Divorce: Alimony

I once had a law professor say that he would never allow his daughter to get married without a legal form called a prenuptial agreement. He said the true test of a perspective son-in-law's love was "the boy's" willingness to agree not to take anything that didn't belong to him should the marriage break up. I responded that some would argue the true test of love is one's willingness (i.e. his daughter) to gamble that the marriage will never break up by not signing a prenup.

In any case, if you do not sign a prenuptial agreement and your marriage ends in divorce chances are the topic of Alimony (a/k/a Spousal Support) will need to be addressed. The purpose of alimony is to assist the unemployed or lower earning spouse weather the unfair financial consequences of divorce by requiring the higher earning spouse to provide a continuing income for his or her former spouse. This is very often the most contentious part of divorce as both spouses battle to prove how little or great their incomes are for purposes of determining if alimony should be paid and who should be required to pay alimony.

Determining Alimony
Alimony and Child Support are two completely different issues and, in most states, are treated very differently. Child Support is usually determined using specific statutory guidelines based on a breadwinning parent's income. Check out my article on Child Support for more information.

Alimony, on the other hand, does not rely on uniform statutory guidelines. Instead, courts have broad discretion in determining whether, how much and how long Alimony is to be awarded. Many state statutes provide factors for a court to consider in determining Alimony. Courts are usually not mandated (but encouraged) to use the following factors:

(1) The standard of living established during the marriage;
(2) The duration of the marriage;
(3) The age and the physical and emotional condition of each party;
(4) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each;
(5) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;
(6) All sources of income available to either party; and
(7) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

The above factors are just some of the factors a court may look at in determining Alimony.

Types of Alimony
There are several types of alimony a court may award depending on the immediacy and type of need. These include (1) Temporary Alimony; (2) Rehabilitative Alimony; (3) Permanent Alimony; (4) Reimbursement Alimony; and (5) Lump-sum Payment Alimony.

Temporary Alimony is alimony awarded while the parties are separated pending final divorce. This type of alimony is common where one spouse has no source of income and the breadwinning spouse has refused to support his or her spouse.

Rehabilitative Alimony is alimony awarded to a no income or lower income spouse to allow him or her to seek employment training or otherwise learn to increase his or her earning power until he or she can be self-supporting. Rehabilitative Alimony is usually for a fixed time period (i.e. until the kids are 18, etc.).

Permanent Alimony is alimony awarded without a set time for termination. Permanent Alimony usually terminates upon when either the paying or receiving spouse dies, or the receiving spouse remarries. Permanent Alimony may also terminate if the receiving spouse cohabitates for a certain length of time and the cohabitating partners substantially share the burden of day to day expenses.

Reimbursement Alimony is alimony awarded to reimburse one spouse for expenses incurred by the other. This type of alimony might be awarded when one spouse supports the other through college and the divorce occurs shortly after graduation. The supporting spouse might be awarded Reimbursement Alimony as compensation for the support given to his or her spouse.

Lump-sum Payment Alimony is alimony awarded in one or a series of fixed payments required to be made no matter what circumstances might arise. Lump-sum Payment Alimony is usually not affected by the death or remarriage of either spouse. Lump-sum Payment Alimony is usually used to avoid making the paying spouse have to sell his or her property and divide the proceeds.

Elder Law: Real Estate Fraud

I recently read an article in Lawyers USA titled "'Friends' cheat elderly couple out of dead son's farm." The title of the article caught my attention right away for reasons my immediate and extended family might appreciate. As I read the article, the facts seemed eerily similar to a situation we were forced to deal with in our family a few years back. The facts stated in the article are as follows:

David Lenstrom (presumably in his 40s) owned a farm in Wisconsin valued at approximately $800,000. He had two friends Matthew and Catherine Simpson (husband and wife). David died of prostate cancer in December, 2001, leaving his farm to his elderly parents. When David died, Catherine Simpson quit her job to "spend time with" her deceased friend's aging parents. The article states that the Simpsons then proceeded to "isolate the elderly couple" from family and other friends.

In about 2005, David's elderly father found out that he too had prostate cancer and would probably soon pass away. The Simpsons learned of David's father's condition and convinced him to sell them the farm for $200,000 (about 1/4 the real value of the farm). In exchange for the reduced price of the farm, the Simpsons promised to "do 'everything in [their] power to maintain the quality of [David's parents'] lives on the farm' and that the land sale contract would be null and void if they could not do so." Imagine the elderly parents trying to enforce that provision in court.

David's elderly father (concerned about his aging wife upon his passing) sold the farm to the Simpsons. Fortunately, concerned family members became involved, hired an Elder Law attorney and sued the Simpsons to reverse the transaction. The court agreed with the concerned family members, reversed the transaction concluding that the Simpsons "'ingratiated' themselves to [the] elderly couple in order to persuade them to give away their farm." Justice seems to have prevailed.

Act Immediately
If you encounter circumstances similar to those above, find an Elder Law attorney immediately. I can say this based on personal experience. While in my first year of law school my Contracts professor related an account similar to the one above. The account reminded me of a situation our family was then going through with one of our elderly family members.

Upon hearing my professor's account, I approached the professor and he gave me the name of an Elder Law attorney. I told him I would rather wait until I graduated and handle the case myself. He discouraged this, reciting the adage about the person who represents himself having a fool for a client. He also reminded me that the statute of limitations might run before I was out of law school. I bought the latter argument.

A week later our family contacted the Elder Law attorney, suit was filed and our family won. As it turned out, had we waited about 3 more months to file suit the statute of limitations would have run. Because we acted when we did justice also prevailed in our case.

Of course, if you are the guy stealing property from the elderly you may disagree with my take on justice prevailing. If so, "[insert expletive here] you!" and don't come back to my blog you thief.

You may also be interested in my article on Adverse Possession.

Landlord and Tenant: Tenant's Rights

On Wednesday mornings from about 9:00 a.m. to 12:00 p.m. I can usually be found at the local county courthouse involved in landlord/tenant disputes. Sometimes I am there representing a tenant being evicted. Sometimes I am there representing a landlord doing the eviction.

Last week while I was waiting for my hearing to begin I had the opportunity to observe another eviction hearing. The landlord was an elderly retired man dressed in cargo pants and a dress shirt and it was evident from what he said in court that a substantial part of his monthly income came from renting the home. He indicated that this was his only rental home and that he had not received payment on time for three months. When he did not receive payment on time it meant he could not pay his bills on time.

The tenant was a young woman with two children dressed in nursing scrubs. During the summer, her children stayed with their grandmother while the woman worked as a nurse on the day shift. She admitted to having consistently paid the rent late but stated that sometimes she had to choose between buying food and diapers for the family or paying the rent on time.

As is often the case in county court, the Judge was required to fashion a Solomonlike remedy to satisfy both parties; for the meantime anyway. On that day the remedy was to have the tenant commit to paying the rent on time from here on out or be evicted from the apartment. The commitment was good enough for the landlord and allowed the tenant at least another month before she is evicted or finds another place to live. I don't envy the Judge's role in those situations.

This situation and other eviction situations I have been involved in has prompted me to discuss, in general terms, the law with regard to both tenant's and landlord's rights. This post deals with tenant's rights.

Tenant's Right to Privacy
Although it never seemed the case when I was in undergraduate school, the tenant has a right to privacy in his or her home or apartment. What this means is a landlord is prohibited from entering the rental unit without permission.

Unless there is an emergency (such as a fire or flood in the rental unit) the landlord is required to provide the tenant advance notice before entering the rental unit. The advance notice required differs from state to state so you may want to contact a landlord/tenant attorney to advise you of your rights. A link to landlord/tenant attorneys may be found at the top of this page.

Some of the reasons a landlord might need to enter the rental unit upon advance notice include making repairs, periodic inspection, or showing the unit to a potential new tenant. Most states regulate these entries by delineating how much advance notice the landlord must give and requiring the landlord to tell the tenant why and what time he or she will enter the rental unit.

Rental Deposit
Most states have set maximum dollar amounts a landlord can require for a deposit with penalties should the landlord exceed the maximum amount. Landlords are bound by anti-discrimination laws in setting deposits. When a landlord has several tenants and the deposits required of each tenant appear to be arbitrarily set, an inquiry may be made as to the formula used by the landlord for setting the deposit amount.

In many states landlords are required to place the deposit into an interest bearing account. The deposit and interest must be returned to the tenant at the end of the lease term. Florida is one such state. Many states also require a landlord to return a deposit within a specific period of time after the tenant moves out (usually thirty days).

If the entire deposit is not returned, the landlord must provide an itemized list of how the money was spent. A landlord may spend the deposit on items such as repairs to the rental unit beyond normal wear and tear, cleaning and unpaid rent.

Tenant's Right To Sue
In most states, landlords are required to comply with certain legal form notice requirements prior to filing a suit for eviction. Such requirements may include (depending upon the state) notice of nonpayment of rent, notice of eviction, and notice of breach of the lease agreement. Most states require a landlord to provide a tenant the opportunity to bring current any unpaid rent or to come back into compliance with the lease agreement.

Tenants may also sue the landlord to enforce the lease agreement. Common tenant suits include suit to have the landlord make repairs to the rental unit, suit for return of the deposit, suit for failing to keep the premises clean and usable and suit for breach of privacy.

Again, should you need legal advice on a landlord/tenant issue an attorney may be found at the top of this page.

Divorce: Florida Simplified Dissolution of Marriage

An acquaintance of mine came in a month or so ago and said that she and her husband were getting a divorce. She said she didn't hate him and didn't think he hated her and that the marriage had been one of convenience. Both have successful medical careers and she said that as their careers had evolved they spent less and less time with each other and more time at work. I won't get into why, but the marriage was apparently no longer convenient.

By way of background, she and her husband were both born, raised and currently live in Florida. They were married about two years ago. She has two children from a previous marriage, but they do not have children together. About a year ago they bought a house and have agreed to sell the house and split the equity. They do not jointly own any other assets. Without getting into my opinion on what I think about marriages for convenience, I told her they may consider filing for a Simplified Dissolution of Marriage. Had either party contested the divorce I would have advised that they consider Divorce Mediation first. By the way, she gave me her approval to use the facts of her situation in this post.

Simplified Dissolution of Marriage
In Florida, as in a number of other states, a couple may file for a Simplified Dissolution of Marriage if the following criteria are met:

(1) Both spouses have lived in Florida for at least six (6) months;

(2) Both spouses agree that the marriage cannot be saved;

(3) Both spouses have no minor or dependent children together and the wife is not currently pregnant;

(4) Both spouses have worked out how the two will divide their assets and who will pay what part of their liabilities, and they are both satisfied with the division;

(5) Neither spouse is seeking alimony;

(6) Neither spouse wishes to have any financial information provided by the other spouse other than that contained in the financial affidavits;

(7) Both spouses are willing to give up their rights to trial and appeal;

(8) Both spouses are willing to go to the clerk's office to sign the petition (not necessarily together);

(9) Both spouses are willing to attend the Final Hearing at the same time.

If your circumstances are similar to those experienced by my client and meet the above criteria you are likely eligible for a Simplified Dissolution of Marriage. If one of the above criteria is not met, contact an experienced divorce attorney as soon as possible. An experienced attorney will be able to assess your legal rights and advise you on alternatives to the Simplified Dissolution of Marriage.

Nursing Home Abuse: Legal Remedies

A friend of mine is a nurse who primarily works with elderly patients who have suffered heart attacks and strokes. She recently told me about a patient she tended on one of her night shifts. The patient was an elderly man who had been sent to the hospital from a local nursing home. The man had had a heart attack; but that is not why I mention this. It was apparent to my wife that the man had not been tended to properly while at the nursing home. He had bed sores on his backside, his hygiene was poor and it appeared that he had been both neglected and abused at the nursing home. I asked her whether this was the first time she had seen something like that. She said most of the patients who came from that nursing home were in the same condition. It is my understanding that the nursing home has since been shut down due to lawsuits.

The elderly are often victims of this type of abuse. Not wanting to be a burden on their children, they choose to move into nursing homes for care and protection. Most of the time nursing homes provide the care and protection the elderly are seeking. But this is not always the case. It is not uncommon for an elderly person to be physically and mentally injured by the negligent or intentional acts of their caregivers. More often than not the abuse or neglect is the result of (1) poorly qualified and inadequately trained staff; (2) staff with a history of violence; (3) not enough staff on duty; (4) the isolation of residents; and (5) the reluctance of residents to report abuse out of embarrassment or fear for their safety.

Legal Steps To Take
If you are a victim of nursing home abuse or you suspect a loved one may be a victim of nursing home abuse there is something you can do about it. Among the actions you may want to take are:

(1) An investigation by an adult protective services agency. This will provide the victim immediate help and relief and prevent further harm.

(2) A civil lawsuit for damages. A nursing home can be held liable for negligence if the injured party can show: (A) that the nursing home's owner or employees breached a duty of care owed to the victim; (B) that the victim's injury was caused by this breach; and, (C) that the nursing home owner's or employee's conduct caused the injury. These elements are obviously legal terms of art and should be discussed with an attorney who specializes in nursing home abuse law. The nursing home may also be liable for breach of contract for failing to abide by the "care of resident" provisions of the standard nursing home contract.

(3) Criminal prosecution to punish the individual(s) responsible for the abuse. Many states provide criminal penalties for the abuse or neglect of nursing home residents. Some states even have enhanced penalties for crimes committed against the elderly. Failing to provide residents with sufficient food, maintain standards of resident hygiene, prevent bedsores from occurring, or the unjustified use of physical restraint or force against nursing home residents may be enough to prove criminal neglect or abuse.

I hope this information is help and we can do our best to eliminate nursing home abuses.

Employment Law: Discrimination

I heard a commercial on the radio the other day that really made its point about employment discrimination. It started with someone dialing a telephone and a voice answering "so-and-so incorporated, hiring department." The next voice was a male voice with a thick Hispanic accent requesting more information on a position at so-and-so incorporated. The hiring department responded "Sorry, the position has been filled by someone with a greencard."

Again the telephone rang and the same voice at so-and-so incorporated answered with the same greeting. This time a voice sounding a lot like my grandmother in St. Augustine, Florida requested more information on the same position. Again the hiring department responded "Sorry, the position has been filled."

Again the telephone rang and the same voice at so-and-so incorporated answered with the same greeting. This time a woman with a thick Jamaican accent requested more information on the same position. Again the hiring department responded "Sorry, the position has been filled."

Finally, the telephone rang and someone sounding a lot like me (white and male) requested information on the same position. This time the hiring department said, "Can we set up a time for you to come in and interview for the job."

The actions taken by so-and-so incorporated in this scenario are illegal.

Employment Discrimination
The Civil Rights Movement of the 1960's laid the foundation for the Federal and State employment discrimination laws we have today. Title VII of the Civil Rights Act of 1964 bans discrimination based on race, national origin, gender, and religion. Title VII applies to employers with fifteen or more employees and prohibits such employers from refusing to hire; disciplining; firing; failing to promote; demoting; harassing or failing to provide equal pay to an employee based on the employee's race, national origin, gender, and religion.

In addition to Title VII, the Age Discrimination in Employment Act (ADEA) prohibits any employer with twenty or more employees from discriminating against employees or applicants who are over the age of forty. An employee may bring a cause of action against an employer under the ADEA if the employee is fired or forced to retire and replaced by a younger employee.

Americans With Disabilities Act
The Americans With Disabilities Act (ADA) prohibits discrimination against those who are disabled. This applies to employers with more than fifteen employees. To fall under ADA protection, an employee or applicant must show that he or she (1) is disabled; (2) has a history of being disabled; or (3) was regarded by the employer as being disabled.

If an employee or applicant can prove one of the these three criteria, the employee is entitled to ADA protection which includes having the employer provide "reasonable accommodation" for the disability. Reasonable accommodation may be unpaid time off from work, a modified work schedule or work duties, or special devices that will help the employee in the performance of his or her job duties.

If you feel you have been discriminated against based on race, national origin, gender, religion, age or disability contact one of the attorneys at the top of this page.

Bankruptcy: The Means Test

This is a follow up to my post on the new bankruptcy income eligibility requirement. If you have not read that post I would advise that you read it as it explains when and why Congress included a "Means Test" prior to filing bankruptcy under Chapter 7.

Most of my clients have an income greater than the median income allowed by the bankruptcy rules. This does not automatically exempt them from being able to file bankruptcy under Chapter 7 (debt discharge without any repayment) . Instead, it requires that my clients satisfy a "Means Test" to be eligible for filing under Chapter 7.

The "Means Test"
The Means Test is designed to determine whether you have enough disposable income to make payments to your creditors under a Chapter 13 (creditor repayment) plan. Congress included this test to address the situation where a debtor with no real valuable asset but substantial income files bankruptcy and gets discharged from his debts. One situation I have heard about involved a young man in his early 20's who lived in a modest apartment he rented, drove an older model car and made almost $50,000 per year on an online business selling medical uniforms. He used a credit card to pay off his student loan debts and his income to pay for trips to Europe, Asia, Hawaii, etc. Because he had an online business he was able to work from almost anywhere in the world. He filed bankruptcy prior to the new laws going into effect and was discharged of nearly $60,000 worth of credit card and other installment loan debt. Congress has attempted to "fix" this situation with the Means Test.

To determine whether you qualify for a Chapter 7 discharge under the Means Test, you subtract from your currenty monthly income: (1) certain allowable expenses (determined by the IRS); and (2) the monthly payments you will have to make on secured and priority debts. These debts include items such as a mortgage or car loan, child support, alimony, tax debts, and wages owed to employees.

If your total monthly disposable income after subtracting these amounts is less than $100, you are eligible to file Chapter 7 bankruptcy to receive a discharge of your debts. If your total remaining monthly disposable income is more than $166.66, you are ineligible to file Chapter 7 bankruptcy.

If your total monthly dispsable income is between $100.00 and $166.66, you must determine whether the remaining disposable income is enough to pay more than 25% of your unsecured, nonpriority debts (i.e. credit card bills, student loans, medical bills, etc.) over a five-year period. If so, you are ineligible for filing bankruptcy under Chapter 7.

Bankruptcy: The Income Eligibility Requirement

You may have heard all the bankruptcy buzz last year but didn't pay much attention to it. Most of my clients fall into that category. In general most people don't learn much about bankruptcy until they are faced with a financial crisis and the decision of whether to file.

You may be surprised to learn that most people who file bankruptcy didn't plan on racking up a bunch of debt, living the high life for a little while and then filing bankruptcy to avoid having to pay back the debt. Instead, most people who file bankruptcy have done so because of unexpected medical bills, divorce or some other life changing event that has turned themselves and their families upside down financially. Most of these people have tried months and even years of "subsistence living" using credit cards and other loans to get hoping that things would get better. The problem is, things didn't get better.

That being said, the new bankruptcy laws have redefined (translation: tightened up on) who is eligible to file bankruptcy and the procedures for filing bankruptcy. This post deals with one of the more prominent changes affecting who can file bankruptcy.

The New Bankruptcy Changes
Among other things, the new bankruptcy rules require that: (1) all debtors get credit counseling before they can file a bankruptcy case (more on this in a future post); (2) debtors with higher incomes won't be allowed to file Chapter 7 (liquidation) but will instead have to repay at least some of their debt under Chapter 13 (addressed in this post); and (3) lawyers must comply with new bankruptcy standards (also to be addressed in a future post).

To determine whether you are eligible for filing Chapter 7 (debt discharge without any repayment), the new rules require that you balance your current monthly income against the median income for a family of your size in your state. Your current monthly income is determined by looking at your average income over the six months leading up to the date you filed bankruptcy. For most people, especially those filing bankruptcy because they recently lost a job, their current monthly income will be much more than they actually earn monthly at the time they file bankruptcy.

Once you've calculated your income, compare it to the median income for your state. You can find median income tables, by state and family size, at the United States Trustee. If your income is less than or equal to the median, you can file for Chapter 7. If it is more than the median, however, you must pass the "Means Test" in order to file for Chapter 7. The means test will also be addressed in a future post.

Other Related Bankruptcy Posts
Bankruptcy: Is it right for you?    Bankruptcy: The income eligibility requirement    Bankruptcy: The means test   Bankruptcy and student loans

Enhanced Life Estate Deed, Ladybird Deed

One of my clients is an elderly widow. 

She recently contacted me with several concerns about her estate. Her primary concern was that she wanted to keep her home out of probate when she passes away. 

Like most people, she doesn't like the idea of her property being tied up in legal limbo for months before her beneficiaries (i.e. her daughter and two sons) take possession of the home.

Medical Malpractice; Sorry About The Leg

Did you hear the one about the patient in Florida who went in to have his right leg amputated only to awaken from anesthesia to see that his left leg was gone instead? Or the woman who had brain surgery performed on the wrong side of her brain? Or the psychiatrist who billed a single patient for group therapy claiming he had to counsel all 120 of the patient's personalities? You may be waiting for the punch lines for these jokes, but these stories are, in fact, real.

Each year thousands of errors are made during medical procedures ranging from the egregious errors highlighted above to minor errors. One case I am aware of involved a surgeon who stitched his patient up without removing a towel used to dab blood during surgery. For years the patient struggled with pain around the area which had been operated on. More than a decade later another doctor discovered the towel after extensive tests had been performed. A second operation was required to remove the towel. The surgeon who originally performed the operation denied leaving the towel inside the patient. The facts indicated otherwise. After consulting a medical malpractice attorney the patient was able to recover her costs associated with the additional medical expenses as well as for the pain and suffering she experienced as a result of the surgical error.

Consult A Medical Malpractice Attorney
If you suspect you might be suffering as a result of a medical error, consult a medical malpractice attorney. Most medical malpractice attornies do not charge for an initial consultation and can tell you during the consultation whether you have a valid claim. I know medical malpractice attornies who were so versed in medical terminology and know their area of practice so well they could write volumes on the diagnosis, treatment and prevention of almost any type of major medical condition. If you suspect you suffer from a medical error, review the article titled "How To Find An Attorney" in this blog and contact a medical malpractice attorney.

Construction Lien Law: Private Contracts in Louisiana

I spent a number of weekends last year (2005) in Louisiana helping storm victims "muck out" their homes, tarp their roofs and cut and haul trees out to the sidewalk. I don't say this to brag as their were certainly others who did a lot more than anything I did. I only mention it because given the destruction caused by Hurricane Katrina (and friends) there will be a lot of new construction in Louisiana during the upcoming years. I am aware of numerous local contractors who have closed up shop in Florida and moved to Louisiana to reap the profits that have come with insurance payouts. For good or bad, most of the Louisiana hurricane victims have decided to rebuild.

Given that introduction I have decided to post a memo I wrote a number of years ago on Louisiana Construction Lien Law. While some of the information may be outdated, it should provide a good starting point to those contractors now working to rebuild Louisiana's Gulf Coast. The memo has made this post quite a bit longer than most of my other posts but I think the information is worth the additional length.

The Memo
Despite some unusual terminology (Louisiana's law is based on the Napoleonic code, not English common law like the other 49 states), Louisiana lien laws are very similar to those of other states. However, like most states, Louisiana has its own unique requirements and subtle differences. General contractors are required to file a notice of contract or risk the chance of being precluded from filing a lien. Different classes of claimants are provided with distinct time frames in which to file the lien.
There is no statutory language addressing the issue whether a contractor can waive in advance its lien rights; however, there is at least one case implying that a party can contractually waive those rights in some circumstances. See Sam Marrs Equip. Co. v. C&J Printing and Sandblasting; 365 So.2d 592, 593 (La. Ct. App. 1978).

Persons Entitled to a Lien
Louisiana provides persons furnishing work or material, pursuant to a contract, the right to file a lien. Lienors include a) Contractors; b) Subcontractors; c) Laborers; d) Materialmen; e) Registered or Certified Surveyors and Engineers; and f) Licensed Architects.

As in most states, lienors are divided into privity and non-privity claimants. Persons having contracts with the owner are classified as privity claimants. Non-privity claimants are persons having contracts with a contractor, subcontractor or a contract that is one of a series of contracts emanating from the contractor. R.S. 9:4807. This distinction is important because each class of claimant is provided with different notice and time requirements.

What Owners Must Do
To achieve maximum protection under lien laws, Louisiana requires owners to provide two forms of notice in conjunction with improvements to property. Prior to beginning work on the improvement, the owner must file a notice of contract. Upon termination or completion of the improvement, the owner must file a notice of termination.

A written notice of contract, similar to a notice of commencement, must be signed by both the owner and the general contractor and filed with the clerk of court before the general contractor begins work on the project. Failure by the owner to file the notice of contract creates personal liability for the owner for liens filed by claimants. Continental Gas Co. v. Assoc. Pipe & Supply Co., 447 F.2d 1041, 1050 (1971). The notice of contract must a) contain a description of the property on which the construction is to be performed and the name of the project; b) identify the parties and give their mailing addresses; c) state the price of the work or if there is no fixed price, the method by which the price is to be calculated and an estimate of the price; d) state when payment of the price is to be made, and e) describe in general terms the work to be done.

Like the notice of contract, the notice of termination is designed to protect owners. The notice of termination must reasonably identify the property on which the improvement occurred, must be signed by the owner or his representative, and must certify the work has been substantially completed, abandoned by the owner or that the contractor is in default under the terms of the contract. R.S. 9:4822.

Privity Claimants
It is in the best interest of the general contractor to ensure the written notice of contract is filed prior to beginning work on the project. Failure to timely file a notice of contract will preclude a general contractor from obtaining a lien when the price of the work stipulated is in excess of $25,000. R.S. 9:4811.

In addition to ensuring timely filing of the notice of contract, privity claimants must file a signed notice of lien within 60 days of the owner filing a notice of termination or from substantial completion of the work. The lien must a) reasonably identify the property; and b) set forth the amount and nature of the obligation giving rise to the claim and reasonably itemize the elements comprising it.

An owner may require the contractor to provide a bond prior to starting the job to avoid future liability from work performed by non-privity claimants. Normally, only the owner may bring an action against the bond prior to the completion of the time specified for the filing of a lien. However, other claimants may bring an action 30 days after delivering a statement of lien to the surety. All actions against the bond must be brought within 1 year of the expiration of the time specified for the filing of a statement of claim. R.S. 9:4812.

Non-Privity Claimants
Non-privity claimants have two possible time periods in which they must file a lien. If a notice of contract has been filed, non-privity claimants must file a lien and deliver a copy of the lien to the owner within 30 days of the owner filing the termination of work notice. When no notice of contract has been filed, the non-privity claimant must file the lien within 60 days after a) the owner files the notice of termination of work, or b) the substantial completion or abandonment of the work, if a notice of termination is not filed.

The lien claim must be signed, reasonably identify the property, and set forth the amount and nature of the obligation giving rise to the claim and reasonably itemize the elements comprising it.

An additional avenue of protection allows non-privity claimants to provide the owner with notice of any obligation owed them which arises out of the contract. While discretionary, this notice provides non-privity claimants with the opportunity to maximize their time for filing the lien. Notice must be provided to the owner before he or she files the notice of termination of work or before substantial completion or abandonment of work. The notice must contain the nature of the work or services performed and a mailing address. Upon receipt of this notice, the owner is obligated to notify the claimant within three days of filing a notice of termination of the work; or the substantial completion or abandonment of the work.

In addition to the lien filing requirements and the discretionary notice to owner, subsubcontractors have further notice requirements. Subsubcontractors must provide written notice to the contractor within 30 days of the owner recording the notice of termination. Notice must state the amount claimed and the party for whom the material or service was furnished. The notice is to be served by registered or certified mail. R.S. 9:4822.

Enforcement and Discharge of Lien
Action on the lien must occur within 1 year of filing the lien. R.S. 9:4823. The lien may be discharged by depositing a bond, cash, certified funds or a federally insured certificate of deposit which shall guarantee up to 125% of the principal amount of the lien. R.S. 9:4835.

Lawyer Lawyer, Pants On Fire

Have you heard the one about how you can tell if an attorney is lying? His lips are moving. Or how about the young lawyer wanting to impress the first client coming into his office, picked up the phone and said, "I'm sorry, but I have a tremendous case load and won't be able to look into this for at least a month." He then hung up, turned to the young man in his office and asked, "What can I do for you, sir?" "Nothing," replied the young man. "I'm just here to hook up your phone." These are just two of millions of lawyer jokes dealing with one issue: Lawyer ethics.

Before I went to law school I thought of law in the United States as a concrete, reliable source of rules derived from the Constitution and based on principles of right and wrong. To get at the law, all you had to do was blow back the atmospheric heavens and there it sat in all of its glory. Law school changed all of that; especially when it came to ethics.

Real Life Ethics Scenario
One real-life legal situation illustrates how the ethics I held prior to law school were at stark odds with those promoted by the American Bar Association. The case involved a defense attorney who represented a man accused (and eventually convicted) of the first degree murder of two five year old girls. The girls' bodies had not been found. At some point before the trial the accused told his attorney that he had committed the crime and described in detail the location of the bodies.

At trial, the defense attorney represented his client as best he could. He questioned the methods used by the investigating officers, provided alternative scenarios of what could have happened to the girls, pointed out that no bodies had been found and otherwise represented his client with zeal. He was required to do so under the applicable code of ethics. He watched the parents of the girls sit in the courtroom with tears in their eyes as the prosecution painted the picture of two brutal homicides.

Despite his best efforts his client was convicted of the crime. The parents were somewhat relieved by the verdict and requested that the murderer tell them where the bodies were buried. The parents sought closure. The murderer refused. The parents then turned to the defense attorney and asked whether he knew where the bodies were buried. It was apparent from the look on his face that he knew but the code of ethics required him to remain silent. You see, the code of ethics values the attorney/client relationship over the peace of mind and closure sought by the parents.

The defense attorney's conscience nagged him during the trial and continued to do so through several lengthy appeals. After the conclusion of the last appeal, the attorney's conscience got the best of him. Through an anonymous letter, he revealed to the parents the location of the bodies of their daughters. The murder weapon (a knife I believe) was found with the girls which served to vindicate the verdict of guilty. The attorney's conscience was free, but his legal troubles had just begun.

It was discovered that the anonymous letter had come from the attorney. He was brought before his state bar accused of violating the attorney/client privilege and eventually disbarred. When confronted with whether he sent the anonymous letter the attorney admitted he had. He did not lie about his involvement. My ethics before law school say that he did the right thing. The correct answer on the ethics exam is that he failed miserably. No wonder there are so many jokes about the ethics of lawyers.

Florida Construction Lien Law: Forms

I have a client who once thought he would save money in attorneys’ fees by filing his own Claim of Liens. In July of 2005, he filed a Claim of Lien against an owner (or the person he thought was the owner) seeking more than $100,000 in unpaid labor and materials provided for completion of an apartment complex. He thought he had met the owner on several occasions and even visited the person he thought was the owner at his home. He had been introduced to this person by the contractor who stated during the introduction “Meet the big dog. He owns this place.” When my client sent the Claim of Lien to the owner he sent it to the address he had visited.

The Claim of Lien was sent via certified mail (as required by the Florida Mechanic’s Lien Statute) and my client received proof that the Claim of Lien had been received. The problem was the person he had met was not the owner but a consultant hired by the engineer to oversee the project. Had my client sent the Claim of Lien to the address on the Notice of Commencement he would have cleared this hurdle. Instead, the Claim of Lien was invalid and when my client tried to sue the contractor, the contractor filed for bankruptcy. This situation is not uncommon.

Florida Mechanic’s Lien Statute was designed to protect owners, not subcontractors. Any subcontractor who has ever tried to enforce a Claim of Lien by himself (including my client) knows exactly what I am talking about. There are affidavits that must be signed, deadlines for notifying owners that you are performing work on the property, deadlines for filing claim of liens, deadlines for notifying owners, lenders and contractors that a lien has been filed and a multitude of other requirements.

Statute Strictly Construed
On top of that, Florida courts are clear that the Statute is to be strictly construed against the lienor. That means, if you as a lienor do not comply with all of the requirements of the Statute you cannot enforce your Claim of Lien and you will be left to sue the contractor. We all know that recovering from the contractor is not likely because if the contractor had had the money to pay the subcontractors the contractor would have done so and there would have been no need for a Claim of Lien in the first place.

For a more detailed explanation of the Florida Mechanic's Lien Statute see my post here.

Golf, Lightning and a Legal Duty of Care

I love to golf even though I'm not very good. My brother-in-law (a very good amateur golfer) got me started about three years ago. One thing I've learned about golf is one superb shot can make up for two really bad ones. I just haven't figured out how to hit a superb shot yet. I've also learned that whether you have had a good or bad day golfing very often depends on your perspective. In that regard, golf is a lot like practicing law.

A Lesson In Perspective
The other day I had a hearing before a judge in Miami on a Motion for Contempt. I represented a creditor who had obtained a judgment against a debtor for failing to pay for a boat he had purchased. I will call the debtor "Mr. Jones" to protect his identity.

Mr. Jones refused to provide my client information related to his finances even though the Judge had ordered him to do so. Check out my article on Collection Law and Post Judgment Discovery for more information on why he had to provide the information.

Mr. Jones was informed by the Judge that he was in Contempt of Court and would have to serve 5 days in jail. He began begging and pleading with the Judge not to send him to jail. He then turned to me and said "What will it take to pay this judgment off?" I gave him a figure, he wrote out a check and deposited it with the Court. The Court verified that the funds were good and recalled the Order of Contempt.

In a matter of seconds Mr. Jones' perspective on paying off the judgment changed. When he viewed paying the judgment as wasting hard earned money on a vehicle that he no longer possessed (it was repossessed and sold at auction) he resented the payment. When he viewed the payment as a way to keep himself out of jail he seemed almost happy about being able to write the check.

Another Lesson In Perspective
Similar to Mr. Jones, one Golf and Country Club in Kansas has recently experienced a change in perspective; at least when it comes to protecting its golfers from dangerous weather conditions. The facts of the case are these:

The weather forecast called for inclement weather. Two golfers decided to try to get in a round of golf before the storm hit and the weather became bad. At some point in their round the manager of the country club sounded a loud horn indicating the storm was approaching. The golfers finished the hole they were on and began walking back to the clubhouse. As the golfers walked back to the clubhouse a flash of lightning struck the two. One of the golfers was knocked unconscious but later recovered and the other suffered permanent lifelong injuries.

That is the "Golf" and "Lightning" part of the story.

A Legal Duty of Care
The next part of the story is somewhat technical because of the legalese involved. As it turns out, the manager of the country club had sounded the alarm because of a Club policy. It was the Club's policy that an alarm system be set up and used to warn its members of approaching storms. We know the manager sounded the alarm. What we don't know is whether the manager sounded the alarm in time to sufficiently warn the two golfers.

Now to the legalese. The Kansas Supreme Court ruled that the Club was not required to have a policy to protect its members from dangerous storms. Further, without a policy the Club would have been free from the burden of installing the alarm system equipment and using it correctly. However, since the Club did have a policy, the policy created a legal obligation (or duty of care) on the Club to ensure the alarm system equipment was set up properly and that it was used properly. As a result of trying to protect its golfers, the Club had opened itself up to lawsuits for failing to follow through with the protection.

The Club's perspective prior to the suit was that it would be nice to watch out for its golfers and warn them about inclement weather. That perspective has almost certainly changed. Lawsuits often have a way of changing people's perspectives.

Identity Theft: Pardon Me Maam, But You Don't Look Like A Roger

Several years ago I worked with an attorney who had received a notice that her credit card limit had been exceeded and that she needed to pay more than $500 to bring the card under the limit. She was shocked. She never carried a balance on any of her credit cards and paid all of her bills promptly. I told her to check her purse to see if the card was missing. As it turned out, not only was her card missing but also her driver's license, debit card and other valuable information and documents. She was, at that time, in the process of learning what it is like to have her identity stolen.

The weeks following her discovery brought more distressing news. The thief who had stolen her information had obtained other credit cards using her name and social security number and had changed her bank account PIN. The thief had taken a substantial amount of money out of her bank account causing her to bounce checks and other financial hardships. She discovered that the process of straightening out identity theft is not an easy one and can take literally years to fix. I have even heard some people say you can never fully recover from this type of theft.

The good news (to the extent there was any good news) is that the thief was caught almost six months after the theft at a Wal-Mart located in southeast Georgia. The thief was trying to use her debit card to access her bank account. Given the hardship created by the process of regaining her identity this was only minor consolation.

Prevent Identity Theft
For some tips on preventing identity theft refer to the following website: Federal Trade CommissionThe website offers practical ideas for protect yourself from the situation faced by my attorney friend. Here is a related article dealing with identity theft.

What Is Credit Card Fraud
Identity theft and credit card fraud seem to go hand in hand these days. It is often easier for a thief to obtain personal information and use it to apply for credit cards than to steal cash or checks out of a persons wallet or purse. More lucrative too. Here is a brief explanation of credit card fraud:
1) when someone fraudulently obtains, takes, signs, uses, sells, buys, or forges someone else's credit card information;
2) when someone uses a credit card with the knowledge that it is revoked or expired or that the account lacks enough money to pay for the items charged. This type of fraud is committed by the person who actually owns the card; or
3) when someone sells goods or services to someone else with knowledge that the credit card being used was illegally obtained or is being used without authorization.

My friend was certainly a victim of credit card fraud. But she would be the first to tell you that reversing some credit card charges was only a minor inconvenience compared to the process of having to restore her identity.

Bankruptcy Does Not Discharge Student Loans

I met a guy in law school who had an interesting approach to reducing his student loan debt. He told me during our second semester at Florida State that he had already borrowed some $70,000 in student aid and intended to borrow an additional $120,000 by the time he graduated. He drove a brand new Mercedes, lived in the most expensive apartment complex and had already paid for an expensive off campus summer semester program at Oxford which he planned to attend. All of this was funded with student loans.

I contrast his law school lifestyle with mine. My wife and I lived in a shoebox with our three year old son. I ran an early morning paper route to make ends meet and watched our son at night when she went to work as a nurse. I drove a beat up 10 year old Ford Ranger I bought for $1,500. The truck was in such bad shape and so rusted out that the front left brake caliper punched through the rotor one morning while on my paper route causing the wheel to lock up and the truck to come to a screeching halt. Thank goodness I was the only person on the road at the time. But I digress.

It took one semester for my friend to realize that he was not going to finish in the top 30% of our class and that he may be looking at a starting pay of $30,000 when he graduated. He didn't seem concerned. I asked him how he was going to handle all of the student loan debt he was racking up while in law school. He told me he wasn't. His plan was that once he graduated from law school his first stop would be to the U.S. Bankruptcy Court in Tallahassee to file for bankruptcy and start over with a clean slate. It sounded like a pretty solid, well thought out plan; at least until our second year of law school when we enrolled in Bankruptcy 101.

Bankruptcy Does Not Discharge Most Student Loans
I learned a number of interesting things during my second year of law school, not the least of which is that bankruptcy does not discharge student loans unless certain very limited factors are present (none of which applied in my friend's case). As you can imagine this came as quite the surprise to both of us. Since then I have learned that there are other debts (known as "priority debts") that bankruptcy does not discharge. Among these debts are child support, recent federal, state and local taxes, DUI related debts, government imposed fines, and debts not listed on the original bankruptcy notice.

Factors For Granting Discharge of Student Loan Debt
If you are wondering what factors can lead to the discharge of a student loan debt in bankruptcy for hardship it is important to note that the Bankruptcy Code does not specifically define such requirements. One absolute discharge is death and you don't even need bankruptcy for that. I often tell my wife that among other things she can be thankful for when I die is that we will no longer have to pay on my student loan debt. The earlier the better, right.

If death is not the discharge you are looking for, most courts will apply a three-part test to determine eligibility for hardship discharge:
1) Income -- if the debtor is forced to pay off the student loan, the debtor will not be able to maintain a minimum standard of living for himself or herself and his or her dependents;

2) Duration -- the financial circumstances that satisfy the income test in (1) will continue for a significant portion of the repayment period; and

3) Good Faith -- the debtor must have made a good-faith effort to repay the loan prior to the bankruptcy.

As for my friend, he is now buried under a mountain of student loan debt. If you ask him, though, he will tell you it was worth every penny. My advice: Don't ask him.

DUI: Take The Fifth If You've Consumed A Fifth

When I was in high school we used to have seminars where police officers would visit the school to discuss underage drinking and related issues. During one such seminar, a student asked an officer whether it would be better for her when pulled over for DUI to tell the officer she had been drinking or lie to the officer. She wanted to know whether the officer would be more lenient on her for being truthful. The officer responded by telling everyone in the seminar that telling the truth to an officer was always the best thing to do.

What the officer did not tell the girl is there is actually a third option: Not To Say Anything At All. This right is based on the Fifth Amendment to the United States Constitution which grants all U.S. citizens freedom against self incriminating. A modification of an old saying might go like this: "It is better to keep your mouth shut and appear to be intoxicated than to open your mouth and remove all doubt." Of course, if you have truly not been drinking, say so.

The Fifth Amendment and Miranda
In a 1966 court case styled Miranda v. Arizona, the U.S. Supreme held that a person in police custody must be informed of the Fifth Amendment right not to make self incriminating statements before the person can be questioned by the police. This means if you are in police custody the police officer must inform you that:

1) You have the right to remain silent;
2) Anything you say can and will be used against you in a court of law;
3) You have the right to an attorney; and
4) If you cannot afford an attorney, one will be appointed for you.

If a police officer fails to give you a Miranda warning prior to questioning you for DUI any statement you make cannot be used against you in a criminal case. Further, if the police discover evidence against you (open containers, etc.) as a result of the statement the evidence will likely not be allowed against you in a criminal case. This applies not only in DUI cases, but in any case in which you may be in police custody.

My Caveat
Before I receive criticism for offering advice to assist those who drink and drive, let me state here that I do not drink and strongly discourage drinking altogether. That being said, I have seen honest individuals who have admitted to a police officer that they were DUI and received harsher penalties as a result of admitting their guilt to the officer. In admitting their guilt to an officer the lost negotiating leverage they could have held onto for when it came time to negotiate a plea agreement. At the same time, I have seen dishonest individuals lie to a police officer and retain their leverage (i.e. they can then bargain with the prosecuting attorney for a lighter sentence if they are willing to then admit guilt). I am only advocating that one exercise the Fifth Amendment privilege thereby retaining leverage while not lying to a police officer.

Penalties For DUI
The first thing you should say to a police officer who has stopped you for DUI is that you would like to consult a lawyer. Penalties for DUI vary widely from state to state. If you are a repeat offender penalties will most likely be more harsh than if you are a first time offender. Depending on the state, habitual drunk drivers may have their vehicle impounded, license revoked and much worse.

Many states have instituted minimum penalties for first time offenders including enrollment in an alcohol treatment program and license suspension. States are cracking down more harshly on first time offenders than in previous decades. First time offenders are more likely to receive a jail sentence, mandatory alcohol programs and community service well as steeper fines.

Check out this DUI blog for more information on first offenders in each of the fifty states. The blog outlines penalties for California DUI, Arizona DUI and DUI penalties in other states.

Miranda Does Not Apply to Sobriety Test
Courts have held that Miranda does not apply to chemical sobriety tests. For a discussion on chemical sobriety tests see the post titled DUI: Things You Need To Know. That being said, should you be asked any question during a sobriety test your best response might be "I choose to exercise my Fifth Amendment Rights."

Online Auction Fraud

By now everyone is familiar with the saying "if it sounds too good to be true, it probably is." But even the most careful of persons can end up the victim of fraud. One of my client's recently brought in a case related to an ebay auction he had bid on. The auction was for the purchase of an early 1970's model Camaro. Once the auction ended my client received an e-mail notifying him that he was the successful bidder at a price considerably lower than fair market value. The e-mail had ebay's logo on it and by all accounts appeared to have been sent from ebay. Excited about the purchase, my client quickly complied with the instructions in the e-mail and wired the money to a bank account in London, England. That was the last he saw of his money and the Camaro. He had been the victim of an e-mail scam that took advantage of ebay's auction practices. Despite our best efforts, ebay would not reimburse him for the money he had lost. The scammer disappeared and no legal recourse could be taken against ebay since they had not sent the e-mail.

Tips to Consider Before You Purchase From An Online Auction

The following recommendations have been made by the National Consumer League to protect consumers from online fraud:

1) Check the seller’s feedback rating if that information is available on the auction site. While a positive rating is no guarantee that you won’t have a problem, a negative rating is a danger sign;

2) Look for information about insurance and understand the terms. Some auction sites offer insurance protection, but coverage is limited to set amounts, there is usually a deductible, and there may be exclusions; for example, you may not be able to make a claim if you purchased something from a seller whose feedback rating was negative at the time of sale;

3) Pay the safest way. If you pay the seller directly with a credit card, you can dispute the charges if the item never arrives or was misrepresented. You don’t have that right if you use a third-party online payment service, even if you use your credit card to put the money into your account with the service. However, your credit card issuer may still be willing to help you;

4) Use an escrow service for purchases that aren’t covered by insurance or your credit card dispute rights. The difference between an escrow service and other online payment services is that the escrow service doesn’t pay the seller until you confirm that you got what you were promised.

The tips should prove useful to avoid being a victim of online auction fraud. A word of caution regarding online escrow services. A number of fraudulent escrow services have popped up recently. Before you open an account with an online escrow service look at the California Department of Corporations website. The website provides valuable information no matter what state you live in.

DUI: Things You Need To Know

A friend of mine is a police officer who used to work the night shift. He once told me he had arrested an old high school acquaintance of ours for DUI. The facts of the incident were interesting. My officer friend had come upon a car parked on the side of the road about 10 feet from a driveway. The car was turned off and our high school acquaintance was inside the car asleep. The smell of alcohol emanated from the car. My friend woke up our acquaintance and had him step out of the car to take a blood alcohol test. Our acquaintance refused, insisting that he was not driving the car and that the car was parked in his girlfriend's driveway. The acquaintance was arrested on charges of DUI, taken to jail and lost his license for failing to take a blood alcohol test.

What makes the account interesting is that the State Attorney eventually dropped the charges against the acquaintance on the grounds (I believe) that there was not enough evidence to prove the acquaintance had driven the car. Interesting reasoning given the car was not actually parked in the driveway. The acquaintance also had his license reinstated even though there was no dispute that he had refused a blood alcohol test. I am certain these results were achieved for our acquaintance because he hired a DUI attorney to represent him. Even though our acquaintance was able to work out a deal, he had to spend months without a license. The following are some of the things our acquaintance should have known before he was faced with the circumstances that led to his arrest:

"Per Se" Blood Alcohol Concentration (BAC) Level
All states have DUI laws that deem any driver with a blood alcohol concentration (BAC) at or above .08 percent as "per se intoxicated." This means that drivers with a BAC at or above .08 are legally intoxicated, and no additional proof of driving impairment is necessary.

Enhanced Penalty Standards
Most states impose harsher penalties on DUI offenders with a particularly high BAC at the time of the offense. The penalties usually begin when the BAC is around .15. Penalties for DUI offenders with a BAC at or above their state's enhanced penalty standards range from harsher fines and driver's license restrictions to increased jail time

Implied Consent
Most states require drivers to submit to a breath, blood, or urine test if suspected of DUI. Failure to submit to such test can result in mandatory suspension of a driver's license, usually for six months to a year. This is called the "Implied Consent Law" because when you obtain your driver's license you implied consent to being tested.

Many states also have "Zero Tolerance" for underage drinking and driving.

Watch Out For Some Credit Repair Companies

At least once a day I hear or read a television, radio, newspaper or internet ad claiming “Credit problems? No problem!” or “Let us erase your bad credit — 100% guaranteed.” The ads promise to help consumers with poor credit histories clean up their credit reports so the consumer can get loans, mortgages, insurance, etc. Never mentioned in the ads are the thousands of dollars often charged for such services. While many of the credit repair companies can in fact lower your monthly payments and negotiate down a debt, avoid the following at all costs:

CREDIT REPAIR COMPANIES TO AVOID
1) companies that want you to pay for credit repair services before they provide any services. The Federal Credit Repair Organizations Act prohibits credit repair companies from requiring you to pay until they have completed the services they have promised;
2) companies that do not tell you your legal rights and what you can do for yourself for free;
3) companies that recommend that you not contact a credit reporting company directly;
4) companies that suggest that you try to invent a “new” credit identity — and then, a new credit report — by applying for an Employer Identification Number to use instead of your Social Security number.
5) companies that advise you to dispute all information in your credit report or take any action that seems illegal. If you follow illegal advice and commit fraud, you may be subject to prosecution.

DISPUTING A DEBT
The law allows you to dispute an inaccurate credit report free of charge. The "big three" nationwide credit reporting services are "Equifax," "TransUnion," and "Experian." Once any of these agencies receive a consumer dispute they are required to take the disputed debt off of the report until an investigation is conducted. A common tactic used by illegitimate credit repair companies is to dispute every negative mark on a credit report, show the consumer a clean credit report (clean because the reporting agency is conducting an investigation), collect the fee from the consumer for the temporarily "cleaned up" report and disappear once the fee is collected.

On the other hand, credit repair companies can be helpful in negotiating lower monthly payments and lump sum settlement agreements with creditors. Many companies have long established relationships with creditors and payment reduction agreements creditors are comfortable with signing.

One last thing, you can order a free annual credit report at annualcreditreport.com, or call 1-877-322-8228.

Child Support: He's Hiding Assets

Two weeks ago one of my clients came in with a child support problem. She and her ex-husband divorced four years ago and had two minor children (10 and 12 years old). My client was awarded custody of the children and her ex-husband was ordered to pay child support. The family had substantial assets and my client felt at the time that the child support ordered by the court would be enough to cover the children's needs in the future.

During the past four years my client's ex-husband has been very successful. Prior to the divorce he had made a number of real estate purchases which skyrocketed in value over the past four years. He continues to hold onto the real estate. During that same period of time my client has discovered that raising teenagers is much more expensive than raising young children. She has appealed to her ex-husband to voluntarily increase the child support without having to go back to court. He has refused.

Most states have statutes which set uniform guidelines for awarding child support and allow the court to periodically increase or decrease a child support award when the finances of the paying parent change. We petitioned the court to reassess her ex-husband's finances. The problem we ran into is that the statute setting the uniform guidelines primarily bases an award of child support on the parent's monthly income. In this case, her ex-husband's records showed that his net taxable income per month had not changed. This is so because he had not sold any of the now extremely valuable property. The statute also prohibits placing any type of lien on the property should he sell the property in the future. This will allow him to wait until the children are over the age of 18 before selling the property. If he does this, the children will not be entitled to any portion of the sales proceeds.

A Plea for Equity
My client is now forced to apply to the court for an equitable adjustment to the child support based on the increased value of her ex-husband's assets. It is not likely that the petition will be granted. This could have been avoided had the original divorce decree provided for an increase of the child support based on a net increase in her ex-husband's assets. Remember, although state statutes provide a set of guidelines for establishing child support you are not limited by the guidelines. In most cases, a divorce attorney will anticipate the future needs of the children and the potential for the paying spouse to "hide" income.

Get Your GSA Schedule

One of my retail clients contacted me several years ago about setting them up with a GSA Schedule.  A GSA Schedule is what the Federal Government calls it when your business is added to its approved list of private contractors entitled to sell goods and services to the Federal Government. The list basically filters the massive numbers of non-GSA businesses from the relatively small list of GSA businesses and gives preference to the GSA businesses. GSA businesses are added to a searchable Google-like database where Federal Procurement Officers (like the Armed Services and different Departments) can search for GSA approved businesses and products. A GSA schedule makes it easier for a business to contact government purchasers and market their products to the Federal government.

My client wanted to sell winter clothing to the Federal Government and felt that being added to the GSA Schedule list would give them a better chance at doing so.  We filled out the paperwork and after several months of back and forth with our contract officer and an on-site inspection my client was awarded a GSA Contract.  Now that my client has been added to the GSA list they are selling tens of thousands of dollars worth of clothing to the Federal Government each year. In case you are wondering who my client is their GSA Contract number is GS07F9374S.

In addition to the standard GSA Contract Schedule, it is also possible to have your business listed as an "8a Contractor" or "8a Business" which increases your opportunities to sell to the Federal Government even more.  In brief, an 8a contractor is a minority owned business or woman owned business that has been socially or economically disadvantaged.