#FamilyFriday – Filing Exceptions

What happens if you disagree with the Court’s order for Pendente Lite relief?  What if the Court denies any Pendente Lite relief?

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As previously discussed in an earlier #FamilyFriday article, the Court, upon request, will schedule a Pendente Lite (PL) hearing while the parties wait for their final hearing.  What happens if you disagree with the Court’s order for Pendente Lite relief?  What if the Court denies any Pendente Lite relief?  On this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC discuss the process for filing Exceptions.

As a reminder, Pendente Lite is a Latin term that translates to “awaiting/pending the litigation.”  Maryland Courts use a Pendente Lite hearing as an opportunity to create a temporary order related to child support, custody, visitation, spousal support, and/or use and possession of the marital home while the parties await the final hearing on the merits.  If you don’t have an arrangement, aren’t seeing your child, aren’t receiving child support, etc., you will want to be sure a Pendente Lite hearing is scheduled as soon as possible.

In most counties this hearing takes place before a Magistrate.  A Magistrate takes the place of a Judge but don’t issue Orders.  They issue Proposed Orders.  At the PL hearing, the Magistrate will hear the case presented by both parties as to why there should or should not be temporary relief and, if so, how much is fair and reasonable.  The Magistrate then states their finding and submits a Proposed Order.  After 10 days, the Proposed Order is sent to a Circuit Court Judge for a signature effectively making the Proposed Order an Order.

Why the 10 days?  At the conclusion of the PL hearing, both parties have 10 days to file “Exceptions.”  Exceptions are written reason(s) why the Magistrate’s Proposed Order should not be signed by the Judge.  For example, perhaps the Magistrate decided to award more child support than the paying party believes is fair.  The paying party would have 10 days to file Exceptions detailing why the Magistrate’s ruling should not be adopted by the Judge.

The Exceptions process is very similar to an appeal and should not be taken lightly.  There are many requirements involving the timing of the filing, the contents of the Exceptions, the timing for requesting a Transcript, the hearing, etc.  By failing to file timely exceptions or abiding by the statute, you could lose your ability to challenge the Proposed Order.

If you disagree with the Proposed Order for Temporary Relief, call ERA Law Group, LLC ASAP at (410) 919-1790 and ask how we can help you get the relief you need!

#FamilyFriday – Custody Rights Without a Court Order: Common Misconceptions

What many people don’t know is that in the absence of a court order both parents have an equal right to legal custody and physical custody of their minor child. 

By: Valerie E. Anias, Esq.

You and the other parent have a child together.  You separate or break up but never file any court action.  What are your rights? What about the other parent?  What many people don’t know is that in the absence of a court order both parents have an equal right to legal custody and physical custody of their minor child.  On this week’s #FamilyFriday article the attorneys of ERA Law Group, LLC want to help clear up some common misconceptions.

MISCONCEPTION #1:  The children always stay with mom.  While this is the most common situation and arrangement, this is certainly not the “only” arrangement.  Fathers have a 100% equal right to be the primary custodial parent just like mothers.

MISCONCEPTION #2:  Fathers have less rights.  Not true.  Fathers and mothers have equal rights with regard to their children.  Both relationships are important.

MISCONCEPTION #3:  We share expenses.  I don’t have to pay child support.  Just because you and the other parent can amicably split the child’s daycare costs, for example, does not negate the award of child support.  You and the other parent may have an agreement that works but if that agreement doesn’t work and if a parent decided to file an action for child support it is likely that child support would be ordered.

MISCONCEPTION #4:  Visitation means “every other weekend.”  Not necessarily.  Especially so if you don’t have school aged children.  More often we are seeing alternative schedules providing both parents with nearly equal time.  Living separate does not necessarily mean you spend less or more time with your child than the other parent.

MISCONCEPTION #5:  We get along great!  We don’t need a written agreement or Court Order.  Perhaps you and the other parent do work well together.  But what happens if that stops?  The purpose of a Court Order or an agreement, is to settle disputes that have occurred and to prevent future disputes from arising.  You and the other parent may get along now but what if there’s a dispute later about where to send the child to school?  How to pay for extracurriculars?  How to have an access schedule when one parent lives 50 miles away?  Having a written agreement or Court Order can prevent some of these issues from ruining the amicable arrangement you have now.

Call ERA Law Group, LLC attorney Valerie Anias, Esq. at (410) 919-1790 and ask about our fixed fee Separation Agreements, Parenting Plans, and FREE 30 MINUTE CONSULTATION!

#FamilyFriday: Help, I’ve Been Served!

Most people are not surprised when they are served with divorce papers.  But what do you do when you are served?

By: Valerie E. Anias, Esq.

Most people are not surprised when they are served with divorce papers.  But what do you do when you are served?  What if your spouse has an attorney and you don’t?  What if you don’t want the divorce?  What if you don’t agree with the reasons your spouse has listed for the divorce?  On this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC want to help you know what to do next!

Many people feel that being the Plaintiff or Defendant matters.  Truth is, it doesn’t.  There are benefits to both.  Just because your spouse served you with divorce papers does not mean that they may not be at fault for the divorce or that they’re automatically in a superior position.  All this means is that they will be presenting their case first.  And, don’t worry.  You’ll present your case next!

What have you been served with?  You will have a summons.  That is the paper that orders the Plaintiff to serve you.  You will also have a copy of the pleading filed.  That is the Complaint for divorce and their request for relief.  This may include child support, custody, alimony, division of marital property, etc.  You will also receive a copy of their Domestic Case Information Report which is simply a cover letter identifying the parties and type of action.

Now what?  After you have been served you will have 30 days (or 60 days if you’re out of state) to file an answer.  This is important because if you fail to file an answer the Plaintiff can file a Motion for Default.  If the Motion is granted and you are found in Default, the Court may award all of the relief directly to the Plaintiff without giving you an opportunity to present your case.  Don’t let this happen.  You should always respond to Court documents!

You can also file a Counter-Complaint.  Perhaps the Plaintiff’s complaint fails to state that they had been cheating on you, for example.  You may want to file a Counter-Complaint alleging adultery, for example.  A procedural benefit of filing a Counter-Complaint is that if the Plaintiff decides they no longer want to pursue the case but you still do, your Counter-Complaint will keep the case moving forward.

Once the Complaint has been served and you’ve filed your answer, the Court will schedule a hearing to get the status of the case and schedule the important dates for the rest of the case.

If you’ve been served, call ERA Law Group, LLC attorney Valerie E. Anias, Esq. at (410) 919-1790 and ask about our FREE 30 MINUTE CONSULTATION!

#TuesdayTips: Medicaid… Trick, or Treat?

Medicaid* can be a scary topic.  Not only are there are a lot of myths about Medicaid, but if you are considering applying for it, a crisis has occurred.  Add to your emotional distress Medicaid’s requirement that you provide five years’ worth of bank statements, tax returns, and proof of expenditures, and likely, you are pulling your hair out.  Do not despair! 

By: Jessica L. Estes, Esq.

Medicaid* can be a scary topic.  Not only are there are a lot of myths about Medicaid, but if you are considering applying for it, a crisis has occurred.  Add to your emotional distress Medicaid’s requirement that you provide five years’ worth of bank statements, tax returns, and proof of expenditures, and likely, you are pulling your hair out.  Do not despair!

Myth #1:  Medicaid will take my house.  FALSE!  Medicaid will not take your house.  If you are married, have a disabled child, or own the home jointly with another, the house will not count as an asset.  Further, if you are married, Medicaid will require you to transfer ownership of the house to your spouse to preserve it for him/her.  Similarly, if you have a disabled child, Medicaid will allow you to transfer, without penalty, the home to a trust for their benefit.  In both cases, the home will be out of your name and protected for your spouse or disabled child, so when you pass away, Medicaid will not have a right to recover against it.

If you are single and own a home, Medicaid will not count it as an asset if you intend to return home.  The intent to return home is a subjective one, meaning, that regardless of whether you realistically can or do return home, it is your own intent that is determinative.  Although Medicaid may lien the property, if you return home prior to your death, that lien will extinguish.  And, even though Medicaid will have a claim against your estate after you pass, it will only be valid if Medicaid files their claim within specified time limits, which it often misses.

Myth #2:  If you transfer assets, you must wait 60 months to qualify.  FALSE!  If you transfer assets for less than their fair market value (i.e. you give them away), then Medicaid will impose a penalty.  The penalty is not a monetary penalty, but rather, a period during which Medicaid will not pay benefits on your behalf.  Contrary to popular opinion, Medicaid does not require the person who received the gift to give it back.

Moreover, the penalty is calculated based on the total value of all “gifts” made during the five-year period immediately preceding the application date.  So, if you gave away $86,840 during the five-year look-back period, then that would result in a 10-month penalty.  Certainly, you would not wait 60 months to apply when you could start receiving benefits in 11 months.

Myth #3:  You must give your assets away to protect them.  FALSE!  If you give your assets away, you lose control of them.  Once you give them away, they are no longer yours and will be subject to the creditors, predators, and lawsuits of the people to whom you gave your stuff.  And, if that person files bankruptcy, gets divorced, or dies, there go your assets and not to the people who you wanted them to go.  Instead, there are ways to protect your assets and still retain control so if you need to access them, or when you die, you decide how and to whom they are distributed.

Call ERA Law Group, LLC today at (410) 919-1790 to make an appointment with Jessica L. Estes, Esq.!

*This article refers only to Long-Term Care Medicaid when one is in a nursing home.

#FamilyFriday – I’m Getting Divorced: What Happens in Court?

A source of worry and concern for many clients involve what to expect when they go to Court for their divorce.  What will  my spouse’s attorney ask me?  What dirty laundry is going to be shared?  What will the Judge decide? 

A source of worry and concern for many clients involve what to expect when they go to Court for their divorce.  What will  my spouse’s attorney ask me?  What dirty laundry is going to be shared?  What will the Judge decide?  On this week’s #FamilyFriday article, the attorneys of ERA Law Group, LLC want to give an overview of what it will actually look like in a courtroom the day of your hearing.

First, it’s important to point out that no matter what sort of courtroom you’re in, some things don’t change and all parties should remember.  For example, make sure to look presentable and put together.  Remember that the Judge can see everything and will notice if you’re laughing, rolling your eyes, or make any other facial or physical gesture.  And, most importantly, be honest.

Second, getting divorced is emotional.  It often involves children, hurt feelings, betrayal, loss of love, etc.  Stay calm and be prepared to be emotionally challenged.  This is part of the process and it is to be expected.  Your attorney will be there to help protect you and make your voice heard.

Third, many times last minute settlement discussions occur.  Often this happens just minutes before your hearing.  Don’t feel pressured to take a settlement.  Listen to what is being offered, considered what you want and how far off the offer is from your wants, and speak/listen to your attorney.  If you are the one suggesting a settlement, the same considerations apply.  Make sure you can separate your feelings and emotions from the case in a way that lets you see the potential settlement in the most rational and logical situation.  If you do not want to settle, say so.  Make your attorney aware so that s/he knows to deny any potential offering and move straight to trial.

The process is the same regardless of the county, Judge, or attorney.  If you are the Plaintiff – that is the person who filed the case – you will present your case first.  This will begin with an opening statement, calling witnesses, calling you, and presenting evidence.  Your testimony is arguably the most important piece of your case.  It is your voice, your basis for filing, your argument, and proving why what you want should be granted.  To do so, your attorney will call witnesses and present evidence to further support your testimony.  Presumably these witnesses are people who will show you as a great parent, good spouse, kind person etc.  Some witnesses may also be daycare providers, employers, etc.  Other times, you may call a witness to prove something.  For example, you may want to subpoena your spouses’ lover to prove s/he has cheated.

Your spouse’s attorney will then have an opportunity to ask you and your witnesses questions.  This process is called Cross Examination.  Your attorney will object to some questions asked and/or evidence presented.  If you hear your attorney object, stop talking.  The Judge will need to rule on whether or not to allow you (or your witness) to answer the question.  Be calm and be honest.  You may feel pressured, put on the spot, nervous, etc. and that’s okay.  Remember you have an attorney and s/he is there to protect you.

After you’ve presented your case, the Defendant will be given an opportunity to present their case.  They will be able to and will likely do the same things you did – the Defendant will testify, his/her witnesses and present evidence.  Your attorney will then have an opportunity to Cross Examine the Defendant and his/her witnesses.

When the Defendant concludes their case, both attorneys will have an opportunity to present closing arguments.  These arguments are spoken to the Judge and tend to recap what happened at trial, highlight important testimony or pieces of evidence in support of their case, and ask the Judge to do grant their client’s wishes.

Once the Judge has heard both sides and collected the evidence that has been presented, s/he will likely go back into their chambers to review and make a decision.  If the case is long, has many documents, many witnesses, etc. the Judge may state that they will make their decision in writing and dismiss the parties to wait on receiving that decision.  If the Judge does make the decision that day, s/he will return to the courtroom and state their decision for both parties to hear.

For questions and to talk about your case, call the attorneys at ERA Law Group, LLC today at (410) 919-1790 and ask to schedule your FREE 30 MINUTE CONSULTATION!

 

 

#TuesdayTips: My Role as Court Appointed Counsel

Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself. Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process.  The Court Appointed Counsel is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status. 

What is guardianship and do I need it?  Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself.  It is what the court calls, “the means of last resort” because the court prefers alternatives over guardianship because it is so restrictive.  Such alternatives are powers of attorney, joint account ownership, etc.

Guardianship is taken by the court very seriously.  Why? The answer is actually simple.  When a person is incarcerated in prison, he or she has lost their liberty, i.e., their ability to make their own decisions.  With guardianship, even though it is a civil matter and not criminal, the court is making a determination that a person is not competent based on medical evidence, and essentially taking that person’s rights away to make medical and financial decisions from that point forward.  The only way to get guardianship removed is to prove that the medical condition no longer exists or the person has regained the ability to make their own decisions.

Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process.   That attorney is referred to as the Court-Appointed Counsel or CAC.  The CAC is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status.  That means that if a person with end-stage Alzheimer’s Disease does not believe anything is wrong and does not want a guardian, it is the CAC’s job to tell the court the ADP does not want a guardian.

Additionally, as part of the job of a CAC, he or she may also interview family members, review medical records, request depositions of medical professionals, and although very rare, conduct a jury trial on behalf of the ADP if competency is strongly contested.  Often times, the ADP is either unconscious or non-communicative due to a disease or physical trauma, like a head injury.  The court will regularly call on the CAC to opine as to the best-suited person to serve as guardian because the CAC is the court’s eyes and ears during the guardianship process.

Since the guardianship process can be very intense and contentious, it is best to be prepared and get your estate planning documents in order.  The best part about estate planning is YOU get to choose who makes those difficult medical and financial decisions.  If a guardianship is initiated, you may not get who you want.  For example, you might not get along with your child, and would prefer your sibling be your guardian; however, if a guardianship is initiated, your child stands in a higher priority of appointment than your sibling.  Therefore, if the matter is contested, your sibling would have to prove that he/she is better suited to be your guardian than your child.  So as parting words of wisdom…make sure you are prepared!  Get your estate planning documents together so you can avoid guardianship at all costs!  Call the attorneys at ERA Law Group, LLC today at (410) 919-1790.

#TuesdayTips: DIY Estate Documents Gone Wrong

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents? 

Did you create your own documents?

Why pay a lawyer when I can get my estate documents online for free (or at least at a lesser cost than a lawyer)?  Every estate planning attorney has fielded that question at some point or another.  My response is usually: “I love online documents…because it usually means I’ll have more work that makes more money in the future.”  After I say that, I typically get a grin across the client’s face and then they ask “why”?

Using online documents to accomplish your estate planning goals is not generally a good idea and in many cases can lead to severe consequences.  Have you ever heard the saying, “you get what you pay for”?  When you get your documents online, you don’t have the opportunity to talk to an attorney, to ask questions about your specific situation unique to only you or your family, and your documents will not be tailored to your specific circumstances.

Prior to your documents being drafted, you meet with an attorney to discuss your estate planning goals and objectives at the consultation.  My estate planning consultations usually last at least an hour if not an hour and a half.  During the consultation, we review your health status, family status and financial status all before we even mention the words “will” or “power of attorney” or “trust.”  You also have the opportunity to ask questions and receive specific answers related to your situation.  When you get your documents online, they are almost  never tailored to your specific situation.

What happens if you are a blended family?  I can almost guarantee you that the basic online Will does not address how to provide for your spouse and your biological children if you were to die first.  Many estate litigation cases arise from blended family situations where the surviving step parent does a new will after the spouse dies cutting out the spouse’s biological children from any inheritance.

What about your million-dollar IRA?  Who does that go to?  Many clients think the Will directs who gets that money.  WRONG!!  If you have beneficiaries on that IRA, then the beneficiaries listed on the IRA account receive the money and the beneficiaries named in the Will get none of it!  So many people believe the Will controls everything, and unfortunately, if you get your documents online, you will not be educated on what happens to each asset that comprises your estate.

What if you own property in multiple states?  Chances are you were not advised by the online website that you will have to likely do probate in each state you own property.  To avoid this common situation, often times estate planning attorneys will employ trusts so that ownership of those properties are consolidated into the Trust.  That way, upon the death of the owner, the Trustee can sell the properties and does not have to go through the probate/ancillary probate process in each state the Decedent owned property.

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents?  Instead, call ERA Law Group, LLC at (410) 919-1790 today!