N A E L A - National Academy of Elder Law Attorneys

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NAELA Members in the News (continued from page 31) Shirley B. Whitenack, Esq., was quoted in "N.J. Judge May Write a Final Chapter in Texas Legal Saga," which was published in the March 4, 2006 issue of the San Antonio News Press. Jim Zeigler, Esq., was quoted in "Alabama Lawyer Takes on Deficit Reduction Act," which was published in the March 21, 2006 issue of AuntMinnie.com. Jim Zeigler, Esq., was quoted in "The Broken Branch: An Unusual Lawsuit Takes Congress to Task for Shoddy and Partisan Lawmaking in Which a Bill is Unconstitutionally Being Treated as Law," which was published in the March 10, 2006 issue of FindLaw. Jim Zeigler, Esq., was quoted in "Botched Bill Plaintiff No Stranger to Controversy," which was published in the March 20, 2006 issue of Roll Call. Jim Zeigler, Esq., was quoted in "Bill Flap Could Lift Lincare," which was published in the February 2, 2006 issue of the TheStreet.com. Jim Zeigler, Esq., was quoted in "House GOP Won't Revisit Flawed Budget Bill," which was published in the February 15, 2006 issue of the Associated Press. Stuart D. Zimring, Esq., Bernard A. Krooks, CELA, Alice Reiter Feld, CELA, and Harry S. Margolis, CELA, were quoted in "Medicaid Changes to Turn Estate Planning on Its Head," which was published in the February 19, 2006 issue of the Daily Record (St. Louis, MO). Divorce Elder Law Style Richard F. Meyer, Esq. When I began practicing, I litigated both probate and domestic matters. There are similarities: you value assets, identify tax issues and debts, and determine offsets against assets to arrive at a net to divide between the parties. When interviewing an Elder Law client, be cautious when discussing divorce, but clearly, it is the ultimate spousal resource assessment. Once the non-domestic options are reviewed and the client decides to pursue divorce, you have four major considerations assuming you know you cannot represent both parties. These a d v e r t i s e m e n t considerations warrant their own in-depth review, but this article will address the basic elements and pitfalls of each. Consideration No. 1: Is the institutionalized spouse competent? If competency is an issue, you will need to decide whether to use a Domestic or Probate guardian, depending on what is available in your state. If you use a Domestic guardian, the Civil rules allow for appointment, which is usually a domestic attorney. This leads to more severe domestic litigationstyle scrutiny. Hopefully, you can resolve the case with an agreed entry if you supply sufficient evidence to support its terms. If you use a Probate Guardian, the Probate Court and the domestic litigator require satisfaction. This added layer of review may hinder approval of an agreed entry. A significant deviation from normal division of assets will require, at minimum, more persuasion; or to foreclose Probate Court objections, a Domestic Court finding based upon stipulations. Consideration No. 2: A first or second marriage? In a long-term marriage, all the assets are equally divided unless you provide the Court with a basis to deviate. (continued on page 33) 32
Divorce Elder Law Style (continued from page 32) Usually, the husband has high income and it follows him to the nursing home. In Ohio, the Medicaid office will not credit payments for child or spousal support. Use an economist to establish the amount of money needed by the community spouse to sustain herself; thereby, the court has a basis to find a need for deviation from the usual 50/50 split. Will your client get 100%? No, but in most circumstances, the award will exceed a CSRA. If your client is in a second marriage, you may have separate property with or without a prenuptial agreement; if so, skip to consideration number 4. Consideration No. 3: Use no-fault divorce, uncontested divorce or contested divorce? In many cases, you consider whether to use no-fault divorce, uncontested divorce (agreed grounds) or contested divorce (stipulated facts supporting grounds). Ohio is a no-fault and fault state. The parties can utilize a private judge to conduct a no-fault divorce (dissolution) hearing either in the nursing home or at your office. Grounds for divorce must fit your facts. For instance, voluntary separation that exceeds one year constitutes a ground. However, if someone is ill and has to leave the marital residence for medical treatment, this is not voluntary separation. The Ohio Medicaid office has challenged agreed divorce decrees. In a recent Ohio Medicaid application, the Supervisor chose to deny Medicaid due to an improper transfer via an agreed divorce decree. Upon appeal, Medicaid was approved. So how do we avoid a similar denial in the future? Stipulate the facts (i.e., facts for grounds, economist report), which provides the Court sufficient evidence to find for your client. Through preliminary hearings, you will be able to determine the Court’s position. In all likelihood, the Court will follow the arguments for grounds, deviation in marital assets or support Divorce Elder law style requires the practitioner to extract Elder law results from the domestic gristmill. Domestic judges practice domestic law so use domestic terms and rules to achieve the best economic result for your community spouse client. via findings of fact and conclusions of law later incorporated into a decree. 33 Consideration No. 4: Are you dealing with separate property? (i.e., Prenuptial or Inherited) In Separate property cases, the owner spouse is awarded separate property prior to the division of marital property. However, this may result in a spousal support order from the community spouse to the institutionalized spouse because the separate property generates significant income. If so, persuade the Court to use the institutionalized spouse’s life expectancy rather than the typical domestic rule (length of marriage divided by 2) for the spousal order, which should shorten the term. Then attack the monthly amount by distinguishing earned and unearned income, tax-exempt income and other types of income usually earned by seniors. If the institutionalized spouse owns separate property, a lump sum in lieu of support can be made. This is acceptable to the Ohio Medicaid office. Divorce Elder Law style requires the practitioner to extract Elder Law results from the domestic gristmill. Domestic judges practice domestic law so use domestic terms and rules to achieve the best economic result for your community spouse client. Richard F. Meyer, Esq., practices Elder Law in Columbus, OH.
Page 1 and 2: N A E L A NEWS National Academy of
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Page 5 and 6: Are You Ready for Your 2:30 Appoint
Page 7 and 8: President’s Message By Lawrence D
Page 9 and 10: Executive Director’s Message By S
Page 11 and 12: Tales of NAELA Saved by the NAELA A
Page 13 and 14: Address Medicaid’s Institutional
Page 15 and 16: Address Medicaid’s Institutional
Page 17 and 18: Vermont’s Long-Term Care Waiver G
Page 19 and 20: a d v e r t i s e m e n t
Page 21 and 22: Vermont’s Long- Term Care Waiver
Page 23 and 24: The Case Against Court Certificatio
Page 25 and 26: The Case Against Court Certificatio
Page 27 and 28: Chapter President’s Listing Arizo
Page 29 and 30: Introducing NAELA’s Newest Member
Page 31: NAELA Members in the News NAELA was
Page 35 and 36: MAY 2006 NATIONAL ELDER LAW MONTH S

N A E L A - National Academy of Elder Law Attorneys

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