Lins Law Group Blog

Parenting and Timesharing in Florida

When a man and woman have a minor child (or children) together, two primary issues arise when deciding the allocation of time and decision-making involving the children. First, how will parental responsibility be assigned? Parental responsibility involves who will make major decisions regarding matters such as education, religious upbringing, discipline, and medical care. The presumption in Florida is that parents should have shared parental responsibility. This means the parents should each participate in decision-making in these areas. For a court to award sole parental responsibility, the court will usually require there to be some extraordinary circumstance (such as abuse, neglect, substance abuse, etc.). The second issue involving the minor children is “timesharing.” This concept covers when and where the children will spend time with each parent. Effective October 1, 2008, all divorces must include a parenting plan which covers parental responsibility, timesharing and other related issues such as transition (pick-up and drop-off), vacations, holidays, transfer of belongings, and notice of whereabouts of the children. The parenting plan governs each parent's relationship with his or her minor child and the relationship between each parent with regard to his or her minor child.

For purposes of establishing a parenting plan, including a time-sharing schedule, the best interest of the child shall be the primary consideration. Determination of the best interests of the child shall be made by evaluating all of the factors affecting the welfare and interests of the particular child and the circumstances of that family, including, but not limited to:

(a) The demonstrated capacity and disposition of each parent to facilitate and encourage a close and continuing parent-child relationship, to honor the time-sharing schedule, and to be reasonable when changes are required.

(b) The anticipated division of parental responsibilities after the litigation, including the extent to which parental responsibilities will be delegated to third parties.

(c) The demonstrated capacity and disposition of each parent to determine, consider, and act upon the needs of the child as opposed to the needs or desires of the parent.

(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.

(e) The geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan. This factor does not create a presumption for or against relocation of either parent with a child.

(f) The moral fitness of the parents.

(g) The mental and physical health of the parents.

(h) The home, school, and community record of the child.

(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.

(j) The demonstrated knowledge, capacity, and disposition of each parent to be informed of the circumstances of the minor child, including, but not limited to, the child's friends, teachers, medical care providers, daily activities, and favorite things.

(k) The demonstrated capacity and disposition of each parent to provide a consistent routine for the child, such as discipline, and daily schedules for homework, meals, and bedtime.

(l) The demonstrated capacity of each parent to communicate with and keep the other parent informed of issues and activities regarding the minor child, and the willingness of each parent to adopt a unified front on all major issues when dealing with the child.

(m) Evidence of domestic violence, sexual violence, child abuse, child abandonment, or child neglect, regardless of whether a prior or pending action relating to those issues has been brought. If the court accepts evidence of prior or pending actions regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect, the court must specifically acknowledge in writing that such evidence was considered when evaluating the best interests of the child.

(n) Evidence that either parent has knowingly provided false information to the court regarding any prior or pending action regarding domestic violence, sexual violence, child abuse, child abandonment, or child neglect.

(o) The particular parenting tasks customarily performed by each parent and the division of parental responsibilities before the institution of litigation and during the pending litigation, including the extent to which parenting responsibilities were undertaken by third parties.

(p) The demonstrated capacity and disposition of each parent to participate and be involved in the child's school and extracurricular activities.

(q) The demonstrated capacity and disposition of each parent to maintain an environment for the child which is free from substance abuse.

(r) The capacity and disposition of each parent to protect the child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

(s) The developmental stages and needs of the child and the demonstrated capacity and disposition of each parent to meet the child's developmental needs.

(t) Any other factor that is relevant to the determination of a specific parenting plan, including the time-sharing schedule.

These factors are taken into account in both divorce and non-divorce situations. In other words, if parents have a child and were never married, a court can still make parenting and timesharing decisions based on the factors listed above.

Under Florida law, neither parent is to be given preference for parenting or timesharing. This runs counter to prior law where there was a principle known as the “tender years” doctrine. Under the tender years doctrine, when a child was very young, there was a preference for the mother being the primary parent. The tender years doctrine is no longer the law applicable in Florida. Instead, the court is obligated to determine the best interests of the child in light of the considerations set out in paragraphs (a) through (t) above.

In some cases, the court will appoint a third party to conduct a parenting evaluation and to recommend a parenting plan to the court. Such an evaluation is usually conducted by a mental health or counseling professional and is usually done when the parties request such an evaluation. The main negatives of requesting such an evaluation is that it can take significant time (usually at least 90-120 days) and it is expensive (usually a minimum initial retainer of $2,500, with the total cost depending on the case). However, in a hotly contested parenting dispute, having one done is often a necessity.

Perhaps one of the most important factors to understand in any case involving minor children is that the court has a great deal of discretion in fashioning a parenting plan. This can present a risk to parties who do not work out the parenting/timesharing issues on their own. If they don’t, the court will decide the issues and the outcome may not be what either parent expected.

Alimony in Florida: an Overview

In Florida, alimony is a form of spousal support which can be ordered by the court during the dissolution proceedings and/or after the divorce is final. Alimony encompasses several different types, each of which has a somewhat distinct purpose.

Temporary alimony is support paid while the dissolution of marriage action is pending. Rehabilitative alimony is paid for a limited period of time to assist a spouse in training, education or adjustment in re-entering the workforce. Rehabilitative alimony is typically paid anywhere from one year to several years after the divorce is final. Its purpose is to assist one spouse in getting education or training to re-enter the workforce. Similarly, bridge-the-gap alimony is intended to help one spouse get back on their feet. This type of alimony is limited and shall not exceed two years. Permanent alimony is paid to one spouse for the rest of their life or until certain events (such as death or re-marriage) occur. Usually the payment of permanent alimony is ordered in longer term marriages although length of marriage is not always determinative. Durational alimony is newly established and is used in instances where permanent alimony is not appropriate and where rehabilitative alimony is either inadequate or not applicable. Lump sum alimony is ordered somewhat less often. With lump sum alimony, one spouse pays the other a flat amount, usually as a means of equalizing asset distribution.

Before determining what type of alimony to award and in what amount, the court must first determine whether alimony should be awarded at all. Alimony, unlike child support, is not determined or calculated by use of a formula. Instead, the court has discretion in determining whether alimony should be awarded, and if so, in what amount and over what period of time. In determining an alimony claim, the first issue to be determined by the court is whether one spouse has a need for support; the next issue is whether the other spouse has the ability to pay such support. If the court finds that one spouse has a need for alimony and that the other spouse has the ability to pay the alimony, then the court may go on to consider the factors listed below:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each.

(e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

(j) Any other factor necessary to do equity and justice between the parties.

The court can consider all of these factors together or in any combination. In addition, not all of the factors have to be established in order for alimony to be awarded and no one factor is considered more important than others. Instead, the court generally considers each factor and assesses its application and weight in a particular case. It should be noted that for each factor, there are significant court interpretations and rulings that apply; as such, in analyzing a particular case, the attorney handling the matter will need to find rulings that are applicable to a specific case. For example, on the “standard of living established during the marriage,” there are numerous cases interpreting what this means. As a result, one cannot simply read paragraph (a) on its face but instead must do so in the context of similar cases construing this provision.

Among the issues considered for assessing alimony, the length of marriage is certainly to be considered. Florida courts have long considered that the type of alimony awarded could be influenced by the length of marriage. For example, except in unusual circumstances, permanent alimony likely would not be awarded in a “short-term” marriage but likely would be in a “long-term” marriage. Until recently, what constituted a short-term or a long-term marriage was not clearly defined. Florida Statutes Section 61.08 (4) now specifies that marriages of less than seven years are considered short-term and marriages of 17 years or greater are considered long-term. In between, the marriage is considered a moderate-term or “gray area” marriage.

The discussion set forth above is general in nature and the analysis of whether alimony is applicable in a particular case requires careful consideration by an attorney experienced in such matters. In most cases, parties facing alimony claims should not try to represent themselves in the divorce process. To do so could run the risk of having the court impose a substantial obligation on them when proper preparation, analysis and argument could avoid or minimize the risk. 

 

Florida Trust Administration

              A popular estate planning tool involves establishing a “Living Trust” also known as a “Revocable Trust.” The person establishing a Living Trust is known as the “Grantor” “Settlor” or Trustor.” In order to establish such a trust, the Grantor executes a document which sets for the terms of the trust. The trust instrument or trust agreement is executed with most of the same formalities of a last will and testament, i.e. witnessed by two witnesses who sign in the presence of the Grantor and of each other.

 

          The trust instrument designates a person or entity, known as the “trustee,” to be in charge of administering the trust. In many Living Trusts, the Grantor acts as the initial trustee but designates who will take over as successor trustee upon the death or incapacity of the Grantor. Upon the death or incapacity of Grantor to act as trustee, the successor trustee must step in and fulfill various responsibilities. This article is intended to assist successor trustees in knowing what those responsibilities are and how to fulfill them. The matters set forth herein provide a general overview of trust administration. The specifics of each case may vary and therefore the trustee should seek legal counsel in accomplishing each of these steps.

 

          Overview of Trustee’s Duties. A trustee is a fiduciary and is held to a high standard when it comes to administering a trust. In particular, a trustee has a duty to act in good faith and in accordance with the terms and purposes of the trust and of the interests of the beneficiaries. The successor trustee has a duty to inform and account. This means that the trustee must provide all qualified beneficiaries with the Notice of Trust described below along with a copy of the trust instrument. It also means that, if requested, the trustee must provide all beneficiaries with relevant information about the assets and liabilities of the trust and the particulars relating to administration.

 

          Acceptance of Trustee. Upon the death of the Grantor, the successor trustee must take steps to undertake his or her appointment as successor trustee. This can usually be accomplished by the successor trustee signing an Acceptance of Trustee accepting appointment and agreeing to administer the trust. Most often, the Acceptance of Trustee is prepared by an attorney who practices trust administration law. The Acceptance should contain the name of the Grantor, and the name and address of the successor trustee.

 

          Trust Identification. Once in place, the successor trustee should be aware of and perform certain trustee responsibilities. The source of these responsibilities is from 1) the trust instrument itself and 2) from certain

Florida

statutes. In order to know what the trust instrument requires, the successor trustee should locate the most recent version of the trust instrument, including any amendments. That instrument should be reviewed with the assistance of an attorney.

 

         Notice of Trust. Next, the successor trustee should file a Notice of Trust as required by Section 736.05055, Florida Statutes. The Notice of Trust must be filed with the court of the county of the Grantor's domicile and the court having jurisdiction of the Grantor's estate. The Notice of Trust must contain the name of the Grantor, the Grantor's date of death, the title of the trust, if any, the date of the trust, and the name and address of the trustee. The Notice should be done as soon as possible after Grantor’s death, but in all events no later than 60 days after his/her death. If the Grantor's probate proceeding has been commenced, the clerk shall notify the trustee in writing of the date of the commencement of the probate proceeding and the file number.

 

         Initial Accounting. The successor trustee should immediately begin to identify and take control of the assets or property held in the trust. In connection with this step, the successor trustee will need to provide the beneficiaries with an Initial Accounting. As the assets of the trust are identified, the information needed to provide the initial accounting can be gathered. The initial accounting should include the assets in the trust together with their estimated value at the date of death. The successor trustee should keep thorough records of all assets and property which come into or which are distributed from the trust. These records will be used to provide the interim (if any) and final accountings. If administration continues in excess of one year from the initial accounting, it is advisable for the trustee to provide an annual interim accounting each year until the trust is terminated.

 

         Place of Administration. The successor trustee should designate a principal place of administration for the trust.

Florida

law has some fairly specific provisions governing where administration can be designated so the trustee should consult with an attorney in making this designation. The designation should be provided to all beneficiaries. If the principal place of administration changes, written notice must be provided to the beneficiaries.    <ⷈ㶢>

         Tax Id Number. During the Grantor’s lifetime, the trust used the Grantor’s Social Security number as a tax identification number. Upon Grantor’s death, a new Trust Tax Id. number for the trust must be obtained. This can be done through use of a SS-4 which can be prepared by an attorney or a CPA.

          Creditors. The trust is obligated to pay for any legitimate expenses of the Grantor’s estate. In order to determine the existence of valid claims, it is advisable to publish a Notice to Creditors. This Notice should also be sent via certified mail to any known creditors of the Grantor. Creditors have up to 3 months after publication or 30 days after actual receipt of the Notice to Creditors to serve a claim. In connection with claims of creditors, the trustee should also determine what, if any, taxes must be filed and/or paid. Once the Grantor is deceased, the trust becomes irrevocable and taxes must be paid by the trust on any income earned by trust assets. This means that for each year after the Grantor’s death, the trustee is likely going to be filing a tax return for the trust. The trustee is best served in addressing the tax issues by obtaining the advice of a CPA or other tax professional.  

 

         Once all of the trust assets are under trustee’s control and once the creditors and taxes are identified, the valid claims of creditors can be paid and the remainder of assets administered and distributed as described in the trust. If creditors are paid, it is advisable to have them sign a receipt for the payment made. If a distribution is made to a beneficiary, it is best to have the beneficiary sign a receipt for partial or total distribution.

 

         Final Accounting. When all creditors have been paid and all trust assets have been distributed, the trustee should either provide a final accounting for the trust or get all beneficiaries to execute a waiver of final accounting. If the trust is one which has been court administered, the trustee should obtain an order of discharge from the local probate court.

 

 

Estate Planning Documents You Need in Florida

In every Florida estate plan, there are certain documents which you should have in place. These include the following:

 

        1.  Last Will and Testament. This document allows you to appoint a personal representative to oversee your estate and to designate your beneficiaries. You can also appoint guardians for your minor children. While a Will does not avoid probate, it acts as a “roadmap” for the probate court to follow in accomplishing your desires. If you die without a Will, Florida law will determine who inherits your assets and how your estate will be administered.

 

        2.  Living Trust. This document, also known as a “Revocable Trust,” goes beyond the Will and allows you to implement a means to pass along your property without requiring probate. The Trust also allows you to control the distribution to your beneficiaries over a period of time rather than all at once. In the right situation, a Living Trust can be used to effectively reduce estate taxes. While not every estate needs a Living Trust, you should at least consult an estate planning attorney to evaluate its benefits in your situation.

 

         3.  Durable Power of Attorney. In this document, you appoint a person or persons who can act for you on business, personal and financial matters in the event of your incapacity.

 

         4.  Living Will. This document expresses your desires in the event of your having a terminal illness, an end stage condition or are in a permanent vegetative state.

 

         5.  Healthcare Power of Attorney. In this document, you appoint a person or persons who can act for you on medical decisions in the event of your incapacity.

 

         6.  HIPAA Authorization.  This document allows your physicians and other medical providers to speak with your designated persons about your health condition.

 

Having these documents provides a comprehensive plan to protect you in the event of disability, incapacity or death. If something happens to you, your loved ones will have the means to provide for you and to settle your estate with as little inconvenience, cost and delay as possible. Because these documents involve complex legal issues, they should be prepared by an attorney who practices in the area of estate planning.

Considering the Impact of a Pre-Marital Agreement

Doing family law, many times I see the benefits of a couple entering into a pre-martial (also known as a pre-nuptial) agreement. This article discusses the major issues which arise upon entering into such an Agreement. As a preliminary matter, you must understand that upon entering into such an Agreement, your intended spouse and you are waiving certain rights (and their accompanying benefits or obligations) which otherwise would have been available to you under applicable law. In particular, the Agreement will impact your rights in the event of dissolution of marriage or death. Because of this, you should only enter into the Agreement if you have a clear understanding of your rights and of the impact the Agreement will have on those rights. If you have any doubts or questions, you should discuss them with an attorney before signing.

Set forth below are a few of the major areas impacted by a Pre-Marital Agreement.

1.  Equitable Distribution. In the event of dissolution of marriage, the court will determine marital and nonmarital assets and liabilities. The court has the authority to divide those assets and liabilities equitably (in other words, as the court determines is “fair”). As a general statement, assets and liabilities accumulated during the marriage and enhancements of assets brought into the marriage, are considered marital and subject to division by the court. Upon entering into a Pre-Marital Agreement, you are agreeing with your spouse how assets and liabilities will be determined to be marital or nonmarital. The Agreement defines marital and nonmarital assets and liabilities differently than would be the case under applicable law. Therefore, the Agreement could significantly lessen the assets to which you are entitled and could increase the liabilities for which you are held accountable.

2.   Alimony/Spousal Support. In the event of a dissolution of marriage, you might be entitled to receive support from your spouse in the form of alimony (either rehabilitative, lump sum or permanent alimony). Upon entering into a Pre-Marital Agreement, you may be waiving or limiting your entitlement to receive such alimony or support. Once waived, you can never go back and receive alimony in a divorce action.

3.  Spousal Elective Share. In the event of your spouse’s death, you would normally be entitled to receive either what your spouse leaves you in their Will, Trust or by beneficiary designation, or to elect to receive 30% of your spouse’s estate. By entering into the Agreement, you are waiving your spousal elective share and would only be entitled to receive what your spouse leaves you by gift or bequest.

4.  Homestead Property. Under Florida law, spouses have certain rights in and to the primary marital residence in the event of divorce or death. Upon entering into a Pre-Marital Agreement, you are waiving your homestead rights under Florida law and thereby consenting to the homestead being disposed of as set forth in the Agreement.

5. Attorney’s Fees and Costs. In the event of a dissolution of marriage, a significant issue to be resolved can be who will pay for the attorney’s fees and costs incurred. If the divorce is contested, these can be in the tens of thousands of dollars. Under applicable law, the divorce court can order one spouse to pay the other spouse’s attorney’s fees and costs. In particular, the spouse who has the lower income can be impacted since it is usually that spouse who is awarded the fees and costs form the higher income spouse. Often in a Pre-Marital Agreement, the issue of attorney’s fees and costs are addressed, thereby limiting or altering a party’s rights to recover these expenses.

 

For more information, please visit our sister sites: www.linslawgroup.com and www.mytampabaydivorce.com

Florida Divorce Overview

A Florida divorce proceeding formally begins with the filing of a Petition for Dissolution of Marriage. This document sets forth certain essential allegations upon which the dissolution will be based. These allegations first establish the grounds for the court to assert jurisdiction. For instance, at least one of the spouses must have been a resident of Florida for at least six months prior to the filing of the Petition. The allegations must also include such factual matters as the date and location of the marriage, whether there are minor children, that the marriage is irretrievably broken, the desired division of assets and liabilities, the desired responsibility for the minor children, payment of support and alimony, etc. Generally, accompanying the filing of the Petition are a Family Law Financial Affidavit and a Uniform Child Custody Jurisdiction Act Affidavit.  After being filed with the court, the Petition is served on the opposing spouse by a Deputy Sheriff or by a private process server. That spouse then has 20 days within which to serve his or her Response and Counterpetition. The spouse must also file a Financial Affidavit. During the first 60 days after the filing of the Petition, both parties are required to serve certain mandatory disclosure on the other party. This includes exchange of an array of financial documents including tax returns, bank statements, loan applications, deeds, titles, and other related financial records.Early in the divorce process, the court will schedule a Case Management Conference where preliminary issues will be addressed. The timing of this conference will depend on the county and the court involved but is usually in the first 60-120 days. If there are minor children involved, most courts will require each parent to attend a mandatory course entitled "Children, Parents & Divorce." In many Florida counties, this 3-4 hour course is offered several times a month, often at a local hotel conference room. At the end of the course, each participant receives a certificate which must be filed with the court.At the first or second case management conference, the court will often order the parties to attend mediation. At mediation, the parties and their attorneys meet with a third party mediator. The purpose of the mediation is to try to resolve some or all of the issues in dispute. The mediator's role is not that of a judge; he or she does not "decide" the case. Instead, the mediator tries to help the parties reach an agreeable middle ground. If issues are resolved, they are reduced to a written agreement which is later presented to the court as binding on the parties as to the issues addressed. If the case does not resolve in mediation, then the case may proceed to a final hearing or trial before the court. Under Florida family law, trials are always before the court and not with a jury. 

More free information is available at www.linslawgroup.com and www.mytampabaydivorce.com

Protecting Minor Children

Sometimes young adults do not think they need to do estate planning. A common mindset is “I’m in good health and I’m young, so why do I need to do any estate planning?” For those persons with minor children, this is a very dangerous and uninformed outlook. If both parents die leaving minor children, the state decides who will become the legal guardian of your minor children. This means that a judge who knows nothing about you, your children or your family, determines who will care for and raise your children. If you take no action in advance, you will have no say in the outcome.

 

You should have a Last Will and Testament or a Living Trust, or both, in which you specifically name the person you wish to serve as guardian of your minor children. In fact, it is advisable to name multiple persons (in order of preference) so that if one person cannot or will not serve, you have back-up persons appointed. Most times, your designation of guardian will be the person appointed to take legal custody of your children. In addition, designating a guardian will allow the person designated to act as the temporary guardian until the court decides on the permanent appointment. Imagine if you and your spouse died suddenly in an auto accident. It may take some time for a court to determine a permanent guardian. However, if you have a guardian designated in your Will or Trust, that person will likely be the person to take immediate custody of the children rather than the children ending up in the foster care system. You can also make sure that the person appointed has the values and parenting style you would want for your children.

 

About ten years ago, my daughter became friends with a girl whose parents were killed in a tragic accident. There were three minor children at the time. The parents had no Will in place. The children ultimtely got split among family members, with one child going to one aunt in another state and the other two going to a different aunt. Needless to say, that was probably not what the deceased parents would have wanted for their family! If the parents had designated a guardian, the result likely would have been different.

 

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The Importance of Uninsured Motorist Coverage

This week I had a client come into the office with horrendous injuries. Her medical bills are already in excess of $60,000 and her auto accident just happened two weeks ago. By the time all of her treatment and recovery are finished, she could easily have bills in excess of $100,000. Add to this her lost wages and pain and suffering and she has a substantial case. Unfortunately, the person who hit her had only a small liability policy. This means that the client likely will not recover enough to pay her medical bills, much less recover anything for herself.

In some cases, this would not be so catastrophic if the client had her own unisured motorist ("UM")coverage. With that type of insurance, if the "at fault" party does not have any or enough liability coverage, then the UM coverage would kick in and pay for the client's damages, including medical bills, lost wages, and pain and suffering. However, in a effort to save money, many people decline UM coverage. In order to do so, they actually have to sign a form saying they decline the coverage. If the insuarnce agent does not obtain the signed waiver form, the client may be able to establish a right to the coverage. If there is no UM insurance, the badly injured client will have a great case but no one against whom to collect. As a result, she will likely end up facing a dire financial and personal situation since she will have huge unpaid medical bills, she may be unable to work and will suffer in pain in the future. 

In order to protect yourself and your family, you should talk with your insurance agent about securing the most UM coverage you can reasonably afford.

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Five Good Reasons for a Living Trust.

Many people read that they need a Living Trust but don't have a clear grasp of why they need one. There are at least five good reasons that a Living Trust is a great estate planning vehicle.

1. Probate Avoidance. By creating a Living Trust and transferring your assets into the Trust, your family can avoid having to probate those assets at the time of death. This can save significant time (often in excess of a year) and expense (often as much 3% of the estate) involved in probating one's estate.

2. Estate Tax Savings. Living Trusts, when set up for spouses, can facilitate in maximizing use of the unified credit (presently $2 million per person) and the unlimited marital deduction. This can avoid estate tax on the first $4 million of a married couple's estate.

3. Controlled Distribution. A Living Trust allows the party giving the gift to control the amount and frequency of the distributions. This way, rather than a beneficiary getting a distribution all at once, the distributions can be spread out in time and amount. This can be especially desirable if there are concerns about a beneficiary's ability to handle an inheritance all at once.

4. Confidentiality. The administration of a Living Trust is not a public process. Probate, on the other hand, is generally a public court proceeding. This means that beneficaries of the probate estate can be determined by anyone. It can also mean assets of the estate can be discovered by third persons. By having assets distributed through the Living Trust, no one other than the beneficiaries and the Trustee know the details of the distribution plan.

5. Care in the Event of Disability. If you become totally incapacitated or incompetant, usually a guardianship or conservatorship will have to be established. This involves a court declaring you to be incompetant. The guardianship then falls under court oversight and can cause considerable expense. If you have a Living Trust and become incompetant, your successor trustee can take over your care without a public declaration of incompetance and without a court proceeding. This saves embarassment, inconvenience and considerable expense.

The Final Judgment in Divorce may only be the beginning!

This week I've had an unbelievable number of inquiries from parties asking me about seeking enforcement or modification of various parts of their divorce Final Judgments. I'm not sure what is the reason for the number of calls other than perhaps that the economy is struggling so family finances for many may be tight. Also, school is out and summer travel and visitation plans are coming into focus. These elements may be acting to fuel what may already be strained parental relations. So I'm not sure what's behind it all but post-divorce disputes are certainly "in the air."

The extent of post-divorce disputes surprises some parties. In many cases, when a person gets divorced they think that once they have the final hearing, things are over for good. Sometimes this is true and sometimes it is waaaaaayyyyyy off base! When there's no minor child, no alimony, no child support, and relatively easy property division, then the final hearing really may be the end of things. However, when there are minor children, then ongoing issues often arise involving visitation, payment of child support, etc. Also, if there is an order to pay alimony, the disputes can be frequent and sometimes very heated. Let's face it, former spouses hate paying anything to their "ex." So parties are surprised and often frustrated that not only did they have to go through what may have been an expensive, nasty divorce but now they face a similar experience in the post-divorce stage as well. Regrettably, that is a reality from which there is little ability to avoid unless both parties go out of their way to accommodate each other and if they'd done that, maybe they wouldn't have gotten divorced in the first place!

For more information on divorce, visit www.linslawgroup.com