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Isaacs, Devasia, Castro & Wien LLP – Family Law Attorneys

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Family ties are thought to be the most private and enduring relationships in society. As most can attest, however, these relationships are rarely free from conflict. When domestic issues cannot be solved within the home, family law seeks to restore order and provide a fair solution for all parties involved.

For many, family law is thought to be synonymous with divorce proceedings. In reality, divorce is just a small part of family law which covers a broad array of domestic issues including adoption, premarital agreements, paternity and child support issues.

When legal action is necessary to resolve familial matters, it is essential that you entrust your most private matters with a compassionate and knowledgeable family law attorney. Our dedicated attorneys and staff serve as good listeners, confidants and advocates for all of our clients during their most difficult times.

Adoption
While adopting a child can be an immensely rewarding experience, it is often accompanied by a host of legal and bureaucratic complexities.  Those who approach the process with the aid of a knowledgeable attorney find that they are relieved of much of the delays, frustration and expense it often entails.

Whether you are a parent struggling to find the right home for your child, a couple looking to welcome a new member into your home or a relative hoping to assume responsibility for a minor in your family, you should contact our family law attorneys to ensure no detail is overlooked.  We will take the time to explain all of the adoption issues to you, assist in the preparation of required documentation, represent you at the adoption hearings and advocate on your behalf should any challenges arise in the future.

Child Custody
The dissolution of any marriage or partnership raises a plethora of issues. When children are involved, the resulting issues are even more complex as custody and child support issues come to the forefront. To ensure that a fair arrangement, based upon the children’s best interests, is reached, you should contact a knowledgeable family lawyer.

Our law firm routinely handles child custody cases and can help to determine the best custody arrangement for you and your children. We will review the custody evaluator’s recommendations, identify the children’s preferences and explain how local and state laws impact your specific case and family situation. Considering these factors, our family lawyers will work with you to devise a plan of custody for your children.

Child custody is dual faceted in that it encompasses both the physical and legal custody of the child. Physical custody is where the child resides while legal custody entails the decision making process for the parents including the right to decide education preferences, religious practices, medical treatments and activity involvement. Both of these aspects must be considered during child custody proceedings.

Our compassionate team of child custody attorneys will work with you to achieve the best possible outcome preserving your parental rights and protecting the children’s best interests.

Divorce
Divorce proceedings usually involve intense emotions and significant expense. Our dedicated matrimonial attorneys can work with you throughout your divorce to minimize the emotional strain and cost normally associated with these proceedings. We handle complex contested and uncontested divorces.

During the divorce proceedings, we will assess all of the assets and debt involved and strive attain the largest possible distribution of marital assets for our clients.  When appropriate, we will work closely with you to guarantee proper financial support through alimony. If children are involved, we will work with you to obtain custody of your children, child support payments or help in the development of a parenting plan, if preferred.

If you and your spouse choose to keep your divorce proceedings private and away from the courts, our law firm will work with you through voluntary mediation known as Alternative Dispute Resolution (ADR). During this process, both you and your spouse will meet with a neutral mediator to help resolve issues by bringing both parties to agreement on a fair solution. With ADR, there is complete disclosure and no litigation.  Many individuals prefer this method as it tends to be faster, less costly and produces a more amicable outcome.

Paternity
Paternity lawsuits may be necessary to determine parental rights, custody or support matters when the identity of the biological father is in question. In these instances, the court will order a genetic test. The results of this test are then used to establish a legal relationship between the parent and child and determine the extent to which the father has an obligation to support the child. Even if the biological father does not wish to play an active role in the child’s upbringing, he still has the obligation to provide financial support to the minor.

These suits may be brought by the mother, the presumed father (in many instances the husband of the mother), the man alleged to be the father, a government agency or the child (if he or she is underage, a representative must act on his or her behalf). Our family law firm is available to offer you legal guidance, assist in filing a paternity suit with the appropriate court or defend you against paternity action.

Domestic Violence
Domestic violence is unfortunately prevalent in many relationships and may include harassment, assault, sexual abuse or neglect.  If you or someone you love has been physically or emotionally abused by their spouse or another relative, you should contact the police and an experienced lawyer who can inform you of your rights.  Our dedicated attorneys will work to obtain an Order of Protection from the court to ensure your physical safety.

In the case of marital abuse, if you wish to pursue a legal separation or divorce in light of the events, our legal team can advise you on the best steps to keep you safe and dissolve the marriage as fast as possible while keeping your best interests in mind.

Our entire staff understands the sensitive nature of domestic violence and will strive to provide you with peace of mind throughout the proceedings. Should you require additional support beyond the legal realm, we can refer you to other professionals and resources to address all of your needs and begin the healing process.

Family law raises emotional and legal challenges for all parties involved. In such cases, it is essential that you surround yourself with trusted advisors and friends. Our law firm provides you with the legal and emotional support needed to get you back on your feet. We look forward to hearing your story and finding ways to help you through what is likely a transformational time in your life.

Isaacs, Devasia, Castro & Wien LLP – Divorce Mediation Attorneys

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For most people, going through a divorce is an absolutely terrible experience. The legal process of divorce can be emotionally, not to mention financially, draining. Divorce mediation is becoming an increasingly popular way to resolve issues in a divorce in a less adversarial manner which can reduce stress and yield more mutually beneficial results. In divorce mediation, rather than both parties going to court and using a trial to resolve divorce issues, such as a property settlement, child support and child custody, the parties will sit down with a neutral third party, called a mediator. The mediator helps both individuals come to a solution agreed upon by both parties

Divorce mediation offers many advantages to a couple working through a divorce. The divorce mediation almost always takes less time than litigating a divorce, especially for those couples who haven’t worked everything out in advance of the divorce. Divorce mediation also helps spouses tell each other what they want, without lawyers speaking for them or telling them what they should do.

Mediation helps spouses reduce the tension involved in a divorce. Also, couples who mediate are generally happier with the outcome than those who go to court, primarily because they feel like they were more directly involved in the outcome. The mediator can help couples with both immediate concerns and long-term concerns. Mediators can help focus couples on present issues, rather than bringing up hurts from the past that can be unproductive in reaching an agreement. Another benefit to mediation is that it is private, unlike a court case.

However, divorce mediation is not for everyone. If couples are behaving too poorly around each other to work together in the same room, mediation may not be the best bet. Some couples are dealing with spousal abuse or substance abuse. In those situations, it’s probably best for an attorney to speak on each spouse’s behalf.

Divorce mediation begins by learning more about the process. Next, the couple will gather information and provide it to the mediator. This primarily includes financial information such as assets owned, debts, bank accounts, automobiles, etc. Then, the issues that need to be resolved will be determined, such as division of property and debts, and child custody and support.

The couple will then begin to discuss concerns in the presence of the mediator. The couple will make decisions about the type of arrangements they want in a step by step manner. The divorce mediator should take care to make sure the needs of the children, as well as the spouses, are met. The mediator will help the couple explore various options available. Once an arrangement is agreed on, an attorney will draft it and the parties will sign.

If you are interested in learning more about divorce mediation, contact our qualified law firm.

Isaacs, Devasia, Castro & Wien LLP – Divorce Attorneys

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The goal of any firm is to make divorce (or ending other long-term relationships) as simple and painless as possible so clients can move on with their lives. The divorce process requires considering a number of factors including division of assets, spousal support and child custody and support.

Division of Assets 

Dividing the property of spouses during divorce can be quite difficult depending on how significant the assets are. These assets can include houses, rental property, retirement and pension plans, stock accounts, businesses, and more. If your divorce is contentious, then this can be especially complicated.

Reaching a negotiated settlement speeds the divorce process dramatically, and can save you money in legal fees. Moreover, in cases where you can’t come to an agreement, the court is going to use its judgement to impose a plan that is as fair as possible.

There are also state laws to consider as well as the difference between separate and marital property. In general, .Separate Property includes any property that was owned by either spouse prior to the marriage; an inheritance received by the husband or wife (either before or after the marriage); and gifts received by the husband or wife from someone else.

On the other hand, property acquired during the marriage is usually considered Marital Property regardless of which spouse owns or has title to the property. State laws vary greatly in how Marital Property is treated (especially between Community Property & Equitable Distribution States), So consulting a qualified attorney is critical.

Spousal Support (Alimony)

Spousal support is also a consideration when it comes to the division of assets. There is no one rule for all marriages, so whether spousal support is going to be required is something that is going to depend on your specific situation.

The purpose of alimony is to help the receiving spouse maintain financially stability after a divorce.  In general, courts award alimony is an amount that is “fair” under the circumstances and that the law requires.

Some considerations here include the standard of living established during the marriage, whether one spouse does not have enough property and income to provide for his or her “reasonable” needs, and whether the providing spouse has enough property or income to meet these needs.Finally, the issue of spousal support requires each partner to make a complete disclosure of their financial status including net worth. 

Child Custody & Support

Child custody and support is more often a point of consideration than spousal support. In cases where there are minor children, issues of child custody and child support are going to be at the core of a divorce agreement.

In the past, states have handled matters of child custody and support in family court. However, the states have moved toward uniform standards concerning these issues. Moreover, depending on the child’s age and maturity level his or her wishes are considered by the court. The ultimate consideration is what is in the best interest of the child. In many cases, divorcing couples can reach an agreement for joint custody.

Child support is an ongoing payment made by a parent for the financial support of a child after a divorce or the end of another relationship. Depending on the state, the parent who has custody of the children is paid by the non-custodial parent. In the case of joint custody, the parent with the higher income generally pays child support.

Child support and custody can be a contentious issue in a divorce, and an attorney with expertise in divorce and family law can guide the parties to amicably resolving these matters.

Same-Sex Divorce

Now that same-sex marriage is the law of the land, dissolving these relationships presents unique challenges including the full length of the relationship before a formal marriage.

A same-sex divorce can involve more legal disputes than that of an opposite-sex couple simply because of the relatively new legal complications. These include when the partnership or marriage began and the rules that apply to pre-marital assets and debts. Particularly, courts also struggle to settle child custody disputes in cases where one parent is the biological parent and the other parent is an adoptive parent.

Other Methods of Resolving Conflicts at Divorce

There are ways to resolve divorce conflicts outside of the courts. There are three basic methods including negotiation, mediation, and new approach known as collaborative divorce.

Put simply, negotiation involves the parties working through a dispute until it is resolved. While divorcing spouses can do this on their own, lawyers can and do play a role in these negotiations.

Mediation, on the other hand, is a form of negotiation that involves a neutral party known as a mediator. However, a mediator is not a judge or an arbitrator and does not make decisions or issue rulings. But the mediator works with both spouses to resolve legal disputes, communicate more effectively and ultimately reach an agreement.

Finally, in a collaborative divorce, each party has an attorney that assists in the negotiation by acting as advocates for their clients. Both spouses and both attorneys must agree in writing that they will not take the case to court and will settle it instead.In the end, a collaborative divorce will only work when all the parties agree to not have a referee or judge manage the divorce.

The Bottom Line

Divorce is not something most couples plan on, but the statistics for long lasting marriages say otherwise. In the case of a divorce, the issues are complex; and even more so by the emotions involved. In the end, a successful divorce is one that can be handled amicably, and this requires attorneys with the expertise and compassion to make it happen.

Isaacs, Devasia, Castro & Wien LLP – Domestic Violence Attorneys

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Being convicted of a domestic violence charge can have long lasting negative effects on your ability to obtain employment, own a firearm or even see your children. If you have been charged with the crime of assault or battery against a family member, you must meet with a criminal defense attorney as soon as possible to ensure your rights are protected.

Domestic Violence and Abuse Crimes

Domestic violence is a specific type of assaultive behavior directed toward members of a person’s family or household. It generally includes spouses, parents, children, romantic partners, step-family members, grandparents and grandchildren. Allegations of assault against a neighbor, plutonic friend or co-worker cannot be categorized as domestic violence even if the parties maintain a close relationship.

The term domestic violence refers to several criminal acts when committed against any of the above-listed family members. You may face domestic violence penalties as a result of committing the crimes of offensive touching, menacing, sexual harassment, trespass, criminal mischief, sexual assault, terroristic threatening or reckless endangerment. In other words, if the prosecution can demonstrate that you committed these crimes against a family member, the penalties and sentence may be enhanced under applicable domestic violence laws.

Penalties for Domestic Violence

The judge in your case will be most concerned with ensuring the safety of the alleged victim. Depending upon the relationship of the parties, the judge may order a temporary or permanent no-contact order. If the complainant in your case is the parent of your children, this could result in a difficult situation in terms of custody and visitation. Individuals convicted of domestic violence also have difficulty obtaining or maintaining primary placement of their children and may even lose visitation rights as a result of the conviction.

In addition to the civil penalties described above, you could face an enhanced incarceration period due to present aggravating factors. This may mean you are unable to see your family for weeks or months, unable to maintain your job and be prohibited from continuing your life as before. Domestic violence defendants are not permitted to own or possess firearms and many are forced to undergo lengthy anger management courses and counseling as a provision of their sentences.

Given the life-altering nature of a domestic violence conviction, it is imperative that you retain an experienced criminal defense attorney who can work to protect your freedom and relationship with your family. If this is your first time facing criminal charges and your history is clear of other felonies and misdemeanors, your attorney may be able to obtain leniency for you as a first-time offender, which could result in a dismissal of the pending charges.

Isaacs, Devasia, Castro & Wien LLP – Guardianship Attorneys

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For some members of our society, legal protection may be necessary even after they have entered adulthood. These individuals may have been injured in an accident, continue to suffer from an incapacitating physical illness or psychological disorder, or have some other condition that prevents them from caring for themselves. In these cases, a guardianship may be established.

Guardians and Protected Persons

Guardianship, also referred to as conservatorship, is a legal arrangement that places an individual, also known as a ward or protected person, under the supervision of a guardian, or custodian.  There are two main types of guardianship: guardianship of the person and guardianship of the estate or property.

A guardian is typically a family member, friend, or fiduciary appointed by the court. A protected person can be a minor without a parental guardian or an adult who can no longer make safe and sound decisions about his or her own person or property. Additionally, a person who is prone to fraud or undue external influence may be placed under guardianship for protection.

Appointment of a guardian can materially limit the rights and privileges of the protected individual in areas such as:

  • Choosing residence
  • Providing informed consent to medical treatment
  • Making end-of-life decisions
  • Making property transactions
  • Obtaining a driver’s license
  • Owning, possessing, or carrying a firearm or other weapon
  • Contracting or filing law suits
  • Marriage
  • Voting

Right to Due Process

In order to safeguard the protected person’s right to due process, he or she is usually provided with notice and is entitled to attend all legal proceedings related to guardianship. In addition, the protected person may obtain representation by an attorney, present evidence, and confront and cross-examine all witnesses.

Guardianship of the Person

Guardianship of the person grants authority over non-financial matters such as issues that impact the personal well-being of the protected person, including making important medical decisions. The appointed guardian is normally tasked with the following responsibilities

  • Determining and maintaining residence
  • Providing informed consent to and supervising medical treatment
  • Consenting to and supervising non-medical services such as education, psychiatric or behavioral counseling
  • Making end-of-life decisions
  • Maintaining the protected person’s autonomy as much as possible

Guardianship of the Estate or Property

Guardianship of the estate or property empowers the guardian to make important financial decisions on behalf of the protected person, including:

  • Organizing, gathering and protecting assets
  • Arranging appraisals of property
  • Safeguarding property and assets from loss, whenever possible
  • Managing income from assets
  • Making appropriate payments
  • Obtaining court approval prior to any sale of major assets

The guardian may be required to report to the court about his or her activities on an annual basis.

Many guardianships are temporary arrangements, meant to protect an incapacitated individual until he or she regains capacity.

Guardianship of Minors

Guardianships may also be used to protect the legal rights of a minor. In the event that a parent is no longer able to act on behalf of his or her child, a guardian, usually a relative, is appointed. Unlike an adoption, under a guardianship, parents may remain responsible for supporting the child financially and they do not necessarily forfeit their parental rights.

A minor may be considered for legal guardianship if his or her parent cannot provide shelter, does not have a steady income, suffers from an illness, or is incarcerated. In most instances, parental approval is sought prior to any legal proceedings.

Isaacs, Devasia, Castro & Wien LLP – Estate Planning Attorneys

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While nobody wants to think about death or disability, establishing an estate plan is one of the most important steps you can take to protect yourself and your loved ones.  Proper estate planning not only puts you in charge of your finances, it can also spare your loved ones of the expense, delay and frustration associated with managing your affairs when you pass away or become disabled.
 
Providing for Incapacity
If you become incapacitated, you won’t be able to manage your own financial affairs.  Many are under the mistaken impression that their spouse or adult children can automatically take over for them in case they become incapacitated.  The truth is that in order for others to be able to manage your finances, they must petition a court to declare you legally incompetent.  This process can be lengthy, costly and stressful.  Even if the court appoints the person you would have chosen, they may have to come back to the court every year and show how they are spending and investing each and every penny.  If you want your family to be able to immediately take over for you, you must designate a person or persons that you trust in proper legal documents so that they will have the authority to withdraw money from your accounts, pay bills, take distributions from your IRAs, sell stocks, and refinance your home.  A will does not take effect until you die and a power of attorney may be insufficient.
 
In addition to planning for the financial aspect of your affairs during incapacity, you should establish a plan for your medical care.  The law allows you to appoint someone you trust – for example, a family member or close friend to make decisions on your behalf about medical treatment options if you lose the ability to decide for yourself.  You can do this by using a durable power of attorney for health care where you designate the person to make such decisions.  In addition to a power of attorney for heath care, you should also have a living will which informs others of your preferred medical treatments such as the use of extraordinary measures should you become permanently unconscious or terminally ill.

Avoiding Probate
If leave your estate to your loved ones using a will, everything you own will pass through probate.  The process is expensive, time-consuming and open to the public.  The probate court is in control of the process until the estate has been settled and distributed.  If you are married and have children, you want to make certain that your surviving family has immediate access to cash to pay for living expenses while your estate is being settled.  It is not unusual for the probate courts to freeze assets for weeks or even months while trying to determine the proper disposition of the estate. Your surviving spouse may be forced to apply to the probate court for needed cash to pay current living expenses. You can imagine how stressful this process can be.   With proper planning, your assets can pass on to your loved ones without undergoing probate, in a manner that is quick, inexpensive and private.
 
Providing for Minor Children
It is important that your estate plan address issues regarding the upbringing of your children.  If your children are young, you may want to consider implementing a plan that will allow your surviving spouse devote more attention to your children, without the burden of work obligations.  You may also want to provide for special counseling and resources for your spouse if you believe they lack the experience or ability to handle financial and legal matters.  You should also discuss with your attorney the possibility of both you and your spouse dying simultaneously, or within a short duration of time.  A contingency plan should provide for persons you’d like to manage your assets as well as the guardian you’d like to nominate for the upbringing of your children.  The person, or trustee in charge of the finances need not be the same person as the guardian.  In fact, in many situations, you may want to purposely designate different persons to maintain a system of checks and balances.  Otherwise, the decision as to who will manage your finances and raise your children will be left to a court of law.  Even if you are lucky enough to have the person or persons you would have wanted selected by the court, they may have undue burdens and restrictions placed on them by the court, such as having to provide annual accounting.
 
Other issues to consider in this respect is whether you’d like your beneficiaries to receive your assets directly, or whether you’d prefer to have the assets placed in trust and distributed based a number of factors which you designate, such as age, need and even incentives based on behavior and education.  All too often, children receive substantial assets before they are mature enough to handle them properly, with devastating results.
 
You should give careful thought to your choice of guardian, ensuring that he or she shares the values you want instilled in your children. You will also want to give consideration to the age and financial condition of a potential guardian. Some guardians may lack child-rearing skills you feel are necessary.  Make sure that your plan does not create an additional financial burden for the guardian.
 
Planning for Death Taxes
The IRS will want to review your estate at death to ensure you don’t owe them that one final tax: the federal estate tax.  Whether there will be any tax to pay depends on the size of your estate and how your estate plan works.  Many states have their own separate estate and inheritance taxes that you need to be aware of. There are many effective strategies that can be implemented to reduce or eliminate death taxes, but you must start planning process early in order to implement many of these plans.
 
Charitable Bequests – Planned Giving
Do you want to benefit a charitable organization or cause?  Your estate plan can provide for such organizations in a variety of ways, either during your lifetime or at your death.  Depending on how your planned giving plan is set up, it may also let you receive a stream of income for life, earn higher investment yield, or reduce your capital gains or estate taxes.
 
A well-crafted estate plan should provide for your loved ones in an effective and efficient manner by avoiding guardianship during your lifetime, probate at death, estate taxes and unnecessary delays.  You should consult a qualified estate planning attorney to review your family and financial situation, your goals and explain the various options available to you.   Once your estate plan is in place, you will have peace of mind knowing that you have provided for yourself and your family in case the worst happens.

Isaacs, Devasia, Castro & Wien LLP – Trusts & Estate Planning Attorneys

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Many people have preconceived notions about trusts and believe that they are only for multi-millionaires who wish to leave large trust funds to their children. However, this is far from the truth; trusts can be invaluable tools in the estate plans of millions of individuals.

Trusts are simply an arrangement where one party holds property on behalf of another party. In an estate planning context, trusts are created by the person doing the estate planning (the settlor), who authorizes another person (the trustee) to manage the assets for the benefit of a third party (the beneficiaries). There are many reasons for establishing trusts including tax minimization or providing for the needs of underage beneficiaries.
 
Some types of trusts that may be useful in estate planning are:

  • Trusts for minors. Many people leave money to their children or their grandchildren in a trust as part of a comprehensive estate plan. This is typically done to ensure the money is there for the children’s benefit while they are younger-for support, education, medical expenses, etc. Once the children reach a certain age or achievement level (such as obtaining a bachelor’s degree), they may receive money from the trust to do with as they please.
     
  • Special needs trusts. Special needs trusts are tools that enable a person to leave property to an individual with special needs. Many individuals with special needs receive government benefits. If they were to suddenly inherit money, they would be disqualified in most cases from those benefits until the inheritance was spent. Special needs trusts protect those individuals’ government benefits while allowing them to have money for any extras they may need.
     
  • Marital trusts. Married couples sometimes include trusts in their wills, or separately, for the benefit of their spouse, typically for two reasons: (1) taxes, and (2) property protection. In previous years, marital trusts were needed for some couples to take advantage of estate tax exemptions, and they may be needed in the future as the laws are expected to change. Marital trusts can also protect property from a spouse to ensure that it ultimately goes where it needs to go. For example, a husband with grown children from a previous marriage may decide to let his wife use his property after he passes, but puts it into a trust so that after she passes away it goes to his children.
     
  • Revocable living trusts. Revocable living trusts are documents completely separate from wills although they often work hand in hand with wills to carry out the decedent’s wishes. Revocable living trusts are primarily used to avoid probate in states where probate is particularly cumbersome, or in a few other instances, such as when a person owns real estate in multiple states.


  • Irrevocable life insurance trusts. Irrevocable life insurance trusts (or ILIT’s) can be used in order to move a person’s life insurance proceeds outside his or her estate for estate tax purposes.
     
  • Spendthrift trusts. Spendthrift trusts are generally established to protect the beneficiaries’ assets from both themselves and creditors. These trusts usually have an independent trustee which has complete discretion over the distribution of assets of the trust.

As you can see, there are many different types of trusts, each of which can be customized to serve a valuable purpose in accomplishing the wishes of those making gifts or planning an estate. An experienced estate planning attorney can help you assess your finances and goals to determine the best vehicles to preserve your wealth and your legacy. 

Isaacs, Devasia, Castro & Wien LLP- Planning for Children Attorneys

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Many parents put off estate planning because they do not think they have substantial assets to protect.  This outlook is common among young adults who think they have plenty of time to accumulate wealth and plan for it at a later date. However, in failing to create a proper estate plan, many parents cannot adequately protect their children. All parents, with or without a great deal of assets should have an estate plan in place to set forth their wishes for their children which includes, among other things, nomination of a guardian in the event that they have an untimely passing while the child is still a minor.

In your estate plan, you can appoint a guardian (also known as a conservator) for your children upon your passing.  If there is no plan in place, the court will appoint a guardian to raise your children based on what it deems to be in the best interest of your children. Unfortunately, the court appointed guardian may not be your first choice and in some cases, he or she may actually be your last choice. From just a few brief hearings, it is often impossible for the courts to determine who is best suited to care for your children in your absence.

In some cases, where no clear-cut guardian is named, children may be sent to Child Protective Services to remain with a foster family until the court decides on a suitable guardian to take on the responsibility. For many parents, this scenario is reason enough to create an estate plan to protect their children.

Nominating a guardian can be a very difficult decision and one that should not be made without serious consideration. The individual selected should provide stability for your children in the difficult transition and ultimately continue care in a fashion with which you are comfortable. You should consider the following traits and circumstances when determining who is best suited to raise your children:

  • Age: You will want to make sure they are old enough to provide proper care (at least 18 years of age in most states) but young enough to remain in good health until your children reach adulthood.
  • Commitment: Ensure that the guardian does in fact want to take on this responsibility.
  • Temperaments: Carefully consider what kind of person will mesh well with your children. If you have young or energetic children, you may want to make sure the guardian exhibits patience.
  • Religious and moral beliefs: Do they share the same values as you and your spouse? Would they instill these in your children?
  • Nature of existing relationship with children: You will want to make sure that this person has a good bond with your children and that there is a mutual comfort level.
  • Location: If you prefer that your children not move out of their current home and/or school district, you will want to make sure that the appointed guardian resides close to you and intends to stay there until your child reaches the age of majority.
  • Does proposed guardian have other children? If so, does the guardian have enough time and resources to devote to his/her own children in addition to yours?
  • Finances: Can the candidate financially provide for your child if there are not enough funds available from your estate?

In the event that the guardian you have selected in your estate plan is unable to raise your children upon your passing, you should have two alternates who also meet the aforementioned criteria. This will ensure that your children are left in the hands of trusted relatives or friends and not in the court system.

If you have multiple children and would like to appoint different guardians to raise them separately, you may also outline multiple guardian appointments in your estate plan, however, this situation is generally not regarded as ideal for close siblings.

All appointed guardians must ultimately be approved by the court at the time of the parents’ passing. If a biological parent is still living, they will usually be named the guardian of the children unless evidence is presented that this individual is unfit to provide care to the children in question.

Trusts for Minors

In general, if an individual dies without an estate plan, his or her assets are distributed according to a formula determined by the state. In most instances, these laws pass wealth to both the surviving spouse and children. A properly crafted estate plan gives you control over this distribution allowing you to provide for specific people you designate and at the right time. It is recommended that all parents of minor children create a trust that is designed to safeguard the inheritance for their children. Such a trust gives you the ability to outline how much money your children will receive, the age at which they will receive the inheritance and to an extent how they are to spend this money. This allows you to designate funds for their college educations and give them their inheritance at a certain age, ensuring that they don’t waste their inheritance on fancy cars as soon as they turn eighteen years old.  The trust can also protect against potential creditors or even divorce.

Trust funds can also be used to provide support to your children until they reach the age at which they may receive their inheritance. In your estate plan, you must also name a trustee who can ensure this money is handled properly. It is important to note that the trustee may be different from the guardian selected in your estate plan. This is recommended if the guardian is good with children but not with money.

Trusts are important in that they ensure you still retain control over your wealth after your death in effect giving you greater control of your children’s futures. Trusts allow you to set aside funds for a surviving spouse ensuring that your children will be provided for even if your partner is not wise with money or remarries. Furthermore, a trust allows you to outline how the trustee is to budget funds for each child. If you have one child who has a special need or requires additional training to develop a talent, your trust may outline these appropriations. This is particularly important if you have a child with physical or mental disabilities who may require significant care beyond his or her 18th birthday.

Children are often the greatest assets that parents have and an integral part of the estate planning process. Your children’s well-being is only ensured with proper planning and while most parents hate to think about leaving their children before they are adults, it is essential that this possibility be considered and an effective plan formulated.  If you have not yet created a plan that adequately provides for your children, we encourage you to contact our knowledgeable estate planning attorneys today.

Isaacs, Devasia, Castro & Wien LLP – Foreclosure Attorneys

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A borrower who cannot keep up with his or her mortgage payments faces potential foreclosure which permits the lender to seize the property, evict the homeowner, and sell the home. In some cases, a lender may work with the borrower by refinancing or modifying the loan, or agreeing to a short sale. If the lender is unwilling, however, the homeowner may still be able to stop the foreclosure by filing for bankruptcy. Our experienced attorneys can advise you of all your options.

Bankruptcy Can Prevent Home Foreclosure

When a borrower files for bankruptcy, either Chapter 7 or Chapter 13, the court issues an automatic stay which stops all collection activities and bars the lender from foreclosing on the property. 

Chapter 7

While an automatic stay may provide a borrower with time to catch up on mortgage payments, Chapter 7 bankruptcy does not provide for a formal procedure to do so. If you fail to make the overdue payments, the lender can file a motion to lift the stay, and the foreclosure will proceed. Moreover, if there is sufficient equity in the home, the trustee may also move to sell the home to pay off debts that would have been discharged.  In other words, it is likely that you still will lose your home.

Chapter 13

Chapter 13 is referred to as a reorganization bankruptcy because it allows you to pay off your debts over time — including a mortgage, though a court-approved program. The late mortgage payments, or arrearage, are consolidated into the repayment plan and paid off within 3 to 5 years.  

In the event that the value of the home is less than the amount owed, a Chapter 13 bankruptcy can strip second and third mortgages of their secured status and incorporate them into the repayment plan. In addition, if the amount of the first mortgage is greater than the value of the home, the amount exceeding that value can also be separated from the mortgage and included in the repayment plan.

In order for the repayment plan to be approved, you must have sufficient income to pay the arrearages as well the existing monthly payment.  If you fail to continue making the current payments, the lender can move to lift the stay and proceed with the foreclosure.

While filing for bankruptcy may allow you to stay in your home, both a foreclosure and a bankruptcy can have long lasting consequences on your creditworthiness. You should consult with one of our experienced attorneys to determine whether filing for bankruptcy is right for you.

Isaacs, Devasia, Castro & Wien LLP – Bankruptcy Act of 2005

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The Bankruptcy Abuse and Consumer Protection Act of 2005 went into effect on October 17, 2005 and provides the most significant (and controversial) overhaul of the bankruptcy system in over 25 years. Backed by the credit card, retail and banking industries, the new legislation makes it more difficult for people to erase all of their debts in bankruptcy, while forcing others on payment plans instead. Conservatives and the financial services lobbies argue that the new law was needed to curb abuse of the bankruptcy system and teach people to be more financially responsible, while liberals and consumer advocates say that this law unfairly penalizes poor people who may be suffering financially due to illness, divorce or unemployment.
 
If you are considering filing for bankruptcy, there are some important things about this law that you will need to know before you start your proceedings. Here is a summary of some of the BAPCPA’s most significant provisions.
 
Persons Seeking to File Will Now Be Required to Seek Counseling  
Under the new law, you are required to go into credit counseling (at your own expense) with an approved government agency at least six months before filing for bankruptcy. The first session should be at least 90 minutes in length, and give you an idea if bankruptcy is really right for you or if you can get out of debt by simply following a repayment plan that the credit counselor proposes. While you are not required to agree with the final opinion of the counselor or follow any repayment plan they propose, you will still be required to submit any repayment plans or bankruptcy alternatives that the agency has suggested to the court before being allowed to file. Once you have filed, you will then have to attend additional counseling and/or a money management class. Your debt will then be discharged when you submit a certificate of successful completion of these classes. Counseling is required even if a payment plan isn’t possible or realistic for your financial situation or you are facing debts that you are disputing and do not feel you should have to pay.
 
Fewer People Will Be Eligible To File Under Chapter 7 
The new law makes it much more difficult for people to prove that they should be allowed to clear their debt entirely under Chapter 7 bankruptcy, a more pro-debtor option that allows filers to wipe out all of their debt entirely. When you file a Chapter 7, whatever assets you have (with the exception of your home and others assets protected in your state) are liquidated and given to your creditors and your remaining debts are discharged, giving you a “fresh start.” Under the old rules, most filers could choose the type of bankruptcy that seemed best for them, and almost always chose Chapter 7. It was then up to the judge to use his or her discretion to decide if your case qualified for Chapter 7. Under the new law, you will only be allowed to file under Chapter 7 if your income is lower than the median income in your state or if you can prove that you do not have enough disposable income to pay your debts. In order to determine if you qualify for Chapter 7, the first thing you will need to do is calculate your average monthly income over the last 6 months prior to filing and compare it to your state’s median income for a household of your size. If your average monthly income is equal to or less than the median in your state, you are automatically allowed to file for a Chapter 7 bankruptcy. If you earn more than the median, then you will need to pass a means test in order to determine if you will still be allowed to file. If basic expenses like rent, food, utilities, clothing etc. and priority debts such as back taxes, child support and alimony, leave you with less than 100 dollars at the end of the month, then you pass the means test and can still file for bankruptcy even if you make more than the median income in your state. If you are left with an amount of money between $100 and $166.66, you may still be able to pass the means test if you do not have enough money over at the end of the month to pay off more than 25% of the remainder of your outstanding bills. If you are left with more than $166.66, you will not pass the means test and will have to file for Chapter 13 bankruptcy instead.
 
More People Will Be Required to File Under Chapter 13 
If you are deemed ineligible for Chapter 7 bankruptcy, you will now have to file for Chapter 13, which requires you to go on a repayment plan and devote all of your disposable income to repay your creditors for the next five years. In addition, the new rules do not allow you to deduct your actual living expenses (the amount you are actually spending on rent, food, etc.) from your disposable income. You will have to use allowed expense amounts according to what the IRS believes to be a reasonable amount to pay for basic living needs. Making matters worse, your allowed expenses have to be subtracted from your average income during the last six months before filing, and not from your actual earnings each month. As a result, you will have to devote much more money to your repayment plan than before.
 
You Stand to Lose More of Your Personal Property 
The new bankruptcy law also puts much stricter limits on what personal property you are allowed to keep. Under the old laws, a debtor could typically keep items such as used cars, furniture, family heirlooms and souvenirs because the courts assumed that these items usually had more sentimental than monetary value. The new law is not as lenient, and requires that all of your property be valued at what it would cost to replace it at retail price. Since this new requirement will increase the value of your belongings significantly, your creditors will now be allowed to seize your property to satisfy your debt obligations. While many states have laws setting limits on what items can and cannot be taken from a person who is filing for bankruptcy, the new law has placed limits on those provisions as well. Under the new law, you have to live in a state for at least two years before you are allowed to claim that state’s exemption laws. If you have lived in a state for less than two years, you will now need to claim your old state’s exemption, if they have any. If you have moved frequently within the last two years, you must select the exemptions for the state you resided in for the greatest amount of time in the six months prior to filing. The BAPCPA also puts stricter limits on what debts can be “reaffirmed” during bankruptcy. In the past, a person filing for bankruptcy was still able to hold on to some of their property (a car, for example) if they were in good standing and agreed to continue to make payments on time. This was referred to as reaffirming the debt. The new law makes it more difficult to reaffirm secured debts, and filers may now be forced to relinquish their cars and other possessions that are not yet paid off.
 
The new law also makes some drastic changes to the very controversial Homestead exemptions that exist in many states. You may recall how the Enron executives, O.J. Simpson and other wealthy individuals were able to shelter their assets and avoid paying creditors by moving Florida and purchasing outrageously expensive homes. You will now need to have lived in a state for at least three 3 years and 4 months prior to filing before you are allowed to use a state’s homestead law to keep the equity in your home. If you have lived in your state for less than 3 years and 4 months, you will now only be allowed to retain $125,000 worth of equity.
 
Persons Seeking Exemption From the New Rules Will Need to Prove “Special Circumstances 
If your financial problems are the result of extenuating factors beyond your control, you may be eligible for the “special circumstances” exemption. Under the BAPCPA, debtors can sidestep the new restrictions on the bankruptcy law if they can prove that special circumstances have resulted in a loss of income or an increase in debt. Two examples of special circumstances offered by the U.S. Trustee’s Office include loss of income due to a call to duty in the military or a serious illness or injury. After the massive destruction of Hurricanes Katrina and Rita, the Trustee’s Office announced that natural disasters should be considered to be a special circumstance as well. If a judge agrees that special circumstances are the cause of your insolvency, you will not be subjected to the means test, the credit counseling requirements will be waived, and you will be given permission to file for Chapter 7 bankruptcy.
 
While this provision gives judges some flexibility when hearing your case, you should keep in mind that the examples of special circumstances given by the U.S. Trustee’s office sets a very high threshold for what situations should and should not qualify. Your personal situation should be at least as serious as these examples in order to receive bankruptcy relief.