Do It Yourself kits have become widespread since the ‘90s.  With advancements in technology, access to legal forms and Do It Yourself kits have become surged.  Although each state has its own set of particularized forms, just about each state has permitted the use of some of the more common forms.  Preparing legal forms oneself, saves time, money and in many cases, heartache.  Not only is it convenient to be able to prepare forms on your own computer, but often times it keeps the peace by avoiding the contentiousness that arises when a lawyer gets involved.

Here I will discuss some of the most common Do It Yourself kits and when it is appropriate to use them.  Every situation or circumstance is different, so there is rarely a one size fits all form that should be used in each case. The most common Do It Yourself kits and legal forms are:

Divorce Kits:

            Divorces are usually very complex cases, particularly contested divorces.  When parties decide to divorce they typically have to split up property, settle debts, determine child custody and calculate child support, amongst other things.  Although it may appear simple when faced with the decision of who takes the television sets, for instance, but trying to discern if one should get a portion of the other party’s retirement is not always even a ‘thought’.  There are instances when a Do It Yourself divorce is economically feasible and extremely convenient.  In assessing your situation you should consider:  if there is real or personal property of the marriage, if there are children and child custody or child support need to be determined, if there is a history of domestic violence, if one party needs financial assistance from the other to “get back on his or her feet”, if the location of your spouse can not be ascertained or if the other party is represented by an attorney.  If any one of these factors exists, at least consulting with an experienced family law attorney is highly recommended beforehand. Divorce kits are ideally for parties with no property, no debts, no children, or for those who agree on all terms of the divorce.  If you insist on doing the divorce yourself and fail to address any one of these issues at the time, it may wind up costing more in the long run when attempting to rectify them.

Wills or Living Trusts Kits:

            Preparing for your future is no longer an option.  Having a will and/or living trust prepared minimize disputes over property, avoids lengthy and costly litigation that only prolongs distribution of the estate and prevents hefty tax burdens imposed on the estate.  You have much more control over what happens to your most ‘prized possessions’ when you take the initiative to have a will and living trust prepared before you pass on and can usually avoid probate if it is done correctly. However, even the most “simple” or the smallest estates has its own set of factors specific to it, requiring the expertise of an experienced elder law attorney.  Tax consequences, legal ownership of property, rights of heirs and financial implications all require the legal advice of an attorney.  Preparing a will or living trust without having an attorney present only compounds the very issue one is usually trying to avoid in the first place.  Probating an estate can be very expensive, very time consuming and can wind up having assets dispersed in a manner not intended by the deceased.

Premarital Agreements or Separation Agreements Forms:

            Getting married is one of the most life altering decisions one can make.  It alters one’s life economically, emotionally/psychologically and physically, at the very least.  Combining assets, adjusting lifestyles, adapting to habits and compromising on ideals or beliefs are typical elements that comprise a marriage.  Given all of these considerations, not only is it wise to try to resolve these issues before the bond is created, but it is quite practical.  Premarital agreements (“prenuptial agreements”) are generally used when the parties have separate property that they want to keep separate, one party has more assets than the other, there are children from a previous marriage or relationship, there is extended family members that need to be taken care of or if one party will be putting the other through college or further education during the marriage.  Although most terms of the marriage may be addressed in the premarital agreement, not limited to money issues, they should not attempt to replace other important legal documents, i.e. wills.  Having the premarital agreement prepared by an experienced matrimonial attorney may avoid having the agreement being voided by the court if it is challenged by the other party for “unfairness”.  Separation agreements, generally addresses all of the same issues addressed in premarital agreements, except that it is done after the parties are married but before they divorce.  Although separation agreements are not usually challenged on the same grounds premarital agreements are challenged, they are at times questioned on other bases.  Separation agreements must address all of the issues, property, child custody, child support, debts, etc. at the time it is signed (and acknowledged) or it may be “vacated” or “set aside” for its failure to do so.  Not only does having an experienced matrimonial attorney prepare the separation agreement avoid this, it will obviate the need to start the entire process all over again.

            In today’s climate, where time is a commodity and finances are limited, avoiding the costly and lengthy legal process is usually very appealing.  Even after doing some extensive research, getting insight from others that have endured the process, familiarizing oneself with the “lingo”, having legal documents prepared with the assistance of an experienced attorney is priceless.  Albeit, there are many instances where the procedural rules for drafting, filing or finalizing legal documents are esoteric and only understood by a licensed professional.  Nonetheless, there are some simple documents, like a deed, power of attorney, name change that are not that intricate and can therefore be prepared without an attorney.  However, to avoid the possibility of creating unnecessary problems it is always advisable to at least speak to an attorney first.

          If you need to discuss any of these issues, please feel free to contact my office for a consultation.

          Although New York has broadened the services made available to victims of Domestic Violence since 1996, many victims are not taking full advantage of them.   The New York State Office of Prevention of Domestic Violence and New York City Office to Combat Domestic Violence has been instrumental in implementing some very vital services to assist domestic violence victims and their families with everything from shelter to counselling to financial assistance.  These services have revised the way the police respond to domestic violence victims, the locations where referrals services are offered and even broadened eligibility of services.  Of course these improvements could not have been done if it were not for the legislature, the judiciary and law enforcement, but the states’ agencies on domestic violence has been critical in actually getting the services the victims. 

          Although there have been milestones in implementation there are some very important things that many do not know exist.   Here is a list of some of the most important:

1.     The police are encouraged to make follow up visits to the victim and their family, ensuring that there are no further incidents of harm, threat or injury; that service referrals were made and to reassure the family.

2.     Victims are entitled to police protection regardless of immigration status, they are prohibited from inquiring about immigration status when responding to a domestic violence call.

3.     Same sex couples and New York City domestic partners are included in NYPD’s definition of “family” or “household” and therefore, are entitled to the same treatment & services under domestic violence.

4.     Victims can monitor their abuser’s release from jail by registering with the Victim Information & Notification Everyday (”VINE”) by calling 888-VINE4NY and setting up a password to receive automated notifications.

5.     The Human Resources Administration has a program called Alternative to Shelter (”ATS”) which allows victims, who have a valid Order of Protection, to safely stay in their homes with a state-of-the-art security system that is directly linked to the NYPD.

6.     Although the Section 8 and public housing priorities are no longer available for homeless victims, there is a new rental assistance program called Housing Stability Plus, offered by the Department of Homeless Services.   The program offers market rate rental supplements to homeless families who leave the homeless shelter and are ready for permanent housing. 

7.     New York State’s Crime Victims Board may compensate victims for lost wages, moving expenses, essential personal property and medical/counselling services.   All police stations are encouraged to keep the applications on hand.

8.     Family Court and Supreme Court (including the new IDV courts) may make an Order of Protection as part of a child custody and child support order.  Conversely, the judge can make an order of child support as part of an Order of Protection.

9.     A valid out-of-state Order of Protection, even a temporary Order of Protection, is enforceable in New York Criminal Court and Supreme Court, as part of a divorce, legal separation or annulment.  Although registering the Order of Protection is not required, it should be registered in the NYS registry to ensure widespread alert.

10.     A victim may apply to the Social Security Administration for a new social security number as long as they can prove that they are in danger if their identity and/or location are obtainable.  The SSA requires proof of domestic violence, proof of immigration status and the old social security number.

IF YOU ARE A VICTIM, YOU SHOULD BE PERSISTENT IN SEEKING SERVICES FROM POLICE, THE COURTS, HOSPITAL/MEDICAL PROVIDERS, CLERGY, AGENCIES, ETC. DO NOT GET DISCOURAGED.  THERE MAY BE SOME CHALLENGES BUT THERE ARE AN ABUNDANT OF PROVIDERS WILLING TO HELP.

          “As we observe National Domestic Violence Awareness Month, I call on all Americans to commit to preventing domestic violence and to assist those who suffer from it. These collective efforts will contribute to peace in our homes, schools, places of work, and communities and will help ensure the future safety of countless children and adults.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim October 2001, as National Domestic Violence Awareness Month. I urge all Americans to learn more about this terrible problem and to take positive action in protecting communities and families from its devastating effects.

IN WITNESS WHEREOF, I have hereunto set my hand this first day of October, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.”

                                                                                   GEORGE W. BUSH
           For the month of October my blogs will focus on the very serious topic of Domestic Violence.  I will explore the issues of policy, resources, data/statistics and future developments in the area.  Domestic violence is still one of New York’s (and the nation’s) most fatal and injurious plights that affects our society in several ways.  Albeit, the spotlight on the topic has promulgated advancements in law, resources, training, etc. there is still much work to be done. Since 1970 when domestic violence awareness has been on the forefront of evolution,  there has been tremendous advancements.  New York, particularly, has devoted and committed significant time, money and efforts to awareness, prevention and treatment of all of the tangential issues that arise as a result of domestic violence. 
What is Domestic Violence?

         It is defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.  Domestic violence includes teen relationship abuse, lesbian/gay/transgender abuse, elder law issues, i.e. elder abuse and child abuse/neglect.
Domestice Violence Data & Statistics:

          -National data on domestic violence indicate that estimates range from 960,000                   incidents of violence against a current or former spouse, boyfriend,  or per  year to three million women who are physically abused by their husband or boyfriend per year.

             -Nearly one-third of American women (31 percent) report being physically or        sexually abused by a husband or boyfriend at some point in their lives, according to a 1998 Commonwealth Fund survey.

             -Nearly 25 percent of American women report being raped and/or physically            assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime, according to the National Violence Against Women Survey, conducted from November 1995 to May 1996.
 
             -Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.
 
             -In the year 2001, more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner.
 
             -In 2001, women accounted for 85 percent of the victims of intimate partner violence (588,490 total) and men accounted for approximately 15 percent of the victims (103,220 total).
 
             -While women are less likely than men to be victims of violent crimes overall, women are five to eight times more likely than men to be victimized by an intimate partner.
 
Although there is no up to date data on New York State’s domestic violence incidences, current information implies that it may be higher than the national average.
Domestic Violence and Its Impact:

          Domestic violence affects families, employers, medical ahd health professionals, social service providers, mental health professionals, politicians and government funding.  Criminal law, child support, child custody/visitation, spousal support, divorce, immigration, landlord-tenant, debt & collection, civil law and government beneftis all interrelate in domestic violence cases.  In addition, Domestic Violence has a direct and/or indirect correlation to teen violence, teen pregnancies, infant mortality, just to name a few. 
 
          In fact, New York has implemented several changes, in legislation, court intervention, funding, etc. to address the impact domestic violence has on socio-economic conditions.  From the most recent development of the Family Justice Center (which is currently in only a few counties) to the ubiquitous Integrated Domestic Violence courts now up and running in most of the state.  More and more developments are constantly being instituted and implemented to address the ever-changing paradigm of domestic violence. 

           Look for the upcominig discussions where we will explore related topics on the issue of domestic violence.

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.