Estate Planning Dos and Don’ts

Is Loaning Your Adult Child Money a Good Idea?

          During the economic crisis of 2008, many young couples and recent college graduates sought financial assistance from their parents and grandparents.  With the tightening of credit, parents loaned their children money to pay student loans, buy a house or start a business.  These well intended loans can be explosive problems with estate planning and administering your estate. 

            We would advise you to avoid loaning money to your family for several reasons.  First, loans to children should more appropriately be treated as gifts.  Your child may promise to pay the money back but few parents see a full return of their investment.  Second, the loan may put your financial health in danger.  This is particularly true if you must enter a nursing home or need to pay for long term care.  Third, when the loan becomes a gift there is the potential for conflict among your children.  Finally, should you seek to enforce payment, your children may withhold access to your grandchildren unless you acquiesce.  

            If you choose to loan money to a child, treat your children in the same manner a bank or financial institution would treat you.  Make your child sign a promissory note and secure the debt with a deed of trust.  Next, charge interest and have an amortization schedule.  Third, make sure your child is making regular, timely payments.  If your child fails to make payments, take action to enforce the debt.  However, do not delay enforcement.  Your claim may be barred by the statute of limitations if you delay too long. 

            Loans to children often cause hard feelings between the child receiving the money and their siblings.  We would advise against the practice.  However, if you chose to loan money to your child, discuss the pros and cons with your estate planning or elder law attorney.  Your attorney can adjust your estate plan to account for the loan to help reduce family discord. 

            We regularly help clients with elder law and estate planning in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation. 

 

 

 

 

Big Changes to Military Retirement Calculation

A New Rule Aims to Make Military Pension Division More Fair to Service Members.

Divorcing Servicemembers and their spouses should take note of the new rules regarding military pensions.  The Uniformed Services Former Spouse’s Protection Act gives courts the authority to award a portion of a member’s military retired pay to the former spouse as marital property in a divorce proceeding.  When awarding a former spouse a portion of the military pension, a court can award a fixed dollar amount or award a percentage of disposable retired pay.  When the service member is still on active duty, the former spouse’s award is expressed by an acceptable formula (typically the Coverture Fraction).

Prior to 2017, the Former Spouse’s award was automatically determined as a percentage of the member’s final disposable retired pay.  This meant that the former spouse would get the benefit of any increases in pay the service member earned through post-divorce promotions or years of service.  Many service members and their advocates cried foul.  In civilian divorces, a spouse is rarely entitled to such post divorce increase income, why should service members be penalized.

The solution came in the National Defense Authorization Act of 2017 (NDAA).  The 2017 NDAA changed the definition of disposable pay.  For Divorces entered after December 23, 2016, the active military member’s disposable income for purposes of divorce is limited to “the amount of basic pay, payable to the member for the member’s pay grade and years of service at the time of the court order.”    This means that former spouse’s will no longer receive a windfall if the service is promoted after the divorce.  No longer is a service member penalized for being successful.

If you are a service member or a former spouse, it is important that your attorney understand the changes to the military retirement.  An incorrectly drafted court order, could result in overpayment or a denial of processing by DFAS (Defense Finance and Accounting Service).

With our office located just outside of the Fort Lee Army Post, we have extensive experience representing clients in military divorce and custody cases.  To talk to a military divorce attorney, please give us a call 804-668—5327.  We offer discounts to service members and their families.

Purpose of Estate Planning – Part 1

Estate Planning is About Choice

My grocery store has over a dozen different peanut butter selections.  All have nearly the same ingredients peanuts, salt, and a few other things thrown in.  Why have so many different selections?  The answer is Choice.  Customers want the ability to choose between different brands, flavors or textures.

Estate planning is also about choice.  It is having the ability the ability to choose how to dispose of your life’s work.  Everyone has an estate plan, that plan is the Virginia Intestate Statute.  If you die without a will or trust, then the Virginia Intestate Statute will determine how your estate will be divided and distributed to your heirs.

Despite our desire for choice in the grocery aisle, only about 45% of adults have a will.  The majority of adults, therefore, have failed to exercise their right to choose.  Your failure to choose can cause serious problems including financial hardship for your surviving heirs and can strain relations among family members.

Over the next few weeks, we will focus on the estate planning process.  This is general information designed to educate you on the primary estate planning tools.  Every situation is different and this blog is not a substitute for a consultation with an estate planning attorney.  As you read our Estate Planning Blog series, please keep the following in mind:

A proper estate plan should:

  1. Allow you the ability to choose how to dispose of your assets;

  2. Minimize the risk of conflict among your surviving heirs; and

  3. Protect your estate from taxes or other government intrusions.

If you need help with an estate planning in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Major Life Change? Review Your Retirement Account Beneficiaries

If you have recently experienced a major life change, you need to review your beneficiary designations and estate planning documents.

Who Should Review Their Beneficiary Designations?

Anyone who is recently divorced, remarried or any person who had children should review their beneficiary information.

What Documents Should You Review?

  • Retirement beneficiary information including pension, profit-sharing, 401(K), IRA, and/or Thrift Savings Plan beneficiary information.
  • Life Insurance policies
  • Annuities
  • Transfer on death bank and brokerage accounts

Why Should Review Your Beneficiary Information?

There are numerous cases where an account owner has divorced and failed to remove his or her ex-spouse as beneficiary of their account.  It can be frustrating to the surviving children that their former step-parent gets a windfall from their parent’s retirement account or life insurance policy.  Even though the account may be address in a Final Decree or a Separation Agreement, you must still make the change with your account or plan administrator.

Additionally, if a child is named as your beneficiary, make certain that any children born after the document was initially signed have been added as a beneficiary.  If you fail to add them, they may not receive any benefit from the account.

What Happens if You Fail to Review Your Beneficiaries?

If you fail to review your beneficiary information, federal or state law may decide who is the beneficiary of your account.

I Changed My Will.  Isn’t that Enough?

Simply changing your will to disinherit your ex-spouse is not enough.  The accounts we are referencing in this piece are non-probate assets.  Meaning they do not pass under the terms of a will.  The beneficiary designations supersede the terms of the will.  Therefore, you need to change your beneficiary designations in addition to executing a new will.

What Should I Do Now?

  • Check the default provisions of the documents governing your retirement account.
  • Check with your plan administrator to determine who your beneficiary is.
  • Consult your accountant to determine the tax implications of naming someone as your beneficiary
  • Make any changes in beneficiary with your plan or account administrator
  • Request a receipt from the administrator to ensure all changes were made correctly.
  • Please note you cannot change your designations to “cut out” your spouse some of your non-probate assets like pensions or profit sharing plans, while you are still married without your spouse’s consent.  Federal law prohibits removing your spouse from some types of accounts without your spouse’s consent.

We are experience family law and estate planning attorneys.  If you need help with a will, power of attorney or estate plan in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Separation Agreements: Be careful What You Agree To!

            Spousal Support May Not Be Modifiable Without the “Magic” Language:

If you do not include the appropriate language in a separation agreement, you will not be able to modify spousal support in the future, even if you lose your job.  Separation Agreements are an excellent choice for divorcing spouses. They provide a cost effective and lower conflict alternative to a trial.  However, it is a mistake to view them as simple and easy.  They are complex documents that are often the product of hours of negotiation between each party’s counsel.  With easy access to information and a struggling economy, many spouses elect to draft separation agreements on their own.  Unfortunately, their attempt to save a few hundred dollars up front could cost them thousands of dollars and hours of lost sleep and heartbreak in the long run.

The Law

The Virginia Code states in part that if there is an agreement between the parties for the payment of spousal support, then no court order relating to the payment of support shall be entered except in accordance with the contract.  VA Code § 20-109(C).  In plain English, if you don’t say the requirement to pay spousal support terminates upon a specific event or the support may be modifiable upon a change in circumstances, then the court will not change the amount of or stop the monthly spousal support obligation.  If your separation agreement does not state the spousal support is modifiable, the court is not going to care you were laid off or become disabled.  You still must pay the support obligation.

Take the recent case of Mr. Newman.  Mr. Newman sought to reduce his monthly spousal support obligation.  The agreement he entered into with his ex-wife said spousal support only terminated upon death or remarriage.  The court, while sympathetic to his plight, stated their hands were tied by Virginia Code Section 20-109(C).  Without language in the agreement stating the spousal support was modifiable upon a material change in circumstances, the Court could not on its own, modify the award.  It denied Mr. Newman’s request to modify the amount of spousal support.

What Should You Do?

If you are the primary income earner, don’t just sign an agreement to be nice, to be fair or just to get the painful process over with. Consult a competent, experienced attorney before you sign anything.  Too many people come to see me after they have signed a bad agreement and have no recourse.  The time to consult an attorney is before you sign. To paraphrase the old TV commercial – pay now or pay later!

We have years of experience in family law.  If you need help with a divorce, custody case, or other family law matter in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Can I Leave My Minor Child To Someone In My Will?

Who will Take Care of My Children?

Who will take care of your minor child(ren) if both parents die?  I have been asked recently about what will happen to the children if they die prematurely.  Many people believe you can leave a child to someone in their will.  A child is not like your fine china; you can’t just give it anyone you choose.

However, you can appoint a guardian of your children in your will.  Virginia law allows every parent by will to appoint a guardian of his or her minor child and also appoint a guardian of any portion of the estate that was bequeathed to the child.  VA Code § 64.2-1701.  One point to consider when financial assets are involved is the appointed guardian of your child’s person may not be the best person to manage the financial affairs of the child.  In many situations, naming a separate person as trustee of your child’s financial assets is a more prudent decision (A complete discussion of the management of the financial assets left to your minor child is beyond the scope of this blog post).

A court will appoint the person named in the parent’s will unless the other parent is still alive and is fit to have custody or the appointment would not be in the best interests of the child.  A guardian may only be named in a valid will.  Therefore, you cannot name a guardian for your child’s person in a power or attorney, trust or other estate planning document.  No other document can be used to name a testamentary guardian for the minor child.

Things to Consider When Choosing a Guardian

  1. Does the person have the physical and financial ability to care for the child?
  2. Where does the person live?  Would the child have to move?
  3. Is the person going to follow your wishes of how to raise the child?
  4. Does your child currently have a relationship with that person?  How does your child interact with that person?
  5. What is the person’s relationship with the rest of your family?  Will they continue to see the child?

What happens if the Parents are Divorced or Separated? 

If the parents are separated or divorced and one parent dies, under Virginia law the surviving parent will normally receive full custody of the child.  Even if the deceased parent had primary custody of the child, the surviving parent will usually receive custody upon the death of the other parent.  However, if a court finds the surviving parent to be unfit, then a third party may be granted custody.

If you find yourself worrying about your ex’s ability to care for the child, you need to plan ahead.  You should speak to your family members and make sure they are willing and able to petition for custody in the event of your untimely death.  Additionally, if you fail to name a trustee or guardian of the property left to your child, then the surviving parent will often be appointed to manage and control the money left to your child.

Finally, if you are separated or divorced you need a will!  If you, die without a will, are remarried, and have children from a prior marriage, your untimely death could have a major financial impact on your surviving spouse.  Under Virginia law, your children from the prior marriage would take 2/3 of your estate and your surviving spouse would only receive 1/3. Without a will, you could unwilling set your spouse up for financial disaster.

Wills aren’t just for the elderly.  Everyone should have a will and you should review and update as circumstances change.  The attorneys at paul | perdue attorneys can help you with a will and estate planning needs in Chesterfield, Colonial Heights, Dinwiddie, Henrico, Hopewell, Petersburg, Prince George, Richmond or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Legal Homophones: Tort vs. Torte

Blog Title

The E Makes it Sweet

Welcome to the first installment of our new weekly series on legal terminology.  How often have you read a document written by lawyers and thought – What are they trying to say? Why don’t they just use English!  Our hope is these vignettes will shine an entertaining light on what is often called legal jargon or just plain hogwash!  So the next time you are faced with deciphering a legal document filled with words rooted in Latin, you will be better prepared to understand and appropriately respond.

Our word this week is Tort.  It should not be confused with the delectable French pastry with a similar name.  A tort is anything but sweet.  The word tort comes from the Latin term torquere, which means “twisted or wrong.”[1] If you are served with a lawsuit for a tort, your first reaction may be chocolate-cake-1400632_640“twisted” and you immediately conclude this is “wrong”.  Once you regain your calm, your first call should be to your attorney.

A tort is a legal action where a person or business has suffered harm as a result of the unreasonable actions of another person or business.  The injured person then sues to recover damages, aka money.  The most common example of a tort is an automobile accident.

Torts like their homophone cousin come in many flavors.  There are negligent torts, intentional torts, economic torts, Federal Tort Claims, strict liability torts and many other flavors.  If you are injured as the result of someone else’s negligence, consult an attorney to determine your legal options under the tort related laws.

Used in a Sentence:

After Jessica, a young tort lawyer, won her first automobile accident jury trial, she went out to Martha’s bakery to celebrate with a raspberry torte. 

When you need help with a personal injury case in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss your troubles in more detail.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

[1] http://www.dictionary.com/browse/tort

Are Survivor Benefits in Military Divorce a Waste of Money

Survivor Benefits May Not Be The Best Way to Protect Yourself

In a “military divorce case”, the retirement pension is one of the most coveted assets.  One component of the retirement pension is survivor benefits.  Often it is known simply by its acronym SBP, Survivor Benefits Plan.  Many a divorce lawyer has raised his or her voice and adamantly demand that his or her client get SBP benefits.  You see, a servicemember’s right to receive a military retirement pension terminates upon his or her death.  The SBP affords servicemembers the opportunity to purchase an annuity that pays his or her beneficiaries, a spouse or child, a defined percentage of his or her pension benefit upon his or her death.  The SBP essentially insurance policy that guarantees the beneficiary a percentage of the servicemembers retirement pay for the remainder of the beneficiary’s life.  The maximum amount a beneficiary may receive under SBP is 55% of the servicemember’s monthly retirement pay.

SBP is not automatic for any former spouse in a divorce case.  It comes with a cost.  The monthly SBP premium is expensive.  The monthly premium can be as much as 6.5% of the of the servicemember’s pre-tax gross retirement pay.  Former spouses in a divorce and equitable distribution case should be aware that the premiums for the SBP annuity reduces the retirement benefit amount that he or she receives each month.  The cost of the premiums is not borne by the servicemember alone.  Rather both parties get less than they would without the SBP.  A former spouse in a divorce needs to weigh the cost of the SBP vs. life insurance or other methods of protection.

For some spouses, the risk of getting nothing in the event of the servicemember’s death is enough to justify the reduction in their disposable share of the retirement.  However, in some cases paying the high cost of SBP makes no sense.  For example, if a former spouse remarries before she is 55, she is no longer an eligible beneficiary of the survivor benefits per 10 U.S.C. § 1450(b)(2).  In fact, in this scenario the survivor benefits may actually go to the servicemember’s new spouse.  In this case, the former spouse could be paying for the new spouse to have survivor benefits.  All because your attorney demanded the SBP protections.

Many times, a life insurance policy may be a better option.  You need to discuss your future plans with your military divorce attorney.  If you plan to remarry, tell your attorney.  If you don’t, you may be wasting money on your attorney and an expensive annuity.  That’s an expensive wedding gift for your ex and his new spouse.

The attorneys at paul | perdue attorneys can help you with military divorce or military custody in Chesterfield, Colonial Heights, Dinwiddie, Henrico, Hopewell, Petersburg, Prince George, Richmond or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

New Planning Tool for Parents of Special Needs Children

There is a new tool to help children with special needs that is similar to the popular 529 College Savings Plans.  A challenge for many special needs parents is providing for their children but ensuring the child doesn’t lose their SSI and Medicaid benefits.  ABLE Accounts are a new tool to save for a special needs child’s future care without jeopardizing those benefits.  Generally, if a disabled person has more than $2,000 in savings or other assets, they lose Medicaid and SSI benefits.  One solution is a special needs trust but they are costly to set up and maintain.  ABLE accounts are designed to be cheaper, simpler option.

What is the ABLE Law?

ABLE, which stands for the Achieving a Better Life Experience Act, was the kitchen table idea of a group of parents in Northern Virginia.  The parents wanted a simpler cheaper way to save for their children with down syndrome’s future care.  As a result of their efforts, the ABLE Act was passed by Congress in 2014.  Under the federal law, people with disabilities can open special accounts, where they can save up to $100,000 without risking their SSI, Medicaid or other government programs.

The ABLE Act requires each state to enact legislation on how and when ABLE accounts will be available in that state.  Virginia enacted a law in March 2015 that authorized the Virginia College Savings Plan (Virginia 529) to create a savings plan for people with disabilities.  Virginia 529 estimates the accounts will be available at the earliest by the end of 2016.

What are the Key Features of an ABLE Account in Virginia?

  1. An eligible person is someone who is or becomes disabled before age 26 and receives Social Security Disability Income or files a disability certification under IRS rules.
  2. Earnings on contributions to ABLE accounts are exempt from federal income taxation.
  3. Earnings on contributions to ABLE accounts are exempt from Virginia State income taxation.
  4. Yearly contributions are capped at the annual gift-tax exclusion of $14,000.
  5. If the assets in the ABLE account reach $100,000 and the beneficiary is receiving SSI benefits then the SSI will be suspended until the assets drop below $100,000.  Once the assets in the ABLE drop below $100,000, the SSI benefits will resume.

What are the Disadvantages of an ABLE Account? 

The biggest disadvantage of ABLE accounts is repayment to Medicaid.  When the disabled individual dies, any assets remaining in the ABLE account are used to pay back Medicaid for the amounts expended by Medicaid for the care of the disabled individual after the creation of the ABLE account.  Typically, funds in a valid special needs trust do not have to be repaid to Medicaid following the death of the disabled individual.

ABLE accounts are a new tool and the government regulations of these accounts is still evolving.  They are miracle drug for the estate planning challenges of special needs children.  They do not replace the role of special needs trusts.  They are simply another tool for families to provide education, housing, training, assistive technology, or other expenses for their special needs child.

Read More in the New York Times: A Closer Look at 529 Able Accounts

If you need help with estate planning in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Big Changes to Military Retirement

For the first time since 1948, there are big changes to the military retirement system resulting in major changes for servicemembers.  The 2016 National Defense Authorization Act authorized sweeping changes including an enhanced Thrift Savings Plan and reductions to the military pension percentage amount.

Why Make a Change?

The current military retirement system is an all or nothing system.  A servicemember is only eligible to receive monthly pension payments if he or she achieves 20 years of active duty military service.  If the servicemember exits the military prior to the 20-year mark, he or she gets nothing.  The Congressional Research Service has estimated that as a result of the 20 year requirement only 17% of enlisted soldiers and 49% of officers serve long enough to receive retirement benefits.[1]  Despite only covering a small fraction of those who serve, the military retirement system is costly to taxpayers.  It is estimated the cost to taxpayers of the military pension is $111 billion per year.[2]

Who is Impacted by the New System

The new military retirement system will take effect on January 1, 2018.  Servicemembers will be divided into three groups.  The first group are those serving on December 31, 2017 with more than 12 years of service at that time.  These service members will keep the current retirement system.  The second group are those serving on December 31, 2017 with less than 12 years of service.  This second group may choose to stay under the current system or choose to go under the new system.  The third group are those who join the military on or after January 1, 2018.  This group will be enrolled in the new retirement system.

What Does the New System Look Like?

The new retirement plan will include a new Thrift Savings Plan (TSP), a reduced pension benefit, a different continuation bonus, and an option to receive a partial lump sum payment against the pension.  A full explanation of the new plan is beyond the scope of this blog post.  However, for more details about the new retirement system, check out this article: http://www.militarytimes.com/story/military/benefits/retirement/2016/02/07/new-military-retirement-law-creates-big-decisions-many-troops/79347998/  However, I will highlight the changed to TSP.  Once the servicemember completes 60 days of service, the government will begin contributing 1% of the servicemembers base pay each month to the TSP account.  The government will match dollar for dollar the servicemembers contributions up to 3% of base pay.  Additionally, the government will pay $.50 for each dollar the servicemember contributes over 3% of base pay up to 5% of base pay.  The TSP becomes the servicemembers property at two years of service.  The new TSP puts the military benefits closer in line to many private employers and the federal civilian workforce.

What Does This Mean for Divorce?

The changes to the retirement system mean that servicemembers and former spouses need to be aware that military retirement is no longer just a pension.  The TSP is now a significant asset to be divided in a divorce.  The parties and their attorneys need to be aware of how their choice of benefits will affect property distribution in divorce.

If you need help with a military divorce or custody case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

[1] DoD Office of the Actuary, Valuation of the Military Retirement System, found at http://actuary.defense.gov/Portals/15/Documents/MRF_ValRpt2_2012.pdf

[2] Karmarck, Kristy, Congressional Research Service, Military Retirement: Background and Recent Developments, found at https://fas.org/sgp/crs/misc/RL34751, April 6, 2016

Fighting Over Fluffy and Fido

No, You can’t file for joint custody of the family cat or dog!

They sign your Christmas Card and travel along on family vacations.  Pets are an integral part of the modern family.  However, under Virginia law, pets are treated as property.  You cannot file for joint custody of your family dog.  Although you may consider your pet to be a part of the family, the law does not see it that way.

The LawRosie

Who gets the family pet is based upon the court’s weighing of the factors listed in equitable distribution statute, Virginia Code Section 20-107.3.  In this respect, the family dog is treated no differently than a bank account or bedroom suit.  The judge will look at such evidence as who purchased the pet and who has paid for the food, shots etc. for the pet.

Determining who gets the family pet can be particularly difficult for divorcing empty nesters or couples without children.  The Court of Appeals of Virginia in a recent case, Whitmore v. Whitmore, upheld the trial judge’s award of the family dog to the wife.  The Whitmore’s had no children and purchased the dog together.  In granting the dog to the wife, the trial judge looked at who had contributed to the acquisition and maintenance of the dog and who had played a significant role in the life of the dog up to that point.  The court also ruled that sharing such an asset would be “ill-advised”.  Consistent with principles of property division, the court awarded the Husband $750 for the cost of the dog, so that the Husband could purchase a dog of similar characteristics.

What Can You Do

If you and your ex want to share “custody” of your pet, your best course of action is a property settlement agreement.  In the agreement, you establish a specific plan for sharing time with your pet(s).  Additionally, the separation agreement can be used to resolve any other outstanding issues relating to your separation and divorce.  If the issue of who gets the pet(s) is left to the court, it is unlikely the court will order a time a sharing arrangement.

Further Reading

See Ben Steverman’s Article “In a Divorce, Who Gets to Keep the Family Dog?” Bloomberg, April 29, 2016.

We are experienced in handling divorce and custody matters in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Powerless: Is a Bank or Financial Institution Required to Accept Your Power of Attorney

You heeded the omnipresent warnings to have an estate plan.  You have a will, advance medical directive and a power of attorney.  You sleep soundly, content that your family will not be ensnared in chaos or dispute as a result of your death or incapacity.  You’ve done everything right. Or so you think.

The Corporate Run Around

Sadly, doing everything “right” may not be enough.  A recent New York Times article, Finding Out Your Power of Attorney Is Powerless, by Paula Span, addressed a concerning trend of many banks and financial institutions refusing to honor a durable power of attorney.  The banks are insisting the account holder sign the bank’s own power of attorney form.  The bank’s rationale is they want to protect themselves from liability for fraud.  One large bank has been known to require an agent trying to act pursuant to a power of attorney to have letters from two doctors stating that the account holder is incapacitated.  Other banks reject documents that are more than 12 months old.

Can they do this?

A bank is required to accept a notarized Power of Attorney unless a statutory exception applies.  Virginia Code Section 64.2-1618 requires acceptance of a valid Power of Attorney within seven days of the presentation of the Power of Attorney for acceptance.  The same code section also prohibits the bank from requiring an additional or different power of attorney form.  There are several exceptions to this requirement.  One broad exception allows a bank to reject a Power of Attorney if the bank believes in good faith that the agent does not have the authority specified in the document or the agent has been relieved of his authority.  A bank or other entity that fails to comply with this law may be liable for attorney’s fees and costs for any lawsuit to enforce the validity of the Power of Attorney.

What Should you do?

Here are a few tips to increase the likelihood your Power of Attorney will be accepted by banks and other financial institutions.

Make sure you draft your Power of Attorney early, so there is no question of your competency.

  1. Choose someone you trust and are comfortable with to serve as your agent.
  2. Avoid having co-agents because requiring two signatures on a document may complicate matters and may cause the bank to reject the double signature requirement.
  3. Update your document – Make sure your Power of Attorney is current and complies with current law.  If your Power of Attorney was drafted prior to 2010 it may need to be updated.
  4. Have a competent and experienced attorney draft your document.  Using an internet form may result in an invalid power of attorney and your document being rejected by a bank.
  5. Be careful of signing the bank’s Power of Attorney form.  They often contain indemnification provisions very favorable to the bank.

If all else fails, hire an attorney to fight the banks for enforcement of your valid power of attorney.

If you need help with estate planning in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at contact@paulperduelaw.com to schedule a consultation.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC

3 Important Things to Consider About Survivor Benefit Plans and Military Pensions

Absent a survivor benefit plan (SBP), a service member’s pension terminates upon the service member’s death.  Therefore, eligibility for SBP is important.  Here, are three important things to consider when determining your eligibility for survivor benefits.  This is general guide of who may be eligible for SBP coverage.  However, the facts of each case are different and your case may differ from this general advice.

  1. If you are the spouse of an active duty servicemember then you are covered by survivor benefits once the servicemember becomes entitled to retired pay.
  2. If you are the spouse of a military retiree from active duty and were married prior to the servicemember’s retirement, then you are covered by survivor benefits unless the servicemember chooses to waive SBP coverage or the servicemember chooses child-only coverage.  Either of these options requires the spouse’s written consent.
  3. If you are the former spouse of servicemember then divorce ends your SBP coverage unless the servicemember elects former spouse coverage from DFAS within a year of the entry of the final decree of divorce or the former spouse submits a court order requiring SBP coverage to DFAS within a year of the entry of the final decree of divorce.  A former spouse must also submit a DD Form 2656-10.

If you are involved in a divorce case with an active duty servicemember, national guard or reservist retiree, care should be used to determine your eligibility for a SBP.  Absent SBP coverage, your benefits as a former spouse can terminate if the servicemember predeceases you.  This could cause financial hardship.

SBP coverage is not without disadvantages.  Please read our post discussing the advantages and disadvantages of SBP coverage.

If you need help with a military divorce or custody case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

The 10 Year Rule in Military Divorce

Fact and Fiction: The 10 Year Rule in Dividing Military Pensions

One of the most confusing items in my divorce practice is the division of military pensions.  In my estimation the main source of the confusion is the 10 Year Rule.  Many service members and their former spouses believe the military pension cannot be divided unless they satisfy the rule.  This is a myth.

Congress enacted the Uniformed Services Former Spouse’s Protection Act (USFSPA) in 1982.  USFSPA allows states to divide military retirement pay as marital property in a divorce.  State law, therefore, determines how the military retirement pay will be divided.  The 10 Year Rule determines whether you can receive payment directly from the pension administrator DFAS.  In order to receive your share of the military retirement pay directly from DFAS, 1) you must have been married to the servicemember for at least 10 years; and 2) the servicemember must have performed at least 10 years of service credible towards retirement during the marriage.  Finally, you must have a court order requiring direct payment from DFAS of your share of the military retirement pay.

If you fail to satisfy the 10 Year Rule, you can still receive a percentage of the marital portion of the military retirement pay.  You just cannot get paid directly from DFAS.  In this scenario, the servicemember would be required to pay you monthly via cash or check.  The servicemember could also set up an allotment which would allow you to be paid automatically.

In summary, the 10 Year Rule is not a bar to the division of military retirement in divorce.  The 10 Year Rule is an administrative limitation to ease the burden on DFAS and prevent DFAS from wasting resources on short marriages.  The actually determination of the marital share of a military pension, i.e how much the former spouse gets, is governed by state law.  In Virginia a court will consider the factors in Code of Virginia § 20-107.3 to determine the division of marital property.  However, USFSPA does limit a former spouse’s recovery to fifty percent of the marital share of the military retirement pay.

If you need help with a military divorce or custody case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Public Service Announcement: Don’t Overlook Uninsured Motorist Coverage

You probably know if your cell phone is insured but do you know your uninsured and underinsured motorist coverage policy limits.  You should, it may be your most important policy. 

In Virginia, a driver is only required to have $25,000 in liability coverage.  Typically, if you are injured in an automobile accident, you can only recover the negligent driver’s policy limits.  Uninsured Motorist Coverage (called UM in the trade) and Underinsured Motorist Coverage (called UIM) protects you if those policy limits don’t cover the full cost of your medical care.

Situations where UM/UIM coverage is particularly important

  1. Hit and Run drivers:  if the driver is unknown your only hope of finding insurance coverage is probably your uninsured motorist coverage.
  2. The negligent (at fault) driver has little or no insurance coverage.

How does UM/UIM coverage work?

In Virginia if you have UM/UIM coverage and are injured by an uninsured or underinsured motorist then your insurance company will provide legal defense to the uninsured/underinsured driver.  As an example, assume you are injured by a negligent driver and have $80,000 in medical bills.  The negligent driver only has $25,000 in liability coverage and you have $100,000 in UM/UIM coverage.  Let’s say the court awards $150,000 in damages.  In this scenario the negligent driver’s insurance company would pay $25,000 in damages and your UM/UIM would then pay $75,000 in damages.  The UM/UIM coverage only takes effect for the amount that is greater than the negligent driver’s policy.  Your total recovery would only be $100,000.  If you had $200,000 in UM/UIM coverage you could have recovered the entire $150,000 that was awarded by the court.  However, lets change the scenario.  In Scenario 2, you only have $25,000 in UM/UIM coverage.  In Scenario 2 you would be able to recover $25,000 from the negligent driver’s insurance company and nothing from your UM/UIM carrier.    The person in Scenario 1 (even though they didn’t have enough UM/UIM coverage) recovered 75% more. Now, you begin to see the importance of UM/UIM coverage.  For a few more dollars per month, you can ensure that you receive the treatment you deserve if you are injured by a negligent driver.

What are we seeing in practice?

In the last two years, in a large percentage my personal injury cases the negligent driver only had $25,000 in coverage.  Additionally, the majority of my clients only had $25,000 in UM/UIM coverage.  Many were forced to accept less than the true values of their case because of the lack of insurance coverage.

Take Action Now

  1. Review your automobile insurance policy and determine how much UM/UIM coverage you have currently.
  2. Full Coverage does not mean that you are protected.  You need to look at the amounts of coverage.
  3. Determine the amount of UM/UIM coverage that you need.  Each individual should make an assessment of how much coverage they can afford.  However, a minimum policy of $25,000 is not enough.
  4. Our advice is to get the largest UM/UIM policy that you can afford.  In Virginia the maximum UM/UIM coverage is usually $500,000 in coverage.  If you can afford it, please get it.

If you need help with a personal injury case or auto accident case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

 

Nonphysician Medical Providers’ Testimony in Personal Injury Cases

Are Physician Assistants and Nurse Practitioners going to change expert testimony in personal injury cases?

We had some friends in town this past weekend. One friend is a physician assistant in the ER. It got me thinking about who can testify as an expert in an automobile accident case. Experts are used in personal injury cases to testify to the cause of the plaintiff’s injuries. Experts are also used to testify to the plaintiff’s treatment and the plaintiff’s prognosis. Experts are essential to the determination of damages.

Historically, most medical care was done by a physician (a doctor). However, The Affordable Care Act, an aging population and a shortage of physicians has increased the demand for non-physician health care providers like physician assistants and nurse practitioners. The Bureau of Labor Statistics estimates the physician assistant profession will grow by 38% between 2012 and 2022.
The explosive growth in non-physician providers leaves lawyers wondering who can testify as an expert on behalf of their client especially if they never saw a physician. The Code of VA § 8.01-401.2 was amended in both 2014 and 2015 to allow a physician assistant or nurse practitioner to testify to the following, “etiology, diagnosis, prognosis, treatment, treatment plan, and disability, including anatomical, physiological, and pathological considerations.” A physician assistant or nurse practitioner may not testify against a doctor as to diagnosis or treatment in a medical malpractice action.

The question still unanswered in my mind is whether judges and juries are going to trust the physician assistant. Physicians (Doctors) are historically given great deference by judges and juries. Will defense counsel simply call a physician as an expert to rebut the treating nurse practitioner’s testimony? Will the judge or jury side with the physician because they have more education? I don’t know the answers to these questions. I am certainly interested in seeing how the physician – non-physician dynamic evolves over time.

If you need help with a personal injury case or auto accident case in Chesterfield, Colonial Heights, Dinwiddie, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 or email us at Contact@paulperduelaw.com to schedule a consultation.

Law Day 2016 – Miranda Rights

At the heart of the foundation of our country is the belief that we are a nation of laws that are balanced to protect the rights of all citizens.   President Dwight Eisenhower established the first Law Day in 1958 to recognize our nation’s commitment to following the rule of law. In 1961, Congress passed a joint resolution declaring May 1st as the day for celebrating Law Day. Each year a theme is selected to study and celebrate. This year’s theme is a celebration of the 50th Anniversary of the U.S. Supreme Court case – Miranda v. Arizona.

In Miranda, the defendant was arrested and taken to a police station and interrogated by police officers for two hours. Oral and written confessions by the defendant were introduced in the trial against him. The defendant was convicted and given a lengthy prison sentence. The U.S. Supreme Court overturned Miranda’s conviction and held that incriminating statements made by a person who is interrogated in police custody cannot be used against the person unless the prosecution shows that procedural safeguards were used to insure that the person knew of his rights not to incriminate him or herself.

Miranda is misunderstood by many people. There is a belief among many that if Miranda warnings are not read then the person gets a get out of jail card. Miranda prohibits the prosecution from using the incriminating statements in its case in chief in a trial against a defendant if the statements are obtained in violation of the requirements set forth in Miranda v. Arizona. However, the prosecution can opt to re-try the case without using the incriminating statements. In fact, the Miranda defendant was retried and was convicted without the use of the incriminating statements.

No exact statement is required for a warning of Miranda rights. Most jurisdictions have a version that is similar to the following: “You have the right to remain silent. Anything you say or do can and will be held against you in the court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights as they have been read to you?”

The last statement is generally followed by the law enforcement officer asking, “Knowing these rights, do you wish to speak to me?” Miranda rights can be waived. Use Caution when deciding to waiver your Miranda rights. The officer would prefer to speak with you without an attorney present because you are more likely to make an incriminating statement outside the presence of your attorney.

The best way to ensure that you do not waive important Constitutional rights is to invoke your right to an attorney prior to responding to questions while being interrogated in police custody.

Access to School and Medical Records by Noncustodial Parents

It’s not surprising that parents who are not together can have trouble working together on issues affecting their child.  It is not uncommon for one parent to withhold information about the child from the other parent, usually the noncustodial parent.  Withholding medical and school information has been such an problem that the legislature has deemed it necessary to pass laws stating that unless otherwise barred by law, a parent shall not be denied access to the academic or health records of that parent’s minor child unless otherwise ordered by the court for good cause shown or if a health care provider believes such access to medical records would be reasonably likely to cause substantial harm to the minor or another person.

Additional language in the Virginia Code under the education section reaffirms the legislature’s belief that all parents should have access to their child’s school records and further provides that either parent can designate in writing for a third-party, such as a step-parent or a therapist, to have access to the child’s school records.

Those are very strong words from the legislature that obviously felt compelled to pass laws requiring access to these vital records to enable both parents to be knowledgeable about their children.  These laws are subject to abuse by enterprising parents to either deny access to or gain access to the records for nefarious reasons.  Parents who seek to deny this vital information to their child’s other parent should do so with valid reasons which support the notion that it’s not in the child’s best interests for the access to the records be granted.  Under the same line of reasoning, all parents who have access to a child’s medical or health record must exercise discretion to use the information obtained from these records for the best interests of their child.

If you need help with a Custody or Visitation case in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss potential solutions in more detail.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

Should you be concerned your ex’s new spouse may try to adopt your child?

Going too long without contacting your child could have legal ramifications.

 
In some situations, your biological child’s step-parent may be able to adopt your child without obtaining your consent. VA Code Section 63.2-1202 (H) states: “No consent shall be required of a birth parent who, without just cause, has neither visited nor contacted the child for a period of six months immediately prior to the filing of the petition for adoption…” Va Code Section 63.2-1202(H)
 

If you go a year without calling, writing or visiting with your child and you have no legitimate reason for not contacting the child, then court can grant the adoption to your child’s step-parent without your consent. The court can grant the adoption even if you are paying child support.
 

In Virginia adoption, results is a complete severance of parental rights. Even though you may be the biological parent, post-adoption you are a “legal stranger” to the child. In the eyes of the law, you are no longer the parent of that child. This means that you cannot petition for court ordered visitation rights with the child. However, there may be some avenues for voluntary communication agreements with the adoptive parents.
 

If you need help with an adoption or family law matter in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss potential solutions in more detail.

**This material is for Information Purposes ONLY and should not be construed as legal advice and does NOT create a legal relationship with Paul Perdue Attorneys PLLC.

What should a consultation with an attorney do for you?

A legal consultation is a meeting between an attorney and a potential client in which they discuss the basic facts of the legal dilemma you are facing.  The consultation will usually include potential remedies to resolve the problem and a determination of the costs of representation.

However, the legal consultation is not a sales meeting or a pep rally.  The purpose of the consultation should be about finding legal solutions for the client not about selling a service.

A good legal consultation should do the following:

1)      Put you at ease. The biggest cause of anxiety of those coming in for a consultation is the fear of the unknown.  A good consultation will address the legal issues and your options in a way that brings you peace of mind.

2)      Take emotions out of the equation.  A good consultation will help the potential client put aside any emotional issues caused by the legal situation and allow the potential client to focus on the legal problem.

3)      Put together the framework on how to resolve the legal problem.  A consultation may not solve all of your legal issues but it should help you see the path that must be taken to resolve your legal issue.

4)      Let you know whether the attorney is someone that can work with you.  A successful legal result takes effective communication and work from both the attorney and the client.  The consultation is a good time to test your ability to work with the attorney.

 If you have legal troubles in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss your troubles in more detail.

Two Things to Know about Grandparent Visitation

Grandparents or other family members sometime want to petition for court ordered visitation time with a child.  There are a number of reasons why a Grandparent would want to petition for visitation.  For example, one of the parents is deceased or incarcerated and the other parent doesn’t foster a relationship with the other parent’s family.

Virginia Code Section 20-124.1 grants a court the authority to award visitation to a person with a legitimate interest.  Grandparents, step parents and other family members are included in this definition so long as they have properly intervened in the lawsuit.

The rules for grandparent visitation depend on whether both parents object to the visitation or if one parent objects to the visitation and one parent supports grandparent visitation. *

If Both Parents Object:

If both parents object to a grandparent having visitation with the child, then the grandparent must show that the denial of visitation would result in actual harm to the child’s health and well-being.  If the grandparent is able to satisfy the actual harm standard, the grandparent must also demonstrate that court ordered visitation would be in the child’s best interest.  See Williams v. Williams, 24 Va. App. 778 (1997).

 

If One Parent Objects and One Parent Supports Visitation:

If only one parent objects to the grandparent having visitation, then the grandparent doesn’t need to satisfy the first requirement of showing actual harm to the child.  The grandparent only needs to show that visitation with the grandparent will be in the best interest of the child.  Removing the need to show actual harm lowers the grandparent’s burden and greatly improves a grandparent’s probability of success.

 
 

Grandparent visitation cases are challenging and can involve complex legal arguments.  If you need help with a custody, visitation or divorce case in Chesterfield, Colonial Heights, Dinwiddie, Fort Lee, Hopewell, Petersburg, Prince George, or Sussex. Give us a call at (804) 668-5327 and schedule a consultation to discuss your troubles in more detail.

 

*The rules for grandparent visitation apply to petitions for visitation by other family members or persons who qualify as persons with a legitimate interest.  We use grandparents in this post as the most common example of a party with a legitimate interest.