Military Legal Assistance Program: The Bar Helping Heroes

On Veterans Day we take pause to remember those who have served and those who serve our country and defend our freedom. The State Bar of Georgia remembers our veterans every day through the Military Legal Assistance Program. Was created in 2009 out of the research and efforts of a committee of volunteers committed to help service members with legal issues reach out to qualified lawyers who can help them, in many cases on a pro-bono or reduced fee basis. Since that time, the program has gown to a cadre of lawyers throughout the State who stand ready to help out when called on.

Lawyers from the Military Legal Assistance Program handle hundreds of referrals in the areas of family law, debt relief, landlord tenant, employment law, disability and Veteran's benefits claims. These lawyers are located all over the State of Georgia and have a wide variety of practice concentrations. Many of the volunteer lawyers have prior military service or a loved one who is serving. Still many more are just willing to help serve our heroes. It is important that we all support our heroes who have committed and even laid down their lives to give us the freedom we so richly enjoy. Remember today that freedom is not free and we all need to help share the cost.

If you know of a service member or a veteran who has a need for legal services, please contact the Norman Zoller Military Legal Assistance Program Coordinator at normanz@gabar.org

Retirement Accounts and Divorce: Protecting Your Rights with a Qualified Domestic Relations Order

For most families, their retirement accounts are their largest asset. While Wall Street is showing signs of recovery, the housing market still suffers from losses. So, while most people are upside down in their house, their retirement accounts are increasing in value. For families going through a divorce, retirement assets can be the most sought after property of the marriage. Protecting this asset is critical.

Retirement accounts, such as 401(k)s are comprised of pre-tax dollars and are titled only in the name of the employee who has built the retirement account. What this means is that there are substantial penalties for removing these funds before reaching the age of fifty nine and a half. On the other hand, Georgia law provides that retirement accounts are subject to division in a divorce. Federal law recognizes that retirement accounts can be divided in a divorce and has created special provisions that allow for the division of the retirement accounts without incurring penalties.

In general, Federal Law provides that a retirement account may be divided in a divorce by a Qualified Domestic Relations Order, or QDRO for short, and avoid the tax penalties. A QDRO works by allowing the retirement plan administration to roll out of the employees retirement account and set up a separate account for the spouse. The retirement plan participant does not incur any tax penalties and the spouse has a retirement account of their own which they can roll over to a retirement vehicle of their choosing. If the spouse elects to take the money out of the retirement account, the spouse incurs the tax penalty.

A QDRO is a separate order from the actual divorce decree and is drawn so exacting specifications that identify the dates of marriage and divorce as well as identify the plan participant and the spouse. If these orders are not drawn to the specifics required by the Internal Revenue Service and the plan provider. If the order does not meet the specifications, the plan provider may reject the order. Many plans have specific forms they require over and above the Federal regulations. It is important, in order to protect this valuable asset to consult your attorney. There are also many lawyers who specialize in drafting QDROs and have experience with the many peculiarities of each individual plan.

Drafting Your Will: The Devil is in the Details

When putting your will together, going in to detail is the only way to truly insure your intent, protect your estate and prevent a hardships for your family and chosen executor. The market place is full of options for putting together a will such as forms from office supply stores, software packages and even online solutions. Most of these forms are legally sufficient and will accomplish your basic intent, so long as that intent is very basic. Many people make the mistake of believing that there estate is too simple to warrant a will with any detail. Most people figure that their executor is knowledgeable about their intentions and can carry them out.

The problem is that once a person dies, each heir has their own idea as to what deceased would have wanted. Much of your personal property will have some sort of significance to your relatives. Many times, the death of a loved one brings out the worst in people and relatives will squabble over the division of every stick of furniture in the house and every dime of the estate. These relatives will challenge your chosen executor every step of the way. Since the estate has to satisfy the fees of the executor as well as the legal expenses. If the will merely provides that the estate is to be divided between the heirs, then the executor may end up having no choice but to sell every item and split the cash.

Here are some ways to try to litigation-proof your will:

1. Choose a good executor: Your executor needs to have good head for business. While it may hurt some feeling of your relatives for not being chosen, the executor will be called on to make some very important business decisions in disposing your estate. This person also needs to be able to stand up to all of your heirs to make sure your written intent is carried out. This person needs to have the strength and stamina to decide when to go to court or how to best settle your estate. Further, resist the temptation to name more than one person as executor. It is nearly impossible to manage by committee and the same holds true for an estate. While it might seem diplomatic to spread the power out amongst the heirs, if they cannot agree on how to handle the estate, the legal battles that will ensue between them can drain the estate before it is even divided.
   
2. Carefully select a guardian for your minor children: The person you name in your will is the person who may very well raise your children. If you do not select a guardian one may very well be decided by the State or the Courts. The person you select should be willing and capable of raising your children the way you would like to see them raised. Do you want your children to go to college, do you want them to be nurtured in the arts. Make sure your guardian is somebody who will insure your wishes. Make sure your guardian is willing to insure your children have a relationship with their entire family. The death of a parent is a huge loss for a child at any age, but the loss of the rest of the family can only serve to compound the problem.
   
3. Set up trusts: Under Georgia law, assets left to minors must be placed in a trust or a conservatorship. While the law does provide some direction as to how those assets are to be used before the child reaches the age of majority, those directions are broad and do not take into account what the minor will be able to do with the assets when they reach the age of eighteen. Most eighteen year olds are not equipped to handle large sums of money or assets. However, with a carefully drawn trust, you can direct how the money is to be used and when, if at all the money is to be disbursed. With careful drafting of the trust, you can insure that your wishes are carried out with specificity. Furthermore, trusts are not just for minors but can be set up for persons who are not wise with money or even to shelter heirs from other consequences.
   
4. Make specific bequeaths and devises: Do not trust your executor to make sure that your personal property and real property is going to get into the hands you want to see it go. The best way to insure that happens is to put it in your will. Making a list is not enough, even with the best intentioned executor. If the list is not a part of the will, then it is not legally enforceable. If the heirs end up in a dispute, the Probate Court may have no other choice but to order all of the property sold.
   

The most important thing is that a will should be a specific document that clearly spells out your desires with regard to your estate. The best way to do this is to sit down with a lawyer who is trained and experienced in not only drafting wills but has handled disputed estate cases. An experienced lawyer can point out the possibilities of problems and can lead you to draft a will that will insure your intent is carried out and prevent your heirs form having anything to dispute.

Flag Flap

While I was walking the Saturday morning when I grabbed my copy of the newspaper and noticed that for the first time in my life the words, "Solicitor General" were in the banner headline. If asked, most people do not even know what a Solicitor General does. For all he has done in the community, David Cannon, Jr. has never made the top new. Not for the drunk drivers he gets off the streets, not for the closure he brings to the families of vehicular homicides, not for his work starting a accountablity court for drunk driving and drug offenders. He never makes the papers for improving the efficiencey of government, cutting costs or saving money for taxpayers. He didn't grab a headline when the Supreme Court gave him an award for community service nor a single photograph for the countless hours he spends performing thankless menial tasks for the citizens of this county.

No, my friend made the headlines for the most ridiculous news flap of 2011. David asked his community service workers to remove some three thousand flags that were scattered about square in Downtown Canton. While the task proved to be bigger that expected and storing all those flags posed a logistical nightmare, the publicity stunt that followed from the so-called patriots who are outraged has blown this incident way out of proportion. It is safe to say that this flap has gotten more press, air time and bandwidth than the original tribute and certainly more than the "retirement ceremony" that was canceled.

It is real easy to wrap yourself in the flag, post one on your Facebook page and call yourself a patriot. It takes no courage to use a pseudonym to snipe at a public figure that had a bad day. It takes real courage to walk out in front of a television camera or to grant an interview with a critical press, to admit you made a mistake and applogize for taking action in hopes to serve the community. This is why David Cannon is a leader in the community and why I am proud to call him my friend

Decision Fatigue: What You Need to Know About Court Before You Go to Court.

The New York Times
Do You Suffer From Decision Fatigue?

Thinking about taking that case to the Judge? Before you step foot in the Courtroom, be sure to read a most recent article by John Tierney in the New York Times Do You Suffer From Decision Fatigue? This article highlights the wear and tear that the act of making decisions through the day has on the mind. While we are all called on to make various decisions through the day, however making difficult is at the heart of a judge's job description. The article makes a case study of judges hearing Israeli parole cases. The writer shows that the outcome of the hearings in very similar cases produced very different results as the day wore upon the judges hearing the cases. Tierney shows that the act of making a decision actually drains the mind of energy during the day, even if the body cannot tell it is getting tired. The more decisions the brain is called on to make, the mind begins to take shortcuts. One shortcut is the brain becomes more reckless producing bad decisions such as e-mailing that tirade to all 140 co-workers. The other shortcut the brain takes is to avoid making decisions by either procrastination or maintaining a perceived status quo. Either way, the results are less than desirable and get worse as the day wears on the brain. The study further shows that blood glucose levels have an effect on decision making. So the lower the blood sugar level of the decision maker, the more the decision maker suffers from decision fatigue. In other words, those decisions made after meals and snacks were much better reasoned.

So what does this have to do with going to court? Judges are ultimately decision makers called on to make tough decisions every day. In today's litigious society, the typical docket is packed with cases for the Court to hear on that given day. This is especially true in domestic relations calendars where it is common for there to be more cases scheduled than hours during the day. From the get go, the Judge is called on to make decision in a rapid fire setting. Normally the court will hear the short and more routine cases first and handle the longer more complex cases later in the day. That means by the time the Court gets to hear the complex divorce and custody case, the Judge has made many decisions. Once the hearing begins, the court will be called on to make decision about evidentiary and procedural rulings so that by the time the judge is actually deciding the ultimate issues in the case, the judge has been taxed to make hundreds of decisions during the day. Decision fatigue can set in.

But aren't judges educated professionals? How can they let this effect the outcome of a case? There is no escaping the fact that judges are human as well and are subject the same fatigue as everybody else. The study in this article comes as no surprise to judges. The Court routinely and repeatedly advises and encourages people to resolve their cases before the need of having a hearing. Parties need to understand the effects that wear and tear that court has on the judge hearing their case. The best way to deal with the possible effects of decision fatigue on judges is to resolve their case while they are still in control.

Alternative dispute resolution is one means to avoid the effects of decision fatigue. While mediation takes the wear and tear of decision making off the judge and places it on the parties, mediation is scheduled for a time when all involved can be well rested and ready to handle the multiple decisions needed to resolve their matters. Also, mediation usually takes place in a relaxed atmosphere that allows for snacks to replenish those crucial blood glucose levels. Arbitration is like having a judge that you can schedule at the convenience of the parties. This means the decision maker can go straight into hearing that complex case without deciding array of smaller cases first. Arbitration is also less formal that court, allowing for more frequent breaks and rests.

There are also a number of things that can help to reduce the strain brought on by decision fatigue. Parties and counsel can reduce the levels friction, thus reducing the number of times the judge has to rule on preliminary issues. The parties can also narrow the issues for hearings in order reduce the number of issues left for the judge to decide. Finally, the parties may wish to allow the court to take the ultimate issue under advisement, allowing the court to delay actually making the decision to a time when the judge is more refreshed and producing a better result. While decision fatigue is humanly impossible to eliminate, it is something that all concerned should take into consideration before stepping foot into a courtroom.

Child Custody of Relatives: Helping to Raise Your Family’s Children

In these times more and more people are called upon to help raise the children of their family members. There are any number of situations arise where a relative needs to get guardianship or custody of children. At this time there are parents on military deployment overseas, parents tied up in the criminal justice system or even parents who are just not capable or fit to raise their own children. While this is a time honored tradition of family taking care of its own, in the modern legal climate there is a need to formalize the arrangement through the courts. Even in situations where all of the principle players agree, there it is best to solidify the arrangement with a court order.
There are many situations where a relative will need to present a court order to perform some of the most routine actions that a guardian needs to take in order to raise children. Enrollment in school, authorizing medical treatment, signing up for extracurricular activities and even signing a permission slip all requires the signature of a parent. In the absence of the parent signature, a court order of guardianship or custody is required. Further, having a court order will allow a person acting in the roll of a parent to take advantage of certain benefits available for dependent such as health insurance through group plan of an employer.
Depending on the situation, there are a number of options available to a relative to obtain a court order. One such option is to obtain Letters of Temporary Guardianship through the Probate Court. These letters or order allows the guardian the legal authority to act in the roll of a parent. Temporary Guardianship requires the consent of the parents and can be terminated at any time by the parents. These are perfect in situations where the parents agree that the children need to live with a third party. What happens if the parents do not agree that a third party stepping in s the best for the child? There are two other options that much more drastic in nature but can.
First, a third party can seek temporary custody through the Juvenile Court on the basis that the child is deprived. If the Juvenile Court finds a child is deprived of its essential needs of health education and welfare, the Juvenile Court can award a third party temporary custody for up to two years. If the Juvenile Court judge finds deprivations exists and awards custody, the Judge establishes a checklist or plan of action to take in order to for the children to be reunited with the parents. If the plan is not completed by the parents, the court can extend custody, however there is a limit. Because the Juvenile Court is strongly associated with the Department of Family and Children Services, the plan may include services offered by children's watchdog agency. Also, parents who are in court for deprivation may be eligible to a court appointed attorney if they cannot afford one, but there is no reciprocal for the relative seeking custody.
Second, a relative may seek permanent custody through the Superior Court. Certain relatives such as grandparents, aunts, uncles and even siblings can petition the court for custody of the minor children of their relations. To be granted custody, the relative must show first that there is harm will come to the child unless the parent child relationship is altered and then second the relative must show that it is in the best interest of the child to be placed in the custody of the relative. A Superior Court order remains in effect until the child reaches the age of eighteen. While custody may be returned to the parent, there is not a specific plan laid out by the Court for the child to be returned to the parent and the parent has to file a new case to take the child to modify the custodial order to the relative in the county of residence of the legal custodian.
Getting custody of a relative's children is not an easy prospect. Due to the stigma of court proceedings, many times the parents are not willing to let the children go to a relative with a court order, no matter how temporary the situation. The matters can become emotional for all involved. The parent child relationship is a constitutional right and the burden of proof required to alter that relationship is very high, clear and convincing evidence. It is the highest standard in any civil case. These matters should not be entered into lightly.

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It's Official: Casey Anthony More Hated Than O.J. Simpson

Americans have a love hate relationship with their criminal justice system. While we are very proud of our system that presumes innocence until proven guilty, we revile those who are found innocent that we have presumed guilty. According to the New York Post and Reuters, Casey Anthony has just made it to the top of the list of most hated people according to Americans participating in the poll. Ms. Anthony was propelled to celebrity status when she was charged with the murder of her own daughter, mainly due to the fact that she partied for a month before reporting the child missing. Then insuring that her own star will never fade, she was acquitted of the murder charge.

Ms. Anthony's status as most reviled is an endorsement for the American Criminal justice system. Right behind her is former football star O.J? Simpson who was also acquitted of a murder charge eighteen years ago. The Simpson trial proved that with enough money and a star studded team of lawyers innocence could be brought. However, Casey Anthony was defended by a team of court appointed and pro-bono lawyers representing a woman who could not afford to defend herself against the resources of the government that was willing to spare no expense to convict her.

Before Ms. Anthony stepped one foot into the courtroom, the media and pundits like Nancy Grace had convicted her of the the carve of murder. Yet a jury heard weeks of testimony, poured over hundreds of exhibits and heard both sides to exhaustion. The jury deliberated in this case, not just for hours but for days, and returned it's verdict of not guilty. Yes, despite the opinion of the expert pundits, the men and women who were actually sworn to fairly listen to all of the evidence decided that the government failed to prove its case for murder against Ms. Anthony. For that, she will always be hated.

Ms. Anthony's most hated status is proof that the system can work. Regardless of your opinion of Ms. Anthony, the verdict in her case is proof that the jury system is not merely a rubber stamp for the government or public opinion.