Archive for the 'Family Law' Category

Equal Parenting Time: Beneficial or Harmful?

There are times when children have to endure divorce and separation proceedings. The real battle though is about child custody and who should have parental control. Divorce rates have nearly tripled in the last decade or so and child custody is something that courts have to deal with all the time. One of the ongoing issues with child custody is which parent should be the rightful guardian and caregiver of the child.

There are various factors that the court looks at in making this decision. Such factors include: whether a parent has a history of violence and abuse, financial status of the parent, and intimacy of parent with child. In some instances, the court will allow for joint custody where each parent will be given a chance to be with the child under certain scheduled times. These are usually not on a 50/50 basis, but rather on a scheduled basis or percentage that works best for the child. For this kind of equal child custody, there are legal and social ramifications that need to be addressed.

Equal Child Custody and Arising Problems

Equal child custody, the idea that both parents will be given an allotted amount of time to spend with the child, can be both beneficial and harmful. On the one hand, a child might have attachments to both parents and as a result might want to maintain a relationship with both. However, if one parent is abusive or excessively controlling, then this can be harmful for the child. Family Lawyer

Each state has different laws when it comes to child custody. For example, in Arizona, regardless of the parent’s character or temperament, the parent will be able to maintain contact with the child. In other states, equal custody does not mean 50/50. Instead,  both parents will maintain contact, but not necessarily an equal amount of time with the child.

In California, it is broken up into two categories. There is 1) legal custody and 2) physical custody. Legal custody is the right to make decisions on behalf of the child. Physical custody, as it sounds, is maintaining physical contact with the child. Both of this can be arranged for if the parent qualifies. However, as mentioned, equal child custody under either legal or physical grounds can be detrimental to the child.

There are studies that indicate that a child who is equally exposed to two parents with very different lifestyles and philosophies on life could produce confusion in the child and possibly emotional trauma. Socially, the child might not be able to interact with others of his age. This back-and-forth between parents could lead to long lasting psychological harm to the child. Aside from these psychological and social consequences, there are legal ones as well.

Constitutional Violation?

Child custody has always been at discussion for the courts because at its foundation, there is a constitutional issue. Giving one parent more rights than the other could be viewed as a potential equal protection violation under the Fourteenth Amendment of the U.S. Constitution. Under the Fourteenth Amendment, if one classification of people are treated differently than others, then this could be potential grounds for discrimination and hence a constitutional violation.

However, case law has already addressed this. Through case law and statutory authority, it has been established that this kind of unequal treatment is not discriminatory as it is for a legitimate government purpose: the protection of the child. There is an exception to this of course. If the distinction is on the basis of race, gender, or religion, then equal protection rights in accordance with the U.S. Constitution and enforced by the American Civil Liberties Union will be invoked.

Child custody is a concept that can leave a lasting impact on the child in both his mental and emotional growth. Legally, it is a state-by-state issue. Every case will be different but at the heart of it, the parent’s background and history will determine if they will have visitation rights or custody rights to the child. The distinction made between the parents is not a constitutional violation. Circumstantial factors will be looked at to see what is in the child’s best interest as well as for the parents.

California Court Rejects Challenge to End of Life Option Act

For some, it seems like an unthinkable and barbaric concept, but for others, it comes as a relief. Regardless of your own personal beliefs, physician-assisted suicide or death with dignity laws are never fun topics to discuss.  Nonetheless there’s been a recent movement, albeit slow, towards passing laws that aid terminally ill patients in dying.

California recently became the 5th state to enact an aid-in-dying law.  The End of Life Option Act was signed into law by Governor Brown in October of 2015, and was to officially go into effect on June 9, 2016.  However, a group of physicians, the American Academy of Medical Ethics, and the Life Legal Defense Foundation filed suit requesting the law be immediately suspended.

A California Court rejected the temporary restraining order that was filed, but will allow the plaintiffs to proceed  with their lawsuit regarding the concerns of the lack of safeguards against abuse of the law, so this won’t be the last time we’re hearing about this issue.

Terminally Ill Patients Can Voluntarily Request an Aid-in-Dying Drug

The Act permits terminally ill adult patients with the mental capacity to make medical decisions to be prescribed an aid-in-dying medication. Certain conditions, however, must be met before the drug will be prescribed.  End of Life

In order to be eligible to even request a prescription, an individual must meet the following criteria:

  • Be an adult of at least 18 years old or older,
  • Be a California resident,
  • Have a diagnosis from a primary physician stating the patient has an incurable and irreversible disease,
  • Diagnosis must also, within reasonable medical judgment, state the patient’s disease will result in death within 6 months,
  • Be able to make medical decisions for themselves as determined by health professionals,
  • Voluntarily request a prescription for an aid-in-dying drug without influence from others, and
  • Be able to self-administer the aid-in-dying drug (must be eaten, drank, or swallowed and cannot be administered via IV from a physician).

The law states the request must be made by the patient and the patient alone. A power of attorney, advance health care directive, conservator, health care agent, surrogate, or any other legally recognized health care provider will not suffice.  A request must be solely and directly made by the patient to his/her attending physician.  This should provide some sort of solace to those against these types of aid-in-dying laws, as this provision only helps ensure the decision is actually coming from a patient.  Even so, this isn’t enough for some.

Despite Strict Guidelines, Doctors Are Concerned Law is Too Vague

The group that brought the restraining order to suspend the law argued the definition of “terminally ill” within the Act was too vague and risks abuse of the law. Their primary argument rests on concern that the law allows coercion of terminally ill patients, but their suit alleges a whole slew of other ethical and procedural issues.

Patients that are given a 6-month prognosis sometimes make it way beyond that time frame and plaintiffs argue prognosticating a patient’s future is flawed, which suggests they believe this is a standard that shouldn’t be used when prescribing an aid-in-dying drug. Further, the plaintiffs argue, the drugs are unreliable and often can cause inhumane complications that can sometimes force physicians to administer a lethal injection and become a case of euthanasia.

On top of those arguments, the Act doesn’t require patients to administer the drug in the presence of a physician and it provides both civil and criminal immunity without requiring so little as a good faith standard that must be upheld on behalf of physicians. Nor does the Act require seeking consultation with a mental-health specialist unless the physician believes there’s a pre-existing mental disorder, all of which seem to be troublesome concerns.

While it’s certainly an extremely personal decision, the plaintiffs do have some good arguments. Protective measures, like requiring a consultation with a mental health professional, would only further ensure the law isn’t being abused.

How Do We Balance the Two Needs?

In recent years, the issue of death with dignity laws broke headline after headline when a young 29-year-old woman, Brittany Maynard, was diagnosed with a brain tumor.  Maynard was a California resident where, at the time, any type of death with dignity was not an option.  Her family made the decision to uproot their life to Oregon, where death with dignity is authorized.  Despite her illness, Maynard became the face of advocacy pushing for legislative change.  Maynard has since passed away, but her message remains.

Oregon, Vermont, Washington and Montana are among the 5 states that allow physician-assisted suicide, while at least 20 other states are considering some form of death with dignity legislative change. It’s a touchy subject and probably one both sides will never see eye-to-eye on.

Lyft’s Lawsuit: Settling Ride-Share App Employment Status

The ride-share company Lyft has settled a lawsuit which sought to determine whether its drivers were employees or independent contractors to the tune of $27M.  This is double the amount Lyft had initially agreed to after the judge in charge of the case called the initial settlement offer far short of fair compensation. It’s not surprising that Lyft would want to nip this one in the bud as a ruling calling their drivers employees could put them out of business.

Ride-share companies, and on-demand services in general, have taken the world by storm. Companies like Lyft and Uber, while relatively new businesses, are already valued at tens of billions of dollars.  Their success hinges in great part on their business model—a business model that only works if their drivers are independent contractors. The settlement has three important effects for Lyft.

First, they obviously have to pay out a lump sum to the drivers who sued them. Second, the drivers who use the Lyft mobile app agree, under the settlement agreement, to continue to act as independent contractors.  Finally, and possibly most importantly for Lyft, a court will not make a final ruling on the issue of Lyft driver employment status.  To understand why, it’s important to explain both the difference between independent contractors and employees and how it impacts the business model of on-demand apps like Lyft.

Independent Contractors vs. Employees

Independent contractors make contracts with a business to perform a specific type of work, usually for a limited period of time. Employees work under the direct control of an employer, with the employer controlling the terms, conditions, and tasks of the employee.  Independent contractors are not protected by most employment laws—including minimum wage, workers’ compensation, collective bargaining (read unionization) requirements and overtime laws. Employers are also not required to give independent contractors meal breaks, rest periods, or reimbursement for necessary business expenses. Lyft

The tests to determine whether somebody is an employee or independent contractor vary substantially throughout the country and sometimes have as many as 21 different factors to consider. However, the tests all boil down to the same thing—the level of control the potential employer has over the would-be worker.  The tests look to who decides how, when and where a person does their work.

In California, establishing employee status is a two-part process. First, the plaintiff employees must show they provide services for the benefit of their alleged employer.  Once this is shown, they are presumptively employees and the would-be employer must refute their claim by showing, through a 12 factor balancing test, that the person suing is properly treated as an independent contractor.

In support of their being employees, Lyft drivers point to the fact that Lyft can terminate their ability to act as a driver at any time without notice, dictates their pay, driving routes, and even how they behave with the people they pick up. Lyft counters that the employees provide their own cars and materials, make their own hours, and choose which rides to accept (although they are required to accept a certain portion of rides).

The evidence could be considered to lean either way, although Lyft does seem to control a great deal of how their drivers work—if not where or when. However, ambiguity in the facts puts the case in a jury’s hands, as facts need to be clear cut to have a case decided by a judge. This is a terrifying prospect for companies like Lyft, so terrifying that it almost forced a settlement.

The Lyft Settlement

Lyft’s settlement only applies to drivers within California and doesn’t close the door on future lawsuits with a final ruling. California doesn’t even apply the strictest test in the nation in determining independent contractor status, so Lyft may have even more trying litigation in its future.  However, paying out this enormous sum has probably saved Lyft’s business.  It has given them the opportunity to update their employment policies to make their drivers look more like independent contractors—an opportunity that their attorneys have publicly said that Lyft fully intends to take advantage of.

The settlement requires Lyft to remove their ability to deactivate a drivers’ account “for any reason.” Instead, they must have reasons and give notice before deactivating an account. However, this change is just the tip of the iceberg.  Lyft will almost certainly make much more drastic changes to avoid lawsuits like this in the future.  These policies will likely roll out nationwide soon.  What’s more, the policy changes agreed to as part of the settlement are nationwide changes despite the case being restricted to California.

How bad could a ruling that Lyft drivers are employees really be, you ask? Surely not worth $27 million. The answer is in how Lyft’s business model works.  The current ride-share business model that apps like Uber and Lyft use is pretty sweet deal for the companies.  They are responsible for none of the expenses of the drivers and simply need to pay to maintain the employees at their San Francisco headquarters while taking a 20-30% cut of every ride.  Their business isn’t the rides themselves but making the connection between driver and rider.  This is an incredibly innovative business model, but also the most successful example of a business shifting costs to its employees in decades.  Were ride-share businesses to have to start treating their drivers like employees, economists believe that their costs would increase by nearly a third.

What’s more, as independent contractors, most of the potential liability for anything that might go wrong rests on the drivers. If the drivers are employees, Lyft or Uber take on that liability, forcing them to be prepared to deal with many more lawsuits and purchase expensive insurance.  They’d essentially lose much of the advantage they have over conventional taxi services.

Ride-Share Lawsuits Going Forward

Lyft is not alone in its struggles. Less than a month ago, the judge in charge of a nearly identical case against Uber rejected a whopping $100 million settlement agreement as unfairly low—arguing that it was less than 10% of what the plaintiff asked for. The settlement included similar changes to policy that the Lyft settlement agreed to enact.  Then, about a week ago, that same judge sent the parties to arbitration to figure out a more equitable settlement.

Uber has previously seen a lawsuit in California which ruled that one specific driver was an employee and not an independent contractor. Uber has appealed the decision. The appeal has yet to be determined, but could lead to actual binding precedent one way or another—either affirming or destroying the rideshare business model.  Florida has similarly ruled a single ex-Uber driver to be an employee.  Five states have concluded that ride-share drivers are independent contractors.  Federal lawsuits are ongoing as to the employment status of ride-share.

On-demand businesses are becoming more common, providing everything from delivering groceries and food to butlers and maids. All of these companies could be in hot water once a final case ruling comes out on the issue of on-demand employee status.  It’s unlikely these companies will be able to settle away a decision on employee status forever.  Eventually, and probably soon, on-demand apps will either be in the clear or scrambling to find a new business model.

Husband Asks Kentucky Supreme Court to Let Him Divorce Despite His Mental Incapacity

Should you be allowed to end a marriage if you’re found mentally incapacitated? “Until death do us part,” takes on a different meaning for Elmer Riehle, a Kentucky resident who was denied, twice, the ability to divorce his wife. Asking the Court to overturn a 1943 decision finding that state law did not authorize a mentally incompetent person to divorce, Riehle brought his case all the way to the Kentucky Supreme Court. There, Riehle argued that even a disabled person can show their true feelings and intentions.

Riehle’s wife sought help from a lower Kentucky court to declare her husband mentally incompetent because he had been sending thousands of dollars oversees to someone he believed to be a “Nigerian royal prince.” Riehle was convinced he was going to get back $23 million out of the deal.

Although Riehle seemed to be functioning well in other aspects of his life, the court eventually granted the wife’s request and appointed her guardian of Riehle’s estate, at which point she restricted his income to $200 per month. In return, he filed for divorce. Now, his wife claims Riehle isn’t aware of what he’s doing or the fact that he’s requesting a divorce. Since Kentucky precedent says a mentally incompetent person cannot divorce, Riehle appealed the case all the way to the state Supreme Court.

The Law Presumes Capacity

If a court can determine a spouse at least has the capability of making a reasoned decision to end a marriage, they’ll typically allow a divorce proceeding to move forward.

Currently, only ten states bar those deemed mentally incompetent from divorcing. In most states, the bar isn’t very high to be judged mentally competent to enter into or end a marriage. However, this also doesn’t mean there aren’t any rules. New York Gay Divorce

The requirements of marriage are fairly straightforward—consent, age, and mental capacity are required. The first two are givens, but what counts as mental capacity? The law presumes parties have the mental capacity to make the decision to get married. Each party to a marriage needs to be of “sound” mind and capable of agreeing to the marriage. Seems simple, right? Well, what about for a divorce? Do the same rules apply?

Generally, yes. The law still presumes parties have the mental capacity to make a decision regarding divorce and any diagnosis of a mental disorder isn’t enough, alone, to render a person legally incapacitated. The parameters for determining whether or not a person is legally incapacitated is typically decided in probate court and it’s going to be determined on a case-by-case basis rather than a straight-line rule.

Take California probate courts, for example. Courts in California have held numerous times that when it comes to executing a will, “old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognized old friends or relatives, physical disability, absent-mindedness, and mental confusion” are not enough alone to determine testamentary incapacity. Similarly, it’s going to take much more to determine mental inability to divorce.

Mental Capacity Is Important, But It’s Not an End All Be All

Roughly half of all marriages in the United States end in divorce. Although those numbers appear to be decreasing, mental disorders are being diagnosed more frequently which means the issues surrounding the capacity to divorce only increase. With marriage being a fairly easily attainable feat, shouldn’t divorce be just as simple?

As mentioned, the standard is low and this generally means a mentally incapacitated person only needs to be able to exercise their own judgement (not necessarily in all matters) and express an intention to end a marriage. It’s not enough alone to express it at the onset of divorce—all parties must be able to maintain that same capabilities throughout the remainder of the divorce proceeding.

This can be done alone, through a conservatorship or through representation by and through a court-appointed guardian, if state law allows. This is what most states will do in order to proceed forward with a divorce where one party is found mentally incompetent, especially if they’re not the party initiating the divorce.

Normally a spouse would be the best person to be appointed a guardian, but in the case of divorce, there’s obviously a conflict of interest, as in Riehle’s case. So, the next best person is most likely going to be a court-appointed attorney. Anyone appointed is going to have a fiduciary duty to act in the best interest of the party they’re representing. It’s a fair compromise for those couples wanting a divorce when one party may be mentally incapacitated and certainly a step Kentucky should consider allowing.

You’re Getting Married: Can Your Spouse Sign Away Student Loan Debt Responsibility in a Nuptial Agreement?

The short answer, yes—you can. Many first-timers don’t even consider nuptial agreements because they don’t have many assets to bring into the equation but, with the rising rate of student loan debt, couples should definitely think about marriage and student loans.

The average student loan debt reaches close to $30,000 and that only includes debt obtained for a bachelor degree.Students obtaining even higher education reach far greater amounts of debt.  Regardless of whether you stay together or end up in a divorce, limiting liability for another spouse’s student loan debt can be a smart financial decision.

Just as the names suggest, pre-nuptial agreements are made prior to the marriage and post-nuptial agreements are made after the wedding.  Almost all 50 states recognize and allow either form.  Both are considered private contracts and, thus, contract law will control rather than divorce law.  That being said, can student loans be included within an agreement?

With a few exceptions, you can include pretty much anything within a pre or post-nuptial agreement. You can never have provisions including anything illegal, you can’t make decisions regarding child support or child custody, you can’t waive alimony rights, and you can’t include personal rules that must be done within a marriage.  Everything else is fair game, which means provisions regarding student loan debt are a green light.

Are There Benefits to Signing a Pre- or Post-Nuptial Agreement?

Of course. State laws vary on how they handle debts when parties get divorced. Debt borrowed during the course of the marriage is easily identifiable as marital debt, but generally all states will treat pre-marital debt as debt of the original owner and not the spouse.  Even so, it can get blurry through the course of a marriage when refinancing happens, debt consolidation happens, or joint funds are used to pay off the debt. Image:

Whether or not a nuptial agreement is for you will depend entirely on the state you’re in, but probably the biggest benefit to signing an agreement in terms of student loan debt is to limit property creditors can get their hands on.  Creditors can often go after marital property even if only one spouse is the debtor.

For example, in a community property state, any debt acquired before the marriage remains the debt of the borrower, but any debt acquired during the marriage remains marital debt, even if only borrowed by one spouse. Same rules apply for assets.  Just because the pre-marital debt remains the debt of the borrower doesn’t mean creditors can’t come after marital assets to collect on it.

Paying your student loans out of a joint bank account? Creditors can use this an implied acceptance of responsibility on behalf of the non-borrowing spouse for the debt.  Think of it this way—if you own property 50/50, a creditor doesn’t care that your spouse has an equal claim to the property—they only care that the original debtor owns the property and that they can legally get their money back.  A creditor won’t be able to touch marital property to collect on student loan debt if an agreement was signed limiting the other spouse’s responsibility for the debt.

Are They Enforceable?

A pre- or post-nuptial agreement will generally determine how student loan debt is going to be divided, if at all, and they’re typically enforceable if both parties are fully informed about the underlying facts of the agreement and what they mean.  But, what if the agreement is later contested?

For debt acquired during the marriage, courts can consider whether the student loan proceeds were used to benefit the marriage, i.e. paying rent, buying groceries, etc. If they were used for the benefit of the marriage, then both parties should be responsible.  For debt acquired prior to the marriage, joint funds could have been used to pay off those pre-marital debts.  How do you determine who exactly paid for what?  Should the non-borrowing spouse be reimbursed for those joint funds when a pre-nuptial agreement says the original borrower is solely responsible for their student loan debt?  That can be a contentious point of argument for many couples facing a divorce.

Validity of post-nuptial agreements can sometimes come into question because, depending on when they were entered and when the separation happened, creditors can make an argument that there was a fraudulent transfer that kept them from collecting.

Disparity of income can also play a major factor when creating an agreement and, sometimes, can even play a role years after-the-fact. Maybe you signed an agreement that all student loan debt will be the responsibility of the borrowing spouse expecting to be a high-income earner, but what if circumstances change? Although agreements are generally enforceable, there’s an argument that can be made if one spouse foregoes their career to stay home with the kids they should be compensated via alimony or spousal support to offset this.

While none of the arguments are iron clad reasons that will invalidate the terms of a nuptial agreement, just as with any other contract, sometimes circumstances not originally considered within the contract will arise and leave room for exceptions.



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