Pets and Divorce

The New York Times published an interesting article about the fate of pets in divorce proceedings, Following Alaska's recent enactment of a statute guiding the custody of pets in divorce, Rhode Island now has pending legislation requiring the court to  “consider the best interest of the animal” in a divorce or separation. See: https://nyti.ms/2nGCQm7

Alaska requires the well being of the pet to be considered in divorce

Washington Post reports that Alaska has become the first state to require courts to take into consideration the well being of the animal in divorce.  Judges now have the power to award joint custody.  This is truly ground breaking because all other states treat animals in the same way furniture is treated, and pets are simply part of the property distribution.  We hope more states follow suit. 

Estate Planning for Pets

Do not forget your pets in your estate plan.  http://www.newsobserver.com/living/pets/article38821797.html

Avoiding Tax Scams

We're just a month away from the tax filing deadline of April 15, and many people are busy preparing for tax season -- including some people who want to cheat you out of your money! Unfortunately, these scammers may target immigrants, thinking that they will be less likely to know their rights.

In general, you should be very skeptical of anyone who calls you on the phone, pretending to be from the IRS. The IRS will always send you a notice first. Also, don't believe anyone who threatens to have you arrested if you don't pay.

If you get a phone call from someone who says they're from the IRS, don't give them any personal information, or any bank account or credit/debit card information, or any information at all. Do not pay them through any means, including wire transfer. Just hang up and call one of these numbers:

• If you think you might owe back taxes, call the IRS at 1-800-829-1040.
• If you're sure you don't owe any taxes, report the incident to the Treasury Inspector General for Tax Administration, at 1-800-366-4484, or online at www.tigta.gov .

For more information, read this article or check out the IRS's website on Tax Scams.

Interesting Overview of Avoiding Probate Disputes

Blood Feuds provides an interesting review of sibling rivalry and estate plans. There are some suggestions for avoiding potential litigation by being open and clear with sons and daughters about choices.  According to the author, much of this litigation occurs when the children are in their 50s and 60s.  In our experience, there is little correlation between the amount being divided and the willingness to engage in expensive legal battles against relatives after a parent has died.

Pre-Nups Should Include Pets

The Boston Globe reports that disagreements over pet custody are on the rise. Approximately 27% of divorce lawyers surveyed have seen an increase in pet custody fights over the last five years.   Because the law considers pets property, in the event of a divorce, courts do not consider what is in the best interest of the pet.  It just does not matter who spent more time with the pet or who took more responsibility.  Some courts require the litigants to negotiate a resolution, making the animals easy fodder for emotional manipulation. To avoid this heartache, you can create a prenuptial agreement to cover your four legged family members.  This terms of the document will be enforced in the event of a divorce.   One person quoted in the article stated  “If somebody wasn’t willing to sign one, they’re probably not the best person for me.” 

Siblings With Dueling Deeds

Could your family situation be any worse?  Imagine the Thanksgiving dinners.  Take the situation of these six siblings.  In July 2001, Harold secures a deed signed by his mother Ethel giving him the family home.  He records the deed.  In November 2001, Ethel signs another deed transferring the family home to a trust, with daughter Deborah and herself as the co-trustees.  Ethel reserves a life estate for herself.  That deed and trust are recorded a few months later.  In the many estate plans created by Ethel, sons Harold and Lawrence were always excluded because they were provided for through a prior gift of the family oil business.  The other four children were to inherit the remaining estate.  Ethel's last will is in 2008, and she continues to exclude Harold and Lawrence specifically because of the lifetime gift of the business.  Ethel dies in December 2009, and shortly thereafter, Deborah learns of Harold's claim to the family home.  Her lawsuit is filed in January 2010.

Today, in Allen v. Allen, 13-P-605, the Appeals Court in Massachusetts affirmed the Land Court Judge's determination that the first deed was defective, and title to the property is held in the name of the trust. The case was one of first impression and dissects the recording statute, G.L.c. 183, Section 4.  Key to the findings was the fact that the attorney and notary of the first deed could not remember Ethel being before him to sign the deed, and after evidence indicated that Ethel may not have been in the state at the time it was signed, he agreed that the date and place on the notary acknowledgment might not be accurate.  In a 23 page decision, the court determined that even though a notary acknowledgement is not required for a deed to be valid, it is required to record the deed.  Because of the defect in the certificate of acknowledgement, the recording was in error and the deed did not provide constructive notice to the world of its existence.  Harold was unable to prove that Deborah had actual knowledge of the transfer, and the court refused to impute knowledge.  The subsequent deed was held to be valid.

There are many take-aways for lawyers from this case.  A simple online title search at the time of recording the November deed would have alerted her children to the July deed while Ethel was still alive.  The take away for clients: parents beware - you run the risk of estate disputes when children are treated differently.  Any hoped for harmony is nearly impossible without thoughtful discussion about succession and transparency while you are alive.