When should I write a will?

“When should I write a will?”  is a  question we hear at Mario J. Zappia, Attorney at Law frequently. There is a common misconception that writing a will is something that is done when embarking on retirement age. This is not the case. With many of the following major milestones, contacting an attorney to either draft or revise your will is a wise decision.

 

Estate planning

 

 

  • Marriage/Divorce – With either marriage or divorce, most people change the listed beneficiary in their wills. While some people are under the impression that a divorce will automatically negate an ex spouse written in a will, that is simply not the case. Revising your will to reflect your spouse, or lack thereof, is a measure taken to ensure your assets are going where you believe they should.
  • Having Children – Updating your will with the birth of your children is important not only for the purposes of delegating who gets your assets, but also for the purpose of naming a guardian for underage minor children.
  • Re-Marriage/Divorce – Though marriage and divorce has already been listed, it is important to note that subsequent marriages present their own special set of circumstances. Particularly, when it comes to blended families, naming guardians and asset allocation in a will can prevent potentially costly legal hassles. Updating a will to reflect both your current spouse and children resulting from this marriage and previous marriages will provide the clarity that is usually sought when drafting a will in the first place.
  • Illness/Accident – While no one necessarily wants to dwell on their mortality, death is an inevitable part of life. A brush with death in any form tends to cause us to evaluate our wishes and the needs of those we will be leaving behind. Writing a will can alleviate some of the anxiety that comes with thoughts of our own mortality in that it allows you to provide for your loved ones.
  • Accretion of assets – whenever your assets increase, by way of real estate, business, property, or even just cash, it’s important to revise your will to reflect your worth.

 

Call South Bend Attorney, Mario J. Zappia at (574)277-8720 to draft a will to meet your needs.

 

 

Mario J. Zappia, attorney at law

When should I call a lawyer?

A common question we hear at Mario J. Zappia, Attorney at Law is, “When should I call a lawyer?” Whether you are just contemplating divorce, or you have already made the decision to proceed with calling it quits, contacting an experienced divorce attorney is  always the smartest decision to make.

 

Couple divorcing

In this age of technology, it can be tempting to consider utilizing websites like LegalZoom, Rocket Lawyer and the like and forego legal representation entirely. And when people ask us at Mario J. Zappia, Attorney at Law, “Why can’t I just use an online legal service to get a divorce?”, we have a pretty simple answer: Online legal services  are simply a fill-in-the-blanks style approach on various legal proceedings.

Can  you technically get a divorce using an online legal service?

Probably.

Is it wise?

Certainly not.

Online legal services lack the ability to legally advise you. There is a lot at stake in a divorce. Tightening the purse strings to avoid paying for advice and representation to end your  legal agreement with your spouse could prove to be disastrous.

“How much child support should I be paying?”

“What happens to our house when the divorce is final?”

“Can I be ordered to pay alimony in Indiana?”

“How does infidelity on either side affect who gets custody of the children?”

“Can I keep my retirement account?”

“Why do I need a separate lawyer if my spouse already has one?”

These are just some of the most common questions we get asked at Mario J. Zappia, Attorney at Law. Without experienced legal representation, you are putting yourself in peril of losing everything you are legally entitled to in a divorce. You could be risking not only physical and financial assets, but you could also be saddling yourself with more liability than is wise.

Mario J. Zappia, attorney at law

*$125 consultation fee applies toward retainer*

After the Divorce is Final – What’s Next?

After a divorce is finalized, there are still steps to be taken for the parties to go their separate ways. While many people open up a separate bank account when they decide divorce is the route they plan to take, there are other assets that require a Property Settlement Agreement (PSA) and Divorce Decree signed by the judge to proceed with division.

After Divorce, What's Next?

As soon as the divorce is final, it is important to obtain several copies of the Decree and PSA, complete with a raised seal and signatures from the Court. If either of the parties has changed their name in marriage and wishes to change it back, these documents will be necessary to restore their former name.  Once the Social Security Administration and Indiana Bureau of Motor Vehicles processes these documents, modified Identification is issued.

With the newly obtained Social Security Card and either Indiana State Identification or Indiana Drivers Licenses, as well as the Decree and PSA, credit cards and bank accounts can be modified with the appropriate names, and divided according to the agreed upon terms.

In terms of retirement accounts and real estate, documents in addition to the Decree and PSA will be required to complete the division.

Some retirement accounts are divided with a Qualified Domestic Relations Order QDRO). QDROs, which essentially act as addenda to the Decree and PSA, recognize an alternate payee (former spouse)’s interest in a retirement account.  QDROs are signed Orders from the Court, granting the division of a retirement account, as spelled out the PSA. Once the QDRO is signed, it can be sent to the account holder’s employer and processed by human resources for implementation.

If a couple divorces and they still share interest in real estate, it should be decided if one party will keep the real estate or it it should be sold to divide the proceeds. If it is agreed that one party should keep the marital real estate, the party relinquishing their interest should execute a Quitclaim Deed.

Grandparents Rights

In Indiana, the subject of grandparent’s rights has become a hot topic issue. The growing drug epidemic in Indiana has ripped families apart. It has not only burdened the Indiana foster care system, it has also given grandparents a heavier load to bear by having to raise their grandchildren. This increasingly common societal trend has left many wonder, what rights do grandparents have in Indiana?

Grandparent's rights in Indiana

 

In the instance of grandparents who have been granted custody of their grandchildren due to the parent’s inability to adequately provide a stable home, grandparent’s rights are more clearly established. The Courts  have already decided that a grandparent/grandchild relationship is in the child’s best interests. And even in the best circumstance, Mom and Dad turn their lives around and Parent/Child are reunited, the Courts will likely look at the relationship already established and encourage visitation in the child’s best interest.

But what about those grandparents who have never had to step up to the parenting plate, in regard to parenting their own grandchildren. In Indiana, are grandparents legally entitled to visitation with their grandchildren?

That could depend on a few different factors.

  1. If the parents are married, the Court will not order the parents to provide visits to the grandparents. Because parents have a constitutional right to raise their children as they see fit, the Courts will not step and decide for them that the grandparents are entitled to involvement. The visitation grandparents receive when the parents are married is purely at the parent’s discretion. If the parents are divorced, or have never been married, that opens the door for potential visitation, granting the paternity has been established within the Court.
  2. If one or both parents is dead, then grandparents in Indiana may have a leg to stand on in terms of Court Ordered visitation with their grandchildren.
  3. If it is in the best interest of the child. At the end of the day, the Court’s ultimate goal is to act in the best interests of the child involved. If the grandparents had been involved in the child’s life.

 

Regardless of the circumstance, attempting to establish grandparent’s rights in Indiana can be a tricky process. Having an experienced attorney will be vital for success.

 

How Mothers Lose Custody in Indiana

Indiana is a state that favors both parents equally. In the best interest of the child, meaningful relationships with both parents is the standard. In the eyes of the law, a married mother and father in Indiana start out with joint legal custody. Meaning, both parents share equal rights to their children.

 

Child custody mothers indiana

 

Historically, there has been an assumption that mothers are automatically granted custody of the children by default. However, with more mothers working,  and more men moving beyond  the title of “family breadwinner,   taking on more aspects of childcare responsibility, custody is fair game between the sexes.

While equal involvement from  both parents is ideal, in some cases, the Courts may decide that it is in the children’s best interest for the father to have custody instead of mother.  Statistics show that 50% of the time, men are awarded custody of the children in a divorce.

So, how does a mother lose custody in Indiana?

  • Lack of involvement – If the court can see that the mother is neither the primary caretaker, the parent meeting most of the child’s basic needs, or even an active participant in the child’s life, granting custody to the parent who hasbeen involved on a consistent basis is likely.
  • Alcohol or substance abuse – Abusing drugs or alcohol is a surefire way for a mother to lose custody of a child in Indiana.  Any parent using illegal drugs, whether in the presence of their child or not, is risking the custody of their child.
  • Domestic abuse – First, abuse in the presence of the child will result in an investigation of neglect by the Indiana Department of Child Services. Physical aggression, even with a female perpetrator, is  domestic violence. A mother can lose custody in Indiana for being physically abusive to her children’s father.
  • Online activity – In the age of technology, there is a virtual paper trail with every click of a mouse we make. Not making responsible choices with posting online content, such as posting videos of irresponsible behavior, or even chronic disparaging remarks about the other parent can lend to a mother losing custody in Indiana. Certainly one instance of badmouthing the other parent on social media isn’t all that it takes to lose custody, but flippant use of technology can help the other party build a case against the mother.
  •  Discouraging the father/child relationship – If a mother does chronically make disparaging remarks about the father, online or otherwise, it can be seen as a form of interfering in the relationship between father and child. The Court will, at very least, issue a reprimand for interference in the father/child relationship, but it could also amount to a mother losing custody in Indiana when coupled with other factors.

 

When a mother faces losing legal custody in Indiana, one of the most important steps to consider is consulting with a seasoned family attorney. Once the attorney has gotten all of the information, and gives their opinion, following their advice is imperative. The advice given from an experienced family attorney could mean the difference of whether or not a mother loses her child. 

Cohabitation Agreements

With U.S. divorce rates at their lowest point in decades, the moral acceptability of divorce is surging to an all time high. At  73%, statistics are showing that divorce has gained steady momentum across all demographics, even the majority of people who consider themselves “very religious”.

This gradual shift in moral acceptance of divorce signifies a change in our societal view of marriage. Marriage, an institution that was once the standard for building a life together has become a formality that a growing number of people choose not to pursue.

‘Oh darling, I want to spend the rest of my life with you! But please do not impute or infer any intentions from that comment.’

In it’s place, many people are instead choosing to cohabitate. The lack of a legally recognized relationship has not hindered millions of couples across the U.S. from buying homes, having children, and growing old together.  Cohabitating couples are building lives together, going on vacations together, buying dogs together, and  having children together just like married couples. And yes, cohabitating couples sometimes break up, just like married couples.

Cohabitation Agreement

Cohabitation Agreement

When a relationship that is not legally recognized comes to an end, the discuss of “who gets what” can become murky. In terms of entitlement, division of assets is not necessarily as clear cut as it would be in a divorce.

With this in mind, many couples are choosing to have Cohabitation Agreements prepared. These legal contracts, much like Prenuptial Agreements, are designed to document which assets and debts should go to each party, should the cohabitation break down. A Cohabitation Agreement provides an unmarried couple some of the same legal benefits extended to married couples.

While Cohabitation Agreements are smart for nearly everyone cohabitating with a romantic partner, there are some instances where the stakes of not having one are even higher:

  • business owners
  • those intending to cohabitate long term
  • those with substantial amounts of money
  • those with children
  • those with significant debt
  • those with shared real estate
  • those who gave up a career to raise children
  • those with retirement accounts

While staying out of the judicial system altogether can be tempting, more and more couples are finding that having some legal protection with a Cohabitation Agreement is the best way to get the best of both worlds.

 

 

Estate Planning

Anyone who has ever lost a loved one knows that laying someone to rest can often be a complicated process. On top of grief that naturally goes along with losing someone, there are plans to make, belongings to sort through, and details to finalize, not least of which are financial. The process is that much more arduous when the deceased did not plan their estate.

Estate planning is not just for the wealthy, who have large sums of money waiting for their families. Contrary to popular belief, nearly everyone has an estate. An estate is comprised of everything  you own when you die, from personal belongings to real estate, to bank accounts.  When the wishes of the deceased are not spelled out in black and white in a will, things can get divided up in the standard way as defined by law – which is often not what is necessarily desired.

Estate planning

The importance of estate planning can not be understated

If the deceased had minor children in their custody, having a will is imperative to secure their placement with the desired guardians. It is easy to assume grandparents or some other relative might step up to the plate in a position of loss, but that is not always the case. The Court may step in and make the decision to place the minor child with a family member that it sees as most fit.

In terms of financial accounts, jointly held accounts are more cut and dry. When one party dies, the other party becomes the sole owner. But what about accounts held in one party’s name alone? Depending on the state of residence and the laws therein, one party may only get half and the other half goes to the children. While this might seem like a reasonable division, the other half could go to the children even if they are minors, with the funds held in trust until they reach adulthood. This may or may not be ideal.

Some of these situations might not be worst case scenario, but the common theme within them is the fact that important decisions are being made without consulting the deceased.

In life, we are vigilant about caring for our loved ones, making sure our children are provided for. We may research schools for our children, looking for the absolute best education possible for them to have a good start in life. We may plan our meals to be healthy, low in cholesterol, avoiding trans fats, because we want our partner to be well taken care of and living their best life. Why do we stop short there? Estate planning is a way of making sure the ones closest to us are well taken care of, even in our absence.

 

 

 

Father’s Day

Father’s Day is a day meant for celebration. A depiction might include Mom, Dad, the kids, maybe grandparents. Dad is manning the grill, beaming with pride over his newly acquired “World’s Best Dad” t-shirt. The family gathers over their meal, lavishing cards and hugs upon Dad. It’s idyllic.

But it’s not always reality.

Divorce, custody, death, distance, even jail. Whether you’re the Father separated from his children, or you’re away from your own Father on Father’s Day, the absence can be emotionally heavy.

Happy Father's Day

Happy Father’s Day

If you are without your children on Father’s Day:

Whatever the reason, absence does not erase your part in creating your perfect little humans. Nor does that fact make the distance between you easier. The best thing you can do when you’re aching to embrace your children, is to take care of yourself.  We have all heard the spiel from flight attendants before a flight, reminding us to be sure to fasten our own oxygen masks before attempting to help anyone else with theirs. There will come a time when you are reunited with your children, and you will want to be at your best for them.

Spend your day waking up late, reading a book, taking a long shower, hit the gym, get a massage. Take care of yourself.

 

If you are without your Father on Father’s Day: 

If you have your own children, that can certainly dull the sting of being without your Father on Father’s Day. Even still, it can be hard not to feel a sense of loss. If possible, give Dad a call. Though a phone call can’t make up for a lack of in-person affection, the gesture helps. Dad knows you’re thinking about him.

What about those who never had a Father:

Its natural to still feel a loss from a lack of relationship, but this is another instance where self-care is imperative. Their lack of involvement does not reflect your worth. And if you have your own children now, it certainly does not affect your ability as a Father.  Happy Father’s day to you.

 

Backburner relationships

With technology being a facet of our global culture, and the majority of the US population having a social media account, it’s easier than ever to maintain relationships online.

It could be the Aunt who lives across the country who posts little birthday messages to your Facebook page. It could be the former coworker you occasionally chat with via text. Or it could be a backburner relationship.

Backburner relationships can start off as simply as finding an old flame online and catching up. But what might begin as casually reminiscing can quickly change course, in terms of intent. If you valued them as a friend, wouldn’t you have already maintained contact? Or is the purpose a potential re-ignition?

A wedding ring sits on a laptop keyboard

Backburner relationships can also start with complete strangers. Someone ‘likes’ your new profile picture. You like theirs back. And suddenly, a private online conversation is in full swing. With your dialog, the two of you learn that you have a lot in common and obviously find each other attractive.  But why feel out the potential connection with someone else if you’re in a relationship?

Whether intentionally or subconsciously, many are seeking outside connections as a form of relationship insurance. Backburners.

As humans, there is evidence showing it is natural for us to be ‘aware’ of our relationship options. It’s what we do with that information that counts.

The glaring problem with setting up a back up relationship is that it is creating an emotional relationship with someone new. Emotional infidelity is just as damaging as physically cheating. It’s building a wedge between you and your partner for a “maybe”. It’s setting your chosen relationship up for failure.

 

Home Alone

A question we hear a lot is, “At what age is it legally appropriate to leave my child home alone?” The short answer is that in Indiana, legally, there is no magic number. Leaving children home alone should be based on a variety of factors, including age, but certainly not limited to.  

Instead of choosing an arbitrary age to decide if your child is old enough to stay home alone, there are some things to consider:

Do they feel ready to stay home alone?

First and foremost, if your child is not confident in their own ability to be alone, it is not appropriate for them to be alone. Regardless of the age the child’s siblings may have been left alone, each child develops at his or her own pace.

Is your child aware of what to do in an emergency?

Accidents happen, even in well prepared homes. Does your child know his or her address? Do they know the protocol on what to do if there is a fire? Do they have a nearby adult who they can go to should they need help?

 

Do they know how to reach you?

Does the child have access to a phone, and know how to reach you on yours? Does the child know who you’re with and when you’ll be back?

and finally,

Is the child likely to follow the rules you’ve laid out?

If your child is unlikely to follow rules when you’re around, leaving them alone is certainly not going to make them fall in line. You can lay out as many safety measures as you want and go over countless role playing scenarios to prepare them, the bottom line is, if your child has trouble following instructions or orders while you’re with them, you cannot expect them to behave on their own.

 

If you and your child have discussed the prospect of being home alone and you’ve both decided the child is ready, you’re now free to formulate a safety plan and lay out the ground rules.  And remember, just as readiness to stay home alone varies, the rule book should be customized for each child.