Category: Family Law

New Rules Incorporating Service of Divorce Pleadings via E-Mail

The National Law Review recently published an article regarding Divorce Pleadings and E-mail written by Rebecca L. Palmer of Lowndes, Drosdick, Doster, Kantor & Reed, P.A.:

 

In today’s society with letter writing taking a back burner to emailing, text messaging, Facebook, Twitter as well as other social media within our social lives, it isn’t a far stretch for businesses to begin operating and communicating in a like manner.  More e-mails are being sent between attorney’s, instead of letters being drafted for each issue.  On June 21, 2012, however, the Supreme Court of Florida issued a Second Corrected Opinion which adopted a new Florida Rule of Judicial Administration 2.516 that in turn changes the way everyone operates in the day to day of the legal world. Essentially, this rule mandates that all documents which are required or permitted to be served on another party, are now to be served by e-mail unless this new rule provides otherwise.

Specifically as it relates to Family Law, all attorneys in Florida (unless excused by court order within that specific case) are mandated to abide by the new rule beginning September 1, 2012.  This rule applies to ongoing cases, as well as new cases.

A power point presentation, Service by E-Mail and E-Filing, was prepared by the Florida Bar and is currently accessible from their home page as well as the link herein.  This power point, a mere 40 pages in length, is a great tool to better understand the rules surrounding service of documents by e-mail.  This presentation pinpoints the requirements and changes from the e-mail address(es) that should be utilized to send your e-mails (pg. 13), to the time of service (pg. 25), along with the format of not only the e-mail and the subject line (pg. 28 & 32) as well as the requirements of how the document being served is attached (pg. 27 & 30).

While this rule mainly affects the attorneys procedures in providing documents to another party, there are additional provisions relating to self-represented litigants.  If self-represented litigants choose to participate in service by e-mail, they may do so even though it is not required.  Amazing how life keeps changing and how technology keeps shaping things.  Please be aware of this new rule as you proceed forward with your case!

© Lowndes, Drosdick, Doster, Kantor & Reed, PA

Be Organized Now, Save Your Family Time and Money Later

Recently posted in the National Law Review an article by Jessica M. DesNoyers of Varnum LLP regarding wills and estate planning:

Varnum LLP

I have assisted in the distribution and administration of more than one trust and estate, and I speak from experience – the process is much easier on the family and takes considerably less time if the deceased was organized.

If the decedent died without a valid will or any estate planning, and the decedent owned any assets upon his or her death, the family has to file a claim in Probate Court to transfer the property and hope that they know what all of the decedent’s assets were.  If the decedent died with a valid will, but did not have a trust in place, or did not transfer all of his or her assets into the trust, the family will still have to file a claim in Probate Court.  Finally, even if a solid estate plan is in place, there are a number of tasks to be completed and documents to be filed or mailed before the decedent’s estate can be disbursed or administered.  To make the process easier on family members attempting to comply with your last wishes, here are some easy things you can do now to help your family later:   he distribution and administration of more than one trust and estate, and I speak from experience – the process is much easier on the family and takes considerably less time if the deceased was organized.

  1. Meet with an attorney to ensure your estate plan is up-to-date, and you have all the documents you need.
  2. Keep all of your estate planning documents together and in a safe place, and let your attorney or a trusted family member know where they are.
  3. If you have retirement accounts, money market accounts, or insurance policies where you’ve named beneficiaries, keep all of those document together with your estate planning documents.  Confirm that your documents name the beneficiaries you want named.  Keep company contact information with the documents so that your family knows who to contact at the company to make a death claim and receive benefits.
  4. Keep all title documents together with your estate planning documents, or if kept in a safe deposit box or safe, make a note with your estate planning documents altering family of where it is how to access it.  This would include title to cars and real estate.
  5. If you have specific personal items you want to give to certain individuals, make that clear.  You can create what is called a “holographic will” for personal items by handwriting (not typed) what items you want to give to which people or entities, write the date on the document and sign it at the end of the document.  This does not take the place of an estate plan, but can be used to distribute items such as family heirlooms.
  6. Finally, keep a list of all the assets you have that will need to be transferred.  No, you do not need to list every plate in your cupboard.  You should, for example, list which banks you have accounts with and what types of accounts, where you own real property, life insurance policies, and vehicles or “toys” (i.e. boats, ATVs, etc.) you own.

Being organized is relatively easy, and the benefits of the time you take today will be a gift to your family after you are gone.  Call an estate planning attorney today to assist you in the process.

© 2011 Varnum LLP

The Illinois Civil Union Law and Its Impact on Estate Planning

Recently posted in the National Law Review an article by Gregg M. Simon of Much Shelist Denenberg Ament & Rubenstein P.C. on Civil Unions and Estate Planning:

On June 1, 2011, the Illinois Religious Freedom Protection and Civil Union Act went into effect. The new law provides a legal procedure for the certification and recognition of civil unions between same-sex and opposite-sex individuals. This new Illinois law has numerous real and potential effects on many areas of the law, including estate planning—effects that may not be limited to the parties in a civil union. Much Shelist spoke to Gregg M. Simon, Chair of the firm’s Wealth Transfer & Succession Planning practice, about some of the estate planning issues being raised by the new law.

Much Shelist: Can you give us a brief overview of the Illinois civil union law?

Gregg Simon: For a number of years, advocates of the legal recognition of same-sex couples in Illinois had been working with the state legislature to pass some form of civil union or marriage law. On the other side, certain religious and other groups had expressed concerns about the scope of such legislation and how it might be applied or enforced. Eventually, compromise language was worked out that, while not fully addressing all concerns of all parties, contained provisions that enabled passage of the legislation in the Illinois House and Senate on December 1, 2010. In February 2011, Governor Pat Quinn signed the law, which went into effect on June 1, 2011.

As written, the law is fairly short and direct. It provides procedures for the certification, registration and dissolution of a civil union and entitles parties entering into a civil union the same legal obligations, responsibilities, protections and benefits that are afforded to married spouses. In essence, where “spouse” appears in existing and future Illinois statutes, administrative rules, common law, or other sources of civil or criminal law, the word now also refers to a party in a civil union. These “default” rights and obligations can include the right to make health care decisions (unless, as with married couples, a guardian for the disabled partner has been appointed or an agent under a health care power of attorney has been named), the right to dispose of the remains of a deceased partner, various inheritance and property rights, creditor protections, and so on.

Civil unions in Illinois are not just for same-sex couples. Opposite-sex couples can also enter into a civil union, although they should carefully weigh the known and potential advantages and disadvantages of a civil union versus marriage. Likewise, the rules prohibiting certain civil unions are generally similar to those that prohibit marriage between specific individuals. For example, an individual is not allowed to enter into a civil union if he or she is in an existing civil union or marriage, and closely related individuals cannot enter into a civil union.

MS: From an estate planning perspective, what should couples be aware of?

GS: With respect to the Illinois civil union law, there are three broad concepts relating to estate planning that people should keep in mind. First, it should be understood that the law could affect almost anyone, not just the parties in a civil union. For example, let’s assume that a parent has drawn up a will prior to the effective date of the Illinois civil union law that designates his or her child and that child’s “spouse” as beneficiaries. Now let’s imagine that at some point in time the child enters into a civil union with his or her same-sex partner. Under a strict reading of the law, that same-sex partner would be treated as a spouse and would therefore qualify for the beneficial interest designated in the will. That might be the intent of the parent whose assets are to be distributed—or it might not.

Second, the civil union law raises almost as many issues as it resolves, many of which will be the subject of legal disputes until a clear body of case law and precedent has been established. Using the same example, let’s imagine that the parent was perfectly happy with his or her child’s same-sex partner receiving a beneficial interest, but failed to clarify in the will that its terms applied equally to a spouse and a party to a civil union (particularly if the parent died before the civil union legislation was enacted). Let’s now imagine that the child’s siblings do not want the same-sex partner to receive a portion of the assets. Since the will only used the word “spouse,” the siblings could take legal action to try to deny the same-sex partner his or her portion of the beneficial interest, claiming that the use of the word “spouse” (and failure to change the language of the will after June 1, 2011) meant that the parent intended only for an opposite-sex, married partner of the child to be eligible to receive any assets.

These examples are not so farfetched. After Illinois law was changed in the early 20th century so that adopted children were treated the same as natural-born children, almost 100 years of related litigation ensued. These cases focused on whether an adopted child was included when a testator used the terms “children” or “issue,” particularly when the document was executed before the law was changed (i.e., at a time when an adopted child would not have been included within those terms).

The takeaway is that clarity is paramount when it comes to estate planning. In order to ensure that your wishes are carried out as you intend, you should review all applicable documents with experienced legal counsel and ensure that any potentially ambiguous language or terms are clarified and reflect current legal realities.

A third important concept is that the federal Defense of Marriage Act (DOMA) and federal tax laws do not recognize same-sex civil unions or marriages, even those that are recognized by the various states. This raises a whole host of issues regarding estate and gift taxation, Social Security benefits and other federal-level treatment of individuals in civil unions. Many of these issues are being litigated right now.

MS: What are some of the key conflicts between state and federal marriage and tax laws?

GS: DOMA defines “marriage” as a legal union between one man and one woman, and defines “spouse” as a person of the opposite sex who is a husband or wife in a marriage. DOMA further says that no state can be required to honor the law of another state regarding legal relationships that are treated as a marriage between persons of the same sex. In essence, DOMA denies same-sex couples all of the federal benefits of marriage, even if the couple was married or entered into a civil union in a state that recognizes such relationships.

From the perspective of estate and tax planning, this means that same-sex couples are denied the following, among other benefits: the estate tax marital deduction for assets passing outright to a spouse, or to certain qualifying marital deduction trusts and qualified domestic trusts; portability of exemption amounts; the gift tax marital deduction; gift splitting, or the right to treat gifts made by either spouse as made equally by both spouses; and, for the generation-skipping transfer tax, treatment of the same-sex parties as being in the same generation. Opposite-sex couples in a civil union may also face some, if not all, of these issues, particularly in states that do not recognize common-law marriage.

On the other hand, there are some transfer rules that apply to married, opposite-sex couples that, by not applying to same-sex couples, might produce favorable results. These include (1) the option of setting up a grantor retained income trust, which typically does not work for married couples, and (2) adding certain provisions to a qualified personal residence trust that are not permissible for married same-sex couples. Sales of remainder interests can similarly work for domestic partners.

Additional issues arise when a same-sex couple moves to another state. How will that jurisdiction interpret the civil union law of Illinois, particularly in those states with laws that specifically recognize legal relationships only between one man and one woman?

MS: Will legal challenges to DOMA and other laws help clarify this picture?

GS: In the long run, the answer is yes. There are a number of court cases, perhaps the best known of which is Edith Schlain Windsor v. United States, that are challenging the legality of DOMA and its application on a variety of issues. The Obama administration and the Office of the U.S. Attorney General, which are charged with enforcing the law, have stated that they do not believe DOMA is constitutional as applied to the cases that have challenged its constitutionality and have declined to defend it in these cases. Whether or not DOMA or any of its component parts are upheld as constitutional, the decisions in these cases are bound to add clarity to the situation.

However, “clear” does not always mean less complex. Whether or not DOMA is overturned, the decisions made by the courts will add new twists in the area of estate planning. For example, an older, opposite-sex couple in Illinois may choose to enter into a civil union rather than a marriage, in order to continue receiving Social Security benefits that derive from prior marriages. If DOMA falls, and their civil union is then treated as a federally recognized marriage, they could stand to lose a significant portion of their Social Security benefits.

Given all of the uncertainties, individuals who are considering a civil union should work closely with their attorneys to review their current estate planning documentation. Ambiguous language should be revised and clarified, and new or different tools (trusts, etc.) may be advisable in light of the new legal and tax landscape. Estate plans are “living” things, if you will; as the environment changes, they should be reviewed regularly and adjusted accordingly.

© 2011 Much Shelist Denenberg Ament & Rubenstein, P.C.