It is likely the toughest moment in your life where you are not dealing with medical doctors; it is time to go forward with a divorce. You need to find out the myriad of things that have to be done, what can happen good or bad, and what can be done to make the good happen and limit the bad. There are five major issues to discuss with your attorney when they are assisting you in dealing with a divorce. Here are some tips on how to ask the questions you need answers from your attorney to get you through this tough time.
HOW LONG WILL IT TAKE?
This is often the first question any person facing a divorce wants answered. The way to the best and clearest answer from your attorney is to try and focus on what issues you have. If you have no children and no major joint financial assets or debts, the case should go quickly. The questions to ask are about what could complicate things: one of the possibilities is that your spouse could seek maintenance (formerly alimony) which is a sore point for person facing paying support to a person you feel betrayed by. Helping you get prepared for this financial burden is where your attorney is critical to your financial and emotional well being. Another issue arises where you have children and your spouse is convinced that you are a danger to your children and will fight tooth and nail to keep you away. This is where your attorney should be open with you about the process of overcoming a system designed to be slow and thorough. It is the most frustrating issue that drags a case on and on. If you and your spouse have significant assets and debts the case can take longer due to the need to allocate assets or responsibilities.
WHAT DO I DO ON MY OWN TO HELP COMPLETE THE CASE?
Your attorney will be preparing the court documents called pleadings in the case and be there to advise you while contacting the other side. There will be some things you need to do as part of the case. If you have children you will be required to attend a divorced parents’ parenting class and possibly a mediation session before the court will enter a final judgment of parental allocation. The class is not an involved or large commitment of your time. The mediation session is a way to meet with your spouse and a mediator to try and resolve parenting issues. The phrase “parental allocation” sounds odd; but it is what we used to call child custody. Another thing you will have to do as part of the case is answering financial questions and the gathering of financial records to help your own attorney and to produce to the other side as part of what is called “discovery”; which is the pre-trial exchange of information which is required by the Supreme Court Rules. The information exchange also makes settlements more possible which shortens your case and reduces your financial burden. When you are doing “discovery” and you don’t understand any one of the questions or are not sure of what to bring for a records request don’t be afraid to speak to your attorney as the attorney will be able to guide you through the question or help you with what records to produce.
WILL I GET TO BE WITH MY CHILDREN?
This often the most heartbreaking part of the divorce; going from seeing your children every day to a “parenting time schedule”. The phrase “parenting time” is a mouthful for what we used to call visitation. There will be moments of negotiation and possibly hearings on setting the “parenting time schedule” where you and the attorney attempt to get you as much time with your children as can be done by agreement or ordered by the court. This where your communication with your attorney as to what you want and what the court can do is critical. Never be afraid to ask about what things the court considers in setting a “parenting time schedule”.
WHAT DO I HAVE TO GIVE MY SPOUSE?
This is something for the first consultation or after the discovery questions are answered and the financial records produced to send to the other side. Issues here will likely be maintenance, debt allocation, and property allocation. The longer your marriage is the greater likelihood of an award of maintenance to the spouse who is not “the economically dominant party”; the one who makes less on their own. The specifics of maintenance are such an involved subject that they would need their own article. Pensions or other Retirement assets that grew during the marriage are subject to division. The marital residence is also subject to the division of its equity. Have an open discussion with your attorney about how to balance the property versus the marital debts which are just as subject to division as property. Trading a pension for equity in the residence is one example. Or lower maintenance in exchange for taking more marital debt is another example. If you have ideas, share them with your attorney so they can be used for your benefit.
WHEN IS IT REALLY FINAL?
The goal is the entry of a Judgment of Dissolution of Marriage dissolving the bonds of matrimony between the parties. There should be a Marital Settlement Agreement to resolve allocation of assets and debts. If you have children a Judgment of Parental Allocation and a Parenting Plan are also made part of the record. There may be a few post Judgment details such as deeding the marital residence to one party by the other, signing of car titles to each other, and any specific orders on retirement assets. Ask your attorney about these last steps to close this chapter of your life.
As we said earlier divorce is likely the toughest moment in your life but the right attorney can make it the least painful it can be. Consulting an attorney on any matter where the Courts or Corporations are involved is your best move.
Thanks for reading,
A Law Office of Crosby and Associates, P.C.
ALAN: Welcome to “Legal Matters”… an informational and news call-in show devoted to legal topics of interest to Stateline viewers... I’m your host Alan Jones and my first guest is attorney Michael Crosby with the Crosby Law Firm...
Our opening statement for this episode of legal
matters… is what a person faces when a loved one has passed on and now their
final affairs need to be completed in Probate Court…
... a nd in the second segment we’ll continue our popular “you want to know” question and answer session devoted to questions posed by you the viewer via telephone calls & social media…
again the number is 815-397-2006 … and lawyers are standing by right now to take your confidential call…
ALAN: Welcome to the show, Michael. Today's segment is on what a person who has heard about setting up a trust to pass their property at the time of their death and not go to probate court. I know that the Crosby Law Firm represents many people who have set up a trust to make things quicker and easier at their passing, so let’s dive in…
MICHAEL: Last month we discussed what to do to make it through probate court with the least amount of pain and cost at someone’s passing, now let’s talk about how a setting up a trust in your lifetime can bypass the probate court when it happens.
ALAN: What is a trust and how does it pass property outside of the probate court when a loved one passes on?
MICHAEL: A trust is an entity set up by someone during their lifetime to own their property as setting up a corporation would and be able to transfer property privately after their passing. Think of how Ford Motor Company has survived Henry Ford and continues to do business. A trust can continue after you’ve passed away and distribute the property you placed in it. Being a “living entity” the trust owns the property and can transfer it as you could were you alive. The property is not property of an estate so the probate court has no jurisdiction over it.
ALAN: How do you set up a trust and how do you make it own property?
MICHAEL: The person who wants to set up the trust is called the settlor or grantor and they prepare a trust agreement where the trust is given a name; such as “The John Smith Trust”, a person to manage the trust’s property; called a trustee, is named, usually the settlor him or herself, a successor or back up trustee is named to be in place when the settlor passes away, and direction to distribute the property to the named beneficiaries. Usually the first beneficiary is the settlor. The trust can only own the property you designate it to have and you need to transfer the property into the name of the trust as if you were transferring the property to another person.
ALAN: How do you transfer property to the trust?
MICHAEL: The property is put in the name of the trust by the same means used to transfer it to a living person, your house is deeded to the trust, your automobile has at transfer of title at the Secretary of State’s Office, you inform your bank and other financial institutions the change in ownership so your checking account for example in not the trust’s checking account. You pay the real estate taxes in your home in the name of the trust, and do all business related to the property you place in the trust as trustee not as yourself.
ALAN: I’ve heard that having trust can be confusing and complicated, is that true?
MICHAEL: That’s a common worry; once the trust is in place it is similar to running a business; you have the trust accounts to take care of trust assets. But remember, as settlor you are also a beneficiary. And as trustee your job is to take care of beneficiaries. As Trustee you can pay your own expenses but remember to always do it in the name of the trust so there is no question of it being a valid entity to own and transfer property. It can make the process of winding up your affairs at the time of your passing a matter of weeks rather than the minimum time for a probate case to be open of six months.
ALAN: Welcome back… it’s time for our rapid fire, question and answer segment called “you want to know”.
In an effort to protect viewer confidentiality, please understand that we are only using first names and we may alter the location and the nature of the question somewhat.
ALAN: our first question comes from Nicole in Winnebago…my daughter was in an auto accident, she went to the emergency room from scene of the accident, she’s back to work but with the doctor having only on limited duty work. She received a letter from the other driver’s insurance company, their offer covers the damage for her car and her emergency room bill. What should she do now?
MICHAEL: Your daughter’s property damage and personal injury from the collision need to be completely evaluated and a formal request for a proper settlement to make her whole needs to be made. Have your daughter please call our offices for a free initial consultation to discuss the process to negotiate or litigate her problem.
ALAN: This next question comes from Michael from Loves Park…I lost my job earlier this year and my car was repossessed when I couldn’t keep up with the payments. Can the lender collect the whole amount of the money under the loan since the lender sold the car before the end of the length of the contract?
MICHAEL: The lender has to credit the account for the amount they receive for the sale of the car and credit you for any unearned interest charges as the contract ended early. The lender is supposed to send you a statement of the transaction and there will likely be some charges for the sale of the car added after your credits. This is a critical time for you to seek an attorney’s help to make sure you pay no more than you are required to.
ALAN: The next question comes from Maurice in Rockford…My brother and I just got word our grandfather passed away in Christian County and he had a farm there. We are just two of his seven grandchildren; what needs to be done so my brother and I can get our portions of the farm?
MICHAEL: You and your brother are among your grandfather’s heirs at law if he died leaving no will. If he left a will there may a more specific distribution. Having the situation investigated and the law researched based on the facts disclosed by the investigation leading to a choice of courses of action would help you and your brother make an informed decision on which course of action to take to receive any portion of your grandfather’s estate you are entitled to.
ALAN: This next question comes from Kim from Rockton…I purchased a TV set less than a year ago, it stopped working. I contacted the store where I bought it and they referred me to the manufacturer. The manufacturer had me send them the TV for repair. It’s been six months and no word on the return or my TV or a refund of my money…What can I do to get a working TV set or my money back?
MICHAEL: You have rights under the Consumer Fraud Act and the Uniform Commercial Code which provide remedies for claims like yours including revoking acceptance of the TV and a restitution of your money. We need you to come to our offices and we can craft a demand to the manufacturer and get you the value you’re entitled to.
ALAN: Our final question comes from Dave in Oregon…I was driving and got stopped. I had my license but I didn’t have my insurance card. I got a ticket for not having insurance…What can I do about this ticket?
MICHAEL: We need to go to your appearance with you and inform the State’s Attorney you had valid coverage by showing them your insurance card.
For More information about probate, trusts, and other legal matters... Please visit www.thecrosbylawfirm.com
An excerpt from our weekly show Legal Matters airing every other Tuesday at 9:30am and 6:30pm on WIFR Channel 23.
Welcome back… it’s time for our rapid fire,
question and answer segment called “you want to know”.
ALAN: our first question comes from Blake in Pecatonica…my neighbor has a tree on is property but the roots are growing over our property line and it’s breaking my fence, what do I do now?
MICHAEL: Your neighbor is responsible for the damage his tree is causing; if the neighbor won’t cooperate with you please call our offices for a free initial consultation to discuss the process to negotiate or litigate your problem.
ALAN: This next question comes from Gene from Loves Park…Several years ago and old girlfriend and I had a baby together, I was at the hospital when the child was born, she had been letting me see our daughter, now she’s got a husband they are stopping me from seeing her saying I’m not her Dad, what do I do to see my daughter?
MICHAEL: This is a critical time for you to seek an attorney’s help; if you signed specific papers at the hospital you are established as your daughter’s father, if you didn’t then we need to get into Court and get your rights established including visitation which is now called parenting time.
ALAN: The next question comes from Maureen in Rockford…My brother has just moved into a house of his own and hasn’t gotten his security deposit from his former land lord. He has been calling for over a month but the land lord won’t speak to him or reply to e-mails. Is there anything he can do to get his security deposit?
MICHAEL: Your brother’s land lord had thirty days after your brother moved out to return the deposit if there were no damages to be repair and paid for with the money. If there were damages to be paid for with the money the land lord has forty five days to send what money wasn’t used and a statement of the damages repaired.
ALAN: This next question comes from Angela from Davis Junction…I went to see my grandmother at her house and she is not able to keep the place up like she used to and is having trouble managing her bills. Her car lender wouldn’t talk to me about her account since I wasn’t her…What can I do to help my grandmother with her bills?
MICHAEL: Your grandmother can come to our offices and we can prepare a Power of Attorney for Property from her to you so you can speak to her creditors and handle any other business matters she needs help with.
ALAN: Our final question comes from Rich in Byron…My wife was driving our new car and got in a rear end collision…Our insurance agent tells us the other party doesn’t have enough coverage to pay the property damage to our car and the costs of my wife’s medical bills…What can we do to get our car repaired and my wife’s bills paid?
MICHAEL: We need to review your insurance policy with you; if you have uninsured or underinsured motorist coverage in your policy; your insurance company pays your bills and repairs your car and then the insurance company can go after the other driver for what they pay you.
ALAN: A reminder to the audience at home… If you have a legal matter you’d like to discuss just call the number on your screen… 815-397-2006… Lawyers are standing by right now to take your call and the advice is absolutely free…
Thanks for reading watch the full episode of Legal Matters online here: