Planning for the Future / Dealing with the Past
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Planning for the Future / Dealing with the Past

What does "No Extraordinary Measures" Mean to You? Talking about End of Life

by Betty Burley on 04/16/18

No Extraordinary Measures

I’m not sure where the phrase “NO EXTRAORDINARY MEASURES” originated, but I wish that it would go away because it doesn't really tell us anything.  Talking about death is difficult under any circumstances.  It’s even harder (at least to me) when one is staring the death of a beloved person in the face. 

It was in the news media yesterday that former First Lady Barbara Bush has decided to stop treatment for the serious health problems that she faces.  I have long admired Mrs. Bush.  I am sad that she is at the end of her long and inspiring life.  I am grateful that she chose to share this news, because it opens a door to an important topic:  "Do your loved ones know your wishes if you are unable to speak for yourself?"

There are a many important documents in my “lawyer tool chest.”  The Advance Directive (Ohio Living Will) and Health Care Power of Attorney are among the “top 4” that I believe that every person should have. 

The “Living Will” doesn’t talk about who gets your money and who is to receive Great Grandma’s tea set – it is a document that you can use to tell your family and your health care providers about what you would choose for yourself so that nobody has to guess – or fight – if you are unable to communicate your own wishes.  The Health Care Power of Attorney appoints a trusted friend or family member to make those decisions for you if you cannot make them yourself.  The two documents go hand in hand. 

When I write a Last Will and Testament (the document that does advise where Great Grandma’s tea set is to go), I talk with my clients about the importance of the “other kind of will.” 

In order to fill out an Ohio Living Will properly, you need to think about potentially painful topics.  You need to put yourself into an imaginary sick bed and think about what you believe would be important to you when death is near. 

The Hospice of the Western Reserve has put together a wonderful publication that includes a list of questions that can help you to decide what instructions to leave for your medical team and the person who you name in your Health Care Power of Attorney. (Note – the actual forms included in this publication are not the newest forms – you should use the updated forms which can be provided by your attorney. )

These questions ask about what things are important to you, such as whether it is more important to be pain free or more important to be able to communicate, and whether life in a wheelchair would be an acceptable outcome. 

I encourage anyone who reads this post to print out the publication and thoughtfully answer the questions on the pages that are headed “Preparing for the Conversation.”  Once you have answered the questions, schedule a time to have the difficult conversation with your health care agent.

If you have been appointed to speak for someone else in their Healthcare Power of Attorney and you can’t answer those questions about your loved one, it’s important that you try to have a conversation that will allow you to answer those questions.

I had those conversations with my parents when each of them received their initial cancer diagnosis.  I learned that “no extraordinary measures” means different things to different people.  For my dad, it meant that he didn’t want to be kept alive on life support, but he wanted any treatment option, no matter how small the chance of recovery.  Knowing that, I made the decision to remove a respirator from him twice  .  Mom’s death is much more recent and harder to talk about.  I’ll just say that in the end, I honored her wishes, and I was so grateful to know what they were.

The Hospice of the Western Reserve publication can be found here:  http://www.hospicewr.org/news-and-media/Documents/B44-25_CourageInConversation_Web.pdf#search=directive

Again, this publication contains outdated forms for the Ohio Living Will and Healthcare Power of Attorney.  As of this writing, the newest form was updated in August 2016.

Attorney Betty Burley studied end of life issues as an undergraduate in Psychology at Cleveland State University and again as a law student.  Attorney Burley is available to speak to your senior citizen group or service club about the importance of these documents and the conversation that goes with them.

To schedule a time to have these documents drawn up for yourself, call 440-967-1529 to schedule an appointment at a time that is convenient for you.  Online scheduling is available at www.burleylaw.com

Whose property is it anyway?

by Betty Burley on 04/15/18

In cases where there are no children still living at home,  division of assets can be one of the most emotionally-charged topics in approaching a divorce.  Sometimes both spouses have a strong attachment to an assets – such as a beach house where they spent many happy summers, or a retirement savings account that one partner contributed to over many years while the other partner spent money in a “frivolous” manner. 

Sometimes a potential client believes the asset rightly belongs to him or her because of the name on the deed, title or account.  The law doesn't see it that way.

Ohio is an “equitable distribution” state, which in a nutshell means that we divide assets (and debts) equally unless it would be fair and equitable to do otherwise.  That doesn’t mean that the frugal spouse keeps the 401(k) because it’s “fair!”  What it might mean is that one spouse settles for less than exactly half because he is taking on more of the debt, or the person keeping all of the equity in the home will not be receiving spousal support. 

REAL ESTATE – Where one spouse is keeping a piece of real estate such as home, he or she typically take on the liability for the mortgage on that property.  If both partners are liable on the mortgage, the person keeping the property will likely need to refinance to remove the other person’s name from the debt.  If there is equity in the home (it is worth more than the mortgage balance) then the person walking away is typically entitled to a fair share of the equity.  This may require the parties to pay for a real estate appraisal.  The name or names that are currently on the deed have little meaning unless one of the partners owned the property when the two married.  Where that is the case, there may be a separate property claim that would entitled the spouse who owned the property to more or even all of the equity in that property.

RETIREMENT ACCOUNTS AND PENSION – Although the law is clear that the funds accumulated during the marriage and the earnings on that portion of the funds are marital property to be divided, this is often a difficult part of the case.  The spouse who worked 20, 30 or 40 years sees his sweat in that account.   The spouse who didn’t earn the money sees the groceries they couldn’t buy or the vacation they didn’t take because the money wasn’t in the paycheck.  The Court sees that both partners made sacrifices in order for that money to accumulate.  The marital portion will need to be divided, or some other asset exchanged so that both partners receive a portion of the equity in the retirement accounts.

PERSONAL PROPERTY – Although the couple may have spent many thousands of dollars furnishing a home, typically the value of regular household goods and furnishings isn’t very high.  Most couples are able to tackle this obstacle without court intervention once they realize that by the time they pay two lawyers for 2 hours each to fight over a dining room table, they could buy a brand new set. In cases where the parties cannot or will not divide the property themselves, some courts have elaborate procedures where both parties must make complete lists of the assets and the value they think belongs on each item and they are then given the opportunity to “purchase” the item at the higher of the two values out of marital equity. Other couples result to coin tosses.  Most judges do not have time to spend on “dividing the silverware.”

In summary, if you purchased it during your marriage with money that one or both of you earned, you both are entitled to an equal share.  If one of you had it before marriage, received it as a gift during the marriage or inherited it during the marriage, then it may be separate property, which we will talk about in a future blog.

The information in this blog is presented only for educational and entertainment purposes.  It is not intended as legal advice.  No attorney-client relationship is intended or established if you choose to use this information on your own.  I am not your lawyer unless we both sign an agreement stating that I am.

Thanks for reading!

Attorney Betty Burley

How much is a divorce?

by Betty Burley on 08/02/17

If you have ever been in need of legal services, you may have learned first-hand that it's difficult to get a straight answer about costs.  There's a good reason for that.  


As an attorney, the only thing I have to sell is time.  I don't have any widgets or gizmos to sell.  I can't advertise a "loss leader" and recapture the loss by selling you something else.

I typically offer potential divorce or dissolution clients a free consultation. One of the purposes of that consultation is to find out enough details about your case to give you an idea how much it could cost.

If your case is uncontested - meaning that you and your divorcing spouse have already made the difficult decisions regarding how the assets and debts will be divided, whether or not someone will pay spousal support and how the child issues including custody, support and parenting time will be handled, then I can generally give you a "firm" idea how much that will cost because I have a very good idea how much time it will take.

If you and your estranged spouse are not in agreement, then we can talk about possible outcomes and where it makes sense to settle and where it makes sense to fight.  Wherever there is disagreement, the price is uncertain.  I can't predict how many trips to court it will take and whether there will be a one-day trial at the end or a three-day trial.  

An approach I often offer is to begin the case as if it will be uncontested.  I will offer guidance about what is "fair" under Ohio law and draft documents to be presented to your estranged spouse.  If he or she will not sign them, it offers an opportunity to discuss what could be changed to make things fair.  We don't charge an additional fee for minor revisions to flat-fee documents.

If negotiation fails, then we need to enter a fee agreement for a contested divorce.  Your flat-fee will be applied to a retainer for a contested divorce and your billing will change to an hourly fee for time spent on your case.

While we don't generally quote fees for divorce over the phone, we certainly will discuss fees at your consultation.  We want to be your family lawyer, and we hope that you will want that too.

What are parental rights? How do I get them?

by Betty Burley on 08/01/17

This post is intended for parents who weren't married when baby was born.  In Ohio, an unmarried woman who gives birth to a child is automatically, "by operation of law," the child's sole legal custodian until a court of competent jurisdiction declares otherwise.  In a nutshell, that means that an unmarried mother has sole physical and legal custody of the child the moment the child is born until a court says otherwise.


What does that mean exactly?
* Mother doesn't need Father's permission to leave town, the state or even the country.
* Mother has the right to deny visitation entirely or to decide the terms of visitation for Father or anyone else.
* Mother decides on medical care, religious upbringing and educational issues.
* Father has the "right" (and the responsibility) to support the child financially even if Mother doesn't allow him to see the child.

"Wow!" you say, "That's not fair."  You're right.  It's not fair, but it's the law.

Fathers - what does this law mean for you?
* You must take legal action to protect your parental rights and to establish the parent/child relationship if you want to be a part of your child's life and Mother isn't cooperating.
* Even if Mother is currently cooperating, you should take action to ensure that you can continue to see your child without interruption if Mother should change her mind.
* Establishment of a child support order does not give you rights to see your child.

Some of the saddest cases that I have handled involved parents who were not married but who lived together for a long time.  Something happened to damage the relationship and the couple separated.  Suddenly, Father had no right to see his own children.  The court eventually stepped in with an order for Father to have time with the children, but it was several weeks until that could happen.  

Establishing a parenting time order can be a stressful and expensive process if all communication between the parents has broken down.  Sometimes the parents can use the services of a mediator to decide, together, what is best for their child(ren).  If the parents are in agreement, it is a process that is relatively quick to submit an agreement that the court will approve.  

Sometimes a mother is fearful of allowing the child's father have visitation because she's afraid that he won't bring the child back.  Understanding how Ohio law works in relation to unmarried parents can help with that uncertainty until a court order can be established.

Ohio courts have "standard" visitation orders that are commonly the default parenting plan.  It's important for parents to understand that it is okay to allow the other parent to have time with the child outside of the times in the court order.  Unless you are part of a children services case, the court will not put restrictions on when either parent can see the child(ren) with the other parents approval.

To summarize all of this:  
Unmarried mothers have sole custody at the time of the child's birth.
Unmarried fathers must petition the court for rights (other than the "right" to support the child.
Courts encourage parents to work together for the children's best interests.

Child custody is a complicated field of law.  This article is intended for educational purposes only.  It is a very broad, general discussion that is not intended to be relied upon as legal advice.  If you or someone that you love is in this situation, you should seek the advice of an attorney.  While I would be happy to be the attorney that you consult, no attorney/client relationship exists until we have agreed in writing on fees and the required deposit has been paid.


HELP! I’M BEING SUED FOR A DEBT. WHAT CAN I DO?

by Betty Burley on 07/12/17

Many initial contacts with our office begin with a panicked call from a consumer who has received a Summons and Complaint in the mail from the local Municipal Court.

Typically the Complaint will arrive via certified mail.  If you do not sign for the certified mail, the documents will be returned to the court who issued them and then may be re-mailed to you using first class mail.  If the documents are not returned to the post office stating that you, the Defendant, are not at this address, then service on the documents will be considered complete and the lawsuit against you will proceed.

The first step is to ascertain if you actually owe the debt, or if there are defenses for any or all of the debt.  The creditor listed may be someone that you have never heard of.  This happens when a credit card company or other creditor sells the delinquent account to another company.  When this happens, the Complaint will list the name of the original creditor.  There typically should be some kind of a document, such as a credit card agreement or a monthly statement attached to the Complaint as well. 

Once you have determined whether or not the debt that you are being sued upon is legitimate, you need to decide how you will approach the lawsuit.

My office typically advises people to take one of three approaches:

1)      Answer the lawsuit and attempt to fight it on legal grounds;

2)      Answer the lawsuit and attempt to negotiate a settlement for less than the amount demanded; or

3)      File for bankruptcy protection and avoid paying the debt.

You will notice that “do nothing” is not on the list.  If you fail to answer the lawsuit at all, the Court may enter a Default Judgment against you for the full amount of the debt plus interest.  Even if you are unemployed and currently unable to pay the debt, your situation may improve, in which case having a judgment against you already may enable the creditor to garnish your wages until the original debt plus interest and some collection fees are paid in full.

If you plan to fight or negotiate settlement on the lawsuit, you will need to file an Answer before the default date (typically 28 days after you were actually served with the Complaint).  You will use the same heading as on the Complain, listing the name of the court, case number, judge’s name, and the names of the parties.  You will answer each numbered paragraph with “Admit”, “Deny” or “Deny for lack of knowledge.”  Answering a Complaint without assistance of a lawyer can be perilous, as your answer can be used against you if you admit all allegations, yet you are expected to answer truthfully. 

The Court will set your case for a pre-trial hearing.  If you are able to make an offer in settlement of the account, you can communicate this to the creditor’s attorney before the pre-trial hearing, or you may wait until the pre-trial hearing to present the offer.  Many larger collection law firms will hire a local attorney with little knowledge of the case to appear at the pre-trial.  For this reason, our office finds it is generally better to attempt settlement prior to the hearing because we can deal with the lawyer handling the case instead of a substitute.

If you owe other creditors, or if you are simply not able to make an adequate settlement offer, you may consider filing for bankruptcy protection.  The lawsuit cannot proceed while a bankruptcy case is pending, and filing for Chapter 7 or Chapter 13 may discharge your liability on the debt entirely, or allow you to pay back a lower amount over time.

Whether to fight, settle, or file for bankruptcy protection is up to you.

 "We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code."