With more blended families, estate planning gets ugly

The couple in their 50s pulled up to the estate lawyer's office in a
snazzy sports car. She was dripping in jewelry and carrying a designer
bag. He wore an expensive watch. They lived in a swanky part of town.

The veneer of wealth vanished when they laid out their finances. Home
equity? Wiped out by their borrowing. Business? Gone bust. Credit
cards? A dozen maxed-out and using another to pay minimum balances.
Despite their financial tailspin, the couple didn't look a bit
worried, says wills lawyer Les Kotzer. When he asked what the husband
did for a living, the wife joyfully answered: "Harry's a waiter."
No, not the kind who works in restaurants.
"A 'waiter' because he's waiting for his inheritance," Kotzer says.
It could be a long wait.
Heirs betting on their parents' golden nest eggs are running into
harsh demographic realities.
Longevity and a slew of changes that have transformed family
relationships (ex-spouses, stepkids, stepgrandkids, siblings living
thousands of miles apart) are turning the already-prickly matter of
inheritances into a gargantuan challenge. Add the gaping generational
divide between Depression-era parents, who valued frugality above all
else, and their Baby Boomer children, who relish self-reward, and the
dynamics can be explosive.
"I see families who never talk to each other again," says Kotzer, a
Canadian lawyer who has written several books, with law partner Barry
Fish, on fighting over estates (the latest is Where There's an
Inheritance…). "Family to me is our greatest asset, and we are losing
family. …It's the savers vs. the spenders."
People are living longer. Health care costs for the frailest seniors
are eating up family estates. Their reliance on others to feed and
care for them and their finances can put more elderly at risk of
financial or physical abuse by the caretakers they depend on.
The shaky economy adds to the volatility as more adult children lose
their jobs and see their retirement savings and home equities dwindle
while debts mount.
Despite the downturn, more than $20 trillion will be transferred to
heirs in the next 50 years — the largest transfer of wealth in U.S.
history, according to the Center on Wealth and Philanthropy at Boston
College.
"Boomers took risks, and they have a high lifestyle," Kotzer says.
"The housing market went down. The (stock) market went down. A lot of
these Boomers have been laid off. Where's the money coming from?"
The prospect of an inheritance stirs a cauldron of emotions — not
always heartwarming.
Eileen Zenker, director of client services at SeniorBridge, a national
care management company, says it's common for children who are faced
with costly care for their parents to react this way: "I'm watching my
inheritance go down the drain."
Bill McGaw wants to make sure his children — not his stepchildren —
inherit his assets.
"Death does weird things to people," he says. "Especially to those who
are still alive."
Longevity erodes life savings
The number of Americans age 65 and over has topped 40 million, or 13%
of the U.S. population. That's the most ever, both in sheer numbers
and as a percentage, and the number will grow rapidly. It's estimated
that the 65-plus population will make up one-fifth of the nation by
2050.
Not only is the share of seniors growing, health care advances are
pushing the oldest of the old to even longer lifespans.
The fastest-growing age group among seniors is 85 to 94, jumping 30%
to 5.1 million the last decade, according to the Census Bureau. The
number of centenarians is projected to exceed 600,000 in 2050. That's
good news except for one key factor: Half of those living beyond 85
have Alzheimer's disease, a condition that devastates one's quality of
life while requiring costly care that erodes retirees' assets.
"Relatively few people today have money to pass on to the next
generation because they consume it in life," says Hendrik Hartog, a
professor of family and social history at Princeton University and
author of the recently published Someday All This Will Be Yours: A
History of Inheritance and Old Age. "It's consumed through retirement
communities or through health care."
Miami financial adviser Sandy Jukel says that interest rates are low
but cost of care keeps rising. "The end result, if proper planning is
not pursued, they inevitably run out of money," he says.
Adult children often mistakenly believe that Medicare and other
retiree benefits will pay for their parents' care. In fact, only
long-term health insurance will cover custodial care.
"So many children don't expect they'll be responsible for their
parents in later life," Hartog says.
The complications of inheritance only intensify when the children must
care for an aging parent. If the estate is not clearly divided in a
will, for instance, children who took care of aging parents often feel
that they should inherit more than the siblings who did little —
either by choice or because of geographic considerations, according to
estate lawyers. And often, the children who do care for them are
tempted to dip into their parents' savings before they die because
they figure it's coming to them eventually.
Self-interest works both ways. Often, aging parents dangle the
prospect of an inheritance to make sure their children will care for
them in their later years, Hartog says. "The best demographic evidence
we have suggests most parents distribute assets equally between
children," he says, adding that most don't like to play favorites,
even if one child did more for them.
Tangled family trees
Family feuds over inheritance are as old as the Bible (Jacob tricked
his twin brother Esau out of his birthright and their father's
blessing.), and they can multiply in blended families. There are
ex-wives and ex-husbands, children and stepchildren, parents and
stepparents.
More than half of all first marriages end in divorce and about 75% of
divorced people will marry again, according to the National Stepfamily
Resource Center. About 65% of these unions will include children from
previous marriages. More than 40% of American adults have at least one
step-relative, according to a Pew Research Center study earlier this
year.
Newcomers to the family can heighten tensions.
"The children of the mom might say, 'I never liked my mother's new
husband and now I might have to take care of him?' " Zenker says.
Boomers who started families later in life are feeling the pressure.
They are dealing with children's college bills "while Mom is 87 and
needs care," says Claudia Fine, chief professional officer at
SeniorBridge, which has more than tripled the number of its branches
in the USA since 2008 by helping families keep elders in their homes.
"It's no longer the sandwich generation; it's the panini generation,"
she says, referring to the popular pressed sandwich.
McGaw is feeling the squeeze. At 46, he has "only $40,000" in his
401(k), and he has credit card debt. He is married for the second
time. His wife also was married before. They each have two children
from their first marriages. Their ex-spouses both remarried to people
who were married before. The blending is multiplied.
"The thought of two of the kids (hers) having access to my assets even
though they have no interest in accepting me into the family" makes
him wince, he says.
McGaw would like everything to go to his children, but that doesn't
sit well with his current wife. He says she got upset when he met with
an estate attorney without her. McGaw is going ahead with his estate
planning on his own to make sure his children get what he thinks they
deserve.
"I love my wife, but I would not want to benefit her kids from a
previous marriage, especially in a scenario which left my children
with nothing," says McGaw, a senior analyst for a medical information
systems company in San Antonio. "It's almost morbid and perverse in a
way. It's an extremely stressful situation. … It's a mess."
After his father died, he says his sister ended up with the family
house without his knowledge — and that has caused resentment.
Even if you don't want it
Paula Goldie, 57, is a typical Baby Boomer who celebrated her 50th by
taking up scuba diving. She plans to learn the rumba for her 60th.
Goldie's married and has a 40-year-old stepdaughter, a 25-year-old
daughter and 20-year-old granddaughter. Her mother died 16 years ago,
but her father, 82, remarried. His wife, 67, has four adult children.
Goldie, a court clerk in the Portland, Ore., suburb of Troutdale, is
inheriting something she's not even sure she wants: Her father's house
1,000 miles away in Southern California.
"He has left me on his house title," she says. "My younger brother
(who lives in Michigan) opted out, so it's up to me to handle Dad's
estate. Honestly, neither of us cares."
One problem: Her dad has a reverse mortgage, and he wants his wife to
stay in the house after he dies. Goldie wants to respect her father's
wishes but worries that she will be stuck spending money to allow his
widow to live there for free.
If the wife stays in the house, "she would have to pay taxes, but her
name is not on the house," Goldie says. "Her children have already
looked at the furniture in the house and said, 'Gee, I would like
that.' … The house is pretty much going to be a wreck. If he passes, I
still have to deal with it."
As much as she wishes she didn't have to, Goldie sees taking care of
the house as her duty and something her late mother would have wanted.
In the meantime, she has yet to draw up her own will.
Putting it off is "one of the things so many of us Baby Boomers are
facing," she says. "Death in the family brings out the best or the
worst in people. There's no gray area."
What to do?
There are no foolproof solutions to the wills problem, but talking the
issues out when parents are still alive can help. And planning is
crucial.
"If you cherish your family, you've got to plan," says Kotzer, who
runs an interactive website to help families deal with wills
(familyfight.com), even if they're not rich.
"Don't assume that people only fight over money," he says. "Many times
people fight over memories. It could be the painting on the wall over
the table in the hall."
Edward Gabriel, 67, is married (once) and has three children (all with
his wife) in their 30s and 40s. He admits that he put off drafting a
will but is finally doing it.
"My children say, 'Hey, it's your money, you do whatever you want with
it,' " says Gabriel, a manager at a financial processing firm in
Parsippany, N.J., who plans to retire this year. "But the older you
get, you want to make sure your children are taken care of."
He is making his daughter the executor of the estate and is trying to
divvy up assets equitably, leaving more to the kids who didn't borrow
his money. "It has to be done, like it or not," Gabriel says.
Hartog says heirs should remember that they are enjoying the fruits of
their parents' hard work long before they die.
"Children are effectively getting their inheritance much earlier —
their education, help buying their first business and their first
house," he says. "It makes more sense. Who wants to wait until they're
in their 70s?"
Advocates for seniors advise families to start planning when older
relatives show the first signs of health problems rather than waiting
until they have to be put in a care facility.
"Whenever it involves money, someone always feels that they're on the
short end of the stick," Jukel says. "There is no mathematical formula
for the distribution of wealth."
If there are three heirs, wills lawyer Kotzer suggests parents leave
it up to them to take what they want and tell them to resolve disputes
this way: When two of them want the same thing, flip a coin; when all
three want it, draw names from a hat.
"Everybody needs to plan because we're all going to die," Kotzer says.
"It's not if — but when."

For more information on these matters, please call our office at 305
548 5020, option 1.

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Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

by familyllb

Limits on Questioning in Family Law Cases; Unrepresented Parties Take Note

The Ontario Superior Court of Justice has recently released a decision
outlining limits on Orders under the Family Law Rules allowing the
questioning of one party by the other. The decision is particularly
noteworthy because it serves as a cautionary tale for those parties to
a family law dispute who are self-represented.

In Durbin v. Medina, the 56-year old husband and the 33-year old wife
had two children, and had separated in September of 2010. As part of
their divorce proceedings the husband – who happens to be a family law
lawyer – brought a motion to be allowed to question the wife, mainly
in connection with her proposed parenting plan relating to the
children.

Under the Family Law Rules, the court can make such an Order to allow
a person (whether a party to the litigation or not) to be questioned
by a party in certain circumstances, namely where:

1) it would be unfair to the party making the request to have to carry
on with the case without it;

2) the information is not easily available by any other method;

3) the questioning will not cause an unacceptable delay or undue expense.

However, in this case the court found that none of the criteria had
been met by the husband; in fact, it concluded that the husband's
motives for bringing the motion for questioning were "not plausible"
and "call[ed] into question his litigation goals."
In particular, the court found that there was no issue for which
questioning the wife would advance the case, and that none of the
husband's potential topics for exploration – which the court called
"minor irritants" – were necessary to ascertain the children's best
interests.

The court pointed out that under the Family Law Rules neither the
parties nor their lawyers could obtain an Order to question the
opposing side merely to "diminish, intimidate or attempt to embarrass
a former spouse," especially in cases where they hoped to parent the
children in a co-operative manner.

As if to underline the point, the court also ordered that the husband
pay $16,000 in court costs.

This ruling highlights an important distinction between the Civil
Rules of Procedure and the Family Law Rules: the Civil Rules
establish a presumption that the parties can question each other
whereas – as this decision illustrates – the Family Law Rules do not.
This distinction may come as a surprise, especially to unrepresented
family law litigants who may assume that such an automatic right
exists.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Marital Settlement Agreements or Postnuptial Agreements

By Shaffer & Engle Law Offices,

As a practicing divorce lawyer, my office routinely drafts marital
settlement agreements ("MSA's") or sometimes called postnuptial
agreements.  They are one in the same.  We have numerous clients that
walk through the door with their own agreements that they have
discussed with their soon-to-be ex spouse.  We need to sit down and
craft them within the bounds of the law and carefully review what's a
good idea and what's not.  Here are some topics to consider in a valid
MSA (this is only a partial list and should not be construed as
providing legal advice or opinion about a specific case):
Disclosure. Full and fair disclosure of all income, assets and debts
is the cornerstone to any valid MSA.  Failure to disclose income or
assets can invalidate the agreement. The agreement should contain a
disclosure provision, either couched in terms of an acknowledgment
that full disclosure has been made to each by the other or an
affirmative representation by each party that he or she has fully
disclosed all assets and income.
Opportunity to investigate or appraise. The agreement may reflect the
fact that the parties had an opportunity to investigate, appraise or
value all or some of the assets of the other party but have chosen not
to do so.
Release. It should be apparent from the MSA that the contents
described therein contain a "release" from any future claims.  In
other words, the MSA covers all claims from the marriage under the
Divorce Code.
Contingency or "self-destruct" clauses. The parties may wish to
provide that the agreement is to be contingent upon entry of a decree
in divorce and that it is automatically deemed null and void if a
decree is not entered within a specified period of time.
Waiver of estate rights. A provision citing the Probate, Estates and
Fiduciaries Code to the effect that statutory rights are being
acknowledged but are being modified or waived may be included.
Waiver of rights under the Domestic Relations Act. A specific
reference to the Pennsylvania Domestic Relations Act may be included
with an acknowledgment of the existence of the statutory rights being
modified or waived.
Equitable distribution. All of the parties' marital property should be
disposed of in one way or another in the agreement.  Where documents
are required to effect a conveyance or transfer, such as deeds and car
titles, the agreement should provide that the parties will execute
whatever documents are necessary to implement their agreement.
Mortgages. Refinancing, payoff, or sale of the real estate subject to
the mortgage should be clearly listed in the MSA.  It is not enough to
assume that if real estate is transferred from one spouse to another
that an obligation to be solely responsible for the mortgage will
follow with the transfer.
Counsel fees and expenses. The agreement should include a provision
regarding legal expenses in the event of breach, both as a remedy and
as a deterrent to a party tempted to disregard performance under the
agreement.
Debts. The agreement should specifically reference any outstanding
debts, either joint or separate, and which party is to pay them and
when.
Retirement benefits/insurance waivers. Waivers of a party's beneficial
interest in the spouse's retirement benefits or insurance policies, or
waivers of any other assets that require the execution of separate
documents such as beneficiary designations or written waivers of the
spouse's survivorship interest pursuant to the Retirement Equity Act,
should be explicit and should require the waiver whether or not the
employee spouse or owner of the insurance policy actually follows
through on the other paperwork.
Default. Provisions specifying remedies in the event of default or
breach may be included. For example, if a default in installment
payments is intended to permit a confession of judgment for the entire
amount due and not just the past due installments, the agreement must
contain an acceleration clause.
Alimony and spousal support. Waivers of support or alimony should be
specifically stated. The agreement should describe the tax treatment
to be accorded to cash payments to the payee as well as third party
payments for the payee's benefit, such as medical insurance, premiums,
mortgage payments and so on, all of which may be treated as alimony
for federal income tax purposes.
Remarriage or cohabitation. If alimony payments are to terminate upon
either the remarriage or cohabitation of the payee, the agreement must
specifically so state.
Child support. An agreement regarding child support, visitation or
custody is subject to modification upward or downward by the court
upon a showing of changed circumstances.  An agreement relating to
child support that is against public policy or is unsupported by
consideration may be unenforceable.
Education. Provisions requiring the parties to contribute to the
posthigh school educational expenses of their adult children are
enforceable.
Custody. On the theory that parents may not bargain away their
children's rights, the court is not bound by provisions relating to
custody and visitation, and these provisions are subject to
modification upon a showing of changed circumstances.

For more information on these matters, please call our office at 305
548 5020, option 1.

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--
Sincerely,

Tatiana, Restrepo, Front Office Manager
From the Law Office of Yoel Molina, P. A.
Office: 305-548-5020
782 NW 42nd Ave, Suite 343, Miami, Fl. 33126 in the "Ocean Bank" Building

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In Age of Dual Incomes, Alimony Payers Prod States to Update Laws

By LIZETTE ALVAREZ

MIAMI — In the waning days of this year's legislative session, Florida
lawmakers and advocacy groups are pushing to overhaul the state's
alimony law in a bid to better reflect today's marriages and make the
system less burdensome for the alimony payer.

Florida joins a grass-roots movement in a growing number of states
that seeks to rewrite alimony laws by curbing lifelong alimony and
alleviating the financial distress that some payers — still mostly men
— say they face. The activists say the laws in several states,
including Florida, unfairly favor women and do not take into account
the fact that a majority of women work and nearly a third have college
degrees.

The Florida House recently approved legislation that would make
lifelong alimony more difficult to award and less onerous for the
payer and, in the case of a remarriage, would place a new spouse's
income off-limits in awarding payments. Attention turns to the Senate,
where the companion bill is less far-reaching. Florida had already
changed some provisions in alimony law two years ago.

Traditionally, alimony was designed to prevent divorced women who did
not work and were less educated from falling into poverty. According
to this view, the woman's job was to raise children and run the
household. Today, with both spouses often working, that situation is
far less common. The question now is: What is fair alimony in the 21st
century?

"I think that with my parents and certainly their parents, there were
far less women in the work force," said State Representative Ritch
Workman, a Melbourne Republican who is sponsoring the House bill. "The
concept of a woman, after 15 years being married, to enter the work
force and survive on her own was ludicrous. It was an obligation of
the ex-husband to support her until she found another husband. I am
sure that's insulting to today's women that they have to go from one
husband to the next to be supported. It is not antiwoman to say that
out loud."

Last year, the legislature in Massachusetts, which had some of the
country's most antiquated alimony laws, passed without opposition a
measure to rewrite the laws and make them more equitable, following
the recommendations of a special commission. The changes in
Massachusetts, which were supported by the state bar association and
women's groups, have spurred alimony payers in other states to
organize and begin lobbying lawmakers.

In New Jersey, a resolution calling for the creation of a similar
commission to study the state's alimony laws has gained momentum.
Connecticut lawmakers are drafting an alimony bill, with hearings
expected in the next month, lobbyists say. And in Arkansas, the
Carolinas, Oregon, West Virginia and other states, activists are
setting up "Alimony Reform" groups, collecting stories about the
hardships of long-term alimony payments and presenting them to
lawmakers.

Because laws vary greatly from state to state and grant judges broad
discretion with few guidelines, alimony judgments diverge wildly,
sometimes within the same jurisdiction. In Florida, marriages lasting
longer than 20 years typically trigger lifetime alimony payments, but
it is also not uncommon for the higher-income earner in shorter
marriages to wind up paying permanent alimony, which can stretch for
decades and end only after the payer dies or the former spouse
remarries.

For many payers, reducing alimony is difficult, even when
circumstances and incomes change. Appeals are often lost. The high
cost of legal representation can make it impossible to continue
battling in court. Payers say alimony should not deplete retirement
funds, discourage women from working or remarrying, or sap the income
of a new spouse.

If the standard of living must drop after a divorce, as it often does,
the burden should be equally shared, they say. In Florida, that is not
always the case.

"It can strangle the person that is paying it," said Alan Frisher, the
founder of Florida Alimony Reform, an organization of 2,000 members,
several of whom testified recently at legislative committee hearings.
"Oftentimes, we can't afford to pay that amount of alimony. It can
provide a disincentive for the receiver to ever go back to work, to
make more money or remarry. I don't think anybody should have to be an
indentured servant for the rest of their lives."

But Barry Finkel, a family law lawyer in Fort Lauderdale, said the
bill would heedlessly chisel at judges' discretion.

"There certainly is a national trend against long-term alimony," he
said, "but the answer is not to create these roadblocks and hurdles
because there is an unhappy payer."

Cynthia Hawkins DeBose, a law professor at Stetson University in
Gulfport, said the bill, and others like it, could remedy some
inequities of permanent alimony, like protecting a new spouse's income
and ensuring that an ex-wife does not live in a $700,000 house while
her husband lives in a $180,000 one. Former spouses, she said, should
be permitted to move on and not be tethered forever.

"Over all, I'm mixed about this," she said. "I don't think alimony
should be welfare for the middle class, but I'm fearful of the tail
wagging the dog."

In Florida, as in most states, the alimony system works mostly as it
should. Ninety-five percent of those who divorce settle out of court,
and judges often make fair decisions, legal experts say.

David L. Manz, the chairman of the Florida Bar Family Law Section,
said his organization opposed the House bill because it was too
loosely written and would remove too much judicial discretion. In
remedying the plight of a small number of men, Mr. Manz said, the bill
could leave more divorced women vulnerable. He said he was negotiating
to change parts of the bill.

Even today, Mr. Manz said, divorce is more likely to hurt women. They
are still the ones who typically give up their jobs to focus on
raising children. Even when they do not give up jobs, their
child-rearing responsibilities can sidetrack their careers. Returning
to jobs after long absences is difficult.

"For every guy, there is a wife or former wife who got the short end
of the stick," Mr. Manz said. "Look at the standard of living of most
people in a long-term marriage: divorced men's standard of living goes
up, and the women's goes down. That happens every day."

"We are not in favor of disenfranchising someone who has given up her
career," he added. "What you are hearing about is a very vocal,
persuasive minority."

The men, and the few women, in Florida Alimony Reform agree they are a
minority. But they say the injustice in the system is no less
gut-wrenching. They say judges' attempts to follow the law and
maintain, after divorce, the same standard of living a couple shared
in marriage is mathematically impossible. Former wives often benefit
from this, they say.

Dr. Jose A. Aleman-Gomez, a Cape Coral cardiologist who was married
for 21 years, said he must pay $50,000 a year, or about 25 percent of
his salary, to his ex-wife, a practicing dentist with a solid income.
And Dr. Bernard R. Perez, a Tampa eye surgeon with throat cancer who
was married for 20 years, said he had been ordered to pay his former
wife 85 percent of his income; for the last three years, he has lived
in his brother's garage and is near bankruptcy, he said.

Each man was also ordered in court to carry a life insurance policy
naming his former wife as sole beneficiary.

The aggrieved men say they are not opposed to alimony. They are
opposed to alimony payments with no end in sight. In their view,
alimony should be awarded for long enough to allow a former spouse to
get an education, find a decent job or rehabilitate a career or, when
both spouses agree, until children reach a certain age. The Florida
bill would allow exceptions, like older women who cannot easily find
decent jobs.

"I am maintaining her standard of living but not mine," Dr.
Aleman-Gomez said of his former wife. He said he was paying off
$70,000 in lawyer's fees. "A person with a doctorate degree, with a
six-figure income, should not be receiving alimony," he said. "Alimony
is for the people who need it."

For more information on these matters, please call our office at 305
548 5020, option 1.

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DEALING WITH CUSTODY BATTLES...OVER FIDO, SPOT AND MITTENS

On behalf of Gentry, William C.

Ask anyone with a pet in Marietta whether Spot, Mittens and Fido are
merely physical property or whether they are bona fide members of the
family and the response may be nearly universal -- family members.
More and more people in Georgia and across the country are looking at
their pets as family members, making divorce and custody more
complicated. Since Georgia still considers pets to be property subject
to equitable division, many divorcing couples are turning to their
lawyers to craft pet custody agreements.
The number of pet custody cases has increased considerably since 2001,
but there are often few rules and regulations on which a family court
judge can rely when making his or her pet custody decisions. There has
been an increase, however, in shared custody among the divorcing
parties. While working out a pet custody agreement may be difficult,
it is often easier than bringing it before a judge.
Much like child custody agreements, some ex-spouses will come up with
very detailed and extensive agreements. Pet parents will have to
decide who will have the dog or cat on what days of the weeks, on
vacations or during the holidays. Do the owners want to have separate
toys, beds, leashes or food bowls or do they want to trade them off
every time they trade of the pets? Will they use the same type of
food? Are there rules on how many treats each parent can give? And,
what would happen if the pet outlives one of the parents?
While some divorcing couples think they will just be able to deal with
pet custody issues on their own, it is often wiser to use a family law
attorney to craft a complete custody agreement. Using lawyers may make
it easier to ensure that even the most unlikely of situations is
covered, preventing future conflict over the pets.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Iggy Arroyo gives all his estate’s income to Grace Ibuna – court records

All income of the estate of the late Negros Occidential Rep. Ignacio
"Iggy" Arroyo goes to his "partner" Mary Grace Ibuna, according to a
"Declaration of Trust" that he supposedly made hours before his last
will and testament on March 27, 2009.

The documents were obtained Friday by GMA News Online from a
London-based contributor.

In the will, Arroyo placed all his assets in a "living trust" and
appointed his eldest daughter Bernardina Arroyo Tantoco as trustee,
executor of his estate, and attorney-in-fact.

Then in the "Declaration of Trust" created hours before the last will,
Arroyo left instructions to Tantoco that she "distribute income only
to Mary Grace A. Ibuna to be paid in quarterly or more frequent
payments."

Children to get share after Ibuna dies

That same trust document provides that "the balance of the trust shall
be distributed" to each of his children in equal, one-third portions
only after Ibuna's death.

None of the documents GMA News Online obtained included an itemized
list or any other papers indicating the properties Iggy Arroyo placed
in trust.

Tantoco and her sister Bianca Marie are Iggy Arroyo's daughters by his
first wife, Marlene Jacinta. Arroyo has a third daughter, whose mother
is Alicia Rita Morales, his second wife.

Ibuna informed the chancery division of the High Court in London that
Arroyo's first marriage was annulled and that the second marriage with
Morales is going through annulment proceedings.

The last will and declaration of trust were made in California and was
among the documents Ibuna presented to the court in London, where she
fought for and got authority to bring the remains of Arroyo to the
Philippines.

Ibuna shares that authority with Tantoco.

Tantoco has control of the whole estate her father left, but her
powers are limited by the specifics of her designation as trustee,
executor and attorney-in-fact.

In the will, Arroyo "intentionally and with full knowledge omitted to
provide for (his) heirs and if the will is contested, he gives only
$1.00."

Morales contests the will through counsel

Atty. Lorna Kapunan, counsel of Morales, has disputed the will. She
said in an interview with GMA News' Kara David that the will must
comply with Philippine laws.

The Civil Code of the Philippines—and to some extent the Family Code
of the Philippines—governs matters on wills and instituions of heirs.
The Civil Code provides for compulsory heirs, who get to inherit even
if they are not mentioned in a will.

Among the significant provisions of the Civil Code are as follows:

"Article 805. Every will, other than a holographic will, must be
subscribed at the end thereof by the testator himself or by the
testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one
another."

"Article 815. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms established by the law
of the country in which he may be. Such will may be probated in the
Philippines."

"Article 886. Legitime is that part of the testator's property which
he cannot dispose of because the law has reserved it for certain heirs
who are, therefore, called compulsory heirs."

"Article 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their
legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by
those in Nos. 1 and 2; neither do they exclude one another."

"Article 888. The legitime of legitimate children and descendants
consists of one-half of the hereditary estate of the father and of the
mother. The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children and of the surviving spouse as
hereinafter provided."

For more information on these matters, please call our office at 305
548 5020, option 1.

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Family Court EVIDENCE Rules - What Is HEARSAY?

By, Thurman Arnold, III, CFLS

Family Court EVIDENCE Rules - What Is HEARSAY?
An Overview of the "Hearsay Rule" and Its Applications
to Divorce and Family Law Proceedings

The term "hearsay" has entered the realm of day to day speech for many
nonlawyers, and it describes something that most people believe they
have something of a limited intuitive sense about - it is generally
understood as referring to what "he said" or "she said," particularly
on the part of 'witnesses' who in family law cases tend to be the
parties themselves, their family members or children, friends,
neighbors, co-workers, teachers, therapists, doctors, or police. Often
those witnesses are never interviewed directly by the Court, or
cross-examined, and instead what they said or saw is offered in
written statements that get filed before a hearing. Hearsay rules
apply equally to what the parties themselves may have said or be
alleged to have said, whether in their declarations or in
live-testimony.

Together with the assumption that testimony involving hearsay
statements is problematic and may be ignored or excluded by judges,
however, that is usually about as deep as the public understanding
goes. If you are a self-represented party in a contested dissolution
or child custody proceeding (or any other family law matter), it may
be useful for you to become a familiar with the concept because it can
be a critical sword for getting evidence you consider favorable to
your cause in front of a judge or court commissioner, or as a shield
to block claims from the other side that you don't want the court to
hear or consider. Indeed, the hearsay rules have particular
application in family law because much of such litigation involves
accusations and counter-accusations that go on endlessly, many of
which are quite "over the top" in terms of their tone and substance.
Since live witness testimony must be taken upon request in domestic
violence cases, this is often an area where it is critical for people
without lawyers to have a basic understanding of the rules of
evidence.

Some divorce litigants feel that they can say whatever they want, or
use hearsay in a hope of inflaming bias in a judge to obtain what the
litigant hopes for, and that even if a court sustains an objection to
the hearsay (and "strikes" the statement(s) from the record) a bell
has been struck that will continue to ring into the future in terms of
a court's impressions of you. And, unfortunately, there is some truth
to this - which is a good reason for knowing what to do with it at the
outset.

Hearsay in family court proceedings is quite commonly found in
declarations filed by the parties in connection with motion or OSC
requests, whether these consist of the parties' own statements or the
statements of third parties. Affidavits or statements "under penalty
of perjury" are themselves hearsay. Documents that are attached as
exhibits to a declaration, like bank statements, school grade reports,
police reports, and a myriad of other possibilities almost always
contain or are 100% hearsay. Hearsay often occurs in live testimony
during contested evidentiary hearings or trials. If it is not properly
objected to, the court may well consider such "evidence" even though
by its nature it may be of questionable veracity and reliability. And
hearsay is quite often communicated to judges under the guise of
"argument" in oral presentations to the court. Even when a judge
recognizes some statement as hearsay (whether or not an objection is
made), one never knows if the court will ignore it: generally the
statement gets uttered and then a ruling is made. Responsible, ethical
lawyers tend not to attempt to circumvent the hearsay rules - but I
see attorneys use it improperly all the time.

So what is it? Essentially hearsay is "an out of court statement,
offered for the truth of the matter asserted." Evidence Code § 1200.
Such evidence is supposed to be inadmissible, "except as provided by
law." The exceptions to the hearsay rule are vast and complex. Many
lawyers and some judges have difficulty understanding the rule and
applying the exceptions - no surprise if you do! Indeed, if you intend
to object to hearsay evidence, or to introduce testimony that may fall
into an exception and so be admissible, you may be unsuccessful unless
you can quote rhyme and verse concerning the elements of these
exceptions to a judge - especially with the more uncommon ones.
Remember, just because something fits the definition of "hearsay" does
not mean that it is going to be excluded from admissibility. Instead,
their is a multi-tiered analysis that must be undertaken and if each
element of, for instance, is met then the statement is coming into
evidence.

Hearsay is not limited to oral statements. It includes conduct that
can be viewed as assertive, most obviously with gestures like nodding
or shaking of the head. Even silence in the face of an accusation can
be viewed as a hearsay "statement" that constitutes an "admission"
under certain circumstances.

"Out of court" means in a setting other than by a witness who is
testifying at, or in connection with, the current hearing or trial. If
the statement was made or heard outside the courtroom, or is a
document created outside the presence of the court (which is almost
always the case), it is hearsay. But, again, just because it is
doesn't mean the statement will be excluded if other conditions can be
met. It is entirely possible to have multiple hearsay - levels of
statements overheard and repeated. A proper analysis must be applied
to each segment.

Some things look like hearsay but aren't. This is because in order to
constitute hearsay, a statement must be "offered to prove the truth of
the matter asserted." If the speech or conduct that is being testified
to is (supposedly) being offered for a different purpose than proving
that its content was true, then the court may conclude it is not
hearsay at all. Most commonly this is the case with testimony that is
offered to prove "state of mind" or the effect of the statement of the
listener. For instance, maternal grandmother is asked to describe a
conversation with granddaughter to explain why she left with the child
that night to take her to grandma's own home. The essence of the
conversation between grandmother and granddaughter is that "daddy just
hit me." While (ignoring any hearsay exceptions for this example) it
is clearly hearsay for Mom or her attorney to have grandmother testify
to what granddaughter said to prove that daddy indeed hit her, it is
not hearsay to offer that statement to explain why grandmother left
with the child that night, or the fact of the statement itself.
Granddaughter's statement may be offered to prove grandmom's (and
possibly granddaughter's) state of mind - not that the hitting in fact
occurred (i.e., the truth of the matter asserted). However, as you
will immediately notice, a major pitfall arises for father in that
proceeding because the court has now heard the accusation even as it
proclaims that it is not considering that evidence as proof that the
child was struck. It takes an exemplary judge to be able to separate
out in their own minds the implication that would not be admissible
from the purpose for which the testimony was allowed. Most lawyers
faced with this sort of "evidence" will quickly respond to an
objection to this material with "your Honor, this testimony is not
being offered for the truth of the matter asserted. It is being
offered as to this witness' state of mind, and to explain why she left
with granddaughter." As you can imagine, clever lawyers (or pro pers)
may be able to taint the process by getting questionable evidence in
that would otherwise be excluded.

The hearsay definition includes the statements (or acts) of the
parties themselves. A statement by wife that "my husband, Mark, told
me he had removed $20,000 in cash from our safe deposit box two days
before I filed for dissolution," if offered to prove that there was
$20,000 in that box, and/or that Mark in fact misappropriated it, is
hearsay. However, one of the important areas where hearsay exception
renders otherwise inadmissible evidence as admissible involves
statements by the litigants themselves. Such statements are labeled
"party admissions."

Any statement that satisfies the admission's exception is any out of
court statement by a party to the action that is inconsistent with a
position that they are now taking. Here, if Mark denies having taken
the money, or that it ever existed, wife's statement comes in as an
exception to the hearsay rule. You can imagine the liar's contests
these rules serve to create, and the difficulty it creates for
cautious judicial officers. As a practical day to day reality in
family courts, many judges allow just about any statement that is
directly attributed to the other party to come into evidence. Strictly
speaking, this may well result in a misapplication of the rules.
Whether evidence that should not have come in but that does get
(erroneously) admitted forms the basis of a set aside or an appeal of
a judge's ruling is way beyond the scope of this Blog. Suffice it to
say that some evidence rulings that are wrong may be viewed as
prejudicial and as warranting a reversal, while most are considered by
the appellate courts as "harmless error."

Here is a short list and description of some the most useful hearsay
exceptions:
Party admissions
Admissions are described above.

Declarations against interest
A nonparty's out of court statement may be admissible as proof of the
matter asserted if certain threshold criteria can be established. The
declarant must be unavailable to testify as a witness; they must be
shown to have had personal knowledge of the subject matter; the
statement must have been against the declarant's interest when it was
made (i.e., something that was damaging to them or their interests);
and the statement must have other indicia of reliability that the
court finds warrants admission.

Former testimony
Where the declarant has previously testified under oath in another
action or proceeding, that testimony may be admitted if certain
conditions are met.

Prior consistent and inconsistent statements
A witness' out of court statement may be admitted as proof of the
matter asserted if it is inconsistent with the witness' testimony at
the current proceeding. For instance, assume that "Fred" accompanied
Mark, in the example above, to the bank to remove $20,000 from the
safe deposit box. Fred confirmed this to wife's best friend Marge a
few days after Mark made his admission to wife that he took the money.
Wife now wishes to corroborate her story of what Mark said to her and
did, because - after all - Mark will deny ever having said or doing
any such thing, and this leaves the question open for the trial court
to the extent it is a "he said, she said" situation between the two
parties. Wife has the burden of proof on the issue, so reliable
corroboration may be critical to swinging the judge into finding the
money existed and was taken by Mark. Fred is not a party to the
action, so his statement does not qualify as an "admission." Fred is
called to the stand and is asked "did you accompany Mark to the bank
and witness him open the box and remove $20,000?" [Note - this is
objectionable as a compound question, and would be asked the same
thing in a series declarative questions to overcome that objection].
Fred answers "no way, I don't know what you are talking about." Wife
next calls Marge as a witness, and she recounts what Fred said to her
- i.e., that he accompanied Mark, and what Mark did. Fred's earlier,
out of court statement to Marge, directly contradicts his trial
testimony, and so comes into evidence as a prior inconsistent
statement.

Spontaneous declarations
This exception permits out of court statements to prove the truth of
the matter asserted to come into evidence, when certain factors exist
that courts assume indicate reliability can be established.
Spontaneous declarations purport to narrate or describe or explain an
act, condition or event that was witnessed by the declarant. The
statement sought to be admitted must have been made "spontaneously"
while the declarant was under the stress or excitement caused by such
a perception.

Wife and Mark are having an argument at home. Paternal grandmother
rents a room. She observes wife slap Mark. That grandmother
immediately calls her best friend, Ruth, to ask what she should do -
and she is crying and clearly distraught and describes what she saw.
Now weeks later, grandmother has returned to her home in Florida and
is not available to be called as a witness for Mark at Mark's DV
hearing. However, Ruth is. Ruth takes the stand and Mark's attorney
attempts to get into evidence what Mark's mother said. It is hearsay.
However, Ruth's testimony about what Grandma said may come into
evidence as a spontaneous declaration.

Statements of physical or mental condition
These are distinct from the issue that arises when out of court
statements are offered as circumstantial evidence of the declarant's
state of mind, discussed above. Instead this exception relates to
present or past physical and/or mental conditions or states.

Business records
This can be a very important exception to know. Business records are
admissible for the proof of what is contained in them (a) to prove the
occurrence or existence of an act, condition or event recorded in the
business record and (b) to prove the nonoccurrence or nonexistence of
an act, condition or event not recorded in the record. There are
requirements that must be met, which are contained in Evidence Code
sections 1271 and 1272.

For instance, wife in our safe deposit box example subpoenas the
bank's records to show that Mark accessed the safe deposit box days
before separation. The bank produces the sign in sheets containing
Mark's signature. This sign in sheet is hearsay - it is being offered
to prove the truth of the matter asserted, that Mark accessed the box
- which is circumstantial evidence that something was in it that might
have been removed. Assuming a proper foundation is laid, the records
come into evidence over the hearsay objection as "business records."

Official records
This hearsay exception deals with records maintained by public
entities. Such records are assumed to be more or less inherently
reliable.These typically relate to vital statistics (i.e., birth
records)

There are a number of other exceptions that may be important for you
in any given situation.
__________________________

The problem with hearsay evidence is that it is frequently unreliable
and hence untrustworthy. Court's can't watch the demeanor of the
declarant at the time they made the statement, and people
unfortunately have all kinds of incentives to lie, minimize or
exaggerate. While you need to fit your objections or the hearsay
evidence you hope to introduce into a recognized exception to get it
admitted, remember that the key is do everything in your power to show
why the testimony can, on balance, be trusted. Knowing these rules can
be an effective weapon for getting evidence excluded that you disagree
with or find unfavorable. Often the other party has no idea how to
respond, which is one good justification for the money that lawyers
charge.

Also, remember that hearsay objections, if not timely made, are
waived, especially for purposes of appeals. Many judges will disregard
them on their own, but there is no certainty that they will and except
when a statement of decision is requested or given one rarely knows
what evidence the court ultimately relied on in reaching its findings.
Hearsay has a subtle way of spinning the proceedings, and should be
avoided IMHO.

Finally, keep in mind that all hearsay issues require you to consider
the following analysis:
Is the evidence you want to admit relevant to some issue in the
proceedings? If not, it will not be admitted and no further analysis
is required.
Has proper foundation been laid to otherwise get it admitted?
Is it hearsay?
If it is hearsay, what exceptions apply?
Even if it is other admissible, should it be excluded on some other
ground set forth in Evidence Code section 352?
Good luck out there!

For more information on these matters, please call our office at 305
548 5020, option 1.

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"Turn to us when you need help"

Straight or gay, responsible parenting is needed

Over the weekend there were articles in both the Guardian and Sunday
Times about the Court of Appeal case I highlighted last week regarding
the lesbian couple who are in dispute with their 'donor' over access
to a child created between them (No Legislating for Feelings 7th
February ).  Charlie Condou in the Family section of The Guardian uses
his column to pour scorn on the apparent lack of thought that went
into the agreement that was made between the women concerned and their
donor, who according to the Sunday Times, was the gay ex-husband of
one of the women.   Condou himself has two children with his gay
partner Cameron and Catherine, a single, straight friend whom the men
had about two years of discussion with before going ahead with trying
to conceive.  As Condou says, "The mothers did not choose an anonymous
sperm donor – presumably because they wanted their child to know who
his father was – they chose a friend.  A friend who was present at his
son's birth and who has been active in his life.  He is a father, and
they, as mothers, don't have a right to put a limit on how he
expresses that, whatever they think they agreed over a bottle of wine.
 The child has a father who loves him and wants to be in his life, and
the child has every right to that relationship."  In fact it's all to
do with relationships and really nothing to do with sexuality.

Giles Hattersley in the Sunday Times talks to Alison Burt a solicitor
with a family law firm that is seeing an increasing number of
difficult and upsetting situations occurring with complicated and
un-thought out parenting arrangements.  Sam Dick, head of policy at
Stonewall advocates that gay and lesbian parents when seeking someone
of the opposite sex to help them have a child, have a long 'dating'
period where they get to know each other very well before deciding to
go ahead.  Condou is adamant that everyone must understand to the
letter what the term 'involvement' means.   All interviewees agree
that  "Until you have a child you have no idea of the intensity of
emotions that rise" and that everyone has to be as prepared as they
possibly can be to reconsider arrangements and compromise in the
interests of the child.  This being something the women in the current
case seem very reluctant to do.

In the meantime the lovely Elizabeth Marquardt asks Do Mothers Matter?
in this weekend's edition of The Atlantic.  I hesitate to mention her
as each time I criticise this woman armies of her supporters come out
of the woodwork to post their strongly held views about what I have to
say.  But I can't let this pass.

In the article Marquardt starts by proposing that not having a mother
was, until recently, widely regarded to be a tragedy.  She then goes
on to list ways in which children have historically been separated
from their mother and how painful this is for mother and child.  And
of course no-one would disagree that any forced separation between
parent and child where there has been a bond of love and attachment is
something to be avoided at all possible cost.  The argument then moves
from one where mother and child are separated to that of egg donation
and surrogacy where the parents are gay men and two women, neither of
them intending to be mothers, helped them to have a child.  This is a
new form of family not in the conventional heterosexual mould – yet
another way in which what we mean by family is evolving in the modern
world – but lesbian couples have been having children together for a
long time now and research shows that their children do very well.  No
father present there, unless they have chosen to co-parent.

Is there something special about a woman that makes her more likely to
be missed than a man in the family?  I don't think so.  Men cannot
breast feed but they can be equally nurturing and supportive of their
children, providing warmth and comfort as well as boundaries and
boisterous play.  I'm not dismissing the positive roles that both a
father and a mother can play in children's lives but same sex couples
are likely to bring a range of qualities to their parenting that
fulfil the needs their children have.  Heterosexual parents who are
left on their own with children find that they develop the qualities
that the other parent used to bring.  Not having a man or a woman in
the house does not necessarily mean that children are missing
anything.

Marquardt's underlying position is always that anything other than a
heterosexual couple family with children conceived with their own
gametes, is inevitably damaging for children.  Donors are viewed as
'parents' who have given up their children to be raised by others and
non-genetically connected parents are raising 'other people's
children'.  In her methodologically flawed study My Daddy's Name is
Donor and quoted in the Atlantic article, she shockingly claims that
"Compared to their peers raised by biological parents, sperm-donor
conceived persons are more likely to struggle with delinquency,
addiction and depression."  Whilst she has every right to her views on
the way in which families are changing, Marquardt has no right to make
such statements about donor conceived people in general.

To return to the questions raised at the beginning of this post, it is
vital that men and women, straight and gay, understand what they are
doing when they bring children into the world.  Adult relationships
may be evolving but children's needs for love, nurture and security do
not change.  I believe these needs can be met by same sex as well as
heterosexual couples, those who are not genetically connected to a
child as well as those who are.  Mums and dads (in same or different
sex couples) are those people who are there for their children day in
and day out.  Donors are important too but in a different way.  They
are not parents who have abandoned their children but contributors of
a vital ingredient of life.  They deserve thanks, recognition for
their gift and (hopefully) their willingness to make a connection with
a young person who needs to know more about them.  Mature responsible
parents; mature, responsible donors.  Happy children.

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

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"Turn to us when you need help"

Where there’s a will there’s a way to con

Death, like politics and religion, is not widely mentioned in polite society.

It's on a par with blocked drains and smelly toilets – a known fact of
life, but a subject to avoid at all costs.

Research shows that a staggering 60 per cent of people die without
making a will, leaving it open season for the government to cash in on
the value of their worldly possessions.

Many people avoid making a will because they think it's complicated
and expensive.

But as others find out to their cost, unscrupulous predatory firms
specialising in will writing can arrange to plunder their estate even
before they pass away.

It's a little known fact that anyone can set up in business to provide
will writing, probate, and estate administration services.

Ever since they passed out of the hands of solicitors in the late
1980s, successive governments have made a virtue of applying 'light
touch' legal services regulation, leaving the door open to a
significant number of crooks and con artists poised to rip the public
off.

No sooner than the ink was dry ending the monopoly of solicitors in
this area of law, the rogue element started to move in.

According to the Trading Standards Institute's Bryan Lewin, first out
the starting blocks was serial fraudster Simon Harris, who on his
release from prison saw the gap in the market and founded the Quill
Group will writing franchise.

All the companies in the Quill Group were finally put out of business
in the early 1990's when the Department of Trade and Industry
compulsory wound them up in the High Court.

But where Mr Harris moved in, others were sure to follow.

Enter Gerald Barton – a disqualified director – and his string of
franchises going under the names of Willmakers Ltd and National Legal
Services.

By the time Harris and Barton had been unmasked as will and probate
rogues, thousands of clients were left out of pocket, and without
access to their wills.

Undeterred another plausible will writing outfit, Stephen Share's
Solicitors Probate Services Ltd, ended up in the High Court in 2008
after a rigorous investigation by the Solicitors Regulatory Authority.
They discovered that the ex-solicitor – who was finally banned from
practising law for life in 2009 – had named himself or his company as
executor in more than 4,500 wills.

Another dodgy trio behind will writing services formed Willmakers of
Distinction UK. They were subsequently found to have stolen thousands
of pounds from dead people.

Two of the men involved, David Nash and Nicolas Butcher, were
sentenced in 2010 at Lincoln Crown Court to three and a half years
behind bars, while the third, Raymond Prince, was handed down a one
year suspended sentence.

While recourse to a friendly will writer does by no means guarantee
you'll automatically be fleeced of all your worldly wealth, the
situation is serious enough for the Law Society to campaign for the
regulation of will writers.

In July 2011 the Legal Services Board (LSB), having given due
consideration to the advice they received from their consumer panel,
started a statutory investigation into how best to protect consumers
from will writing and probate services spivs.

After sifting through the evidence, the LSB is recommending to the
government that regulation is re-imposed in the form of licensed
activity by legal professionals under the 2007 Legal Services Act.

But that may be easier said than done.

The Institute of Professional Will Writers (IPW), a self-regulating
trade body, claims now that the genie has been let out of the bottle
it is very difficult to get an accurate picture of the scale of the
problem and size of the will writing sector.

Many writers operate as 'one man bands' from home, and firms have
hundreds of practitioners working for them on self-employed contracts.

The IPW has identified about 750 will-writing firms, and their
research has uncovered another 158 companies with 'Will' in the name
that had been dissolved in the last ten years.

The response to the LSB's concerns from the government has not been
encouraging, despite unearthing considerable evidence of poor quality
wills and dubious advertising practices.

Christopher Matthews, an associate solicitor with Churchers
solicitors, Fareham, is concerned that consumers deterred by false
claims about solicitor's charges, are being put at risk in the will
writing free-for-all .

He said: 'I strongly recommend your will is prepared by a solicitor or
legal professional who is a member of Solicitors for the Elderly so
you have the peace of mind knowing you are dealing with an expert who
can advise on all the circumstances affecting your estate.

'Never pay for your will upfront or let a sales person pressurise you
into additional cost, any genuine professional will be happy to
receive payment once the work is complete.

'If the cost of the will sounds too good to be true it probably is.'

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

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How to avoid a dispute when using a known sperm or egg donor

Submitted by prideangel.com

The courts are all talking about same sex parenting disputes. The
Court of Appeal has this week been hearing from a donor applying for
contact with his biological son against a lesbian couple who say they
feel "bitterness and betrayal" (the case has not yet been decided but
you can read the coverage in the Telegraph here). This follows the
decision just a few weeks ago by High Court judge Mr Justice Hedley
(in P&L (minors) 2011, available here in full) which dealt with a very
long and bitter dispute about the role of gay donor dads to two
children (aged 10 and 6) being raised by their lesbian mothers. The
courts are feeling their way with what they call new models of
alternative parenting, and trying to develop an approach for these
types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and
those who end up in dispute) we see some wonderfully successful
co-parenting arrangements. But where they go wrong, they go horribly
wrong. What is interesting, though, is that parents always seem to
fall into one camp or the other. I can honestly say that none of the
clients we have advised at the planning stage has ever come back for
legal representation later. Equally, not one of the clients we have
represented in disputes took legal advice at the outset.

So here are our tips on how to make your co-parenting or known
donation arrangement a successful one, and how to avoid ending up in
court:

Talk, talk, talk (and more importantly listen, listen, listen)

Don't rush into trying to conceive. Get to know each other, have
honest conversations about the roles you will have and how much
involvement you all want. Be as clear as you can about your
expectations and be honest with each other and yourselves. If things
don't feel right, have the courage to walk away. There are always
other options. You could find another donor or co-parent, or choose
unknown donation (as mums) or surrogacy (as dads) if what you really
want is parental autonomy.

Understand what roles you will all have

Justice Hedley was keen to "stress the importance of agreeing the
future roles of the parties before the first child is born". And this
fits with our experience. Almost all the cases we have seen which have
ended up in dispute are ultimately about status. Is the biological dad
a father or a donor? Are you equal co-parents, or primary and
secondary parents, or parents with another adult role model? Make sure
you talk about how you see yourselves and each other, as well as the
day to day practicalities of managing your child's care.

Understand how the law works

The law on parentage is complicated, and who will be the legal parents
(and what goes on the birth certificate) depends on the facts,
including how you conceive and the birth mother's marital status.
There may be all sorts of different options, both for choosing who the
legal parents are and for giving some parental status to the other
co-parents if you want to, and problems can often arise where parents
have expectations (for example about what goes on the birth
certificate) which can't be met. Take legal advice, or check out the
free information on our website about this.

Put in place a written agreement

Donor agreements may not (strictly) be legally binding, but they are
incredibly useful. I have always advised parents that putting
something in writing helps with the planning, facilitates honest
conversations and sets a framework which everyone will feel morally
bound by, giving clarity and transparency and setting a really strong
foundation.

However, it now seems they may be more legally binding than we
previously thought. Although the issue is still untested (the parents
in P&L did not have a written agreement, which I suppose comes back to
my point that it is not the parents with properly prepared legal
agreements who end up in court) the case suggests that the court will
pay attention if there is one. Mr Justice Hedley said, in the
strongest indication yet, that "the court will be bound to give
careful consideration and weight to any such agreement".

There is no standard format for a donor or co-parenting agreement, but
having something which is accurate and personal to you (and prepared
with a solid understanding of how the law applies in your particular
circumstances) will be much more helpful than any standard pro forma.

For more information on these matters, please call our office at 305
548 5020, option 1.

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Back to Basics: Family and Medical Leaves

BY STEVE PELTIN

In the first of a four-part series on the Family and Medical Leave Act
(FMLA) and related Washington law requirements, we addressed the
fundamentals of the FMLA, including coverage, permitted reasons for
leave, and significant definitions. In this installment, we will
cover the process for requesting leave, granting or denying leave,
employee rights during the leave, and reinstatement rights after the
leave. More detailed information is available on our website.

How does an employee request FMLA leave?

If leave is foreseeable, the employee must provide at least thirty
days notice before the leave is scheduled to begin, unless it is
impracticable. If impracticable, the employee must give notice as
soon as practicable.

The notice must make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. The employee ordinarily need not use any magic words or even
mention "FMLA." The employer is required to determine whether the
employee qualifies.

The employer may require an employee to comply with its usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, the employer may require
notice in a certain format or directed to a specific individual.

Before taking foreseeable leave for medical treatment, the employee
must make a reasonable effort to schedule the treatment so as not to
unduly disrupt the employer's operations.

When the need for leave is unforeseeable, the employee must notify the
employer as soon as practicable. If the employee is unable to give
notice in person, notice may be given by the employee's
"spokesperson."

How does the employee show medical need for leave?

Generally, if an employee requests FMLA leave for medical reasons, the
employer may require a certification from the health care provider of
the employee or relevant family member. Deadlines for notifying the
employee of certification requirements and for the employee response
are found here.

Certification should be "complete and sufficient." If an employee
omits information or provides "vague, ambiguous, or non-responsive"
answers, the employer should notify the employee in writing and
explain what additional information is necessary. If the employee
does not rectify the deficiencies, leave may be denied. The content
of the medical certification is described here.

If the employer has reason to doubt the certification, it may, at its
own expense, require a second opinion from an independent health care
provider. Disagreements between opinions may be resolved by a third
independent opinion.

An employer may request recertification when reasonable, but generally
no more often than every thirty days. An employer may request
certification if the employee seeks an extension of leave,
circumstances have changed significantly, or new information casts
doubt on the stated reason for leave or on the certification.

How does the employer respond to the request for leave?

The employer ordinarily must notify the employee within five business
days of whether he or she is eligible for FMLA leave. The employer
also should provide a notice to the employee that explains rights and
responsibilities under FMLA. The contents of the notice are found
here.

Assuming that the employee is eligible for leave, the employer next
must determine whether he or she qualifies for leave. Here the
employer examines whether the employee has a serious health condition
or fits under any of the other reasons for FMLA leave.

If the leave request is denied, the employer must notify the employee.
If the request is granted, the employer must designate leave as
FMLA-qualifying and notify the employee, specifying the information
found here.

The employer must designate leave as FMLA-qualifying based solely upon
information provided by the employee (or his or her spokesperson). If
there is insufficient information to make a designation, the employer
should inquire further.

If an employer fails to timely or properly designate leave as
FMLA-qualifying, it may do so retroactively with appropriate notice,
provided the failure does not harm or injure the employee. The
employer and employee also can agree to retroactively designate leave.

What happens during the leave?

An employee generally is entitled to receive health insurance benefits
while on leave. An employee who chooses to maintain health coverage
is still responsible for any employee-paid premiums. If the employee
fails to return to work after the leave, the employer may collect from
the employee the premiums paid on his or her behalf during the leave.

An employer may require an employee on FMLA leave to periodically
report his or her status and intent to return to work. If the
employee needs to take additional leave, he or she should give the
employer at least two days notice when practicable.

What happens after the leave?

The employer may require certification from a health care provider
stating that the employee is healthy enough to return to work or
perform specific tasks, so long as the requirement policy is uniformly
applied. An employee who remains unable to work after exhausting FMLA
leave has no right to restoration, and failure to provide a
fitness-for-duty certification disqualifies an employee from
reinstatement. If leave is intermittent, the employer may only
request a certification of fitness to return to duty once every thirty
days and only if there are "reasonable safety concerns" regarding the
employee's ability to perform job duties.

If the employee is medically able to work, he or she is entitled to
return to the position held before the leave or to one with similar
requirements, pay, and benefits. However, an employee has no greater
right to reinstatement than if he or she had been continuously
employed. If the employee would have been terminated if still at
work, the employer has no duty to reinstate. In fact, the employer
may terminate an employee during FMLA leave so long as the reason for
termination is unrelated. An employer also may deny reinstatement to
certain highly-compensated "key" employees to prevent "substantial and
grievous economic injury" to employer operations.

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

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Common Estate Planning Myths and Superstitions

We wanted to share some common myths and superstitions about estate
planning. Most Americans know the story of Groundhog Day: if a
groundhog comes out of its burrow this morning and sees its shadow, it
will retreat back into the burrow and six more weeks of winter weather
will follow. On the other hand, if the groundhog does not see its
shadow and remains aboveground, winter will soon end.

Most of us recognize that the ability of a groundhog to accurately
forecast the weather is just a myth. (The reality is that groundhogs
get it right only 39% of the time.) However, many people still believe
in the following estate planning myths and superstitions (or at least
use them as an excuse not to plan):

#1: You are more likely to die once you complete your estate planning.
This is simply absurd; generally, the only people who die shortly
after executing an estate plan are people who waited ALMOST too late
to plan in the first place.
#2: Estate planning is only for the wealthy. When you hear the word
"estate," do you think of a palatial mansion or fine jewels? The truth
is that if you own a home, a car, a bank account, life insurance,
etc., then you have an "estate".
#3: Estate planning only matters after death. A big part of the estate
planning we do at our firm is planning for possible future disability.
Wouldn't you like to leave directions for how you want to be treated
if you become incapacitated as well as for who gets your stuff when
you're gone? What about requests for who will care for you and/or your
children?

Please feel free to post comments on our Facebook or Twitter or make
an appointment if you have individual questions or concerns. Call our
office at 305 548 5020.

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Know your legal rights

A LEGAL firm is warning unmarried couples in the borough to make a will - or they may lose out.

More than half of unmarried couples wrongly believe their assets are protected by the law and between half and two-thirds of adults have not made a will.

Under the Inheritance (Provision for Family and Dependants) Act 1975 if you are a couple who has lived together for two years or more and one of you dies without making a will, then spouses, children, civil partners and cohabitees are entitled to make an application for 'reasonable financial provision' in court. Similarly if you are married without a will you will not automatically inherit your partner's estate - this only happens if a couple hold their assets in joint names.

Howard Burns, wills and probate partner at Lewis Hymanson Small, in Manchester, said: "Until the law changes and unmarried couples have the same rights as married ones they have a moral obligation to their family and their security to draw up a will.

"This will stop any unnecessary litigation and disputes. Be prepared for the future especially if you have children and own property."

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

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About Background Contact Us Maps Videos Facebook, Privacy, and Family Litigation: A Few More Points to Know

By familyllb 

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party's profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs' Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his "friends" to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user's Facebook "privacy settings" were irrelevant to the court's ability to order the information and photos produced.   The mere fact that the plaintiff was willing to "share" his photos and other personal information with the public via a social networking website – even if only to a limited pool of "friends" – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as "ziplining".   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision inSchuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a "fishing expedition".  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party's username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

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

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