When Can Your Child Decide Which Parent He/She Wants to Live With?
January 23, 2008 | Leave a Comment
One of our most frequently asked questions regarding a divorce here in Memphis or in Mississippi is “When can my child decide who they want to live with after my divorce.”
The answer is 18 (the age of majority). Until a child becomes an adult they may not decide on their own which parent to live with after divorce.
However, under both Tennessee child custody laws and Mississipi child custody laws, if a child is 12 or older the judge may hear testimony from the child (either in court or in chambers) as to the preference of the child. However the judge is not under any obligation to place the child in their preferred home. The preference of the child is merely one factor that the judge will consider in awarding custody to the primary residential parent.
The main consideration that the judge uses to determine custody is the best interest of the child. The preference of the child is only one consideration in determining what is in the best interest of the child. However, if all other considerations are equal then the preference of the child will often times be the tipping point.
Memphis Divorce - The Tennesse
January 23, 2008 | Leave a Comment
Memphis Divorce Lawyers - The Tennessee Parenting Plan
When a divorcing couple in Tennessee have children they must submit a parenting plan. The parenting plan is a formal document that the couple creates stating all the agreements concerning custody, visitation, and decision making.
Here are some of the more common items that are found in a Tennessee Parenting Plan.
- Residential Schedule
When going through your Memphis divorce with children one of the most important parts of your Tennessee Parenting Plan will be the residential schedule. The residential schedule details who the children will live with during the school year, vacations, holidays and special occasions. It also states if there are any limitations when visiting with a parent. The Tennessee Parenting Plan can award holidays, for example Halloween, to the father every even year and to the mother every odd year. But the parents can agree that there may be some holidays that will be given to one parent every year. Usually a plan will define what time a holiday begins and what time it ends. It is important to have a detailed plan to prevent problems with interpretation later.
- Decision Making
The next step in a plan is to assign decision making between the parents. Major decisions such as which school to attend or what religion the child will be raised as can be assigned to one parent or jointly. However, day-to-day decision making is generally given to the parent that the child is residing with at the time the decision needs to be made. If certain decisions are particularly important to a parent, this is the time to make that known and reach an agreement.
- Child Support
Of particular concern to most parents is child support. This area of the Tennessee Parenting Plan states which parent will pay child support and in what amount. In Memphis Child support is calculated using state guidelines which are based on the income shares model. This section of the parenting plan will also explain which parent is responsible for maintaining health insurance on the child. And if a parent is required to have life insurance during the child’s minority, it will also be listed here.
- Dispute Resolution
A provision discussing dispute resolution is generally included in a parenting plan. Many plans provide for disputes between the parties to go through a mediator before going back to court. This provision should also state who is responsible for costs of mediation or arbitration.
This is not a complete list of all the concerns that are covered in the Tennessee Parenting Plan, but rather a list of the most commonly found sections. If you have detailed questions concerning your Memphis divorce and Tennessee Parenting Plan please contact a competent Memphis Family Attorney or Memphis Divorce Attorney, or you may call the office of the Ferrell Law Firm at 901-754-1340.
Kiplinger.com: Wills for the Young, Single or Broke
January 22, 2008 | Leave a Comment
Even if you aren’t rich and don’t have children or a spouse, you still need to spell out your wishes in case you die or can’t make medical decisions for yourself. Erin Burt of Kiplinger.com
Everyone needs a Plan regardless of how much (or how little) money you have, your marital status or family size, or how much (or how little) you own. Making a plan for your assets, debts and healthcare informs your family and friends of your wishes and minimizes their costs of carrying those wishes out.
Never too Young to start thinking about estate planning. You need plan for how your assets and debts will be handled after your death, a testamentary will, and a plan for how your healthcare should be handled, as well as management of assets and debts in case you should become ill or incapacitated, a living will.
A Will for the Living is necessary for the unexpected situations in life, from car accidents to medical consents. Have a detailed and specific plan for your healthcare and financial wishes prepared for a person that you trust. Saving everyone involved money, time, and heartache involved.
Your living plan should consist of three parts:
1. A durable power of attorney arranges for someone to handle financial matters on your behalf. You may choose to have an active financial power of attorney set up in case something happens to you or if you happen to be out of town. Or, you could stipulate that it only go into effect when a doctor certifies that you have become incapacitated. Without this legal form, your spouse, parents, siblings or live-in partner would have to petition a court for the right to handle things for you. All you need to do to set up a financial durable power of attorney is select a friend or family member you trust to act as your “agent” and complete a fill-in-the-blank form. You’ll then sign it in front of a notary public. Ferrell Law Firm can provide the necessary forms and serve as notary for a nominal fee.
2. A health-care proxy, or a durable power of attorney for health care, appoints a person to make medical decisions for you if you can’t do so yourself. This includes the power to consent to your doctor to give, withhold or stop any medical treatment, service or procedure, including life-sustaining procedures. Unmarried couples should also state that each partner be allowed to visit the other in the hospital in case there is a “family only” rule. Ferrell Law Firm can provide the necessary forms, serve as notary, and provide guidance for understanding advanced healthcare directives and selecting the right guardian.
3. A living will spells out the kinds of medical treatment you do and do not want if you are unable to speak for yourself. It generally applies only if a person is terminally ill and faces imminent death — or if he or she is in a persistent vegetative state. You should share your wishes with your doctor and the person you selected as your health care proxy. Although this can be a contentious issue, it’s much more likely that your wishes will be followed if you have a living will. Ferrell Law Firm can draft an appropriate living will, ensure that it is properly executed, and provide guidance for understanding advanced healthcare directives and selecting the right guardian.
A Will for End of Life is necessary because you never know when the unthinkinkable might happen. Even if you are young and healthy, creating this simple document can greatly assist your loved ones and carry out your wishes. Wihout a will, the state’s laws determine what happens to your assets and children.
A lot of married couples assume that in the event of one spouse’s death, the other will automatically inherit everything. Many young singles may think that mom, dad and their siblings will get everything if they die. Unmarried couples may assume that because they’ve been in a committed relationship for a long time, the court will give preference to their partner. And parents may think that because they have formally asked a friend or relative to care for their children in the event both parents die that they have sealed the deal. But unless all of these wishes are put into writing, they mean nothing.
If you are single, young, with no children, no more than $2 million in assets, and have no complicated wishes on how your assets should be handled, you will be fine with a simple will. However, you should consult with an attorney to competently assess your needs. Ferrell Law Firm offers a free consultation to help you determine your estate planning needs, additionally we provide lifetime 3 year review and update for all wills and estate plans that we draft.
Basically, your will should cover four main areas:
- What people or organizations will inherit your property.
- Who will serve as guardian to care for your minor children.
- Who will manage the property you leave to your minor children.
- Who will serve as executor — the person who will carry out the wishes in your will.
A member of a committed couple (married or unmarried) may choose to leave all their property to each other in case of death, or to their children, or to another party.
A single person may decide to leave everything to their parents, a sibling, a friend, a charity, or divide up their assets.
Don’t think you own anything of value? While some of your personal items be not be of much value, don’t forget that your car, bank accounts, retirement accounts and maybe even family heirlooms or inheritances are part of your estate. No matter how seemingly insignificant your possessions, it’s important to make the matter of settling your death as easy as possible on your family. A little planning now can lift a huge weight off their shoulders later.
And once you have drawn up a will, you should revisit it if your life situation changes. If you get married, divorced, have a child, your spouse dies, break up, or your assets grow to the point of falling subject to estate taxes ($2 million in 2006), you’ll need to take another look at your will. Ferrell Law Firm offers complete estate planning consultation, review and updating every 3 years for your lifetime on all plans that we draft. We can assist you in drafting Powers of Attorney, Simple Wills to more complex Trusts and Estate Plans.
CNN Money: A new baby? Write a will
January 16, 2008 | Leave a Comment
A new baby? Write a will
First-time parents should name a guardian and make their wishes clear
You just returned home from the maternity ward with your first bundle of joy in your arms and the house is stocked with diapers and baby formula — now’s the time to sit down and draft a will.
While the thought of writing a will and beginning estate planning may not be exactly what you are thinking about whent you bring home baby, its is very important for you and your spouse prepare for your child’s well being in all possible ways. People today are living longer healthier lives, and are less likley to think about becoming ill or incapacitated. Young couples tend to put of writing wills and estate planning because they are already overhelmed by the role of being new parents.
Who will watch over Your Child?
If you pass away without a will - dying intestate - the state that you reside in will decide who takes care of your child. The child is placed in custody of the State immediately proceeding a court ruling of guardianship. When choosing a guardian, think not only about the quality of care provided for your child, but also guardian’s age, health and well-being. While you may emotionally want your parents to care for your child if something happens, your parents naturally may not outlive you or your child.
To get started finding a guardian for your baby, here are some questions to ask yourself from Nolo.com, a self-help law center and legal publishing company on the Web.
- Do you have confidence in the prospective guardian?
- Is your choice physically able to handle the job?
- Does he or she have the time?
- Does he or she have kids of an age close to that of your child?
- Can you provide enough assets to raise the child? If not, can your prospective guardian afford to raise the baby?
You want to consider selecting more than one guardian to serve specific roles in the care of your child. Assigning care and upbringing to one guardian and financial responsibility to another. It is your duty to your child to pick a suitable guardians that will provide necessary care and be able to work together.
Once you and your spouse have discussed and decided these issues together, you’ll be ready to meet with an estate planning attorney to draft all the necessary documents.
Drafting a will can be fairly simple, depending on the amount of assets you have and how you plan to divide your belongings among your heirs, said Mike Janko, executive director of the National Association of Financial and Estate Planning (NAFEP).
Typically, each spouse leaves all of his or her belongings to the other spouse in separate wills.
If you wish to leave valuable property or your investments to your child, you should consider setting up a living trust with your child as the named beneficary. The property in the living trust would be protected and preserved for your child. You may establish when or what an age the child may regain full control of that property, also you can stipulate how the child can spend the money.
Before you make you meet with your estate planning attorney, get out the calculator and figure out how much you and your spouse have. Estimate your assets by adding up the worth of your material property including your home, furniture and car, plus your savings and retirement accounts, then subtract your debt.
Discuss with your estate planning attorney appropriate planning levels to plan for your future wealth while staying within your current financial needs.
Where to go
If you are in the Memphis or North Mississippi area, please call us at 901-754-1340 or email to schedule an initial consultation and planning session. If not, check with the American Bar Association to find attorneys with expertise in probate and estate planning in your city.
TN HOPE Scholarships: Need or Merit
January 9, 2008 | Leave a Comment
The 2008 Session of the 105th General Assembly of Tennessee is beginning with a very important issue on its plate. What to do the $400 million surplus of lottery revenue. Many of our state lawmakers are divided along party lines, with the Governor and Democrats calling for need-based changes and Republicans wanting the program to remain merit-based.
TN HOPE Scholarships
Application and General Information can be found here.
Lottery Scholarship at a Glance can be found here.
Award amount - $4,000 for 4-year institutions; $2,000 for 2-year institutions (no more than cost of attendance)
Minimum Requirements - TN Residency, Entering freshman must have either 21 ACT (980 SAT) OR 3.0 GPA, GED Applicants must have 525 OR 21 ACT (980 SAT).
If eligibility ever ceases, HOPE may only be regained once.
Argument for NEED
Lawmakers calling to reduce the GPA requirement to 2.75 in order to expand eligibility to more Tennesseans. Allowing more students to remain in college longer and reaching the long-term goal of higher graduation rates. The argument is simply that since there is enough money to pay for more students, we should. This change would indirectly fund state colleges and universities in a more reliable manner, by ensuring that the money earmarked for a particular student will not go to waste if the student ceases to be eligible. Currently one third University of Memphis freshman and 40% of Christian Brothers University freshman lose their scholarships by their sophomore year according to Channel 24 News. Memphis City Schools and schools across the State do not prepare all students for the demands of college classes. By lowering the GPA requirements to a B minus level, students may have more of chance to overcome their disadvantages. Eventually being able to graduate with a bachelor’s degree.
Argument for MERIT
Lawmakers who want the GPA requirement to remain at 3.0 simply want to keep the program to its original goal of keeping the best and brightest students in Tennessee. Their argument is that the surplus money should be used to directly fund colleges, universities and other institutions through building projects and funding programs. The argument that students are not prepared for college is reversed when discussing merit-based scholarships. As evidenced by high schools across the State, simply pushing students through school to increase graduation rates does not benefit anyone. They will “skate” by in college as they “skated” by in high school. Proponents of the current GPA requirements would agreed that there is no “waste” funds if funds were earmarked for the institutions instead of the individual student.
Awaiting the RESULTS
Lawmakers in Nashville won’t be coming to a quick decision on the matter. Fortunately, while there is always a budget crunch, Memphis Daily News reports that lawmakers are optimistic about handling the situation. Overall, the Lottery Scholarship Program has been successful in helping many Tennesseans have a chance to go to college. But remember, college preparedness does not simply come from the classroom. Children must be prepared academically, emotionally and financially for college. While we can all hope that we can rely on HOPE when saving for college tuition, it’s important to keep a realistic perspective. Ensure that there is no interruption in the funding of your child’s educational dreams by discussing them with your Estate Planning Attorney.
How to Contest a Will
January 8, 2008 | Leave a Comment
I ran across a great post from fellow Mississippi lawyer and blogger Ronald Morton.
Here is an excerpt from his post on discussing how to contest a will in Mississippi.
“The following are the situations in which a will may be contested:
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- Mental incapacity. You may contest a will if you believe your loved one did not have the mental capacity to write the will. The best way to prove this is with a statement from a doctor who examined your loved one around the time he or she wrote the will. You may also use medical records and other witnesses who were around your loved one at the time.
- Undue Influence. If you believe another person exerted undue influence over your loved one and induced your loved one to change the distribution under his or her will, you may contest the will based on undue influence. Generally, the person contesting the will is required to prove the person exerted undue influence. However, if the person had a fiduciary relationship with your loved one, that person may have to prove that there was no undue influence. People who might have a fiduciary relationship include a child, a spouse, or someone with a power of attorney.
Click HERE to continue reading Ronald’s post on this topic.
Consider Your Alma Mater in Your Estate Planning
January 3, 2008 | 1 Comment
Think close to home and close to your heart. Planned gifts provide an individual with the opportunity to combine their personal charitable interests with long-range financial and estate planning.
Making a charitable gift to your Alma Mater, be it your college or highschool, is a satisfying and fulfilling way for you to personally see the benefits of your philanthropic efforts.
Charitable Remainder Trusts. In the right circumstances, this plan can increase your income, reduce your taxes, unlock appreciated investments, rid you of investment worries and ultimately provide important support.
You can fund a Charitable Remainder Trust with cash or appreciated property. You received income from assets for your lifetime or for the lifetime of a named beneficiary, qualify for a charitable deduction, and save capital gains and estate taxes. After your lifetime and/or that of a loved one, the trust assets are distributed to your Alma Mater.
Charitable Lead Trusts. Make a donation now while reducing the tax costs for your heirs in the future.
In a Charitable Lead Trust, you transfer assets to a trust that makes payments to your Alma Mater for a specified number of years, after which the assets are transferred back to you or your heirs. The Charitable Lead Trust allows you to pass assets on to your children and grandchildren with little or no estate tax.
Charitable Gift Annuities Planned gifts that pay
A Charitable Gift Annuity is a legal contract between you and your Alma Mater that allows for assets to be transferred to your Alma Mater. In exchange, your Alma Mater agrees to pay you a lifetime income. You get an immediate tax deduction and a portion of your annual income us tax exempt. Pay-out rates can be attractive and estate taxes and probate costs are eliminated. After your lifetime and/or that of a loved one, the remaining assets are distributed to your Alma Mater.
For more information contact your Alma Mater’s Office of Development and/or Alumni Giving.
Memphis and Shelby County Probate Court
January 3, 2008 | Leave a Comment
While doing some research on locations in Memphis and Shelby County where you can apply for passports I came across what I assume to be a little known fact regarding the shelby county probate court. You can actually apply for a passport at the downtown location of the probate court on Adams. As far as I can tell it is the only location outside of the post office here in Shelby County.
So if you’re going to be traveling out of country anytime soon and live downtown or are there often feel free to stop by the probate court and apply for your passport. For those of you who are familiar with the location it is located on the east side in the bottom floor of the shelby county courthouse on Adams, adjacent between second and third street.
5 Ways Children of Divorce Suffer
December 18, 2007 | Leave a Comment
While not specific to either Memphis family law or Mississippi family law, I recently came across a post on the Oklahoma Family Law Blog, which is written by family lawyer Dan Nunely, that brought up several points that all parents in Memphis and the surrounding areas should consider if they are going through a divorce.
The blog referenced an article written by Trish Berg that discussed the losses that children suffer when divorce occurs. The following is her list of the five main losses children experience during divorce:
1. Loss of Dad - When parents divorce, typically the dad leaves the home, and may not be present much in the lives of the children. This causes an emotional vacuum for the children, and they may feel rejected, alone, and unloved, no matter how much the single parent loves them.
2. Loss of Money - When dad leaves, so does a lot of the money. Economic resource are, at best, cut in half, at worst, single parent families live in poverty.
3. Loss of Security - Kids of divorce often move to a new, smaller home, in a new town, with a new school. They now have to visit their dad. If mom and dad then begin dating, an entirely new stress is added to their lives. Their sense of stability and security is shaken as their world has forever changed.
4. Loss of Harmony - Many kids whose parents divorce feel caught in the middle. The fighting may have stopped, but now Mom may talk negatively about dad, and dad may gripe about mom, all in front of the kids. Parents may play games with visitation, and hold the children as emotional ransom. This loss of harmony causes tremendous chaos and stress for them.
5. Loss of Simplicity - Life for children of divorce can get very complicated. They have to schedule everything they do, and remember what weekends they are visiting dad so they don’t play in a soccer league with games then. They have to split heir holiday time - Christmas Eve with dad, Christmas morning with mom. And when life events hit, they have to worry about mom and dad being in the same place. Who will come to my eighth grade graduation? Will they see each other? Will they fight? Family life is now complex and chaotic, and that will last for the rest of their lives.
What can you do to help your children? Explain to them the process that you are going through. Make sure that they understand that nothing they haven’t done anything to cause the divorce. Never argue in front of them or use them as pawns between your spouse. And try to keep things as constant and familiar as you can. The more things remain the same the more secure your children will feel.
Living Trusts vs. Wills - Part 5 (final)
December 17, 2007 | 1 Comment
It seems that a lot of you have enjoyed the series on living trusts vs. wills from viewing the amount of traffic that these posts have seen. I hope that all of my subscribers will enjoy the final post in this series. Soon I’ll have the entire list up on the resources page so that you can have everything in one place and be able to go there and download the full list in word format if you’d like.
I want to add that this list isn’t a conclusive list but just some things that you should keep in mind when doing your estate planning. As an estate planning lawyer I highly believe that living trusts are among the most efficient and best estate planning instruments available. However, they are right for everyone. When making important estate planning decisions that will effect your family for decades make sure to talk to your lawyer.
Okay, with that out of the way. Here is the conclusion to the list.
Living Trusts vs. Wills - Part 5 (final)
19. Is a living trust expensive?
Not when compared to all the costs of court interference at incapacity and death. How much you pay will depend on how complicated your plan is.
20. How long does it take to get a living trust?
It should only take a few weeks to prepare the legal documents after you make the basic decisions.
21. Should I have an attorney do my trust?
Yes, but you need the right attorney. A local attorney who has considerable experience in living trusts will be able to give you valuable guidance and peace of mind that your trust is prepared properly. In some states, qualified paralegals can now also prepare trust documents; however, they cannot give you legal advice.
22. If I have a living trust, do I still need a will?
Yes, you need a “pour-over” will that acts as a safety net if you forget to transfer an asset to your trust. When you die, the will “catches” the forgotten asset and sends it into your trust. The asset may have to go through probate first, but it can then be distributed as part of your living trust plan.
23. Is a “living will” the same as a living trust?
No. A living trust is for financial affairs. A living will is for medical affairs; it lets others know how you feel about life support in terminal situations.
24. Are living trusts new?
No, they’ve been used successfully for hundreds of years.
25. Who should have a living trust?
Age, marital status and wealth don’t really matter. If you own titled assets and want your loved ones (spouse, children or parents) to avoid court interference at your death or incapacity, consider a living trust. You may also want to encourage other family members to have one so you won’t have to deal with the courts at their incapacity or death.
26. Summary of Living Trust Benefits
- Avoids probate at death, including multiple probates if you own property in other states
- Prevents court control of assets at incapacity
- Brings all your assets together under one plan
- Provides maximum privacy
- Quicker distribution of assets to beneficiaries
- Assets can remain in trust until you want beneficiaries to inherit
- Can reduce or eliminate estate taxes
- Inexpensive, easy to set up and maintain
- Can be changed or cancelled at any time
- Difficult to contest
- Prevents court control of minors’ inheritances
- Can protect dependents with special needs
- Prevents unintentional disinheriting and other problems of joint ownership
- Professional management with corporate trustee
- Peace of mind
