At the completion of my document signing meetings for my estate planning clients, many have questions about what to do with their newly-executed documents.  As a result, I spend a good amount of time at the conclusion of these meetings educating my clients about their estate planning “next steps.”   Until recently, I always reminded these clients to provide a copy of their Advance Medical Directive (“AMD”) to the person they named as agent, as well as to their doctor.  I also encouraged them to bring a copy of their AMD with them to any hospitals they checked into and to keep a copy in their carry-on bag when traveling.   All of these reminders were necessary because, until recently, there was no centralized place for my clients to “store” their executed AMDs so that they were reasonably accessible to those who needed to see them.  

In 2008, the Virginia General Assembly passed legislation to create a secure online central registry for advance health care directives.  Over the course of the last four years, however, this registry seemed to be more of an aspiration than a reality. That was until December 7, 2011. 

On December 7, 2011, the Virginia Department of Health launched its Advance Health Care Directive Registry (the “Registry”).  A public-private partnership between the Commonwealth of Virginia, UNIVAL Inc., and Microsoft, the Registry will allow individuals to store their advance medical directives, health care powers of attorney, and organ donation information, among other things, securely online at no cost to the individual.  From what I have read over the last few weeks, those who sign up for the registry will be provided with an identification card with their personal registry information, and will be able to share access to their information with anyone they designate.    

The web address for the Registry is www.virginiaregistry.org.  I intend to try to register my own AMD shortly and will report back in another blog post in the near future.

“I’ve been clean and sober for 8 years, my parents sent me to rehab after I graduated  from high school, college, and law school. Don’t ever give up on your kids.” These were the words spoken to me by the prosecutor in the City of Richmond as we left the court room after my son’s criminal case for possession almost 10 years ago. My son has found his way and remained clean and sober since that time.

I often find myself working with families in the same situation our family found itself in December 2002. One of our babies was in jail with several criminal charges pending. What to do?  How can we best help our child?  It is one of a parent’s worst nightmares.

You have the full range of emotions, anger, fear, shame, guilt, blame. You go back and forth between wanted to kill them or give them a hug. Neither extreme is right or wrong. Both are real.

So how can this happen to a good family who has done everything they can to properly love and raise their children?   If I had those answers I would have my own TV show and be the next Dr. Phil. What I do know without question is that our children will make bad choices. Before you say not mine, realize they already have made bad choices, you just don’t know it. The bad choices vary in degrees but all make them. Secondly know we are in the middle of an epidemic of substance abuse in our country. A recent study from Columbia University found that 60% of incoming college freshman nationally have some form of process addiction. This includes not only the usual suspects of drugs and alcohol, but also eating disorders, gambling and a multitude of other pain and stress management behaviors.

Playing the shame or blame game is not productive. I spend a lot of time in many consults counseling the parents on action steps which are productive and helpful in dealing with the family crisis resulting from the arrest. The approach will vary from a hug to a kick in the butt. Every criminal case, like every child, is different. The families need to strike a balance between only carrots or only sticks. Both are needed in proper amounts. We did not bond our son out of the Richmond City jail until he agreed to go to inpatient rehab. That was a very difficult choice but it was the right one. His experience in the Richmond City jail gave him the right motivation to do the hard work of rehabilitation.

Every parent wants to take full credit for the good things their children do. Taking full blame and having the shame and guilt for the poor choices is the other side of the same coin. Both are wrong. Granted the bundle of joy has your DNA but they also have free will to make choices. As a result parents should not take too much credit, nor likewise take too much blame.

I hope and pray no one reading this will experience the trauma of having your son or daughter make the kind of bad choice that lands them in jail with criminal charges. But if you do know that you are not unique. The majority of my criminal clients from Chesterfield, Henrico, Richmond or Powhatan are young people from good families who have made bad choices.

In recent years, many divorcing couples have chosen mediation as an alternative to litigation. Mediation involves many of the same procedures as litigation, but is geared to produce less hostility and lower the costs for the parties. Many mediators in Virginia have been properly trained for this process; however, some mediators have not. So, be vigilant and ask questions.

            The Virginia State Bar Association can offer referrals to a number of qualified mediators, as well as a list of attorneys who can represent clients in the mediation process and those that specialize in domestic relations matters.

            Many lawyers in our area are also collaboratively trained, another type of alternative dispute resolution to litigation.  I am collaboratively trained, as is Jace M. Padden of our office. The collaborative process allows a couple to end their marriage with dignity and respect and is a far more preferable method to litigation, provided both parties are emotionally capable and committed to the process.  

        Read Jace Padden's blog about the process and advantages of collaborative dispute resolution in more detail. 

The holiday season is perhaps the most difficult time of year for clients going through a divorce (or even those who have previously gone through one), especially if the client has a minor child or children.   Like clockwork, as the major holidays come and go, so too does the barrage of phone calls to my office regarding the holiday visitation schedule.  During this sometimes already stressful time of year, disputes over the holiday visitation schedule are often what put domestic clients over the edge.

So what can a domestic client do to lessen the stress associated with the holiday season (at least from the perspective of the holiday schedule)?  Here are a few tried and true suggestions: 

1.         Negotiate a thorough, detailed schedule at the beginning.  Often, clients are in a rush to negotiate and sign their Settlement Agreement or initial Court Order, and, in so doing, they skim over important details such as what time holiday exchanges are to occur or where holiday exchanges should take place.  Some clients are so eager to complete these documents (or are so convinced that they will maintain a good “working” relationship with their soon-to-be-ex) that they resort to the almost always fatal “the parties shall equally divide the holidays on an annual basis pursuant to a mutually agreeable schedule” (or some variation thereof).   While I have had clients who are able to work out the schedule by themselves year after year, unfortunately, most parents are not able to do this.  As a result, from my perspective, it is almost always advisable for a client to start out with a detailed, default schedule that the parties can then agree to vary from, rather than to agree to a loosey-goosey schedule (or none at all).      

2.         Discuss annual holiday plans early and often and put any deviations in writing.  If you are one of those clients who have the “divide the holidays as the parties mutually agree” language, or if you and the other parent simply wish to deviate from your written schedule, the most important things to do are to start discussing the holiday schedule early and to put any deviations in writing.  By commencing the “negotiations” early, any disagreements are more likely to be worked out before the holiday actually arrives.  Further, putting the outcome of any discussions in writing (email is really great for this!) reduces the likelihood that you’ll drive to Virginia Center Commons at 5:00 p.m. on Christmas Day to exchange little Johnny only to be met by an empty parking lot.

3.         If the schedule truly isn’t working, take legal steps to have it changed.  If, each year, the schedule in your existing Settlement Agreement or Court Order causes screaming and/or crying, it may be time to meet with a domestic attorney to investigate having the schedule modified.  After all, your children (and you) deserve to have happy holidays!    

As a lawyer who practices in both the areas of domestic relations and estate planning, I can’t help but think about the interplay between the two.

Recently, I had a potential client who came into the office wanting to divorce her husband, but not wanting to do without his money.   She relayed to me that, several years before she and her husband had started having marital problems, her husband had executed a Durable General Power of Attorney in favor of her (i.e., her husband had executed a document which gave her the almost unfettered ability to transact on his finances).  This potential client wanted to know if she could go down to the local bank and use the Power of Attorney to withdraw all of her husband’s money (which was held in accounts that did not have her name on them) and what implications, if any, there could  be if she later chose to file for divorce.  

While this woman was not yet a party to a divorce action, her situation gives rise to an important point relating to the intersection between domestic relations and estate planning: you must always trust the person whom you have named as your agent under a Durable General Power of Attorney and, if and when that trust ends, you need to remember to revoke your Power of Attorney.  Revocation may be as simple as tearing up the Power of Attorney.

Nowhere is it more important for a person to revoke his or her Durable General Power of Attorney than in the context of a separation.  Section 26-81 of the Code of Virginia provides that an agent’s authority under a Power of Attorney terminates when an action for divorce or annulment of the agent’s marriage to the principal (i.e., the person who executed the Power of Attorney) is filed or in the parties’ legal separation, but it does not protect two parties before a Settlement Agreement is signed.  As a result, if your family circumstances are bad enough that you are visiting a lawyer to obtain information and guidance about a separation or divorce, you  may want to strongly consider revoking your Power of Attorney as soon as possible to avoid any further difficulties.

     Child custody is the most difficult issue in a divorce. A variety of combinations exist to protect the best interests of the child. If the mother or father cannot agree on a custody arrangement, a judge will decide what is in the child’s best interest. In these cases, absent an appeal to a higher court, the parties must abide by the judge’s decision.             

       The Courts look exclusively at the child’s best interest, and no longer prefer the mother over the father in custody issues. The Courts may conduct a study of which home environment is best suited for the child and may even appoint a guardian ad litem for the child during the custody battle. A guardian ad litem, an independent attorney who is appointed to review the matter, acts in the best interest of the child. Be forewarned though, the parents may have to pay the guardian’s fee as well as their own attorney’s fees. A custody battle can be very expensive and emotionally devastating for both sides, win or lose. Be prepared!

Technology can be wonderful.  New inventions often make our lives easier or more entertaining (or both).  Technology, however, can have negative attributes as well.  As members of our current society, we must educate ourselves equally on the benefits and pitfalls of the newest devices and trends.

Nowhere is this clearer than in the context of family law, especially with regard to divorce and custody proceedings.  In today’s technology-laden world, there have been a number of inventions (e.g., email, text messaging, EZPass, Facebook) that have unintentionally come to the aid of the average person going thru a divorce (as well as his or her often reluctant attorney).  There have also been a number of inventions that have served to “put the nail in the coffin.”  Indeed, depending upon whether you are the plaintiff or the defendant in a divorce action, technology may be a blessing or a curse.

One piece of technology that has very recently caused a lot of buzz in the divorce world is the “Find My Friends” application on the new iPhone 4S.  “Find My Friends” was intended to allow its user to track the location of those friends who have agreed to allow the user access to this information.  However, according to recent Internet chatter, “Find My Friends” also allowed a husband who suspected his wife of cheating on him to surreptitiously “verify” that she was engaging in an inappropriate relationship, or at least lying to him about where she was going from time to time.  He gave her a new cell phone with the application already loaded on it (and enabled).  When the wife left the house, the husband was able to track her location, unbeknownst to his spouse.  Now, he has screen shots which, apparently, he will attempt to use in Court to corroborate her visits with an alleged paramour.  The husband was so pleased with his “success” with the application that he posted what happened on a blog and thanked iPhone and “Find My Friends.”

While I suspect there might be issues with the admissibility of the husband's "evidence" (and maybe even potential criminal implications for his own behavior), I think at least one message is clear: educated use of technology is a must.  After all, one may not want others, including a divorce court or, better yet, the entire world, to find his or her friends.

Once you have decided that probate of the estate of a loved one is necessary, what do you do next? 

First, you must decide who will serve as executor (if the decedent has died with a will) or administrator (if the decedent has died without a will).  For guidance, you should first review the decedent’s will.  Most wills will include a provision which appoints a particular person or particular people as executor.  If the person who is appointed in the will does not wish to serve, there is the ability for someone else to serve as executor.  However, in most jurisdictions, you will need to have the person who was appointed sign a document indicating that he or she declines to serve.  If the decedent died without a will, you will need to consult the relevant sections of the Code of Virginia to determine who may serve as administrator.

Second, you will need to go to the probate (or wills and estates) department of the circuit court of the city or county in which the decedent was residing at the time of death to qualify as personal representative (the general term for an executor or an administrator).  Most probate departments require you to make an appointment, though you can usually get in fairly quickly.  When you attend this appointment, you will need to bring with you a list of the decedent’s assets, how they were titled, and their value as of the date of his or her death.  You will also need to bring sufficient funds with you to pay any probate tax and fees.

Once you qualify as personal representative, you should immediately begin the task of collecting the decedent’s assets and identifying the decedent’s debts.  As personal representative, you will be responsible for maintaining the decedent’s assets (with some exceptions) and paying the decedent’s debts (again, with some exceptions) until the estate is closed.  If you have any questions about how to do this, you should absolutely consult with an attorney working in the area of estate administration because, as personal representative, you could be held personally liable for any mistakes made in the administration of the estate. 

Our laws which govern spousal support were modified on July 1, 1998 in Virginia. The Court can now award rehabilitative spousal support for a period of time based upon certain factors such as the education, training, employment history, decisions made regarding the care of the children, and physical and mental health of the party seeking support. The parties can also contract, in a Property Settlement Agreement, to any arrangement of spousal support they desire.  If the parties do not reach an agreement regarding spousal support, the Court can set support for a period of time or until the death of one of the parties, remarriage or cohabitation pursuant to Virginia law.

On the other hand, child support is governed by statute and is based on the gross incomes (real or imputed) of both parents. If one parent is earning substantially less than he or she could reasonably earn, additional income may be imputed to that parent. The child support guidelines are designed to provide a child with the amount of support needed to provide for his or her food, shelter, clothing, medical needs, etc. based upon the parents’ joint gross income. Generally, payment of child support extends until the child graduates from high school or reaches the age of nineteen, whichever occurs first.

Probate is the process by which the assets of a person who has died (i.e., the “decedent”) are distributed to his or her heirs or beneficiaries and the debts of the decedent are satisfied by the decedent’s executor (if the decedent dies with a will) or the decedent’s administrator (if the decedent dies without a will).

Probate may be necessary if the decedent has died with a will (i.e., the decedent has died “testate”).  But, it may also be necessary if the decedent has died without a will (i.e., the decedent has died “intestate”).  How the decedent’s assets are held, the type of assets he or she had, and the value of his or her assets at the time of death will all impact whether probate is necessary.

If a loved one has passed away and you are unsure whether probate is necessary, you should consult with an attorney.  To get the most out of your meeting with the attorney, you should bring with you as much information you have regarding the decedent’s assets.