Preparing for Separation and Divorce

AvatarDonna E. Van Scoy, Principal

It is wise to meet with a divorce attorney, if possible, before your separation. If not, do so close to your separation.

Obtaining information about the process and having your questions answered helps with the stress and uncertainty. It also enables you to participate in how your divorce will proceed.

To locate an attorney communicate with your family, friends, co-workers, professional contacts, and community contacts. You can also search the internet for divorce lawyers and lawyer organizations that provide information about divorce lawyers. You will be spending a lot of time and sharing personal information with your attorney. Be sure you feel that you are being listened to and your questions are being answered. Be sure you are comfortable with your attorney.

If you have a child(ren) you will need to be prepared to discuss the legal and physical custody of the child(ren). Legal custody is the parental decision making regarding the child(ren) and their health, education and welfare. Physical custody is where and when the child(ren) will have custodial access with each parent. Child support is also a topic. As is which parent will remain in the family home or if both will relocate.

Depending on the length of the marriage and the financial picture of each party, alimony can be an issue. Review your monthly household expenses. Be prepared to discuss your family lifestyle. If you are a stay at home parent, you will need to share you educational background and work history. If you are the parent who provides the financial support for the family (or the majority of the financial support), be prepared to share each parent’s contributions and your position on the future financial contribution of the other parent. If you and your spouse are a two career family, be prepared to discuss the finances moving forward and the needs of each household.

Consider bringing three to five years of tax returns to your initial consult. Preparing a document that sets out all of you and your spouse’s assets is helpful in providing you with a complete and working picture. When preparing the document include all houses, land, vehicles, bank accounts (separate and joint), credit cards, debts, retirement accounts, investment accounts, stocks, art, jewelry, inheritance, and any others accounts or items of value. Provide all information. The attorney can help you determine what is important.

If you are not in a place to do the pre-work above, an attorney can still obtain your factual information, ask questions to fill in the blanks and share the law with you. They can assist you in putting your information together and prepare you to begin the divorce process. An attorney can also discuss the options available to secure your divorce. They will provide you information on negotiation, mediation, collaborative law, arbitration, and litigation.

For more information, contact Donna at 301-610-0110 or devanscoy@lerchearly.com.

Is the COVID Pandemic Hindering Your Child’s Chances of Future Success?

AvatarErik Arena, Principal

“…[I]t ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward; how much you can take and keep moving forward. That’s how winning is done!” – Rocky Balboa

Since roughly April 2020, the concern I’ve heard most from clients, friends, and colleagues alike – what is the pandemic doing to my child’s academic and social development? This question is causing unquantifiable angst for many, particularly with no end to the pandemic in sight.

Until our local jurisdictions return to full-time, in-person learning, and even after that happens, what are the traits and skills parents can teach their child or children to ensure he or she is still positioned for success? 

Author Paul Tough provides a refreshing take on this topic in his 2012 book, How Children Succeed. In its introduction, Tough describes the book’s mission:  “… to solve some of the most pervasive mysteries of life:  Who succeeds and who fails? Why do some children thrive while others lose their way? And what can any of us do to steer an individual child – or a whole generation of children – away from failure and toward success.” 

Tough’s approach – study those that have, and have not achieved success by academic, scholastic, or professional avenues, in similar and differing environments, to define the traits common among those who succeed. 

Tough and others, cited in his book, posit that common denominators for success are not necessarily intelligence quotient, mathematical abilities, reading or writing competence, or mastery of social or applied sciences. Rather, they are, more consistently, character or personality traits such as perseverance, grit, curiosity, social intelligence, conscientiousness, optimism, and self-control. 

Viewed in the context of the COVID-pandemic, what might this mean for you and your child? Well, if Tough and his colleagues are correct, parents need not necessarily worry if their child is falling behind a bit in math or science or any particular course or courses. That might actually be the expectation, given the challenges of remote learning for many adolescents. 

Instead, parents can use the challenges of the pandemic to further their children’s perseverance, grit, curiosity, optimism, and self-control. How might one do that? 

  • Encourage them to test daily the limits of their intellectual and physical abilities and curiosities;
  • Incentivize them to exhibit a bit more perseverance and self-control each day;
  • Providing constructive encouragement and feedback to reward effort and perseverance, and foster optimism and grit, regardless of success or failure. 

For more information, contact Erik at eparena@lerchearly.com or 301-657-0725.

Decisions, Decisions: Can your spouse make them for you if you lack capacity?

AvatarHeather Collier, Principal

Too often couples find themselves in a situation where due to age, illness, or accident, one spouse no longer has the ability to make decisions or handle life’s responsibilities – in legal terms, that spouse lacks “capacity” – and there is no plan in place.

What happens then? Can your spouse make decisions for you simply because they are your spouse? If not, are they able to obtain authority to make decisions on your behalf even if you are already incapacitated?

My colleague and fellow guardianship practitioner, Jenica E. Cassidy, associate attorney at Lerch, Early & Brewer, joins us as a guest author on this post to answer these questions:  

Can my spouse make decisions for me if I lose capacity just because they are my spouse?

If you become incapacitated, your spouse does not automatically have authority to make all of your decisions and handle your affairs. This can have far-reaching implications, ranging from accessing your bank account and paying your bills to speaking with doctors and consenting to medical procedures. If you don’t already have a power of attorney and an advance healthcare directive in place, your spouse may have no other option but to seek guardianship over you.

What is guardianship?

Guardianship is a legal procedure where a court appoints guardian for a person who has been determined to lack capacity to make and communicate responsible decisions for themselves and handle their personal affairs.

The guardian can be appointed to handle financial matters or healthcare and personal matters, or both. The guardian essentially steps into the shoes of the incapacitated person and has control over all aspects of the person’s life. Because of this, the court takes guardianship very seriously. A person seeking guardianship over another must file a detailed petition along with medical certifications verifying the incapacity. They must also provide notice to people close to the incapacitated person. The court will appoint an attorney to represent the incapacitated person and will hold a hearing before appointing a guardian. If anyone objects to the guardianship, the contested matter could proceed to a jury trial.

Suffice it to say, the guardianship process can be emotionally taxing, financially burdensome, and may carry on for many months. On top of that, it requires disclosing deeply personal information to a public record where a judge or jury will make the ultimate decision regarding who has control over your affairs.

What can I do now to make sure I have control over who makes decisions for me if I am not able to make them for myself?

It’s best to avoid guardianship if you can. It’s meant to be a matter of last resort after all other options have been exhausted. The best way to do this is to plan ahead. Prepare the appropriate estate planning documents. Name your spouse or a trusted individual to make decisions for you and handle your affairs should you lose the ability to do so on your own.

What type of lawyer do I look for to help me with these issues?

If you are planning ahead, see an estate planning lawyer to help you prepare the appropriate estate planning documents, including powers of attorney and advance medical directives, designating who has authority to make decisions for you in the event of certain circumstances.

If you are trying to pursue a guardianship over a loved one, see a family law lawyer or elder law lawyer who handles guardianship matters.

For more information, contact family law attorney Heather Collier at hscollier@lerchearly.com or elder law attorney Jenica Cassidy at jecassidy@lerchearly.com.