Fishman Law Firm has experience in handling family law, probate, estate planning, guardianships, and conservatorships.
FAMILY LAW
Family law includes a range of different matters, including divorce, child custody, child support, alimony, pre-martial agreements, termination of parental rights, and adoption. Fishman Law Firm can help you through these very personal matters.
How does a divorce or custody matter begin?
A divorce or custody matter begins with a spouse in a divorce, or a parent in a custody matter, filing a petition and original notice with the court. The court will then issue a family law requirements order. The filing party will then need to serve the other spouse/parent with the petition, original notice, and family law requirements order.
What does it mean to serve the other spouse/parent?
Serving the other spouse/parent means that you are providing them with notice of the filing of a divorce/custody matter. It is their “invitation” to join the legal proceedings. The Iowa Rules of Civil Procedure set out specific ways to serve the other party. The most common ways to serve the other party are (1) hiring a sheriff to personally serve the other party with the petition, original notice, and family law requirements order and filing the affidavit of service with the court or (2) having the other party sign an acceptance of service of receiving these documents and filing the acceptance of service with the court.
After a divorce or custody matter is filed and the other party is served, what are the immediate steps I should take?
If you are served with the petition, original notice, and family law requirements order, you will need to file an answer with the court within twenty days of being served.
Both parties will need to complete the requirements set out in the family law requirements order. The family law requirements order often sets deadlines for the following to be completed:
- The parties exchanging financial affidavits;
- The parties exchanging financial information;
- The parties exchanging child support guidelines (if applicable);
- The parties taking the Children in the Middle Class (if applicable) and filing the certificate of completion with the court;
- The parties attending a pretrial conference;
- The parties participating in mediation.
What happens at a pretrial conference?
At a pretrial conference, the court will ensure that you successfully fulfilled the family law requirements order. A failure to fulfill the requirements could result in a party being penalized or fined. The penalties may include, but are not limited to, a dismissal of the case, entry of default against the non-complying party which grants the other person their requested relief, an award of attorney fees against the non-complying party and to the other person, or a fine. In addition, the judge could limit the evidence the non-complying party can present at trial. For failure to complete Children in the Middle, the court could deny or restrict the non-complying parent’s parenting time.
What happens in mediation?
At mediation, the parties will attempt to come to a resolution on issues. The mediation can occur in person or over video conference. An attorney who does not represent either party will be present, and this attorney will try to help the parties come to an agreement on remaining issues.
What happens after a pretrial conference and mediation?
If mediation is utilized and is successful, a stipulation will be drafted and submitted to the court for the court’s approval. Additional documents may need to be prepared to effectuate the stipulation.
If mediation is not successful, a trial date will need to be set.
How long will a divorce or custody matter take?
The answer to this question depends on how fast the parties can come to an agreement. If the parties are in agreement, a divorce or custody matter can be resolved in a few days or a few weeks. After an agreement is reached, it is set out in a written stipulation, signed by both parties, and submitted to the court for its approval. If the court approves the stipulation, the divorce or custody matter is complete. It is important to note that Iowa Code imposes a ninety day waiting period that starts on the date service is complete before the court can enter an order approving the stipulation; under certain circumstances, this ninety day waiting period can be waived.
If the parties cannot come to an agreement, then mediation or a trial may be necessary. Mediation is typically completed within one hundred-twenty days after the non-filing party is served. A trial date depends on how many days are necessary for trial and the county where the petition was filed. Typically, a trial will be held within a year of when the petition was filed.
GUARDIANSHIPS AND CONSERVATORSHIPS
Guardianships and conservatorships are a form of substitute-decision making. A court can appoint a guardian to make non-financial decisions for someone who does not have the capacity to do so or for a minor. Similarly, the court can appoint a conservator to make financial decisions for someone incapable of managing their personal finances or a minor. Fishman Law Firm can help you determine if a guardianship or conservatorship is appropriate and help you through the legal process to have a guardian or conservator appointed.
What is a guardianship?
A guardianship is a form of substitute-decision making. A guardian for an individual is given powers and duties by the court to make certain, non-financial decisions for the individual.
What does the process to become a guardian involve?
In short, the process to appoint a guardian begins with the filing of a petition with the court. The petition asks that the proposed guardian be appointed for an adult with impaired decision making capacity or a minor. The adult with the alleged impaired decision making capacity is entitled to an attorney and the court will appoint an attorney for this adult. An attorney may be appointed for a minor. The court may appoint an attorney to act as a court visitor for guardianships; a court visitor makes a recommendation to the court on whether a guardianship is appropriate. A hearing is set on this petition, and the court will appoint a guardian if a petitioner presents the necessary evidence to show that a guardianship is appropriate.
What powers and duties can the court grant a guardian?
Generally, speaking, the court can grant a guardian (1) powers and duties that may be exercised without further court approval and (2) powers which may only be exercised upon court approval. The powers and duties that fall under these categories are delineated under Iowa Code section 633.635 for adults and under Iowa Code section 232D.401 for minors. It is important to note that the court may tailor the powers of the guardian so that the guardian only has limited powers.
Can someone be both a guardian and conservator for a person?
Yes, some can be both a guardian and conservator for a person.
What is a conservatorship?
A conservatorship is a form of substitute-decision making. A conservator for an individual is given powers and duties by the court to make certain financial decisions for the individual.
What does the process to become a conservator involve?
The process to become a conservator begins with the filing of a petition with the court. The petition asks that the proposed conservator be appointed for (1) an adult with a lack of capacity to handle financial affairs or (2) a minor. The person allegedly in need of a conservatorship is entitled to an attorney and the court will appoint an attorney for this person. The court may also appoint an attorney to act as a court visitor for conservatorships; a court visitor makes a recommendation to the court on whether a conservatorship is appropriate. A hearing is set on this petition, and the court will appoint a conservator if the petitioner presents the necessary evidence to show that a conservatorship is appropriate.
What evidence must a petitioner present at a hearing before the court will appoint a conservator for an adult?
In order for the court to appoint a conservator for an adult, a petitioner must show by clear and convincing evidence that: (1) the decision-making capacity of the adult is so impaired that the adult is unable to make, communicate, or carry out important decisions concerning the adult’s financial affairs and (2) the appointment of a conservator is in the best interest of the adult. Based on the evidence presented at the hearing, the court will determine if a conservator should be appointed and what powers and duties the court will grant the conservator.
What evidence must a petitioner present at a hearing before the court will appoint a conservator for a minor?
In order for the court to appoint a conservator for a minor, a petitioner must show by a preponderance of the evidence that any of the following is true: (1) the minor has funds or other property requiring management or protection that otherwise cannot be provided, (2) the minor has or may have financial affairs that may be put at unreasonable risk or hindered because of the minor’s age, and (3) a conservator is needed to obtain or provide funds or other property. The conservatorship must also be in the best interest of the minor. Based on the evidence presented at the hearing, the court will determine if a conservator should be appointed and what powers and duties the court will grant the conservator.
What powers and duties can the court grant a conservator?
A conservator powers may include collecting income, paying bills, and protecting assets of the protected person. A conservator may need to get court approval before exercising certain powers. These powers are listed under Iowa Code section 633.642. It is important to note that the court may tailor the powers of the conservator so that the conservator only has limited powers.
Probate
Probate is the legal process that is followed to distribute property to the owner’s heirs after the owner’s death. The process could be as simple as drafting an affidavit or could involve probating a will or administrating a trust. Fishman Law Firm can help you navigate the choices you will need to make.
Do I need to open an estate?
After someone dies, an estate may or may not be necessary. An estate does not need to be opened if an individual dies with no property or if all of the decedent’s property can be transferred without an estate being opened. Property can be transferred without an estate being opened if it is (1) titled jointly with rights of survivorship, (2) if the property is placed in a trust, or (3) if a beneficiary, payable on death, or transfer on death is set.
Can I avoid opening an estate?
Even if the decedent owned property at the time of his death that would require an estate to be opened, an estate can potentially be avoided. If the decedent’s property was worth fifty thousand dollars or less and the decedent died owning no real property, the property can potentially be distributed with a properly drafted and executed affidavit for distribution of property.
How do I open an estate?
To open an estate, an appropriate person needs to file a petition to open an estate with the county district court. Along with a petition, a court officer oath, designation of attorney, and potentially other documents will need to be filed with the court. If all the proper documents are submitted, the court will enter an order opening the estate.
I was named the personal representative, what should I do first?
The first steps you should take are (1) opening an estate bank account; (2) gathering information on all of the decedent’s assets and debts; and (3) protecting the decedent’s assets.
To open an estate bank account, you will need to provide three documents to the bank: (1) order opening the estate, (2) letters of appointment, and (3) electronic identification number (EIN). An order opening the estate is issued by the court after the appropriate documents necessary to start an estate are filed. The letters of appointment are issued by the clerk after an estate is opened. The letters of appointment are the personal representative’s identification card to show that the personal representative has authority to act on behalf of the estate. After the order opening the estate and letters of authority are issued, the personal representative can apply with the Internal Revenue Service to get an EIN for the estate. The estate bank account should be used as a collection point for the decedent’s money. If the decedent had other bank accounts, the money from these accounts should be moved into the estate bank account. If the decedent receives checks after his/her death, the checks should be deposited in the bank account. If the estate incurred expenses after the decedent’s death, the expenses should be paid from this bank account.
The personal representative must collect all the assets and debts of the decedent. The best way to collect this information is to collect the decedent’s mail. It is often useful to have the mail forwarded to the personal representative’s address. Additionally, the decedent’s records from his/her banks, insurance companies, credit card companies, and other institutions’ bank records can provide additional information regarding the decedent’s assets and debts. These institutions should provide you with the decedent’s records if you present them with the order opening the estate and letters of appointment. When communicating with the bank, you should determine if the decedent had a safe deposit box.
The personal representative also needs to ensure that the assets of the estate are protected. This often involves calling the insurance companies that provide insurance for the decedent’s assets to notify them about the decedent’s death and ensuring that the assets are still covered by insurance. You should make sure that the utility bills for the house are being paid out of the estate bank account and that the house is not becoming a nuisance. You should also ensure that no one is driving a vehicle title in the decedent’s name.
ESTATE PLANNING
Estate planning is the preparation of documents that direct how your property is distributed after your death and how your affairs are handled if you become incapacitated or incompetent. These documents often include a will, trust, health care power of attorney, financial power of attorney, and living will. Fishman Law Firm can draft these documents, so your intentions are carried out after your death, incapacity, or incompetency.
What is a will?
A will is a document that describes how your property is divided after your death. If this document is properly drafted and executed, the plan in the will is followed to distribute your probate property.
Does my will control how all my property is distributed after I die?
Some property might not be governed by your will after you die. One example of property that might not be distributed according to your will is an account with a beneficiary designation, such as a 401k. The beneficiary designation and not the will governs how the money in the account is distributed after you die. Other examples of property that might not be distributed according to your will include property owned jointly with rights of survivorship and property with transfer on death or payable on death designations.
What is a healthcare power of attorney?
A healthcare power of attorney is a document where you can name an agent to make healthcare decisions for you if you are unable to make these health care decisions yourself.
What is a financial power of attorney?
A financial power of attorney is a document where you can name an agent to make financial decisions for you. You can make the agent’s ability to make financial decisions for you effective immediately so your agent can make financial decisions for you as soon as the financial power of attorney is executed or only effective if a certain contingency exists, such as your incapacity.
How often should I revisit my estate planning documents?
You should revisit your estate planning documents after every major life event. Some major life events are: (1) a distributee under your will dies, (2) you or a distributee under your will have a new child or grandchild, (3) you or a distrbutees under your will gets married, divorced, or separated, (4) you move to a different state, (5) you or a distributee under your will obtains a significant amount of new property or debt, or (6) you lose an original of one of the estate documents.