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Why should I have an Estate Plan?

Posted on August 14, 2015 at 12:12 PM Comments comments (0)

As an attorney, I think a lot of people think that their assets aren't big enough and their life isn't interesting enough to warrant an estate plan. To the first issue: you would be surprised. You don't have to be "wealthy" to make an estate plan a smart move for you. As I have mentioned before for instance, having a small business (or any business) would make estate planning a must for you. You don't have to be wealthy to have a small business. Most people who have kids, a decent job, some savings, some retirement savings, a house, a spouse, a car or two, even someone with a special collection of collectibles—anyone with any one or any combination of these is a great candidate for an estate plan.
Also, to the "interesting" issue, in this day and age, divorce is not unusual. An adult being single also is not unusual. The combination is not unusual. These themselves probably make your life "interesting" enough. I know some adults who grew up being raised by their mothers and barely knew their fathers or vice versa. They don't realize that if they die prior to their parents, the one they like and the one they don't like could very well inherit their assets equally, when really what they want to do is give all their money to just the one who raised them. This particular problem can be fixed with a simple Will. The same goes for someone whose sole objective is to give a certain collection to a friend or family member who may appreciate it like they did throughout their life.
I know an "Estate Plan" sounds expensive. It sounds like something normal people don't need. But we need to get away from the intimidating sound of that and start planning. In fact, a simple Will can cost as little as $250.00. In our office that's the price at which we begin. You get a consult with an attorney so that you know what you need and that same attorney writes up your documents. You can sleep easy at night knowing that your wishes will be followed and that it was done properly. It can be quite a deal for the peace of mind it brings and far less expensive over time than life insurance or all the other types of insurance and things we buy to prepare for the worst.

Bottom Line: As the saying goes, "Hope for the best but prepare for the worst."

Grandparent Rights: Beyond the Basics: A Loophole

Posted on July 17, 2015 at 10:52 AM Comments comments (413)

Recently I handled a case in which Grandparent Rights were at issue. As I have written before on this blog, Grandparent Rights are not as strong as a Grandparent might hope for or expect. There are only special circumstances in which a grandparent may ask for rights. Many times this is in a divorce case or a modification of the order from that previous divorce case in regards to the child custody portion of that divorce case.
The law allows for Grandparents to Intervene in Divorce cases and Modification of Child Custody cases. It also allows for Grandparents to request rights in other ways, under other circumstances. However, there is a loophole in the law as it exists at this moment. Consider this circumstance:
A couple has children together. They split—either by divorce or just split as a couple. Either the couple goes through a divorce and comes up with a custody plan or the unmarried couple splits, no court required. A grandparent has a chance to intervene here in the divorce. In the second situation, the grandparent does not because there is no court proceeding to intervene in. The grandparents have been close to the children for years, but the grandparents believe that the dissolution is their son or daughter's own business and they don't want to get mixed up in their case. This is a legitimate consideration. Divorces are messy. Many times these proceedings can bring out the worst in people, and in this case it's grandma and grandpa's son and daughter-in-law or vice versa. Grandma and Grandpa don't want to see this part of their son or daughter and they don't want to hear the accusations the other spouse has.
The reluctance of a grandparent to intervene could very well be a mistake that costs them their right to have a relationship with their grandchildren. In many instances, this is something that you can go back and ask for but here is the rest of the scenario:
                Grandma and Grandpa's son or daughter dies. Son or daughter is in a car accident. Son or daughter has a terminal illness like cancer and passes. Perhaps son or daughter dies some other way.
Terrible things happen all the time. One of the things we do as lawyers is prepare people for those terrible things and hope they never come to pass. If grandparent does not intervene and does not ask for grandparent rights before son or daughter's death, their rights to see their grandchildren could be in jeopardy. When son or daughter dies, past daughter-in-law or son-in-law may request the court for their current partner to adopt the son or daughter's children. As of now, the law has explicitly disallowed grandparents (whose son or daughter is the deceased ex-spouse) from intervening in an adoption. Once an adoption has occurred, all grandparent rights cease for the grandparents (whose son or daughter is the decease ex-spouse).

BOTTOM LINE: Intervening when the opportunity presents may allow an attorney to add language to court documents that can preserve your rights.

What do I do if an administrative child support proceeding has been started against me?

Posted on January 28, 2015 at 1:09 PM Comments comments (0)
The answer to this question is going to depend on a few things, but first and foremost, you need to respond within the timeline written on your notice and request a hearing. First of all, do you believe you are the father of the child? If not, then you will need to contest the paternity of the child. This does not mean that you need to run out and do your own testing then give that to the court. This is a bad idea for a few reasons: One, the test you choose may not even be admissible to prove or disprove paternity so the court will not even look at the results, and second, you might be wasting money if the child turns out not to be yours. If the child is not your child, and you work with FSD (Family Support Division) to get the correct test, you will not be charged. Additionally, even if the child is your child, the test is likely cheaper through FSD due to the fact that they contract with a laboratory for testing just for this purpose and therefore can command better pricing.
Now, what do you do if you know the child is yours? You can acknowledge Paternity and not have to pay for the genetic testing. This is a serious decision though, so if you are not 100% sure, this is a juncture at which you should consult with an attorney so that you understand where you stand after this acknowledgement from a legal standpoint. It is difficult and often impossible to go back and get the money back that you paid into child support if later on you find out the child is not yours. It is much easier to pay the few hundred dollars for a paternity test if there is even a shadow of a  doubt.
If the child is yours, you will want to make sure that the child support calculation has been done correctly. You will want to respond and provide all the documentation that FSD asks for as far as income statements and participate in any hearings that are scheduled. It is a thousand times better to confront the payment situation from the beginning than it is later. First of all, if the amount should be lower, you want to ensure that the child support begins accumulating at that lower number from the start rather than the higher number. If you do not contest the higher number within the timeframe your letter states, you will be responsible for paying all that has accumulated regardless of whether the number was correct or not. If you are confused or do not know what the right amount is, consulting an attorney is important. A single consultation will likely suffice to let you know if you are paying too much or if you are not, and therefore if you will be successful in contesting the calculated child support amount.

IMPORTANT: Remember that this administrative child support order is not a legal order with enforceable custody rights. You can only get that by filing in the Circuit Courts. If you file in the Circuit Courts, the administrative action will likely be stayed (a legal word for halted) because the Circuit Court proceeding can deal with both support and custody, whereas the administrative courts are only equipped to deal with the support portion of the case.

If a father is not married to the mother of a child, how does he get custody rights?

Posted on January 26, 2015 at 3:42 PM Comments comments (0)
A paternity action filed in the Circuit Courts. A lot of people confuse this with the administrative process. Sometimes, when the mother is not married to the father, she can have him paying into child support for the child but the father does not have any enforceable custody rights. Additionally, it being dealt with this way may not only deprive a father of custody rights, but also has a very good chance of making the child support too high. Why? Because there are factors that administrative child support is not equipped to take into account as well as a Circuit Court might. One of these is the amount of time that a noncustodial parent gets credited for caring for the child on the form that calculates child support. The more that is credited, the less child support will have to be paid.

At this point, you might be wondering and worrying if you can file in the Circuit Courts if an administrative action has already begun. The answer is yes, you can, and if you want custody rights that are enforceable through the courts and law enforcement, you have to do so. You will want to consult an attorney on a Paternity case. She or he can help you understand the documents you need to file. A next friend will need to be appointed for the children. This is almost always the mother. While there are some similarities between custody in a dissolution and custody in a paternity, the initial filing and petitioning will be different in very distinct ways. You will still need to create a parenting plan however and this is the heart of the case. This plan will layout when and how you spend time with your child. It will also dictate how decisions on the child's behalf will be made—for instance doctor visits, extracurricular activities, and where they attend school.

What are some common pitfalls when self-representing in a divorce?

Posted on January 21, 2015 at 12:22 PM Comments comments (1)
(1)    Not understanding the law and what you are entitled to before agreeing to a Settlement agreement. For example, a lot of potential payors on child support or maintenance don't realize how much the law and the legal landscape has changed in the past decade, and therefore they end up paying far too much, because of their preconceived notions and expectations about what they were going to have to pay (notions which are probably based on outdated societal expectations). Recently, higher credits for noncustodial parents were allowed, but you have to know how to ask for them and why. Also: a lot of spouses leave huge assets on the table that they are legally entitled to have. This happens commonly with retirement accounts but also happens with other assets.
(2)    Not knowing how to collect the assets that you are awarded in the divorce case. This is a problem with child support. This is also a problem very commonly with retirement accounts. Litigants don't understand that collecting these does not automatically happen when the court enters their orders. More paperwork is many times required especially in the two above-mentioned situations.

As an attorney, I know that some people will need  to do some of the legwork on their own, but a great time to consult an attorney is when you have been offered Settlement Documents by the opposing side. An attorney can charge you just for the few hours to review the document and consult with you about your rights. This is well worth the expense for any litigant. Additionally, if that attorney knows your final Settlement agreement, she can advise you on what you will need to do to collect your assets. Something easily defined like the required order to get to retirement assets or the required request for child support payments directly from noncustodial parent's workplace can also be accomplished on a "flat fee", which means that you will know how expensive the work is before the attorney does it. This is not a viable option with an attorney for a full dissolution proceeding because of the unpredictability of the work needed, but it is an option at these very specific points in the case.

Can I file a dissolution on my own or do I need an attorney?

Posted on January 19, 2015 at 2:10 PM Comments comments (0)
You can file a dissolution on your own. Depending on what county you are in, some may be more difficult than others. For instance, here in Missouri, in St. Louis County, there are some services set up to help with this. On the other hand, the surrounding counties like St. Charles, Franklin County, St. Louis City (separate from St. Louis County), and Jefferson County, which admittedly are much smaller, do not have the same resources. Additionally, none of these resources can give you free legal advice.
For legal advice, you need to hire an attorney. Some people may qualify for legal aid with places like LSEM or CLAM, but many do not and, these organizations do have problems meeting the huge need for their services even for people that do financially qualify. If you look up federal poverty guidelines, you will get an idea of who qualifies. The levels are extremely low and depending on the size of household, can be between income of approximately $14,000 a year and $35,000 a year in income. 
The legal community sees that there is a need for people beyond these lower limits that is not being met. It offers as a solution Limited Scope Representation. You can represent yourself for most of the case, but get legal advice when you need it.

Bottomline: You can file a dissolution yourself, but you may want some advice along the way.

During my dissolution, can I hire an attorney at any time?

Posted on January 16, 2015 at 4:38 PM Comments comments (0)
The answer to this is yes. You can always try to start the process and call an attorney later if you feel the need. This might not be advisable for a number of reasons, but if you need one, late is better than never. That said, there will be times where most attorneys will refuse to jump into the case. Taking on the responsibility of representing someone is something that we take seriously. Coming into a case midway means a lot of catchup for an attorney who has not been involved with the previous proceedings. They will need to know the history of the case by, at the very least, acquiring a copy of the court file and speaking with the opposing party's representation. Sometimes we will see the need to collect further evidence, which can take time—not atypically, months of time.

If you think you need an attorney, the very latest a prudent person should get counsel is at least a month before any planned trial. Depending on the circumstances, some attorneys may still refuse to get involved at this late date. We want to be prepared and maintain our reputation in doing so. If we feel we cannot meet those standards in a certain time frame, we may decline representation. We are also ethically obligated to provide diligent, competent services and shortening the timeline makes it that much harder to do so. On the other hand, if we think it is likely we can get a continuance of the trial date, we may jump into the case at a late date. Some courtrooms are more likely to do this than others. This has to do with the judge but also has to do with the docketing system. Some judges simply cannot afford to move a trial because their schedule or "docket" would be so backed up, cases would be delayed for an unduly long period of time. 

Where Does Our Firm Serve?

Posted on November 11, 2014 at 3:27 PM Comments comments (0)
The Faulstich Law Firm: Serving the following areas: St. Louis City, St. Louis County (Affton, Ballwin, Bellefontaine Neighbors, Beverly Hills, Blackjack, Breckenridge Hills, Bridgeton, Brentwood, Chesterfield, Clayton, Crestwood, Creve Coeur, Des Peres, Ellisville, Earth City, Eureka, Hazelwood, Fenton, Florissant, Jennings, Kirkwood, Ladue, Maplewood, Maryland Heights, Manchester, Normandy, Northwoods, Olivette, Oakville, Overland, Pacific, Pagedale, Pine Lawn, Richmond Heights, Rock Hill, St. Ann, St. John, Sunset Hills, Town & Country, University City, Valley Park, Vinita Park, Webster Groves and Wildwood.), St. Charles County (Augusta, Cottleville, Dardenne Prarie, Defiance, Flint Hill, Foristell, Lake St. Louis, New Melle, O'Fallon, Orchard Farm, Portage DeSioux, St. Charles City, St. Peters, Weldon Springs, Wentzville, & West Alton), Jefferson County (Antonia, Arnold, Barnhart, Byrnes Mill, Cedar Hill, Crystal City, Desoto, Dittmer, Festus, Herculaneum, Hillsboro, High Ridge, House Springs, Imperial, Kimmswick & Pevely) Franklin County (Anaconda, Caseyville, Catawissa, Oak Grove, Pacific, Robertsville, St. Clair, Sullivan, Union, Villa Ridge & Washington), Lincoln County (Auburn, Brussels, Ellsberry, Foley, Hawk Point, Moscow Mills, New Hope, Old Monroe, Troy, Whiteside, & Winf).

What type of information will I need to provide to the court during my dissolution?

Posted on September 26, 2014 at 4:38 PM Comments comments (0)
When you marry, that act has many legal repercussions involving how your finances are treated and your children are treated in the eyes of the law. Therefore, it makes sense that when you are dismantling this legal union that you will be asked to provide a great deal of information about both finances and your children if you have them.

You will be asked to provide information about your income. Information that you will need will be broken down on paystubs and W-2s that will be helpful in providing the court with this information. You might also need to provide bank statements or credit card statements. Healthcare information for vision, dental and general healthcare may need to be provided. You will need information on retirement accounts. Assets that you have will need documentation. For most people this at least includes a house and a car or two, and the loans and mortgages underlying those. Even if there is no loan on a car or a house, values will need to be provided. Depending on what financial information you need, you might want advice on specific forms or information that would be helpful in proving the value of assets. You might also want advice about income. Just because you make a certain amount of money does not necessarily mean that the opposing party cannot impute income to you above and beyond your current wages for the purposes of maintenance and child support.

If you have children, you will be asked for information on how you will provide for their care. Some of this is intertwined with the above financial information, such as income being tied to child support. You might be asked about day care providers and costs, even travel out of town for work. You will also be asked to create a picture of how you imagine sharing time with your children with your soon-to-be ex-spouse. You may be asked about their doctors, dentists, therapists and counselors.

Bottom line: You will be asked for a great deal of information pertaining to your finances and your children. Organizing these and having access to this information will help you start the process or respond if your spouse initiates the dissolution. This list is just the tip of the iceberg in a contested case.

My spouse and I have decided to get a divorce. How do I get started?

Posted on September 25, 2014 at 4:51 PM Comments comments (0)
You will need to make what is called an initial filing. This begins the divorce process, which in Missouri is legally referred to as a "dissolution". An initial filing will include multiple documents. You will need to provide court approved forms for some of these. Some of the documents will ask for simple data like birthdate and date of marriage. Others are more complex and will require you to "plead" certain information based upon legal statute (a type of law). Also, these will need to be served upon the respondent, which in this case would be your spouse or your spouse's attorney. This cannot be accomplished via regular mail for a dissolution proceeding.
Like most litigants, even after you look into this yourself, you will probably have questions. You do not want to "mess this up" or make a mistake that could have negative legal repercussions. This is perfectly normal, and perfectly justified. The simplest course is to retain an attorney who can answer all of your questions, help you to file for dissolution, and represent you at court hearings along the way. This would be ideal. This proceeding will touch every aspect of your life, the largest repercussions usually being financially related and/or related to parenting. The court will decide and enforce some very private aspects of your life.

However, I realize as an attorney that not everyone can afford a full retainer, and while fully retaining an attorney will be the ideal situation, there is another alternative if you simply cannot afford an attorney: This is called Limited Scope Representation. At the very least, on the simple side of the Limited Scope spectrum, you can have an initial consult and ask some questions that you have after you have done your research and then have an attorney look over your filings to make sure there are no red flags or additional documents that you need. This is a popular option when marital assets are below six figures. Anything above six figures and you will likely find in the long run (many cases take over a year to resolve) that having an attorney was worth the cost but you can ask about what suits you best at an initial consultation as well.