The 21st century affords couples, traditional and non-traditional, the opportunity to legalize their bond of love, trust and economics in one form or another. And although most people establish their legal bond out of love, there are still many who marry for the legal status, which comes with rights and responsibilities. The extent of those rights and responsibilities depend tremendously on the “legal bond” that was created. Conversely, when the parties choose to dissolve their legal bond, the established rights may be limited by the legal status created by their union. Divorce, legal separation and annulment have different impacts on the legal rights of the parties involved. Divorce, uncontested or contested, has the greatest affect on both parties’, legal rights and obligations. Divorce is the legal dissolution of not only the emotional bond, but the economic partnership that was established. Therefore, because it affords both parties the most in the legal sense, it has the greatest impact on both parties. Divorce usually consists of determination of child custody, child support and property distribution, among other things. Legal separation, has a very similar affect on the legal status of the union. When parties are legally separated, they usually decide child custody, the amount of child support to be paid (as well as spousal support if any) and the distribution of property. However, with a legal separation the accrual of “marital benefits” is terminated. For instance, once parties legally separate their mutual pension/retirement benefits acquired after that date are no longer subject to distribution when they divorce. The parties may continue to file their federal tax returns joint, may continue to receive health benefits from their spouse’s provider and may continue to hold accounts in joint names. Annulment, on the other hand, is a complete eradication of any and all rights or obligations once established by the union. When parties annul a union, they are legally wiping out the existence of the marriage, thereby waiving any past or future interests in any entitlements that arose from the marriage.

Dissolution of the Union Depends on the Legal Status:
There is marriage (including same sex), Civil Union and Domestic Partnership, dissolving the union depends on which of these is considered legal status by the state. Civil Union is a particular state’s creation of a law acknowledging the legal existence of lesbian and gay unions. States that do not acknowledge same sex marriage usually permit civil unions or domestic partnerships, if any at all. Civil unions exist in only three places: Vermont, New Jersey and Connecticut. No federal protections are included with a Civil Union, and although Civil Unions offer some of the same rights and responsibilities as marriage they only exist on a state level.
Domestic partnership is the legalization of unions by some states and municipalities where same sex marriage is not acknowledged. The few states that do have domestic partnership registries, those being California and New Jersey, have very different laws regarding them. Some, like the recently passed California domestic partnership law, comes with many rights and responsibilities while others offer little or no benefit to the couple. More specifically, unlike marriage, one state’s recognition of a civil union or domestic partnership does not afford them recognition of their union if they move to another state. Even though each state has its own laws around marriage, if someone is married in one state and moves to another, their marriage is legally recognized. However, as gay marriages become legal in other states, this status may change.
Obviously, marriage (including same sex in most states) is a legal entity established and recognized regardless of the state. Although each state may have their own procedural rules for establishing a marriage, the union itself is right granted by the federal Constitution. In 1997 the General Accounting Office released a list of 1,049 benefits and protections available to heterosexual married couples. These benefits range from federal benefits, such as survivor benefits through Social Security, sick leave to care for ailing partner, tax breaks, veterans benefits and insurance breaks. They also include things like family discounts, obtaining family insurance through your employer, visiting your spouse in the hospital and making medical decisions if your partner is unable to. civil unions and domestic partnerships protect some of these rights, but not all of them. Again, these benefits are limited in Civil Unions and Domestic Partnerships, depending on the state.

Dissolving a Civil Union or Domestic Partnership:

Unlike marriage, civil unions may be dissolved only in the states that recognize them. However, some of the states that permit civil unions have dissolution procedures very much like divorces. The major difference, as is the same for divorce, may be the state’s procedural rules i.e. the residency requirements of the parties.

Domestic partnerships, too, typically can only be dissolved in states that acknowledge their existence. The few states that have legalized domestic partnerships vary in the methods they instituted to dissolve the union. In California, for example, dissolving a domestic partnership requires that the domestic partnership be registered there (even the partners never lived there) or have lived there for a certain number of years before filing.

In either a Civil Union or Domestic Partnership, because the rights afforded the parties to the union are not as vast as married couples, it is advisable to speak with an experienced family law attorney. Additional documents, such as a Cohabitation Agreement, may be helpful in addressing particular issues like property division and spousal support that the courts cannot address in such unions.

The famous socialite, Brooke Astor recently died in New York. There is controversy surrounding the distribution of her $130 million estate. Apparently, Mrs. Astor had a will devised and then had three subsequent codicils, within a short period of time afterwards. A codicil is an amendment, making either revocations, modifications or clarifications, to an existing will. It is typically a separate document that specifies the desired changes to the prior will. A codicil must be signed, dated, witnessed and notarized exactly the way a will is. In New York, the requirements for a valid will are simply 1) that the testator be competent 2) that it be in writing 3) that it is signed 4) it is dated and notarized and 5) there are at least two witnesses present. A will does not have to be filed in court, unless and until it is contested (challenged). A will, particularly the original, should be kept in a safe place like a safe deposit box while copies of the will should be kept somewhere accessible, like a drawer in the testator’s home.

Updating a Will

Once a will has been created, there are instances where it should be updated. In fact, your estate plan should be revised every few years or after the occurrence of major life events such as marriage, divorce, the birth of a child or adoption. Even if you haven’t experienced any of these events, your estate plan should be reviewed and maybe revised if there were changes in tax laws or changes in your financial situation.

Additions or changes in family size/composition is an obvious reason to revise a will. However, situations often overlooked are changes in one’s financial situation. If your current estate plan was made even a few years ago, your net worth may have changed enough that you will need to incorporate more estate tax planning into your estate plan. Also, tax laws are constantly changing, and some changes may necessitate updating your will.

In addition, you should reevaluate your wishes, from time to time, based in the fact that your position has changed about a variety of issues, such as in Mrs. Astor’s case. Mrs. Astor allegedly decided to change the portion of her estate bequeathed to her son because she admired his philanthropic and charitable interests. Initially she chose to leave most of her estate to various charities but then subequently decided to decrease the amount of the bequest so that she could give more of the estate to her son and his charitable trust.

New will or codicil to old will

However, the manner in which one updates and/or revises their will can create problems. If a will is probated, it could cause extensive delays in the distribution of the estate, exorbitant costs the parties and the estate and/0r result in defying or misconstruing the true wishes of the testator. Whether one chooses to simply re-drafting a new one or have codicils done can avoid these issues. While having codicils done may be easiest and most convenient in some situations, drafting a new will minimizes legal challenges to the validity and authenticity the will. A testator may have as many codicils as she or he wishes, in addition to the original will. This alone may create major confusion where there are conflicts within the “four corners” of the numerous documents. For instance, although codicils should explicitly state that a prior provision of the will is revoked, modified, etc. if it does not and a new provision in the codicil addresses the same property, then there may be an issue as to which document should prevail in regards to that particular property.

The preferred option is to draft a new will. In the past, it was much more convenient to have codicils drawn since wills were typed on typewriters, which required much more time and effort. Since that is no longer an issue, retyping a will is usually a matter of making revisions to a “soft” copy, saved on a computer disk or hard drive.

If one chooses to simply redo a will, there are still certain steps he or she should take to avoid challenges to whether there was “undue infuence” in having it redone. Some lawyers recommend that you destroy prior wills, if possible in front of your lawyers and the witnesses of your new will. Others do not recommend destroying prior wills, with the notion that prior wills are often very useful in avoiding arguments that there was undue influence. If there are a number of wills that have similar provisions, prior wills are often very good evidence.

Also, when you write a new will, be sure to include the date it’s signed and executed, and put in a sentence that states that “the new will revokes all previous wills”. Otherwise, the court is likely to rule that the new one only revokes the old where the two conflict, which could cause another set of problems. If you keep an unsigned copy of the old will with the new one, write on each page “revoked, superseded by will dated ….” This provides a record in case any questions arise.

Nonetheless, having a will in it of itself is an indication of one’s desire to prepare for the future of loved ones. Failing to take certain precautions once it is done, may negate all of the effort and consideration put into having the will done in the first place. Although an attorney is not necessary to have a will done, it is always advisable to consult with an attorney if there are questions or concerns.

Many of us think we can make a very strong case when we feel strongly about the case we are presenting or defending in court. With the recent plethora of law-related televisioon shows, the widespread use of the internet and open communication with someone we know that has or had been in the same or similar circumstance, we are confident that we can represent ourselves effectively in court. However, most often cases are not won by the actual truth, but by the presentation of one’s truth. There are some specific areas of law that require a more esoteric knowledge of law than others. But for those areas that are more germane, sometimes it is economically efficient to appear pro se. Whether one does extensive research online, gets some pretty generic guidance from television series or simply “wing it”, it is always advisable to speak to an experienced attorney.

Many attorneys offer consultaions in their area of expertise, either by phone, email and/or in person. And although the costs for the consultations ranges from free to several hundred dollars, the decision to have at least one consultation is priceless. The costs for the consultation varies across the country, the state and even the locale, and in some cases the cost is based on the atea of law.

No two cases are alike! No matter how similar your facts are to someone you may meet at the courthouse waiting area, everyone has a very different set of circumstances. The differences can be in the length of time involved to the particular judge that happens to be hearing your case that day. Let’s face it, judges are human and have their predispositions and prejudices just like everyone else. They have personal lives and are affected by their daily routine the same way we are. So on any given day, your judge’s attitude can gravely affect the outcome of your case. But being better prepared, more informed and more realistic can increase your chances of prevailing, or at least getting a much more favorable result.

Speaking to an attorney who specializes in the area of law that pertains to your case is crucial. It is always advisable to speak to an attorney that has a very particularized specialty than someone who has a general area practice. For instance, if you are currently in a New York City Mitchell Lama building and are being evicted because of a potential “buy-out” you may want to consult with an attorney that not only specializes in landlord-tenant but someone who is familiar with the protections afforded those who occupy these types of apartments.

To make the most of your consultation there are several things you should keep in mind.

First, before meeting with the attorney do as much research about the area of law you plan on talking with the him or her about. Go online, go to the court, go to the library, speak with other people, etc. just gather as much information you can about your particular topic.

Second, research the attorney. Most attorneys not only practice, but they write articles for trade publications, give lectures/seminars, maintain blogs, teach, etc. So it is always a plus to have an idea of how extensive the attorney’s knowledge is about his or her area of expertise by the other affiliations and activities he or she engages in.

Third, make a list of all the facts you think are relevant to your particular case. Gather as much data you can before you speak with the attorney so that he or she is better able to give you a more complete analyis os your case. Too little information may make his or her assessment more of a generic one.

Fourth, make a thourough list of questions you want answered. Being organized helps you to maximize the brief time you will have with the attorney.

Fifth, take very detailed notes. The more you are able to write the more you are able to remember when you are in fact presenting or defending your case in court. It’s like having the attorney in the courtroom with you.

Sixth, don’t be afraid to ask the attorney for spe cial rates, fixed retainers (instead of hourly) or further consultation.

Finally, always get another opinion. Don’t stop at just one consultaion, speak to another attorney and do your own analysis on which one makes the best argument.

Legal fees have skyrocketed, right along with the cost of living. However, this does not mean that you should forego the best possible (and in some cases the only possible) means of representaion. And although there is no substitute for having an experienced attorney by your side in the courtroom, there is a more proficient way of appearing pro se.