Being involved in a divorce action is generally one of the most difficult times in the parties’ lives, and can be particularly hard on the children.  Making the decision to break up a family should never be taken lightly, even by the attorneys involved in the case.  Parents must take care to minimize negative effects on the children; and although we are outsiders looking in, attorneys must respect the emotional turmoil involved in such matters and tread lightly.

As hard as divorce is on the parents, it can be devastating for their children.  It is a time of confusion and uncertainty; and unfortunately, children often blame themselves for what is happening around them.  Parents who speak disparagingly about the other parent in the presence of the children can cause untold damage to a child.  However, there are many things parents can do to insulate the children from the process as much as possible.  Family counseling where both parents participate can show children that parents can still work together, although they are ending a marriage; and it can give the child an outlet for his or her emotions and have questions answered in a nonthreatening environment.  Also, both parents spending quality time with the children during the process is extremely important.  A divorce case should not get in the way of a child’s need to be loved and cared for by both parents.

There is a movement in the family law community for attorneys to assist parents in taking the sting out of the process as much as possible to avoid further conflict between the parties.  This can be accomplished simply by not inflaming the parties during the divorce case, beginning with how the defendant in the action is served the initial pleadings.  Serving a complaint for divorce on a party in the presence of minor children or at his or her work place can cause unnecessary animosity between the parties, making an amicable settlement more difficult.  Further the attorneys should take care when drafting pleadings to avoid unnecessarily harsh phrasing in documents that are part of the public record.  Minor children will not be minors forever.  There will come a time when they will be old enough to access their parents’ divorce file, and hopefully will view only a civil action that occurred between their parents, rather than an ugly battle filled with accusations and denunciations that could be hurtful for them to see.

Of course, there are situations when not all hurtful words can be avoided, however, attorneys must make these part of the public record only in situations where it is unavoidable.  As a party to a divorce action, you make the ultimate decision as to how your case should be handled.  Communicate with your attorney about the tone you want to set for your case.   He or she will gladly advise you about how you can make the divorce process less controversial, which will hopefully lead to an amicable settlement of all issues, and make the entire process less difficult on the children.

Call the Law Office of Simasko, Simasko & Simasko, located in the City of Mount Clemens, Macomb County, Michigan, for your free consultation with a family law attorney regarding your divorce and separate maintenance issues.

If you are attempting to obtain medicaid benefits for your nursing home stay, you must be aware of a recent law change.  You may want to preplan your funeral by purchasing a life insurance policy. In Michigan, if the life insurance policy is not irrevocably transferred and integrated into your guaranteed funeral contract, then it can be treated as a countable asset and disqualify you from Medicaid otherwise its considered a final expense funeral policy which is not recognized in Michigan as being an exempt asset.  If you loved one is going into a nursing home, call Simasko Law Offices at (586) 468-6793 for a FREE consultation regarding Medicaid benefits.

The Unites States Bankruptcy Court for the Eastern District of Kentucky found that a woman who was contractually bound through a nursing home admissions agreement to apply for Medicaid benefits on behalf of her husband’s and who failed to do so cannot discharge the debt owed to the nursing home through an individual bankruptcy. In re Plybon (U.S. Bankr. E.D. Ky., No. 11–10146, March 9, 2012).

When Glenna Plybon admitted her husband to a nursing home, she signed the admissions agreement for said facility as the responsible party. (Simasko Law Offices recommends that the individual signing said agreement indicates that they are signing said agreement under a color of authority such as a power of attorney to help prevent individual liability) The admissions agreement stated that Mrs. Plybon was required to pay a co-insurance amount and apply for Medicaid benefits on Mr. Plybon’s behalf.  Mrs. Plybon applied for Medicaid on behalf of her husband, but did not provide all the information required to process the application, so Mr. Plybon’s Medicaid application was denied. While the application was pending, Mrs. Plybon failed to make any payments to the nursing home and the nursing home discharged her husband.

The nursing home sued Mrs. Plybon for the outstanding balance on Mr. Plybon’s bill. When Mrs. Plybon filed for bankruptcy, the nursing home argued the debt was non-dischargeable. Under bankruptcy law, a debt is non-dischargeable if it is incurred by fraud or defalcation (the willful neglect of one’s duty).

The U.S. Bankruptcy Court for the Eastern District of Kentucky held in this instance that the nursing home debt is non-dischargeable. The court ruled that Mrs. Plybon was contractually bound by the admission agreement to apply for Medicaid on Mr. Plybon’s behalf and her “failure to obtain the Medicaid benefits and the subsequent failure to meet the financial obligations for Mr. Plybon’s care were a breach of her obligations under the admissions agreement as the party responsible for Mr. Plybon’s financial assets and liabilities.”

I was asked this very question not too long ago.  My answer was not always, but you should always consult with a qualified elder law attorney who specializes in Medicaid Law, which is what the attorneys at Simasko Law Offices.

A social worker at a nursing home may be available to give the resident assistance in preparing the application and applying for Medicaid.  They will probably know a lot about the program, but maybe not the particular rule that applies to your situation, or the newest changes in the Medicaid Law (Medicaid Laws change frequently).  Further, the social worker may not be interested in preserving your family’s wealth or assuring the residents spouse is taken care of.  They may not take the time to learn the family dynamics, and you could miss out on significant planning options that could affect the family’s future.

What you may learn from the attorneys at Simasko Law Offices can mean significant financial savings and/or better care for your loved ones.  The information that will be discussed is not only about the Medicaid application, but the use of specialized trusts, transfer of assets, and the use of annuities, Veterans Benefits, increased income and resource allowance for the spouse or possibly the children.  These are all areas of law that a nursing home administrator or social worker will not or cannot talk about with you.  Typically, the are not attorneys and cannot give legal advice.  Where the attorneys at Simasko Law Offices can give Medicaid and asset preservation advice.

The more assets a loved one has who is going into a nursing home, the more they have to lose.  And when planning for nursing home care, time is of the essence.   The longer you have to plan, the better the results could be.

Call the Elder Law and Medicaid specialists at Simasko Law Offices to learn of the options that are available to you or a loved one who may be facing difficult decisions regarding nursing home care.

The simple answer to this question is, “yes.” However, if you have spent any time at all helping your parents plan for the unfortunate event that they might have to enter a nursing home, you know that “simplicity” is a luxury not often afforded in this situation.

In Michigan to qualify for Medicaid, a single person can have no more than $2,000 in assets.  The primary residence and one car are exempt, as long as they are not owned by a trust.  Therefore; on many occasions, prior estate planning may need to be changed to fit the situation.  Because we are unable to use a Quit Claim Deed, in most circumstances a Ladybird Deed is used to ensure that the individual’s primary residence avoids probate.

Any individual that receives Medicaid assistance is subject to Estate Recovery if their assets go through probate.  Under the current law, the key is to avoid probate.

Under the Estate Recovery program, the Michigan Department of Community Health (MDCH) will seek repayment of benefits received by Medicaid recipients by filing a lien on an individual’s probate estate. The liens can be placed for no more than the amount spent on the individual’s care. With the rising costs of nursing home care, a one to two year stay in a long term care facility can deplete a majority, if not all, of the value of the home!

There are many complex scenarios and restrictions on the treatment of the home for Medicaid purposes, and many strategic plans that can be used to protect the parent’s home and the family’s heirs. The best way to discuss your specific scenario and develop the best overall plan is to meet with the experienced staff of Elder Law Attorneys at Simasko, Simasko & Simasko, P.C. Call today to schedule your FREE consultation.

As always, remember that it is better to look ahead with preparedness than to look back with regret!

If you have a loved one in a nursing home, it is quite common for the nursing home to demand a security deposit.  Many Medicaid workers attempt to treat this security deposit as an asset and if it would put you over the asset limit, you have to immediately assign the security deposit to the nursing home for payment of the first months’ rent.  However, recent DHS rulings have held that the security deposit is an unavailable asset because the security deposit is out of your control because you have no access to it until after your Medicaid application is approved and is returned to the family.  At that point, it becomes available and a countable asset and must be spent down.

Everyone Has an Estate

What is an Estate? According to The U.S. Internal Revenue Code, “the value of the gross estate of the decedent shall be determined, by including to the extent provided for in this part, the value at the time of his death of all property, real or personal, tangible, or intangible, wherever situated.”

Contrary to popular belief, everyone has an “estate”, whether it’s worth $1 or $100 million. An individual’s estate does not only include a person’s “real estate”  nor is it referring strictly to one’s probate estate; instead, your estate includes all the property over which you have some interest at the time of your death

Federal Estate Taxes

 Under U.S. tax law, upon the death of any U.S. citizen or resident, an estate tax is charged on the transfer of that person’s estate to beneficiaries or heirs.  However, a credit is applied to the estate of every decedent against the tax.

 “Estate” Also Includes Certain Unowned Property

 Your estate can also include certain property that you don’t own at your death (remember, the Internal Revenue Code definition refers to one’s “interest” in property and not “ownership”).  Here are some examples of such property:

• Certain gifts made within 3 years of the decedent’s death;
• Certain property held by the decedent for life only (aka a “life estate”);
• Certain annuities, including those with income still payable after the decedent’s death;
• Property over which the decedent had a “power of appointment”;
• Life insurance owned by the decedent regardless of who is named beneficiary;
• Life insurance payable to the decedent’s estate;
• Certain disclaimed property.

 So Why Worry About It?

Because if Congress does not agree by the end of 2012, the estate tax is set to revert to pre-2001 levels.  As of this date, estate tax rates for 2013 and beyond are set to increase to a maximum of 55% (up from 35% in 2011 and 2012), and only the first $1 million of one’s estate (down from $5.12 million in 2012 and $5 million in 2011) would be exempt.

Anyone whose estate is valued under $1 million now, but could grow over time and circumstance to well over $1 million, could have an unexpected estate tax in the future.

 Should You Wait to Plan?

 No, because estate planning encompasses much more than just estate tax planning!

In cases of divorce or separate maintenance, often the issue of spousal support (also referred to as alimony) must be addressed. In the State of Michigan, courts consider eleven factors in determining whether spousal support should be granted to either party. Often the most important of these factors are:

1. length of the marriage;
2. age of the parties;
3. needs of the parties;
4. ability to pay;
5. and past conduct of the parties (fault issues).

If it is determined that one party is entitled to spousal support, the next step is to negotiate the monthly amount and the length of time the party shall receive said award of support. In Michigan, the amount and duration of spousal support is subjective. There is no adopted formula for the courts to follow in determining what the payee should receive.

In this economy, one important consideration is whether an award of spousal support should be modifiable or non-modifiable. Pursuant to MCL 552.28, a court has the power to modify an award of spousal support. However, the parties, upon an agreement and specific waiver of rights, may agree to make an award of spousal support non-modifiable. Staple vs. Staple, 241 Mich App 562 (2000).

There are many reasons parties would agree to non-modifiable spousal support. Perhaps the most common reason is the certainty it gives to both parties. Both parties can, whether he/she is the payee or payor of the support, make a budget for future payments without having to worry that the amount could change at any time. Parties may also agree to non-modifiable support because one party is expecting an increase in his/her income such as a raise in salary, increase in bonus, or payout from a business venture. For example, if the order called for non-modifiable support, the payor would not have to share that increase in income. However, if the support order is for modifiable support, the payee of support could file a motion to increase support based on this increase in income. If a court finds a change in circumstances, it could order the support amount is to be modified.

If the parties waive their right to modify a spousal support order; it does not matter if there is a change in circumstances, a court will not modify an agreement of the parties. Therefore, if the payor of support loses his/her job and is unemployed for months or even years, the spousal support arrearages keep racking up. Such support awards are not subject to bankruptcy. If the payor fails to make court ordered payments, he or she could be held in contempt of court. With the high rate of unemployment in our State, parties have a great motivation to consider modifiable support more than ever. Despite the uncertainty and other draw backs discussed above, with the current economic climate in our State as it is, parties should consider whether modifiable spousal support may be a better option at this time.

Call the Law Office of Simasko, Simasko & Simasko, located in the City of Mount Clemens, Macomb County, Michigan, for your free consultation with a family law attorney regarding spousal support or other divorce and separate maintenance issues.

State lawmakers Tuesday approved a package of bills that will cut the number of trial judges in the state by Thirty Six through attrition. It is not expected that any judges will be lost in Macomb County.

The original bipartisan legislation passed by the House of Representatives in December proposed eliminating 41 trial court judgeships. The Senate amended the bills and reduced the number to 36. ”The last time we eliminated judgeships in Michigan was more than a decade ago, and even though the current reduction it is not as sweeping as we first envisioned, it is a huge step toward reforming the judiciary, assuring access to justice and saving taxpayer money,” said state Rep. John Walsh, R- Livonia, chair of the House Judiciary Committee.

The legislation was recommended in a 2011 report by the State Court Administrative Office. Past reports have urged similar reductions, but the recommendations were not acted upon. The most recent report received the support of the Michigan Supreme Court and all three state judge’s associations. “This will in no way affect a citizen’s right to a speedy trial or full access to justice through the court system,” Walsh said. “It is overdue reform that will save taxpayer money in the long run, and will bring our judicial system to the correct size.”

The package of bills now goes to Governor Snyder for his signature which is expected because Snyder has supported the measure.