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.