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Preparing for the Naturalization Exam
Posted by: Laura Kalish
February 08, 2010
Topic: Immigration and Naturalization

It can be easy to feel intimidated or overwhelmed by the idea of taking this test, especially if you have not taken a test in awhile. I tell my clients to take it step by step and here is what I think are the three most important things to remember:

1. Make sure your immigration filing is properly prepared. From the very beginning, be sure to be complete and truthful with your application and paperwork. Get whatever help you need in completing and filing your application. Be sure that the immigration service has your proper address at all times. These early steps will prevent anxiety later on.

If you have a disability, you may be entitled to special accommodation at the test. If so, accept the help. Don't try to be brave and "tough it out".

If your primary language is one other than English and you are entitled to an exemption to take the test in your primary language, don't be afraid to do so. Be sure that you think about these things in advance and file your request in time.

2. Be aware of how you study best and take the time to do it. If you learn best by reading and writing things yourself, do that. If you learn best by having someone ask you questions out loud, do that. Many communities have classes or workshops at libraries and community centers for test preparation. If you are the kind of person who learns best in a group, find one. Use a good study guide to help you prepare. Also, look at the study materials provided free online on http://www.uscis.gov/. Be sure to download and use the ones that will help you.

3. Prepare yourself physically and emotionally. Be sure that you get proper rest and nutrition for at least a few days before the test. Try to avoid last minute "cramming" or staying up all night. Pace yourself with your studying. Get yourself mentally prepared to have a great result. Wear clothing that is comfortable, but still makes you feel good. You should go into the test rested, comfortable and confident!

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Dealing with a Financially Complicated Divorce
Posted by: Bob Kalish
February 05, 2010
Topic: Divorce

Certain facts in a couple's financial situation can create a complicated situation when divorced is filed. In such situations, it is important to be sure that the attorneys involved in the case understand the financial picture, and have the experience to deal with it.

If a couple has a large, high-dollar marital estate (even if the value is held in "non-liquid" assets), there will be certain steps that must be taken to insure proper valuation and division of the property. This becomes even more crucial in today's economy. This can often be accomplished between the parties and their attorneys, using information that is already available, but in some cases it is necessary to include CPA's, appraisers, financial planners, realtors or other professionals in the process.

Another complicating factor is separate property estates. An issue arises when the parties disagree in how the existence of the separate property should affect the split of the marital property. (For instance Husband wants the marital property to be split 75% to him and only 25% to Wife because she has a large separate estate and he has none. Wife disagrees and wants 50% of the marital estate, as well as her own separate property).

Separate property can also become comingled with the marital property, creating a fertile ground for disagreements.

When there is a disparity in income-earning ability between the spouses, it will need to be addressed as well. Factors that will weigh into this evaluation include education, health of the parties, ability to work, willingness to work, length of the marriage and whether there are minor children of the marriage. Payment of spousal support and child support will be evaluated when appropriate.

Ownership of a business can create its own unique fact pattern. The ability to keep a business running without disruption, while the divorce is pending, and work to insure its continued successful operation after the divorce is final is an important goal.

Assets with value that is not easily determined must be given careful consideration. (For instance, stock options, intellectual property rights and the like).

Fortunately, there are many options available to arrive at resolution. Some of these vehicles are collaborative law, mediation and/or consultation with other professionals.

Proper planning and communication between attorney and client will help insure that all options are considered and that money spent for legal and professional fees will be used wisely.

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Dealing with Property Issues Long After the Divorce is Over
Posted by: Bob Kalish
February 02, 2010
Topic: Divorce

Although a final divorce decree is supposed to "split" the property once and for all that is not always the case.

There are a variety of reasons why a couple may find themselves dealing with property issues months or years after the final decree has been signed. Here are some of the most common:

Retirement assets (401K, private and governmental retirement benefits and accounts, etc.) Some of these accounts cannot truly and finally be 'split' until the retirement actually occurs. Even if the paperwork is done at the time of divorce and is submitted to the benefits department or managing investment company, there can be additional steps before the benefits or funds are cleared for release. Specific court orders for this purpose (called "QDROs" for Qualified Domestic Relation Orders") are usually required. Requirements for allocation of retirement benefits vary from company to company and these QDROs can become quite complicated at times. Because this issue can also become time-consuming, some couples who are anxious to be finished with the divorce process decide to just "deal with it later".

Real Estate Issues: The most common scenario here is the sale of the marital residence and split of the proceeds. The divorce decree should specify the allocation of equity, but the actual sale may not occur until months or years later, depending on the terms of the decree. There may also be additional real property (usually income-producing) which the divorced couple has chosen to keep as co-owners for financial reasons. Another common situation occurs when the final paperwork transferring real property was not finished, signed or filed at the time of divorce for a variety of reasons (for example, one spouse refuses or forgets to sign, or cannot be found).

Split of debts: A divorce decree can allocate a joint debt between the spouses, but it cannot take away a creditor's right to be paid by co-debtors. For instance, if a husband and wife owe Credit Card Company $ 10,000.00 and the Judge orders Husband to pay the $10,000.00, Credit Card Company may still legally sue both spouses if the husband does not pay the debt. In that event, the wife will be able to sue the husband for not paying the debt, but she still is held responsible to Credit Card Company.

Titled Vehicles: For any vehicle with a title, the title should be changed to reflect the name of the party to whom it was awarded. This is a step that often gets overlooked, especially for property which isn't used often or doesn't have a lot of monetary value (trailers or boats that aren't used often, "spare" pickups or heavy equipment). This can be remedied with a proper power of attorney for transfer.

Other Accounts: Bank accounts, stock, and safe deposit boxes fall into this category. Some of these assets may be accessed and split by showing a certified copy of the divorce decree, available through the district clerk's office of the county in which you received your divorce.

Fraud in the Divorce: If a spouse has hidden assets from the other spouse fraudulently during the divorce process, the innocent spouse may have a legal remedy. In this case, it would be important to contact an attorney to determine if there is anything that should be done.

Some of the above problems can be remedied without the assistance of an attorney and others can become very complicated and may even require court intervention.

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Planning for the Future with your Special Needs Child in Mind
Posted by: Bob Kalish
January 28, 2010
Topic: Wills, Probate and Estate Planning

If you are the parent or guardian of a special needs child, you have no doubt experienced times of concern about what will happen in the future. You may worry about how to best help your child succeed as he/she grows to adulthood, and you may worry about what will happen if you were no longer around to take care of your child.

"Planning for the present" means that you should at the very least have a valid, up-to-date will from the moment that your child is born or adopted into your family! "Planning for the future" means two things: a) planning financially for your child's adulthood with you in it and B) planning for your adult child's situation after you are gone.

The terms "Special Needs" and "Disabled" cover a wide variety of issues and a wide variety of individuals.  A well-thought out plan will take the entire situation into consideration and will be tailored specifically for you and your family.

It is crucial that you have a well-thought-out plan in effect. In order to do that, you must realistically ask yourself the following questions:

1.  Is it likely that my child will be able to live independently as an adult? If not, will I need to consider a guardianship once my child becomes an adult? If s/he will be able to live independently, what will be his/her vulnerabilities and do I have a plan in place to address them?

2.  What will be my child's medical needs for the future? How will we be able to afford the care, supplies, medication, counseling, training, and assistance that s/he needs? What about after I am gone?

3.  What governmental or private sector assistance is available to meet my child's needs? Are there income requirements? Will it be likely that these programs will be around indefinitely or are they already at risk for being discontinued? What other options are there?

4.  Who will take care of him or advise him after I am gone? Who will take care of his/her finances? Is it wise to "just trust" my other children to do the right thing? What if they are unable? Do I have the proper legal documents in effect and are my wishes written specifically enough? Does the Guardian/Trustee have a realistic picture of exactly what they will be expected to do? Do my documents protect my family members from liability and my child from claims against the property?

5.  Do I need to draft a particular type of trust for my child? Is a Supplemental Needs trust appropriate?

Many associations and support groups have information about specific resources that are available for your child's special needs. By using those resources, your own research and experience, and getting professional advice from your lawyer and accountant, you will be able to make an informed decision. Your lawyer can explain the various legal options to you, as well as explaining the rights and responsibilities of trustees and guardians. You will want to reevaluate your plan from time-to-time to be sure that your plan is always appropriate and up-to-date.

The above list of list of questions are a good guide to use when making an appointment for a legal consultation and can help you decide what information to bring to the lawyer's office and what questions to ask while you are there.

Any professional that you choose to help your family, including a lawyer, should have the right blend of training, empathy and practicality, to best serve your child.

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The Risks of Refinancing a Home with Your Spouse or Partner
Posted by: Brittany Clark
January 25, 2010
Topic: General Legal Information

WARNING! Joining in the refinancing of a home previously owned by your spouse does not guarantee that you actually "own" part of the house.

Signing the Promissory Note DOES mean that you are legally responsible to pay the mortgage on the property. However, it does NOT mean that the property is automatically in your name, or that if your spouse dies you will automatically inherit all or part of the property.

Here is a specific example that could contain a nasty surprise waiting somewhere down the line:

Husband has three adult children by a previous marriage. He is divorced from Wife #1, and he owns his home, which is in his own name. He then marries Wife #2.

Husband and Wife #2 evaluate their joint financial situation. They decide that it would be financially helpful to them if they were to refinance the home that they live in. They apply for, and are granted a new mortgage. It is at a better interest rate, especially since Wife #2 is a co-borrower. Husband and Wife #2 both sign the refinance agreement, but there is no deed filed in the county records which gives part ownership of the home to Wife #2.

The couple goes along happily with their life. Then, Husband dies suddenly, and without a will.

Under Texas law, his prior children inherit the ownership of the home, since the deed is in his name and it is his separate property.

Wife #2 does have a "life estate", which means that she is allowed to live in the home that her stepchildren now own for the rest of her life. She is still obligated to the mortgage company,but the home is not in her name and she cannot pass the home or any portion of it on to her own descendants. If she chooses to just walk away from the home, she is leaving behind the money that she and her deceased husband have already put into it, and her stepchildren don't have to compensate her.

This is a sobering set of facts, but unfortunately it is very common.

It is very unlikely that the Husband in the example wanted this to happen. It is more likely that he wanted Wife #2 to own 100% of the house upon his death.

The situation could have been avoided in two ways. First of all, a properly drafted and filed deed would have protected Wife #2, because it would have given her immediate rights and ownership in the property. It would have been her portion, regardless of whether the Husband lived or died.

Secondly, a valid will would have spelled out exactly what Husband's wanted to do with his portion (say, 50%) of the property, and if he so desired, he could have given her his 50% upon his death.

It is important to understand all of the consequences of refinancing property, especially when dealing with second marriages, stepfamily issues, separate property, or non-traditional family situations. A timely legal consult can avoid serious problems later on.

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