Your Virginia Hometown Lawyer

Thursday was a difficult day in the world of celebrity news. But it is also a good view on what happens when we either are, or are not, prepared for end-of-life events.

On the prepared side, we all heard about the death of Farrah Fawcett. Since she had cancer and knew it was terminal, there were plans already in place so that the TV specials and news items that documented her life were all ready to go. Things seemed to go more smoothly for those that needed to act.

On the un-prepared side, we also all heard about the death of Michael Jackson. However, in Michael Jackson’s case, nobody thought that he would die so soon. The family was not prepared for his passing and the news media was not prepared to present the TV specials that would document his life.

Being prepared does not make a death more or less tragic. The loss of a loved one is always tragic.

But if you have prepared in advance, it can make things much easier on those that are left behind.

Even if we aren’t movie-stars, our passing will have a huge impact on our family and friends. I think we owe it to them to be as prepared as possible.

If you’d like to discuss what you can do to help your family become prepared for your inevitable passing, call our office to schedule an estate planning session.

There is rarely a ‘perfect’ anything. but there are ways you can strive to be the perfect legal client!

1. Be willing to listen. You might not like my advice, or the facts I have to tell you, but I am working hard to represent you the best way possible. So hear me out. Don’t get immediately defensive and stop listening to my whole statement.

2. Don’t be afraid to ask questions! I am here to represent YOU, and that means that you need to understand what I’m doing on your behalf.

3. Be prepared to go through stressful situations. I’ll do my best to make this as easy as possible, but legal matters are often stressful. You might want to consider getting the assistance of a therapist or talking to your doctor about something to help with your anxiety. We can all make better decisions if we are thinking clearly.

4. Be respectful of me and my staff and our time. We are people too and we have families and commitments as well. Don’t call at the last minute and get angry if we can’t stay late to accommodate your change in schedules. That also includes being on time for appointments. We make an effort to be sure we are prepared for your appointment and to clear our desk of other items during that time. If you show up late, or if you don’t show up at all, that means that we could have been spending our time on something else. This may not make a difference to you now, but think about how it might impact you if we tell you we are booked on the day you want to come in, and then those people don’t show up. You could have had the appointment you wanted if only the other client had told us in advance that they were not going to show up.

5. Keep good records. This is an important one! Once you have retained an attorney it is a good idea to buy a notebook or folder of some kind to start storing all those documents relating to your case. Also, keep track of activities that relate to your case. If you have a child custody and visitation situation, keep track of the times that the other parent visits with the child (and also keep track of the times when the other parent said they were going to visit and they did not show up). If your situation has to do with payments of any kind (e.g., child support, spousal support, rent payments on a house) keep a detailed record of when those payments were due, when they were paid, how much was paid and sometimes the manner of payment.

6. Do not hide information. If you are a client, we have an attorney - client relationship. This means that everything you tell me is told in confidence, so tell me everything, even if you think it might make you look foolish. I’d much rather hear it in my office than hear about it for the first time in a courtroom!

By following these suggestions, you can greatly improve the attorney-client relationship. If we work together then we have a better chance of getting the results we are working towards.

We all get junk mail. I get tons of it in as email and a fair amount in my physical mailbox. Sometimes, I don’t want to waste the time to read it, so it goes straight to the trash. I don’t do that as often anymore because I’ve found that throwing stuff away without at least looking at it can be dangerous!

I got a phone call from a company asking why I had not cashed the refund check they sent me. (the check was for over $100 for a book that I had returned). I realized that since I had decided to stop ordering books from that company, I had just been throwing all of the mail from them straight into the trash. Bad Idea!

I got a call from a client who found a note on his door from the person who bought his house in a foreclosure sale. When I asked about being notified about the sale, the client said that he usually just threw away mail from people he didn’t know.

Sometimes, the mail we think is junk mail is just that — junk.

But sometimes it is really important!

Now, I open each piece of mail I receive. Sometimes I spend about 1.5 second glancing at the contents to make sure it really is ‘junk’ before it goes into the trash. But on that one time when I find something important, it is worth the extra time!

We’ve all heard stories about people who die and the family thinks there was a Will, but nobody knows where it is.

Everyone knows that the Will should be kept in a safe place, but where?

A lot of people have a safe-deposit box at the bank. This is where they keep their expensive jewelry and important papers and it seems to make a lot of sense to keep the Will in there too. But there might be a problem. In Virginia, if you think the Will is in the safe-deposit box, you can be granted access for the sole reason to get the Will. The Will is then copied and a copy is put back into the safe-deposit box and the original is taken out so it can be given to the court.

But, if the safe-deposit box is not in Virginia, you might not be able to open the box to find the Will. That causes a real mess because ‘everyone’ thinks the Will is in the box, but it can’t be opened to find out.

A better alternative might be to buy a fireproof box and keep your important papers at home. That way, you can keep the originals of your papers close, you can tell your family members where to look, and you can access those papers any time you need them.

And while you’re at it, why not also write down your wishes about what you want to be done with your remains? A simple note telling your family whether you want a funeral and a burial in a vault, or if you’d prefer cremation, might make things much easier for those left behind.

The short answer is ‘no’. I am not aware of any law that requires you to use an attorney.

HOWEVER, (and this is a big however. That’s why it is in all CAPS) even if you aren’t required to have an attorney, you will be held to the same standards as an attorney. That means that you will be expected to follow all of the same rules that an attorney would need to follow. You will be expected to file the same papers in the same order as an attorney. And you will be expected to address the court in the same manner as an attorney.

Here is a true story that I’ll tell as an example.

I once had a leak (just a small drip actually) in the outside water pipe at my house. We decided that it would be too expensive to hire a plumber to fix it, so we decided to do it ourselves. How tough could it be? So we got a big wrench and started to undo the faucet that was attached to the pipe. It was hard to turn! So we tried harder. And then the pipe cracked! and not right at the end. No, the pipe cracked just under the ground. We had water everywhere! And we ended up having to turn all of the water off to the house. And of course it was evening, so we couldn’t even get anyone to come out until the next day. And of course the next day was a Sunday.

We ended up paying a plumber to come out on an emergency basis (double time) and on a Sunday (triple time, although since it was an emergency we were already going to be paying double time). And we ended up paying to have the entire pipe replaced including under the ground, which meant that my plants had to be displaced (and yes, they all died).

And we spent the night in the house with no running water.

The moral of this story?

It ended up costing me a lot more than it would have cost if I had just called the plumber in the first place!

Now, I really look at any leak to decide if I really, REALLY know I can do it myself. And if there is any question, I call a plumber.

And I go through the same thought process when it comes to hiring an attorney.

‘Do it yourself’ does not always save you money!

The short answer is ‘maybe’.

There are different types of adoption. You can adopt a baby, using an adoption agency or through a private placement. You can adopt an older child, again through an adoption agency or through a private placement. Some times, that private placement might be from a family member or a friend. Or you can adopt your step-child. This is the ultimate in private placement.

Generally, any adoption will mean that you are subject to a visit by social services to evaluate your home and family dynamics. This is not meant as a mere hindrance to you, this is for the protection of the child. Remember that the best interests of the child come first!

Even though a step-parent adoption may seem easier, it still entails the biological parent giving up his or her rights to the child. This can sometimes be a very emotional time for parents. Even a father who has never set eyes on his child, and has never shown any interest in paying support or being a part of the child’s life may balk at giving up his parental rights.

Do you need an attorney? I don’t know of any law that requires someone to use an attorney. However, anyone who decides to proceed ‘pro se’ (which is a confusing term to mean that you do it yourself), will still be held to the same standard as an attorney. So it is often even cheaper to get an attorney at the beginning and do it right the first time.

And one very important thing to remember is that children are not for sale! This means that you must be very careful about what payments you make on behalf of the biological parents, or payments made directly to the biological parents.

My suggestion is that if you are considering an adoption of any kind, call your attorney and at least get some initial background information before you proceed. I can save you a bundle in the end!

When you get a divorce,the courts will only try to divide what is termed ‘marital’ property. Any property that is termed ’separate’ property will be granted to the person who owns that separate property. In general, any property that you owned before you got married, obtained during the marriage by a gift or inheritance, or you obtained after your separation, will be termed your ’separate’ property.

Anything else is termed ‘marital’ property. This ‘marital property’ is what most people fight about during a divorce.

Virginia uses what is called ‘equitable distribution’ to divide property at the time of a divorce. “Equitable” means ‘fair’, not necessarily equal.

In most cases where there aren’t any strong compelling arguments, the division of marital property will probably be equal (or close to equal) because that is also fair. But there are situations that can make a difference.

The first step in any property division is to correctly identify property as ‘his separate property’, ‘her separate property’ and ‘their marital property’. While this sounds simple, it can get quite complicated. It is very important to keep good records so that separate property can remain identified.

Code of Virginia section 20-107.3 is the statute that outlines the steps to be taken for property distribution. Paragraph E lists 11 criteria that the court uses when it makes the determination about how to divide marital property. As in many areas of the law, there is a ‘catch all’ criteria that allows the court to consider ‘Such other factors as the court deems necessary or appropriate to consider in order to arrive at a fair and equitable monetary award.’

The best arrangement is for the parties to agree to a property settlement that they have negotiated themselves. It is quicker, cheaper, and probably closer to what each party really wants. But, if the parties cannot agree, the court will make a decision about the property division and the parties will be required to follow that court decision.

And the court’s decision will be ‘equitable’ based on all of the information that is available to the judge.

One of the really difficult things any parent has to consider is who to name as the guardian of their children.

Of course, we all hope that we remain alive and competent and we are able to raise our children ourselves. But sometimes Life Happens and our children are left without us. This is going to be a tough time for the kids anyway. And if you haven’t named a guardian, there will be even more turmoil as the courts try to decide who should be the person to raise your children.

In most states, the natural (or adoptive) parents are the legal guardians. That means that even if you have full legal custody of your children after a divorce, if something happens to you, the other spouse will become the child’s default guardian. Even if you decide that this is a good idea, what about the situation where that other parent is also not available?

Assuming you have agreed that you need to name a guardian, how do you choose?

You can make a list of the people that you will consider for this important role. (You might also make a list of people that you do NOT want to be guardians).

Then make a list of your own parenting style and what you think is important in your children’s lives. Do you want your children to attend the same church that you attend now? Do you want your children to be able to have a big yard to play in? Do you want your children to be with other children? Or perhaps you want your children to be the only children in the family? Do you want your children to learn how to cook? or work on cars? or be able to use the newest technology?

Then take the list of people on your first list and rank them according to the criteria on your second list.

The person on your list with the highest ranking number is probably the one you should choose.

What do you do then? You should contact your attorney to make sure that you have the correct legal documents to ensure that your choice is known.

And did you know that you can choose one person for the ‘personal’ care of your children and another person to be in charge of your children’s finances?

We all try to make sure our children are safe and that their physical needs are met when we’re around. We also need to make sure that their needs are met if something happens to us.

If you’d like to discuss this important aspect of parenting, contact the office at 757-234-4650 to set up an appointment!

I have a name. Actually, I have lots of names. Kristina Beavers, Mom, Grandma Kris, and maybe some I don’t even know about. I’ve also had a last name when I was a child, and different last names when I was married to prior husbands.

A name is how people identify you. And it’s also how you often identify yourself.

So, what do you name your child when he or she is born? We all struggle over the first and possibly middle names, but did you know that you can also select a last name? And, no, that last name doesn’t need to be the same as the father, or the mother. What this means is that Susie Baker, who is married to Tom Taylor can have a child and name her Jane Smith. (note that these names are as samples only and not an indication of any real persons).

Is this a good idea? I don’t really think so. For one thing, people will assume that you and the child have the same last name. That can make things very confusing when meeting people from your child’s school. That can also cause problems when you sign permission slips for school trips or when you take your children on trips yourself.

So when you have a child and are thinking of a name, be sure to think about how that name might cause problems for you and the child throughout the child’s life.

And if you happen to have a name that you don’t like, you can usually get that name changed legally.

The New Year is a great time to make resolutions and set goals.

But goals probably won’t be met unless we also have a plan of how to get there. If we are traveling to DisneyWorld (I’ve never been there myself), the goal is the get to the magic kingdom. But we can’t get there unless we know which road to take and calculate how long it will take us to get there. We might need to stay overnight on the way, so we need to find a hotel and make advance reservations. We might be lucky and just find a great hotel at a great price right where we want to stop at the end of the day. But, we might also be unlucky and find that we get tired of driving just after we go through the last town for 100 miles. If we plan ahead, we’ll know for sure that we have a room when and where we want one.

Now is a great time to think about what you want to do in the coming year, and to make the plans to ensure you get what you want.

Are you a young parent who does not yet have a Will or estate plan? Do you know who will take care of your children if anything happens to you?

Or are you an older person who’s children have grown up and are out of the house? Have you updated your will or estate plan to take these changes into account?

Are you thinking about starting a new business this year? do you know what steps you need to go through to get that accomplished?

Has your family life reached the stage that you just can’t stand it any longer? And you want to make sure that you and your children are protected financially?

Are you finally going to purchase that house this year?

One of my personal goals this year is to lose weight (yes, again). This time I have a plan of how to approach it and monthly mini-goals along the way so that I can adjust what I’m doing if it doesn’t seem to be working for me. And I have it on paper so I can touch it and read it every day to make sure I’m on track.

Another goal I have is to make sure that my own estate plan is up to date. My plan includes reviewing my living will to make sure that I haven’t changed my mind about any of my previous decisions. It also includes checking to make sure that any investments I’ve made this past year are included and that things I’ve sold are removed from my trust documents.

I have goals for my business and what I want to accomplish this year. My plan includes pieces on marketing, new subject areas and customer service. And I set milestones for each month so I can check my progress to make sure I’m still going in the right direction.

As you can see, I have lots of goals (and plans) for this new year.

If you need help with any legal aspects of your plans for this new year, call the office at 757-234-4650 and we can set up an appointment to discuss your goals and how to get there.