Author: Thyden Gross and Callahan LLP

The Phone Call (Part 2)

by James J. Gross

Greg is talking to experienced divorce lawyer, Jeb, about property distribution in a divorce.

“We have separate bank accounts and that $60,000 is in my name alone,” Greg says.

“Doesn’t matter,” Jeb advised, “it’s still marital property.”

“What if I should spend the $60,000 before the divorce?”

“It depends on how you spend it.  If you buy a car or a Rolex, those items become marital property.  If  you buy consumables, then the money is gone and the court can’t divide it.”

“What if I give it to my brother as a gift?”

“That won’t work,” Jeb told him.  “The court can undo that gift.”

(to be continued)

 

The Twenty Year Divorce

by James J. Gross

Thirumoorthy Ramakrishnan, 53, and Subhashini Bala Subramanian, 49, met through a matrimonial advertisement in a newspaper.  They married in 1998.

Twenty days later, the wife was arrested for misappropriation of funds. The husband was questioned by the police several times which he claimed embarrassed him and caused tension in his life.  He claimed this amounted to cruelty and he filed for divorce.

Although the couple had lived together only twenty days, it took the court almost twenty years to grant the divorce.  The courts in India have a backlog of millions of divorce cases.

 

Advance Directives

by Michael F. Callahan

Advance directives allow you to express your wishes regarding health care decisions in the event that you are incapacitated and cannot communicate your preferences yourself.

Components of Advance Directives

Usually advance directives address two distinct issues: 1) directions regarding end-of-life medical care – a living will and, 2) designation of a health care agent to act in the event of incapacity –  a health care power of attorney. These two parts are often combined into one document and called an advance health care directive or by a similar name..

  • Living Will: A living will may also be called a health care declaration, or something similar. The person who makes a living will is sometimes called the declarant.   A living will is different from a last will and testament, which directs the distribution of a decedent’s estate.   A living will, on the other hand, takes effect during the declarant’s lifetime and tells medical professionals the type of care the declarant desires should she become incapable of expressing such wishes herself.

Many state laws on advance directives set forth a statutory form which covers some aspects of end-of-life medical care, containing blanks for individual directions and providing that other forms of living will are also valid (although the state laws regarding manner of execution are generally mandatory).

Maryland’s law provides a statutory form that covers three end-of-life situations: 1) Terminal condition (death is imminent), 2) Persistent vegetative state (coma), and 3) End stage condition (incurable condition that will result in death).  For each, there are three choices for level of care: a) just keep me comfortable, b) keep me comfortable and use an i.v. for hydration or nutrition if necessary, and c) use all appropriate medical interventions to prolong my life.

A living will can address other subjects including: Cardiopulmonary resuscitation (CPR); artificial life-sustaining equipment (ventilators, dialysis machines, etc.), and organ donation.

These, of course, are deeply personal decisions that require thoughtful consideration if the living is to reflect the declarant’s values and wishes.

  • Health Care Power of Attorney: A health care power of attorney may also be called a medical power of attorney or durable power of attorney for health care (among other names). You use it to nominate someone to oversee your healthcare decisions in the event you are unable to do so, either temporarily or permanently.  The person who makes the health care power of attorney is sometimes call the principal.  The person named in the document to make decisions for the principal may be referred to as an attorney-in-fact, health care proxy, health care agent, health care surrogate, or something similar.

Regardless of what the agent is called, he is obligated by law to follow your instructions regarding health care decisions.  Your instructions are included in your living will or in the health care power of attorney.  Depending upon your situation, the selection of your primary and back-up health care agent may be obvious and perfectly satisfactory – your spouse or your local and responsible child, etc.  Sometimes it is a tough choice requiring careful thought and difficult conversations.  But it is always an important choice.

When is the best time to create an advance directive?

The best time to create an advance directive is when you’re healthy because you have the opportunity to consider your options carefully when immediate health concerns aren’t on your mind. You can also discuss your choices with your loved ones ahead of time.

It is especially advisable for those who are scheduled to undergo surgery or who are critically or terminally ill to consider making an advance directive.

When does an advance directive take effect?

In general, the provisions of your living will become applicable when you are unable to make or communicate decisions regarding your medical care.  Your health care agent has authority under your advance directive under the conditions specified in the document or under state law – usually when you are unable to make or communicate the decisions yourself.  So your doctors and your health care agent will refer to, and generally be bound by, the instructions in your living will.

Can I change an advance directive?

Your advance directive remains in effect from the time you sign it until and unless you change it, which you can do at any time.  You should review your advance directive periodically to make sure it still accurately reflects your wishes regarding your medical care. If you do want to modify an advance directive, it is often advisable to simply create a new one so there is no potential confusion created by conflicting changes.

Where should I store my advance directive?

You should make several copies of your advance directive. Keep the original in a safe place that is accessible to your health care agent and let someone know where it is.  You should provide copies to the person named in the document as your agent, your doctors, and anyone else you think may be involved in your medical care.

Conclusion.

Illness or old age eventually come to us all. The time will probably come when you will need an Advance Medical Directive.  An Advance Medical Directive should be included in every estate plan. Contact us if you have questions or want to make an Advance Medical Directive.

The Phone Call

by James J. Gross

Jeb, the venerable divorce lawyer, sat in his office, trying to straighten his bow tie, when the phone rang.

The man on the other end, whose name was Greg, said he was going through a separation.  After some preliminaries, Greg said.  ”We’ve only been married for 13 months and she wants half of everything!”

“She’s not entitled to half of everything,” Jeb assured him.  “The court will only distribute marital property, and that means property acquired during the marriage.”

“So, if I made $150,000 during the marriage and she made $30,000, the court will distribute $180,000 between us?”

“Not exactly,” Jeb replied, “the court only distributes what is there on the day of trial.  So if you made $180,000 and spent $120,000, you saved $60,000 which the court will distribute as marital property.”

(To be continued)

 

Power of Attorney

by Michael F. Callahan

A general power of attorney is an effective tool if you will be out of the country and need someone to handle certain matters, or when you are physically or mentally incapable of managing your affairs. A general POA is often included in an estate plan to make sure someone can handle your financial matters if you become unable to do so.

What is a Power of Attorney?

A power of attorney (POA) is a document that is used to appoint a person or institution to manage your affairs if you become unable to do so. The person or institution you appoint is called your agent or attorney-in-fact.

Powers

You can grant broad powers to your agent.  You can give your agent any power that you have to make financial decisions, including the power to handle financial and business transactions, buy life insurance, settle claims, operate business interests, make gifts, and employ professional help.

Competency to Sign a Power of attorney.

You must be mentally competent at the time you execute your POA in order for it to be effective.  If you think your mental capability may be questioned, have a doctor verify it in writing.  Do not delay making a POA until your competency is questionable.

Make Sure Your Power of Attorney is Durable.

Be sure that your POA is “durable”.  This means that it contains language specifying that your appointment of an agent is still valid if you become incapacitated. That’s when you want your agent to act on your behalf.  But you have to state so specifically in your POA or your agent’s power will lapse just when he or she is needed.

Selecting an Agent.

Your POA is only as good as the person you select as agent.  Trust is a key factor when choosing an agent for your power of attorney. Whether the agent selected is a friend, relative, organization, or attorney, you need someone who will look out for your best interests, respect your wishes, act with care, keep good records and won’t abuse the powers granted to him or her.

Naming a Successor Agent.

Have a backup. Agents can fall ill, be injured, or otherwise be unable to serve when the time comes. A successor agent takes over power of attorney duties from the original agent, if needed.

Executing Your Power of Attorney.

You must sign and notarize the original POA document.  Banks and other businesses may refuse to transact with your agent on your behalf unless they receive a certified copy of the POA.

Revoking Your Power of Attorney.

You can revoke a POA at any time. Simply notify your agent in writing and retrieve all copies of your POA. Notify any financial institutions you deal with that your agent’s power of attorney has been revoked.

Conclusion.

Illness, injury, old age, or daily life commitments happen to everyone. The time will come when you will need a Power of Attorney.  A POA should be included in every estate plan. That is why you should understand what a power of attorney is and how it can assist in taking care of your business, even when you can’t.  Contact us if you have questions or want to give someone your Power of Attorney.

Changing Custody After Divorce

by James J. Gross

The email from the father read, “You handled my divorce 10 years ago.  My wife has custody of my 15 year old son who now wants to come live with me.  Can custody be changed after the divorce?”

“Yes,”  I replied.  “The easiest way to do it is to prepare an Amendment to the Separation Agreement and a Consent Order for the Court which incorporates the Amendment.”

“What is she doesn’t agree?”

“Then we can ask the Court to decide by filing a Motion to Modify Custody.  We will also ask the Court to recalculate child support based on the new custody arrangement.”

Wealthy Woman Not Entitled to Alimony

by James J. Gross

Word of a case has reached us from India.  A woman there asked the Bombay High Court to increase her alimony award granted in a divorce.

The court rejected her request because it found that she was already wealthy and therefore not entitled to alimony.  The court said that a woman who is able to maintain her lifestyle despite the estrangement doesn’t need alimony.

We have a similar concept in Maryland, although stated in different words.  Alimony is not intended to be a pension for life. The objective of alimony is to help a dependent spouse time to become self-supporting even if that results in a lower standard of living.  Holston v. Holston, 58 Md. App. 308, 473 A.2d 459 (1984).  Parties who each had over a million dollars in assets were already self-supporting and therefore not entitled to alimony.  Hull v. Hull, 83 Md. App. 218, 574 A.2d 20 (1990).

English Soccer Star Claims Special Contribution in Divorce

by James J. Gross

Ryan Giggs will ask an English divorce court for more than 50% of millions that he has acquired during his marriage due to his special skills in football, or soccer as we call it in America.  The argument failed last week in Randy Work’s “genius” claim.

We have something similar in Maryland which you can argue if you have made special contributions in your marriage.

In Maryland,when distributing marital property: the court must consider, among other factors;

— the contributions, monetary and nonmonetary, of each party to the well-being of the family.  Section 8-205 (b)(1) of the Family Law Article of the Md. Code

and

— how and when specific marital property or interest in property was acquired, including the effort expended by each party in accumulating the marital property or the interest in property.  Section 8-205 (b)(8) of the Family Law Article of the Md. Code