Wednesday, August 27, 2014

Should my Will be notarized?

While I HIGHLY recommend you work with a Virginia licensed attorney in creating a will, trust, power of attorney, advanced medical directive or any other estate planning document, I also recognize not all of you will.  If you are working with an attorney, it is highly likely your Will will be notarized.  If you are drafting it yourself or using some online program, should you have it notarized?

Legally, there is no requirement that a will be notarized.  It must, however, have two witnesses who are unrelated to the will.  You should list their names in print and their address so that they are easier to track down if there is a challenge to your will. 

So, if legally you don't need it to be notarized, why are attorneys notarizing the wills they draft?  This is over-simplifying the issues but to be brief: it is much more difficult to challenge a notarized will than a non-notarized will.  A notarized will becomes "self-proving", meaning that you don't need your witnesses to appear in court to testify that they did, in fact, witness you signing the will.  In addition, the notary can act as a back-up witness.  For example, if one of your witnesses did not properly witness the will or is unavailable to testify to the validity of the will, the notary may be able to act as a witness in addition to the two witnesses listed on your will. 

It may be a bit more of a hassle to have a will notarized but in the long run, it affords your Will added protection and will likely make the process easier on your loved ones. 

If you are looking at drafting a will or other estate planning document and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, August 19, 2014

How do I get a custody or visitation case started?

This is usually how a custody or visitation case starts: a parent thinks to himself or herself "I have a child and I am not in a relationship with the other parent; I know something needs to be done to formalize some sort of arrangement but what do I do?"

First, you'll need to figure out what court you should be looking at (read here for more information on that). 

Next, you'll need to determine what it is you want to formalize. 

Do you know who the father is or do you know that you are the father?  If not, you may need to file a petition for adjudication of paternity.  This is typically a form that you fill out in the Juvenile and Domestic Relations Court asking the court to order a paternity test (DNA test) to determine who the father of the child is.  Once the test is complete, you would then be asking the court to "order" that whoever that person is, is the father of the child. 

Once the father is determined, what do you want done?  Custody is divided into two parts: legal custody is the determination of which parent, or both, gets to make major life decisions on the raising of the child (what religious denomination, what doctor, etc.)  Physical custody is who the child resides with the majority of the time.  If you want the court to determine these types of issues, you will need to petition the court to determine custody. 

Visitation is a separate issue and determines how much time and when the child will spend with the parent he/she does not permanently reside.  If you want visitation to be determined, you will also need to petition the court to determine visitation. 

Typically the final issue parents want a court to decide is child support.  This is the amount of money the parent with whom the child does not regularly reside will pay to the parent with whom the child resides the majority of the time in order to support the child.  This money is for the support of the child but is paid to the other parent, not the child directly.  This amount is typically determined by a formula but can be adjusted for various reasons. 

To sum it up, if you want everything to be determined and formalized, you will need to 1) petition for paternity, 2) petition for custody, 3) petition for visitation and 4) petition for child support.  These, most likely, will technically be different cases but will likely all be heard in the same hearing and a determination will be made on all in the same day (occasionally this is not possible and there will be separate hearing dates).  These are simply the documents to get the process started.  From here you will need to be able to prove your case and show the court what the best interests of your children are and how you want these cases to be determined. 

If you are going through a custody or divorce case and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, August 11, 2014

Does your custody order address the school year in enough detail?

Summer is coming to an end and, inevitably, you and your ex-spouse have had to work together to make the custody arrangements work throughout the summer.  The school year is now approaching; are you and you child's other parent on the same page with how things will work?  Talking through the details and making sure you have a clear understanding will help your child maintain stability and a sense of normalcy as the school year begins.  Here are a few things you may need to discuss and/or have the court address:

1.  Weekend visitation: What time does weekend visitation start and end?  Are the times you have used in the past still appropriate to allow the child enough time to prepare for the beginning of a new school week each week?  Have you discussed and is there an understanding about when the child will complete any homework he has over the weekend? 

2.  Sick days:  Have you and your child's other parent discussed what will happen if the child is sick?  Will the responsibility fall on the parent who has the child in his/her care and custody at the time or will one parent always take off to stay with the child? 

3.  School functions and reports:  Will you and your child's other parent attend school functions together?  Will you both go but attend separately or will you alternate school functions?  The same goes with parent-teacher conferences; who will attend and what role will each parent play?  Who will have primary access to report cards?  Did you list the other parent as a parent with the school so that he/she may have access to school records?

4.  Extracurricular activities:  What happens when your child decides he wants to join the soccer team and has games every Saturday morning?  Will the child attend his games regardless of which parent he is with or will one parent not allow the child to attend the games during his/her visitation time?  Who is going to pay for these activities?

Custody orders provide you and your child's other parent with a basic structure of how the child's life will look.  They do not, however, provide every detail and issue that you may encounter.  They also may lose their applicability as the child grows older and the circumstances change.  It's important, as early as possible, to develop a communication system with the other parent (whether it is by phone, in person meetings or emails) to figure out the details and make sure every understands the arrangements.  If you are unable to come to an understanding and agreement, it may be time to look back to the courts for additional help.

If you are involved in a custody or divorce dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Thursday, July 24, 2014

What can employers NOT fire you for?

In Virginia, employment is "at-will".  But what exactly does that mean?  It means employers can terminate you for just about any reason or no reason at all.  There are, however, a few exceptions to this rule.  So what exactly are the reasons that employers cannot use to fire you?  Here's a list of a few of those reasons:

1) Age - you cannot be fired because you are a certain age (typically, these cases involve older employees rather than younger employees)
2) Gender - you cannot be fired because you are a woman or because you are a man (this typically extends to things that occur because of your gender such as pregnancy)
3) Race/National Origin - you cannot be fired because you are of a certain race or national origin
4) Disability - you cannot be fired because you have a disability
5) Religion - you cannot be fired because of your religion or your religion practices

On top of these reasons, you cannot be fired in retaliation for opposing firings or discrimination based on the above listed categories.  For example, if you participate in a co-worker's discrimination case in support of the co-worker, your company cannot fire you for doing so.

These cases are very fact intensive and there may be other limitations on your company terminating you that are not listed above.  If you believe you have been discriminated against or wrongfully terminated, it is best to contact an attorney to discuss your situation.  If you would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Tuesday, July 22, 2014

Why You Should Consult With Multiple Attorneys

Let's say you have a legal problem that needs a solution and you've decided you are going to hire an attorney to help you find that solution.  You walk into a lawyer's office, he/she gives you some brief advice and then asks if you want to retain him/her.  What should you do?

In my opinion, you should meet with multiple attorneys before deciding which one you would like to hire. Every attorney is different.  We all have our own styles and preferences.  We all work differently.  Some attorneys prefer to have communications go through their secretary, some prefer to make phone calls themselves.  Which one of those would you be most comfortable with?  Some attorneys believe amicable resolution (i.e. settlement) may be in your best interest, while some attorneys think you should fight til the end.  Would you prefer to try to settle or do you want to fight no matter what (regardless of the attorney's opinion, this decision is actually YOUR decision to make).  No legal problem has a simple solution and each attorney is going to strategize on how to solve yours.  Do you want to be involved in developing that strategy or do you simply want your attorney to tell you how to move forward?  These things might seem simple and minute but they can affect your overall experience with the legal system in a huge way. 

Picture how different the experience would be if you simply receive a paper from the court in the mail versus having your attorney call you and explain to you what that paper means and how it affects your life.  You should make sure you are comfortable with the attorney and how they practice law BEFORE you retain them.  While you always have the right to fire your attorney and retain a new one, this may end up costing you more money in the long run.  So take up attorneys' offers on free consultations and meet with a few before you decide which one is best for you. 

If you are looking to speak with an attorney and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, July 21, 2014

Custody: Getting Creative

Custody cases can be very difficult for people to handle.  They are emotional, high stakes cases and typically, the parties just want what's best for their children.  The problem is, with the emotions running high between the parties, it can become difficult to articulate what those best interests are. 

Personally, I like to get creative when it comes to custody cases.  Most people know the standard custody arrangement: one person gets primary custody of the child, the other person gets weekend visitation every other weekend and possibly a weeknight dinner.  Just because that is a common arrangement doesn't mean it's what's best for you, your child and your co-parent

Maybe your and your co-parent are capable of being in the same room together.  Maybe we can find a schedule that allows your child to spend ample amount of time with both of his/her parents.  Maybe every other weekend isn't feasible as visitation for you or your co-parent, how can we fix that?  Let's not use the default custody and visitation schedule and let's work together to find a real resolution that can last.  

Having an attorney on your side in a custody case can help you explore creative solutions.  Because we are not as emotionally involved, we can help you think outside the box to figure out the best resolution for your case. 

If you are involved in a divorce or custody dispute and would like a consultation, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.

Monday, July 14, 2014

Can you answer these questions?

Can you answer these questions?  If not, it may be time to talk to an attorney.

If I died yesterday, who would get my property? Who would take care of my children?
If I became incapacitated (can no longer make my own decisions), who would pay my bills?  Who would take care of my physically?
Does my family know if I want extreme life saving measures taken if I am in a hospital?
How much of my ex-spouse's retirement do I get?
Where will my children spend their summer break this year, with me or my ex-spouse?
Who pays for my children's healthcare, me or my ex-spouse?  Who gets the tax credit for my child?

If you can't answer some of these questions, it may be time to meet with an attorney.  The right attorney can help you figure out what you want the answers to these questions to be and how to accomplish those goals.  Whether it is through a custody agreement, a will, a power of attorney or other process, an attorney can make sure you are competent on your wishes and that your family knows those wishes. 

These questions are important and you should know the answers to each and every one of them.  If you would like to speak with us regarding any of the above questions or any questions you have in general, please contact us at (804) 447-0146 or clbaudean@baudeanlaw.com.