Law & Daily Life - The FindLaw Life, Family and Workplace Law Blog

November 2016 Archives

Making the decision to adopt a child is usually filled with positive emotions for most couples. That is, until they start looking into the process and get bogged down by the complexity.

Adoptions are not simple. There is a lot of very important legal paperwork that needs to get done and done right. Since adoption laws vary from state to state, it is advisable to seek the help of an adoption attorney at the outset and at various times throughout the process.

While hiring an adoption lawyer to handle the entire process can frequently set soon-to-be parents at ease, full service is not necessary. Adoption lawyers, like any other lawyer, may be rather costly. To control costs, you may wish to only have an attorney handle certain tasks. At a minimum, adopting parents should have an attorney review all agreements they sign. Also, an attorney can help educate prospective parents on the various types of adoption, such as international adoption, and their risks and benefits.

Despite what president-elect Trump now thinks, burning and desecrating the United States flag is completely legal. On Tuesday, November 29, president elect Trump tweeted out that he believed people who burn the flag should lose their citizenship and face a year in prison. Could he ever make that happen?

Fortunately, the First Amendment protects flag burners, and the United States Supreme Court has confirmed the same. While there have been numerous attempts over the years to prohibit flag burning, none have been successful as the Supreme Court returns to the First Amendment protections and explains that burning the flag or desecrating the flag is an act of symbolic speech.

For the average couple going through a divorce, the notion of maintaining the same standard of living post divorce is nothing more than wishful thinking. Courts have long since recognized that a married couple enjoys certain financial advantages when cohabitating that vanish after a divorce, particularly that the couple only has to manage one household’s expenses.

When a couple divorces, spouses usually stop cohabitating, which means each spouse must now pay rent or make a house payment. The cost-savings of shared expenses vanish, which almost certainly will cause both former spouses to live below their prior standard of living. However, there are situations where a couple’s marital standard of living will have an impact on an award of alimony or spousal support.

Although fictional stepparents have made the lives of stepchildren awful in fairy tales and movies, many people are surprised to learn that real life stepparents routinely don’t have any actual legal authority over their stepchildren. Without the consent of the legally recognized parents, a stepparent cannot send a stepchild to military/boarding school, make medical decisions, or make other decisions that parents routinely make.

Fortunately, there are options for stepparents that want to be more involved in their stepchild’s lives. Apart from discussing a stepparent’s role to informally set what decisions they may make, there are are formal, legal ways for a stepparent to become the legal parent of a stepchild. The two most frequently utilized options are adoption and parenting agreements.

The holiday season can be the happiest time of the year for many families. But if you’re facing some trouble in paradise, the holiday season is likely to raise tensions and make this time of year anything but happy.

If you’re considering making a change to your familial status over the holidays, here are the top 5 family law issues related to the holidays.

Amid the current controversy over the Dakota Access Pipeline (DAPL) that has been making headlines for the last month, last week the United States Department of the Interior announced the cancellation of 15 oil and gas leases on the land of the Blackfeet Nation, a Native American tribe. Fortunately, the lands that were leased had not been tapped for oil, nor developed, which makes the cancellation a much simpler, and much more cost effective process.

The company that held the leases, Devon Energy, cooperated with the feds and agreed to accept a refund of approximately $200,000 to account for the fees and payments made to lease the land. While these lease cancellations will not stop the DAPL, the Blackfeet Nation, and many others, are happy that the land will continue to be preserved.

A legal guardian is someone appointed by a court to make important life decisions on behalf of another person. That person is often is child, elderly, or otherwise incapacitated who is unable to make those decisions on their own.

Guardianships can be complicated, depending on the circumstances under which they are established, and can include decisions from simple life necessities like food and clothing to more complex medical or financial choices. Here are some of the biggest questions concerning guardianships, along with some helpful answers, from our archives.

A Minnesota mother is suing her own daughter in an attempt to block the child's gender transition. The mother, Anmarie Calgaro, is taking both her daughter and her daughter's medical clinic to court, seeking to stop any future medical services after the clinic did not give her notice of the child's gender transition.

The lawsuit raises issues of minor emancipation, access to medical services, and how much control a parent may have over their children's medical decisions. It may also be a lesson, if not a wholly legal one, in how not to repair a relationship with an estranged child.

The First Amendment Defense Act is a bill before the United States Congress that would serve to protect individuals and businesses from federal action when they deny a person service if they are acting according to religious beliefs about marriage. While this may sound like an important protection to provide, as many critics have explained, the bill actually protects religious discrimination.

This is that notorious bill that would allow a bakeshop to deny a same-sex couple services based on religious beliefs. It could allow same-sex couples, whether married or not, to be denied not just cakes, but also the right to visit their partners in religious hospitals, or receive employer health benefits, all under the guise of religious freedom.

There have been major concerns regarding the intermingling of President-elect Donald Trump's business and family relationships, and how those might change once he takes office. When Rudy Giuliani addressed these recently, he said that taking the Trump businesses away from the Trump children "would be putting them out of work," highlighting that "they can't work in the government because of the government rule against nepotism."

The rule might be especially important when it comes to Jared Kushner, Trump's son-in-law who acted as a close advisor during the presidential campaign and who Trump is rumored to have tabbed for a senior spot in his White House. So what is the federal law against nepotism say? And does it apply to Kushner's possible appointment?

The common knowledge surrounding divorce is that you not only lose your spouse, but half of everything you own as well. As it turns out, you might only lose half of everything both you and your spouse own collectively, and even that could depend on what state you live in.

While some states divide all marital property equally upon divorce, others follow rules of "equitable distribution," meaning it's more likely that a spouse will leave the marriage with all of the assets or property that he or she acquired during it. Here's a quick look at which states follow which rules in a divorce, and what you might expect if you're the chief earner in the household.

The freedom of speech is one of the most frequently cited constitutional rights online. Too frequently, it is cited to justify a person's right to say something that others find offensive or upsetting. However, while most understand that there actually are limits to free speech, just as many are shocked to learn the freedom of speech doesn't actually apply to any of the websites they are likely using.

For starters, the First Amendment only protects people from the government restricting their speech unreasonably. For instance, it does not protect people in real life, or on the internet, who incite violence; nor does it protect people making credible threats of violence.

Since websites are privately owned, websites are free to develop their own policies regarding what is or isn't allowed. You will generally have no legal recourse if a website chooses to censor you (although if it is done discriminatorily or in violation of a contract, you may).

Despite the fact that the choice of gender on official or legal documents is almost always limited to two choices, male or female, many people feel they don't fully belong on either end of the spectrum, but somewhere in the middle. One of those is Jaime Shupe, who was born with male genitalia but identifies as female, and feels more like "a third sex."

Fortunately for Jaime and others, courts and state and federal administrative offices are catching up with the evolving definitions of gender identity. In June, an Oregon judge granted a petition to change Jaime's gender from female to "non-binary."

How Does Age Factor Into Divorce?

There have been numerous studies apparently showing the correlation between a person’s age when they get married and their likelihood of getting divorced. However, age only tends to factor into the legal logistics of divorces when there is a significant age gap or the couple is nearing retirement. A person’s age can have big impacts on the financial and practical considerations in a divorce.

If a older couple decides to divorce, their respective ages can be an important factor to be considered as it relates not just to their health, but also to their retirement benefits. Also, if there is a significant age gap between spouses, there may be income and health disparity, and considerations regarding the length of time alimony should last.

Financial experts will all say that planning for retirement should start as early as possible. Starting the process may be difficult for many 20 somethings who don't have a clue where to start. Dedicating a set percentage of your monthly income to savings is not appealing to anyone, let alone younger people just entering the workforce; but the benefits of consistently doing so are exponential.

If you're struggling to get started, below you'll find 3 essential tips to help you start planning for retirement.

From the right to free speech and the right to vote to the right to a fair trial, our civil liberties are protected under the Constitution and the Bill of Rights. And beyond the enumerated rights in those documents, courts have protected other civil liberties like the right to privacy.

We often think of civil rights and civil liberties as interchangeable, but there can be distinctions between the two groups. Here's a look at civil liberties guaranteed by the Constitution and how they differ from civil rights.

When the only thing that you and your soon-to-be ex-spouse agree on is your love for your furry four-legged companion, deciding who gets to keep your fluffy friend can be impossible. As a result of these emotionally charged situations, people going through divorces are increasingly choosing to enter into shared custody agreements for their pets.

Under the law, pets are viewed as personal property, the same way a car, painting, or rug would be viewed. Depending on how and when the pet was acquired, most courts tend to just look at whether the animal is marital or separate property, and if the pet is marital property, then a court may look to who is the primary care-giver. However, while a court is unlikely to award pet support, awarding joint custody is not unheard of.

If you and your soon-to-be ex want to share custody of your pet, rather than let a court decide the outcome, it may be advisable to draft a written agreement, to make part of the divorce papers, that clearly spells out exactly how every situation that can arise will be handled. The following 5 tips can help you get started on writing up your agreement.

Last week, the Los Angeles City Council approved a measure that would effectively prohibit individuals from sleeping in their cars in any residential area, or near schools and parks. Although the measure was approved by the city council, it still needs to be signed into law by Mayor Eric Garcetti.

The new measure, if approved by Garcetti, would replace a prior ban that was put into place in the 1980s that was stuck down by the Ninth Circuit Court of Appeals a couple years ago.

When a person defaults on a loan, they may lose their home and have their credit rating ruined. But the effects of the default may not be limited to just that person -- enough loan defaults can be felt across an entire city.

That's what the city of Miami is claiming in a lawsuit filed against Wells Fargo and Bank of America, trying to hold the lenders liable when irresponsible loans cause broader economic damage. The suit was initially dismissed by a trial court, but now the Supreme Court will review whether Miami can sue for discrimination, on the basis that predatory lending has harmed the city as a whole.

Although the men and women who served this country deserve more than just one day to honor their service, every November, Americans are asked to honor and celebrate their veterans on Veterans Day.

While US laws attempt to treat everyone equally, veterans can sometimes have special rights, or get priority in employment, because they made the huge sacrifice to serve in the armed forces. For Veterans Day, and as a way to make the lives of veterans just a little bit easier, below you will find 5 of the top legal questions veterans ask.

It's the common divorce trope, from movies to rap songs, and maybe even the advice you got from aunt: if you get a divorce, your spouse gets half of everything. And while that might be the intent of some divorce laws, it's a bit more complicated than that and it's likely your divorce won't quite shake out that way.

What and how much each spouse will end up with in a divorce will vary depending on the state you live in and the circumstances preceding the divorce. Here's a look at some state statutes and the factors that will determine property division in a divorce.

Although there are several laws protecting employees from the bad actions of their employers, only a few states actually have laws against workplace bullying. To make matters worse, the laws are rather limited in what they actually protect. However, regardless of the weak legislation, there are steps employees can take to prevent and fight workplace bullying using the laws already on the books.

Although bullying can take many forms, if you are being physically abused, or even intimidated, involving law enforcement is advisable. Physical intimidation, or any unwanted touching, is illegal under criminal law, even if the touching is not hitting or sexual. Additionally, employers have a duty to keep their employees safe, and if you are being assaulted, physically or verbally, at work, your employer is failing in that duty.

While on the campaign trail, Donald Trump promised to build a "big, beautiful wall" along the United States border with Mexico and create a "special deportation task force" to deport millions of undocumented immigrants. Now that he's president, many are wondering if it's even possible, and whether a President Trump would have the legal authority to do so.

Logistically speaking, Trump's plan would target somewhere between 5 and 6.5 million people currently living in the country, and cost anywhere from $51.2 billion to $66.9 billion over the next five years. Can he actually follow through with it?

Before deciding to get a divorce, couples often will physically and legally separate. Sometimes it is an effort to repair the marriage, but more frequently than not, it is just the first step in the divorce process. Living separately does not end the marriage, but for many couples, living separately is preferable to divorce. Alternatively, long-term separation can allow spouses to start rebuilding their personal separate assets and get stable before divorce proceedings begin.

There are many reasons why a person would prefer to just live separately from their spouse rather than actually get divorced. While the reasons to stay separated rather than divorce are mostly financial, some people are influenced by religious, spiritual, moral, social, or even political reasons. If you sign a separation agreement, have an attorney review it first.

Most adoptions are warm, loving arrangements that permanently add more life and happiness to a family. But not all of them, and perhaps not one in particular in New York. According to court filings, investment banker Robert Roever is attempting to reverse the adoption of a 10-year-old boy, ostensibly to avoid paying the boy and his mother child support.

Can he get away with it? From the judge's comments and legal precedent, probably not.

The FCC is warning consumers to be on the lookout for telephone scam artists who impersonate government officials, such as law enforcement or other government representatives, demanding payment in the form of gift cards. Usually the impersonator will threaten that you or a family member will be arrested or face some other legal action unless a payment is made to them. The scammers then demand you purchase gift cards and provide them the redemption codes over the phone.

Although this scam has been around for some time, the FCC issued this warning amid concerns that scammers are employing the use of robo-calling to identify potential targets. Additionally, along with the consumer warning, the FCC held a town hall Q&A via twitter using the hashtag #RobocallChat.

Usually the first question green card holders, or immigrants with permanent residence status, ask their divorce lawyer is whether their divorce will have an impact on their immigration status. Although getting divorced does not mean a green card holder will automatically be deported, if your green card was based on marriage and is still in conditional status, a divorce can make it more difficult to lift the conditional status and legally stay in the US.

Fortunately for permanent residents who have already had conditional status lifted, it is highly unlikely that a divorce will have any impact on your immigration status, unless it's discovered that your whole marriage had been a fraud, and not the kind of fraud that married couples usually divorce over, but rather in the sense of defrauding US immigration law. However, those who still are in conditional status need to be concerned about the I-751 petition that must be filed to lift the conditional status. Typically, the petition is filed jointly by spouses 90 days before the two year conditional status expires.

Today is Election Day. And once Barack Obama's tenure in office comes to a close over the next few months, a new president will take over the Oval Office and nominate a new Supreme Court justice as well. This could mean that some of the initiatives from the Obama administration may either be repealed in Congress or overturned by the Court.

Here's a look at five of those laws and what the future may hold for them in the next presidency.

Whether you're traveling to be with, or maybe get away from, friends and family over the holidays, knowing the laws of the state or country you're traveling to is really important. Ending up on the wrong side of the law abroad can be scary and confusing, doubly so if you're traveling alone or don't speak the language. Before traveling abroad, it is always a good idea to do some research about the legal system and various laws of the country you are traveling to.

At a bare minimum, international travelers should check the US State Department's travel website to see what is recommended for their particular destination and if there are any travel advisories or warnings. Additionally, doing an internet search for commonly-violated laws by tourists for your destination might provide added peace of mind.

In addition to looking up the actual laws of your destination, the following legal tips could just save you from catastrophe.

Some people consider fights at school just kids blowing off steam, or the unfortunate, natural byproduct of throwing so many kids into a socially and emotionally charged environment. But many school fights aren't inevitable accidents, and perhaps could've been prevented with timely parental or teacher intervention.

If that doesn't happen, there are some rare cases where teachers or parents could be liable for school fights.

Some of us may be embarrassed about the personal nature of a divorce; some of us may think we can take care of everything ourselves; and some of us may have heard some unsavory things about divorce lawyers. No matter your reasons, you might be thinking of handling your divorce on your own, without legal advice. But there are a lot of reasons why that might be a bad idea.

Here are the biggest questions and tips when it comes to hiring a divorce lawyer, because the issues at stake are too big to take on by yourself.

Adoption, apart from being one of the best things a person can do, can be emotional, time consuming, energy draining, will testing, and expensive. Before starting the process, individuals and couples often spend hours researching as it is a legally complex process, much like any family law matter.

Below are 5 of the top legal questions people usually want to ask, but are a bit nervous or afraid about asking.

It's the first Friday in November, known around the world as Love Your Lawyer Day. Yes, we've heard all of the lawyer jokes and shark comparisons. But for every stereotypical ambulance-chaser or over-zealous divorce lawyer you hear about, there are many more attorneys working their tails off for their clients with little recognition. And it's more likely than not that a lawyer has actually made your daily life better in some way.

So, for one day at least, let's all show our lawyers some love. Here's why, and how.

While collaborative divorce is often touted as the peaceful way to get divorced, many couples that attempt collaborative divorce are making bad business decisions. At the end of the day, a marriage is a domestic partnership agreement, and like any contract or agreement, courts provide the best venue and an established framework for individuals to dissolve partnerships that do not work out.

Below are 5 reasons why you shouldn't fall into the trap of using the collaborative divorce process (or at least think twice about agreeing to try it).

When we go to a hospital, it's normally for a medical emergency when we need competent care quickly. We expect to get the medical treatment we need, and we expect to be treated just like any other patient. Unfortunately, that's not always the case.

Some hospitals may deny certain treatments or procedures based on religious grounds, and others are struggling with providing adequate medical services to transgender patients. And some doctors are profiling their patients based on race and gender. Here's a look at how hospitals discriminate against patients and what you can do about it.

Divorce get complicated when kids are involved. It's difficult enough when you're trying to resolve basic custody issues with an ex who lives across town. But what can you do if your ex-spouse is moving away and wants to take the kids away, too? Can you stop this from happening?

While most lawyers will try to include terms in a shared parenting agreement that describes how vacationing and relocation will be handled, all too often, custody agreements are silent as to these matters. Also, when parents do not share legal or physical custody, the non-custodial parent may not have as much of a say, depending on the state, even for a permanent relocation. To complicate matters further, each state handles custody matters according to state law, so different states can reach different results with the same facts.

Generally, however, a parent can seek to petition the court to modify or enforce a custody order to address changed or changing circumstances.

Despite the fact that marijuana has been completely legalized in a couple states, and legalized for medical use in half the states, using the drug can in fact lead to Child Protective Services taking your child/children away. In certain parts of the country however, CPS has more sophisticated guidelines that have adapted to the culture change towards marijuana.

Although many states have made using pot legal, federally, marijuana is a Schedule 1 drug which means it is still just as illegal meth and heroin at the federal level. Additionally, just like alcohol or legal prescription medications, legal marijuana can have a severe impact on children if they are exposed to second hand smoke, or overly intoxicated parents.

Last week, the Supreme Court announced that they will be taking up the case of Gavin Grimm, the high school student who has been told he can't use the boys' restroom because he is transgender. The case will be heard at some point next year, as the Court has only accepted to hear the case at this point.

When a case is appealed to the Supreme Court, one party to a case is asking the Court to review a Federal Appeals Court's decision. The Supreme Court is asked to review thousands of cases each year, and only selects about 80 to review. Although Gavin won the last appeal, the Supreme Court ordered that the appeals court's decision not go into effect until they decide to reject the case or after they decide the case.