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

January 2017 Archives

At the tail end of an already busy first week in office, President Trump on Friday issued an executive order banning the entry of all foreign refugees into the country along with nationals from seven predominantly Muslim countries, including those with immigrant visas and possibly green card holders as well.

The response -- from protestors and civil rights attorneys -- was immediate, and by Saturday night a federal judge in New York issued a "stay," prohibiting the government from enforcing certain parts of the order. Federal judges in Virginia, Seattle, and Boston did the same, but many are still left in legal limbo while the constitutional crisis sorts itself out.

So what are these stays, whom do they cover, and how long will they remain in effect?

A former San Diego high school student recently won a $1.25 million dollar jury verdict as a result of her lawsuit against her former school resulting from being forced to pee in a bucket in a supply closet. The lawsuit alleged that the embarrassing incident, which was caused by a faculty member, led to extreme bullying, eventually causing the student to suffer PTSD, attempt suicide, and incur other damages.

The large jury verdict came after the school rejected the initial settlement demand of only $25,000. Currently, the school is considering whether to appeal the verdict.

It was a busy first week for President Trump. In its first seven days, the new administration issued 17 executive orders, memoranda, and proclamations, taking action on issues from public schools and pipelines to immigration and national security.

So what do all these presidential actions actually do, and how to they differ?

When people get married, they are entering into a legal agreement with their spouse that involves so much more than just property and assets. But when people divorce, their property and assets must be divided. How the property gets divided is generally governed by state law. However, spouses can contract around state laws using marital property agreements.

Marital property agreements are frequently the driving force behind prenuptial or postnuptial agreements. However, they can also be entered into between spouses at any time. Generally, the purpose of a marital property agreement will be to change, or convert, or just clearly identify, the character of a piece of community property into separate property, or vice-versa. Another common use is to determine how future income from separate or joint property will be divided between the community and individual spouses (such as from a retirement account or pension).

Chaos. Intense. Executive overdrive. A reality show. There are a lot of ways to describe President Donald Trump's first week in office, from the absence of his wave from Air Force One to his social media presence in a public spat with Mexico's president. However you characterize the new president's first seven days, he has been a busy man.

As of January 26, Trump has issued 13 "Presidential Actions," including executive orders, proclamations, and memoranda outlining executive action that can be taken without congressional input. While some orders may never be heeded, others have immediate, real-world consequences. Here are three big legal and policy changes from the Trump administration's first week in Washington and what they might mean for you.

After the Badlands National Park went rogue on Twitter last week, posting facts related to climate change, much attention was drawn to the new president's policies on government employee free speech. While the First Amendment protects free speech rights, those rights are not absolute.

This week, the White House issued directives to several federal agencies that mandate supervisor approval before employees make public statements, particularly concerning political or scientific matters that the previous administration supported. The implication seems to be that supervisor approval will be withheld if the content is in line with the previous administration's core policies.

The president, as the executive officer of the federal government, basically controls each federal agency through the power to hire the agencies' head directors. Additionally, it is within the president's power to tell the directors to implement new policies, even those that restrict government employee speech that relates to an employee's duties.

The stereotype is deeply embedded in our minds and media when it comes to jury trials: the jurors sit passively, perhaps nodding or even crying in response, as the attorneys, witnesses, and judges battle before them, then retire to a room to argue about a defendant's freedom or the fate of millions of dollars. They are instructed to decide the case based only on what they have seen and heard in the courtroom, but have little or no input on the evidence.

But that might be starting to change. More and more jury reform advocates -- judges among them -- have been pushing for more juror freedom when it comes to asking questions during trial. Could we be witnessing the end to the static, silent jury and see more juror involvement during the course of the trial?

Presidents are powerful people -- obviously -- and not just while they are in office. Executive policies, legal cases, and judicial appointments will live on long after a president's term ends, and it is often difficult to determine what legacy and administration will leave until years or decades after the Commander-in-Chief has left office.

So what will that legacy be with Obama? It's often been contentious, with Supreme Court rulings on Obamacare and Supreme Court nominees languishing in limbo for nearly ten months. It looks like Obama's constitutional reputation will be like the old saying: you win some, you lose some.

The Consumer Financial Protection Bureau (CFPB) has filed a federal lawsuit against one of the largest private and federal student loan servicing company, Navient Corp. The lawsuit alleges Navient of "systemically and illegally failing borrowers at every stage of repayment."

Basically, they are alleged to have regularly deceived borrowers into choosing higher cost options.

Way back in 2011, the former President Barack Obama's administration set up "We the People," an electronic petitioning system that provided users with a free account that allowed them to create new petitions and sign existing ones. The site garnered a lot of attention and more than a few petitions -- from September 2011 to July 3, 2016 almost 5,000 petitions were submitted that received at least 150 signatures, including 174 petitions in the site's first eight days.

As with anything on the internet, there was some good and there was a lot of bad. While we don't know the fate of online petition site in the hands of now-President Donald Trump, we can take a look back at the good, the bad, and the crazy from "We the People" over the past five years.

Are Federal Lands Worthless?

In a legislative move that is making waves, the House of Representatives has revised the way it evaluates federal lands for conveyances/transfers to states, essentially allowing federal lands to be gifted to the states, local governments, or tribal entities. From there, the government recipients may be free to sell, lease, or otherwise do what they will with those federal lands.

Divesting federal lands has been a goal of conservatives since the Reagan era. While no federal lands have been given away just yet, the groundwork is now there to do so much easier, as revenue generation is no longer a matter for consideration (see page 35).

When you buy a piece of property you want to know that you, and you alone, own what you've just purchased. This may seems obvious, but when it comes to buying real estate, ensuring that no one else has a legal claim to the land can get a bit more complicated.

This is especially true in Hawaii, where state law can grant property rights to descendants, sometimes without their knowledge. And if you're Facebook CEO Mark Zuckerberg and you just bought 700 acres on the Hawaiian island of Kauai, that means filing legal claims against hundreds of Hawaiians to ensure their legal claims to the land are extinguished.

When parents divorce or separate, child custody is often the most hotly contested issue. However, child custody does not have to be determined by a judge. If the parents can work out a custody agreement on their own, courts generally will make the agreements part of a larger divorce decree or order, or just make the agreements part of an official child custody order.

In fact, courts favor parents working out custody and co-parenting agreements on their own. This is due to the fact that it is generally understood that parents know what is best for their child better than the courts do, and that the parents will sacrifice their wants for the needs and wants of their child.

Being married for a few decades may make it tougher to leave your spouse. (Or, it might have finally convinced you that you're just not right for each other.) Divorce is far from a young person's game, and older people seeking divorce may face some legal dilemmas their younger counterparts do not.

So here are a few tips and considerations if you're thinking about getting divorced in your golden years.

The Women's March on Washington is scheduled for Saturday, January 21 -- the day after President-elect Donald Trump will be sworn in -- and is estimated to draw some 200,000 participants. While organizers stress they "do not intend to engage in any civil disobedience" and "expect all marchers to abide by all laws and any instruction of law enforcement," protestors may still have questions about those laws and instructions.

Reproductive technology has come a long, long way, and it does not seem to be slowing down. Unfortunately, the law has been unable to keep up the same pace, which has led to quite a bit of legal uncertainty surrounding embryo ownership and use.

If you are considering freezing your embryos, consider the following three legal issues before getting started.

Writers of fan fiction from time to time get cease and desist letters from studio in-house lawyers demanding that they take down their work. While many of the original creators don't pursue the makers of fan fiction, some do, since more often than not fan fictions are blatant copyright violations. Occasionally, fan fiction writers will produce parodies, but most fan fictions are derivative works that attempt to continue or build upon the original work. 

Copyright law generally protects the creator of a work of fiction from someone else coming along and stealing not just their exact words, but also their characters, settings, storylines, and even fictional space languages. However, many fans get so engrossed in particular works that they are compelled to create continuations or variations on their favorite stories.

If you're anything like us, the Save the Date cards are starting to pile up on the fridge, and you're trying to sort out your summer travel plans to attend all of the weddings you've been invited to. And if you're one of the happy couples sending out one of these notices, you're trying to sort out all of the last details for your special day.

But amongst all of the bridesmaids' dresses, groomsmen's ties, and flower and musical arrangements, don't forget there might be some legal details to sort out as well. Here are a few tips to make sure everything on your (legal) wedding checklist gets done.

The racial, economical, and social makeup of a voting district will often determine which party or candidate will get the most votes from that district. But the boundaries of electoral constituencies are not set in stone, and the party in power will often manipulate those boundaries to its own benefit.

Known colloquially as gerrymandering, the altering of electoral districts does have its legal limits, and those limits are currently being testing by North Carolina lawmakers, who, after a trial court ruled the state's legislative map had been unconstitutionally gerrymandered based on race, challenged that court's ruling that special elections with new districts were required to fix November's results. And now the Supreme Court has delayed that special election until it can review the court's ruling.

You probably don't realize that you've been paying for social media all this time that you thought it was free. No, you haven't been charged on a monthly basis. Instead, if you post pictures, videos, or any other content, you've been selling social media sites limited licenses to use your photos, and content, pretty much anyway they see fit. That's right, your favorite funny face profile pic could be emblazoned on an IRL (in real life) billboard next to a caption to sell the latest in fast acting laxatives.

While it is highly unlikely that any large social media site would go that far, most of their terms of service would allow them to. Generally, by agreeing to the terms of most social media sites, including photo sharing sites, users grant sites the right to use their photos for any purpose, including advertising, and even for re-licensing. This all means you might not be able to sue if you find out one of your photos got used unbeknownst to you.

Divorces are emotional. So are pregnancies. When the two occur simultaneously, the emotional rollercoaster can lead to legal rights being overlooked and abandoned. During pregnancy, for both divorcing spouses, there are specific legal considerations that need to be accounted for.

Raising a child is filled with unique first moments and bonding experiences. Because of this, scheduling bonding time with newborns and infants that require regular and frequent feedings can often create extreme tension. In addition to scheduling infant bonding time after the birth, figuring out the health care costs, and alimony, are the other big concerns.

Part of President Barack Obama's legacy will be normalizing America's relations and diplomatic ties with Cuba, ending a half-century of hostilities between the two countries. While that opens the door for more travel and trade between the two nations, it also means that some immigration windows are closing for Cuban citizens.

A two decades-old exception allowing Cubans who arrived on U.S. soil to gain legal residency, colorfully known as "wet foot, dry foot," is coming to an end, and Cuban immigrants will be treated the same as those seeking asylum from any other country.

Contrary to a popular myth among renters, a landlord can attempt to evict a tenant during any time of the year, even the dead of winter. Despite the seemingly cruel notion of kicking a person out of their home when the weather outside is frightful, for a landlord, business pressures often require goodwill towards mankind to take a backseat. Sadly, winter time evictions can have fatal results for the elderly and impoverished.

For landlords, business usually dictates evictions. If a tenant is causing a nuisance, or committing waste, it is bad for business. If a tenant is not paying rent, that's definitely bad for business. The only remedy a landlord has, apart from bringing a different type of legal action solely for the recovery of back rent or property damage, is seeking to evict and re-rent the property to a new tenant that will be better for their business.

As a parent, there is no shortage to the scary stories of abusive babysitters. But that also doesn't mean you can never leave the house without your children. It's not a matter of never hiring a babysitter; it's a matter of finding the right one.

And part of finding the right babysitter is training the right babysitter. Any sitter you hire needs to know exactly what you expect when it comes to schedule, interaction, and, most importantly, discipline.

The California Court of Appeals recently rejected a challenge to one part of California's mandatory reporting laws for therapists. This case came about because the law in California was changed a few years ago to include a ban on the viewing of child pornography online.

Criminalizing the viewing of child pornography online seems perfectly rational. But what about in the context of reporting laws for therapists? According to the appeals court, mental health professional in California are now required to disclose to authorities when a client has viewed child pornography online.

The relationship between a stepparent and stepchild can be complicated, both emotionally and legally. Depending on a variety of factors -- your legal relationship with the step child's biological parent(s), whether you've legally adopted the stepchild, whether the child's biological parents are alive or involved in his or her life, and even where you live -- your legal rights and responsibilities concerning your stepchild may differ.

And, sadly, divorce only complicates matters further. Here are some of the most frequently asked questions regarding a stepparent's legal status following a divorce, and where you can find the answers.

Undocumented immigrants beware: sanctuary cities are not all they are reported to be, and a certain elected official wants to do away with them. For undocumented immigrants that live in sanctuary cities, the next presidential term will require staying aware of whether Donald Trump follows through on the threatened consequences for cities and counties that continue to provide sanctuary for undocumented immigrants. Many cities have vowed to protect their populations, but what does that even mean?

The reason many people have a problem with there being sanctuary cities across the country is the incorrect belief that the cities provide a safe haven for criminals. In reality, in a sanctuary city, an undocumented immigrant will be pursued for any criminal act(s) they commit, except for merely being undocumented. Sanctuary cities generally only promise or have a policy not to follow orders from the Federal Immigration and Customs Enforcement (ICE) agency regarding holding individuals without other criminal charges for deportation.

Weird Driving Laws in the US

Drivers across the country generally know the rules of the road. However, the rules of the road change over time, regardless of what law makers say, and sometimes, laws that made sense decades ago often stay on the books unenforced, and unchanged. Some of these laws are just ridiculous, while others are just outdated, and a few are just patently shocking.

Fortunately, thanks to the awesome power of the internet, we can all enjoy reading about these weird driving laws.

California's new law that decriminalizes minors engaged in crimes associated with prostitution took effect January 1st, and is expected to make a big impact. The big thing that this new law does is allow minors who are forced into the sex trade and industry to be able to come to police without fearing arrest and prosecution. While many of the vocal opponents of the new law believe that minors will now run rampant through the streets prostituting themselves with legal impunity, this type of view shows a lack of a deeper understanding of the problem.

Although the law removes criminal penalties for minors suspected of solicitation and loitering with the intent to solicit, officers will still be able to take the minors into custody if they are suspected to be engaging in prostitution. The primary difference is what happens from the point of being taken into custody.

If you've just become a mother or father for the first time, all of your attention will be focused on your child. And you may not notice just how much the legal world impacts how you are raising your child.

From time off of work to when it's time to go to school, there are perhaps dozens of laws new parents need to be familiar with. So here are a few of the most important:

Your romance was a flash in the pan, so can you avoid burning through your income and savings paying alimony? Spousal support calculations are based on a variety of factors, one of which is to what extent your spouse became dependent on your income. So a short marriage could work in your favor.

But there's no hard and fast rule when it comes to the length of the marriage and the amount you'll owe in spousal support after a divorce, so just because your marriage fizzled out fast doesn't mean you won't owe any alimony.

Divorce is difficult and emotional. More so if there are children. Even more so if a child has special needs related to a disability. Even though the divorce may be more complex, a court will ask the same question for a special needs child as they would for any other child: what is in the best interest of the child?

When a couple that has a special needs child decides to divorce, there are legal considerations that relate to the on-going care of the child that should not be ignored. Careful planning on the part of the parents is critical in crafting a custody agreement that works not only for their child, but also for them.

Failing to pay child support can get your driver's license suspended in some states. But the Lone Star State might be the first in the union to link back child support with vehicle registration.

Last year, Texas began warning parents who owed back child support that they would not be able to renew their car registration without beginning to make payments. Now those warnings have become real, and the state has collected more than $160,000 in child support in the program's first month of operation.

A New Jersey bill, passed in 2014, took effect this year to unseal over seventy years worth of adoption records. This enables adopted children to look up their biological parents. Since 1940, in the state of New Jersey, unless parents who were giving their child up for adoption agreed to an open adoption, they were guaranteed confidentiality by the court. The confidentiality that was promised no longer exists today, unless the parent filed the appropriate paperwork before December 31, 2016 to have their child’s birth certificate redacted.

When an adopted child reaches adulthood, they will now be able to request a copy of their birth certificate, which would contain the names of their birth parent(s). Additionally, the new law requires that all adoptions after August 1, 2015 be open adoptions.

After the Ebola outbreak in 2014 and Zika virus in 2015, the fear that a deadly, communicable disease will find its way from foreign countries into America is very real. In response, the Centers for Disease Control and Prevention (CDC) proposed a new rule giving it more authority to detain, test, and quarantine travelers entering or moving through the United States.

This might seem like a good idea on its face -- after all, we don't want people dying from preventable diseases. But many are worried about the potential impact that forced detention and medical testing could have on civil liberties and informed consent.

During child custody disputes, it's common for parents to fight over who is the better parent and who should have custody. Unfortunately, all too frequently the fight is not contained in the courtroom, and parents act out in ways that can have permanent effects.

Recently, two news stories are garnering attention for this very reason. Last week, a New Jersey father was sentenced to 23 years after murdering another man during an argument over a child custody dispute. Due to the length of the sentence, he no longer has any chance at getting custody. And in Tennessee, a father was non-fatally stabbed in the back twice by the mother's boyfriend, during a confrontation regarding a child custody dispute. Now, the mother will likely have to face consequences for associating with a violent criminal.

When it comes to infidelity, married couples can begin acting like secret spy agencies. There's the spouse that may or may not be cheating, hiding his or her tracks; and the spouse trying to catch the other, trying to catch them in a lie. But how much spousal surveillance is too much?

According to the 7th U.S. Circuit Court of Appeals in Chicago, auto-forwarding your husband's emails to your address might cross the line. The court ruled that this could violate the federal Wiretapping and Electronic Surveillance Act even if "Congress probably didn't anticipate its use as a tactical weapon in a divorce proceeding."