What is a Pour Over Will and Why Have One?

As we age, we begin to think differently about our lives, our possessions, and our legacies. One of the greatest acts of love and compassion is to establish a careful and intentional estate plan, which clearly outlines your desires for after you have passed away. Doing so tells your children, your spouse, and everyone you care about that you loved them enough to protect them and make their time of grief less complicated. After all, it is difficult enough to deal with the passing of a loved one without having to also deal with a complex estate without a written plan.

For those with larger estates, the term “pour over will” often comes up, but you might not understand what this is and why you may need one. At Five Points Law Group, our experienced estate planning attorneys aim to make your final estate plan simple and straightforward, even for those with large or complex estates.

Estate Assets and Non-Estate Assets

 

First, it’s important to understand the difference between assets that are part of your estate and assets that are not. A will controls only those assets and liabilities that belong to your final estate. Despite common misconceptions, most of your assets are probably not even part of your estate. For instance, the following items generally do not pass to heirs and family members through your estate:

• Vehicles with joint titles
• Homes held in joint tenancy with right of survivorship
• Most joint bank accounts
• Anything held in trust
• Life insurance policies that name a beneficiary
• Investment accounts naming a beneficiary

Pour Over Wills and Their Uses

 

Think of a pour over will as a catch-all for people who choose to utilize a trust for their estate plan. Unlike a traditional will, a pour over will acts to “pour” all residual assets that a person has, whether known or unknown, into a trust. This way, if at some point a person’s trustee discovers assets that were never properly transferred into the trust, they can simply be passed back into the trust and distributed privately according to the terms of the trust, rather than through a court proceeding, such as probate.

Benefits of a Trust With Pour Over Will

Section 43-2-690 of the Alabama Code allows estates with less than $25,000 in total net assets to be administered through a simple document called a small estate affidavit. Therefore, those with more than this amount will likely need to use the courts to administer their estate through probate, unless they take reasonable steps to prevent this. A trust is a simple way to do this. Once you place assets into a trust, they are no longer technically your assets. Therefore, when you die, they do not “pass through” the probate estate. Instead, they are privately administered by your named trustee. Of course, there may be disputes that require court involvement. But in most cases, the trustee has broad powers to administer the estate. By also having a pour over will, you ensure that any items you may have forgotten can easily and efficiently be transferred to the trust, rather than passing to someone you did not intend to receive them.

For help building your own custom estate plan in Birmingham or the surrounding areas of Alabama, call Five Points Law Group today.

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Understanding the Role of the Guardian ad Litem

If you are like most people, you have probably never really given much thought to what goes on in a courtroom when a minor or disabled adult needs someone else to make decisions for them. These situations are quite rare for the majority of the population. However, when it happens to you and your family and you need to obtain court authority to make critical decisions on someone else’s behalf, it can be an overwhelming and daunting task.

Guardianship cases are among the most common types of cases in which people end up being unrepresented in court. This means that there are a lot of folks who end up in court, representing themselves, stumbling through one obstacle after another, all in an effort to do the right thing to protect someone else. Sadly, it can be costly and end up depleting good people of time and money. One of the most commonly misunderstood aspects of these cases is the appointment of a guardian ad litem. This person, almost always a trained and licensed attorney, will get involved early on in the process and begin making recommendations to the court, which may at times conflict with what you are trying to accomplish.

At Five Points Law Group, we can help. If you need to obtain guardianship or conservatorship over another person, we can help guide you through the process.

Who is the Guardian ad Litem?

 

In cases involving your children (minors), a guardian ad litem (GAL) is almost always appointed in order to be the eyes and ears of the court and to make recommendations regarding what is in the best interests of the child. Once an adult petitions for guardianship of a child, a judge will appoint a GAL to interview the petitioner, parents, the child, and anyone else involved. The goal is to ensure that everyone involved is acting in the interests of the child. If there are any concerns, the GAL’s report will detail those issues to the judge. In a case involving a disabled adult, the role is very much the same.

Can the GAL Give Legal Advice?

 

While GALs are not there to represent the parties, they can at times assist in guiding the process. However, you should use caution when dealing with a GAL. Remember that they owe you no ethical duty of confidentiality or any duties as an attorney. Everything you say to a GAL could easily be repeated in reports to the court or in open court discussions. The GAL is not your attorney, and they really do not take sides. They are simply there to advise the court and render opinions to protect the individual whose rights are affected.

So, Who Represents the Person Applying to be a Guardian?

 

You need your own attorney. An unrepresented petitioner seeking guardianship over a child or disabled adult is at a distinct disadvantage, especially if someone else files a cross-petition seeking the role. A skilled attorney can effectively draft the right documents and argue on your behalf at a hearing. If there are conflicts or if the GAL renders a negative report, your attorney can help you dispute their findings, as well.

For help with an Alabama guardianship or conservatorship, call Five Points Law Group Today.

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Managing a Hostile Work Environment

One of the toughest scenarios in the workplace is living with an abusive or hostile work environment. In many cases, the hostility, abuses, and harassment culminate in termination or some other adverse employment action. What happens if it does not? Say your employer is content to harass and mistreat you but not terminate you: What are your options?  With decades of experience handling employment disputes and fighting for workers’ rights, the attorneys of Five Points Law Group want you to be informed of your rights. Here is what ongoing harassment in a hostile work environment means for you.

If the Employer Fires You

Let us start with the obvious question: What if the employer terminates your employment after mistreating you or harassing you? If you received negative or adverse treatment because of some identifying characteristic, such as race, age, religion, color, ethnicity, nation of origin, gender, sexual orientation or identity, or disability status, then you have a right to bring your grievance before the Equal Employment Opportunity Commission (EEOC) in order to seek compensation for your lost earnings and other damages caused as a result of the discriminatory conduct of your employer.

Defining a Hostile Work Environment

 A hostile work environment is loosely defined as a situation in which coworkers, supervisors, or others in your workplace behave in such a way that it makes it difficult for you to continue doing your job. The key is that the behavior is based on gender, sex, religion, race, or any one or more of the other protected classes under federal law.

A good example is a female employee working in a male-dominated job, where all the coworkers make vulgar and demeaning comments about women. The comments are often veiled insinuations or perhaps even a bit threatening, and it is clear from context that the comments are being directed at the female employee in order to make her feel uncomfortable or even to get her to quit. This is considered a form of sexual harassment or discrimination based on sex.

Constructive Discharge

 It is not always necessary for an employer to fire you in order for you to have a right to bring a claim. There is a concept known as “constructive discharge.” This occurs when a work environment becomes so toxic that it essentially makes it unreasonably difficult for the employee to carry on his or her daily job functions. The EEOC specifically defines a constructive discharge as “forcing an employee to resign by making the work environment so intolerable a reasonable person would not be able to stay.”

Proving Constructive Discharge

 It can be difficult to prove constructive discharge, but remember the key is proving what a reasonable person in your situation would do. This is where an experienced discrimination lawyer can help. At Five Points Law Group, we have decades of experience helping workers prove these cases to get compensation. You worked hard for your career, and you put in long hours for your employer. You should not be forced to resign and lose everything you worked for simply because someone has a problem with your sex, age, race, sexual orientation or identity, or any other personal attribute or characteristic that is protected by law.  If you believe you have suffered a constructive discharge, call us today to schedule a free consultation.

Separating Prejudice From Precaution in the Hiring Process

 You have just interviewed for the job of your dreams, or maybe you have already gotten an offer. You are excited. This is what you went to school for and devoted years of your life to achieve. Now the employer is asking for strange and uncomfortable information, however. Maybe they want a background check that seems unusually specific regarding your religion or “lifestyle.”  Perhaps they are asking for information about your personal life, your family, or even your personal habits. How do you know if this is acceptable or unlawful? What is just a well-intentioned precaution, and what is a clear sign of prejudice and unlawful employment practices?

The differences can be subtle, but at Five Points Law Group, we have decades of experience sorting out pretexts for discrimination and hidden employment agendas. Here are some of the ways you can differentiate between prejudice and precaution.

Interview Questions by an Employer

 We can probably all agree that employers have a right to know whom they are hiring. Employers need to know certain basic things about the people they will entrust with their products, their customers, and their reputation. There is a fine line between getting to know about employees and delving into unrelated personal backgrounds.

Here are some examples of acceptable questions your employer can ask during an interview:

• Employment history
• Education and training
• Certifications or licenses
• Financial history and stability
• Medical history (with some narrow limitations)
• Social media use

Here are some examples of unacceptable questions your employer should not ask during an interview:

• Race
• Religion
• Ethnic background
• Genetic information
• Gender / sex
• Sexual orientation
• Age
• Disabilities
• Nation of origin

Background Checks by an Employer

Employers often use post-offer background checks to screen out employees with criminal records or other disqualifying issues. Many of these items cannot be screened in an interview, but must be done after a job offer. Almost all federal jobs require a suitability investigation, which sometimes will turn up problems that can lead to later termination. An employer is allowed to use this information to make determinations, but they must have your consent and must disclose the grounds for any adverse action taken because of the information obtained.

Here are some examples of acceptable uses of background checks:

• Screening for criminal convictions
• Screening for financial stability
• Credit Reporting

Here are some examples of unacceptable uses of background checks:

• Screening out employees of a specific ethnic or racial background
• Looking for evidence of age as a reason for termination
• Looking for genetic or gender information
• Improperly targeting minorities and certain ethnic groups

Improper Use of Criminal Records

 Although the Equal Employment Opportunity Commission (EEOC) makes it pretty clear that arrest records alone cannot be a ground for adverse employment actions, convictions usually can be used. The key is whether the background checks are designed for a legitimate purpose (e.g. screening out criminals) or to target specific minorities (e.g. screening out Hispanics, etc…). While it can be difficult to tell at first, an experienced employment discrimination attorney can usually help you to figure out whether your termination or adverse employment action was based on permissible grounds or not.

Contact an Experienced Employment Discrimination Lawyer

 If you feel that you have been discriminated against, or an employer has revoked an employment offer based on your race, religion, sex, age, or other protected status, give Five Points Law Group a call today. Consultations are free, and we can often help you figure out your options early on. Get peace of mind and fight for what you have earned. Call or visit us online today.

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When can Alcoholism be Grounds for Divorce?

Alcoholism can be tragic for a family. In Alabama, serious alcohol abuse can be grounds for filing for divorce. However, it is important to put the situation in perspective and fully assess the problem before rushing to file for divorce. If indeed your spouse is a chronic and habitual alcoholic, then you certainly have the right to file a petition to dissolve the marriage on this basis. There are other options and considerations, however.

 

Alcoholism in Alabama

A research study from the Centers for Disease Control released in 2014 illustrates just how significant of a health risk alcohol can be. According to the findings, 2,445,322 Americans die from alcohol-related causes each year. Of course, this number includes everything from Cirrhosis to auto accidents. Alabama ranked 17th on the list, meaning the state ranks among the more at-risk states in terms of alcohol consumption.

Sadly, alcohol can play a role in health problems, depression, and job loss. Many people forget that alcohol abuse can also be a significant reason for many marriages failing. How bad is the problem? The data is tough to nail down, but researchers in New York believe they have an estimate.

 

How Many Marriages End Due to Alcohol?

 The Research Institute on Addictions (RIA) out of the University at Buffalo performed a series of research studies aimed at determining the scientific and statistical connections between alcoholism and divorce. The study defined “heavy alcohol use” in a marriage as a marriage in which a male partner drinks 14 or more drinks per week and where a female partner drinks at least 10 per week. Marriages where both spouses drank heavily were rare, coming in at only 4% of all marriages surveyed. Of the marriages where a heavy drinker was present in the marriage, 12% were men and 5% were females.

 

Times When Using Alcohol as a Ground for Divorce May be Appropriate

 When you allege “grounds” in Alabama, you must publicly allege in a court document that your spouse is guilty of one of the following:

• Physical incapacity
• Adultery
• Pregnancy at the time of marriage that was not known to a partner
• Imprisonment for at least two years (the sentence must be at least seven years long)
• Crimes against nature
• Alcohol or drug abuse
• Insanity for at least five years
• Domestic violence

By alleging grounds, one can avoid certain delays and waiting periods. If the spouse with an alcohol problem refuses to admit the problem or you suspect he or she will refuse to get help, sometimes bringing the problem to the attention of the court can serve as a strong catalyst for getting help. Judges have broad discretion to order parents to seek alcohol counseling and treatment as a condition of visitation or continued joint custody.

 

Should You Always Allege Grounds?

 Not necessarily. In many cases you can accomplished many of your goals by pursuing a so-called “no fault” divorce without making negative allegations against your spouse. For instance, if your spouse shows strong signs of alcohol abuse but has a high-paying and successful career, you may wish to avoid publicly airing the problem, so as not to damage his or her employment prospects, which could in turn affect the individual’s ability to pay adequate child support and alimony. Instead, with the assistance of a skilled attorney, you may be able to reach a private agreement that would achieve the same effect.

 

Compassionate Divorce Help Near You

 If you are facing a divorce in Birmingham or the surrounding parts of Alabama, you should know that one size does not fit all. Each divorce case is different, and the attorneys of Five Points Law Group are here to help when you need us. Call or visit us online to schedule a private consultation with one of our experienced divorce attorneys today.

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What Does At-Will Employment Really Mean?

The term ‘at-will employment’ is often misused and overused in regular conversation about wage and employment disputes. If you have been terminated or demoted by an employer, you have probably heard this term come up. Perhaps you were told that Alabama is an at-will employment state, or a supervisor informed you that your employment is at-will, so you can be terminated for any reason at any time. To better understand what this term really means, it is important to look at the history of employment in the U.S.

 

Before At-Will Employment

 Until the late 1800s, employment laws were fairly random. Some states and territories had no rules at all about the presumptive term of employment, while others made the assumption that unless otherwise specified, employment would last for one year and be renewable. Several large court decisions changed this. Then, in 1877, a treatise by Horace Wood entitled A Treatise on the Law of Master and Servant argued that unless otherwise declared, all employment would terminate whenever either party wished. Over the years, states began to adopt this logic, determining that employees and their employers should equally have the right to terminate employment for any reason at any time.

 

Limitations on At-Will Employment

 Of course, historically there were groups that were exempted from at-will employment, such as those affected by indentured servitude laws. Today, however, there are still a few limits on how employers and employees can terminate employment. These limitations are generally based on contract. When parties enter into a specific employment contract, courts will usually uphold the plain language of the agreement when construing whether one side has broken the contract and owes money for damages.

Examples of employment arrangements with contracts include:

• Union collective bargaining agreements
• Independent Contractors
• Subcontractors
• Athletes
• Musicians
• Artists
• Actors

 

When is it Unlawful to Terminate an Employee?

 In addition to situations in which a contract dictates the terms of employment, there are a number of reasons for which an employer can not fire you. Any time the decision is based on the following, then federal law protects the employee:

• Race
• Religion
• Color
• Sex
• Pregnancy
• Gender identity
• Sexual orientation
• National origin
• Age (40 or older)
• Disability
• Genetic information

Alabama law also prohibits termination on the basis of retaliation for an employee participating in workers’ compensation claims or for being a whistleblower in certain kinds of actions.

 

Talk to a Lawyer About Your Wrongful Termination Case

 It is sometimes difficult to know if your employer used an illegal reason to terminate you. Perhaps your employer is using a pretextual reason for the termination by fabricating issues that never existed. The best way to figure out your options is to speak with an experienced discrimination lawyer near you. At Five Points Law Group, we are devoted to helping workers fight back against prejudicial and discriminatory employment practices throughout Birmingham.

If you suspect a wrongful termination, call us today to schedule a free consultation with one of our attorneys. Time is limited, though. In many cases, you may have just six months to bring a claim, so do not delay.

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Research Links Joint Custody to Better Outcomes for Children

It has long been believed that children whose parents share true joint physical custody do better after a divorce. Of course, much of this is due to anecdotal evidence and the experiences that are reported by attorneys, social workers, and others involved in the process. However, research by Linda Nielsen, recently published in the Journal of Child Custody lays out several key findings that tend to strongly support this assertion.

The Research

According to Linda Nielsen, a professor at Wake Forest University, joint custody generally results in better outcomes for children of divorce. Nielsen’s research cross referenced 60 academic studies spanning the past decade, and controlled for several variables, including parental conflict.

Areas of Better Outcomes

The research identified several areas where children of joint custody arrangements had better outcomes. Namely these were:

• Behavioral
• Emotional
• Physical
• Academic well-being
• Relationships with parents and grandparents

Dispelling Myths About Joint Parenting

One common criticism of joint parenting agreements is that in particularly hostile or volatile divorces, it may put children at a greater risk of emotional harm or separation anxiety to be shuffled between feuding parents. However, Nielsen’s research seems to dispel this misconception in several key ways.

First, research that has in the past raised concerns about joint custody simply revealed that joint custody can expose children to fighting and other emotional stressors for longer than if in a sole custody situation. However, the research does NOT necessarily demonstrate that this is statistically more likely to have negative effects. Said a different way, the hostility of a divorce impacts children in joint and sole custody arrangements in much the same way, and it is not necessarily the nature of the custody arrangement that makes the difference, but rather the nature of the interactions between parents.

Therefore, all things being equal and controlling for these variables, joint custody still seems to be the best arrangement for most children.

Situations Where Joint Parenting Produces Worse Outcomes

Finally, Nielsen did review six limited studies where researchers had previously identified negative outcomes from joint parenting arrangements. However, in each study, it appears the data was interpreted by others as being negative, where in truth, the data suggested relatively normal outcomes when compared with other children in different arrangements. In other words, there seemed to be limited value to these negative results, as they were more likely anomalies than statistical evidence.

Limitations of Research

It is important to note that the research admittedly does not suggest that by reviewing other studies it can predict or show that household income, race, socioeconomic class, or any other factor actually causes better or worse outcomes. Instead, the research was intended to draw attention to the fact that the overwhelming majority of studies into the subject still reflect better overall outcomes for children, where parents enter into joint parenting arrangements rather than sole physical custody arrangements.

Obviously there are situations involving domestic violence, sexual assault, child abuse, drug or alcohol addiction, and other major risks that would certainly warrant sole physical custody in order to protect a child. However, the research tends to suggest that joint custody -where possible and appropriate -is usually the better approach.

Birmingham Divorce Lawyers

If you are facing a divorce or are fighting over the custody of your own children in Birmingham, AL or the surrounding areas, call Five Points Law Group to get help today.

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Police Brutality as a Constitutional Problem

To be clear, there are thousands of wonderful and dedicated law enforcement officers out there doing great work in their communities. Just as those officers do not want to be labeled for the bad deeds of other police officers, innocent victims of police brutality do not want to be labeled based on just the color of their skin or the neighborhoods in which they live. Sometimes we hear news stories in which police violence is presented as a crime or an “excess reaction” to crime. In truth, police brutality often has little to do with crime.

For those who are abused or degraded by law enforcement officers, it can feel hopeless. It can seem as though the victim is entirely powerless to do anything about it. Sadly, in many cases there is indeed a power imbalance. Excessive force complaints and other constitutional violations by government authorities are issues of civil rights. The team at Five Points Law Group are devoted to protecting the Constitutional rights of Birmingham residents and those who are the victims of police violence throughout Alabama.

 

What Makes Police Brutality a Constitutional Issue?

 There are emotional and rhetorical arguments to be made, but ultimately data should be the focus of any legal debate. The research shows that upwards of 30% of African-Americans shot and killed by police are unarmed, and 21% of white suspects killed by police are unarmed. Both numbers are shocking. When it comes to African-American victims, less than a third were actually suspected of a crime at the time of the confrontation. Indeed, over two-thirds of these shooting victims were not actually criminal suspects, according to research by Mappingpoliceviolence.com.

 

These statistics tell us one thing for sure: The vast majority of police shootings were not because of a suspected crime. In many situations, people who called the police for help are the ones being attacked or shot. The U.S. Constitution includes several key rights that are violated by excessive force scenarios.

 

Due Process Violations

 The Fifth Amendment and Fourteenth Amendment both protect individuals’ rights to not have their life, liberty, or property taken without due process of law. While the Fifth Amendment is limited to the federal government, the Fourteenth Amendment, added later, extends these protections to the states.

 

Cruel and Unusual Punishment

 Likewise, the Eighth Amendment states that, among other things, the government should not impose cruel and unusual punishment or excessive fines. When a law enforcement officer takes matters into his or her own hands and dispenses justice through physical assaults, that officer deprives the victim of due process. In many cases, the brutality is far out of proportion with any crime that may or may not have been committed.

 

How Constitutional Violations are an Issue of Civil Rights

When violence is directed at a victim due to race, religion, sex, or other protected classifications, police violence may also implicate specific civil rights laws, such as the Civil Rights Act of 1964. Fewer than 1% of all police brutality cases result in any form of criminal prosecution against the accused officers who perpetrate the acts. Nevertheless, even in the absence of criminal charges, there may be civil rights claims that can be brought for civil damages, either by the victims or their families.

 

Fighting for Victims’ Rights

 At Five Points Law Group, we believe that every citizen deserves equal treatment. Our police are sworn to protect us, and for the most part they do a great job. However, if you or a loved one have been the victim of police violence, discrimination, or brutality, call or visit our firm online to get aggressive and knowledgeable representation today.

 

Housing Discrimination is Alive and Well Nationwide

Think housing discrimination is a thing of the past? Is it merely a sad relic of history, when communities, banks, and realtors would “redline” in order to keep minorities out of specific neighborhoods slated for “redevelopment” (i.e. gentrification)? Think again. Nationwide, housing discrimination is alive and well and, in some parts of the country, growing at an alarming rate.

At Five Points Law Group, we know that housing can be one of the most challenging and largest decisions for families, especially for families of limited means. When landlords, banks, real estate holding companies, and even community associations blatantly discriminate to keep people out, it can leave families traveling further for work and struggling to afford housing costs that may be further from family and support groups.

Moreover, many families have actually found themselves displaced, having to move children from school district to school district every few years, as prices escalate or as leases are not renewed inexplicably. Sometimes this is evidence of true economic growth and free market principles. Other times, the reasons are far more insidious.

 

What is Housing Discrimination?

 Housing discrimination has many faces. The Fair and Equitable Housing Office (FEHO) �’ a division of the Department of Housing and Urban Development (HUD) �’ investigates complaints of unfair and discriminatory housing.

Discrimination may come in many forms, including decisions not to rent or sell homes, refusing to give mortgages, or other adverse decisions based on:

• Race
• Sex
• Color
• Familial status
• Disability
• Religion
• National Origin

 

Recent Housing Discrimination Claims Around the Country

 While discrimination happens every day all over the U.S., some notable cases have arisen in recent years.

• Wayne, NJ �’ A 2007 case involved a small town in New Jersey that attempted to use eminent domain to keep a mosque from developing in their town.
• Baltimore Neighborhoods, Inc. �’ In 2000, a federal court in Maryland held that a Maryland condo company had to make in excess of $333,000 in repairs to retrofit a building when they had failed to make the building accessible for those with disabilities.
• Hudson City Savings Bank �’ This bank ended up settling with the federal government to the tune of $33 million because it was accused of methodically discriminating against black and Latino mortgage applicants.
• Re/Max Alliance – In an interesting set of events, a national consumer rights and advocacy group sent out undercover couples to shop for homes in areas of Jackson, Mississippi to test whether black and white couples would receive the same treatment. The outcome was a bit unsurprising, except that it set the groundwork for litigation. The white testers were almost always called back and asked to view homes, while black testers were often ignored and “rarely” asked to come view homes in a predominantly white neighborhood, reports

 

Fight Back Against Housing Discrimination

 If you and your family have suffered because a realtor, landlord, mortgage company, or housing association have treated you unfairly or taken some adverse action against you due to your race, religion, family status, or other protected status, call us today.

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Moving an Adult Guardianship from Another State to Alabama

One of the great things about living in the United States is the ability to move from one place to another with ease. For most Americans, moving to a new town in a different state is as easy as finding work, getting a home or apartment, and making a trip to the department of motor vehicles to update licenses and vehicle registrations. For those with a guardianship or conservatorship, a move can be a bit more complicated. Millions of Americans are responsible for the lives of loved ones, and when they must relocate, it can present serious concerns. For those moving to Birmingham, Five Points Law Group is here to help.

What is a Guardianship or Conservatorship?

When an adult becomes incapacitated to the point where they are unable to make legal decisions for  themselves, it may be necessary for a loved one to obtain court appointment to take care of things on their behalf. Some states have just one process (guardianship), while others like Alabama divide the duties into two separate proceedings �’ a guardianship for personal and healthcare decisions and conservatorship for financial and legal concerns.

These are formal court proceedings, where a judge supervises and oversees the ongoing responsibilities of the guardian or conservator. The disabled adult who is no longer able to make decisions is called a ward.

What Happens When a Disabled Adult (Ward) Must Move to Alabama?

 

Perhaps you are in charge of a loved one like a disabled spouse, parent, or adult child. If life takes you to Alabama, you may be concerned about how you will continue to report to an out-of-state court. The good news is that Alabama law allows you to transfer the out-of-state guardianship to Alabama. Here is how it works:

Petition

 

First, you must petition the local court in the location of the disabled adult’s new residence. The petition should include:

• A certified copy of the former state’s order, approving the transfer. You will need to get this first in your prior state.
• A complete inventory of the disabled individual’s estate
• Proof of adequate bond
• A proper accounting of assets and liabilities

Notice

Next, you must provide notice to all individuals who are entitled to it. These will usually include close family members. You will likely need to appear for a formal hearing in Alabama, in order to be appointed as guardian and/or conservator.

Other Requirements

 

Finally, within 90 days of the Alabama court issuing a provisional order approving your appointment, the court will have to decide if there are any additional requirements in Alabama that may need to be met. Some other states may not have the same requirements.

How a Lawyer can Help

 

Courts are protective of disabled adults who can no longer make decisions for themselves. Therefore, it can be a bit of a daunting process for self-represented individuals. There are deadlines and statutory requirements that can be inadvertently missed, which can greatly extend the timeframe for gaining approval. In the meantime, you could face difficulties handling the disabled adult’s affairs, such as medical and financial issues.

Hiring an experienced guardianship attorney at Five Points Law Group can help to minimize the chance of errors being made and help to streamline the process. Likewise, it will free you to focus on taking care of your loved one. For help with transferring an out-of-state guardianship or conservatorship, call Five Points Law Group today.

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How do I Contest a Will?

Unlike a trust, a will cannot control your assets after you die. Instead, a will just determines where they go when you die. In other words, a will disburses your possessions and assets on death, while a trust continues to control assets well after you die.

For this reason, Alabama wills are overseen by probate courts, while trusts generally are not. Many times, after a loved one dies, the potential and expected heirs discover that a will either disinherited them or greatly reduced their share of an estate. Normally, this is perfectly legal. A living person may choose to leave their assets to whomever they choose. There are, of course, situations in which disinherited heirs may have a right to dispute a will.

For help with estate planning or breaking an invalid or fraudulent will, contact Five Points Law Group today.

What is an Alabama Will?

Under Title 43 of the Alabama Revised Statutes, the law provides for the creation and administration of wills. A will is generally defined as a legal instrument that dictates who shall receive what from your estate after your death. Things you can typically do with a will are as follows:

• Designate your executor
• Leave real estate
• Leave cash and investments
• Leave tangible property and heirlooms
• Direct the handling of a probate estate
• Waive your executor’s bond requirements

The law presumes that a decedent created the will as his or her final statement of wishes and intent. You will need to make a strong showing that the will is invalid in order to succeed in disputing it.

Grounds for Disputing a Will

Alabama law allows those who are “interested parties” to contest a will. A will contest must be filed in probate court where the will is filed. The following grounds may allow you to contest a will:

• Disinherited spouse: In most cases Alabama law allows spouses to assert their right to an elective share of the estate, even if the deceased spouse tried to disinherit them.
• Mental incapacity: A person must be of sound mind to make a will. Otherwise, the will may be held invalid.
• Fraud: If you can prove the will was created through fraud, you may be able to get a court to invalidate it.
• Duress and undue influence: A will should reflect the will of the person making it. If created under duress or through force, coercion or improper undue influence, it is not valid.
• Technical requirements: A will must adhere to minimum statutory requirements. A lawyer can help you determine if the will meets all requirements.

 

Time Limit on Contesting a Will

In general, you have just six months from when the will was presented to the court to dispute it. A person who is under a legal disability (mental impairment) or a minor has up to 12 months from the date when the legal disability is removed to contest a will. This can be complicated, so if a minor or someone with a mental impairment is negatively affected by a potentially invalid will, a guardian may need to be appointed to enforce the person’s rights. Do not rely solely on information found online, as there are complex nuances that can shorten or extend the time you have to dispute a will, and each case is unique.

Contesting an Alabama Will

Will contests can be complicated and sensitive situations. If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

How do I Break a Trust?

A trust is a unique method of preparing your estate. Many people use trusts to hold ownership of property, while maintaining long-term control over their estate plan. What happens when there are disputes between heirs, or someone becomes concerned that a trust was improperly created?  Many surviving family members want to know how to break a trust in order to allow an estate to pass the way it normally would, if not for certain problems. With this in mind, consider a few basic points about how one can actually undo a trust in Alabama. For help with estate planning or breaking an invalid trust, contact Five Points Law Group today.

What is an Alabama Trust?

Under Title 19 of the Alabama Revised Statutes, the law provides for the creation and administration of fiduciary agreements and trusts. A trust is generally defined as a separate legal entity that controls the use and ownership of property. You can put just about anything into a trust, from real estate to cash or investments. A trust is a contractual agreement that a person creates, which names someone to manage the assets within it, during and after the life of the person who creates it. Much like a corporation’s operating agreement, the trust must follow certain formalities to accomplish its intended goals. Some trusts are created to minimize taxes, others are created to preserve wealth, while others still are created to preserve the right to certain government benefits for disabled persons.

Grounds for Breaking a Trust

There are many reasons why someone might wish to break a trust. A trustor (the person creating a trust) can almost always revise, edit, or void a trust, unless the trust was made irrevocable for some reason. However, once that person passes away, it can be difficult for heirs to argue there are grounds for not following the expressed intent of the trustor. Here are just a few reasons why heirs may wish to do so:

Undue Influence, Coercion, or Duress

If you discover that your deceased loved one was the victim of strong coercion or acting under duress at the time he or she made the trust, then you may be able to petition an Alabama court to revoke the trust, allowing assets to pass to heirs through the state’s default rules. This is not an easy process, as the courts generally will require strong proof.

Mental Incapacity When Created or Revised

Sadly, unscrupulous heirs and caregivers often convince people to make deathbed changes to their estate plans, leaving everything to someone other than whom they normally would. If you suspect your loved one was incapable of making a voluntary change to a trust, you may have grounds to revoke the trust. Expect a long battle, and you will likely need the help of medical experts to show that mental capacity was lacking.

Invalid / Did Not Meet Legal Requirements

Perhaps the most straightforward option for breaking a trust is showing that necessary legal formalities were not followed. Improper witnesses, lack of witnesses, or inadequate or incorrect language may all be grounds to dispute the authenticity or validity of a trust.

Disputing a Trust in Alabama

If you have been disinherited or believe that a loved one was taken advantage of, contact Five Points Law Group today to discuss your rights and find out what options you may have for fighting back.

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Improving Communications With an Ex

When you are going through a painful divorce or custody fight with an ex, it can seem like even the smallest issues become major complications. Heated arguments can develop in a moment and over things that ought to be very simple. Even otherwise amicable relationships can begin to deteriorate, leading to a lot of unnecessary calls to the lawyer or trips to the courthouse. There is a way to avoid a lot of these contentious disputes and save time, money, and headaches. The trick is planning your communications in advance.

 

Why Communication is So Challenging in a Family Law Case

 

The Gottman Institute has long been a leading center for research on human interaction and communication, especially for families going through divorces. Dr. Gottman suggests that there are so-called “Four Horsemen of the Apocalypse” that can predict the end of a relationship. According to Gottman’s theory, these four characteristics or behaviors are:

 

• Criticism
• Contempt
• Defensiveness
• Stonewalling

 

When you and your ex are going through a divorce or you are fighting over custody of a child, these four communication problems are almost inevitable. Simple tasks such as meeting to drop off a child after visitation can become highly emotional moments that can feel almost akin to a battle. When you see your ex as an opponent, battling over a prize (e.g. your child), conflict and fighting is inevitable. So, what can you do?

 

Three Useful Methods of Improving Communications

 

Here are just three possible ways to improve the quality and type of communications with your ex:

 

Alternative Mediums of Communication

 

Sometimes the problem is not communication; it is verbal communication. If you find that it is difficult to keep the conversation civil, or you wish there was a record of the awful things your ex is doing, then you may just want to consider using technology to bridge the communication divide. Apps like Our Family Wizard allow divorced couples to communicate, plan visitation, reschedule school events, and more. In addition to reducing everything to writing, it also creates a record so it keeps people honest and can be a powerful tool in court if one party is violating arrangements.

 

Huffington Post also provides an excellent list of joint-parenting apps that may be helpful, depending on your situation.

 

Deliberate Communications

 

Being deliberate just means thinking about what you wish to accomplish. While you are on your way to pick up a child after a long weekend of visitation with an ex, you should take the time to think about what you want to achieve during your interaction. Remind yourself that the goal is for your child to enjoy time with both parents, to grow up healthy and well-adjusted, and to feel loved. If you center your emotions and focus on those goals, you may find it easier to ignore minor frustrations like when your ex shows up 15 minutes late. If you have planned your communications in advance, then you are less likely to react in the moment.

 

Using an Intermediary

 

If your communications have truly broken down to the point at which every interaction leads to aggressive and erratic arguments, then it may be worth discussing your situation with an attorney. Sometimes an intermediary such as a trained Parenting Coordinator can be used in order to mediate disputes and create a smoother exchange. An intermediary can schedule visitation meetings, school events, and other difficult conversations. While obviously this should not be a permanent or long-term solution, it may be helpful for getting through a particularly rough patch.  Experienced divorce attorneys tend to work often with secondary resources such as these and can make recommendations for your particular circumstances.

 

Talk to a Birmingham Divorce Attorney

 

If you are going through a bitter and challenging divorce or custody dispute, do not let harsh words and difficult communications steal your happiness. Speak with an attorney who understands both the legal and the human aspects of family law. The more you understand about the process, the better you can cope with the challenges to come. Call Five Points Law Group to speak with an attorney today.

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Five Signs That You May be a Victim of Age Discrimination

The law says that you have a right to compete in the workforce without regard to your age. However, as you can probably guess, employers discriminate all the time. The question is how to recognize the subtle signs of discrimination. At Five Points Law Group, we can help you review the situation from an objective point of view and help you get to the bottom of things. You deserve to be treated equally, regardless of your age. With this in mind, here are just five quick signs that you may be a victim of age discrimination.

Sea of Youth

This is often more a concern in younger companies, like tech startups and businesses that cater to a younger target demographic. Of course, it can happen anywhere. What we are talking about is a tendency to hire younger workers. If you begin to notice that almost all employees are young or very young, or if you begin to notice that older workers who retire are all being replaced with very young workers, then you may have a problem. Keep in mind, this is not an absolute. If older workers with experience are applying for jobs and being passed over in favor of less experienced younger workers, there may be a problem.

Inappropriate Questions

If you are interviewing for a job and the interviewer is asking questions that sort of require you to disclose your age, then you may be facing age discrimination. For instance, you may hear questions like “well, you will be old enough to appreciate this” or “do you have grandchildren near here?” While these may not necessarily be anything serious, if used to gauge your age or ascertain your suitability, they are inappropriate.

Suggesting You do Not Have Enough Time Left

As morbid as it may sound, older workers with years of experience and expertise in their fields may not want to retire. Frankly, the law does not say you have to quit doing what you love. Some employers may worry that an older worker has too little time left before retirement to be useful to the company. Such questions or insinuations are strong warning signs of age discrimination.

Sudden Changes in Duties or Responsibilities

If you have worked for a business for years and enjoyed a lot of responsibility, you may find it unsettling when, upon turning 50 or 60, you are asked if you need to take a break or whether you can “handle” the workload. While subtle, you may even notice that people begin to treat you as though you are mentally or physically unfit, even without any cause. This can be another warning sign.

Unusual New Discipline

If, after years without any problems, you are facing constant pressure and being disciplined or reprimanded for seemingly arbitrary things all of the sudden, this could signal that superiors are trying to build a case to fire you under some other pretext.

Get Help Now

Do not wait until you have been terminated; call an experienced attorney today. You may have options for fighting to keep your job. If you have already been terminated, downsized, demoted, or suffered any type of adverse employment actions and you believe your age is involved, contact Five Points Law Group today.

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Why You Should Not Have an Investment Broker or Insurance Agent do Your Estate Plan

Perhaps you have got a local insurance broker or investment advisor who has long been your most trusted source of investment and retirement planning advice. This person has helped you build successful investment products, told you just when to buy and sell stocks, and maybe even led you to substantial wealth throughout your working years. Now, as you approach retirement and your golden years, you are considering how you want to establish your final estate plan to best preserve your assets for your heirs and leave a sizeable legacy for those you love.

 

Do you go back to your insurance agent or investment advisor? Do you hire a lawyer?  Ultimately, it is entirely your decision. Before you make your choice, here are a couple strong reasons to consider hiring an experienced estate planning attorney instead of a commissioned sales person.

 

What Duties Does Your Insurance Agent or Broker Owe You?

 

As the old adage goes, ‘follow the money.’ If you want to know who is really looking out for your best interests, just ask yourself how your trusted advisor gets paid. Insurance agents and investment brokers are generally paid a commission, meaning the more they sell you, the more money they make. Therefore, a lot of insurance agents are keen to lobby for you to purchase annuities and whole life insurance products. Perhaps a reverse mortgage or bond product would be a good fit. Ultimately, many of these so-called ‘investment products’ are nothing more than poor investments that mostly benefit the salesperson who is pushing them.

 

Should Your Agent or Broker Even be Handling Estate Plans at All?

 

The Alabama State Bar Association takes a strict view of the unauthorized practice of law. While many investment advisors may be wonderful individuals with good intentions, they should not be advising clients on complex legal rights, such as trusts, estate planning, and the drafting of wills. Many investment advisors will claim that they have the documents reviewed by an attorney, who in turn advises you, the client. These types of loophole options do not serve the consumer well. After all, where do that lawyer’s loyalties truly rest? With you or the advisor?

 

Advisors are Not Necessarily Fiduciaries

 

There is still talk of a full repeal of the fiduciary rule, a Department of Labor (DOL) rule that would require financial planners, investment brokers, and other industry “advisors” to act in a fiduciary capacity.

 

A fiduciary is someone who is legally bound to act in their client’s best interests. Attorneys are bound by law to act in their clients’ best interests. This is one of the touchstones of the attorney-client relationship, and it is one of the key reasons why the legal profession self-regulates itself by harshly punishing those attorneys who violate this rule.

 

However, historically financial advisors had no such requirement. To date, there are continuing appeals and delays to the start of the rule. In fact, many suspect that the rule will never fully be enforced or implemented. Currently, brokers can sell products that make them a profit, even if totally adverse to their clients’ interests. Under the so-called fiduciary rule, advisors would be required to provide more transparency and notify their clients when they have a conflicting financial interest in selling products.

 

Since 2016, the rule has seen court battles and a litany of political discourse. Financial Times did a great job of explaining how the rule has certain pros and cons for consumers, but for now, the fact remains that many advisors are not required to act in their clients’ best interests.

 

Get Ethical and Personalized Estate Planning Advice Today

 

Throughout the Birmingham area, the lawyers of Five Points Law Group are available to consult with clients to help families get the competent, compassionate, and accurate estate planning advice they need in order to preserve their legacies for generations to come. Call to schedule an appointment today.

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Can I Get a No-Fault Divorce in Birmingham?

The term “no-fault” divorce is often overused and misused. For those who are considering getting divorced in Birmingham, AL, it is important to speak with an experienced divorce lawyer who can offer realistic and accurate advice on the options available. Remember, just because something is available does not always mean it is your best choice. Contact Five Points Law Group to get help with your divorce today.

Alabama Grounds for Divorce

Traditionally, one party to a marriage had to bring ‘allegations’ against the other party, claiming that they did something to violate the marriage in order to get a divorce. These were called “grounds” for dissolution of the marriage. Many feel these are antiquated concepts that no longer have a purpose in our society, yet most states still maintain some variation of grounds in their statutes.

In Alabama, the basic grounds for divorcing are:

• Adultery
• Incapacity of one spouse (mental or physical)
• Wife was pregnant at the time of marriage and did not tell the husband
• One person gets sentenced to jail for seven or more years. (grounds after two years in prison)
• Crimes against nature
• Alcohol or drug abuse
• Insanity (mental disability for more than five years)
• Domestic Abuse

Divorce Without Grounds

If none of the above grounds exist or you do not wish to bring public allegations against your spouse, you can also plead either of the following:

• Irretrievable breakdown
• Abandonment

In general, Alabama courts have a mandatory 30-day waiting period before any order can be granted. Assuming there is no dispute as to the allegations in the petition for dissolution of marriage, you might be able to get divorced in just a little over a month. Of course, in reality, there are generally a number of factors that keep that from happening. For instance, here are a few things that can delay getting your divorce granted:

• Your spouse needs time to consult with an attorney
• There are contested issues, like custody of children or property division
• You require time to resolve debts or sell assets in order to determine the marital estate
• You have difficulty finding or ‘serving’ your spouse with the petition

Making Divorce Simpler

Many people think hiring a lawyer will drag things out and make a divorce more complicated, but this is not true. In fact, people who have been struggling to handle their own divorce for months are often quite surprised at how efficiently and quickly a divorce can be handled once an experienced attorney gets involved. Sometimes simple misunderstandings of a court procedure or a failure to put things into the correct format for a judge can result in documents not being reviewed in a timely fashion or a judge not understanding what you are trying to communicate.

Attorneys who regularly deal with divorce cases can generally navigate the system better to get results. Whatever you do, never try to handle a highly contested divorce involving child custody without consulting an attorney. Even a small mistake could cost you dearly. For a help with all of your divorce and custody questions, call Five Points Law Group today.

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Five-Step Guide for Military Members Planning Divorce While Stationed Overseas

It is no secret that military service can be hard on marriage. For those serving in overseas duty stations or on deployment, this can be even worse due to long gaps between communication and the potential for infidelity and other obstacles to a successful marriage. It is sad to see a marriage end, especially when one spouse is thousands of miles away serving in the military. If you have made the decision to get divorced while still stationed abroad or while on a deployment, there are some things you should be doing right now to prepare for your divorce when you get home.

At Five Points Law Group, we are committed to serving those who serve our country. We know that our fighting men and women put their lives on the line every day, so when it is time for you to take the next step in your divorce, we are here to help make things as smooth and painless as possible. Nothing will make it easy, but the help of an experienced Birmingham divorce lawyer can often speed things up and help you avoid costly mistakes.

Step 1: Prepare Mentally

This is going to be tough. Build a support group, talk to a Chaplain or other trusted individual who can help you build up your emotional and psychological reserves for what lies ahead. You need to be focused 100% on your military objectives, so if you are unfocused or in emotional turmoil, you only put yourself and others at risk.

Step 2: Talk to a Lawyer Immediately

This may be tougher for some than others, but in today’s high-tech world, most service members have fairly frequent access to the Internet or telephone communications. Contact an experienced divorce lawyer near your home in the U.S. There are several reasons you want to do this early:

• Jurisdiction: You need to make sure you know exactly what jurisdiction applies. Do not assume that you can file for divorce in the state where you are stationed.
• Cost: By speaking to a lawyer early, you can begin to put together a plan for paying for your divorce. This may require you to budget your funds carefully while overseas.
• Information: An attorney can help you develop a plan for gathering the necessary paperwork and information you will need in order to file for divorce.

Step 3: Paperwork

Perhaps the single most difficult part of preparing a divorce while stationed overseas is that you do not have access to everything you need. For instance, you may be depending on your spouse back home to handle the budget, pay the bills, and make financial decisions while you are away. You may have limited access to banking information, investments, retirement plan documents, and other important items that will be necessary while filing for divorce. Now is the time to begin making a list of the important documents you will need, and maybe even have your attorney or a trusted friend back home gather these on your behalf.

Step 4: Privacy

Depending on your situation, it may be wise to get off of social media for a while. Or, at a minimum, enhance privacy settings. Also, make sure that you change any and all passwords on the following:

• E-mail addresses
• Social media accounts
• Online banking or retirement plan accounts
• Any other online accounts or logins that you want to be private

Never communicate with an attorney via e-mail unless you are 100% sure that your spouse cannot access that email account. Assume your spouse knows your login and change it immediately.

Step 5: File Your Petition

Once you have got everything in place, you can often use a power of attorney to handle much of the legwork back home. An experienced attorney can often help you file for divorce even while you are still stationed overseas. In some cases, such as when a trial may be necessary, you will have to wait in order to complete the divorce when you get back.

If your permanent duty station is located in Alabama or you and your spouse are from the Birmingham area, contact a local divorce lawyer from Five Points Law Group to discuss your options today.

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Three Common Sense Reasons You Should Consider a Trust

When people hear the term “trust fund,” they usually think of the super-wealthy, but trusts are not just for those with incredibly high-asset estates. Many middle-class to upper middle-class families would benefit from a trust. Anyone who is contemplating their estate plan in the near future should at least consider some of the ways that a trust might help your family. With this in mind, here are just three simple common sense reasons why you should consider creating a trust for your estate plan.

Reason #1: Tax Benefits

Alabama does not have an estate or inheritance tax, meaning that you and your heirs are not taxed by the state on the value of an estate. Likewise, the federal estate tax has been doubled as of 2018. Therefore, unless you have an estate valued at more than $11.2 million per person or $22.4 million per married couple, you should not face an estate tax. Although this eliminates some of the tax benefits of creating certain kinds of trusts, one should keep in mind that the new tax law has a sunset provision. These increased thresholds are only good until 2025. So, the limits could quite possible revert back to their prior limits of approximately $5.5 million per person and $11 million per couple. A trust can be established to protect assets, if this is a concern.

Reason #2: Life Insurance Trusts

Some states make you name individuals as beneficiaries for life insurance. Fortunately, Alabama allows you to also name a trust as a beneficiary. By doing this, you can protect future life insurance proceeds. For a young middle-class worker with a $1 million term life insurance policy, consider the benefits. If you are the sole earner for the family and you die, leaving a large amount of insurance money to your spouse and children, you have little control over how the money is used. If your spouse were to remarry and later die, all of the money intended to take care of children might go to the new spouse or that person’s children. When you die, you lose control over how money is used. A trust can help protect against that.

Reason #3: More Options

Simply put, Alabama trusts have more options than wills. Although they do require a little more planning and work to prepare, a trust gives you many options that a basic will cannot offer. For instance:

• Spendthrift provisions. Protect against wasteful heirs or those with drug or criminal issues.
• Incentives for heirs. Create financial incentives for heirs to be successful.
• Privacy. Keep your family’s affairs out of public court records.
• Probate avoidance. Avoid costly court administration.
• Much more

Get Help Planning Your Estate

In Birmingham and the surrounding areas, the attorneys of Five Points Law Group want to help you protect your estate from unnecessary taxes and ensure that you understand all of your options. Trusts are not just for the super wealthy anymore. Anyone who wants privacy and wishes to avoid probate should consider a trust. Likewise, if you want more control over your assets and wish to protect your legacy, then there is probably a trust that is right for you. Call or visit us online to schedule an appointment to review your options today.

 

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Alabama Opens Door for More Retirement Distributions in Divorces

Until recently, Alabama courts were unable to force parties to divide retirement benefits in a divorce unless the parties had been married for at least 10 years. However, under a new Alabama law, courts will now be allowed to use discretion in awarding the division of retirement accounts in all divorces.

Why Limit to 10-Year Marriages?

There is good reason for the old restriction. Under the old theory, a person who is working to earn retirement benefits, such as pensions and 401(k) plans, is doing all the work to earn the money. Since forcing a withdrawal can trigger steep penalties and unintended taxes that could eliminate much of the benefit and value of such plans, the old law allowed the parties to postpone actual payment until the person began receiving the retirement checks. So, if a husband had a 401(k), the court can award up to 50% of that retirement account to his ex-spouse. But he would not be required to start distributing his ex’s share until he actually retired and began drawing on the account.

The problem, of course, is that this manner of property division keeps a divorced couple potentially connected for decades, even until death. This does not favor finality or swift resolution and separation of marital bonds. Although the old law did allow the parties to agree upon a lump sum, this essentially forced the difficult compromise of losing money to penalties and taxes in exchange for finality. By limiting these types of divisions to longer marriages, courts generally would offset the difference by requiring larger awards from other sources, thereby protecting the benefits of retirement accounts.

How Does the New Law Change Things?

Under HB 208, Alabama lawmakers decided it made more sense to allow judges the discretion to award retirement divisions in all marriages. This does not mean judges will be required to divide retirement accounts in short marriages. It simply means that it is open to debate in divorce cases. This is long overdue, because income has changed significantly since the original law was enacted decades ago.

Intuit suggests that about 34% of Americans currently are employed by the ‘gig economy,’ meaning they are freelancing or working at jobs that are temporary and usually carry no retirement or benefits, according to CNN Money. Furthermore, with income equality steadily rising, and women making more than at any time in the past, it makes sense to start looking at retirement distributions differently and with a more modern view that allows for a case-by-case analysis. Divorce lawyers have been negotiating retirement distributions for years, as part of settlements; this law just gives judges the ability to do the same.

Hiring a Birmingham Divorce Lawyer

Family courts are among those with the greatest number of pro se (self-represented) individuals. Unfortunately, this often results in a lot of long-term problems, such as endless disputes, unresolved tax and financial complications, and repeated, unnecessary court appearances. The Birmingham family law attorneys of 5 Points Law Group can help you efficiently resolve your divorce without as many surprises. Laws change frequently, so what works today may not work tomorrow. Call (205) 263-0743 or visit us online today to get timely advice to your divorce questions.

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Divorce Courts Now Deal With Disputes Over High School Athletics

There are plenty of things to disagree about in a divorce case. Who gets the kids on major holidays? Where are we meeting to make the swap this weekend? In recent years, courts have been mediating a new type of dispute between divorcing spouses – should the children play high school sports?  Just as is the case with determining the custody of a minor child, Alabama courts will generally look to what they deem is in the best interests of the child. Of course, this is often subject to much debate.

Birmingham divorce attorneys often advise clients on Alabama law, but it is a moving target when it comes to certain high school athletic programs. In particular, recent studies on head injuries associated with high school and college football have led some to rethink the wisdom of letting children play.

Recent Disputes Over High School Football in Family Courts

One father in Pittsburgh is fighting to keep his son from being able to continue playing high school football. That father, according to the New York Times, believes that the risks are simply too great and therefore the teen should not be allowed to continue. On the other hand, the man’s ex-wife strongly supports their son continuing to play, despite the fact that the young man has had multiple concussions. It is a power struggle, in which both parents definitely have valid and understandable arguments.

As The Times explains, the mother feels like her son has a lot to gain from athletics. Meanwhile, the father feels that his son is jeopardizing long-term potential and well-being by continuing to risk his health. So, how can a court resolve this dispute?

Family Court Involvement in High School Sports

It is important for anyone going through this type of dispute to understand that no matter how much a teenager may express his or her wishes, ultimately the courts will presume that both parents are legally permitted to make these decisions on behalf of their minor children. So long as both parents can come to an agreement on these matters, a court is probably not going to be involved. Courts generally get involved when the parents cannot agree.

Risks Associated With High School Football

The links between high school football and head injuries have only begun to be explored through research, but one study suggests that high school football players are nearly twice as likely to suffer a concussion as their college counterparts. The study, according to Frontline, also suggests a potential link between repeated head injuries and a number of conditions. For instance, retired NFL players tend to have a far higher average rate of conditions, such as clinical depression, suicidal ideation, Alzheimer’s disease, and traumatic encephalopathy. Frontline is careful to point out that there has been no clear or definitive link proven to date, but the research certainly does reveal a burgeoning crisis, especially among younger athletes – namely high school football players.

What to do if You And Your Ex can Not Agree About High School Sports for Your Child?

In almost all cases, you are better off if you can reach an agreement about what is best for your children. The last thing you want to do is give teenagers a reason to drive an emotional wedge between you and your ex. Instead, you should work closely with your attorney to reach an agreement. Ultimately, you should discuss your concerns with an experienced Birmingham family law attorney. Five Points Law Group can help with even the most difficult family law disputes. Call (205) 263-0743 to speak with an attorney about your case today.

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Trusts for People with Disabilities

One of the primary concerns people have as they age is protecting their children, grandchildren, and other people they love. This can be complicated when an adult child is living with a disability.

Current estimates suggest that as many as 48.9 million Americans living outside of institutions are living with disabilities. As many as 24.1 million have severe disabilities, according to the National Service Inclusion Project (NSIP). This means that a lot of Americans may die each year, leaving a surviving disabled adult child or other close relative. When planning, here are a few questions people might want to ask:

• Who will take care of this person when I am gone?
• How will this person obtain medical care without my help?
• If I leave this person all my money, who will manage the funds?
• If I leave this person money, will he or she lose Medicaid and Medicare eligibility?

These are just a few of the big questions families must ask when they are providing for a disabled adult child or other close relative. Fortunately, there are things people can do right now to protect their loved ones for years to come.

Types of Trusts

A trust is just a document that establishes a set of rules and procedures for managing and distributing assets that are owned and controlled by that document. There are many kinds of trusts. For instance, most trusts are established as revocable, meaning they can be revoked or changed during a person’s life. There are also irrevocable trusts. One people put assets into that type of trust, they cannot change their mind and take things back out of the trust. There are also special needs trusts, which are set up to protect people with disabilities.

Funding a Trust

There are two basic ways to fund a trust – self-settled and third-party settled. A self-settled trust is one that is funded by the person who is intended to receive its benefits. In other words, you put money in a trust that is set up to provide for your own care and upkeep. On the other hand, a third-party settled trust is one that is funded by someone other than the individual who will receive its benefit.

Special Needs Trusts (SNT)

A special needs trust is often set up to maintain eligibility for public aid and other needs-based benefits, like Medicaid, Medicare, Social Security, and so forth. These trusts are often quite complicated and require the careful review and assistance of an experienced attorney.

Rules for SNTs

In August of 2017, the Centers for Medicare and Medicaid Services (CMS) released guidelines entitled, “Implications of the Cures Act for Special Needs Trusts. In this release, CMS provided clarification on the requirements for establishing a workable SNT.

A properly drafted SNT must meet the following:

• Disabled adult is under 65
• Person must have a qualifying disability
• Trust must be set up solely for that person’s benefit
• Trust reimburses the state for all money left over after death (up to the amount of free care paid by the state while alive)
• Can be established using the money of a loved one or the disabled person created on or after December 13, 2016)

Estate Planning for Disabilities

If you have loved ones with disabilities, there can be a lot of public benefits to preserve, as well as potential tax consequences. In Birmingham, the experienced estate planning lawyers of Five Points Law Group can carefully review the facts of your unique situation and look for the best option to protect those you love. No single solution is good for everyone. Get caring and knowledgeable advice. Call (205) 352-4455 to schedule an appointment today.

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Preparing for the High Cost of a Nursing Home Stay

Not all estate planning is about wealth building. In fact, these days most Americans are less concerned about what happens if they die, but rather, they are more worried about what will happen if they live too long. According to the Social Security Administration’s (SSA) life expectancy tables, the average American male who is currently 65 can expect to live 84.3 years of age. A woman aged 65 can expect to live to 86.6.

The SSA reports that 25% of those living past 65 will also live to be over 90, and about 10% of them will live past 95. With longer life and better medical care, people may be living longer, but longer life also means higher medical costs.

Think Your Savings are Safe?

A married couple that has saved $1 million for retirement has done pretty well. By all measures of success, such a couple should feel reasonably proud of their savings and confident that it will last through 20 years of retirement (65 to 85), assuming they have a modest annual budget, they own their home, and healthcare costs can be handled through Medicare.

Average Cost of American Nursing Home Care

A 2015 Cost of Care Survey by Genworth suggests that the national U.S. average cost of long-term skilled nursing home care is about $80,000 per year.  For Alabama, it is around $69,000, and for the Birmingham area, it runs $73,825. According to Lifehappens.org, studies show that the average length of a nursing home stay is about 835 days, costing a total of $200,000. Of course, some people with chronic or severe conditions may require lifelong nursing home care at the end of life. Imagine a five-year nursing home stay: It could easily cost $400,000.

Paying for Care

Fortunately, there is Medicare, right?  Well, not exactly. Medicare only pays for up to the first 100 days of long-term care. Technically, Medicare is only designed to pay for short-term rehabilitation. So, if you need rehab after an injury, Medicare will pay for it, so long as you are making progress and your physicians believe you will recover and be able to return home. If, however, you require long-term care, Medicare will stop, and you will have to pay out of pocket for the care. That is unless you have planned ahead.

Long-Term Care Insurance

Many seniors over the age of 60 are smart to invest in a long-term care insurance policy, but these policies are not cheap. If you have saved a million dollars, you should have to start putting your budget toward high premiums, not to mention the fact that these policies are often quite limited and only cover a year or two of care.

Medicaid as the Primary Payer of Nursing Home Care

For the majority of Americans in nursing homes, Medicaid will pay the bill. For those with a lot of assets, it can be a challenge to understand that there are options for becoming eligible for Medicaid in order to preserve hard-earned wealth. There are often creative estate planning solutions that can shift assets to a spouse living outside of the nursing home in order to avoid having to use your entire retirement income on the nursing home bill. By setting up a qualifying trust or simply changing the ownership of certain assets, many seniors are able to preserve their savings, while ensuring that they are well-positioned to use Medicaid if they ever require nursing home care.

Birmingham Estate Planning Attorneys

If you are approaching retirement or are already in retirement, you should consider the likelihood that you may need to stretch your retirement savings for 30 or more years. Will your savings last that long if you or your spouse require nursing home care? The attorneys of 5 Points Law Group are dedicated to helping you preserve wealth and protect your savings. Call (205) 352-4455 to schedule a private consultation to review your unique retirement and estate plans today.

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Understanding How the New GOP Tax Law Affects Alimony

If you have been paying attention, you already know the new sweeping changes made by the GOP’s tax law will have long-range effects throughout the economy for decades. One big change has divorce lawyers across the country on edge – the elimination of the alimony deduction. For over 75 years, the alimony deduction has been a strategic aspect of negotiations between divorcing couples. Going forward, however, this is now off the table.

What was the Alimony Deduction?

Under existing IRS rules (See Publication 504), alimony was generally treated as a deduction for the paying spouse. The recipient then paid tax on the money, just like all other income. This somewhat softened the impact of being forced to continue paying money to an ex-spouse.

Theories Behind an Alimony Deduction

The logic is pretty clear. A person is ordered to pay an ex-spouse a portion of his or her money, most often because the ex-spouse earns less money. The paying spouse is usually the one who makes more (aka “the breadwinner”). It can be a hard thing to accept that you have to continue paying an ex, long after you are divorced. The paying spouse is getting nothing out of the continued relationship, while the recipient is getting income. The tax deduction acknowledged the fact that the alimony payments are a total loss for the payer, as he or she is not receiving goods or services for the money paid. Here is what the new law means for married couples looking to get divorced after 2018.

Changes Took Effect on January 1, 2019

The new law does not take effect immediately. Instead, it will only apply to those who get divorced after December 31, 2018. So, those who are considering divorce in 2018 may want to consider doing so quickly, as the law will not apply to those already paying alimony.

Settlement Negotiations Will Change

Previously, tax benefits of alimony were a strong consideration for higher income spouses. Now, without the benefit of any deduction, other items may be used to offset the implications of this law. In other words, we will likely see higher property distributions, lump sum payments, retirement divisions, and so forth being offered in lieu of alimony payments.

Consider a Prenuptial Rewrite

For those who have signed prenuptial agreements in the past, it may be wise to see an attorney to do a quick rewrite before 2019. After all, one common provision in many prenup agreements is a higher alimony payment (which includes tax benefits for the paying spouse) in exchange for less property distribution and less division of other assets, like retirement accounts, pensions, annuities, investments, and business interests. Given the lack of a tax benefit for alimony payments, those with prenups may want to strongly consider paying a little money to have an experienced divorce lawyer go through the old prenup to make sure it remains a viable and beneficial agreement going forward.

Getting Advice from an Alabama Divorce Lawyer

Whether you are considering a divorce, facing one right now, or just looking to take proactive steps to update your prenuptial agreement, the attorneys of 5 Points law Group are available to answer your questions and help you stay up-to-date with the most recent changes in the law. Call (205) 352-4455 or visit online to speak with an attorney today.

 

 

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