Family, Wills and Estate Planning: October 2011

Monday, October 31, 2011

Kraft Foods’ Divorce Prize a Miraculously Bad Idea

By,Chuck Donovan

A too-clever-by-half marketing team at Kraft Foods has come up with what they think is a hot seller: a contest offering a cash prize to the best YouTube video answering the question, "How has Miracle Whip Affected Your Relationship?" The winner of the contest, which runs until August 23, takes home (or to two homes, quite possibly) $25,000 to help pay for a wedding—or a divorce. Kraft officials have been stung by the criticism that has been justly leveled against the contest, which attempts to take a lighthearted and evenhanded stance of neutrality between marriage and divorce.

While divorce rates are thankfully not rising in the United States, divorce does extensive harm, some of which is masked by rising rates of cohabitation (with and without children present), where marriages do not occur in the first place. As data assembled by The Heritage Foundation at familyfacts.org shows, the U.S. divorce rate has declined from its peak in 1980 but remains high. Every year an estimated 1 million children undergo a family divorce, and evidence of the negative impacts on those children continues to accumulate. Can you picture beaming officials from the world's second-largest food company handing out a prize to a downcast family while the kids gaze at the camera and ponder their uncertain future?

With all 50 states having now adopted unilateral, or no-fault, divorce laws, it is tempting to think that the law has evolved once and for all, and no reconsideration is warranted. But states can and should consider ways to encourage couples to work to save a struggling marriage, especially in light of new research revealing how many divorced couples later wish they had done more to preserve their unions. Reform ideas along these lines are cropping up in state legislatures. They offer the prospects not only of benefit for the families directly involved but of real savings to taxpayers, who also pay a price in the aftermath of family breakups.

If Kraft Foods wants to demonstrate the good things its products can promote, why not offer $25,000 to a troubled couple to pay for counseling and support to keep their marriage together? Call it a "mayo clinic" for marriage preservation. If you agree, click here to let Kraft officials know there's a better way to use their formidable marketing resources.

For additional information on these matters, please call 305 548 5020.

Friday, October 28, 2011

Concern over legacy fundraising as will executor is 'bombarded by begging charities'

By,Kaye Wiggins

Charity worker complains to organisations that asked for donations from his mother-in-law's estate even though she had named beneficiaries

A charity worker has raised concerns about legacy fundraising after receiving 58 "begging letters" from charities when he became the executor of his mother-in-law's estate.

Marcus Watkins, head of finance and administration at Christian Medical Fellowship, said his mother-in-law's will specified that £20,000 should be left to charities named on a list that she had signed.

He said he and his sister-in-law were granted probate on the will in March 2011, and between May and July they had received letters from 58 charities – including several household names – asking them to consider leaving some of the estate to them.

"My mother-in-law made it clear in her will that she wanted her money to be given to those charities that she had named," he said.

"I feel bombarded by these begging charities, which seem to presume we will ignore her wishes. They have upset me and my family at a difficult time, and have alienated us to their cause."

Watkins has complained to the charities, some of which have changed their policies on legacy fundraising as a result. The international development charity Practical Action is one of those.

Mary Harwood, a legacy officer at the charity, said that as a result of Watkins' complaint it has stopped writing to individuals who are appointed as executors of wills to ask for donations.

"We were surprised to learn that Mr Watkins had received letters from so many charities, and we weren't aware of the list," she said. "We are very upset to have caused him such distress and, as a result, we have stopped this practice completely."

She said the practice had not been commonplace at the charity, and it had written to individual executors no more than 10 times a year for the past three or four years.

Watkins said some of the charities had been given his details by Smee & Ford, a firm that identifies bequests left to charity and notifies the charities concerned.

A spokeswoman for the company said it was unable to say how many charities it had given Watkins' details to. It had given the details out because the will included a provision that he would have some discretion over which charities received the £20,000.

"We provide a valuable service to charities," she said. "We believe it was appropriate to notify charities of this particular will because the trustee had some discretion over which charities were granted the money.

"We made it very clear to charities that they should be sensitive in their approach, because we do not want to cause distress."

For additional information on these matters, please call 305 548 5020.

Thursday, October 27, 2011

Delaying divorce to save marriages

By William J. Doherty and Leah Ward Sears, Published: October 20

Conventional wisdom holds that about half of U.S. marriages end in divorce — and that most Americans wish the divorce rate were lower. Still, many are skeptical about whether we can lower the divorce rate without trapping more people in bad marriages.

This skepticism is fueled by two common assumptions: Divorce happens only after a long process of misery and conflict; and, once couples file for divorce, they don't entertain the idea of reconciling.

We now know those assumptions are wrong.Research over the past decade has shown that a major share of divorces (50 to 66 percent, depending on the study) occur between couples who had average happiness and low levels of conflict in the years before the divorce.

Contrary to popular belief, only a minority of divorcing couples experience high conflict and abuse during their marriages. Most divorces occur with couples who have drifted apart and handle everyday disagreements poorly. It is these "average" divorces that research shows are the most harmful to children.

In their study documenting the difference between high conflict and average divorces, sociologists Paul Amato and Alan Booth offer this promising conclusion: "Our results suggest that divorces with the greatest potential to harm children occur in marriages that have the greatest potential for reconciliation."

But do any parents already in the divorce process still want to save their marriages?

William J. Doherty and his team of researchers asked 2,500 divorcing parents in Minnesota who were well along in that process whether they were interested in services to help them reconcile. In at least 10 percent of these divorce cases, both spouses were open to efforts to reconcile — and in another 30 percent, one spouse was interested in reconciliation. Results for couples earlier in the divorce process were even more promising.

In other words, a substantial number of today's divorces may be preventable.

Why does this matter?

As a longtime jurist, Leah Ward Sears held a front-row seat in witnessing how family fragmentation affects children. She saw the overwhelming anger, depression and grief that plague children when their parents are splitting up. Her concerns grew as she also noticed links between divorce and poverty, divorce and juvenile delinquency, divorce and mental health illnesses, and even divorce and violent crimes. Even a modest reduction in divorce could benefit more than 400,000 U.S. children each year.

Can we as a society do anything to support the marital union of these children's parents, especially those interested in saving their marriages?

We propose a modest reform that U.S. state legislatures can enact: the Second Chances Act, which combines a minimum, one-year waiting period for divorce with education about the option of reconciliation.

With regard to waiting periods, there is considerable variation among states. Forty-six states have waiting periods of six months or less, including 10 states that have no waiting periods. No other Western nation has waiting periods as short as the United States. In Western Europe, three-year waiting periods are common.

A one-year waiting period would ensure that the law is not moving couples — who are often at one of the most intense emotional periods of their lives — more rapidly toward divorce than perhaps they intended or wanted.

Our proposal, which we plan to roll out to a few states and then pursue nationally, would also require parents of minor children considering divorce to take a short, pre-filing parenting education course. This education component, which could be completed online, would include information on reconciliation (along with resources for couples who choose to pursue that course) and information on a non-adversarial approach to divorce. Forty-six states already require some form of parenting classes for divorcing couples with minor children, although most couples take the classes well into the divorce process. Tragically, educators who teach these classes report that some parents say such things as "I wish I had known these things when we first broke up."

Empowering couples with this education before they divorce, combined with information about the option of reconciliation, is a win-win situation: It gives individuals a second chance for their marriages, and it gives everyone — regardless of whether they pursue reconciliation — a chance for a less adversarial divorce process.

We are under no illusion that the Second Chances Act is a panacea for lowering divorce rates. And we are certainly not advocating keeping destructive marriages together. (Under our proposal, the waiting period can be waived if there is abuse.) But we now know that a significant number of divorces may be preventable. This modest reform could spare many couples and children the pain of an unnecessary divorce.

For more information on these matters, please call our office at 305 548 5020.

Wednesday, October 26, 2011

End-of-Life Decisons: Family Consent Law Proposed by Jacob Fenston

End-of-life decisions can be wrenching for families. In the early 2000s, the case of Terri Schiavo riveted the nation, as her family battled over whether to remove her feeding tube or keep her on life support. Now, 44 states have so-called "family consent laws," which help determine which family member should make health care decisions. Missouri is one of six states with no such law, putting families and doctors in legal limbo. But, as KBIA's Jacob Fenston reports, a bill headed for the Missouri legislature could change that.

Charley Shurtz knows how hard it can be to make a health care decision for another human.

"Many years ago, my mother was at work she had a job and she helped raise seven kids and she passed out at work," says Shurtz.

She had lung cancer, and fluid was building up in her lungs and around her heart. It fell to Shurtz and his siblings to decide whether to go ahead with a procedure that could extend her life. They said yes.

"But when she come off the ventilator, she said, if I had my choice, I would have never been on that. Don't you guys ever do that to me again,'" Shurtz says.

Now, technically, that decision was in a sort of gray legal area - at least in Missouri.

"Most people think that, you know, their spouse, their children, their parent, can deal with their health care issues, give consent," says State Representative Bill White, Republican from Joplin.

"But there's no legal basis in Missouri for anyone other than the patient themselves giving consent to authorize any medical care."

That is, unless the patient has previously created an advance directive - but only about one third of Americans has done so.

Earlier this year, White introduced a bill to address the issue by establishing a default order of family members who could step in to make health care decisions, for patients without an advance directive.

But not everyone thinks that's a great idea.

"I mean, the fact is, we live in a world of dysfunctional families," says Daniel Baker, a lawyer with the Missouri Catholic Conference, a group opposing the bill.

"I would reckon, a good number of people would look at their immediate family members and say, uh, well, maybe he or she does not have my best interests at heart,'" says Baker.

But White says under his bill, disagreeing family members could take their case to court - just as they can now under current law.

But what about family members who aren't even listed - who are not legally recognized?

"In reviewing the list, what was blatantly missing was the domestic partner, or the significant others, same-sex partners," says Joanne Schleiker, a social worker at a hospital in St. Louis.

Schleiker says she's seen many a case where a same-sex partner was excluded by family members.

"When if that patient were awake and able to say, they would want their partners to make those decisions for them, says Schleiker.

White says the problem is defining these relationships that are not recognized by the state of Missouri.

"Does your significant other for a week count, or does it have to be two years, or five years?"

White plans to re-introduce a new version of the bill at the beginning of the next legislative session in January.

For more information on these matters, please call our office at 305 548 5020.

Tuesday, October 25, 2011

DIY or Not: Wills and Estate Planning

by Gabrielle Karol

When it comes to the people you love, you'd do almost anything to ensure they're taken care of.

Even fill out forms.

And if you have loved ones, there are a few crucial financial forms you will need to fill out to protect those you care about.

Luckily, you don't always need to see an attorney—or pay expensive fees. Some forms are so simple you can download them and fill them out yourself within minutes, at no cost.

Then again, some forms—and some family situations—are complicated enough that you definitely should enlist professional help. We spoke to Yana Feldman, an estate planning attorney based in Garden City, New York, who told us when to DIY and when to call an attorney.

One thing she did tell us definitively: Never entrust your estate planning to online services like LegalZoom. These services still cost money … and don't provide the eagle eye of an attorney to ensure you cross every last T just so.

Here's when Feldman says you should call a lawyer like her—and when you can easily DIY for free:

Don't Call Me If …

You're looking for a living will.

And you should be. Regardless of age and health, every adult in the U.S. should fill out a living will, health care proxy and HIPAA authorization. A living will specifies the medical treatment you want, in case you can't voice it yourself. This would prevent an expensive and heartrending experience for your family (think Terry Schiavo). Also, designate someone you trust as a health care proxy who can carry out your medical wishes, and sign a HIPAA authorization form, which would provide her with access to your medical records in case of emergency.

How to DIY:

Learn the regulations for living wills and proxies for your state here.
Search online for your state's living will and proxy forms (search "[your state] + living will form").
Fill out the forms and have them signed by the proxy you've chosen as well as any witnesses your state requires.

You need to assign beneficiaries to all of your assets.

Beneficiaries are the loved ones you'd want to have your money if—heaven forbid—something happened to you. Naming beneficiaries takes only a few minutes for assets like life insurance, checking, savings or brokerage accounts. So, you don't need a lawyer to draw up a will if all your assets already have assigned beneficiaries, or if you can easily decide who you want to receive what. (If you can't decide how to easily split up your assets, keep reading.)

How to DIY:

Figure out which of your assets do and don't have beneficiaries already.
Call your bank and ask what forms you need to assign beneficiaries. These can include 401(k)s, IRAs, life insurance policies, investment accounts, checking and savings accounts.
Decide who you want to inherit each asset. If you're married, we recommend naming your spouse. If you're unmarried, consider your adult siblings or your parents.
Fill out the forms (all you need is the beneficiary's name, date of birth, contact info and possibly Social Security number). Mail or fax the forms back to your bank.

For more information on choosing beneficiaries, read this.

You have children and are not planning to draw up a will.

If you have children, you'll want to make sure they're protected in case you or your partner can't care for them by naming a guardian. If you don't take care of this, you run the risk of the court choosing someone who's not your ideal choice. (That third-cousin-twice-removed whom you haven't spoken to in a decade?) If you name someone, the court will still need to vet your choice, but the judge will most likely appoint the person you selected. If you are going to draw up a will (see "Call Me If …"), your lawyer will include guardianship in your will. If you are not planning to create a will, you can fill out guardianship forms yourself.

How to DIY:

Decide who would best serve as guardian for your children. Think about whether that person should also be responsible for overseeing the money you leave to your children. (Read this for more on what to think about when looking for a guardian for your children and your finances.)
Once you raise the question of guardianship with the person you've selected, go to your local family or surrogate's court to pick up guardianship forms.
Fill out and submit the forms. You will need the signature of both parents and the name of the person you've appointed guardian.

Maybe Call Me If …

You're not leaving a very big inheritance.

If you'll be leaving behind relatively little in property and assets and don't want special provisions (i.e. everything can go to your spouse and children; you don't need to specify that your piano goes to your third-cousin-once-removed), your family may be able to bypass expensive legal proceedings after you're gone.

How to DIY:

Find out if your estate qualifies as a "small estate" here. If not, read the "Call Me If…" section below.
If your estate qualifies, think about whether there's likely to be arguing among your potential heirs (spouse, kids, siblings, etc.) after your death. If so, go down to the "Call Me If …" section below.
If your estate qualifies and you feel confident that your heirs can handle themselves peaceably, you're good to go: Your family can go to their local probate court, fill out a small estate form in the month after your death, submit it to the court and distribute your assets without expensive legal fees or long court proceedings. It differs from state to state, but as a general rule, they will need your death certificate, a family tree, copies of bank statements listing assets and copies of any bills or outstanding debts.
Discuss this with adults in your family now, so they'll know what to do in that event.

Your relationship status has (or is about to) change.

If you and your fiancé have a significant income disparity—or one of you expects to inherit a lot of money—consider seeing an attorney for a prenup. (You can also get a postnup if you are recently married.) Although this may sound "unromantic," a formal agreement means that you can have a blissful marriage without worrying what would happen financially if ever you got divorced. Learn more about prenups here. Meanwhile, if you're recently divorced and had a will drawn while you were married, review it again. If you want to change any terms now that you're no longer married, call your attorney to make revisions.

You can DIY a cohabitation agreement, however, if you're getting ready to move in with someone who's not your spouse. How to DIY:

Discuss what would happen if you broke up: How would the moving out process and shared possessions shake out?
For more ideas about topics to address in a cohabitation agreement, read LearnVest's CFP Lauren Lyons-Cole's story here.
If your relationship does come to an end, follow the cohabitation agreement as closely as possible to ensure that the moving out process is as painless and easy as can be.

Call Me If …

You haven't assigned "power of attorney" to someone you trust.

Everyone should have this important document on hand. If an illness or accident leaves you unable to take care of your finances, you'll want someone you trust to manage your money: pay your rent or mortgage, your credit card bills and—importantly—your medical fees. See a lawyer to draw up a "power of attorney" document. While this form is available online, the standard form does not grant a few specific powers that could be very important if your designated person actually did need to use power of attorney, such as accessing a safe deposit box or setting up a trust. Seeing an attorney for this can cost between $150 and $500, but if you were incapacitated and didn't grant someone power of attorney, the legal proceedings would be much costlier ($5,000 and up).

Your heirs are likely to fight among themselves.

People squabble about money, even small amounts of it. If you think your heirs will fight it out among themselves after your death, see an attorney to draw up a simple will, in which you will name an executor. A lawyer will be better able to understand how the money you leave will affect your heirs and how to arrange your estate to prevent any squabbling. The lawyer will also be able to help you choose the best executor, who should be the person who is most able to divide up your assets and manage the inheritance without causing rancor among your heirs. If you don't draw up a will and your family wages a battle over your estate, the legal proceeding will be longer, more painful and probably costlier than anyone would like.

You can't decide how to divide your assets or want to make special provisions.

If you have very specific wishes about how your estate will be handled after your death, see an attorney to draw up a will. For example, say you wanted to split your assets evenly between your three children, but one of them has a history of financial issues and can't be trusted with money. With a will, you could assign a trustee to manage the money for him, so he doesn't squander it. Similarly, if you want to specify individual possessions (your grandmother's china should be passed on to your niece, your paintings should go to your second son, etc.), you should see an attorney to draw up a will.

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You're leaving an inheritance for a child with special needs.

If your child needs to be taken care of after you've passed away—and you plan to leave an inheritance—see an attorney who specializes in special needs. For example, leaving behind as large a sum as possible may seem like a good idea, but if your child depends on Medicaid or other government programs, getting an inheritance could actually disqualify him. Even if all you have is a life insurance policy, you should see an attorney to set up a special needs trust, which is too complicated to DIY. This will help you to provide for your child in the best way possible, even after you're gone.

You have a sick or elderly parent who doesn't qualify for Medicaid.

Medicaid is a government program that provides benefits to the elderly and sick, including at-home care. But without this help, these costs can be very expensive. If you have an elderly parent who doesn't qualify for Medicaid because of her income or assets (research Medicaid laws by state here), speak to an attorney who specializes in elder law. An attorney may be able to arrange your parent's finances to help her qualify for Medicaid, easing emotional and financial stress for both you and your parent.

You qualify for the estate tax.

The estate tax is levied on really large estates after a person's death. Since 1977, less than 2% of the population each year has left estates large enough to be taxed; the federal estate tax currently applies to estates worth $5,000,000 or more. Read this to find out if your state currently has an estate tax. If you'll be subject to state or federal estate taxes, speak to an attorney to organize your assets and ensure that your family and friends—rather than the government—inherit as much as possible.

For more information on these matters, please call our office at 305 548 5020.

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Monday, October 24, 2011

Adoption & More: What Will It Cost You?

by Josie Raymond

When we discussed how much it costs to delay one's biological clock with egg freezing, lots of users wrote in with an assortment of follow-up questions. The most common thing you asked us to explore were options for adoption. You ask, we answer.

This is a topic close to our hearts. Among our staff, those of us who aren't already parents are looking forward to eventually having children, but we want to know our options.

Just like no two kids are the same, no two adoptions are the same. Adoptions range from no cost to more than $40,000, depending on everything from which country the baby comes from to whose womb he or she grew in. Whether or not adoption is actually in the cards for you, we're all about sparking debate and helping readers (and their uteruses) know their options. Here's a rundown of many different reproductive options:

Special Delivery

According to the U.S. Department of Health and Human Service's Administration for Children & Families, almost all types of adoptions have universal costs, including home study by a social worker and court fees. It gets more complicated from there, depending on the type of adoption.

Foster Care Adoptions are Usually for Special Needs

Fees for adopting a child from foster care are usually kept to a minimum or waived because most public agencies only adopt out children with special needs—which can mean anything from disabilities to being slightly older to needing to be adopted with siblings. Costs for this typically run anywhere from nothing at all to $2,500. These children often bring with them government subsidy payments called adoption assistance, Supplemental Security Income (i.e. disability checks) or Medicaid coverage. That, and good karma; there are well over 100,000 children in the American foster care system ready to be adopted.

The Cost of American Adoptions Varies Widely

Adopting an American infant will run you $5,000 to $40,000, depending on the agency and the circumstances. Some agencies charge less if you find your own willing birth parent and some offer sliding scale fees for prospective parents who aren't wealthy.

International Adoptions Can Be a Bit More Complicated

Adopting internationally from a place like Russia or China could cost more or less. The estimated range is $7,000 to $30,000 and includes everything from immigration processing fees to donations to foreign orphanages. If you plan to travel to meet the child, tack on transportation costs and remember that you'll need to have plenty of vacation time saved up.

Subsidies for Adoption Costs

The price tag for any adoption can be daunting, but the expenses need not all be out of pocket. Prospective parents should explore federal and state tax credits, subsidies and reimbursements for certain children, and reimbursement from corporate workplaces. For the remaining balance, there are adoption loans and grants.

What You Should Know About Egg Freezing

The best candidates are cancer patients who may lose fertility during treatment and women who aren't quite ready for kids but face declining fertility. The total cost for the pre-procedure hormone injections, surgical extraction, storage, and then implantation of the eggs ranges from about $13,000 up to almost $20,000 … all with about a 30% success rate.

The Cycles of Motherhood

Similarly, in-vitro fertilization is not cheap. It costs about $12,000 per cycle (genetic testing can cost a few thousand more) and, of course, there's no guarantee of success. This price presumes that you're using your eggs and your partner's sperm. Donor sperm will bump the price to between $13,000 and $17,000, while donor eggs will make it $25,000 to $30,000. Talk to clinics about payment plans and even guaranteed refund programs if you don't have a viable pregnancy after three or more cycles. Additionally, some insurance companies may cover some costs, so check into your policy before you start down this path.

Hired Help

The cost of using a surrogate varies widely, like so much else. Above and beyond the cost of her in-vitro fertilization, a surrogacy agency will charge fees in the thousands for finding and screening potential surrogates and guiding prospective parents through the process. Once selected, the surrogate's fee is usually around $20,000, higher if it's a multiple birth or a C-section. Then there's her health care, life insurance, your legal fees, and extras like her lost wages and a maternity clothing stipend. It all adds up to between $60,000 and $80,000.

The Natural Way

Making your own child may be free, but having it certainly isn't. A typical pregnancy, even if you have insurance, costs between $6,000 and $10,000, more with a C-section. Use our preparing-for-baby checklist to get ready.

No matter how a child comes into your life, it's a blessing, and one that's going to cost you. Find out just how much by using the child rearing calculator.

Thursday, October 20, 2011

JK Rowling & single mothers: from a family lawyer’s perspective

JK Rowling makes a very sympathetic case in The Times for the plight of lone parent families living on benefits. If she wasn't known to be such a great friend and supporter of the Labour Party and the Browns, one might be wholly, instead of partially, convinced by her arguments. Yesterday I was invited by the Yorkshire Post, as one of 40 Yorkshire people, to meet Gordon Brown. The invitation came at very short notice so I couldn't make it. I couldn't turn my clients away, even for the Prime Minister! But had it been possible, this topic would have been on my agenda.

I have written before on a similar subject: the Every Family Matters report prepared for the Conservative Party last summer, by Iain Duncan Smith's 'Centre for Social Justice' think tank. I have a client who is a prominent member of the Conservative Party and I was recently told that my views are well known to them. (This information was delivered with a disapproving look.) I came straight back with all my arguments. I intend to pose them again now, in the context of Ms Rowling's commentary.

I believe in families: families of all types, single, married, divorcing, cohabiting. They all deserve consideration and recognition, rather than approbation. Every one of us belongs to a family, and none of us should ever feel entitled to criticise another family of whom we disapprove.

The one-parent family is a very sensitive, difficult topic. It often encompasses the concept of lone parenting itself and the poverty trap, together with the financial impact and the emotional fallout of children growing up without two parents living in the same home, with one parent struggling to provide all for the most part – and not always successfully.

Not every lone parent on state benefits has the genius to write worldwide bestsellers. Many lone parents on benefits are permanently caught in the poverty trap from which – with or without increased state benefits, better education, better health, better job opportunities – it is a sad fact of life that they will never, ever escape. No government, however much money it throws at the problem or however much it criticises the conduct of girls who have children to gain an income and housing, has the power to permanently remove a certain section of lone parents from state benefits. King Canute couldn't turn back the tide and no government can alter this situation. It is cruel to expect differently and turn on lone parents who cannot help themselves.

I am reluctant to criticise any lone parent living on benefits, however much their moral conduct may be criticised by others. Most people caught in a poverty trap would, of course, seek to escape from it if they could and knew how. But they don't and they can't. For them, there isn't an immediately obvious or even viable route out. Ms Rowling praises the state benefit system at length, but it has only produced one vastly wealthy millionairess author that I'm aware of: Ms Rowling herself. Some others escape, doing not quite so well as her (who does?) but they aren't the majority and we know that in many cases, the cycle repeats itself. It won't change. It never does, no matter how many platitudes are uttered by our politicians.

As for the concept of lone parenting, I am also pragmatic. I accepting what clearly cannot and will not ever be changed. There will always be single parent families, however the situation has come about, and it is wrong to denigrate them. I agree that such setups can be far from ideal for the children. But family breakdown happens and as society continues to move away from the 1950s-type family of mother, father and two children, it will continue to happen. The marriage rate is falling. People are choosing not to marry but to live instead in cohabitant arrangements. Families today, married and cohabiting, in their numerous forms will be scarcely recognisable to a typical 1950s family. Children frequently come into a relationship before marriage, if marriage comes at all. If the relationship breaks down, single parenting occurs.

Instead of criticising lone parents, I believe that political parties should adopt a pragmatic approach and do what they can to help these individuals. Helping them, rather than ignoring or criticising them, won't increase the problem – but it will certainly help to level the playing field.

Firstly, burdening the State with yet more lone parents and children is not the answer. I suspect that all parties would agree with that. Instead we should look to the parents themselves for proper financial assistance. There are some parents who will live on the poverty line and they are unable to do much except contribute to their children's upbringing out of meagre wages, channelled via the child support system. But there are parents who currently escape liability. These parents could and should be doing more, to alleviate the financial plight of the family and of the children in particular.

Thus I am back on my well-worn soap box. We should not be distinguishing between "married" and "non-married" families. We should be making far less distinction between them and encouraging more responsibility from parents in all families, irrespective of marital status.

We may never be able to end the poverty trap. However we can and should be doing something to ensure that individuals who walk out on their families and can afford to help do so, and do not throw yet more families onto the welfare state.

Parents who walk out of a married relationship have liabilities on divorce. Parents who walk out of a cohabiting relationship have virtually none. I have written previously of how the children of cohabiting couples are condemned as second class citizens. Legally, married couples cannot divorce before arrangements for any children are first agreed. Yet tens of thousands of children never come before the court because their estranged parents were never married.

My recommendation? Cohabitation legislation.

In our modern-day, right-thinking society, we cannot and should not let outdated, inappropriate Victorian morals rule us. Victoriana belongs where we left it: in 1901.

This is 2010. Families – all families – deserve our support. The country will do better. Families will do better.

Mr Brown and Mr Cameron, are you taking note?

By Marilyn Stowe

Tuesday, October 18, 2011

Outdated will can lead to added legal issues

By Terry McBride,

If you die with an out-ofdate will, your estate could end up going to the wrong people, taking years to settle and incurring extra legal fees.

The good news is that 85 per cent of Canadian boomers, age 45 years and older with property of more than $500,000, do have a will in place, according to a study released in September by BMO Financial Group.

The bad news is that almost half of them have not re-visited or updated their wills in 10 years, potentially leaving their original legacy goals in a precarious state.

EXECUTOR PREDECEASED

What if your appointed executor has died or become mentally incapacitated? Who would manage your estate? Your relatives might squabble for months until they can agree on who should apply to the court to administer your estate.

What if your executor is no longer a Canadian resident? Although faxes, couriers and emails make distance almost irrelevant these days, your non-resident executor may be asked to post an administration bond before the court would grant permission to manage your estate.

MARRIAGE

Your will is automatically revoked after you marry or remarry. Without a valid will your estate would be divided by strict formula among your next of kin. Each province sets out a different formula.

Any bequests to your own children or your favourite charity would be ignored once your will becomes invalid.

Did you know that in Saskatchewan, your will is automatically revoked after you have lived common-law with someone for two years?

JOINT OWNERSHIP

Have you registered ownership of real property or your bank account in joint names with someone with right of survivorship?

Have you named adult children as RRIF beneficiaries? You may have done so deliberately to reduce probate costs by arranging for the property to pass outside of your will.

However, joint ownership and beneficiary designations can too easily make will bequests obsolete.

When property bypasses your estate, any income-splitting testamentary trusts that you established through your will may never be funded.

INCREASED WEALTH

Has your net worth greatly increased because you received an inheritance or exercised some stock options? If you are lucky, you can stop worrying about outliving your retirement savings and start planning how to leave a legacy.

Your lawyer or financial adviser may ask if you want to leave any money to your favourite charity.

BIRTH IN THE FAMILY

The birth of your first child should motivate you to book an appointment with your lawyer to draw up a will. Appoint a guardian to look after your baby in case both parents die in a car accident, for example.

Then, you could also name a trustee to manage the money from your life insurance death benefit and selling your house.

Years later, the birth of your first grandchild could inspire you to revise your will to include trusts for a whole new generation.

You should also consider the possibility that your child could predecease you, leaving minor grandchildren to inherit.

BENEFICIARY DIED

If one of your children has predeceased you, would you inadvertently disinherit orphaned grandchildren if your will says that only surviving children can inherit?

What if you had bequeathed a special heirloom or the family cottage to a particular child who is now deceased?

How easily would the surviving heirs agree on how to divide your estate property?

BENEFICIARY'S MARITAL STATUS

What if there is a breakdown in the relationship between your child and partner? Will your child's inheritance be split when family property is divided?

It depends on the provincial statutes.

Call your lawyer to make an appointment to review your will.

Having an up-to-date will can make things easier, quicker and less expensive for your heirs.

For more information on these matters, please call our office at 305 548 5020.

Monday, October 17, 2011

Yuli Ofer's son seeks injunction on will

Late billionaire left behind two wills: First divides his financial empire equally between son Doron, daughter Liora; second, drawn up after he experienced health complications, names daughter sole beneficiary of family's holding company. Doron Ofer goes to court to try to revoke subsequent will.

The plot of the estate of billionaire Yuli Ofer, who died last month, thickens: Ofer left behind two inconsistent wills – the first distributes his stake in Ofer Investments equally between son Doron and daughter Liora. The second, subsequent will disinherits Doron by naming Liora sole beneficiary of his stake in the company.

Calcalist has learned that both wills were notarized by family lawyer Zvi Ephrat of Gornitzki &Co. Sources with knowledge of the developments say that the drafting of the second will about a year ago was witnessed by Attorney Ephrat and a doctor who determined that Ofer was of sound mind when writing the will; this information, however, was not formally corroborated.

A legal source estimated that if indeed a doctor witnessed the signing of the will, there must have been speculations that the new will would lead to an inheritance dispute. The wills were drawn within several months of each other during which Yuli Ofer experienced serious health problems.

Doron Ofer not privy to new will

Doron Ofer hired attorney Alex Hartman and is planning to launch legal action, in which he will likely demand the invalidation of the second will. To begin with, Doron Ofer will likely file for an injunction on the transferring of Yuli Ofer's Ofer Investments stake to his sister Liora.

According to sources close to the issue, the court will be asked to probe the circumstances under which the second will was drawn up. In the meantime, an application for the appointment of temporary trustee to Yuli Ofer's estate was filed at the Tel Aviv Family Court.

Sources with knowledge of the affair told Calcalist that Liora was privy to the second will and knew of the changes in the will's provisions which were brought to her brother's attention only at a later stage.

According to the sources, Yuli Ofer wished to make amends with his daughter having put her brother at the forefront of his business activity and transferring him considerable assets while still alive. In the latter years of Yuli Ofer's life, Liora took over the management of his business with considerable success due to which Yuli Ofer changed his entire approach on the backdrop of his fallout with Doron.

The core asset in Yuli Ofer's estate is a 36.7% stake in Ofer Investments, which controls commercial property management firm Melisron and Bank Mizrahi Tefahot.

Ofer Investment holds a 19.7% stake in the bank and the family as a whole holds 25.44% of the bank's shares which are worth NIS 1.4 billion ($380 million), in addition to direct holdings through L.I.N. Holdings. Ofer Investments holds 71.5% of Melisron which are worth NIS 1.6 billion ($440 million).

So far, Ofer Investments holdings were distributed between father Yuli (36.7%) and each of his children – Doron and Liora (15% each). The remainder of the shares was held by Eyal Ofer, the son of Yuli's late brother Sammy.

As per the first will, Yuli's shares were to be divided in equal portions between Doron and Liora leaving each with 33.35% of the shares. The second will leaves all of the shares to Liora whereas Doron receives none. This would leave Liora with a 51.7% stake in the company while Doron remains with his previously held 15%.

Doron walked out – Liora stepped in

Yuli Ofer has always seen Doron as his successor to his business empire which is why Doron received considerable assets throughout the years, unlike his sister, including 33% of Ofer Shipping which he later sold to his cousin Idan Ofer and former brother-in-law Udi Angel.

Sources close to the family claim that Yuli was not able to witness his daughter's business skills as her ex-husband Udi Angel usually stood at the forefront of their business during their marriage.

However, in recent years the tables turned when in 2003, just before the Ofer brothers split their holdings, Doron Ofer stepped down from the management of Ofer Holdings, focusing instead on the management of his own real estate business.

Sources close to the family claimed at the time that Doron left the company on the backdrop of a fallout between him and his father; some sources even claimed that Yuli was upset over his son's less than satisfactory results which he covered up and decided to oust him from his position. Others claim it was Doron that decided to venture into his own independent business.

Following Doron's resignation, Liora took the reins of the family outfit in which she never held an executive position until that point. Liora is regarded as a more accomplished manager than her brother. One of her greatest successes is Melisron which under her management as vice chairwomen in her father's company, became one of Israel's leading commercial property management firm.

Not on speaking terms

While the personnel shuffle was underway, relations between the father and son and between the two siblings became strained. Doron and Liora are said not to be on speaking terms with each other despite living in close proximity.

On the backdrop of the fallout between the two, Yuli Ofer's funeral was held for only a small number of relatives and acquaintances and was closed to the press.

Two years ago, the dispute between the family members deepened when Doron objected to his sister's initiative to acquire Africa-Israel holdings in the Ramat Aviv and the Savyonim malls.

Sources close to the family claimed that Doron's objection deepened the chasm between Doron and his father who was in favor of the deal.

"Liora always made it a point to keep her father up to date on her business moves and to receive his approval in advance so Doron's opposition was blocked," a family acquaintance told Calcalist.

The day Yuli Ofer passed away, another family feud broke out after Doron refused to sign the formula for the separation of Ofer Investments' real and financial holdings.

"All in all, in dying, Yuli gave his daughter what he gave his son when alive, this is not a case of disinheritance," said a source with knowledge of the developments in recent days.

for additional information on these matters, please call our office at 305 548 5020.

Friday, October 14, 2011

Criminal Prosecution and International Child Abduction

Criminal prosecution can play a significant role in international child abduction cases. However, it can be a double-edged sword. Some courts use the possibility of criminal prosecution against an abducting parent as a reason not to order a child's return.

Interpol Notices

One of Interpol's most important functions is to help police in member countries share critical crime-related information using the organization's system of international notices.

Notices can be issued in cases of international child kidnapping.

The notices include:

notice

Extradition Treaties Interpretation Act of 1998

18 USC § 3181

SEC. 202. FINDINGS.

Congress finds that—

(1) each year, several hundred children are kidnapped by a parent in violation of law, court order, or legally binding agreement and brought to, or taken from, the United States;

(2) until the mid-1970's, parental abduction generally was not considered a criminal offense in the United States;

(3) since the mid-1970's, United States criminal law has evolved such that parental abduction is now a criminal offense in each of the 50 States and the District of Columbia;

(4) in enacting the International Parental Kidnapping Crime Act of 1993 (Public Law 103–173; 107 Stat. 1998; 18 U.S.C. 1204), Congress recognized the need to combat parental abduction by making the act of international parental kidnapping a Federal criminal offense;

(5) many of the extradition treaties to which the United States is a party specifically list the offenses that are extraditable and use the word 'kidnapping', but it has been the practice of the United States not to consider the term to include parental abduction because these treaties were negotiated by the United States prior to the development in United States criminal law described in paragraphs (3) and (4);

(6) the more modern extradition treaties to which the United States is a party contain dual criminality provisions, which provide for extradition where both parties make the offense a felony, and therefore it is the practice of the United States to consider such treaties to include parental abduction if the other foreign state party also considers the act of parental abduction to be a criminal offense; and

(7) this circumstance has resulted in a disparity in United States extradition law which should be rectified to better protect the interests of children and their parents.

SEC. 203. INTERPRETATION OF EXTRADITION TREATIES.

For purposes of any extradition treaty to which the United States is a party, Congress authorizes the interpretation of the terms 'kidnaping' and 'kidnapping' to include parental kidnapping.

Office of Children's Issues, U.S. Department of State:

The Possibility of Extradition

The United States Department of Justice, not the United States Department of State, is responsible for pursuing extradition of wanted persons. Through INTERPOL and other international links, national law enforcement authorities in many countries regularly cooperate in the location and apprehension of international fugitives.

Extradition, the surrender of a fugitive or prisoner by one jurisdiction for criminal prosecution or service of a sentence in another jurisdiction, is rarely a viable approach in international child abduction cases. Extradition is utilized only for criminal justice purposes in cases that prosecutors believe can be successfully prosecuted due to the sufficiency of the evidence. Prosecutors may decide not to proceed with a request for extradition for a number of different reasons. Moreover, it must be remembered that extradition does not apply to the abducted or wrongfully retained child, but only to the abductor. There is no guarantee that the child will be returned by foreign authorities in connection with extradition of the alleged wrongdoer. Threatened with impending extradition, abducting parents may hide the child or children with a friend or relative in the foreign country.

Another reason that extradition may not be useful in a given case is that the offenses of parental child abduction or custodial interference are sometimes not included in the U.S. Government's extradition relationships with some foreign countries. The United States now has extradition treaties now in force at this point with over 120 foreign countries. Some of these are "dual criminality" treaties while others are "list" treaties. In each case, in order for conduct to be an extraditable offense under a particular treaty, the conduct in question must be (1) be extraditable under a given treaty, the conduct in question must be considered a crime in both countries, and (2) and also included as an extraditable offense under the treaty. In this respect, the United States Government has two kinds of extradition treaties, "dual criminality" and "list" treaties.

Dual Criminality Treaties: U.S. Government's Most modern extradition treaties (i.e., generally those concluded after 1980) usually include a "dual criminality" provision. This means that persons generally may be extradited under the treaty if their conduct is a crime punishable by more than one year imprisonment in both countries.

As a result, if the illegal conduct involved in a particular parental child abduction or custodial interference case is a crime punishable by more than one year imprisonment in both the United States and the foreign jurisdiction country concerned, then that conduct would be considered an extraditable offense under most extradition treaties that are based on "dual criminality" extradition treaties. (A small number of the U.S. Government's dual criminality treaties use periods other than one year as the measure for extraditable offenses.)

If the conduct is not criminalized a crime in either the United States or the foreign country, then it will not be an extraditable offense.even if our treaty with that country is a modern "dual criminality" treaty.

List Treaties: The U.S. Government's older extradition treaties (generally those concluded before 1980) typically contain a list of covered offenses that are extraditable under the treaty. In this respect, nearly all of these older treaties include the word "kidnapping" in their list of covered extraditable offenses. The Extradition Treaties Interpretation Act of 1998 (Pub. L. 105-323) makes clear that the word "kidnapping" as used in these older treaties can encompass parental kidnapping. If, however, the conduct is not a crime criminalized in the United States or the foreign country, then it will not be an extraditable offense even if the word "kidnapping" is included in the relevant list treaty.

Despite the fact that parental child abduction may be covered by certain extradition treaties, you should be aware of potential difficulties in utilizing them. Apart from the possible counterproductive effects already discussed, specifically, most all civil law countries (in contrast with common law countries like the United States, United Kingdom, Canada, and Australia) refuse to extradite their own nationals. Nearly all the nations of Latin America and Europe are civil law countries. Whatever the terms of any applicable extradition treaty, experience has also shown that foreign governments are generally reluctant (and often simply unwilling) to extradite anyone (their own citizens, United States citizens, or third country nationals) for parental child abduction.

For extradition to be possible, therefore:

· The local and/or federal prosecutor must decide to file charges and pursue the case, and you should be prepared to testify in any criminal trial;

· There must be an extradition treaty in force between the United States and the country in question;

· The treaty must cover parental child abduction or custodial interference;

· If the person sought is a national of the country in question, that country must be willing to extradite its own nationals; and,

· The country in question must be willing to extradite persons for parental child abduction /custodial interference (i.e., not refuse to do so for "humanitarian" or other policy reasons).

International Parental Kidnapping Act

The International Parental Kidnapping Act (18 USCA 1204), enacted in 1993, is an important component of the international family lawyer's arsenal.

It makes it an offense to remove or attempt to remove a child who has been in the United States from the United States , or retain a child outside the United States, with the intent to obstruct the lawful exercise of parental rights. The offense is punishable by a fine under Title 18, imprisonment for not more than three years, or both.

The statutory language is as follows:

18 U.S.C. § 1204. International parental kidnapping

(a) Whoever removes a child from the United States, or attempts to do so, or retains a child (who has been in the United States) outside the United States with intent to obstruct the lawful exercise of parental rights shall be fined under this title or imprisoned not more than 3 years, or both.

(b) As used in this section—

(1) the term "child" means a person who has not attained the age of 16 years; and

(2) the term "parental rights", with respect to a child, means the right to physical custody of the child—

(A) whether joint or sole (and includes visiting rights); and

(B) whether arising by operation of law, court order, or legally binding agreement of the parties.

(1) the defendant acted within the provisions of a valid court order granting the defendant legal custody or visitation rights and that order was obtained pursuant to the Uniform Child Custody Jurisdiction Act or the Uniform Child Custody Jurisdiction and Enforcement Act and was in effect at the time of the offense;

(2) the defendant was fleeing an incidence or pattern of domestic violence; or

(3) the defendant had physical custody of the child pursuant to a court order granting legal custody or visitation rights and failed to return the child as a result of circumstances beyond the defendant's control, and the defendant notified or made reasonable attempts to notify the other parent or lawful custodian of the child of such circumstances within 24 hours after the visitation period had expired and returned the child as soon as possible.

(d) This section does not detract from The Hague Convention on the Civil Aspects of International Parental Child Abduction, done at The Hague on October 25, 1980.

Thursday, October 13, 2011

Arbitration: Another Alternative Dispute Resolution Method to Consider in Family Law Cases

Posted by Janet Langjahr

These days, many couples are searching for what they hope is an easier, cheaper approach to divorce (and resolution of other disputes too). Different practitioners each tout their own preferred methodology.

One such available methodology that gets less attention than some others is arbitration. Arbitration is an alternative dispute resolution option, in that it aims to avoid lengthy family court litigation (paper motions and multiple legal and/or evidentiary hearings) that culminates in a divorce court trial before a family court judge in a family court courtroom.

Compared to mediation, another alternative dispute resolution methodology, arbitration is still fairly trial-like. So what is arbitration, and why would someone consider using arbitration?

In a nutshell, arbitration is generally faster, more private, less expensive and less formal than conventional litigation.

An arbitrator, a privately engaged professional, often a former judge, presides over proceedings as an ultimate decision-maker, much like a judge. But in arbitration, the parties get to choose their arbitrator for themselves.

An arbitrator hears testimony and also considers other, nontestimonial evidence in arriving at an award, much like a judge.

Typically, an arbitrator's decision in a binding arbitration is final (although there are certain narrow exceptions).

The arbitration process is generally leaner and more streamlined than typical family court proceedings. Most hearings before the ultimate hearing are eliminated, and development of evidence from the opponent and third parties is normally reduced. This saves parties money as well as time.

And the "main event" is not held in a public courtroom.

Of course, like almost anything else, arbitration can be misused and abused so as to erode its good features and advantages.

Arbitration has not gained great traction in Florida family law yet, but it is finding favor in Canada and other countries already.

Read more in this appellate opinion and this American Bar Association Litigation News Article: Protecting the Natural Cost Advantages of Arbitration

For more information on these matters, please call our office at 305 548 5020.

Wednesday, October 12, 2011

True Happiness in Relationships

by J. Benjamin Stevens

The great mythical romances and love songs of our culture have conditioned us to believe that we must have a romantic partner in order to be happy. According to this mythology, we can never be truly happy until we have found our 'soul mate.' In reality there are several problems with this line of thinking. If you are depending on someone else for your happiness, what happens when that person goes away? If you are depending on someone else for your happiness, how long will it be before they get tired of bearing the responsibility for your emotional wellbeing? If you are depending on someone else for your happiness, how will you ever learn to be responsible for your own happiness?

It has been said that before you can love another, you must first learn to love yourself. You cannot force anyone else to be happy; likewise, nobody else can be responsible for your own happiness. True happiness must come from within.

If you are relying on another for your emotional wellbeing, yet you haven't learned to love yourself first, a cycle is set up that can destroy the relationship. The thought process of this cycle goes something like this:

"My partner says he/she loves me, but I don't love myself. How can my partner love me when I can't even love myself? If my partner cannot see that I am unlovable, then there must be something wrong with my partner. Why should I be in a relationship with a flawed partner?"

Groucho Marx once said that he wouldn't want to be a member of any club that would have him as a member. This is the same dynamic that is at work in relationships where you haven't yet learned to love yourself. Another way to look at it is, "Why should anybody else love me if I'm not willing to love myself?"

How do you learn to love yourself? The first step is in learning to be non-judgmental with yourself. The power of forgiveness is a very powerful thing, but it is often true that the most difficult person to
forgive is yourself. If there are things you'd like to change about yourself, first start by accepting that these things are a part of you, and that's okay. One of the paradoxes of change is that the more we accept ourselves as we are, the easier it becomes to change ourselves.

Once you have completed the journey to loving yourself, then and only then will you be ready to share that love and happiness with another person.

So the ideal relationship is not one in which two people come together to make each other happy. The ideal relationship is one in which two people who have learned to find their own inner happiness come together to share that joy with each other.

For more information on these matters, please call our office at 305 548 5020.

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