Mother’s Day Gift- the gift of peace of mind

/in /by
Perhaps the best gift you can get your mother (and yourself) for Mother’s Day is an estate plan.  I tell my clients that it is their responsibility to make sure that their parents have estate plans.  Why?  Because when your parent dies, as the child, you (and your siblings) will have to organize and wrap up their affairs.  You can make your job much easier and you can save a lot of money by making sure that they have a well thought out estate plan. 
Estate planning does not just mean preparing a will.  A good estate attorney will not only prepare a will, but will also help you decide which property should pass outside of probate by way of transfer on death designations and can prepare a living will, power of attorney and health care power of attorney in the event that the testator becomes incompetent or incapacitated. 
Transfer on death designations are viewed as an easy way to save money and time because they give the beneficiaries immediate access to those assets rather than having to wait for a distribution through the probate court; however, transfer on death designations are not right for all people and all property and legal counsel should be sought before filling out any TOD paperwork.
Estate planning can keep family assets in the family in several ways.  You can express your wishes about how your assets should be divided after you are no longer able to make that determination by having a will prepared.  When the decedent’s wishes are expressed in a will, family members are less likely to fight over how the assets should be divided.  This will cut down on attorney’s fees and court costs that would arise if there were a dispute.  In addition, a testator can ask that the court waive a bond which can be costly depending on how large the estate is.  TOD designations are difficult to contest successfully and any assets transferred by TOD will go to the beneficiaries regardless of whether someone contests the testate or intestate distribution in probate court.
Estate planning will not only make your life easier if the worst should happen, but it will also give your parents peace of mind that they didn’t have before; something that every parent deserves.

Royal Prenup

/in /by
If you are anything like me, you were glued to your television this morning, to catch a glimpse of the royal bride before you headed off to work.  It has been reported that Will and Kate did not sign a prenup before getting married.  Although I would recommend a prenup for most couples (Crystal and Hef), I don’t necessarily think a prenup for Will and Kate is essential, especially considering the laws in Great Britain.  While prenups are common in the states, they are not nearly as common in Britain.  Although prenups carry some weight, they are not 100% binding in Britain. 
Prenuptuals are all about bargaining power.  Once the royal couple got engaged, the only bargaining power each of them had, was their willingness to walk away from the marriage; something that neither of them were likely to do considering the short length of their engagement and the media coverage surrounding the wedding.  If you aren’t willing to walk away, you don’t have any power because you will do whatever it takes to get to the wedding day.   Perhaps Will realized that he was already asking Kate to give up her life as she knows it and it would be too much to ask her to decide how much that was worth right now. 
The difference between Will and Kate and the rest of us commoners is this:  Will and Kate are both very wealthy at a young age, whereas the rest of us are not so lucky.  Our society tends to view prenuptial agreements as something only the wealthy do.  That should not be the case.  One purpose of a prenuptial agreement is to predetermine how assets would be divided and support would be ordered in the event of a divorce.  However, prenuptial agreements also serve a very important second function: to declare assets that are already acquired as pre-marital assets.  Sometimes attorneys spend more time trying to determine what each of the parties had prior to the marriage (or the value of their assets) than they do trying to figure out what to do with what was acquired during the marriage (this is actually a very simple equation- you divide marital assets equally).  
One of the factors that should be considered when having a prenuptial agreement prepared is age.  The younger you are when the prenuptial agreement is being drafted, the less ability you have to foresee what you might need in the future, especially if other circumstances change.  For example, Will and Kate might have a difficult time negotiating what they may need if they divorce because they do not yet have children and they do not know how much time they are planning for (they do not know how long the marriage may last).
To be enforceable, both parties must fully disclose their financial picture, and the agreement must be entered into without coercion by either party.  Each party should seek separate counsel to advise them on their rights when contemplating a prenuptial agreement, in fact, our office will not participate in drafting or reviewing a prenuptial agreement unless the other party is also represented by counsel.  And remember, you only have as much power as your willingness to walk away.

LLC Formation

/in /by

If you are considering forming an LLC, there are many steps you have to take.  You have to check to see if your business name is available, you have to fill out the Articles of Organization, and then you have to send the completed form, along with the filing fee to the Secretary of State.  I often tell my friends and family that this is something they can do on their own if they wish to save money; however, when I form an LLC for a client, my services include much more than just filling out a form and filing it.

If you retain me to form your next LLC, I will check to see if your business name is available for you.  I will fill out the Articles of Organization form and prepare more complete Articles of Organization to be filed with the Secretary of State form.  My Articles will include the names and addresses of the owners as well as the percentage of ownership of each.  This is advisable because the form that is provided does not have a space regarding the identity and address of the owners.  So basically, if you do not supplement the provided form, anyone can come along and claim that he is the owner of your LLC and no one would know the difference.  Some clients choose to opt out of this offered service and that is fine too.

Clients that are forming an LLC usually need a Federal Tax ID number.  I obtain my client’s federal tax ID number as part of the LLC formation service.  I do this because it allows my client to begin operating his/her LLC sooner than if the client has to obtain it his/her self.

I offer to serve as the statutory agent for my LLC clients.  This means that if the LLC ever gets sued or served with other important legal notices, those documents will come to my firm, rather than the members of the LLC.  This will help protect the LLC in the case that the LLC runs into legal issues.  We notify our clients and provide copies of all documents (as long as you keep a current mailing and email address with our firm).  We can help guide you through the process and provide expertise, if necessary.

Clients that are setting up an LLC with more than one member usually need an Operating Agreement which outlines the terms of their relationship to the company and with each other.  I provide my LLC clients with an operating agreement for an additional flat fee.  An operating agreement is a dense and often complicated contract; however it could save business or personal relationships if the business goes downhill.   We recommend an Operating Agreement to any LLC with more than one member.

Some popular legal form websites encourage people to expedite their LLC application.  I do NOT recommend expediting your application because in my experience, it is a waste of money.  Once you send in your application, the Secretary files it and then sends you the business recording information that you need to open a bank account.  What some people do not know is that once the application is filed, you can access that information via the internet, even if you have not received that information in the mail.  Expediting your application does not get your application filed noticeably quicker than the regular filing.  If you file your application without expediting it, it should only take a few days before you can access your certificate online.

The Tax Holiday

/in /by

With taxes due in exactly one week, procrastinators everywhere are scrambling to finish their taxes so as to avoid the IRS radar.  My initial advice is to not wait until the week before taxes are due before starting them.  However, we are a busy society and if you find that you are a procrastinator, that advice is too little, too late.  As an attorney, many of my family members have asked me if I do taxes.  The truth is that I was never very good at numbers and I dread doing my taxes more than the average person.  Being an attorney and having some knowledge of the tax laws, you would think that I would be willing to endure that torture in order to avoid paying an accountant.  The truth is that the process and anticipation is too painful. This year, I hired an accountant to do my taxes.

It is not that I don’t know how to fill out a 1040, its just that my taxes are no longer simple and even if they were, I don’t enjoy filling out a 1040.  My disdain for doing my own taxes is such that I encourage our government to change the income based tax system to something less citizen-accountant driven.  The only problem with that kind of extensive overhaul is that it would put all accountants out of business, which might be counter-productive.

Although attorneys are capable of doing your taxes, an average attorney is not necessarily going to do a better job than an accountant, and the attorney is probably going to charge more.  If you do have an attorney complete your taxes, my advice is to choose an attorney that practices tax law.  Find an attorney that you know has done yours or someone else’s taxes in the past.  Although you won’t find me preparing individual tax returns for clients, other attorneys market that practice area and are good at it.  Remember: Just because your attorney agrees to do the work, does not mean that your attorney is good at it or has experience doing it.  It is your job to check credentials, if you don’t, you may find yourself in an expensive, intrusive, & exhausting audit.

April Fool’s

/in /by

I was never much of a prankster on April Fool’s Day.  Don’t get me wrong, I enjoy a practical joke as much as the next person.  Its just that April first sneaks up on me so quickly, and good practical jokes come in one of two ways: they are either carefully planned out to perfection, or they just fall into your lap in a way that could not have been planned and unfold perfectly by coincidence.  I was never very good at creating practical joke plots just for the sake of the first of April but for those that can pull it off, I have some advice.

Through marriage last year, I inherited a family full of April Fool’s jokesters and I wanted to provide some practical advice that may prevent a fun joke from turning into major legal trouble.

According to the law, if you intend your actions, you are responsible for the consequences, regardless of whether you intended or could have foreseen those consequences.  If your joke does not go as planned, you may be responsible for damage to personal property or injury to a person.

My advice is to save your practical jokes for your close friends and family members at home and opt not to participate in April Fool’s jokes at work.  If you save your pranks for home, you will avoid the potential for getting fired and from having to continue to work with someone that doesn’t think you are funny.  Things are more likely to go awry when there are many people involved and the more people involved, the more humiliated the subject will feel.  If something does go wrong, your friends and family members will be more forgiving and will be less humiliated.

If you do choose to participate at work, do not set up scenarios where someone could get hurt or property could get damaged.  Most importantly, consider all possible consequences of your actions.  By doing so, you can avoid becoming a fool of April Fool’s.

Communicate with your Attorney about how you like to Communicate

/in /by

While in law school, I completed an internship in the Ethics Department of the Columbus Bar Association.  That department was created to handle complaints of attorney misconduct.  The complaints that we received fell into one of two categories: 1) complaints about an attorney’s lack of communication with his clients 2) all other complaints.  By far, the complaint we saw most often resulted from an attorney’s lack of communication.  Now that I am a practicing attorney, I can tell you that there are several reasons why an attorney does not communicate as often as the client may like.
1. Attorney fees are high and most attorneys bill hourly.  Some attorneys do not communicate as often as a client may like because the attorney believes she is doing the client a favor by trying to keep the client’s bill as low as possible.  If you would like to communicate with your attorney more, you should tell her; just be aware that your monthly bill may be a little higher than it was in the past.
2. Sometimes there isn’t anything happening in the case and there is nothing to report.  If you prefer that your attorney communicate with you at some regular interval regardless of progress, you should tell your attorney how often you would like to hear from him.  The other option is to just check in with your attorney at those regular intervals to see if anything new has come up in your case.
3. Your retainer may be exhausted.  If you remedy this problem by replenishing your retainer, you should  have very little difficulty getting in contact with your attorney thereafter.  You must be careful following this rule, but in general, the more matters an attorney has to take to make a living, the less time the attorney will have to give you personal attention.  If you feel that your matter will require a lot of the attorney’s attention, you should find an attorney that has the time, and more importantly, you should make sure that attorney always has funds in his account to speak to you when you need him.

There are many plausible reasons why an attorney does not communicate as often as clients like; however, the lack of communication can rise to an unacceptable level.  If you have called your attorney and left 3 or more messages over a week period and you have not received a telephone call (or any communication) back,  (with the exception of a vacation that the attorney gave advanced notice of) it is my opinion that your attorney’s lack of communication has risen to a level that is unacceptable and I would advise you to begin a search for a new attorney.

Juvenile Court- Delinquency and Unruly Cases

/in /by

Because many attorneys do not work in the juvenile courts, it is something I get asked about often.  Juvenile court is very different from common pleas and municipal court.  I got interested in working in the juvenile court when I was working on my Masters degree at Xavier University.  It was at Xavier that I learned that juvenile courts were developed to deal with the unique issues of juveniles and to help give children a second chance when they mess up.  Unfortunately, juvenile courts have morphed into something very different since their creation.

Many clients contact me regarding their son or daughter’s case.  Often times, the parent is not satisfied with the advice they are getting from the court appointed counsel.  I do my best to explain the following:

1) If your son or daughter is charged with a “crime” in juvenile court it is called either “delinquency” or “unruly.”
2) Your child basically has two choices.  They can admit the allegations in the complaint, or they can deny the allegations in the complaint.
3) If your child admits the allegations, the case automatically goes to disposition and the child is “sentenced.”  Depending on the allegation, sentencing may include probation, writing a letter of apology, time in detention, house arrest, community service, and many other options, all at the discretion of the Magistrate or Judge.
4) If your child denies the allegations, the court sets the case for a trial.  At trial, the court will determine whether the juvenile is responsible for the alleged acts.  Unfortunately, if your child denies the allegations but then is found responsible for the acts, the fact that your child denied the allegations may be used against your child when it comes time for disposition (although not overtly).

Many parents admit to me that their child committed the act alleged; however, they do not feel their child should admit to the allegations because of the repercussions later in life.  I would agree with this approach 99% of the time for adults; however not necessarily with juveniles in juvenile court.

The juvenile should certainly ask for counsel to be appointed.  Once appointed, counsel can solicit plea offers; however, plea bargains are not offered as often in juvenile court as they are in common pleas court and they do not have quite the same effect in juvenile court.  The reason pleas are not offered as often is because the child does not get “charged” unless the prosecutor has a solid case.  The reason pleas do not have the same effect as in common pleas or municipal court is because in those courts, the crime of conviction often dictates the parameters of sentencing that the Judge can order.  In juvenile court, the Judge has a lot of discretion because sentencing guidelines in juvenile court do not exist.  Even if the child admits the allegations, he/she will still be given the opportunity to make a statement and provide mitigating arguments, which is often all the juvenile wants.

While it is never a bad idea to get a second opinion in your case, if your court appointed counsel is asking your child to admit the allegation in a juvenile court case, this is probably not the result of laziness or incompetence.  You should ask the child’s attorney what other options you have, assuming that your child committed the alleged act.  You will likely see that your other options aren’t great.

If your child vehemently denies the allegation, you must decide whether you believe him/her.  Hiring counsel and going to trial is only a good option if your child really didn’t commit the alleged act (and not just that they deny doing it, but that they, in fact, didn’t do it) and that is something that you probably don’t know for sure, unless you were there when the incident occurred.

Divorce vs. Dissolution

/5 Comments/in , /by

One of the most common questions I get from my family law clients is about the difference between a divorce and dissolution.  Although they accomplish the same thing, there are many differences between a divorce and dissolution and most of the differences relate to the total amount of money you will spend to terminate your marriage.

A dissolution is often considered the amicable way to terminate a marriage. With a dissolution, the parties come to an agreement on all terms of separation, including: property division, spousal support, child support and parenting time.  They put their agreement in writing and they present it to the court.  The court will make their agreement an order of the court as long as it finds that both parties voluntarily entered into the agreement, the parties fully disclosed their assets and debts, and it is a fair and equitable division of property.  Both parties must cooperate throughout the process and both parties are required to appear at the final hearing.  Dissolutions often cost less, especially when the parties have their agreement worked out before an attorney gets involved.  Parties can keep their costs low, not only by working out all details of their agreement before meeting with an attorney but also by finding an attorney that will do the work on a flat fee.  Although most family law attorneys will not work on a divorce for a flat fee, many do offer flat fees for dissolutions.  You will also find that the filing fee is less for a dissolution.  In the Cincinnati/Dayton area, you will find that the filing fee is between $250-$350.

Although divorces do not involve an agreement between the parties, not all divorces result in disagreements between the parties.  There are two types of divorces: uncontested and contested.  Once one of the parties files a complaint, it is considered a divorce.  If the responding party files an answer, it is then considered a contested divorce.  If no answer is filed, it is considered an uncontested divorce.  You may be asking yourself why anyone would file for a divorce if they are not having disagreements about the terms of separation.  The answer is that many times people choose to file for divorce because the other party will not cooperate with the dissolution process by signing the necessary forms and going to the final hearing.  In those situations, a divorce is a better option, and if the other party does not file an answer, the process will be similar to a dissolution in terms of time and money.  If you suspect or know that the other party will not respond to the complaint, you may ask your attorney if he/she will do an uncontested divorce for the same price as a dissolution.

The most expensive way to end your marriage is a contested divorce.  The court often sets several pretrial dates in the hopes that the parties will come to an agreement and in the end, most contested divorces do end in an agreement; however it may take a very long time to get to that point.  If you find yourself in a contested divorce, you may feel that there is nothing you can do to save money.  The filing fee is often between $300-$400 and attorneys often refuse to work on a flat fee.  Sometimes the other party is just being disagreeable or has unjustified expectations.  You can, however, save yourself some money by finding an attorney that approaches your case with your best interests in mind.

If you find that you are more upset at the other party when you leave your attorneys office than when you went in, it is possible that your attorney is intentionally winding you up to fight so that you spend more on attorney’s fees.  If you suspect that you may be in this situation (and believe me, I see it all the time), you should evaluate your expectations and determine if they are reasonable.  If your attorney has given you unrealistic expectations, you will be unhappy with the result no matter what happens and you will spend more.  You should find an attorney that gives you realistic expectations about your case.  An attorney that really has your best interests in mind will not be able to prevent the opposing attorney from using the same tactic to rack up attorney fees but will at least provide a starting point for getting your divorce settled with a fair result at a reasonable cost.

No matter how you decide to terminate your marriage, it is likely that your attorney will have you fill out a long questionnaire regarding every aspect of your marriage.  It is important to understand that every question is on that questionnaire for a reason.  Your attorney will have to report that information somewhere in the paperwork.  If you take the time to make sure that you have filled out each and every section of that questionnaire before returning it to your attorney, your attorney will spend less time following up on incomplete information; therefore saving you money.

Saving Money while hiring an Attorney

/in /by

The last thing people want to pay for is attorney fees.   We have decided to start this blog to post our thoughts about many things, but mostly we want to inform people about how they can save money when they hire an attorney.  Believe it or not, there are many things clients can do to save money when they hire an attorney.  Attorneys do not tell clients this because they make our living by selling legal advice and services.  Attorneys want to sell their legal services to you and some attorneys will go so far as to sell you things that you do not need.  We would like to dedicate this blog to helping you understand a little bit about the law, attorneys, fees, and other law-related topics so that you can save money when you meet with your attorney.  We have put together a plethora of resources geared towards this mission, including our facebook page: facebook.com/tibbslawoffice, our instagram page: @tibbsladiesoflaw, and our youtube channels: youtube.com/tibbslawoffice and youtube.com/tibbslawofficekentucky.   The resources we are providing here and elsewhere should NOT be construed as legal advice.  You should meet with an attorney to talk about your specific situation and hopefully, if you use our tips, it will cost you less when you do!