Friday, August 1, 2014

The Net Effect: What to Consider When Taking Your Business Online by Joseph Alisa

A man who had spread some damaging gossip about a neighbor went to his Rabbi to confess and seek counsel about how to repair the damage done. “Go and put a goose down feather on every doorstep in the village” instructed the Rabbi, “and report back when this is done.”

Eager to repair the damage, the man obeyed and then returned to the Rabbi. “Good”, said the Rabbi upon hearing the report, “Now go and collect every last feather and bring them all to me.” Incredulous, the man replied, “But Rabbi—that is impossible. I may be able to retrieve a few, but surely most have been picked up and scattered by the wind, never to be found again.”
“And so it is with your gossip”, intoned the Rabbi, gravely. “Once it leaves your mouth, it flies on the wings of the wind and you know not to where or how far it goes.” Resignedly, the man learned the intended lesson—that one must exercise wisdom, caution, and discretion particularly when undesirable consequences are potentially irreparable.

One wonders what the Rabbi would have to say about the internet and its many uses, advantages, and pitfalls. The online realm is not quite the Wild West, but it is, in some respects, a brave new world of developing methodology, practices, and rules. Consider, for example, the emerging world of internet law.

Taking your business online can be a great way to expand your reach, grow your client base, and increase your sales. But with the decision to do business online comes the encumbrance of additional legal and financial considerations, e.g., privacy concerns (protecting customers’ personal information, etc.), digital rights and/or copyright issues, regulation governing online advertising, taxation matters, etc. Sound daunting? That’s only because it is…a little. Feel intimidated? Don’t be…a good attorney can help you sort it out.

In their book, Internet Law for the Business Lawyer, Juliet Moringiello and Jonathan Rubens explain that internet law can best be understood, “as a reference to new ways of reasoned application of existing laws in the context of online communications and commerce” and they share the following example:

The fact that website terms of use may exist only in a digital form and are not reduced to a written contract has not prevented courts from using the traditional elements of contract formation to analyze whether a contract has been formed and may be enforced, although there may be questions of whether a user’s “express manifestation of assent” to the contracts terms is present. (Internet Law, p.3)

The idea is that the courts, when possible, look to how law is applied in an off-line environment in order to inform their decisions regarding transactions in an online-environment. Issues inevitably arise when people and businesses act online in a way not possible or uncommon in an off-line environment. For example, the ease and speed with which a blogger, or even a commenter on a conversation thread, can create and post content make fitting that blogger/commenter into traditional definitions of content creators more likely to be problematic and possibly create exposure to claims of defamation, etc. Moreover, the ease and speed of electronic communication that lends itself to lengthy and detailed back-and-forth written communication could result in inadvertent creation of enforceable agreements.

In a case decided in 2002 and cited numerous times since then, a plaintiff demonstrated one of four elements of liability under New York’s Civil Rights law, which required that use of plaintiff’s picture occur “within the State of New York”. The Court reasoned that because the pictures were on the internet and that anyone, anywhere in the world with a computer and an internet connection could conceivably access the website with the pictures in question, that the pictures, available on a “world wide basis” were necessarily concurrently available within New York State. Thus, the plaintiff successfully demonstrated use of the pictures “within the State of New York” (Molina v. Phoenix Sound, Inc., 297 AD 2d 595).

The takeaway here is that as the proliferation of transactions conducted in an online environment increases, traditional or existing theories of law will be influenced and will likely evolve. If you intend to conduct any business online, you might do well to consider consulting an attorney who understands how internet law informs otherwise traditional practices.

Photo courtesy of Wikipedia

Monday, July 14, 2014

July Brown Bag Lunch

Fillmore Spencer's July Brown Bag Lunch will be held on Friday, July 25th, at noon.  Firm partner Barney Madsen will give a presentation titled, "Insanely Simple." In his presentation, Barney will discuss the use of demonstrative aids and presentations.  All members of the Utah State Bar are invited to attend and lunch will be provided.  Please RSVP to (801) 426-8200.

Friday, March 21, 2014

So You've Been in an Accident...Now What? Six Points You Should Know About Personal Injury by Kara North

Did you know that on average, Americans spend the equivalent of nearly one work week stuck in traffic each year?[1] Sounds miserable doesn't it?   What can make it even worse is if you happen to be in one of the roughly 50,600 vehicles on Utah roads each year involved in a reported accident.[2] 
Lately, it is a rare occurrence to see a driver not on their cell phone or otherwise distracted.  The more time we spend on the road, the more likely we are to be involved in a motor vehicle accident.  This is true regardless if you are a driver, passenger, cyclist or pedestrian.  So what can you do to protect yourself?
1. Insurance Coverage: Before an accident ever occurs, you should look at your own insurance policy and determine whether you have sufficient coverage. In my years of practicing personal injury law, I have been surprised how little people know about their own policies, despite paying the premiums each month.  In Utah, the minimum coverage you are required to have is $25,000.00 for bodily injury or death of one person or $65,000.00 total liability for bodily injury or death of two or more persons.[3]
 Even in relatively "minor" car accidents, the state minimum limits are frequently not enough to compensate you for your medical bills and other damages. or another injured party.  I always recommend to my clients and friends that they increase not only their liability limits, but also their underinsured and uninsured motorist coverage to no less than $100,000.00 per individual and $300,000.00 per injury causing occurrence.  An even better option would be limits of $250,000.00 and $500,000.00.  The cost to increase your limits is relatively small, and protects you against negligent drivers that either don't have insurance or only have the state minimum limits. 
If your medical expenses exceed what you collect from the other driver's policy, you are entitled to make a claim with your own insurance under your underinsured motorist coverage policy.  Usually the difference in premiums for the increased coverage is only a few dollars per month and can make a big difference in the long-run whether you are fully compensated for your injuries. 
2. Document Everything:  If you are injured in an accident, even if you believe the accident is only a "fender-bender," take pictures of the scene, get the other driver's insurance information, and call the police.  This is the easiest way to demonstrate the extent of damage to your property and convince the liable-driver's insurance company it should accept responsibility right away.  It may also protect you from being wrongfully blamed later. 
If you miss work or even your daily work-out at the gym, document that as well.  In addition to being entitled to compensation for your medical expenses, Utah law requires insurance companies to compensate you for your lost wages, household expenses, and general pain and suffering.  If you have a Doctor's note excusing you from a certain number of days of work and clear documentation that shows the number of hours you usually work per week, the insurance company is less likely to resist paying your lost wages.  If a Doctor has restricted you from lifting more than 10 lbs. and this prevents you from working, cleaning or other household duties, you may be able to receive compensation for hiring the need for others to do your "essential services," even if this is a family member that does not charge you.  Moral of the story, document everything you can as it occurs.  This will ensure you have accurate records and strengthen your case.
3. Seek Immediate Medical Treatment and Be Consistent: Depending on the severity of the accident, medical personnel may or may not be called to the scene.  If they do, I recommend allowing them to evaluate your condition, even if you are not sure whether you are hurt or not.  I once had a client who declined medical treatment at the scene because she did not think she needed it.  Later that evening she was taken to the hospital by family due to extreme pain in her back, leaving her unable to move.  X-rays showed she actually fractured her back.  Despite medical records demonstrating this, the insurance company repeatedly argued her failure to get immediate treatment was a sign she was not as severely injured as we claimed. 
If you believe you may be injured, get checked out by a doctor and be consistent in whatever treatment is prescribed.  Your treatment may require regular visits to a medical doctor, physical therapist, or chiropractor.  Until such treatment is officially terminated by the medical professional, make it a priority to attend every appointment.  Inconsistent or sporadic treatment will cause the insurance company to significantly undervalue the extent of your injuries. 
 4. The Insurance Company is Not Your Friend: Whether it is your own insurance provider or the other driver's, once you are in an accident, the insurance company is not your friend.  Every time you talk to a representative from an insurance company, they are recording the conversation in hopes that the next time they speak to you, your story will slightly change or that you will make some statement that will hurt your case.
Prior to working at Fillmore Spencer, I worked at an insurance defense law firm.  My job, whether you were our insured or not, was to ensure the insurance company paid as little as possible for your claim.  In order to do this, our company contracted with private investigators to follow individuals who claimed to be injured and take video surveillance.  A colleague of mine even shared an experience with me where his 5 year-old client was videotaped riding her bike by her own insurance company.  The insurance company then claimed that because she was able to ride a bike, she couldn't have been injured.  Insurance companies will monitor your social networking pages to see if you posted pictures or made statements which could even slightly undermine your case.  Bottom line, the insurance company is a business and it is only successful if it takes in more money than it pays out, and that means paying you as little as possible.
5. Filing a Claim with the Insurance Company is Not the Same as Filing a Lawsuit: Media outlets today commonly publish sensationalized stories meant to grab your attention with an outrageous headline.  Often, these stories portray someone filing a supposed "frivolous lawsuit" that makes your blood boil that someone could be so greedy.  Of course, a lot of the story which may validate the claim has been left unpublished.  Nonetheless, these types of stories leave many in the general public to have a distaste for the legal system and lawyers generally.  As a result many individuals, despite being severely hurt as a result of another person's negligence, don't want to be viewed as "that person," and are hesitant to even meet with an attorney about filing a claim. 
Filing a claim with an insurance company is not the same as filing a lawsuit.  Many times your claim can be resolved without ever stepping foot into a courtroom.  Only when the insurance company is being completely unreasonable in providing you the compensation you are entitled to is it necessary to discuss filing suit.  If you choose to negotiate with the insurance company on your own, it is important that you are aware that Utah law requires a suit for personal injury be filed within a certain period of time, or else the claim may be barred.  The statute of limitations can be as short as 1 year.   
6. Hire An Attorney: Many people think they can handle the insurance company on their own.  Insurance companies know that if they can give you the run around, eventually you'll get tired of dealing with them and accept whatever amount of money they offer, whether it is sufficient or not.  Don't allow this to happen to you. Hire an attorney to handle your claim on your behalf.  Studies show that injured people with an attorney fare better, even when attorney fees are considered, than those who don't have an attorney.[4]
Although some worry hiring an attorney is just one more expense they can't afford, what most people don't realize is attorneys typically take personal injury cases on what is called a "contingency fee" arrangement.  That means if the attorney doesn't collect money for you, you don't owe the attorney anything.  Because of this arrangement, it's not only in your best interest, but my best interest to get you the maximum amount of money possible.  As a client, you are my number one priority and dealing with the insurance company is something I not only know how to do, but actually enjoy. 
If you have been injured due to someone else's negligence allow the experienced attorneys at Fillmore Spencer to remove the stress and burden of handling your claim so you can focus on your recovery.[5]



[3] Utah Code §31A-22-304(1)(a) and (b). 


[5] The information is provided for general information purposes only and is not intended as legal advice.  Each situation is unique in its application of the law, and being general in nature, this information may not apply to your specific case.  If you have questions about your personal injury case, you should contact an attorney about the specific facts of your case. 

Tuesday, March 18, 2014

The “Millionaire Maker” Credit: A Different Take on the Low-Income Housing Credit by Mary K. Black-Whitby

What do you normally think of when you think of Low-Income Housing? The Ghetto? That part of town that’s falling apart? That’s what most people think of, but it shouldn’t be and here is why:

The Basics: Congress has made a credit to encourage investment in affordable housing for low-income tenants. For Utah, the Utah Housing Corporation certifies housing for low-income tenants and determines how much credit is allocated to the investors. For 2011, Utah was able to give a credit of up to $6,020,000 for low-income housing projects.

Investors are given a credit of up to 9% of the cost of developing the housing project for up to ten years. That means the investor gets back up to 70% (present value) of the total cost of the housing project! (The rate differs depending on financing and the type of building project contemplated.) Furthermore, there are federal financing options that can help the builder finance the project with below market interest rates.

Those individuals who qualify to live in low income housing must meet the income requirement, and the rent charged for low income housing is a percentage of the median income for the community. (These amounts differ depending on the region and family size)

Why do I call this the “Millionaire Credit” Then? It’s because after 10 years, the property goes back to the investor who can do with the property as he or she pleases! I envision an investor using this credit most efficiently by not building cheap apartments. Rather, an investor would build some of the nicest apartments or houses in town. Everyone would be clamoring to live there and as a result the investor would be able to pick and choose who the tenants would be. The rental agreement could be quite strict as to unreasonable damage to ensure that the investment real estate would stay pristine so that after ten years it could be sold or rented at a higher price.

Retirement Plan. Anyone tired of worrying about their retirement? What if you could ensure a steady stream of income? The Low-Income Housing Credit could be the answer. The best use of the credit would be for an investor to build an apartment complex, a house, or (on a larger scale) a block of houses every year for ten years. After ten years, the first building project would become available to sell with a net gain of up to 70% (the low-income housing amount), or the building could be rented at a higher amount with the result of a steady stream of income for life.

Why build the ghetto when you can have a practically interest free, government paid retirement plan? Go for the gusto and get the best bang for your buck!

Tuesday, March 11, 2014

Deferred Action for Childhood Arrivals (DACA) by Levi Adams

In June of 2012, the Department of Homeland Security announced that certain people who came to the United States as children and who meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

Since 2012, our office has filed many DACA applications and received many approvals.  Many people here in the United States were brought to the country when they were children.  Some of my clients have been here since they were one or two years old.  They often don’t know any other culture because they have been raised in the U.S.  However, because their parents brought them here illegally or any lawful status has since expired, pursuant to the immigration laws, they are not here lawfully and therefore cannot obtain social security numbers or work authorization.  This presents a major problem for those wanting to work or go to school. 

The DACA program was a step in the right direction to help those that had no choice in coming to the United States unlawfully.  It is important to understand, however, that those people granted deferred action do not obtain lawful status nor do they have a path to citizenship.  Rather the Department of Homeland Security is saying that any adverse action against these individuals will be deferred and they will be eligible for work authorization.  Those that received deferred action receive a social security card that is valid only for work purposes and with this number they are able to obtain a driver’s license. 

On February 19, 2014, the Department finally issued the long awaited guidance on how to renew the deferred action for those who are approaching the two years.  Surprisingly, the Department is essentially requesting a reapplication.  Therefore, those wishing to renew must submit forms I-821D, I-765, and I-765WS along with the filing fee of $465.  They must also meet the same criteria that was set forth previously.  An individual whose case was initially deferred under DACA by ICE or are DACA recipients with an employment authorization that will expire in the next 120 days, may be considered for renewal of DACA from USCIS if he or she:
  1. Was under the age of 31 as of June 15, 2012;
  2. Came to the United States before reaching your 16th birthday;
  3. Have continuously resided in the United States since June 15, 2007, up to the present time;  
  4. Were physically present in the United States on June 15, 2012, and at the time of making your request for consideration of deferred action with USCIS;
  5. Entered without inspection before June 15, 2012, or your lawful immigration status expired as of June 15, 2012;
  6. Are currently in school, have graduated or obtained a certificate of completion from high school, have obtained a general education development (GED) certificate, or are an honorably discharged veteran of the Coast Guard or Armed Forces of the United States; and
  7. Have not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and do not otherwise pose a threat to national security or public safety.
I believe that this is a positive law that allows individuals to get jobs or attend college and contribute to society.  I hope that the Department will look for other ways to help those individuals who were brought here by their parents when they were minor children. For now, I recommend that those who qualify apply for deferred action and take advantage of this program so that they can be lawfully employed.  

Monday, February 24, 2014

Utah Landlord’s Guide to Evict a Tenant by Paul Dodd

If you own a rental property, chances are you have or one day will need to evict a tenant.  Utah’s eviction law, called the Unlawful Detainer Statute Utah Code §78B-6-801-816, allows for an expedited process to evict a tenant from your property. Though this process is not extremely complicated, it does require you to be exact in following the law or you could place yourself in a very precarious situation and possibly open yourself up to a lawsuit from the tenant for an unlawful eviction. It is important that you know and follow all the steps in the eviction process to protect yourself and to expedite the process so you can have the problem tenant out and get your property rented again. This is why an experienced eviction attorney should be consulted. 

One of the most important things you need to be aware of is that you absolutely cannot take any steps to try and remove the tenant yourself. This is called a “self-help” eviction and it is illegal. Examples of this are changing locks, removing doors, turning off utilities, removing tenant’s property from the residence, etc. If you do any of these things, the tenant can sue you for damages and you may have to pay the tenant’s attorneys fees as well. If you have a tenant that you need to evict, you are required to start the legal eviction process. 

There are basically three steps to an eviction in Utah. I will discuss those steps below:

1. FIRST STEP, NOTICE.  The first step to the eviction process is to terminate the tenancy by properly serving on the tenant the appropriate notice.  The notice must be served either personally to the tenant, or by registered or certified mail, leaving a copy with someone of suitable age at the residence and mailing a copy to the address, or lastly by posting a copy on the property. Normally, the easiest way to properly serve the notice is to tape the notice to the front door of the property. There are fundamentally five types of eviction notices in Utah.  These notices are:
·         Three Day Notice to Pay or Quit: This is the most common notice given to tenants.  This is the notice you must use if your tenant is behind on payment of rent. In this notice you must inform the tenant how much rent (including late fees etc.) is due and allow the tenant three days to pay the amount owed or in the alternative to vacate the premises within the three day period. If the tenant fails to do either of these, then they are considered to be in unlawful detainer and you can move to the next step of filing an eviction law suit.
·         Three Day Notice to Vacate:  This is the type of notice you must give if your tenant is selling drugs at the property, damaging property, illegally subletting, causing substantial disturbance to neighbors, violating health codes, etc. This type of notice does not have to give the tenant an option to remedy the problem. If the tenant does not vacate within three days after receiving this notice, they are in unlawful detainer. 
·         Three Day Notice to Comply or Quit:  This is the type of notice the landlord must use if the tenant has violated any portion of the rental agreement other than causing a significant nuisance, illegally subletting, damaging property, or being involved with drugs. This notice must give the tenant the option to remedy the situation by complying with the provisions of the lease agreement or in the alternative to vacate the premises within three days. If the tenant does neither of these things then they are in unlawful detainer and you can proceed to the next step.
·         Fifteen Day Notice to Terminate “No Cause”:  This is the type of notice that the landlord must use if the landlord wants the tenant to move out for no cause. A landlord can only use this type of notice if the tenant is in a “month to month” tenancy and the notice must be given at least 15 days prior to the end of the month.  If the tenant fails to move out by the end of the month then they are in unlawful detainer and you can proceed to the next step.
·         Five Day Notice to Terminate “At Will Tenant”:  This notice can only be used if the landlord has no agreement with the tenant to live in the residence.  Examples of this are, a prior tenant allowed the person to live with them without agreement of the landlord or you purchased the property in a foreclosure and the prior owner still resided in the premises after the foreclosure. (If you purchase a foreclosure property and a previous tenant lives in the premises, they probably won’t be an at will tenant and you may have to honor any prior lease the tenant had with the previous owner).  If the individual fails to vacate after five days they are in unlawful detainer and you can proceed to the next step.

2. SECOND STEP, LAW SUIT.  The second step to the eviction process is to file a summons and complaint with the appropriate court. These are legal documents that must be filed with the court and served personally on the tenant by a sheriff or constable (posting this document on the door is not sufficient). A filing fee must be paid to the court to file the eviction complaint. After the tenant is served, the tenant has the right to file an Answer within three days. If the tenant fails to timely respond to the complaint, a default judgment and writ of restitution (an order allowing the landlord to retake possession of the premises with the help of the constable or sheriff) may be granted by the court. 

If the tenant timely files an Answer then either party has the right to request a hearing with the court. This hearing must be scheduled within 10 days and at this hearing the court may decide the merits of the case and determine who has the to occupy the premises. Normally, this hearing is an evidentiary hearing and is like a small trial to determine the case. However, in some circumstances an actual trial will be needed and scheduled by the court. If a trial is scheduled then the landlord may want to file a possession bond to gain possession of the premises while the parties await trial. 

Once the case is decided, the court will decide if damages are awarded. A landlord has the right to seek treble damages in eviction case. Treble damages are the damages actually owed multiplied by three. Further, most evictions will include an award of attorney’s fees to the prevailing party. As you can see, the judgment on a simple eviction can result in a very large judgment for the landlord, now collecting on that judgment from the tenant is a different matter. 

3.  STEP THREE, ORDER OF RESTITUTION.  The third step in the eviction process is actually removing the tenant from the property. The court will sign an order that requires the tenant to leave the property, this is called an Order of Restitution. The court will determine how long the tenant has to move their belongings from the property; normally the court will give the tenant three days. The Order of Restitution has to be personally served on the tenant, so it is best to have one ready at the first court hearing so the tenant can be served there in Court. If the Tenant fails to vacate the premises in the time prescribed in the Order of Restitution, the Constable or Sheriff can enter the premises and remove the tenant and their possessions from the property and change the locks. If this happens, you are required to make an inventory of the personal property in the premises and to store the tenants belongings for at least 15 days. However, the tenant cannot access the property until they have paid costs for the removal and storage of the property and the landlord is required to give the tenant clothing, identification cards or financial paperwork and other documents and medical equipment.   

This is a very condensed guide of the eviction process and does not cover every possible scenario. This information is provided for general information purposes only and is not intended for legal advice. The laws change frequently, and being general in nature, this information may not apply to your specific case. If you have questions about an eviction or a landlord tenant issue, you should contact an attorney about the specific facts of your case.  

Thursday, February 13, 2014

March CLE Luncheon: Common Tax Mistakes Lawyers Make

Fillmore Spencer's newest associate Mary K. Black-Whitby, will present at our March CLE Brown Bag Luncheon on March 28, 2014 at noon.  The topic of her presentation is "Common Tax Mistakes Lawyers Make." Mary will discuss how taxes affect different practices of law such as, divorce, personal injury matters, business formation, litigation matters and estate planning.  Come learn how you may be inadvertently making a tax mistake in your practice of law.  Please RSVP to (801) 426-8200.

Photo courtesy of Flickr by kenteegardin

Monday, February 10, 2014

Paternity Case Presentation by Scott Card

Scott Card gave a presentation to a group of over 100 students from Payson High School about the legal consequences of out-of-wedlock pregnancy and child birth, better known as a paternity case. The main point he wanted to convey to the high school students was the significant legal issues and costs that arise with the birth of a child to an unwed mother.

In his presentation, he focused on the law as it relates to the unwed mother, the alleged father, and the child. This discussion included how a father is identified, the amount of child support, medical expenses, birth expenses, insurance costs and other legal obligations that both parents have to their child. Scott also pointed out the power of the government in collecting support obligations from parents for the benefit of their children.  Also in the presentation, Scott outlined the rights of the parents as it relates to their child, including parent-time visitation. To conclude the discussion, Scott identified several statistics that relate to the illegitimate child’s future and the child’s general lack of opportunities. The general feedback from the students is that they had no idea of the costs of having an illegitimate child, the legal hassle, and the disadvantage that they would cause the child to face in his or her life. 

Scott has been presenting this information to high school students for 17 years and has presented to classes and assemblies in schools in the Alpine, Provo, Nebo and Juab School Districts. This important topic needs to be addressed as the number of illegitimate children is approaching 45% of all births. Scott is happy to speak to any group of youth or adults about this important topic. 

Tuesday, February 4, 2014

January Brown Bag Recap: Construction Defect Claims and Defenses in Utah

At our January CLE luncheon, attorney Daniel Day presented on construction defect claims. He discussed when a defect claim can legally be made and who would be potentially liable in various cases. 

Mr. Day’s presentation focused on analyzing who would be potentially liable for defects under various scenarios. For instance, among the factors that would be critical to analyze would be whether there was personal injury or damage to the property other than the construction itself. Absent such injury, one would not be able to pursue a negligence action against the contractor because the economic loss rule would be a valid defense.

If there was not personal injury or other damage, a valid case might be pursued under a theory of breach of contract, breach of fiduciary duties, intentional tort (such as fraud), or strict products liability, depending on specific circumstances.

It is important for both builders and owners to understand their rights and obligations before constructing a building so both parties know what to expect. If you have been disappointed with the results of construction or are having construction defect claims brought against you, seeking legal advice and representation is the best step to ensure your rights are protected.  

Thursday, January 30, 2014

“I’m Getting Divorced But Hiring an Attorney Is Just Too Expensive” By Matt Howell

While I understand that sentiment, I also know that it is just wrong. The costs of handling a divorce without an attorney can far outweigh the costs of hiring an attorney to make sure your rights are protected. I have sat in court on many occasions waiting for one of my cases to be called and have observed the judge or commissioner tell the two ex-spouses that they would have saved a lot of aggravation, frustration, and money if they had only hired attorneys when they were first getting divorced. Because they did not do that the first time around, they were doomed to spend multiple rounds of litigation trying to fix problems that a lawyer could have and probably would have helped them avoid right up front. 

There are a number of things in life that are important to do right and to do them right the first time because if you don’t, the quality of your life after that will suffer significantly. One of these is getting divorced.

In a divorce there are five major questions that need to be answered:  child custody, visitation (also called parent-time), child support, division of the assets and debts of the marital estate, and alimony. If the parties cannot reach an agreement on any of these matters, the court will have to decide it. If the court decides custody and visitation, it will do so based on what is in the best interests of the child. The court will try to determine with whom it would be best for the children to live. This can be decided based on factors such as:
  • Which parent has been the primary caregiver up to that time?
  • Which parent will be more available to meet the children’s ongoing needs
  • Do either of the parents have a history of child abuse, neglect, or abandonment? 
  • Are either of the parents involved in any activities that may pose a threat to the welfare of the children 
Child support will be determined by the court determining the income that each parent has (or could have if the parent worked full-time) and running those numbers through an analysis created by the state legislature. That analysis will provide the amount that the non-custodial parent will be required to pay to the custodial parent. Absent some very unusual circumstances, the court will not change that amount.

The assets and debts of the divorcing parties are required to be divided in a manner that each party will receive one-half the value of the overall estate (whether that value is positive or negative). The court may choose to give one party more of the total assets than the other but also allocate more of the marital debt to that party. Excluded from this calculus are any “separate” assets or debts. These include any assets or debts that existed prior to the marriage, as well as any gifts or inheritances received by only one of the spouses. They also include student loans.

The last issue that the court will decide is alimony. Alimony is designed to accomplish a number of goals. The first is to ensure that neither party ends up qualifying for state welfare support. It also ensures that each party will continue to live at the same standard of living as they did during the marriage or, if necessary, that both parties take an equal step down. In the case of a long-term marriage where one of the parties was the breadwinner and the other was responsible for caring for the children, alimony will prevent the one that has spent many years developing a career and increasing their earning capacity from leaving the other, who may have been out of the work force and have no earning ability beyond entry-level work, without a fair contribution for the efforts both parties put in during the marriage.

All of the foregoing generalizations are subject to multiple exceptions and judges have a fair amount of leeway for most of them. Additionally, the parties working together can often come to an agreement that will better meet both of their needs than anything the court might decide. Mediation is a tool that is often used to reach such agreements. Even in mediation, however, it is important that you have the advice of someone familiar with the issues surrounding divorce so that you will understand whether what you are being asked to give up in the settlement negotiations may be worth what you are gaining. An experienced attorney is what you need to make sure that you avoid the pitfalls that many divorcing parties fall into.

Thursday, January 2, 2014

Will An Online Will Cover My Needs? By Stephanie O'Brien

I’m often asked, “When should I do estate planning?” The answer for the majority of the population is now. For some, the need to name guardians for their minor children is the motivator for getting planning in place. For others, the fuel to their planning fire is a special needs child, a feuding family, an upcoming foreign vacation, a child struggling with addiction, wanting to prevent minor children from getting their share of life insurance and other inheritance at the green age of eighteen, the need to reduce estate tax exposure and the list is nearly endless. 

The next question I hear in phone consultations is often, “Can I do an online will or trust?” Yes, you can, but that doesn't mean you should. Do-it-yourself will and trust software claim credibility because their documents “have been enforced in court” (or “held up” in court). While some may be sufficient, I have seen numerous documents produced by online programs that are nonsensical, don’t state what the client thought they did, or simply fail to consider the scenarios that should be covered by the most basic will or trust. Beyond that, will software cannot take the place of a licensed attorney listening to your specific situation, internalizing your objectives and creating a plan tailored to meet your needs while making the least number of concessions possible. 

A couple recently approached me with concerns about naming their son, a long time prescription drug addict, as a beneficiary of their estate.“We love our son and don’t want to disinherit him, but he is addicted to drugs and we’re worried that he’ll blow the money on drugs.We wish we had another choice,” they explained. By utilizing a living trust, we were able to provide the son an opportunity to qualify as a beneficiary contingent upon his achieving certain milestones and proving sobriety to the managing trustee after the death of his parents. The couple had been unaware of the flexibility a trust can provide and, without having sought the assistance of an attorney, would likely have disinherited the son that they very much wanted to name as an heir of their estate.

In countless other matters, I have helped clients provide for the care of their special needs child. When dealing with beneficiaries with special needs, it is important to engage in planning so that the child inherits without jeopardizing his/her ability to qualify for Medicaid or other government benefits. Too often a special needs beneficiary’s government benefits are endangered by their direct inheritance of monies from a parent or loved one. Too many families with special needs children make the mistake of either 1) disinheriting the child (because the parents are aware that government benefits may be at risk) or 2) naming a disabled child as a direct beneficiary, unintentionally jeopardizing government benefits. Government program guidelines vary from state to state and online software likely cannot tailor your plan to protect your special needs child in the way that a live and licensed practitioner can.

In short, a do-it-yourself will may be valid, but it likely won’t cover all of your bases or accomplish everything you intend for it to. Beyond that, you may be surprised at how affordable estate planning actually is.