Ekaterina Panova, founder of Rubic.us, asked attorney David Treyster questions from followers of the closed Facebook U.S. Immigration Group. They discussed trusts, wills, marriage contracts, and other legal aspects of life in the USA.
David deals with immigration, court cases, contracts, divorce, and real estate.
In this article we feature highlights from our 90 minute interview with David. You can watch the complete interview video on Rubic’s YouTube Channel.
You can find David Treyster’s contact information in Rubic’s catalog of attorneys.
Prenups are not always pleasant to negotiate, but they can be helpful in certain circumstances.
David recommends that each party procure their own legal representative to oversee the signing of prenuptial contracts, to ensure that neither party’s rights are violated. Each party can bring their own terms and conditions to the table for negotiation.
Marriage contracts must be signed freely, voluntarily and without duress. Signing a prenup too close to the wedding can be evidence of duress and that one party felt pressured to sign.
Lawyers are prohibited from demanding a percentage of a family case payment. If your attorney asks for a percentage of your divorce proceeds as compensation, terminate your relationship and find another lawyer..
Every divorce is a legal case under United States law. If neither spouse has a claim against the other, the process can be quick and easy. However, when claims arise due to alimony and/or custody, an attorney can help protect you from being taken advantage of. However, David does not always advise the involvement of courts to initiate drawn-out legal battles. The courts, judges and legal system will do everything possible to encourage divorcing parties to resolve their issues on their own and agree to a settlement without a trial.
After a divorce, alimony is often paid to the spouse who earned the least, or who did not work at all during the marriage. Alimony payments are separate from child support, and are determined by a formula (specific to each state), based on the differences in salary, duration of the marriage, and other factors. If the person who earned less or did not work moves to another country, the move has no impact on alimony.
Any property accumulated during the marriage is divided equally in divorce cases. Photo: stewartslaw.com
If you do not work, you can ask the court to force your partner to support you financially while your divorce proceedings continue. Moreover, the court has the right to require the spouse with the higher income to pay legal fees for both parties.
In New York, the party who will not live with the couple’s children is obliged to pay child support, which amounts to about 17 percent of the non-custodial parent’s combined gross yearly income for one child, and about 25 percent for two. This amount may vary from state to state. The financial status of either spouse has no bearing on the decisions about custody.
Custody of children is determined based on the principle of "best interest of the child." In other words, the judge considers which living situation will be best for each child. If the parents cannot agree on terms of custody, the court may force them to hire a lawyer for the child’s protection.
In most cases in the United States, small children are placed under custody of the mother. The father is granted custody only if the mother is deemed totally unstable. At the same time, a child over age 12 or 14 (depending on the state) is often given the choice of which parent they want to live with.
Contrary to popular belief, it is possible to receive a permanent Green Card after a divorce if you already have conditional (temporary) residency status, provided the marriage was legal.
David notes that many lawyers suggest a VAWA petition be submitted for victims of domestic violence, but he does not advise it. According to David, VAWA is difficult to prove, and it may cause unnecessary suffering for the victim. In legal terms, the petitioner may be deemed to be the victim of "extreme cruelty" or “”physical abuse”. A VAWA petition requires proof that may include a letter from a psychiatrist, medical records and other documentation. Choosing to divorce while having a conditional green card will not prevent someone from receiving a permanent one.
Making a will is often a simple but important step that makes sure that a person’s funds and estate pass to the intended beneficiaries. The parents can also designate a guardian for any minor children, in the event that both parents die.
Question: What happens to the children if both parents die?
It is best to specify the terms of guardianship in a will, to prevent the state from assuming custody of the children.
If you want your children to live with relatives outside the US after your death, you should clearly state the reasons for your decision in your will. For example, you might declare that it is important for your children to know the culture and religion of their native land, and that foreign relatives can best provide your children with that knowledge. If your children are US citizens, the court may prefer that they remain in the USA, so clearly detailing your preferences in your will is critical.
A wife or husband cannot be excluded from a will. Spouses have a legal claim to a portion of the property, although children may be excluded.
Question: How much does it cost to write a will?
A simple will costs about $500 to $600 if the proceeds of the estate go directly to the spouse and/or children. If there are extensive material assets like trusts, jewelry or artwork, or very specific instructions, it may cost more to establish your will. If you leave all your assets to your minor children, it is a good idea to leave the assets to be held in trust until the children reach adulthood or graduate college. The parents would apoint a trustee who would manage the trust for the minor children’s benefit.
Estate taxes must be paid only if there is a large sum of money. In the US, the party who transfers the estate is assessed with a tax if the sum exceeds $11 million. Eleven states impose their own taxes. In New York, for example, any sum exceeding $5.5 million is taxed. Six states also take taxes directly from the heirs if the property does not pass to close relatives, but only if the value is greater than $700,000.
Question: We are in the USA on a working visa, and we want our children to go to Belarus in case of our death, and our accounts to be transferred to the family. What documents do we need to process?
You must file a will for this purpose and stipulate the details of what and to whom you want your assets to go. Include everything about existing bank accounts, appoint your beneficiaries, and explain in detail why you want your children to return to Belarus. It is also advisable to execute a power of attorney so that relatives can access your accounts more quickly and easily. Without power of attorney, it could take six months or longer in court for your family to prove their rights to your assets, and to ensure there are no disputes over the will.
Question: If a holder of a Green Card dies and has no relatives in the USA, is it possible to issue a power of attorney to his father post-mortem, so that he may retrieve the deceased person’s belongings?
No, power of attorney cannot be issued after death. This situation must be settled by the probate court. A probate court deals with will and inheritance. The father will need to travel to the US and provide documentation that proves he is the closest living relative and successor. The court process can take several months to grant permission to dispose of the deceased’s property.
A trust provides a means of passing property along to beneficiaries via a trustee. The trustee is charged with managing and then disbursing of the assets in a way that gives beneficiaries maximum profit, or with executing other instructions given by the grantor. A trust is a unique legal entity used to optimize taxes, save property from creditors, and for many other purposes.
David notes that there are many types of trusts within the context of wills. Trusts made to spouses or children are among the simplest.
A trust can help your family maintain savings. Photo: ouralteredlife.com
Suppose that a 40-year-old husband and father of two who owns a house dies unexpectedly. The wife will inherit the house. If she remarries and her new husband also has two children, the wife’s estate will be divided not only between the children from her first marriage, but also among the husband and children of the second marriage. A trust can help avoid this scenario by ensuring the house of the first spouse passes to his children, with provisions for the wife to live there until her death.
A trust enables you to transfer your property to your children when they reach adulthood after your death.
Question: Is it possible for parents who live and work in Russia set up a trust for a minor US citizen?
It is possible, but a trustee must be appointed to manage the money and to pay the heir the sum specified in the trust. It is up to you to decide at what age or under which conditions the heir will be granted access to the funds.
Question: My husband appointed me beneficiary of a trust, and named our son as trustee. He proclaimed this decision to my son and to me but he did not use a lawyer to do the paperwork. Is the trust legal? What is the line of succession if everything was acquired before the marriage?
Yes, it is possible and legal. The husband issued the trust, the son is charged with disposing of it, and it does not need to be certified by a lawyer. The son is obligated to pay dividends to the beneficiaries if the trust generates income. The wife has direct claim to the property only if it is not protected by a trust. If all the husband’s property was acquired before marriage and is included in the trust, she only has a right to the dividends as the benficiary of that trust.
On living wills and healthcare
A living will gives directives to your family about how to proceed should you become medically incapacitated. For example, if you do not want to be resuscitated or kept on life support, a living will notifies your family and healthcare providers of your wishes. Creating a living will is inexpensive, and it can take the burden of making difficult decisions off your family’s shoulders.
Power of attorney grants a family member or other individual the right to make legal decisions on your behalf. It grants them the legal right to review medical records or manage financial matters.
Healthcare proxy is power of attorney for health care only. This document allows the appointed individual to make decisions for you if you are medically unable to do so yourself.
Question: Is there a document that supports my right to refuse hospitalization in case of a serious illness or coma?
Yes, that is covered by the living will, which needs to be issued and notarized. With a living will in place, doctors do not have to listen to objecting relatives, no matter what they say. In a living will, you can specify which medical procedures you do not want, and stipulate if you want to be an organ donor. A living will costs about $250.
In some cases, a living will can help with religious issues. For example, the Jewish religion considers the person to be dead only once the heart stops beating, while medical practitioners proclaim death after all brain activity has stopped. The individual can specify that they wish to be kept alive until the time of their religious death.