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.

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.

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. 

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.

I think our firm does a better job than most in trying to keep our clients’ legal costs down, and in being sympathetic to the notion that individuals do not have unlimited funds with which to resolve their legal troubles.  Still, as with any firm, we do occasionally have clients who conclude their representation with us being dissatisfied with the magnitude of their legal bill.  Here are some of the tips these folks were told (likely on multiple occasions), but probably did not heed:

1.         It is most attorneys’ protocol to charge for each in-person meeting, phone call, or email by the hour.  While we always encourage our clients to keep us informed of recent developments and like to hear from you, it is not cost-efficient to provide your attorney with a play-by-play of your life.  

2.         Throughout the course of your case, your attorney is going to ask you to gather certain information and to respond to certain documents.  To the extent you can do so timely and completely, you will keep your legal fees down.  If we have to ask you for certain information and documentation more than once, or flat-out do your “homework” for you, your legal bill will almost certainly be higher than if you had actively participated in your own case.

3.         When you are providing us with information and documentation, provide it to us in the most organized, straightforward manner possible.  If your attorney has to spend time organizing or decoding your submission before she can analyze or work with it, she will likely have to charge you for her time spent doing so.

4.         If your attorney contacts you by telephone but is not able to reach you, call her back!  Don’t wait until she calls you back again.  Also, if you miss her when returning her phone call, leave a number at which you can be reached and include some times at which you will be available at this number.  Remember: while your case is very important, your attorney has a number of other clients and may not always be in the office and available to speak with you. 

5.         If your attorney says that she is going to provide you with a response or a document to review, or call you back, by a certain date or time, give her sufficient time to do so before you do your follow-up.  It is one thing to call for a status update if you have not heard from your attorney in awhile (it does happen!), but it is another to call every hour on the hour, especially when the deadline set by your attorney has not yet passed.  Remember: typically phone calls to your attorney (or her assistant) are billed by the hour.

In the end, please keep in mind that, contrary to popular belief, we attorneys do not wish to run up your legal bills.  In fact, it is difficult for many of us (myself included) to ask a client for more money because we know that finances are tight.  As a result, do us all a favor, and try to follow our advice so as to keep your legal costs down.  In the end, we’ll all be thankful!   

In my last post, I described a list of potential avenues to consider when seeking to preserve or obtain evidence which might corroborate that a spouse is cheating.  In that post, I also tried to emphasize that any evidence-gathering should be done lawfully.  After all, while striving to corroborate one crime (yes, adultery is a crime under Virginia law, even though it is very seldom prosecuted), we don’t want a client or potential client to commit another one.  What follows are some points to consider to “keep it legal:”

1.         It is lawful for you to duplicate your own cell phone records.  Accordingly, if you and your spouse have a joint cell phone account or his or her cell phone is on your account, you can lawfully copy the records.  You can also lawfully copy records from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.  

2.         It is lawful for you to duplicate emails that are left open on a family computer.  Accordingly, if your spouse leaves his or her incriminating emails up on the screen, they are fair game.  The same is true if your spouse has previously shared his or her password for their account with you.

3.         It is lawful for you to duplicate the Internet search history on a family computer.

4.         It is lawful for you to duplicate your own credit card statements.  Accordingly, if you and your spouse have a joint credit account or he or she is an authorized user on your account, you can lawfully copy the records.  Similarly, you can also copy any credit card statements from his or her separate account if they are left lying around or are stored somewhere in your jointly-owned house.

In the end, if you have questions about the legality of your methods of evidence-gathering, you should consult with an attorney before engaging in potentially unlawful behavior.  It is always better to be safe than sorry, even when dealing with such an emotional issue as a cheating spouse.  

Perhaps one of the most devastating things a spouse could discover about his or her partner is that he or she is cheating.  Obviously, even the thought that a spouse might be committing adultery is an emotional issue, which is best addressed by counselors and other mental health professionals, rather than attorneys.  However, if you believe that your spouse is participating in an extramarital relationship, from a legal perspective, you must try to stay calm, as there are certain things you can do to strengthen your case for a fault-based divorce. 

From a legal perspective, the biggest issue to consider is preserving (and, potentially, obtaining) any evidence which may corroborate that your spouse is engaging in an extramarital relationship. What follows is a list of potential avenues to ponder:    

1.         Phone Records:  A cheating spouse’s phone records will often show an increased amount of calls to a certain number or numbers, and/or an increased amount of text messages.  If you lawfully have physical access to your spouse’s phone records, you should print them out as far back as you are able to go.  Additionally, if you lawfully have access to any text message content, you should replicate that as well.  

2.         Emails:  A cheating spouse might engage in sexually explicit conversations with his or her paramour.  If you lawfully have physical access to your spouse’s email account, you should print out any incriminating email exchanges.  

3.         Internet Search History:  A cheating spouse may also search for potential paramours using the Internet.  If you have lawful access to your spouse’s computer, you might consider reviewing his or her search history to locate any incriminating content.    

4.         Credit Account Charges:  A cheating spouse may use his or her credit card to finance his or her extramarital relationship.  If you lawfully have physical access to your spouse’s credit card statements, you should print them out as far back as you are able to go.

5.         Private Investigator:  If you feel as though your spouse is cheating, if all else fails, you might consider hiring a private investigator.  Just make sure to obtain a referral from someone you trust (including your attorney), as not all private investigators are created equal.

Potential clients often approach me about what arrangements, if any, can be made to grant their cohabiting partner the authority to make financial decisions for him or her.  Sometimes, they are surprised to hear that they have the same options as the members of a married couple.

Any individual over the age of eighteen years can execute a document called a Power of Attorney.  A Power of Attorney enables the person who has executed the document (called the “principal”) to name any other person who is also over the age of eighteen years (called the “agent”) to make financial decisions for the principal.  In this way, just as a wife can name her husband as her agent, a woman can name her cohabiting partner as her agent.

Before you execute a Power of Attorney in favor of another person, you should speak with an estate planning attorney, as there are different types of powers of attorney which become effective under different conditions.  For instance, a Durable General Power of Attorney confers authority on the agent as soon as the Power is signed by the principal and delivered to the agent.  A Contingent Power of Attorney, on the other hand, does not confer authority on the agent until the principal has been declared to be incapable of making decisions for him- or herself.  Regardless of which type you choose, it is incredibly important to name someone you trust (and who has good financial sense, or at least enough sense to find a professional who has good financial sense) as your agent.