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

October 2009 Archives

Revoking a Will--It May Be Easier than You Think

Writing a will sounds like a major undertaking.  In reality, wills can be simple or complex as related to the amount of assets and instructions for distribution.  But even if you are on top of it and have valid written will, there's a chance that at some point you may want to revoke it.  Marriages can come in and out of your life, parental and childrens needs can change, your own financial situation could change, and you may identify new or different charitable causes you want to donate to.

Will revocation is based on state law.  So before you take any drastic measures, it is a good idea to contact an estate planning attorney about the process and acceptable methods of revocation. The last last thing you would want is to destroy a will, with intent to revoke, only to have another copy of it resurface later, possibly creating a question of which will is valid.

'Slumdog Millionaire' Child Actors Could Lose Trust Funds

The child actors from the movie 'Slumdog Millionaire' could end up losing their trust funds if they can't maintain a regular attendance at school. Azharuddin Mohammed Ismail, 11, and Rubina Ali, 10, are child stars who have been provided for in a trust fund set up by the producers of the Oscar winning movie.

Top 10 Scary Legal Myths

MYTH: You have to be over the legal Blood Alcohol Content (BAC) limit in order to be charged with Driving Under the Influence.

FACT: In most states, it's illegal to drive a car while "impaired" by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver's body to prevent him from thinking clearly or driving safely. Many people get to this point before they are at the BAC limit, which is now .08% in all states. That means that someone who is not at or above the legal limit can still be charged with a DUI if their ability to operate a motor vehicle has been impaired.

MYTH: A written contract can't be broken.

FACT: Actually, parties can get out of written contracts in many ways. For instance, if the contract wasn't created adequately, courts will declare it not to be binding. Also, a contract is unenforceable when the terms are unconscionable - in other words, when the contract is patently unfair to one of the parties. The actual terms of a contract might also contain conditions under which the contract will be dissolved.

MYTH: If someone breaks into your house, you have the right to use lethal force against them.

FACT: While most jurisdictions protect a homeowner's right to defend their family and their property, not all that do allow the homeowner to use lethal force. Moreover, even jurisdictions that do allow for the use of lethal force require that the homeowner reasonable believed that the intruder meant to inflict death or serious bodily injury on them or their family.

MYTH: An error on a traffic ticket voids the ticket.

FACT: This isn't usually the case. For minor errors, there are administrative procedures that courts can use to modify information entered on a traffic ticket.

MYTH: If the police don't read a person their Miranda rights when arresting them, they can't be convicted of the crime.

FACT: We all know that police are supposed to advise an arrestee of their right to remain silent and their right to an attorney, but the failure to do so won't result in the case against the arrestee being dismissed. Instead, a judge might not allow any statements the arrestee made while in police custody to come in as evidence against them. This might make it harder to convict the person, but they could still be found guilty if there is sufficient alternative evidence.

Larry Johnson Should Think Before He Tweets

There is another example today of why you should "think before you tweet". Larry Johnson of the Kansas City Chiefs is the latest casualty of Twitter backlash. He is in hot water over a series of tweets on his Twitter account where he bashes his head coach Todd Haley and also lashes out at a fellow Twitter user that goes by the user name of @jaredlaunius.

SF Recycling Law: Don't Throw Away That Banana

A new recycling law in San Francisco will affect the way the City's residents take out the trash.  Literally. The ordinance requires residents, businesses, restaurants, and apartment complexes to separate food waste from trash.  The food waste must then be composted.

San Francisco already composts more than 500 tons per day, keeping 72% of its garbage out of landfills through recycling of cans, bottles, construction material, and cooking oil.  The new law would be a step in reaching San Francisco's aggressive recycling goal of having no garbage diverted to landfills within the next decade.  Zero waste by 2020. That is the plan.

What Constitutes a "Hostile Work Environment"?

According to the Federal Communications Commission (FCC), a hostile work environment is when harassment--including unwelcome comments or conduct based on sex, race, or other legally protected characteristics--unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.

What actions could cause a hostile work environment?

Uninsured? 5 Tips to Negotiating For Health Care

Despite the talk in Washington about health care reform, which could potentially provide health insurance to millions of uninsured Americans, legislation to be enacted in the future does not help if you are uninsured now.  If you are not covered by any current health insurance carrier or are worried about losing employer-based or university-subsidized health insurance, there is something you should know.

You might be able to negotiate your way to basic health care. 

Here are a few steps to take that may enable you to have critical face time with a health care professional, without the admission ticket of health insurance.

New Veterans Health Care Bill On the Books

A grey area of funding gained clarity last week when President Obama signed into law a measure that will ensure a steady budget for veterans' health care.  The Veterans Health Care and Budget Reform and Transparency Act will ensure "sufficient and predictable" annual funding for veterans health care.  Government spending for the Veterans Affairs Department up to this point has been subject to budget approval debates, resulting in funding delays.  In fact, for 20 of the past 23 years, Congressional approval of veterans health care budget has been late.

Marriage and Money: Prenuptial Agreements and Beyond

Love may make the world go 'round but it does not promise to keep a marriage intact. The statistics about marriage may surprise you.

The New York Times reports that the risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

One way to ensure that you don't end up a sad statistic? Try having a chat about important financial issues before you tie the knot.

Here is a list of money topics you need to know:

School Punishment with Duct Tape Alleged in Denver

A Denver Public School secretary at Palmer Elementary School allegedly used duct tape to bind the hands and mouth of a six year old boy who was acting up. Talk about taking school punishment to a whole new level!  

The Denver Post reports that Ms. Jennifer Carter is charged with false imprisonment and child abuse of six year old Joshua Fredericks. These are both criminal misdemeanor charges.

According to the boy's mother, Ms. Ashlye Tenner, the incident occurred last Wednesday when her son was sent to the principal's office for acting up. She told NBC's 9News Denver: "I can't even start to imagine what would make someone do something like this. Joshua is my son and I would never tape him up for any reason, so for a school secretary to tape up a student, it's beyond me."

Jon and Kate: The Money's Back, The Lawyer's Gone

Answering a judge's demand that money missing from a joint bank account with his wife be returned, Jon Gosselin reportedly replenished the absent $180,000 this week.  Somehow, however, his divorce lawyer went missing in the process.  Gosselin's Pennsylvania attorney, Charles Meyer, successfully petitioned the court to cease representing Jon.

Can an attorney withdraw from a case?

Siblings Who Were Caged Sue Adoptive Parents in Court

You may remember hearing about an Ohio couple in the news in 2005 who was discovered to have been forcing their 11 adoptive children to sleep in cages.  The couple was convicted of criminal charges including child endangerment and child abuse and each is serving a two-year sentences in state prison. 

The two oldest adoptive children, have brought a civil suit against the couple for abuses sustained during the 10+ years they were in the care of Michael and Sharen Gravelle.  Charges include negligence, recklessness, wanton misconduct, and deprivation of rights and the lawsuit seeks at least $50,000 per count to pay for therapy, education, and other compensatory and punitive damages.  The lawsuit also names social workers and the Hamilton County Department of Job and Family Services in Cincinnati as defendants.

How to Spot Sexual Harassment: 6 Facts

Though sexual harassment in the workplace may be an uncomfortable subject to discuss, Title VII of the Civil Rights Act of 1964 provides federal protection against the harassment on the basis of sex.

Here are six facts on identifying sexual harassment in the workplace, according to the U.S. Equal Employment Opportunity Commission (EEOC):

Update: Oklahoma Abortion Law Temporarily Restrained

We posted earlier about the new Oklahoma abortion law that would require posting of details of women who have abortions in the state on a public website.  The information posted online would include date of abortion, age, education, marital status and race of the mother, among other details.  The new legislation was challenged in a lawsuit brought by two women alleging violation of the Oklahoma state constitution.

It was enough to give the presiding judge reason to halt enforcement of the controversial new law.

TLC v. Jon Gosselin: The Breach of Contract Allegation

Where there's smoke, there may be fire.  And when a reality show makes a number of changes because of the non-cooperation of one of its stars it can hint to non-compliance with an existing contract.  In the case of Jon Gosselin, there's no need to look for nebulous signs of employment contract trouble, because the case was officially filed by the television channel TLC in a circuit court in Maryland last week.

The charges?

New California Handgun Law Puts Ammo on Lockdown

Among the numerous bills signed into law was one restricting the sale of handgun ammunition in California.  Here are some quick facts about the new legislation:

  • The law will require licensed dealers to keep ammunition behind the counter.
  • Gun dealers can only sell less 50 rounds per month to a particular buyer.
  • Gun dealers must record information about the ammunition sale including: date, buyer's birthdate, name, address, driver's license, thumbprint, signature; amount, brand, and type of ammunition sold; salesperson it was sold by.
  • Internet and mail-order suppliers are banned from selling ammunition directly to California state citizens
  • It will be illegal for anyone subject to gang injunction to purchase handgun ammunition.
  • The law will take effect in 2011

Balloon Boy Hoax Scenario: What About the Kids?

One week later, and the balloon boy saga continues to capture curiosity and headlines.  But before you start hearing about the sale of movie rights, there are  very real federal investigations and felony charges to contend with.  First, there are the criminal charges that may be levied against the Heene family under Colorado state law.  And the Federal Aviation Administration (FAA) has also initiated an investigation for violation of aviation regulations or of the FAA's regulatory authority, which could result in civil charges.

The reaction of disbelief and chagrin for the hoax involving the Heene's six-year-old son, Falcon Heene, has also put the spotlight on the Heenes as parents.  Local Child Protective Services (CPS) have been pinged by the sheriff's department to determine whether the living environment is safe for the Heene children.

5 Tell-Tale Signs of Identity Theft

Whenever you buy a new pair of jeans online, book a weekend getaway using your credit card, or appease your a bank or cable company by giving them the last four digits of your Social Security number over the phone...of course it crosses your mind.  Could my identity get stolen?  And, how will I know if it is swiped?

Here are 5 signs that can tip you off to a potential security breach with regards to your identity:

Prenup Alert: Lamar and Khloe Sign One... Should You?

There's nothing like a celebrity wedding to capture your attention.  It's just like a wedding you may imagine for yourself, except not at all.  Beyond a few potential differences such as budget size, celebrity guest list, and paparazzi considerations-- there are also some larger legal implications that may separate you from your favorite A-lister walking down the aisle. 

A Marriage Story, In Black, White, and Color

It is the late 1950's.   A Caucasian man proposes marriage to his future wife, a part-African American, part-Cherokee woman in Virginia.  The two decide to wed in the country's capital before settling down in their home state.  Instead of congratulation and celebration, their marriage is met by arrest and lawsuit for violating state law prohibiting interracial marriage.  The couple, Mildred and Richard Loving, briefly relocated to Washington D.C. to escape with stipulation of their sentences before returning to Virginia to fight the state's interracial marriage ban and make history in the process.  The now-famous Supreme Court case of Loving v. Virginia of 1967 established the legal right of interracial marriage, by finding state laws banning the practice to go against the grain of the U.S. Constitution.

Fast forward a half-century to southeastern Louisiana.  An African American man plans marriage with his Caucasian fiancĂ©e.  The local justice of the peace, an elected officer, refuses to perform the marriage.  The facts are different, and yet the issue of restricting interracial marriage is once again brought to main stage.

Vote-by-Mail Much? You Can Now in New Jersey

You no longer have to be an absentee voter to vote-by-mail in New Jersey.  According to a new state law that passed in the spring, voters absent and present can choose to exercise their voting prowess by darkening circles and filling blanks in the comfort of home.

What about fraud?

California's New Health Insurance Law: Not a Gender Thing

In the recent wave of legislation passing through California's capital, one more to add to the books has to do with gender equality and California health insurance laws.  Effective January 1st 2010, state health insurance companies and HMO's will not be able to charge men and women different rates for the same type of insurance policy.

Currently, California women pay anywhere from 5% to 40% more than male counterparts for equivalent insurance, even on policies without maternity coverage.   And backed up against tough economic stats, that doesn't bode well for unemployed women seeking to stay insured.

Breast Cancer Law 10-Step: Protecting Your Legal Rights

October is in the air.  Leaves are changing color, kids are talking ghosts and goblins, and... the world is reminded that there still is no cure.  October is Breast Cancer Awareness Month and amidst discussions of health care reform, individuals facing the disease or any form of cancer are often caught as unaware by their diagnosis as they are by how to safeguard their legal rights.

The American Bar Association (ABA) recently released an op-ed piece authored by the organization's President, Carolyn Lamm, focusing on the challenges faced by breast cancer patients.  One area discussed is workplace rights. The article identifies employment issues as one of the primary concerns of patients as they schedule time for treatment and recovery.

California's First Lady and Cell Phone Law 101

If you listen closely you might hear Alanis Morissette's "Ironic"  while reading this next story.  California Governor Arnold Schwarzenegger's famous wife, Maria Shriver, has issued an official and public apology.  So what has the Golden State's First Lady throwing up a white flag?

It is California's cell phone law that became effective on July 1, 2008.  As you might recall, the law requires drivers to use a hand-free device if they want to gab on their mobile device while on the road.  At the time, "Governator" Arnold Schwarzenegger declared cell phones as the #1 cause of distracted driving in California.  And that was before he realized that texting is just as bad.  The law that bans writing, reading, and sending text messages settled into effect on January 1st 2009.  Over one-third of all states have established some form of restriction on using hand-held devices while driving, or have enabled local laws to address the growing safety concern.

Jon & Kate Plus Alimony Lessons

Jon and Kate Gosselin have lived critical moments of their marriage, parenthood of 8 children, separation, and pending divorce in front of millions of television viewers.  The widespread curiosity and interest with the couple, beyond subjecting them to the unrelenting glare of the spotlight, have also brought attention to issues surrounding marriage and post-marriage legal procedure.

One such issue is alimony.  Kate Gosselin has reportedly filed for both child support and alimony earlier this month.  We have compiled basic facts and useful resources to help you become more familiar with the concept of alimony.

Senate Finance Committee OK's Health Care Reform Bill

With a vote of 14-9 the Senate Finance Committee approved the proposed 10-year, $829 billion health care reform measure that has been under review over the past weeks and months.  The reform measure aims to extend coverage to an additional 29 million Americans.  Of note, Senator Olympia Snowe cast the only Republican vote (of the 10 Republicans sitting on the Committee) in favor of the reform.  All 13 Democrats on the Senate Finance Committee voted in favor of the reform.  Also notable, the bill approved today did not contain a public option plan.

What's next?  

Spotlight on Gay Rights: Legislation Update

National Coming Out Day 2009 (October 11th) found itself preceded by a speech by President Obama and commemorated by a solidarity march on Capitol Hill involving tens of thousands of gay rights supporters---making it a big weekend to come out, be out, and demand to be equal.  California Governor Arnold Schwarzenegger followed suit by passing legislation recognizing rights of same-sex couples legally married in other states.  The hot-button issue of gay rights has been headlining the news of late.  Here's a rundown of recent legislation passed or discussed and events that have taken place to support the equal rights movement:

Can You Evict a Roommate, Legally?

By the time you ask this question, you can bet some drama has taken place.  Sure, it all started as a good idea.  Rooming with friends or choosing a roommate after interviewing candidates.  Not only would it get you into a great apartment but would lower your rent payments, and could even be fun.  But somewhere along the way your bad roommate stopped paying rent, began exercising some offensive habits, or has refused to participate in maintaining shared areas.  The situation just isn't working and now you find yourself wondering how to evict a roommate.

What can you do?

Update: Japan and International Child Custody Case

As we posted earlier this month, a father in the U.S. has been jailed in Japan for attempting to see and regain custody of his children who were taken to Japan by his ex-wife, in violation of a U.S. custody order that granted him limited custody of the two children.  At that time, the father--  Christopher Savoie-- picked up the children as they walked to school and then headed for the U.S. Consulate.  They was met by local authorities as he tried to enter the Consulate and booked for abduction.

Most recently, Japanese police have decided to keep Savoie in jail for another 10 days.  Reportedly, they have extended his prison stay on the southern island of Kyushu so that the country's legal authorities can determine if any charges will formally be brought against him.  He is said to be in touch with U.S. officials, who visit him on a regular basis.

Child Support in Review: 4 Posts and a Video

In light of high-profile divorce and custody cases such as Jon and Kate, non-reality star families in similar situations may wonder where they can learn more about child support, how it is affected by the recession, and ways to calculate how much is owed and how much is due.  Over the past months, FindLaw's Law & Daily Life has been reporting on various aspects of child support.  Whether you have just recently had to think about child support, or have been grappling with the issue for weeks or months, take a look at these posts and attached resources to get a better understanding of what you know, what you don't know, and how to fill in the gaps.

Nobel Peace Prize in the U.S.: Who Has Won and For What

If you were surprised when former Vice President Al Gore was awarded a Nobel Peace prize for his work to bring attention to global warming, this week's news of President Obama receiving the global honor may also have you wondering about who else has won and what the selection process is like.

First, some facts about the Nobel Peace Prize:

  • the Nobel Peace prize has been awarded annually since 1901
  • nominations are due 8 months before winners are announced, on February 1st of each year.
  • selection is made by an independent committee, made of elected members.
  • nominations for the Nobel Peace Prize can be submitted by former laureates, members of national assemblies and governments, current and former members of the selection committee and their staffs, certain university professors and academics, leaders of peace research and foreign affairs institutes, members of international courts of laws.
  • candidate names are not revealed and records remained sealed for 50 years.

In Oklahoma, Women's Abortion Details Will Be Posted Online

With so much public focus on health care reform in anticipation of next week's vote in the Senate, the issue of abortion has been out of public purview.  However, out of sight is not out of mind.

According to a new Oklahoma state abortion law, details of women who undergo the procedure will be posted online and viewable to the public.  Physicians will be required to collect the information from women and will forward it to the state Health Department  which will then post the information. Details of abortions of Oklahoma women will be posted online and will be viewable to the public. 

Health Care Reform Going to Vote

Last fall, the buzz of election frenzy predominated newscasts and reporting coverage.  Fast-forward a year to find a new President, new Cabinet, and updated Congress and Senate.  But, just as last year, there is still a single campaign carrying news waves.  And this time the "election"-- for health care reform-- is set to take place in less than a week. 

So, mark your calendars and get ready for the showdown.

Fall Back, Credit Card Rate Forward

That's right folks, be ready for higher credit card rates from one of your favorite lenders.  Wells Fargo announced its incumbent 3% credit card rate increase on consumer credit cards ahead of anticipated legislation that would limit rate hikes.  In its statement Wells Fargo assured the public that the rate increase comes after a long deliberation and that they will be prepping customers for the change, which is set to go into effect November 30th 2009.  To balance the increase, Wells Fargo will phase-out over-limit fees for customers who spend past their credit limits.

D.C. Same-Sex Marriage Bill Introduced

On the heels of Nevada's formal issuance of domestic partnership certificates, the nation's capital is next up for recognizing same-sex unions.  Earlier this week Washington D.C. city council members introduced the legislation, which is co-sponsored by 10 council members and supported by the mayor. 

Differing from Nevada's recognition of same-sex domestic partnerships, in D.C., the unions will be called marriages.  The legislation reportedly states that "any person...may marry any other eligible person regardless of gender."  And though it is not expected to face any opposition in council, in order to become law, the bill is subject to review by Congress within 30 days of passage in city council.

A Wisconsin judge this week sentenced Dale Neumann and Leilani Neumann to 10 years probation and 30 days jail time each year for the next six years for praying instead of pursuing medical treatment for their eleven-year daughter.  They were charged with reckless homicide when Madeline passed away in their living room from complications from undiagnosed diabetes in 2008.

Though the facts of the Neumann case are extreme, many parents face situations in which they have to make a difficult medical decision on behalf of their children.  What are a parent's legal rights and responsibilities when it comes to the health of a child? 

What is the Bankruptcy Means Test?

If you are considering filling for bankruptcy for personal consumer debt, you have likely looked into your options of filing for Chapter 7 or Chapter 13 bankruptcy.  The primary difference between the two is that Chapter 7 bankruptcy discharges most debts, while Chapter 13 initiates a repayment plan to pay back the debts.  And while Chapter 13 is a better option for those who wish to retain any property holdings, strained personal finances may make Chapter 7 discharge the preferred bankruptcy route.

However, not everyone is eligible to file for Chapter 7 bankruptcy.  To find out if you are, you will first have to clear the Chapter 7 bankruptcy means test.

Guns on Campus and the 2nd Amendment: a Renewed Debate

Arizona raised a few eyebrows this month by legally permitting concealed guns in bars.  And while alcohol and ammo may be a potentially-dangerous combination, the state law also allows those licensed to carry concealed weapons the right to keep loaded guns in locked cars at work or state college campuses.  The move unearths the debate of guns on campus, with vocal supporters on either side.

It is a grisly scene.   A lone gunman with a loaded weapon enters a college campus and approaches a lecture hall, opening fire and inflicting injury, destruction, and fatality.  Unfortunately, in the past few years a version of this scene has repeated itself on college campuses including Virginia Tech, Northern Illinois University, and Delaware State University.

Top 6 Posts on Unemployment

By all accounts, unemployment spiked in September to 9.8%-- the highest in over 25 years.  Even as the economy is thought to be on the verge of healing, the September reports are a stark reminder that the nation's economic stability is not in the green yet.

The new waves of layoffs have many wondering what to do, where to go for unemployment benefits, and how to cope with the prospect of job loss.  Below are our top 6 posts on unemployment. 

Nevada Begins Issuing Domestic Partnership Certificates

Nevada State Senate Bill 283 went into effect this week, recognizing rights of same-sex couples equal to those of married couples.   And 800 couples have already taken the State up on the civil union legislation.

Not to be mistaken, Nevada's state constitution still bans same-sex marriage, but the new domestic partnership bill means more rights and recognitions for same-sex couples and heterosexual couples who apply.  These include community property rights and right to seek financial support after a dissolution of the union.  Ending a domestic partnership in Nevada will be equivalently complex as carrying out a divorce in the state.

3 Tips When Using A Child Support Calculator

A common question divorcing parents have concerns the amount of child support they will be accountable for. Child support payments are intended to cover needs of the child and are determined according to state law.  The amount takes into account factors such as parental income and projected expenses of the child.  The court may determine a percentage of a non-custodial parent's income to be used to support the child or children, or may instead choose another method of valuation.

There are a number of child support calculators available for free online.  Using one can be helpful in providing a ballpark figure of how much child support may be due.  Here are some things to keep in mind when using an online child support calculator:

White House Message: Dn't Txt Whl Drvg

The SMS text is a beautiful thing.  It can relay important time-sensitive messages like "running late", "on my way", or "in a meeting" as well as  life-changing sentiments  like "please say yes", "it's a girl", or "your keys are ready"... and all without having to actually initiate a call.  While texting can be an efficient way to communicate information, it has also proven to be deadly when combined with driving. 

The distracted driver is attributed to more than half a million injuries from car crashes in 2008 and over 6,000 deaths.  While many states have banned the use of cell phones while driving, the dangers of texting while driving have often slid by, under the radar.

International Child Custody, Japan, and the Hague Convention

Interstate child custody arrangements can be challenging to both agree on as well as to carry out, but when parents live in different countries the entire game changes.  And, as the Savoie family of Tennessee has experienced, when the other country is Japan there may be surprisingly little recourse in enforcing a U.S. custody decision. 

Christopher Savoie and his wife Noriko married in Tennessee and had two children together.  They divorced in January and his Japanese ex-wife was granted primary custody while Christopher Savoie was granted limited custody.  However, eight months after the divorce, Noriko left for Japan indefinitely-- with the children in tow.  Christopher subsequently petitioned for and was granted full custody and an arrest warrant was issued for his ex-wife.  Since Japanese law does not recognize foreign custody orders, Christopher Savoie travelled to Japan and picked up the children as they walked to school and was subsequently arrested for abduction and jailed. 

The Japanese government refuses to enforce the U.S. custody agreement.