Family Law Topics for Older Iowans - Iowa Legal Aid...Continuous cohabitation O 3. Publicly act like...
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1 Family Law Topics for Older Iowans Angela Broughton-Romain Managing Attorney Hotline for Older Iowans 1-800-992-8161 TOPICS O Grandparent Rights O Raising Grandchildren O Common Law Marriage O Medicaid Divorce O Second Families O Name Changes
Transcript of Family Law Topics for Older Iowans - Iowa Legal Aid...Continuous cohabitation O 3. Publicly act like...
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Family Law Topics for Older Iowans
Angela Broughton-Romain
Managing Attorney
Hotline for Older Iowans
1-800-992-8161
TOPICS
O Grandparent Rights
O Raising Grandchildren
O Common Law Marriage
O Medicaid Divorce
O Second Families
O Name Changes
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GRANDPARENT RIGHTS
O Iowa Code 600C.1
O Extremely Limited
O Grandparent’s child (the grandchild’s
parent) must be deceased and grandparent
must prove three factors by clear and
convincing evidence.
Petitioner/Grandparent Must Show by Clear and Convincing Evidence:
O Visitation is in the best interest of the child.
O Grandparent has “substantial relationship”
with the child.
O The parent denying visitation is unfit to make
that decision.
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RAISING GRANDCHILDRENOptions for Decision-Making
O Minor Guardianship
-Voluntary or involuntary
-Governs physical
custody and visitation
-Terminated by court
-Not required for school
enrollment
-Involuntary: highly
adversarial
O Power of Attorney
-Parent must agree
-Does not affect custody
or visitation
-Can be revoked at any
time
-Grants authority for
medical, school, and
other decisions
COMMON LAW MARRIAGE
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Common Law MarriageElements
O 1. Agreement to be married
O 2. Continuous cohabitation
O 3. Publicly act like a married couple
Agreement to be Married
O Both spouses must want to be married.
O Both spouses must agree to be married.
O NOT the same as being engaged or agreeing
to be married in the future.
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Living Together Continuously
O Living together as spouses, which generally
means having a sexual relationship
O Must live together constantly for some
period of time, e.g., not just weekends
O No certain time requirement.
O MYTH: Living together 7 years creates a
common law marriage
Publicly Acting Like a Married Couple
O “Holding out” requirement
O Examples:
O Using same last name
O Wedding rings
O Saying “husband,” “wife,” “spouse,” “Mr. &
Mrs.”
O Joint bank accounts
O Joint ownership of real estate
O Joint tax returns
O Affidavit of Common Law Marriage
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Common Law Marriage Hazards
Common Law Marriage Hazard:
Legal UncertaintyCompare with
Statutory Marriage:
O Legal determination of common law marriage occurs in court.
O There is no “common law divorce.”
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Common Law Marriage Hazard: Estate Issues
The common law marriage must be proved in
probate court or the putative common law
spouse may be entitled to nothing, unless
there is a will naming the common law spouse
as an heir.
O Particularly difficult where there are children
from a different relationship.
O Must be a spouse to receive survivor’s
benefit under a pension.
Common Law Marriage Hazard: Public Benefits
O Common law spouse is entitled to Social
Security survivor’s/widow’s benefit.
O SSA reviews evidence and makes a
determination, applying state law.
O If a putative common law spouse receives a
survivor benefit but received Supplemental
Security Income (SSI) as a single person, a
large overpayment may result.
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Common Law MarriagePlanning Tools
O Powers of attorney. No guarantee common law spouse will be treated as next of kin for emergency medical decisions.
O Wills. Avoid the burden of proving a common law marriage in probate court.
O Joint ownership of property. Avoid probate altogether if only property is real estate.
O Payable on Death Beneficiary Designation. Name who receives money in your accounts.
O Final Disposition Act Designation. Who will decide your final arrangements?
Medicaid Divorce?
O Many people benefit from being married
under the Medicaid rules
- Spousal Resource Minimum: $24,720
- Minimum Monthly Maintenance Needs
Allowance: $3,090
- Spousal Resource Maximum: $123,600
- Couples with significant assets should see a
private Medicaid planning attorney
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Second Families & Legal Planning
O A marriage or divorce should trigger a review of
legal planning documents.
O Choosing an agent under powers of attorney
may pit second spouse against adult children.
O Final Disposition Act Designation issues
O Wills
Second Families & Legal Planning Strategies
O There are no “right answers.” As with all legal
planning decisions, it’s about what you want.
O Open communication is best. Discuss your
choices with adult children before there is a
family emergency.
O Make sure agents have copies of planning
documents.
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Name Change May be Required for ID
O In general, standards for government ID cards have become more strict since 2011.
O Iowa Department of Transportation requires proof of chain of names.
O Common scenario: name change may be required to “change” name to name used for years, but which was not a legal name.
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Name Change May Be Possible Without an Attorney
O Petition: Available at www.iowacourts.gov
O Birth Certificate or other form of identification
O Filing Fee $185
O Update all forms of ID, information with government agencies, deeds & titles
Upcoming Presentations:
O May 17: Medicaid Eligibility for Nursing
Home and In-Home Services
O June 7: Protecting Yourself from Elder Abuse
and Exploitation
O June 28: The Golden Years and Debt
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Thank you for coming!
