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

May 2017 Archives

Nobody wants to file for bankruptcy -- it can be a disheartening and complicated process, both legally and emotionally. But sometimes it may be the only option for escaping the most crippling debt and rebuilding your financial future.

There are many life scenarios that might lead to personal bankruptcy, different types of bankruptcy to file, and a series of legal hurdles along the way. Here are a few of the basics of personal bankruptcy.

The First Amendment ensures that the government cannot pass any laws preventing the dissemination of news. However, reporters, journalists, and other members of the press corps, are not considered any differently than regular citizens despite the freedom of the press. This means that when a reporter is assaulted while trying to get the scoop, the perpetrators are not going to be charged with a hate crime.

Regardless of the criminal charges an attacker could face for assaulting a reporter, there are several civil actions, including potential civil rights claims, a reporter, or even just a blogger, can pursue against an attacker. When pursuing a civil action, however, the First Amendment can play a significant role, depending on the attackers identity.

According to her lawsuit, Muslim student Sahna ElBanna at Union County College only took a second class taught by professor Toby Grodner because it was required to graduate. During the first class, Organization & Management in the spring semester of 2016, ElBanna, says Grodner repeatedly told students that all Muslims were terrorists. ElBanna didn't speak up at the time, fearing it would affect her grade, and she received a B-plus.

The next semester, however, ElBanna confronted Grodner during her Principals of Marketing class after again hearing derogatory comments about Muslims, and later received an F.

Breaking up is hard to do. Fortunately for unmarried couples, it's a little bit easier. However, unmarried couples that disagree about how to divide their joint assets may find themselves in a different world than divorcing married couples.

Under the law, unless an unmarried couple has signed some sort of written agreement governing their finances, or outlining their obligations to each other, courts tend to treat disputes between unmarried couples similarly to an informal business partnership.

Here are 5 top questions asked by unmarried couples going through a break up.

Chances are, if you're getting divorced, you already feel like your spouse hasn't told you everything. Especially if you're involved in a high asset divorce, you might get the sense your spouse hasn't told you where all the money is.

And chances are, if you're reading this, you're not a forensic accountant. So how do you know if your soon-to-be ex is hiding assets? And how do you access those in a divorce?

When a person reaches a certain age, to nearly everyone's surprise on their birthday, nothing actually happens. Despite the common misconceptions regarding the differences between younger and older workers, a person's abilities to perform a job are rarely, if ever, associated with their age. If you need proof, just look at TV and film where actors pushing 30 pull off roles as high school students.

Age discrimination in employment was made illegal in 1967 under federal law. The federal law protects workers over the age of 40 from both intentional and disparate impact discrimination. Additional state laws may provide further, or similar, protections to even younger workers. This means that employers can be held liable when they don't hire an older worker because they are "over qualified" or have "too much experience," which if you don't know is code for "too old." How is "too much" experience, or "over qualification" a real problem?

Below you'll find five common signs of age discrimination in the workplace.

Estate planning, although necessary, is never fun. Between federal estate taxes and state inheritance laws, designing a plan for your property after death -- and drafting the essential documents -- can be a major headache. Those arrangements can only get harder for non-U.S. citizens.

While navigating estate and immigration laws may seem overwhelming, here are five tips that can help simplify the process.

Child support is an inescapable obligation. Even if you were never married to your co-parent, the law still requires that a parent provide financial support to the other parent for their child, except in unusual circumstances. This is separate from alimony or spousal support. If you have a child, the law requires that you either share custody or pay support, and sometimes both, regardless of whether you are married to the other parent. Once paternity is proven, either by a test, or based upon the birth certificate, a court can make child support orders.

How much child support a person must pay can be arranged privately if the parties are agreeable, or via the courts. Often, depending on the jurisdiction and circumstances, informally negotiated agreements may still need to be approved by the court. Courts tend to award child support based on need and ability to pay, though the later always seems to be much less important.

Most of us don't want special treatment in the office. We just want to the opportunity to do great work, preferably in a field we enjoy, and be fairly compensated for our labor. But fairness comes in a lot of forms outside of our salary, and there are numerous ways we can be treated unfairly at work.

But is that treatment necessarily illegal? And are there legal remedies for unfair treatment at work? Here are ten of the biggest questions regarding workplace fairness, from our archives:

The US Court of Appeals for D.C. issued a ruling that drone hobbyists are rejoicing over. The 2015 FAA emergency regulation that required all drone and model aircraft users to register their glorified toys was struck down last week. Now hobbyists can fly their drones, and RC planes, without fear of being excessively fined or criminally prosecuted for failing to register.

The appellate court found that the FAA overstepped their authority in promulgating rules that cover model aircrafts flown for recreation or as a hobby. Though the court acknowledged that the FAA had an important purpose in creating the registration requirement, it also explained that a law passed in 2012 should have prohibited the 2015 rules from being approved. This case was brought by a drone hobbyist who challenged the new rules affecting his pastime.

Any time a person files for bankruptcy, federal courts will apply a means test to see if the debtor qualifies for Chapter 7 bankruptcy. The first step in that test is to compare the person’s average monthly income for the six months preceding the filing to their state’s median family income. If your monthly income exceeds the state median, you may not qualify for Chapter 7.

And any time there is math involved, a calculator is sure to follow. Here are the numbers that you need to punch into a Chapter 7 means test calculator, and where to find them.

Last week, the California arm of the National Rifle Association filed a lawsuit in San Diego's federal district court challenging the constitutionality of the state's recent ban on high capacity magazines. This is the second lawsuit filed by gun advocates against the gun control legislation that took effect last year in California.

In addition to the case against high capacity magazines, a case was filed last month in the federal court for the Central District of California challenging the ban on assault weapons. The NRA previously announced that they expect to file five separate lawsuits challenging different parts of the legislation.

While it is no surprise that most lawsuits settle without ever going to trial, many non-lawyers are surprised by how effective formal mediation can be at resolving legal disputes. Alternative dispute resolution has emerged over the past few decades as a successful tool to resolve legal disputes, often more quickly than going through a trial. Unlike a judge's order, or jury's verdict, settlement agreements can also provide for forms of relief that can't be awarded by a court. Among the most requested non-court awardable relief is a simple apology.

The goal of any mediation session is to reach a settlement. One of the most effective ways to reach a settlement during mediation is to allow parties to interact, with help from their lawyers, to try to find middle ground, and allowing those interactions to be off the record, so to speak. Requiring mediation to be confidential allows the parties to more meaningfully interact and explore potential resolutions that might be satisfactory to all involved without fear that settlement offers or proposal will be used against them. Mediation confidentiality is designed to facilitate and encourage the exchange of settlement offers. So how does it work in practice?

Inheritances are not treated the same way as normal marital property in a divorce. Generally, so long as there has not been any commingling with marital property, an inheritance can remain separate property, just like premarital assets. Commingling occurs when separate property, usually money, is mixed with marital property. For instance, depositing an inheritance check into a joint bank account is likely to convert it from separate property to marital property.

From time to time, a parent will need to take precaution to make sure their children's inheritances are safe from their own spouse, or their adult child's spouse. This issue is particularly pronounced for non-marital children, or when parents believe an adult child is at risk of divorce.

In divorce, as in life, timing is everything. And while there might be a million factors affecting a decision to get divorced -- not the least of which might be personal safety -- there are also a few legal considerations to take into account when you're pondering the right time to file for divorce.

Here are a few tips on timing your divorce, from our archives:

Medical marijuana has been hailed as a wonder drug. Doctors frequently prescribe or recommend it to patients on opiates as it has potential to provide effective pain relief without the negative side effects of opiates.

Although marijuana can be used to safely treat a variety of ailments, illnesses, and diseases, health insurance companies do not currently provide coverage for it. Even in states where medical marijuana is legal, because the federal Controlled Substances Act (CSA) puts marijuana on the same level as heroin, most health insurance companies' policies require denying coverage. However, other types of insurance may actually be available.

While filing for bankruptcy can provide relief from certain kinds of debts, that relief isn't always available to everyone. There are different types of bankruptcy filings available to individuals and each has its own requirements that need to be met first.

For example, Chapter 7 bankruptcy, often referred to as "liquidation" or "straight bankruptcy" may allow you to get rid of most of your debts and start over with a clean slate, but first you must qualify for Chapter 7 by meeting certain criteria. Here are the debt and eligibility requirements for filing Chapter 7 bankruptcy.

Over the last few decades, most courts have begun requiring parties to attempt mediation, or other forms of alternative dispute resolution (ADR), at various stages in the litigation process. The mediation process is very effective at resolving disputes as it forces the parties to realistically evaluate their positions, then, weigh that against the risk of success.

So if mediation talks break down or one party wants out, what happens next? Below you'll find some important information on what to do after a mediation session fails.

While most people tend to think of discrimination in terms of race, gender, disability, ethnicity, and age, another category exists that many people are unaware of entirely: genetic information. Not only do civil rights laws protect against discrimination on the basis of a person's genetic information, there are strong prohibitions against employers even conducting genetic testing on their employees.

A person's genetic information can include information that may not necessarily reflect a disability, but rather a personal trait, medical information, or other characteristics. When an employment action is taken that is based upon a person's genetic information, like a decision based upon race, it will be considered impermissible. The EEOC advises that, under the Genetic Information Nondiscrimination Act (GINA), employment decisions based on genetic information are never permissible because genetic information is 'not relevant to an individual's current ability to work.'

Last week, President Donald Trump signed another executive order, this time creating the Presidential Advisory Commission on Election Integrity to investigate voting processes and registration for federal elections. Ostensibly, this commission will root out past voter fraud and advise the Oval Office on measures to prevent it in the future.

But the American Civil Liberties Union is wondering why there's a need to create such a commission in the first place. On the same day Trump signed his executive order, the ACLU filed a freedom of information request for any evidence the Trump administration has supporting its claims of voter fraud.

The United States Chess Federation was recently sued by a group of angry parents who alleged the organization was discriminating against their children. No, this had nothing to do with the white pieces always going first, but rather, the parents allege discrimination for their children being homeschooled. While homeschooling does not necessarily entitle a person to protection from discrimination, if there is a religious reason behind the decision to homeschool, that could amount to religious discrimination.

The lawsuit came about after the US Chess Federation (USCF) refused to allow a team of home schooled kids to participate in their "Super-Nationals" tournament this coming weekend. Last year, USCF disqualified one member of the same team of homeschooled children from a non-super national chess competition over a minor rules violation raised by a competing team's coach (that also happened to be a USCF board member). Due to the rules violation, the team dropped from 3rd to 9th place.

For whatever reason, high school proms bring out the anti-LGBTQ side of school administrators. One Mississippi school cancelled its prom rather than let a lesbian student bring a female date, and then allegedly put on a "sham prom" for that student alone while the rest of the school partied at another location.

And according to a lawsuit filed by a gay student in Buffalo, the run-up to this year's prom has been filled with announcements over the loudspeaker advising students that "couples" tickets are reserved for opposite-sex couples, same-sex dates are prohibited, and if same-sex students are seen dancing at the prom, the principal will separate them. Not exactly an LGBTQ-friendly atmosphere, but not unexpected from a school that allegedly also won't allow students to form a Gay-Straight Alliance.

A lawsuit filed over the weekend against the Washington D.C. Water and Sewer Authority (WASA) alleges that the agency violated the civil rights of over 20 DC homeowners and residents as a result of a sewage eruption. The residents were all forced to evacuate their homes when, in November of last year, sewage rising from the public system caused each home to be filled with two to three feet of standing raw sewage.

Although authorities made some effort to clean up the sewage eruption and remedy claims for damages, nearly all of the residents have found those efforts to be failing. Those affected by the sewage eruption returned to find destroyed and missing belongings, heaps of sewage damaged items and home fixtures strewn about on their lawns, and homes filled with the aftermath and stench of being covered in raw sewage.

You fought hard to gain custody of your children. But what happens if you won't be able to care for them for an extended period of time? If you're going to be separated from your children due to business travel or military deployment, or if you're facing months or years of rehab treatment or incarceration, you may need someone to make some important decisions while caring for your children. But how do you make that happen without ceding custody?

A power of attorney can give a trusted friend or relative authority to make such decisions in your absence. So how do these powers work, and what are their limits?

Child custody decisions, in every state, look to what is in the best interests of a child. This requires looking at more than just what a parent can financially provide. The type of attention and upbringing a parent can provide will often be regarded as more important than the financial ability to provide. After all, a parent does not have to have physical custody to be legally required to financially provide for their children.

Frequently, issues regarding what’s best for a child’s upbringing will involve rather sensitive issues, such as religion, or a parent’s sexual history. These matters can actually have an impact on a judge’s decision regarding what is in the best interest of a child. However, that impact can range from nearly insignificant to crucial.

Sanctuary cities -- those that decline to cooperate with federal immigration enforcement -- have become a target under the Trump administration. The president attempted to punish sanctuary jurisdictions by withholding federal funds, but his executive order was blocked by a federal judge two weeks ago.

Now Texas has enacted a law aimed at punishing local law enforcement authorities who refuse to cooperate with federal immigration agents. In response, the ACLU has declared a travel warning for both U.S. citizens and immigrants in Texas, warning that their civil rights may be violated if they are detained by police. So what does The Lone Star State's new law actually do?

A recent lawsuit filed by a widower, and the deceased's nephew, alleges that a Mississippi funeral home refused to provide agreed upon transportation and cremation services due to the sexual orientation of the deceased.

Prior to the deceased's passing, specific arrangements were made weeks in advance, and confirmed 24 hours prior to death. Specifically, the funeral home agreed to transport and cremate the deceased. However, it is alleged that once the deceased passed, and the funeral home received the paperwork, the nursing home where the deceased passed was informed that the funeral home "did not deal with their kind."

It was clearly understood that this meant the funeral home did not provide services to LGBT individuals. The funeral home has denied the allegations and expressed surprise that anyone from their organization would say or do such a thing.

If you have children and are getting a divorce, chances are it will not be a clean break with your ex, even if you want it to be. You will still need to work with the other parent on custody decisions, see the other parent during custody transitions, and you will both be involved in the children's lives going forward.

And whether you will be in contact with your soon-to-be ex reluctantly or you're looking forward to co-parenting following the divorce there are some legal steps you can take to make the whole process easier.

Caring for an aging parent can often be a rewarding, yet trying, experience. There are many common issues that come up between siblings when parents begin to show signs of their aging. Unfortunately, these issues, if not handled properly, can lead to escalated tensions and fighting between siblings, and can even end up in costly litigation.

What's worse is that many times, these conflicts are the result of mistakes that may be avoidable. Caring for an aging parent involves quite a bit more than many people are able to handle. Below, you'll learn about five of the more common mistakes siblings make when addressing the needs and issues surrounding their aging parent(s).

The home selling process can be a complicated one. Between listings, ads, inspections, negotiations, title review, mortgage loans, contracts, and escrow, there are an endless array of moving parts to consider, all creating or affecting the buyer's and seller's rights and responsibilities.

If you're considering putting your home on the market, make sure you go into the process knowing your rights as a seller, as well as your legal obligations.

Religious freedom may be one of the tenets upon which the USA was founded, but you sure wouldn’t be able to tell based on the law that just passed in Alabama by an overwhelming majority. The result of the new law is that faith-based adoption agencies can turn away gay couples who are looking to adopt. The law doesn’t apply to agencies that receive state or federal funding.

Basically, the law gives Alabama’s private, religious adoption agencies the right to discriminate against LGBT communities, as well as other faiths, atheists, and agnostics, when providing the public service as an adoption provider. The state’s only openly gay congressperson, P. Todd, called the law “bigotry in the first degree.”

Many of us dream of retiring to warmer climates, preferably to a beach, and one where we can stretch out under an umbrella and really stretch our retirement dollar. As it turns out, many of us have been living that dream, albeit somewhat illegally.

U.S. News recently released a report on American retirees living in Mexico, and found that, despite a welcoming atmosphere both socially and legally, many U.S. citizens may be illegal immigrants south of the border.

Some lawyers are as annoying, pedantic, and greedy as every lawyer joke suggests. Unfortunately, as a result, for unrepresented parties, persistent or aggressive attorneys can often be mistaken as bullies or harassers. What’s worse though, is that, sometimes, attorneys cross over the line of acceptable persistence and aggressiveness.

For lawyers and non-lawyers alike, knowing when an attorney crosses that line of acceptable conduct generally is not too difficult, but does involve taking a step back and evaluating the conduct objectively. If you are directly threatened with violence, contacting the police is likely advisable. Broadly, however, how the harassing conduct is evaluated will vary depending on whether both you and the attorney are involved in an active case.

While the phrase "government shutdown" sounds ominous, it doesn't mean that every federal agency will close its doors and the wheels of the executive branch will grind to a halt. As they did through shutdowns during Obama's presidency, certain essential government agencies and employees would continue working during the looming Trump shutdown.

That said, there are quite a few different government agencies involved in immigration applications and enforcement, so which ones are essential and which ones could slow down or close up shop during a government shutdown? Here's a quick look.

Fortunately for workers, the law protects individuals who refuse to commit illegal actions for their employer. However, despite the law, from time to time, employers may pressure or force employees to break the law.

For employees, it can be difficult to say no to their boss, and this can be extremely uncomfortable if your boss is asking you to do something illegal. Unfortunately, legal protections mean very little when a person has been fired and must face the immediate financial hardship and the associated stresses. Below are a few tips on what to do if you've been fired for opposing unlawful conduct or illegal activity.

Throughout its existence, Airbnb has been plagued with reports of racial discrimination and profiling by hosts. While the company has taken action to ban some discriminatory hosts (as recently as last month), an agreement signed with California's Department of Fair Employment and Housing might be the online rental platform's biggest move yet to combat racial profiling.

Under the agreement, Airbnb will submit to fair housing testing and allow the DFEH to audit hosts for racial bias in part by creating fake renter profiles. Here's how the program will work.

Across the country, the most heated disputes between neighbors often involve fences and meddlesome trees that straddle property lines. Whether it's a neighbor's dog causing damage to your fence, or sap-dripping tree branches hanging over your driveway, knowing your rights is important before attempting to negotiate an amicable resolution to neighborly disputes.

Here are five frequently asked legal questions about property line disputes involving trees and fences:

After our parents have taken care of us for so long, there comes a time when you might have to repay the favor. As our parents age, they may need help making financial decisions ranging from writing a will or trust to writing a check for bills.

Taking on this role can bring with it emotional stress and family conflict, not to mention worry about what is legal and what's not and the pressure to get it right. Here are some helpful tips on managing your parents' finances from our archives:

If you're considering filing for bankruptcy, you're going to hear the word "creditor" thrown around a lot. Generally, a creditor is anyone to whom you owe money, and this can include banks that hold your mortgage or car loans, credit card companies, and even your landlord if you're behind on the rent.

In a bankruptcy filing, your creditors will be split into three groups, depending on the type of debt -- priority, secured, and unsecured creditors -- and their claims for repayment will be handled differently depending on the type of creditor and type of bankruptcy you're filing. Here's a look at unsecured creditors.

Reading about the multi-million dollar divorce settlements of the stars leaves a lot of soon-to-be-former spouses wondering what they should be asking for in their divorce settlements. Unfortunately, for those of us not counted among the super-rich, what's negotiated for will be much more humble.

Although family law is primarily controlled by state law, there are several general terms in a divorce settlement agreement that a party should be sure to ask and argue for, and be ready to negotiate over.