Archive for the 'Lawyers' Category

Removing Permanent Alimony for Divorcing Floridians a No Go

A previous blog discussed Florida’s child custody bill that would have started divorcing parents on equal ground in a custody battle with a presumption of 50/50 custody. Governor Rick Scott, who expressed creating a promise of equal custody would put the needs of the parents before the child, vetoed the bill.  The equal custody provision of the bill got more media attention. However, an even bigger portion of the bill was aimed at removing Florida’s current law regarding alimony.

Currently, Florida allows permanent lifetime alimony. Supporters of the alimony reform want to replace permanent alimony with formulas to calculate an award that would result in a fixed end date based off the length of the marriage and the spouses’ respective incomes.

Florida Judges Have Broad Discretion to Determine Who is Entitled to Alimony, the Amount, and For How Long the Alimony Can Last.

When determining whether to award alimony, the court will consider:

  • the standard of living during the marriage,
  • the duration of the marriage,
  • the age and the physical and emotional state of each party,
  • the financial resources of each party, including the nonmarital and marital assets and liabilities distributed to each,
  • the earning capacities, educational levels, vocational skills, and employability of the parties,
  • the contribution of each party to the marriage, including services rendered in homemaking child care education and career building of the other party,
  • the responsibilities each party will have with regard to any minor children they have in common,
  • the tax treatment and consequences to both parties of any alimony award, and
  • all sources of income available to the party.

Sounds fair, right? Well, the presumption for long-term marriages, 17 years or more, is that any determined award of alimony is permanent. It’s a rebuttable presumption, so the court can disregard the presumption. Nonetheless, that’s not a burden the breadwinning spouse should have to endure. Alimony

Under the vetoed alimony reform, alimony would have had an end date, rather than an indefinite time frame. Although the current law already requires judges to take the above factors into consideration when considering an award of alimony, the reform would have taken away the discretional decision-making component and required the number to be calculated based off the formula, and thus, resulting with a fixed end date.

Current Law Allowing Lifetime Alimony Is Unfairly Applied

It’s geared at stay-at-home parents, usually the mother, who could not easily re-enter the workforce. Florida’s rationale behind alimony is that they, as a state, don’t want to support the impecunious spouse. Instead of forking up the money via welfare and food stamps, legislative intent is to look to the breadwinning spouse to provide for the non-breadwinning spouse.

Spouses are expected to maintain the same standard of living that was held during the marriage, but, in reality, that’s an insane standard. That assumes divorcing spouses will not remarry and will not inevitably have to support another spouse or 2 separate households. Had a stay-at-home spouse never gotten married and had kids, that spouse would have had to learn to support themselves. Marriage ending in divorce should not be an equivalent to a lifetime financial contract.

Additionally, many spouses are forced to work longer than they normally would have, not being able to retire, because they can’t afford to make alimony payments otherwise. How is that fair?  Current law allows spouses to ask for reductions in their alimony payment for retirement purposes, but it’s often overlooked.

Is There a Better System?

A parent that sacrifices their ability to have a career to stay at home and take care of their kids is great and, don’t get me wrong, should be given an award of alimony, but requiring an indefinite award seems excessive.

Using a formula to calculate an amount with a fixed end date seems like a more reasonable system than a permanent award, as it allows the spouse time to get back on their feet without forcing a breadwinning spouse to work beyond retirement age just to afford alimony payments. While I agree with the intent of the alimony reform bill, how the formula plays out in actual divorces may be a different story and I think there’s room for improvement.

Other than lengthy marriages that involve a stay-at-home spouse taking care of children, I don’t see a useful purpose for including length of marriage as a hard factor into the formula. While it should be considered, especially if the couple had only been married for a short amount of time, 17 years of marriage shouldn’t automatically equate to an alimony award—the length of the marriage shouldn’t be weighed as heavily in calculating a figure.

Need should be the #1 factor in the formula, as using a basic pre-determined formula may unfairly hurt the paying spouse. Earning potential, education, children, cohabitation or re-marriage, among other factors, should all definitely be considered. An exacting formula may not be the best answer and that’s why allowing judicial discretion is important, but there definitely needs to be some hardline rules or ways to incorporate formulas that won’t unfairly punish the paying spouse by requiring lifetime alimony.

Florida’s current guidelines aren’t bad; it’s more the execution of allowing lifetime alimony awards that’s hurting breadwinning spouses. With the veto of the bill, it’s unclear whether any kind of alimony reform will happen in the foreseeable future.

Utah Creates First Ever White Collar Criminal Registry

Utah has created the first ever registry for white-collar criminals. Similar to a sex-offender registry, the Utah White Collar Crime Offender Registry primarily targets any offender convicted of fraud. With a whopping $1 billion of fraud-victim loss in 2010, apparently the citizens of Utah are particularly more vulnerable to affinity fraud due to Utah’s high volume of religious and ethnic communities.

What’s affinity fraud, you ask? Perpetrators of affinity fraud pose as members of religious or ethnic communities, build a trusting relationship, and then exploit that relationship to essentially run a Ponzi scheme against the unsuspecting members.  Think Bernie Madoff.

Despite the fact that conviction records are public, the database, according to Utah Attorney General Sean Reyes, will provide consumer protection in a user-friendly fashion.

Sex Offender Registries Create Stigma

Sex-offender registries are modernized scarlet letters that put the same stigma on every registrant, regardless of what they did. It’s one of the biggest arguments against the use of sex-offender registries.  While some states have taken steps to remedy the problem by creating different levels of sex-offense White Collar Crimecrimes, it still produces a stigma on the offender—usually as a pedophile even if they’ve never touched a child.  Did you know in some states you can be forced to register as a sex offender for being caught peeing in public?  Or how about a teenager exposing himself in public as a prank?

Many even argue that sex-offender registries do little to actually deter sex crimes. Whether you agree with public shaming or not, it can prove difficult for registrants to find a place to live and find sustainable jobs, all the while isolating offenders from the rest of the world.

White-Collar Registries Are Not the Same

One of the biggest differences between the two is that sex-offenders are required to list their address while the white-collar offenders are not. This definitely helps protect the offenders from any harassment issues that sex-offenders sometimes face.

Additionally, Utah’s white-collar crime registry only requires registration for the following 2nd degree felony convictions:

  • Securities fraud,
  • Theft by deception,
  • Unlawful dealing of property by fiduciary,
  • Fraudulent insurance,
  • Mortgage fraud,
  • Communications fraud, and
  • Money laundering.

Offenders are required to maintain on the registry for a period of 10 years for their 1st offense and increases with each offense thereafter.  The catch here, different than a sex-offender registry, is that an offender is not required to register if they’ve complied with all court orders at the time of sentencing, paid all court-ordered restitution to victims in full, and have not been convicted of any other registerable offense.  That’s definitely a component sex-offender registrants don’t have.

Here’s the thing, though. An offender that gets convicted of defrauding his insurance company for dismantling his motorcycle, hiding the parts, and claiming they had been stolen in order to claim insurance money gets put on the registry just the same as an insurance agent who cheated 700 members of the Church of Jesus Christ of Latter-day Saints out of $72 million.  An offender with 1 victim gets the same treatment as an offender with 700.  Sounds like it’s creating the same problems, right?

Absent not having the registry all together, there doesn’t seem to be an alternative to get around negative impacts the registry may have. Creating different “levels” of offenses won’t really change the issue because, at the end of the day, it doesn’t really matter when it comes to crime involving the integrity of a person’s character.  Dishonesty is at the core of the crime of fraud—the stigma is already there and anyone on it would likely be scrutinized regardless of any class level.

Despite the Drawbacks, White-Collar Registries Can Be Beneficial

Arguably, sex-offender registries don’t do much for the public other than making them aware of the offender. Don’t get me wrong, knowing who is a sex offender is a good thing to know, but I don’t really see it preventing future sex crimes. On the other hand, white-collar crime registry could actually help prevent fraudulent behavior.

Both types of registries list what the offender was convicted of, but you will see a detailed, albeit brief, description of what the white-collar offender did that got them convicted. That could come in handy, especially for future employers looking to hire.

While a sex offender registry might state:

Lascivious acts with a minor.

The white-collar crime registry would state:

As part of job duties, prepared deposit slip for Brinks delivery on last day of work. Actual deposit on arrival at bank was short $43,900 in cash.

See the difference? It’s subtle, and arguable not significant, but what does the first one even mean?  How old was the offender compared to the victim at the time?  Was it an 18-year old boy with a 16-year old girlfriend or was the offender 30 and the victim 16?  Now, not all descriptions are so eluding, but, even so, the white-collar crime registry gives a bit insight into how the offender actually defrauded their victim. This allows an individual, or business, to make an informed decision about whether or not to do business with the offender.

Protecting Your Real Estate Sale From Eviction Lawsuits

A couple from Idaho is faced with the difficult task of evicting a squatter that rented their home from someone posing as the landlord.

Brian and Renae Prindle moved out of their Canyon County home at the end of 2015 in order to expedite its renovation and sale. Little did they know that a woman named Debbra Smith signed a lease and paid a man who had keys to their home. Smith pays $1,550 to rent the home, although it is unclear whether she is current on her rent. The Prindles contacted local authorities who consider the case a civil matter. They have now filed a civil lawsuit to evict her. The Prindles are concerned the eviction will derail their chances of selling their home.

Is the Tenant’s Lease Valid?

Smith claims she signed a valid lease with a man who claimed to be the landlord of the Prindles’ home. It’s unclear whether she can provide a copy of the lease. Regardless, whether she can prove she signed a lease with the fake landlord is immaterial. A residential lease is a legally binding contract between a landlord and a tenant which affords the tenant the right to exclusive use and enjoyment of the residential property in exchange for money paid to the landlord. If a lease is signed between a tenant and a man posing as a landlord that has no legal right to the property itself, he does not have the right to rent the residential property. In that regard, the lease between Smith and the purported landlord is completely invalid.

What If the Tenant Pays Rent?

If Smith pays rent to the Prindles directly, does that change the relationship between Smith and the Prindles? Prindle House

In most states, the answer is yes, but only if the Prindles accept payment. By accepting rent from a tenant, even one who is not in the lease, the transaction creates a landlord-tenant relationship. The tenant has the right to exclusive use and enjoyment of the residential property, and the landlord is entitled to monthly rent. The transaction creates a month-to-month lease. It also becomes more difficult to evict the tenant.

Does the Tenant Have a Legal Right to Remain in the House?

A bona fide purchaser, or BFP for short, is a legal term used primarily when referencing real and personal property. It refers to the innocent party who purchases property for fair value without notice of any other party’s claim to the property. Because the bona fide purchaser is innocent and had no notice of another party’s superior rights, he has the right to retain the property or enforce obligations against the person who may have superior rights.

For example, let’s say Derek steals your bike then sells it to Joe. You later find out Joe is in possession of your stolen bike. If Joe paid fair value for the bike and can demonstrate he thought Derek was the owner of the bike prior to purchase, Joe would be considered a bona fide purchaser and have the legal right to the bike. Your only legal recourse would be against Derek, but you would have no legal right to your bike.

In this case, the tenant could not claim she was a bona fide purchaser. The tenant did not purchase the home, only rented it. Even if she did buy the home for fair value, she still could not claim she was a bona fide purchaser because a title report would show that the true owners of the property were the Prindles. Therefore, she would be “on notice” that someone else was the legal owner of the property.

While Smith continues to reside in the home, she’s considered a squatter. A squatter is a term for a person who occupies a place that legally belongs to someone else when the owner hasn’t given permission for the occupation.

Will A Sales Contract Prevail?

Various disclosures are required in any home purchase contract. Most states require sellers to disclose whether any pending litigation exists on the property.

While the sellers understandably wouldn’t have known of the squatter until visiting the house, they would have to disclose to any potential buyer that there is litigation pending which could stall any potential sales contract. A savvy buyer’s agent would put a clause in a sales contract which states that the home purchase contract is subject to a successful eviction of the squatter, and would also include a definitive timeline.

New Laws make it Difficult for Cities to Use Traffic Cameras

Many states have laws on the books that make it difficult to legally use traffic cameras against unsuspecting drivers. Ohio’s recently gained media attention when lawmakers, in an effort to stop the essential “cash cow” that comes from traffic cameras, passed Senate Bill 342 with the intention of eliminating the use of traffic cameras around the state by requiring full-time police officer presence alongside traffic cameras.

Prior to the passage of the bill, Cleveland collected roughly $5.8 million from traffic camera violations. Violators of SB 342 lose local government funding equal to the amount of fines they’ve collected. Traffic Camera

The new law came after the Ohio Supreme Court ruled the state couldn’t directly ban cities from using cameras based on the constitutional “home rule” and, for some municipalities, it’s definitely working as a deterrent. It’s expensive to have police officers man the traffic cameras, which is why many cities have stopped using traffic camera programs altogether.  But, what Ohio lawmakers didn’t expect is the backlash from city governments that have found a way around the new law in the form of speed guns equipped with cameras.

The Ohio Supreme Court has already ruled municipalities have, under the “home rule,” the power to establish laws in accordance with the powers of local government, which includes the use of traffic cameras. Did they get it right?

Legality in Question

Other states, such as Florida, have issued rulings making it illegal to issue tickets via red light cameras, reasoning that cities cannot delegate their police power to private vendors. While others, like Missouri, have ruled that red light cameras shift the burden of proof from the state onto the defendant to prove the defendant was not operating the vehicle at the time of the violation.

Common arguments made against the use of traffic cameras include:

  • Red light cameras cause more crashes and reduce safety and do nothing to prevent an accident. While it may reduce right turn crashes, the use of red light cameras has been found by some to increase rear-end crashes.
  • Red light cameras are an invasion of privacy. Private companies typically own the cameras, which means your pictures are stored on private computer servers with no way to track when, or if, they’re deleted.
  • Red light cameras are not the most effective way of reducing red light violations. One study found that between 70-80% of red light camera violations came from the 1st second after the light turned red.  Georgia increased the timing of their yellow light timing by merely 1 second and saw a 72% reduction in red light violations.
  • Red light cameras are used primarily to raise money, not improve safety.
  • Ticket recipients are not notified quickly after the offense, putting potential violators at risk for missing deadlines.
  • There is no guarantee of delivery of citation. Even though traffic camera violations are civil in nature, proper delivery is still required.
  • There is no certifiable witness to the supposed violation. You have a constitutional right to confront your accuser; it’s difficult to cross-examine a camera.
  • The driver of the vehicle is not positively identified. Someone other than the owner of the car could have been driving.  This seems to be one of the biggest issues and, perhaps, the best argument against legality.

Speed guns equipped with cameras allow officers to issue a higher volume of tickets over the traditional route of pulling drivers over. One Ohio city mayor stated an officer could essentially write 1,000 tickets per day if they wanted to.  Although speed gun cameras appear to be completely legal under SB 342, using them doesn’t really solve any of the issues surrounding the legality of the traffic cameras in the first place.

Specifically, the argument that cities use them simply as a means to generate income for the city can still be made. Further, it seems nearly impossible for an officer to positively identify the driver of a vehicle if that officer is writing 1,000 tickets per day.

Traffic Camera Evidence Could Prove Useless

Two pending appeals in the Ohio Supreme Court put the constitutionality of SB 342 up for debate, but the bill has already passed scrutiny with the Court of Appeals and lawmakers aren’t expecting it to be overturned. Ohio seems to be following the trend, which means accused violators, in Ohio and other states with similar laws, will be able to use these types of laws to fight pending tickets.

If a city violated a state law restricting the use of traffic cameras, any evidence provided from said camera would be thrown out. Without the testimony of an officer, a city would have no evidence to fill the burden of proof. Even considering Ohio’s use of officer presence on speed gun cameras, I don’t believe it would be enough to uphold a ticket under that argument due to the fact that officers are often just taking pictures of a license plate without making any contact with the driver.

San Francisco Now Leading Country in Paid Family Leave

In a unanimous vote, the San Francisco Board of Supervisors passed a law mandating up to 6 weeks of fully paid family leave for new parents. Not only does this new legislation provide much needed support for mothers, but it applies to fathers and, as the icing on the cake, same-sex couples as well!  I wouldn’t really call it progressive, as U.S. policy on paid family leave is pretty much non-existent compared to other countries around the world, but it’s definitely an advanced step in the right direction for the U.S.

The State of California currently has a Paid Family Leave Program that pays up to 55% of an employee’s salary for up to 6 weeks, but on the heels of the Board’s legislation, Governor Jerry Brown signed a bill expanding that benefit to up to 70% of an employee’s salary. The programs expansion will take effect in 2018.

Who’s Eligible?

The legislation applies to all covered employees, which is defined as:

  1. Someone who is eligible for a Paid Family Leave claim,
  2. Someone who started with a covered employer at least 90 days prior to the start of the leave period,
  3. Someone who performs at least 8 hours of work per week for the employer within the city (you must work in the city, but you are not required to live within the city),
  4. Someone who works at least 40% of their total weekly hours for that covered employer within the city.

That’s right folks—in the midst of recent anti-LGBT laws throughout the country, this legislation doesn’t discriminate. Anyone who meets the above criteria will be covered.  Being eligible for a Paid Family Leave claim falls under California’s disability insurance laws, but basically you have to have been employed prior to the leave period and would suffer a loss of wages when you need to take time off work to bond with a new child. This includes any new child, biological or adopted.

Very Few Employers Exempt

Government entities and employers with less than 20 employees are exempt, which means any private or non-profit business with 20 or more employees anywhere in the world will be considered “covered Paid Family Leaveemployers” and required to fork up the additional amount not covered by the State’s disability insurance program. Companies with less than 50 employees will be required to implement the legislation starting in 2018, while companies with more than 50 employees are required to begin January 1, 2017.

Where’s the Money Coming From?

The Paid Family Leave program is an extension of the State’s disability insurance program, which means 55% of the money comes from a tax on employees. Almost all private, and many government and non-profit employees, contribute to the states disability insurance program.  In fact, in order to be eligible to apply for paid family leave, the employee must have paid at least $300 worth of withheld taxes to the program (or if unemployed, you had to be looking for work). Until the Board passed this legislation, new parents were out the remaining 45% of their income.

Under the new expanded Paid Family Leave coverage that will take effect in 2018, workers making minimum wage will be eligible for 70% of their pay while on leave; employees making more than minimum wage will be eligible for up to 60% of their pay.

This means the remaining 30-40% will come from the covered employers. The Board’s bill is currently awaiting Governor Brown’s approval, but it’s expected he’ll sign.

There’s a Downside, but the Benefits Outweigh the Negatives

The biggest downside is the increased responsibility on behalf of the businesses, especially small businesses that may already be struggling. According to the Office of Economic Analysis Impact Report, the law increases the cost of hiring, increases employer compensation by close to $16 million (at a minimum), will reduce the cities jobs, will cause slow job creation and replacement, and would create negative multiplier effects on the local economy.

Only 55% of employees that claim assistance under the Paid Family Leave program actually live within San Francisco, which means the remaining 45% of non-resident employees will inevitably be spending, at least some of, the extra income outside of the city, which, in turn, negatively impacts those small businesses within the city that are footing the bill.

On the plus side, the law would create an additional $26.5 million in household income for San Francisco employees, which is much needed in an area where the cost of living is ever increasing. Although a broad step in the right direction for the U.S., it’s a modest one by global standards.

The U.S. is the only developed country in the world that doesn’t guarantee paid leave to new parents. The Family and Medical Leave Act only covers 12 weeks of unpaid leave. With New York recently mandating 12 weeks of paid leave for parents at 50% of their income, California is among only 2 other states offering paid family medical leave.

Although 12 weeks of paid leave for fathers ranks fairly well among paternity leave in other countries, the average number of weeks offered for maternity leave in countries around the world is 54. That’s 54 paid weeks for mothers.



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