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

July 2009 Archives

Cash for Clunkers, Game Over?

With nearly $1 billion worth of cash being handed out for hundreds of thousands of gas-guzzling "clunker" cars, the government's Car Allowance Rebate System (CARS) program has been such a success that it is looking to refuel.  The funds that were scheduled to last until November are sputtering on empty...just days after the Cash for Clunkers program officially kicked off on Monday.

If you were thinking of doing your clunker trade-in this weekend, President Obama and the White House crew give you a green light to go ahead.  However, beyond that, they are looking to Congress to infuse the program with another $2 billion in funding.  To complicate things a bit, Congress will be out on summer recess after today, though Senate will stay in session through the end of next week. 

Full, Permanent Custody for Grandma Jackson

Staving a potentially-complex custody trial, set to begin next week, to award custody of Michael Jackson's three children, parties have come to an amicable agreement awarding full, permanent custody to Jackson's mother, Katherine Jackson, with visitation provisions for his ex-wife, Debbie Rowe.  The children, Prince Michael, age 12, Paris Michael age 11, and Prince Michael II aka "Blanket", age 7, have spent much time with the nearly eighty-year-old Grandma Jackson.  Mother of the older two children and ex-wife of Michael Jackson, Debbie Rowe, signed off her parental rights as part of the divorce settlement with the late pop icon in 2000, but recently voiced an interest in caring for the children.

The issue of grandparent custody rights is a growing field of family law, especially considering complex family trees such as that of the Jackson family's.  When siblings do not share the same parents, it is a natural scenario for grandparents to seek adoption of all of the children. 

But how does the law view grandparent custody and guardianship?

Homeless in NYC? Here's a One-Way Ticket Out

New York City Mayor Michael Bloomberg initiated a program in 2007 that provides one-way tickets to homeless Big Apple city dwellers back to their original hometowns.  Is it a quick fix to improve the City's abysmal homelessness stats or a viable logical solution?

Over the course of two years the City has sponsored bus, train, and air fares for over 560 families spanning 24 states and five continents.  Common destinations are Florida, Georgia, North and South Carolina, and Puerto Rico, but the list also includes Paris, South Africa, Haiti, Peru, and Trinidad and Tobago.


Amanda Bonnen and The $50K Tweet

A Chicago woman is being sued for defamation by a realty company that claims her tweet detrimentally affected the company's reputation.  Horizon Group Management is all atwitter from Amanda Bonnen's 140 character or less entry that included, "Who said sleeping a moldy apartment was bad for you? Horizon realty thinks it's okay."

The case was filed in Cook County court specifically claiming that the tweeter "maliciously and wrongfully published the false and defamatory tweet on Twitter, thereby allowing the tweet to be distributed throughout the world."  The realty company owns over 1500 apartments.  Bonnen, with the now-retired twitter alias 'bonnen' had a total of 20 followers.  The tweet in question was an @ tweet, directed to a specific user, broadcast on Amanda Bonnen's profile.  And those are the facts.

Cash For Clunkers, Game On

Monday kicked off, in full force, the "Cash for Clunkers" government program. Also known as the CARS program, Cash for Clunkers allows car owners to trade in their older autos for a sizeable discount on a more fuel-efficient set of wheels.  New-car hopefuls can bring in their cars dating back to 1984 that get no more than 18 miles per gallon.  The amount of discount depends on the fuel efficiency of the new car, rewarding 22+ mpg with a $3500 discount and cars getting 10 miles more (or better) a total of $4500 off of a new car sticker price.

The innovative $1 billion federal program aims to benefit car buyers, the economy, and the environment in one fell swoop.  For consumers it is a way to get more out of their older cars--which may only be able to net hundreds of dollars now.  For dealers, rolling cars out of the lot is good for business and, if the program is successful, will be a boost for automakers.  And replacing outdated gas guzzlers with their more fuel-efficient successors may pave the way for reduced emissions. 

Attorneys are using an obscure law to enforce unpaid healthcare bills by seniors.  In Pennsylvania, attorneys have dusted off old law books to make use of a law that holds adult children financially responsible for their parents' health care debt.  An article in the Philadelphia Inquirer reported on an adult son who was afflicted by this legal bow and arrow when he was sued for his mother's $8000 bill at a nursing home.

Pennsylvania is not the only state with filial responsibility laws, requiring adult children to care for their parents.  Thirty states feature such laws that allow a variety of healthcare institutions, public agencies, creditors and even the parents themselves to bring a claim. 

FINA To Ban Hi-Tech Swimsuits from Competition

The Swimming Can Stay, the Suits May Have to Go.

FINA, the governing body for international competitive swimming, voted last week to ban the full-body polyurethane suits that made a big splash in the 2008 Summer Olympic games.  The world intently watched Michael Phelps wind up with his distinctive arm flail stretch---donning a suit that hugged his body from neck to toe---go on to win a record-breaking 8 Olympic gold medals at Beijing's Water Cube last August.  And though his Speedo-brand suit was made partly of polyurethane, using a technology developed by NASA, full polyurethane suits have also emerged and have been attributed to shaving off precious milliseconds from swim times.

It's all been enough to raise FINA's eyebrows. 

Home Burial: The Option of Resting Peacefully at Home

Death does not usually share its Google Calendar with us.  In light of its unpredictability, making funeral arrangements can be an emotionally difficult and financially tolling prospect for loved ones.  The New York Times recently reported on an emerging practice of home burial--in which the final rites are conducted in the personal setting of home.

Rental Prices Slide: How to Make the Most of It

If your lease is coming up for renewal you may have looked around to see that not only are home prices falling but rental prices have taken a tumble too.  This may be just the time to re-negotiate your lease using sound negotiating principles--putting yourself in the best position for a great deal and giving your landlord peace of mind that the unit won't lose money by sitting idle.

Second quarter figures from the real-estate realm have been released and the numbers show that asking rents went down by 0.6%, and that is after falling the same amount in the the first quarter, following a 0.2% drop in the 4th quarter of 2008.  And to give a little perspective, over the past ten years there has been only a single other quarter in which asking rents showed a decline.  And though not all cities across the board experienced a drop, areas that topped the list for major asking rent drops include: the San Francisco Bay Area, Seattle, New York, and Southern California.

What does this all mean for you, neighborly renter?  It's time to finesse your game, and get in on the rent-dropping action!

Unemployment Benefits to End for 650,000: What to Do?

The recession that has claimed 6.5 million jobs from the country's economy since the end of 2007 is now poised to take away the unemployment benefits from its standing army of employable job-seekers.  An estimated 650,000 people will lose their benefits by September 2009. 

The good news is that economic indicators are looking up and financial experts are cautiously optimistic that the country is on the long road back.  And while that may ultimately help you, right now you may be in need of an immediate exit strategy.  Here are three simple action items you can do, now.

John McCain Apologizes for "Running" to a Lifted Tune

Running for President can get you some major publicity, probably a few free meals, maybe a wardrobe refresh... but one thing we have learned from the 2008 elections is that it cannot get you unfettered use to someone else's songs. 

Settling musician Jackson Browne's copyright claims against GOP Presidential candidate this week, John McCain, the RNC, and the Ohio Republican Party issued a public apology for using Browne's 1979 tune, 'Running on Empty' in an ad campaign without prior permission from the artist.  And in addition to an undisclosed settlement sum, the three sorry-sayers also pledged to make a point of seeking permission from artists before using their works in the future.

DOJ Remedies Injustice and the CDC Open the Immigration Door

Two recent developments in U.S. law signal the government's move to increase the body of rights available to persons with HIV/AIDS.  The  last week extended the opportunity to attend occupational training schools and become licensed in occupations such as barbering, massage therapy, and home health care assistance to persons afflicted with HIV or AIDS.  And the Centers for Disease Control and Prevention (CDC) have put forth a to lift the 22-year ban on foreign travel to the U.S. for persons with HIV.

Hosting a reality show just became a bigger deal-- in fact, the biggest of its kind.  Ryan Seacrest-- host of the wildly popular singing showdown American Idol reportedly signed a to stay on in his role in the show.  This would make him the highest paid reality host on television.

And while Seacrest may be a fan favorite, the spotlight is now on the remaining American Idol judges.  Who will stay to sing another day and will anyone be sent packing?

Old is Gold: Guarding Against Elder Abuse

They Used to Rule the World...

The collective strain on the economy has had impact on the country's golden guys and girls.  An estimated of each year, leading to an annual loss of an astounding $2.6 billion.  And that was before the economy went south. 

Common Law Marriage: Not As Common as Living Together

Moving In: A Stop on the Way to Breaking Up?

A recent study from the University of Denver concludes that that couples who move in together without the commitment of marriage have a higher chance of divorcing than couples who live together after getting engaged or married. 

To add insult to injury, the study-- which was published this week in the Journal of Family Psychology-- found that couples who did get married after an initial shacking-up period reported a lower satisfaction with marriage.   Besides giving wedded bliss a whole new meaning, are there any legal implications for unmarried move-in and potential move-out?

Two Moms, Two Dads, and a Baby

Custody Battle Between Two Gay Couples Raises Questions About Sperm Donors, Birth Certificates and Contracts

Remember back in the day when marriage was between a man and a woman, divorce wasn't that common, and children generally grew up with a mom and dad... yeah, neither do we really.   Luckily we adapt to the changes and just roll with the punches.

And this is one unique punch to roll with.

Child Support Agreements in Native American Tribes

A Tribal Call for Re-Enforcement: Giving Teeth to Child Support Agreements in Native American Tribes

Enforcing child support agreements can be challenging on its own, but within the setting of Native American Tribes, it has proven to be a classic bark-without-bite scenario.   Since only states can take certain garnishment actions such as intercepting tax refunds to pay child support commitments, tribal courts have not had alternate means of collection.  State tribal support programs are authorized by the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which made far-reaching changes to the Child Support Enforcement Program.

5 Must-Answer Personal Finance Questions

Can You Answer These 5 Basic Questions About Your Finances?  Analyzing the Black Box of Personal Finance.

What is a subprime mortgage? What is a FICO score and what role does it play in getting a loan? What is 1% of $50,000? When you need quick cash, do you overdraft a check, wire money, get a credit card advance or apply for a short-term payday loan? How much time would it take to pay off your credit cards by only making minimum payments?

If you had trouble answering these questions you join over half of Americans surveyed by The Center for Economic and Entrepreneurial Literacy (CEEL) who could not correctly identify these much-discussed financial topics.  Whether it is fear of the unknown or a 'don't fix it unless it's broken' mentality, not knowing basics of personal finance can put you in a tough spot it in this tough economy.

How Child Support Calculation Works in the Recession

Changing Careers, Going Back to School, etc.

A big question that comes up often in the context of divorcing couples with children is how child support will be calculated in their case. This may be particularly the case in the midst of difficult economic times, with homes and assets losing value, and job loss often a concern. Unfortunately, and perhaps particularly so when calculating child support in the recession, the answer is sometimes not as straightforward as one might think, and multiple factors and decisions could come into play.

Federal law has required states to come up with "guidelines" for calculating child support, but these guidelines have different formulas and vary widely from state-to-state. Still, the guidelines generally consider one or both parents' income(s), the number of children, and sometimes other factors such as the particular needs of children (e.g. health, education, etc.) and their pre-divorce standard of living.

Clearly the most important consideration when figuring out child support is parental income. But people sometimes wonder what qualifies as income. Generally, it's a pretty far-reaching definition. Under federal law, a state's definition of income has to encompass all income and earnings of a non-custodial parent. As a result, a person's "gross income" includes money received from the following sources (these are just some examples):

Massachusetts Sues Federal Government Over Defense of Marriage Act

Will Other States Follow Suit?

Once again trail-blazing as far as same-sex marriage rights are concerned, Massachusetts has become the first state to sue the federal government over the constitutionality of the federal Defense of Marriage Act of 1996. As noted by the AP, Massachusetts may be the right state, from a symbolic standpoint, to be first in line to challenge the federal law considering that it was also the first state to legalize same-sex marriage. At any rate, what's this lawsuit about?

It's probably best to start with the federal law that's being attacked, the Defense of Marriage Act of 1996. As suggested in a prior post, this law does two key things:

1) defines marriage to be between one man and one woman for purposes of federal law; and

2) says that no state has to recognize a same-sex relationship as marriage, even if it was a legal marriage in another state.

Underwater on Mortgage: Just Stop Paying?

A big part of the reason why the economy is sagging may lie in the difficulties facing the housing market. Now, many have probably heard reports about rising foreclosures, but could a chunk of the foreclosures going on actually come from homeowners making a "strategic" decision to, basically, throw their hands up and just stop paying? Well, according to a TIME article, that's exactly what a study suggests may be going on in some places.

Essentially, homeowners who are "underwater", i.e. they owe more than what their house is worth, may be making the choice to simply not put more money into a house that's lost such value. In other words, some people could be entirely capable of paying the mortgage, they simply may be choosing not to. The piece suggests a motive that, despite the potential consequences of failing to honor their mortgage obligation, "lenders tend not to pursue former homeowners for the money they are owed because of the prohibitive cost of tracking down such people and suing them." So, is this really a great idea?

D.C. Gay Marriage Bill Takes Effect: What It Means

An article published today in FindLaw's Writ by professors and columnists Joanna Grossman and Edward Stein kicks off a "state of the nation" report on same-sex marriage rights. The piece takes a look at the history of the movement and also suggests that, despite recent advances for advocates of gay marriage in the past few months, "we are unlikely to see significant additional changes in the near term." At the same time, however, the AP reports that, just today, a gay marriage bill took effect in Washington, D.C. Isn't this a pretty big step? Well, taking a closer look at the D.C. law, it does seem to be a bit more of a proverbial baby step for gay marriage advocates than a giant leap.

First off, despite the possible connotations that come with referring to something as a gay marriage bill, the D.C. law doesn't mean that gay marriages can be performed there. In fact, issuing gay marriage licenses in the city is still illegal. Instead, the bill allows for gay marriages performed in other states to be recognized in the nation's capital. Although gay marriage recognition is certainly not inconsequential, currently there are only six states that allow gay marriage: Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont.

Audit of Family Courts in California Counties Ordered

Response to Concerns about Court-Appointed Specialists

Two California counties are going to have their family courts investigated for potential abuses in the way that court-appointed specialists are used. The state Joint Legislative Audit Committee voted unanimously last week to approve the audit in the two counties in response to the relatively higher number of litigants "reporting problems and filing complaints".

One report noted that the use of court-appointed specialists in family law disputes have been criticized in that "such appointees can form incestuous and incompetent networks more concerned with generating fees than helping children through painful custody fights." An advocate of the audit, State Senator Mark Leno said in an interview, "It becomes a service mill, a cottage industry of sorts...Maybe state law needs to be changed."

Wage Garnishment and Bankruptcy Linked?

Garnishments 101

An AP analysis indicates that states which allow debt collectors to go after a person's wages in their collection efforts actually have higher bankruptcy rates than states which prohibit or set limits on that collection tool. As a result, the AP report suggests, the creditors may actually be shooting themselves in the foot by seizing wages because the practice can just push already cash-strapped consumers into bankruptcy, where the debts owed may be severely curtailed or even wiped out. Here's a short run-down on what garnishment is, how it works, and how it may be limited by law and the filing of bankruptcy.

So what is a garnishment? A garnishment is basically a legal collections tool. It's a procedure that allows a creditor to go to court and get an order requiring an employer to withhold a portion of an employee's wages. Now, before anyone panics about an unpaid debt, it should be noted that wage garnishment isn't remotely a first option for creditors. Usually a debt has to be delinquent for at least a few months, and other collection efforts exhausted, before the option of garnishing someone's wages is explored by a collector.

Have Marriages Become Disposable and Divorces Too Easy to Get?

Some commentary on CNN today brought up the flip-side of the "fault" vs. "no-fault" divorce issue discussed earlier in the context of New York divorce law. The author, Georgia Supreme Court Chief Justice Leah Ward Sears (who actually stepped down this week), seems to argue in part that, basically, it's gotten to be too easy to get divorces and marriages have been made disposable. The commentary provides some insight on divorce from a judicial perspective, and also on some serious personal and societal consequences.

How Long Does Divorce Take?

Now, as discussed earlier, New York would probably represent an exception to the no-fault/quickie divorce scenario, but people might wonder just what is the average process and timeline involved in a divorce? Unfortunately, each state does have its own specific procedures and timelines, which makes it difficult to provide a solid timeline. What can be said in general is that when couples agree to a divorce, and there are no major disputed issues (e.g. child custody), then the process can be relatively quick, and court approval can be a formality (for better or worse). Otherwise, each divorce has its own issues and level of complexity that affect how long it can take. That said, here's a quick and very general overview of the divorce process:

Divorce: New York's Separation from the Rest

There's been quite a bit of talk about rising divorce rates in the recession, while at the same time there's also been mention of how hard times can make it tougher for couples to split up, simply as a practical matter. But if a couple going through rocky marital times lives in New York, they may find even more obstacles to getting a divorce that aren't found elsewhere.

When one or both parties to a marriage come to the difficult decision that it is time to seek a divorce, it might be assumed that it is a matter of paperwork and going through a court proceeding to obtain one, particularly where there are no difficult custody or property issues to deal with. In many places, this assumption may actually be correct, but New York bears the arguably dubious distinction of being the only state in the country to still, for the most part, require "fault" in order to obtain a divorce. In other words, even if the parties agree that they want a divorce, they may not be granted one by a court.

Here's the four grounds set forth by statute for obtaining a "fault" divorce in New York. They are: 1) adultery; 2) the cruel and inhumane treatment of a spouse (this has to have serious effects, unlike some other states with similar grounds); 3) abandonment (for at least a year); and 4) a spouse's imprisonment in jail. Noteably, the commonly cited ground of "irreconcilable differences" available in some other states, is not viable as a grounds for divorce in N.Y.

These days divorce proceedings often involve alternative dispute resolution. Arbitration or mediation can be available in lieu of court proceedings, can be mandatory steps in the divorce process, or can be used to decide specific issues within a divorce. A growing number of states are facing the question of whether decisions about child custody and parental visitation can be decided through binding arbitration. Today, New Jersey became the latest state to answer yes.

Despite all the upsides to alternative dispute resolution, one arguable downside can be that it's often extremely difficult to challenge the results of a binding arbitration. This means that the parties opting to resolve divorce issues through binding arbitration rather than in court can't appeal the arbitrator's decision to the same extent that they would be able to appeal a court decision.

Of all divorce related decisions, custody awards can be the most hotly contested, and the most likely to be appealed. So, should parents be allowed to settle these issues outside the range of court challenge?

Following up on the reports about a Michael Jackson will, it is now reported that indeed, Jackson's will has been filed and that it purportedly transfers Michael Jackson's assets to a trust, specifically, the Michael Jackson Family Trust. People may tend to "tune out" when they hear the word trust alone, maybe thinking trusts are complex and of value only to the fabulously wealthy. In reality, however, trusts can be useful tools for a wide variety of people.

First, what's a trust? A trust is basically another way of planning a person's estate, in addition to or instead of, the more popularly known wills. Someone who owns property can create a trust by transferring legal ownership of their property to a person or an institution (such as a bank), who will become the "trustee". That trustee then manages those assets for the benefit of a specified "beneficiary".