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estate planning - montana legal advisors

Why should I make an estate plan?

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Estate planning is often a topic that people avoid because it involves contemplation of death, family relationships and distributing their property. Some people believe that estate planning does not apply to them because they are young or they are not wealthy. However, many people (regardless of age or wealth) can benefit from some kind of discussion and estate plan that addresses their goals and desires regarding their property, financial, health decision making authority, and providing for the care and support of their children. These goals can be addressed in wills, trusts, and durable power of attorney documents.

Discussing your estate planning goals is a proactive measure to ensure that your wishes are known and can be carried out by your loved ones. There are a number of issues to consider that are not related to your current age or wealth. Do you have particular wishes that you want carried out regarding your funeral service and the disposition of your remains? Do you have particular personal property or other assets that you know that you would like specific loved ones to receive after your death? Is there a trusted person in your life who you would like to handle your health affairs in the event of your incapacity? Do you have children for whom you want to provide instruction for their care and support? Estate planning is the time for you to address these issues and make your wishes known.

For those people who do have significant assets and wealth and for those who have particular health concerns or considerations, estate planning is the time to identify those considerations, set your goals and design an estate plan that is specifically tailored to them. Do you have children for whom you would like to restrict their access to wealth after your death? Do you anticipate you or your spouse needing long term care? Do you and/or your spouse have children from prior marriages? Estate planning is the time to plan to identify your present financial needs and how your wealth should be maintained and /or distributed after your death.
Make your estate work for you and your goals now. Set yourself and your family at ease knowing you have planned for your children and loved ones after your death. Our team of attorneys can assist you with the estate planning process from beginning to end. Contact one of our attorneys to discuss your particular estate planning needs.

For answers to questions about what estate planning involves, see the May 2017 blog “What does estate planning involve?

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estate planning - montana legal advisors

Estate Planning Part I

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What does estate planning involve?

Estate planning involves an analysis of your estate, planning your present financial goals, and determining your wishes for distribution of your estate after your death.  Your estate consists of all of your assets (real and personal property, retirement accounts, pensions, business interests, etc.) and liabilities (mortgages, loans, notes, etc.).  The analysis includes a discussion of how your estate can meet your present financial needs and goals considering income, tax consequences, and present asset ownership interests.  Determining your wishes for distribution of your estate upon your death requires an analysis of several topics including titling property, naming beneficiaries on accounts, and tax consequences.

Estate planning involves getting information and advice from a variety of professionals including financial advisors, accountants, and attorneys.  Attorneys can assist you with the analysis and present and future goal setting included in the estate planning process.  There are a variety of legal documents that can be used to implement your estate plan. For example:

A living will declaration sets forth your express wishes if you have an incurable or irreversible condition that requires life-sustaining treatment, so that loved ones can follow your express wishes.

A general durable power of attorney allows you to appoint a trusted person who is then granted authority to act on your behalf regarding specifically stated financial and/or health care matters.

A last will and testament contains your stated intentions for distributing your estate, and providing for the care of your minor children at your death.

A revocable living trust allows you to place your assets in trust to be controlled by the terms of the trust during your lifetime and after your death.

Your estate plan is not static.  The assets and debts which comprise your estate will change, your present financial needs may change over time, your significant health needs and conditions may change, and your wishes for distribution upon death may change.  Periodic review of your estate plan is encouraged so that your plan continues to match your needs and goals over time.

Our team of attorneys can assist you with the estate planning process from beginning to end, and with periodic reviews.  Contact one of our attorneys to discuss your particular estate planning needs.

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Child Support

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Montana Law requires that all parenting plans address child support, and that child support be calculated pursuant to the Montana Child Support Guidelines.  The Guidelines are “based on the principle that it is the first priority of parents to meet the needs of the child according to the financial ability of the parents.  In a dissolution of marriage or when the parents have never been married, a child’s standard of living should not, to the degree possible, be adversely affected because a child’s parents are not living in the same household.”  (ARM 37.62.101(2)).

The Guidelines are a formula, which can be found in the Administrative Rules of Montana.  The formula requires both parties’ income, state and federal taxes, and certain expenses such as health insurance premiums, significant and ongoing annual medical expenses, required employment expenses, and child care costs.  The formula also requires the number of days the child or children spend with each parent in a 1 year period.  Knowing what information to use in the formula is perhaps the most difficult part of the calculation; from determining the proper amount of income for a self-employed person to deciphering whether retirement contributions are “mandatory.”  In some cases, it becomes necessary to use legal tools such as a subpoena to determine a parent’s actual income.  Our office has a computerized system to calculate support, and we can assist our clients in ensuring they have the information they need in order to properly run the calculation formula.

In most cases, properly applying the formula will yield an appropriate amount of child support.  However, the courts are permitted to vary from the formula if they find it appropriate to do so, either because the parties have agreed to the variation, or because there are unique circumstances in the case.  Our office can help you to determine whether your case might be appropriate for a variance.

One frequently asked question regarding child support is whether a parent is required to pay support if they are not parenting their children.  For example, if a child resides with her dad, and dad will not allow mom to see the child, does mom need to pay child support?  The answer is yes, mom needs to continue paying support.  Mom may need to seek other remedies to ensure she gets to visit her child, but those remedies do not include stopping her child support payments.

Another frequently asked question is whether child support is required to be paid during time that the non-residential parent has the child.  For example, if a child resides with mom during the school year and dad during the summer, and dad pays child support to mom, does he need to pay in the summer months while the child is residing with him?  The answer is yes, he does need to pay throughout the year.  Child support is an annual figure, which we divide by 12 to get a monthly payment amount.

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Montana Divorce Litigation

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Litigation is something that most people don’t want to experience. In the U.S., divorce is a legal process that requires, to some extent, the parties to engage in litigation. While most divorce cases will settle during the litigation process and without a trial, getting a good resolution, whether through negotiation or by trial, is easiest with experienced attorneys by your side.  Experienced attorneys know the legal process for bringing a case to court and also know that satisfactory results are reached by being organized and prepared.  We know that being prepared starts be giving our clients realistic expectations and helping them understand the process they are going through.

Here are the steps in the litigation process.

Petition for Dissolution /Economic Restraining Order:  When a Petition for Dissolution is filed, the Clerk of the District Court issues a summons that automatically imposes an economic restraining order on either party transferring any interests in their marital property including changing beneficiaries on life and health insurance policies.  Parties may still conduct business in the ordinary course, but first they need the approval of the court, or the other party, before undertaking extraordinary expenditures, transferring property, or making other changes to their financial holdings.

Temporary Orders:  Upon the filing of the Petition, either party may request orders for interim parenting issues or temporary support for the family expenses to one another.  Parties may also request a temporary order of protection which governs the communication and contract between the parties.

Disclosure:  In Montana, both parties have a duty to disclose all of their assets, liabilities, income and expenses.  Failure to do so results in a presumption that the undisclosed asset is transferred to the other party or that the undisclosed liability is awarded to the party not disclosing it.

Discovery:  Discovery is the process to obtain evidence regarding the facts of the case. Discovery is different in each case, and an experienced attorney can help tailor this process to make it as effective and efficient as possible. During discovery, each party provides information requested by the other party; typically documents such as financial records, credit card statements, income tax returns, bank statements, employments records, and life insurance policies. Some of this information might be subpoenaed, the witnesses may include, employers, doctors, counselors, neighbors, and family members. The parties also have to disclose the names of fact and expert witnesses who may testify at trial. Each party may take the deposition of the other party and witnesses.

Honest disclosure of all assets and liabilities is essential for obtaining a fair and equitable division of all of the property.  Unfortunately, some parties are not forth coming and honest.  We have experience dealing with issues related to fully disclosing assets and liabilities.

Settlement Conferences:  Settlement can occur at any point in the litigation process. In Montana, most courts require the parties to attend a settlement conference before the court will set the case for trial. However, this process does not require the parties to negotiate face-to-face with one another. Having the assistance of an experienced attorney during a settlement conference can help you to ensure that you get the best possible negotiated agreement, and that you consider issues like the tax consequences or a property distribution or maintenance award.

Final Preparation for Trial:  About a month before trial, both parties submit pre-trial documents to the court which set out how they propose that the various issues such as property division, parenting, and child support should be resolved by the court.  The complexities of the issues usually determine how much time will be devoted to trial preparation.  Generally more time is spent in trial preparation than in the actual trial.  Trial preparation includes talking with witnesses, preparing exhibits, and drafting direct and cross examination questions as well as anticipating and preparing to meet the tactics and strategy of the opposing side.

Trial:  At trial, each party presents evidence on the contested issues.  Determination of the separate property of a party, division of the property and liabilities, and determine the validity and meaning of premarital and post-marital agreements are some of the most common contested issues in a divorce case.  If minor children are involved, the contested issues may include the rights and duties of each parent, who the child or children will reside with, the parenting schedule, whether child support will be paid and the amount of the child support.

At trial, each party testifies under oath about facts that are relevant to the contested issues.  Each party may also call witnesses to testify.  Typically documents relevant to one or more of the issues are offered into evidence.

Post-trial:  At the conclusion of the trial, the court will generally allow the parties to supplement their trial documents to conform to the evidence presented. The court then issues a final decree.

Appeal:  If either party believes a mistake of law has been made in the Final Decree, in Montana, a party has the right to appeal the District Court’s decision directly to the Montana Supreme Court within 30 days after a Final Decree is entered by the Court.

 

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parenting plans in Montana

Child “Custody” and “Parenting Plans” in Montana

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In 1998, Montana changed its laws which govern parenting between separated or divorced parents.  As part of those changes, the State did away with the term “custody” from our laws, and instead requires parents, and the Courts, to address three subject matters within a “parenting plan.” All three subject matters must be addressed in a parenting plan. The three subject matters are:

  • The residential schedule
  • Decision making
  • Child support and medical support

Residential Schedule:

A residential schedule can be as specific as “the child will reside with Mom beginning at 5:00 p.m. on the first Friday of the month, for a period of four (4) consecutive days, and ending at 5:00 p.m. on the following Tuesday.  The child will again reside with Mom beginning at 5:00 p.m. on the third Friday of the month, for a period of seven (7) consecutive days, and ending at 5:00 p.m. on the following Friday.  The child will reside with Dad at all other times.” Or, the schedule can be as generic as “the parties agree that the minor child will reside primarily with mom, and spend time with Dad as the child’s schedule permits and the parties are able to agree.”  The possibilities for a residential schedule are endless, and so there is much flexibility and discretion within the Courts and Montana Law to come up with a schedule which best meets the needs of each child and family.

Our office, and our parenting consultant, can help you to determine what schedule works best for your child and your family.

Decision Making:

Similar to the residential schedule, decision making can be as specific, or as generic, as the parties, or Court, deem appropriate.  In most cases, each parent will be authorized to make day-to-day decisions for the child while the child resides with that parent.  This means that the parent the child is residing with decides things like what the child eats, what TV show to watch, and what time to go to bed.  Most large decisions, such as getting a driver’s license, getting married before reaching the age of 18, or getting a tattoo before reaching the age of 18, require the joint consent of the parents.  Other decisions, from choosing a medical provider to setting routine appointments to agreeing on a course of treatment such as orthodontics, are usually determined with more particularity based on the circumstances of the parties and their child.

Child Support:

In Montana, child support is required to be calculated pursuant to the Montana Child Support Guidelines, which provide a formula for determining child support. After child support is calculated, the parties can agree to vary from the guidelines amount, or the court can order a variance, if such a variance is in the best interests of the child.  However, the child support calculations must be completed in all parenting cases. The calculations are somewhat complex; our office can assist you in determining the correct amount of child support under the Montana Child Support Guidelines, and in deciding if a variance is appropriate for your family.

Parenting Plan:

A complete parenting plan sets out each party’s rights and responsibilities toward their child.  When carefully drafted and tailored to the needs of a family, it can help avoid disputes and conflict between the parents, provide a sense of security and stability to a child, and allow the child’s school, doctors, and other caregivers to know who can give consent or make decisions relating to the child.

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