Webster recognizes same sex marriage!

Webster, as in the dictionary! 

Merriam-Webster defines “marriage” as:  1 a (1): the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2): the state of being united to a person of the same sex in a relationship like that of a traditional marriage <same-sex marriage>  http://www.merriam-webster.com/dictionary/marriage

(Apparently this addendum took place in 2003, but the “update” did not receive much attention at that time.)

American Heritage dictionary recognized same sex marriage in 2000. 

The Oxford English Dictionary is considering recognition in upcoming editions, but has not made any changes yet.

Proper Execution of a Will

Proper Execution of a Will

 

            There are several requirements of Florida Statute 732 that must be met in order to have a validly executed will.

 

            Florida requires that all wills must be written—no oral wills.  There is a preference for typed documents, but a hand written will is sufficient if the will meets all of the other criteria.

 

            A will executed in Florida by a nonresident is valid in Florida if the executed will meets all of the execution requirements of the testator’s home state.

 

            First, the testator (the person who signs their will) must sign at the end of the will.  If the testator is unable to sign the will, a proxy may be used to sign the will, but the proxy must sign the will at the testator’s direction and in the testator’s presence.

 

            There are to be no changes made to the will after the testator has signed it.

 

            Second, the witnesses must either see the testator sign the will or be present when the testator acknowledges that s/he signed the will.  There must be two witnesses, one of the witnesses cannot also serve as the notary.  The witnesses must sign the will in the presence of each other and the testator.  Beneficiaries of the will may serve as witnesses, but this could lead to a legal challenge in the future, so it is a best practice to have non-beneficiaries witness the will if possible.

 

            There is some disagreement over the “presence” requirement.  The best practice is to have the testator, witnesses, and notary all in the same room within sight of each other while executing the document. 

 

            Third, the will must be notarized by a valid notary public.

 

            In addition to the will, the testator, witnesses, and notary should simultaneously execute a Self-Proving Affidavit.  The Self-Proving Affidavit eases the probate process.  The Self-Proving Affidavit includes statutorily required language that indicates the Will being entered into probate is the same will the witnesses and notary saw the testator execute.

 

            When executing a will, self-proving affidavit, or any other estate planning document, precise legal procedures must be followed.  If one of the legal requirements are not met, the document may be deemed invalid.  Avoid these problems and consult with an estate planning attorney, such as myself, to walk you through this process.  Please call me today to schedule your appointment.

 

DIY Divorce = Disaster

 

            We are a nation of do it yourselfers.  In these tough economic times, even more people are attempting a DIY divorce.  While everyone wants to pinch their pennies where they can, you should view your divorce as an investment in your future.  How are you supposed to know what your rights and responsibilities are without hiring a professional to advise you?  Here is why you should not DIY Divorce:

 

1.      You are not well versed in the nuances of family law and family procedure

2.      There is a minor child or minor children involved;

3.      There are marital children and/or non-marital children;

4.      Paternity is or maybe an issue;

5.      The child(ren) have special medical needs;

6.      One or both of the parties is in the military or reserves;

7.      Incomplete or incorrect financial affidavits can cost you thousands down the road

8.      There is marital debt, including credit cards;

9.      One or both of you own property, either before or after the marriage;

10.  A spouse received an inheritance;

11.  A spouse owns their own business;

12.  One or both spouses are involved in a family business;

13.  A spouse receives their pay “under the table;”

14.  A spouse has not filed a tax return;

15.  You own real property, particularly property in other states;

16.  You are capable of supporting yourself;

17.  You gave up your income or ability to be self-supportive by staying home to raise the kids or support your spouse’s career;

18.  You have been married over ten (10) years;

19.  You have lived in several states or countries over the course of your marriage;

20.  Your spouse has obtained an attorney;

21.  Your spouse may have hidden assets…you may not find them!;

22.  Bankruptcy by either spouse is a possibility;

23.  One spouse has significantly more assets than the other;

24.  One spouse has significantly more earning power than the other;

25.  The parties signed a prenuptial agreement (that may need to be challenged);

26.  There is a history of abuse or intimidation;

27.  A spouse has a criminal history;

28.  A spouse has a history of mental health issues;

29.  You may need more professional advice about tax consequences, capital gains, and repercussions of your financial decisions to divide your assets and liabilities;

30.  You are emotionally involved and may accept a bad “agreement” while trying to earn your spouse back;

31.  Your oral agreements that are not properly drafted and executed may be enforceable, or unenforceable;

32.  You may take advice from family and friends who do not know the law any better than you do;

33.  You are too focused on the present to consider your future, both financially and emotionally;

34.  Waiving rights you may be entitled to, or not knowing what you are entitled to (such as social security benefits, military benefits, pensions or retirement accounts);

35.  Your mistakes are not always “fixable”;

36.  You may not file a required document;

37.  You may miss a deadline;

38.  Do you know how to protect yourself against future liability regarding your spouse?; and

39.   You may not actually become divorced or the divorce is invalid!

 

Save yourself a lot of money and heartache by hiring a professional to advocate for your needs during this difficult and emotional time.  Call my office to schedule your consultation today.

 

Financial Exploitation of the Elderly

             The elderly are frequently targets of financial abuse; however, in these tough economic times, elderly victims are targeted even more frequently.  Abusers are not always fly by night repair men or individuals calling on the phone with a “free offer.”  Potential abusers of the elderly are conservators, caregivers, agents acting under durable powers of attorney, trustees, representative payees, financial planners, attorneys, family members, friends, and caregivers.

 Types of Elder Abuse

             Elder abuse is an act or failure to act by a person required to act that results in harm to an older person.  Forms of elder abuse include 1) physical abuse, 2) sexual abuse, 3) emotional and psychological abuse, 4) neglect, 5) abandonment, 6) self-neglect and 6) financial exploitation. 

             Financial exploitation is the illegal or improper use of an older person’s funds, property, or assets.  Examples of financial exploitation are 1) telemarketing fraud, 2) identity theft, 3) home improvement scams, 4) predatory lending, and 5) abuse of estate planning fiduciary duties.  In this article, we will focus on the abuse of estate planning fiduciary duties.

 Exploitation in Estate Planning

             Estate planning is the ordering of one’s legal (and sometimes non-legal) affairs in preparation of one’s incapacitation or death.  Individuals frequently maintain many estate planning documents including wills, codicils, trusts, power of attorney, health care surrogate, living wills, and other miscellaneous documents.  Often, an elderly individual will sign over some or all of their legal power as an individual to a trusted family member or caregiver.  An example of this is a power of attorney wherein an elderly individual will allow a trusted individual to make certain legal or financial decisions on their behalf.  The opportunity for financial exploitation here is rampant because of the vast power transferred in the legal document.  Even though the elderly individual may believe this person is a trusted individual, the individual may have their own motives, which may include wiping out the individual financially, involuntarily placing the elderly individual in a long-term medical facility, or prematurely making life or death medical decisions.        

 Warning Signs

             Behavioral signs of financial exploitation of the elderly are that the individual is withdrawn, afraid, secretive, or hesitant to talk freely with others.  Additional indicators of financial exploitation is that the abuser becomes overly protective of the elder individual, refuses to allow visitors, and/or isolates the victim from other friends and family. 

             Financial signs are unusual bank account activity (is the individual even capable of physically getting to an ATM machine, etc.); forged financial documents; documents that were signed or financial transactions that took place when the elder individual is mentally incapable of understanding the transaction or what s/he was signing; several unpaid bills after someone has been assigned this task; a change in spending habits; and someone who shows up and tries to weasel their way into the elder individuals life and finances.

 Prevention and Remedies

 Many of the above situations can be prevented by consulting with my office to ensure your legal documents not only reflect your needs and desires, but protect you from financial exploitation.

 If you believe someone is a victim of financial exploitation, contact my office so we can discuss your legal options, including possible criminal charges.

 

 

 

 

 

Exhausted Police Officer & Batterer Sleeps Through Mugshot

Robert Szoyka, a Palm Beach police officer, is the perfect example of how exhausting battering and threatening a woman really is.  He could not even stay awake for his mugshot.

(On a personal note, I commend the Indian River Sheriff’s Office for arresting him even though he’s a police officer.)

Read the full story and see the mugshots here:  http://www.theweeklyvice.com/2009/03/robert-szoyka-florida-man-tuckered-out.html

Florida lawmakers trying to give dating violence laws same teeth as domestic violence laws

Currently, Florida Statutes for domestic violence and dating violence are similar, but not equivalent.  Lawmakers are trying to give victims of dating violence the same protections currently afforded by Florida law to victims of domestic violence.  For example, victims of dating violence do not have the following provisions (that are included as part of the domestic violence laws):

• Coming within 500 feet of the petitioner’s residence, school or work place.

• Coming within 100 feet of the petitioner’s car.

• Defacing or destroying the petitioner’s personal property.

• Refusing to surrender firearms or ammunition if ordered to do so by the court.

For more:  http://www2.tbo.com/content/2009/mar/12/lawmakers-seek-added-protections-dating-violence-v/news-politics/

Economy’s Effect on Domestic Violence

The economy is having a distressing effect on domestic violence statistics.  In a nusthell:  less income, more abuse, more offenders, more victims, more services required, more shelter space needed, fewer jobs, less money to provide help.

First, as the economy continues to slide, more people are losing their jobs, more homes are in foreclosure, stress increases, and the level of domestic violence increases.  These factors result in more individuals seeking aid or shelter from domestic violence service providers.

Second, even if an individual is able to work and self-support him/herself and the children, jobs are scarce and the individual may not be able to find a job.  This increases the number of people and number of nights families are in domestic violence shelters.

Third,  donations to domestic violence providers are way down.  I know from personal experience that domestic violence shelters operate on shoestring budget on a “good year.”  Now they are forced to do more with less.

Fourth, because of all the factors listed above, more victims are “deciding” to stay at home, which increases possiblity of injury or fatality.  The only other “option” is homelessness.  The numbers of homeless individuals has also increased dramatically; many of whom are victims of domestic violence.

For more, read here:  http://www.orlandosentinel.com/orl-dvup09mar04,0,2039111.story

Australia Law Allows Mistresses to Sue for Support

Australia’s new “Family Law Act” allows mistresses to sue their married partners for support, maintenance, child support, etc.  Men with a history with multiple women may be paying each of those women.  OUCH! 

Florida does not have an equivalent law allowing Mistresses to sue for support for themselves, only for children born to the parties.

Read the full article:  http://blogs.smh.com.au/lifestyle/asksam/archives/2009/03/mistresses_and_the_other_woman.html?page=2#comments