Whether it be negotiating a premarital agreement, finalizing an adoption, ensuring that your children are taken care of or protecting family property, some of the top lawyers in Northern Virginia share their tips on how to navigate this winding, bumpy road we travel.
Few things are more joyful than adding a member to the family. While some choose to do so by having biological children, others turn to adoption to fill their hearts and home. With the focus on the big picture—providing a safe, loving refuge to a child in need—many parents can overlook the little things, legal matters among them.
“Anyone who wants to adopt should consult an adoption attorney very early in the process, because there are just too many mistakes which can easily be made, [some] which may be irreversible,” explains Robert H. Klima, an adoption attorney with offices in Manassas and McLean, who has handled more than 2,500 adoptions in the last 35 years. “I can’t tell you how many times people who have tried to handle their own adoption case have come to me asking that I take over. I often have to start their process over from the beginning because of the many errors made.”
However, simply hiring a family law attorney isn’t necessarily the answer either. As most family law attorneys deal primarily with issues of divorce, child custody and visitation, plus child and spousal support, they may not be extensively experienced in the adoption arena. Klima recommends individuals check out the Academy of Adoption and Assisted Reproduction Attorneys (AAAA), the national professional organization of adoption attorneys, whose website lists lawyers meeting their standards.
“There is a very complicated adoption code, which must be complied with; even lawyers who don’t routinely practice adoption law can find this difficult,” says Klima, who has been an AAAA fellow since 1993. “There are some good adoption attorneys who have chosen not to belong to the Academy … but because the requirements for membership are so rigid, clients can have confidence that anyone who is a member is truly qualified.”
Once you’ve found a credible adoption attorney, another thing to consider is their experience with your particular type of adoption. There are many different types that lawyers may work with, each with its own unique procedure, including: step parent adoptions with consent, step parent adoptions without consent, finalization of agency placement adoptions, foster care to adoption cases, interstate placements, close family parental placements, non-relative parental placements, adult adoptions and contested adoptions. According to Klima, most adoptions should not cost more than $1,000-$2,000 in legal fees, but not all lawyers charge the same so it may pay to shop around and compare prices.
“The attorney should be able to tell the client in advance how much it will cost, and there should be a written fee agreement, which is signed by the lawyer and the clients, so that all questions about cost are clear and agreed to in advance,” Klima goes on. From there, Klima says that a lawyer should explain the laws and procedures associated with the client’s case; represent the client by completing a number of documents, filing with the court and communicating with clerks, birth parents and their attorneys; and advocate for the client should there be a trial.
“There is no question that being represented by competent legal counsel speeds up the process,” Klima concludes. “Adoptions take some time to complete under the best of circumstances, and it is clearly in the interests of the clients to complete the adoption process as quickly and efficiently as possible. Each case is a different story, and usually it is a story with a very happy ending.”
LOVE MEETS LOGIC
When put on paper, love doesn’t always make sense. But when you look at a couple and each individual’s assets, prenuptial agreements may do just that.
“I believe the negative connotation has more to do with emotion than logic. It is as if someone who contemplates what might happen if the marriage ends must not truly be in love, which is not the case,” says Albert Bonin, an attorney with ShounBach in Fairfax. “A prenup provides couples with the peace of mind of knowing that if things don’t work out they have already agreed upon any number of issues, such as the division of assets and support. This alleviates much of the stress and anxiety associated with the unknown and acrimony related to fighting over who gets what.”
Talking these things through shouldn’t happen only a few weeks before the wedding, though, says Leslie Weber Hoffman, a senior attorney and founding member of Family Law & Mediation Center, PLC, in Fairfax. Although drafting the premarital agreement may only take two to five hours, negotiation could take, according to Hoffman, two to six months.
“One of the biggest mistakes people make is waiting until the last minute to discuss a prenuptial agreement,” says Susan Hicks, founder and principal of the Susan Hicks Group in Fairfax and Alexandria. “When the wedding invitations are out and financial commitments for the reception have been made, any discussion regarding a prenuptial agreement will be fraught with duress, and if entered, could face being found invalid later at the time of the divorce.”
“If the parties are in their early 20s and just starting a life together—and they plan to have children and neither party has any accumulated wealth—and the potential husband says he wants a prenuptial agreement wherein he keeps all assets in his name and all his future income is his separate property; and the wife will waive any right to future spousal support even if she stays home and raises three children—then that would be unreasonable,” says Hicks.
Hoffman adds, “In young party marriages, the parties should consider a sunset clause wherein the premarital agreement ‘expires’ if the marriage lasts more than an agreed period of time, like 15 years, or if the parties have more than a certain number of children and one party forfeits his or her career to be their children’s care provider.”
In the case of two people with children under 18 from previous relationships who are getting married, it’s important to note that a prenup can also specify what happens to the children upon separation or divorce. This decision is not binding, however, as circumstances may change—for example, a 50/50 shared custody agreement where one spouse develops a drug addiction—and the court grants one parent sole custody instead.
“On the other hand, if both the husband and wife are in their 60s and they each have significant assets and grown children, they may want to make provisions for each party’s children to receive certain assets in the event of one party’s death,” says Hicks, who notes this should also be formalized in a will.
“In a blended family you are not only dealing with the impact of two parents, but one or two step-parents, which can increase tension exponentially,” explains Bonin. “A prenup can help narrow the issues that the parties can fight over, and less fighting is always better for the children.”
REAL ESTATE ROLE REVERSAL
Fun fact: you don’t actually list specific assets in a will, unless you know that you want one particular piece of property to go to one person instead of it being split between multiple children.
“If I own a piece of real estate and it’s in my name, upon my death I want it to get to my son,” proposes Foster Friedman of Wade, Grimes, Friedman, Meinken & Leischner, PLLC. “So I create a will that says I leave everything to my son. Probate is the process of taking that will down to the courthouse, putting it on record, getting something called a certificate of qualification that allows my executor to go out in the world, grab all my assets and change title from my name to the estate name, and then the estate to my son’s name.”
These things take both time and money, even more so if an individual has property in multiple states, as each would have to undergo probate where it resides. This is where a will alternative comes into play.
“Typically what we do is a really simple pour-over will and a revocable living trust,” says Deborah Cochran, a partner at Cochran Allan. “All their will says is ‘If I die and there are any assets in my name, they pour over into the trust.’ And then the revocable trust talks about how the assets get distributed, and the advantage is you can title assets in the trust during your lifetime and then they don’t have to go through probate after your death.”
One of Friedman’s clients saw these benefits play out firsthand when dealing with his parents’, then his brother’s, estates. His parents had everything set up in a trust, and after paying 1.5-2 hours of legal fees, he was done. But to get his brother’s estate sorted out, who had neither a trust nor a will, the man had to spend $15,000 in legal and accounting and insurance bond fees over 18 months. Lesson learned, the man then created his own revocable living trust.
Some may say, “Well, why can’t you just pass things down while you are still alive?” For individuals above the federal estate tax exemption amount—$11,180,000—this may make sense as gifting is a strategy to reduce one’s overall estate. But proceed with caution if you plan on giving away your home.
“There’s one type of trust that you can do for a primary residence, a qualified personal residence trust, where you retain the right to live in the house for a certain number of years and then at the end of that term it goes to your child. But generally if you are going to give something away, you have to give it away,” says Cochran, adding that if someone lives beyond that period of time, they’d have to start paying rent.
“As the exemptions have gone up, less people have needed it, so it’s not as beneficial as it once was,” continues Cochran. “I still do them for the right clients, but I do want people to think really carefully before giving up their house.”
COME RAIN OR SHINE
“Tell them it’s kind of like carrying an umbrella, that if you are carrying an umbrella it’s not going to rain,” says Cochran of drafting a will. “[Writing a will] doesn’t mean anything is going to happen, you’re just making it easier on your family.”
“If you tell someone, ‘Look, if you have a kid and you don’t have a will, the court is going to appoint someone to take care of your assets, and you’re going to pay them an annual fee, plus you have to file an accounting with the court and there’s an annual fee for that, so you’re going to be wasting a lot of money,’ that’s motivation to do a will,” echoes Donald Manning of Manning & Murray.
If an individual without children dies without a will, Virginia’s estate plan deems assets go to the deceased’s closest living relative, but it’s a different ball game for people with children.
“It’s not like the child will go to Child Protective Services,” says Cochran of a situation in which a couple with young children dies without a will. “The problem would be if you hated your [child’s grandparents] and you didn’t want them to be the guardian, you wanted it to be your next door neighbor, your parents are going to be the guardian if they want to be.”
“If you don’t name a guardian, there could be a fight within the family,” Manning points out. “The husband’s family may say they want to be guardian, the wife’s family may say they want to be guardian, and they have to duke it out and have a court make that decision.”
Further, with a will, everything is subject to probate, “the process of changing titles to assets” through the courts, and can also be made public, leaving beneficiaries subject to fees, fraudsters and scammers, says Friedman. Also, a will provides that beneficiaries receive everything to be passed down to them at 18, though parents can have more control over when their beneficiaries inherit by creating a trust.
“If you have young kids, I think a trust is always the best way to go,” Manning goes on. “It makes no sense to say to a 21 year old who’s still in college, ‘Here’s several hundred thousand dollars. Use it wisely,’ and it seems to me you want to give someone a chance to get on their feet a bit before you give them a bunch of money. If you give someone who’s 24 or 25 a bunch of money, it could be a disincentive to not be serious about their work, or if their relationship doesn’t work out, that money could disappear.”
“Generally, we leave everything in lifetime trusts for clients’ kids, and the advantage to the kid would be if they ever got married and divorced, if it’s in their trust, their spouse doesn’t have access to it. If they ever got sued, it gives them some asset protection,” says Cochran.
Come what may, Manning recommends individuals write a will once they have a child and update it every five to 10 years as guardians change, while those over 65 revisit their will at least once every five years. Doing so isn’t tempting fate, but ensuring your assets get to who you want, when you want them to.