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

March 2017 Archives

When it comes to divorce, there are two basic kinds: contested and uncontested. In the former, the parties seeking to dissolve their union fight out their issues over who gets what in court. In an uncontested divorce, the parties still have to go to court, but there is no fighting involved. Rather, in an uncontested divorce, the parties simply ask the court to approve the divorce agreement they have come to on their own.

Typically, while courts will ensure that uncontested divorces meet minimum state requirements and that the parties are aware of and agree to the terms they set forth, that might be all the courts do. As such, divorcing parties trying to utilize the uncontested process may want to consider the following five legal tips.

Adopting a child requires adoptive parents to assume all legal responsibility for the child in the same way that non-adoptive parents are legally responsible for their biological children. When adoptive parents divorce, adoption’s don’t just get reversed. Courts treat adopt children exactly as they would treat a biological child. That means all the same considerations the court makes regarding a child’s best interest will come into play if the parties cannot work out a custody agreement on their own.

Like any other child custody matter, adoptive parents can be just as aggressive as biological parents. After a divorce, parents that anticipate continued child custody issues may want to consider the following three legal tips.

While some of us are about to embark on our spring break adventures, others of us are limping home, a little sunburnt, a lot lighter in the wallet, and perhaps wondering what the heck happened.

Spring break can be a perfect time to relax and recharge, or it can be a legal disaster. So whether you are trying to avoid catastrophe or deal with it, here are some spring break legal tips from our archives:

Failing to pay court ordered child support is a serious legal problem with serious consequences. There is a rather compelling public policy purpose to have strict and severe penalties for intentionally avoiding child support payments, particularly given that a custodial parent may be dependent on child support in order to provide for the welfare of a child.

Fortunately, courts can be somewhat understanding when a person comes to them to explain they are not financially able to make payments before going into arrears. But any leniency can suddenly vanish if a person fails to promptly notify the court, and it can get increasingly worse if court orders are ignored.

A major concern that can keep people from getting divorced is how the separation will affect their finances. This is especially true for the non-bread-winning spouse, and this concern does not diminish over time. Just as young and unhappy spouses may worry how they will pay the bills without their partner's salary, older spouses may fret over what will happen to Social Security benefits upon which they've become dependent.

So how might a divorce affect your Social Security benefits, or those of your soon-to-be ex? And does it matter if those are retirement or disability benefits?

It is not uncommon for individuals, or couples, going through a legal separation, or divorce, to be struggling with finances as well. Legal separation can wreak havoc on an individual's already distressed financial situation such that filing for bankruptcy can be a compelling option. However, there may be some legal issues with filing for bankruptcy before a divorce is finalized or while separated from a spouse.

As an initial matter, filing for bankruptcy can be done individually, even while still married. However, it may be to both your, and your (soon-to-be-former) spouse's, benefit to file jointly. It may not be. How any given bankruptcy will work out is highly dependent on the facts of any given case. Generally, the main considerations are whether the debts you are trying to escape are joint marital debts or individual debts, and whether the marriage owns property a bankruptcy trustee can sell off.

Less than a year after approving a transgender female's petition to change the gender listed in legal documents to "non-binary," an Oregon judge has signed off on another resident's request to change their gender to "agender."

"I don't consider myself non-binary because that's an umbrella term for anything that isn't binary, which is gender identity," Patch, nee Patrick Abbatiello, told the Associated Press. "I never felt like I fell within any part of the gender spectrum. None of the binary options, nothing in-between."

It's not easy for a private citizen to sue a federal employee for a civil rights violation. If there's no statute to allow the lawsuit, then historically you couldn't bring your case. That's where the so-called Bivens claim becomes important.

A Bivens claim is a special type of 'implied cause of action' that was created by the Supreme Court, in the Bivens case, to allow private individuals to sue federal employees for constitutional violations when no statute has authorized such. Bivens claims are also sometimes referred to as constitutional torts.

Normally, when a person suffers a violation of their constitutional or civil rights, particularly in the context of police, prison, immigration enforcement, officer misconduct, there are usually legal remedies. However, when these types of constitutional violation stem from the actions of a federal agent, appointee, officer, or employee, victims often find that many of the typical remedies will not be available.

Almost two years ago, the Supreme Court ruled same-sex couples have the right to marry. And while that answered one fundamental question, it left many others up in the air. While debates and court cases have continued over legal rights and benefits for same-sex spouses, and whether businesses may deny service to same-sex couples, one overlooked vestige of legal tradition was common law marriage.

Perhaps that's because only certain states recognize common law marriages in the first place, but many were left wondering whether common law marriage applied to same-sex couples. And now we might have a more definitive answer to that question, after a South Carolina court ruled that a same-sex couple who lived together for about 40 years had a common law marriage.

Before the obscenity standard of 'know it when you see it' came to be, simple four letter words could have been considered obscene and illegal. In those days, courts placed more emphasis on whether or not something that was allegedly obscene contained any "redeeming social importance."

Lawrence Ferlinghetti, one of the co-founders of City Lights Bookstore and the publisher of "Howl" by Alan Ginsberg, played a big role in fighting for the First Amendment rights of authors, publishers, and the public. While Ferlinghetti was on trial for selling obscenity at his bookstore (he sold a copy of "Howl" to a cop), his fight would pave the way for San Francisco's future.

Unless a grandparent has secured a court order granting them visitation, a parent is under no legal obligation to allow a grandparent to see their grandchild. In fact, barring a court order, a parent has the constitutional right to say no. If a court order has been granted, a parent will need to file a petition with the family court to modify or revoke a grandparent visitation order to stop the visitation. This matter can be more complicated if separated parents have differing views regarding whether the other grandparents should be allowed visitation.

Every grandparent visitation case will depend on the specific facts and state law. In many states, grandparent visitation is only permitted if parents divorce, or one or both parents die. However, in most states, courts will consider grandparent visitation even if both parents are alive, married, and generally good parents. Like all family court matters involving children, a judge is going to make a determination of what is in the best interest of the child.

Unfortunately, on occasion, Immigration and Customs Enforcement (ICE) just gets it wrong. Sometimes they deport US citizens and others that shouldn't be deported. This tends to occur as a result of overburdened immigration court judges and court staff, in combination with ICE's documentation failures, and the lack of attorney representation for defendants.

Fortunately, when an individual is wrongfully deported, they can eventually be readmitted, though it usually takes some work, even for citizens, to prove the deportation was wrongful. Additionally, a person who has been wrongfully deported may have a civil rights claim against the government as a result of the deportation.

Divorce may be hailed as a blessing by some, and a curse by others, but all will agree that divorces are costly. For couples that accumulated significant assets, and/or were high wage earners, divorces can be even costlier. Frequently, however, if one or both of the soon-to-be former spouses had significant assets going into a marriage, there will be a prenuptial agreement that explains who gets what in the event of a divorce.

For couples that built up fortunes together, dividing the assets can often be contentious and confusing. Below you’ll find three legal tips to help individuals going through high asset divorces.

Last week, Congress cleared the way for states to start drug testing people applying for unemployment benefits. A new measure, expected to be enacted by President Trump, would repeal Obama administration guidance from the Department of Labor which limited the kinds of unemployment benefits for which states could drug test applicants.

So what was the old rule? And how will the new rules work?

Thanks to the advances in technology, it’s easy for a noncustodial parent and a child to keep in touch. With these technological advances, courts have begun awarding virtual visitation, particularly when parents live too far apart to make regular visitation practical. However, sometimes, a parent may not want their child’s other parent contacting the child at all. Courts are generally very reluctant to put such an order in place barring abuse, neglect, or some other extenuating circumstance.

Unless a court order authorizes such action, one parent can’t block another parent with custodial rights from contacting their own child. Otherwise, the blocked parent will have legal recourse through the family courts. Courts are typically agreeable to creating phone schedules or policies when there are disputes about excessive phone, video call, or text message contact that a noncustodial parent is making, or if one parent has been denied access.

Child custody cases are among the most sensitive legal issues that courts must handle. While most frequently child custody matters involve a set of separated parents arguing over who should have physical or legal custody, sometimes individuals other than the parents are involved. However, unless there are extenuating circumstances rendering a child’s parent(s) unable to maintain custody, non-parents will rarely be awarded any level of custody over parents (grandparents may be an exception in some states).

Generally, when handling child custody matters, courts are tasked with deciding what is in the best interest of a child who may be caught in the middle of a divorce, or separated parents, or dealing with having their parent(s) incarcerated, hospitalized, or worse, die. Frequently, rather than allow a child to be placed into a state’s foster care system, relatives or close friends can petition to be awarded temporary custody, as well as permanent custody.

Recently, reports have been popping up that Immigration and Customs Enforcement officers have been making arrests inside state courthouses in California, Arizona, Colorado, and Texas. Although ICE claims that courthouse arrests are a last resort, the increased frequency with which they have been made recently belies this position. While there are rather compelling public policy reasons why this shouldn't be happening, it is, and state court judges unfortunately cannot do much about it.

While judges have more control over what happens inside their actual courtroom, the courthouse, meaning the lobby, hallways, cafeteria, entryway, and other public parts of a courthouse, are fair game for ICE officers to make arrests. In response to the increased efforts, Chief Justice of the California Supreme Court, the honorable Tani Cantil-Sakauye, sent a letter to the recently appointed US Attorney General Jeff Sessions requesting that ICE not use the state's courthouses as bait to enforce immigration laws, as it impacts public safety and the administration of justice. As of yet, there has been no official response from the AG.

A new law passed in South Dakota last week has been drawing quite a bit of controversy among civil rights groups. Under the guise of protecting civil rights, the law actually protects private, religious adoption agencies from liability for discrimination if they refuse to adopt to LGBT individuals and couples, or potentially even parents that don't share the agency's, or even each other's, beliefs.

The subject of whether or not private religious organizations should be permitted to discriminate based upon genuinely held beliefs is a hot button topic as the religious organizations assert that denying them the right to discriminate is in itself discrimination. While this conundrum can tease even the most analytical brains, there's more to the controversy over this new South Dakota law.

A new chatbot, a computer programmed to mimic conversation with users, is hoping to help refugees by providing free legal assistance. No, the chatbot is not a walking, talking, humanoid-type lawyer-robot, it is simply a program that runs through Facebook Messenger.

The chatbot's creator, who's still too young to legally drink in the United States, saw significant success with the initial rollout of his chatbot, named Donotpay, which has provided free legal help to users in London and New York City to fight their parking tickets. Surprisingly, the chatbot's record of winning parking tickets is 64 percent -- a whopping 160,000 out of 250,000 cases were won! Riding the tide of that success, the young creator spent the last six months working on building immigration law help for refugees seeking asylum into the chatbot.

When the White House issued a revised executive order on immigration from Muslim-majority countries, we wondered whether President Trump's new travel ban would suffer the same fate as his old one, which was blocked by a unanimous federal appeals court. Now we have our answer, mere hours before the ban was set to go into effect.

U.S. District Judge Derrick Watson in Hawaii issued a temporary restraining order against enforcement of the travel ban and pulled no punches in his opinion, saying, "Any reasonable, objective observer would conclude ... that the stated secular purpose of the Executive Order is, at the very least, 'secondary to a religious objective' of temporarily suspending the entry of Muslims."

No parent wants a knock on the door from child protective services. Even if the allegations are false, the prospect of losing custody of a child can be terrifying. And most parents don't know the ins and outs of CPS investigations, which only serves to heighten their anxiety.

Here are a few of the most common legal questions regarding what happens when CPS is called, and a few places to turn for answers.

A wrongful termination claim can encompass a wide variety of different actions. Discrimination, retaliation for reporting discrimination, whistleblowing, refusing to comply with an illegal order, and even violating an employment contract's discipline or grievance procedures, can all give rise to wrongful termination claims. What's more is that the general legal claim of wrongful termination in violation of public policy can encompass nearly any wrongful conduct on the part of an employer, so long as there is a compelling public policy reason.

Wrongful termination and employment claims are among the most risky and complex legal claims that private individuals bring against businesses. Likely as a result of that complexity and the varied outcomes that have resulted under strikingly similar facts, people often wind up holding misconceptions about wrongful termination claims. Below you'll find three of the most common myths about wrongful termination claims.

Courts have long adhered to a child's best interests when making custody decisions. Generally, that means parents sharing custody so that the child can maintain positive relationships with each parent. But what if there are more than two parents?

In what could be a landmark ruling, a judge in New York granted custody of a 10-year-old child to three parents: a divorced man and woman and the female neighbor with whom they had a threesome.

New Secretary of Homeland Security John Kelly confirmed earlier reports that his department is considering separating undocumented parents and children caught entering the United States at the Mexico border. Kelly said the move would be aimed at deterring "more movement along this terribly dangerous network" as families fleeing violence and poverty in Central American countries from trying to illegally enter the U.S.

So what is the DHS policy concerning family detention now, and how might that change under the proposed detention plan?

Although it may seem like a daunting task to organize a protest, it really only involves a few steps to ensure you stay on the right side of the law. However, those few steps can vary in complexity depending on the anticipated size and activities of the protest, as well as where you plan to hold it.

At the outset, after you have been inspired to take action, you need to do some research into the legal requirements in your city, county, and state to make sure your protesters don't end up as inmates. Also, you need to look at your own legal exposure, both criminally and civilly.

When President Trump released his first executive order on immigration and refugees from Muslim-majority countries, we noted the "response -- from protestors and civil rights attorneys -- was immediate." That immediate response included a stay from federal judges and, ultimately, an enforcement ban from the Ninth Circuit.

Trump has dropped his appeal to that ban and issued a revised executive order on the issue, and the response to the new travel ban has been pretty much the same as to the old travel ban. Four states have sued to block the new executive order from going into effect, but will they have the same success as last time?

When a death in the family occurs, it is a serious, somber time. However, the world does not stop turning, and despite being in mourning, the executor of an estate must perform several important duties within a reasonable amount of time. Generally, the executor of an estate must review the will and make sure the deceased's last wishes are carried out.

Executors are specifically responsible for paying funeral expenses (using the estate's funds), discovering all the assets owned by the deceased, resolving debts, maintaining all the assets and property, and distributing assets/inheritances. While frequently executors are family members, such as adult children, siblings or spouses, a person is free to designate nearly anyone they wish in their will.

Below you will find three legal tips for individuals who have been chosen to be executors.

Marriage is a good thing -- so say millions of married people and the government, who encourages marriage through tax breaks and other financial incentives. Even landlords might prefer married couples, thinking their relationship and financial status will be more stable.

But marriage isn't for everyone, and even those who might plan to get married may not be married yet. And incentives for marriage can turn into punishments for unmarried couples. So what happens when landlords refuse to rent to unmarried couples? Do they have any legal recourse?

It feels like there are four letters that find their way into any news report about a political scandal. F-O-I-A. Even something as silly as the contested crowd sizes for Obama and Trump's inaugurations was stoked by a FOIA request.

The Freedom of Information Act gives citizens the right to request information and records kept by federal government agencies. So how do FOIA requests work? And who can request what kind of information?

For White House staffers and even high level officials, there are strict ethical standards that are supposed to be followed. In fact, some of those ethical standards are codified in criminal laws. Among the most well known type of ethics crime occurs when an official accepts a bribe.

Generally, the ethics rules seek to prevent government officials and employees from making decisions that they have a personal or financial stake in. This breaks out into two topics: conflicts of interest and personal financial interests. Not surprisingly though, the rules do contain enough leeway, and the executive branch is vested with enough power, that even clear conflicts can sometimes fly under the radar. Additionally, using a public office to garner publicity for private industry, such as by making an endorsement, even if no money is exchanged, is prohibited.

The First Amendment explicitly states that the government cannot pass any law infringing on the right to free speech, nor the right to assemble. As such, when state and local governments pass laws imposing restrictions on protests and protesters, these laws must be narrowly tailored so as to not violate the First Amendment's protections.

Typically, restrictions categorize protests based on how a protest gets started. Nevertheless, only certain types of conduct, typically involving the time, manner, and location of the protests, can be restricted or regulated. In response to the rising civil discontent and increase in protest activity nationwide, many states are trying to increase their ability to control protests, leaving many people wondering whether these new proposed laws are even constitutional.

Most government agencies are tasked with enforcing laws and statutes. These agencies and their enforcement missions can encompass everything from your local police enforcing municipal ordinances to federal agencies prosecuting violations of enacted statutes. Because these federal agencies have a nationwide reach, their enforcement actions, or lack thereof, can often garner more attention and scrutiny.

So what happens if they fail to do their job? Do regular folks have any legal recourse against a federal agency for not enforcing certain laws? Here's a look.

It's a rare situation, in this day and age, that all Americans actually agree about something. However, regardless of where public opinion lies, the federal courts are being asked to decide an issue of utmost importance and significance to the public: Is there a federal, constitutional right to education? A federal lawsuit stemming from the deplorable conditions within the Detroit Public School (DPS) system is seeking to hold the state of Michigan liable for violating the constitutional right to education for the DPS students.

While it sounds rather American to have a federal constitutional right to education, none actually exists. Though you might be thinking: "But, isn't education for children free?" Or: "Doesn't the government have to educate the children?" You're probably right, but it's not the federal government, it's state and local governments that provide education.

Just over three weeks after his previous executive order banning individuals from seven Muslim-majority countries from entering the United States was unanimously blocked by the U.S. Ninth Circuit Court of Appeals, President Trump issued a revised executive order designed to avoid the political and legal fallout of the last one.

So will the new travel ban be any more palatable to protestors, politicians, and, most importantly, the courts? Here's a look at three major changes, along with some of the justification for the immigration order.

Drug abuse is often cited as a reason for couples to divorce. Not only does the person dealing with a substance or drug abuse problem suffer, it is likely that their spouse also suffers from indirect consequences. The consequences can be even worse if there are children.

While most states do not require a couple to provide a material reason for their divorce, if one spouse abuses drugs or alcohol, this can have a direct impact on a divorce case. Typically, drug abuse will affect child custody decisions, as well as the division of assets. As such, it is not uncommon to see one spouse use the other spouse’s drug abuse as leverage to negotiate a favorable divorce settlement, outside of court.

Not surprisingly, courts routinely deal with false drug abuse allegations between spouses. Depending on your state, there may be a different standard of proof required for evidence of drug abuse to be admissible in a divorce case.

Criminal prosecutors are generally assigned by jurisdiction -- county, state, and federal. The U.S. Attorney General is the nation's top prosecutor. But newly-appointed Attorney General Jeff Sessions has found himself in a bit of a political and legal bind.

It was revealed this week that Sessions had two meetings with the Russian ambassador last year, but when asked about such contact during his confirmation hearings, Sessions said under oath, "I did not have communications with the Russians." Amid calls for an investigation into President Trump's administration and the Russian government, Sessions announced yesterday he has recused himself from that investigation, leaving the door open for the appointment of a special prosecutor. So what are special prosecutors, and what's next for the Trump/Russia investigation?

Is Sexual Harassment a Crime?

When an individual is sexually harassed in the workplace, often victims are left feeling violated as if they were victims of a crime. Although an individual can sue after being sexually harassed, sexual harassment is not a crime. But, if it involves unwanted touching, physical intimidation, or even some extreme forms of coercion, it can quickly turn into sexual assault, which is a serious crime.

Death is an unfortunate fact of life. As people grow older, their parents do the same. Children often want to protect their parents as much as they can during the autumn years of their life. Frequently, all a child can do for their aging parent is make sure that they maintain their personal and financial affairs.

To that end, there are some really important documents that should be asked about, as well as other aspects of your parents' lives that you should try to find out, before they pass. Here are seven topics that you should consider asking your aging parents.

As the saying goes, "Everything ends badly, otherwise it wouldn't end." And while not all relationships involve or end in violence, many do, and dealing with an unhappy ex can be frightening.

But there is legal help if you feel unsafe. Here's what you need to know.