FAQs - Fort Wayne Indiana Law Firm of Van Gilder & Trzynka, P.C.


Family Law FAQs

Will my spouse/other party have to pay my attorney fees?
The general rule is that each party is responsible for their own attorney fees. However, in many family law cases, under certain circumstances, a judge may order the other party to pay some or all of your reasonable attorney fees.
Can I move/relocate with my children? How far can I move?
As of July of 2006, any party with a parenting time or custodial interest, must notify the opposing party in writing through the court 90 days prior to any move. (This is true even if the move is right across the street.)
Can I make my husband/wife move out of our residence?
Generally, not without a court order for temporary possession of the home. If domestic violence is involved, then you can obtain a protective order and the person would have to leave the residence.
How can I obtain a Protective Order/Restraining Order against my significant other?
If there is domestic violence, stalking, or sexual abuse, you can petition the court for a Protective Order at 213 W. Berry St. (Courthouse Annex). Under certain circumstances, the court may grant the Order immediately.
How much child support will I have to pay? Or how much will I receive?
Child support is determined primarily based upon the parties' incomes, amounts paid for health insurance, day care costs, and the number of overnights the non-custodial parent will have the child(ren) in their care.
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Medicaid Planning FAQs

Aren't Medicare and Medicaid the same thing?
No. There are two important differences. First, Medicare is a federal program only; Medicaid is a federal and state-funded program. Second, Medicare is not an entitlement program. Medicaid, created in 1965 as part of President Johnson's War on Poverty, was initially to be a health insurance program for low resource and low-income Americans; however, Medicaid has become the largest public or private health insurance program in the United States. Although Medicaid eligibility rules vary from state to state, they must observe federal minimum standards and guidelines.

Don't Medicare and Medicaid both pay for nursing home care?
Yes but in very differing amounts. Medicare (Part A) covers up to one hundred (100) days of “skilled nursing” care per illness. However, the definition of “skilled nursing” and the other conditions for obtaining this coverage are stringent, meaning that few nursing home residents receive the full 100 days of coverage. Hence, Medicare pays for about nine percent (9%) of nursing home care in the United States

Medicaid covers about two-thirds of nursing home residents, one in five persons under age 65 with chronic disabilities (including about 70 percent of poor children), one-third of all births, and half of spending for states mental health services. This year, about 53 million people use Medicaid.

What is Medicaid Planning?
Medicaid Planning, like Tax Planning, is the lawful means to help protect property of tax-paying citizens. Many folks have, over the course of their lives, accumulated a home, a vehicle, and other assets; they usually hope and plan that these valuables be used to provide for themselves and other loved ones.

Long-term nursing home care often forces people to liquidate their belongings prior to Medicaid assisting with the expenses of such care. A year in a nursing home costs about $75,000 nationwide, so it's easy to wipe out a lifetime of savings. For some individuals, long-term-care insurance may not be an option.

Assets and monthly income must each fall below certain levels to qualify for Medicaid. Indiana may count only the income and assets that are legally available for paying bills. Assets (which may include the family home) and a certain amount of income may be exempt or not counted.

Medicaid planning helps make assets and income inaccessible. Along with qualifying for Medicaid benefits, Medicaid planning seeks to accomplish the following goals:
  1. Sheltering countable assets
  2. Preserving assets for loved ones
  3. Providing for a healthy spouse (if married)
Do you need an attorney for even “simple” Medicaid planning?
Yes, in most cases. The social worker at your mother's nursing home assigned to assist in preparing a Medicaid application for your mother knows a lot about the program, but maybe not the particular rule that applies in your case or the newest changes in the law. In addition, by the time you're applying for Medicaid, you may have missed out on significant planning opportunities.

Our attorneys meet with both individuals and married couples to explain the Medicaid application process and provide peace of mind. There are often options available for people, thus allowing them to retain their dignity, sense of worth, and values, as well as the opportunity, while they can, to provide for loved ones. This can also mean significant financial savings or better care for you or your loved one through the use of trusts, transfers of assets, purchase of annuities or increased income and resource allowances for the healthy spouse. It is generally never too early to meet with an attorney to take steps to preserve assets.

Medicaid is a welfare program originally created to provide health care to our nation's poor. With the help of attorneys, those needing long-term care artificially impoverish themselves in order to qualify and preserve their savings either for their healthy spouse or their children. Is this practice ethical?

Medicaid has become recognized as the long-term care insurance of the middle class. Congress implicitly accepts this result through rules that protect spouses of nursing home residents and permit others to qualify after spending down and transferring some of their savings. To plan ahead and accelerate qualification for Medicaid is no more unethical than planning to reduce or eliminate unnecessary gift, estate and inheritance taxes.

Remember too that Medicaid is not an ideal solution even if you can protect some assets. Medicaid often comes up short in protecting freedom of choice. You or your parent would probably have to go into a nursing home to receive government-financed care, rather than remain at home, which most people prefer.
Sources for these answers include www.aarp.org, www.elderlawanswers.com / www.Kiplinger.com

Real Estate & Environmental FAQs

What types of restrictions may be on my property?
Real estate owners need to be aware of possible restrictions placed on their property. Under federal law, property may be subject to various environmental restrictions. At the local level, zoning ordinances limit the uses of property depending on the district in which the property is located. A special exception, variance, or even a rezoning may be required for a land use. Finally, private agreements such as restrictive covenants are often found in developments. Typical covenants regulate lot size, parking, and home appearance.

What is a Deed?
The transfer of any interest in land requires a written deed. A deed states the names of the old and new owners and contains a legal description of the property to be transferred. The most common types of deed are warranty and quit claim deeds. A warranty deed assures good and marketable title to the property. A quitclaim deed conveys only the title the seller has in the property and makes no warranty as to ownership or other defects in title. Property conveyances need to be recorded with the Recorder's Office. There are many requirements for a deed to be properly recorded. An attorney can assist you with this process.

What is a “Sales Disclosure Form”?
A sales disclosure form must be completed with the transfer of any real property for value. The form is to be signed and completed by the owner and buyer of the property to be transferred. The sales disclosure should be filed with the county auditor prior to recordation of a deed.

What remedies are available to a tenant due to uninhabitable conditions?
Under Indiana law, a landlord is required to deliver the premises in a clean and habitable condition, comply with health and housing codes, maintain common areas, and provide safe and working electricity, plumbing, sanitation, and heating/air conditioning systems. If there is a defect in any of these areas, the tenant should notify the landlord. If the landlord does not remedy the problem in a reasonable amount of time, the tenant may file an action in court seeking actual damages, consequential damages, attorney's fees, court costs, and any other appropriate remedy. Tenants should be aware that the landlord obligations listed above do not apply in “rent to buy” transactions.

Will FAQs

Do I need a will?
A will is a written document expressing an individual's desire for controlling the transfer of their property after death. A will is recommended for several reasons. Besides providing for distribution of your property, a will allows for the following:
  • Choice of a personal representative to administer your estate.
  • Choice of a guardian for a minor in case of the death or disability of both parents.
  • Trust provisions to manage and provide income for survivors, typically minors.
  • Charitable provisions.
What happens if I die without a will?
If an individual dies without executing a will, the Indiana Intestacy statute is controlling. This statute provides surviving spouses, children, parents, and other family members with specific shares of your estate. Consult with a lawyer for further explanation.

What is a personal representative?
A personal representative makes sure the wishes expressed in a will are properly carried out. Due to the nature of the duties listed below, the assistance of an attorney for a personal representative is generally required. The duties of a personal representative include the following:
  • Have the will probated with the court.
  • Marshal (gather together) the assets of the estate.
  • Establish the value of all assets as of the date of death and file an inventory with the court.
  • Handle claims against the estate.
  • File income tax returns for periods before and after death.
  • Prepare a final accounting covering the principal, income, and disbursements of the estate.
  • Distribute assets of the estate, including specific bequests.
What is a “living will”?
A living will, also known as advance directives, is a written document providing instructions for an individual's care in the event of a terminal illness or “persistent vegetative state”. It allows adults (ages 18 and over) to execute written instructions regarding whether to withhold or maintain life-prolonging procedures such as artificial nutrition or hydration. A copy of the living will is provided to the individual's primary physician and with a health care representative or family member who was given authority to make health care decisions.

How often do I need to update my will?
Once properly executed, a will does not expire. However, it is recommended that wills be updated after life-changing events such as marriage, divorce, having a child, or adoption.

Worker's Compensation FAQs

How long can I wait before I file a claim?
The general rule is that you must file a claim with the Indiana Workman's Compensation Board within two years of the injury. There are exceptions, but to be on the safe side, two years.

If I am injured at work, what is my employer required to pay?
Generally, under Indiana Workman's Compensation laws, your employer is required to pay for your medical bills if injured while working, your time off work if longer than seven days, and a final settlement if a physician finds that you have a permanent impairment.

Does my employer have to pay for pain and suffering?
Employers are not required to pay for pain and suffering.

Can I sue my employer for my personal injuries beyond the Workman's Compensation coverage?
Generally, no. If you are injured at work or in the course of your employment, your only remedy or course of action is under the Indiana Workman's Compensation Statutes. If, however, you can prove that someone other than your employer caused the injury, then you might be able to sue that party, including for pain and suffering.