perhaps further define the standard to employ in name change situations.

For more information, I can be reached at 609-601-6612 or spedrick@youngbloodlegal.com.

Stephanie Pedrick

---

[1] 140 N.J. 120 (1995)

Family Law Spring Training

Family Law issues are rife with emotional highs and lows.  Whether you are in an unsatisfying relationship, or have a child whose other parent has fallen behind in child support payments, it is usually always stressful.  Changes in your everyday routine can exacerbate that stress.  The holiday season is an obvious example of when our routines are shaken up.  But even seemingly innocuous changes in life, like the change in seasons, can cause increased tension.  Here are Five Tips to help you get through it, and prepare for action.

1.               First of all, make a resolution.  We typically think of New Year’s Resolutions, but the Spring season is a time of new beginnings.  We observe it every year when we begin to hear birds chirping in the morning, or when the crocuses start popping through the soil.   Spring is the start of new sports; our kids put away their football cleats and dig out the lacrosse sticks, and our favorite baseball team starts "spring  training".   So start your own "spring training"; set a goal to get out of a bad relationship or enforce that child support order.  It can be a very empowering decision.  It can be your New Beginning.  

2.               Start gathering documents.  Your attorney will need bank statements, your last tax return, 3 paystubs from each party and information on utility bills, mortgage or rent payments.

3.               Talk it out.  Talk to a friend, clergy member or counselor.   Just being able to vent your feelings can help you focus on what you really want.  You should have some goals in mind when you see an attorney.  For example, do you want primary physical custody of your children?  Do you need more child support because you lost a job?  You need to be able to calmly express yourself to your lawyer.

4.               Start looking for an attorney.  Ask friends for recommendations, but even then you should meet with the lawyer for a consultation.  You need to feel comfortable with your lawyer.  The essence of a lawyer/client relationship is trust.  If you feel comfortable with and trust your lawyer, you will more than likely be happy with the end results.

5.               Last but not least, take care of yourself.  Eat a balanced diet and get some fresh air - it is springtime afterall - and when your body is physically healthy, you will be better able to manage the stress associated with your issues.  Don’t forget to take care of your spirit - get a manicure or have dinner with a friend; play a pick-up game with your buddies or grab a beer after work.  It’s okay to laugh and have fun, even when you’re going through a difficult time.

Take some silent pleasure when you hear those birds in the morning.  Its nature's message to you -- start spring training and be responsible for your own "New Beginning".

For more information, please contact me at 609-601-6612 or spedrick@youngbloodlegal.com