About Divorce, Prenuptial Agreements, Wills and Trusts: Answers From Attorney David Treyster
The followers of the closed Facebook group Immigration asked questions of attorney David Treyster.
David deals with immigration, court cases, contracts, divorce, and real estate.
Attorney David Treyster opened his own practice, Hudson Law Group, in 2013, with offices in New York and New Jersey. David is originally from Chernivtsi, Ukraine. He came to the United States with his family at the age of nine and grew up in Brooklyn. He earned his law degree from New York Law School in 2003.
You can find David Treyster’s contact information in Rubic’s catalog of attorneys.
David met with Ekaterina Panova, founder of Rubic.us and answered the following questions from members of the Facebook Immigration group:
- What is the purpose of a prenup?
- How is property divided in cases of divorce?
- What is a trust, and can it help my family keep our money if I go bankrupt?
- How do I go about making a will?
- Is it possible to choose who gets custody of my children if I die before they reach adulthood?
About the Prenuptial Agreement
For many, a prenuptial agreement is not the most pleasant thing, and most are reluctant to sign one. Nevertheless, a prenup can be extremely helpful in certain situations. David advises each party to enlist the support of their own legal representative when signing the contract, as your partner’s lawyer may neglect to inform you of all your legal rights.
In a prenuptial agreement, you can set almost any conditions that both parties agree to, up to a weekly bouquet of flowers and visits to a restaurant three times a month. An important feature of a prenuptial agreement is that it must be signed a certain length of time before the wedding. A hasty prenup can be interpreted as pressure on a future spouse. But the agreement can be signed after a wedding, no matter how long you have been married.
Lawyers cannot charge a percentage of the amount paid in family cases. If you are told that part of the money earned in a divorce case should be paid to a lawyer, then run away. You are talking to a scammer
Under American law, every divorce is a legal case. If you and your ex have no complaints against each other, the litigation process will not last long. If there are complaints, then both of you should hire lawyers and protect your rights.
David does not advise hiring a lawyer with the intention of initiating lengthy litigation. Most lawyers, like judges, will do everything possible to help the two parties resolve their issues without a lengthy court battle. After a divorce, the spouse who earned less or did not work is entitled to alimony, independent of child support.
The alimony award is based on the difference in spousal salaries and the length of time the couple was married. If the spouse who earned less or did not work decides to move to another country, it will not affect their eligibility for alimony, or the amount awarded by the court.
If you do not work, you can ask the court to force your spouse to support you financially while the divorce process is ongoing. Moreover, the court has the right to oblige a wealthier spouse to pay the attorneys’ fees for both parties.
The parent who does not plan to live with the couple’s children is required to pay child support, which is calculated at about 17% of income for one child, and 25% for two children. However, the amount may vary by state.
The parents’ financial circumstances do not affect the court’s decision on guardianship. Guardianship is granted based on what the court deems to be the child’s best interest. If the parents cannot come to a consensus, the court may demand that a third lawyer is hired to represent the interests of the children. In most cases in the US, the mother is given custody of small children. The father is granted guardianship only in cases where the mother is deemed by the court to be completely unreliable. Older children and teenagers have a say in which parent they want to live with.
Permanent Green Card After a Divorce
Contrary to popular beliefs, you can get a permanent green card after a divorce if you already have a temporary one. Limitations will be removed without any problems if your marriage was genuine, and not a marriage of convenience. David says many attorneys offer to file a VAWA petition for victims of domestic violence in such cases. However, he does not advise doing so. According to David, VAWA is very difficult to obtain. You need to prove you were seriously injured, or in legal terms, a victim of “extreme cruelty,” and not merely “abuse” or “cruelty.” You will need to provide documented evidence, including letters from psychiatrists, doctors, witnesses and other documentation. If you are concerned about the green card limitation, divorce will not endanger your stay in the USA.
A will is an important and inexpensive document that can easily be drafted and signed, saving family members many legal problems after the death of a relative.
Question: What will happen to the children if both parents die?
It is best to address the issue of guardianship in your will. If you have not named a guardian for your children, they will be taken into custody by the state. When potential guardians emerge, the decision of whether to grant them custody is handled in the same way as in divorce cases, based on the best interests of the children. When you name a guardian in your will, your stated preference will be given primary consideration.
If you want your children to live with non-US relatives in another country after your death, you will need to outline the reasons for your decision in your will. You could write that the culture and religion of your native country are important to you, and that foreign relatives are best qualified to take care of your children.
Of course, if the children are American citizens, the court will prefer that they remain in the United States. But if you explain everything in the document, your desire will be considered first. Unlike your children, your spouse cannot be excluded from your will. Spouses always have the right to claim part of your property.
Question: How much does it cost to file a will?
Filing a will costs around $500-$600, provided there are no complications. If one spouse dies, the other receives all their property; if they both die, the children inherit their property. Filing may cost more if there are additional material assets, like trusts, jewelry, expensive paintings, or other items of value.
Remember: if you bequeath everything to your children, you will need to appoint a trustee to manage their money until they reach adulthood (21 years old).
Taxes need to be paid only if large amounts are bequeathed. Usually, the estate is taxed if its value exceeds $11 million. Eleven states have their own rules. For example, sums exceeding $5.5 million are being taxed in New York. Six states tax heirs directly (if the property does not go to close relatives), but only if the inherited sum exceeds $ 700,000.
Question: We live in the USA on a work visa. In case of an accident, we want our child to go to Belarus and our assets to be assigned to relatives. What documents should we file?
You need to file a will, and also specify what and to whom you want to assign your assets. List all your bank accounts and appoint beneficiaries. Explain in detail why you want to return your child to Belarus.
It is also advisable to file a power of attorney, so your relatives can access your accounts more quickly. Otherwise, they may have to spend months in court to prove they have a right to the accounts, and no one challenges the document.
Question: A green card holder has passed away. They had no relatives in the USA. Is it possible to issue a power of attorney to the father, to ensure he receives the son's property?
No, a power of attorney cannot be filed if a person has already passed away. This situation must be resolved in court. The father will need to submit all the necessary documents to prove that he is the closest heir. After a few months, the court will hold a hearing and grant permission to dispose of the son’s property.
A trust is an arrangement that allows a third party, or trustee, to hold assets on behalf of a beneficiary or beneficiaries. The trustee must adhere to the founders instructions for disbursement of funds, or manage and dispose of the property in a way that yields maximum profits for the beneficiaries.
Bear in mind that a trust is an individual legal entity. Among many other purposes, trusts are used to optimize tax advantages, and to protect property from creditors.
David says that there are many types of trusts in the case of death, including those set up to benefit spouses and children. The simplest and most common is a marital trust.
Suppose a man of forty lives with his wife and two children, and owns a house. When he dies, his wife automatically inherits the house (recall that spouses cannot be excluded from a will). If the wife later remarries, and her new spouse also has two children, when she dies her property will be inherited by the children from her first marriage and by her second husband and his children.
To prevent this, the first husband can create a trust with the stipulation that after his death, ownership of the house will pass to his children, while his wife is allowed to live in the house until she dies. In this way, the children of the deceased are protected from having to split their inheritance with the step-father and his children.
A trust for children can be created that provides them with your property upon reaching adulthood.
Question: Can parents who live and work in Russia create a trust for a minor US citizen?
Yes, but you need to appoint a trustee who will manage the money and pay your child the amount indicated in the trust. You can stipulate at what point the child receives the appointed sum (reaching a certain age, graduation from college, upon marriage, etc.).
Question: My husband named me as beneficiary of a trust, and his son as trustee. He sent this decision to his son and to me, but he did not file it with a lawyer. Is it valid? Who is first in line to inherit property that was acquired prior to marriage?
This situation is quite possible and legal. The husband issued a trust and named his son to manage and dispose of it. It is not obligatory to certify it with a lawyer. The son is obligated to pay dividends to his father's wife and other beneficiaries. The wife can claim property only if it is not included in the trust. If all the husband’s property is in the trust, she can only claim dividends.
About the Last Will and Medical Intervention
There are several documents you need to know about:
- Living will - this document details how you would like your medical care to be handled while you are still alive. In a living will, you can designate, for example, whether relatives should disconnect you from life support if you are no longer able to communicate your wishes. A living will is inexpensive, and it can relieve your loved ones of the need to make difficult decisions.
- Power of attorney. In medical cases, this document empowers an individual to view medical records and make decisions about medical treatment for a relative or loved one.
- Healthcare proxy - this is a special power of attorney for medical situations. By signing this document, you empower someone close to you to make decisions on your behalf while in the hospital.
Question: Is it possible to draw up a document stating that I refuse to be confined to a hospital in the case of a serious illness or coma?
Yes. You need a living will for this. It should be drafted and certified by a notary. If you include this directive in your living will, doctors are required to honor your wishes, despite the objections of family members. You can specify, for example, that you want to be an organ donor. A living will costs about $ 250.
A living will can be helpful in religious matters. For example, Jews believe that a person dies after a cardiac arrest, while medical standards prescribe that death occurs once the brain stops working. By filing a living will, some believers ask doctors not to resuscitate them.