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Torts

January 29th, 2015 | Posted by admin in Uncategorized - (0 Comments)

Civil Law and Lawsuits

A funny word. In French (where it originated) a tort means a “wrong”. But in the U.S. most people probably think it means a chocolate cake with icing, when they think of it at all! A torte! But, alas, no.
tort

A TORT IS A CIVIL WRONG. 

Tort law is part of civil (noncriminal) law. It concerns lawsuits (not prosecutions). These suits arise from injuries (wrongs) committed by one person, a group, or organization(s) against another or others. Torts can be intentional or not. They can be purposeful or negligent.

Here’s what happens. You get hurt. Or,

someone treats you badly or unfairly. You want to “sue the bastards.” Tort law answers the question: Is there someone to sue? Or, putting it in legalese, is there a remedy for every tort? Torts deal with civil lawsuits, excluding breaches of contract (K’s). While torts are not part of criminal law, remember that the same action by

a defendant (D) can bring about both a criminal prosecution and a civil lawsuit.

For example, if Bill steals your TV, that’s the crime of theft. It is also the tort of conversion. The district attorney can prosecute for the theft. You can sue for the conversion. Bill is the tort-feasor (doer of the tort!). With this as background, what are some torts?

TYPES OF TORTS

Torts are divided into basic types:

1. Negligence
2. Intentional harm to a person
3. Intentional harm to tangible property
4. Strict liability
5. Nuisance
6. Harm to economic interests
7. Harm to intangible property interests

1. NEGLIGENCE

Negligence includes car accidents, slip-and-fall cases, malpractice, personal injury, and some product liability cases. The variety of negligence is very wide, and new torts are created all the time. While it is a common word, negligence has legal meaning. What is it? How does negligence become a tort? We start from the idea that negligence is carelessness, not being reasonable, et cetera. Here’s how a tort in negligence is analyzed.

Every tort has three elements:

A. The D owes a legal duty to the plaintiff (P).
B. The D breaches that duty.
C. The breach causes injury either as a direct result of the negligent act or somewhat more indirectly, but foreseeable; that is, the injury was reasonably predictable following the negligent act.
Legally, we say there is a proximate cause between the breach and the injury.

These look like simple words-not too technical. But let’s define what they mean in this context. First, what is a duty? One person’s obligation to another. Duty is based on the relationship of the people involved. For example:

  • employer and employee;
  • innkeeper and guest;
  • business person/owner and customer;
  • host and social visitor;
  • manufacturer and consumer;
  • property owner and licensee, guest, trespasser, or trespasser who is younger than twelve years old
  • person in control of an instrument that can harm (e.g., a car) and a passenger or pedestrian or fellow driver.

All these cases have a different standard of care, of duty. It’s different if the mailman slips on your steps or if a trespasser does. But, basically, the duty is to act reasonably. What is reasonable? (Ah, the sixty-four-thousand dollar question!)

Reasonable conduct:

An important concept in tort law but, as you can imagine, hard for P and D to agree upon. Lawyers use the “reasonable person standard”. What would a reasonable person do? Note: You generally don’t have a duty to a stranger. Thus, as harsh as it may be, if you see a stranger in serious trouble, you don’t have a duty to help. However, laws are changing in this field. In fact, if you help, you better be reasonable! Because, by helping, you assume a duty!

Good Samaritan statutes:

Because it seems harsh to let doctors, nurses, and other medical professionals go about their way without helping strangers in distress, many states have enacted Good Samaritan statutes. The name comes from the Bible. These laws protect from lawsuit doctors and other medical professionals who aid an injured stranger in an emergency at the scene of an accident or injury. The duty of reasonable care does not apply. In such a case the P can sue the doctor (D) only if he was reckless or grossly negligent.

The reasonable person standard is an objective, not subjective, standard. A jury can decide if you were reasonable. “I was doing the best I could” or “I thought I was being reasonable” is not defenses if they do not meet the community’s reasonableness standard. Standards are applied to the type of person you are. A reasonable adult. A reasonable lawyer. A reasonable scientist or shopkeeper. Persons with greater knowledge are held to a higher standard. The reasonableness standard does not apply to children unless they are doing adult activities. Thus, if a sixteen-year-old drives a car, he had better be reasonable.

These standards change all the time. For example, right now the community’s standard for drinking and driving is changing dramatically in this country. It used to be viewed as almost funny; now, you’d better not do it, you’d better have a “designated driver” if you’re planning to go out and drink, and on and on. All these new standards are being applied differently than they were twenty or even ten years ago. Next, what is a breach? It is a failure to act reasonably; a failure to use the amount of care a reasonable person would use in that situation.

Negligence occurs if you do something below the standard of what a reasonable person would do in those circumstances. What’s the measure? A community standard or statute. Let’s say that you are careless with someone to whom you owe a duty. Is that a tort? Not necessarily. Not unless the person is hurt by your negligence. If no one got hurt, you got lucky! Finally, what is causation? Something that causes something else. To figure out if there is the required causation in your case, you have to analyze it in several steps.

1. You have to prove a “but for” relation between the breach of duty and the injury. But for the breach, there would be no injury. For example, the floor in the store is slippery. You fall on it and break a bone. The slippery floor probably caused your fall. 
If P gets hurt but the injury was not caused by D’s action, then there is no tort. For example, you are in the store with your child. He runs away from you. You run after him and fall and break a bone. The floor was not slippery. The floor probably did not cause your fall. Probably no negligence on the store’s part.
2. The injury has to be the direct result of the negligent act or of foreseeable intervening forces. The injury has to be caused proximately by the breach of duty. This means it has to be reasonably anticipated that if someone does X, someone can get hurt. If you drive and drink, you may cause an injury. If there is a banana peel on the floor in the store, someone may fall, et cetera. This is the proximate cause requirement. 
If something else happens between the breach and the injury, it’s hard to prove that the breach caused the injury. For example, if your neighbor takes down a wall and water comes into your basement as a result, it may be a tort. But if water doesn’t come in for five years, it’s hard to prove proximate cause because so many other things intervened during the five years. Or if there is an unusual flood up the street at the time the wall was removed, your neighbor may be able to prove that it was the flood, not the wall that caused the water in your basement. That might be what’s termed “an act of God.” Then you have no one to sue! 

Other important terms in negligence torts:

Invitee: Someone you have, expressly or by implication, invited to your property. He may be a customer, servant, and friend. Generally, you are responsible for exercising reasonable care for his safety against latent defects on that part of your property to which he was invited. In addition you have a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe.

For example, in a store, invitees can come into the selling area but not the back, which is posted “FOR EMPLOYEES ONLY.” There they would be trespassers.

Licensee: A person who comes onto your property with permission, but without invitation. Such a person has a right to be there but is there for his benefit, not yours: for example, a door-to-door salesman.

In the old common law you owed these folks less duty of care. Now, by statute in many states, the duty is the same as for invitees.

Trespasser: Someone on your property without invitation or license; someone who commits a trespass on your property. Generally, you owe him less care than an invitee or licensee but will be responsible for conduct that is grossly negligent. Thus you can’t set an unmarked trap or leave a large unprotected hole on your property.

An exception is for children under twelve years old. You may be held responsible in their case for maintaining an attractive nuisance  as dangerous “artificial condition” on your property that a child may play on. If the child gets hurt, you may be liable, even if he is trespassing. For example, a swimming pool with an open gate or no fence at all. On the other hand, a tree the child climbs is probably not an “artificial condition,” and you’d probably not be liable for an injury.

Res ipsa loquitur: Lovely Latin term to keep in your back pocket just for fun! Literally, this doctrine means, “the thing (res) speaks (loquitur) for itself (ipsa). ” It’s used in trying to prove that the D was negligent. Here, one can infer negligence without actually proving it, if (a) the accident would not have happened without negligence and (b) the D had exclusive control of the thing that injured the P. If the doctrine applies, the P has made a prima facie case and the jury cannot give a directed verdict for the D

Product liability: A manufacturer and seller of a defective product may be liable in negligence. In some cases they are liable also in strict liability.

Now for the other types of torts:

2. INTENTIONAL HARM TO A PERSON

A. Assault: The D intends to hurt or scare the P and the P believes he is in danger of being hurt at that moment.

If I point a gun at you and it scares you, that’s an assault, even if it turns out to be a toy gun.

If I say, “Don’t you ever do that again or I’ll kill you,” that is not an assault: words alone don’t do it. Here there is no immediate threat of harm.

In an assault the D does not need to touch the P.

B. Battery: The D intends to offensively touch or hurt the P without the P’s consent, and does so.

Even if the P is asleep, and the D offensively touches him, that’s a battery – because it was without consent.

When you sign a medical release before surgery, you are, in effect, consenting to the doctor’s touching you. If he does the surgery to which you consented, that’s not a battery. If he does more or different surgery that may be a battery-because he went beyond the scope of consent. Complicated, isn’t it?

C. False imprisonment: The D intends to keep the P from freely moving about in an area that the P can’t leave. If I’m driving my car with you in it, and you want to get out, and I don’t stop, that may be false imprisonment. An intentional tort.

If a storekeeper keeps me on the suspicion of shoplifting but the suspicion was unreasonable, that may be false imprisonment.

D. Intentional mental distress: The D intentionally or recklessly causes P severe emotional distress.

If I know you are petrified of snakes and I leave one in your desk, that may be grounds for a suit based on intentional infliction of emotional/mental distress.

3. INTENTIONAL HARM TO TANGIBLE PROPERTY

A. Trespass to land: An intrusion by D onto P’s land. No harm or intent needs to be proven. For example, if your neighbor builds a fence but it happens to sit on part of your property that�s a trespass, even if he did it unintentionally.

B. Trespass to chattels: The D interferes with P’s right to possess his property. For example, the D takes P’s property, uses it, perhaps damages it.

C. Conversion: An act that interferes with the owner’s use of his property. Basically, it’s the tort version of the crime of theft or destruction of property, which is serious enough so that the D should pay its full value to the P.

4. STRICT LIABILITY

If injured, the P does not need to prove any negligence on the D’s part. With products he must prove that the product was not safe for its intended use and that he was injured by it. The duty to warn is often applied to potentially dangerous products. For example, crashworthiness of cars; hazards and side effects of medications. This is why cigarettes have warning labels. Even ladders now have warning signs on them! Are the products safe for their intended use?

Ultra hazardous activity: Owning certain types of animals, or engaging in certain types of activities. For example, firearms, if not commonly fired in the particular community or area. If anyone gets hurt, the D may be liable, even if he was not negligent.

5. NUISANCE

The D unreasonably interferes with the P’s enjoyment of his property. This is where the neighbor’s noisy parties come in! Or unsavory odors. Or flights overhead. Courts balance the type of area you are in, the nature of the harm, and the social value/utility of that activity. Airplanes must fly but parties can be quieter.

6. HARM TO ECONOMIC INTERESTS

A. Deceit:

Occurs if the D knowingly lies about an important fact that he intends to induce the P to rely on and which, in fact, the P does rely on. For example, right before trying to sell his house, the D patches over evidence of major water damage so that potential buyers can’t see the damage.

B. Negligent misrepresentation:

It’s like deceit, but applies to people in their trade or business or profession. It occurs if the D negligently provides false information to the P, a customer, on which the P relies to his detriment.

C. Interference with contractual relationships:

The D intentionally interferes with an ongoing business relationship between the P and someone else (the third party).

D. Intentional interference with advantageous relations:

The D interferes through tortious means (duress, fraud) where he had no business being in the first place. For example, the D fraudulently induces a change in a testator’s will in which the P was to be a beneficiary.

7. HARM TO INTANGIBLE PROPERTY INTERESTS

A. Defamation: Occurs if D communicates information about P to others which is not truthful and hurts the P�s reputation. If the D was negligent, in not doing enough research or background checks, he may be liable.

Libel: If the defamation occurs in writing.

Slander: If the defamation is spoken. With famous people, public officials, or other people in the “public domain,” only defamation done with malice (ill will) may be a tort.

B. Malicious prosecution:

If the P starts a criminal prosecution against the D without probable cause and with malice and the D wins, he may turn around and sue the P for malicious prosecution.

C. Invasion of privacy:

A wrongful intrusion into a person’s private life, whether by others or by the government. For example, such an invasion may occur if unreasonable publicity is given to someone’s private life. “It’s not anyone else’s business!” If someone takes your name or uses your picture without permission, especially for commercial use, that may be such an invasion.

Computers have brought the issue of the right to privacy to the fore: How much may government, industry, and other institutions lawfully know about us?

And there you have them: many of the major torts that exist in the early 21st century. Stay tuned as new ones emerge to meet changing social, economic, and personal needs. The law is ever changing and organic.

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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REAL ESTATE … or Condo Sweet Condo

January 22nd, 2015 | Posted by admin in Real Estate - (0 Comments)

Real estate refers to buying and selling a house. Real estate also refers to realty: land, houses, trees, driveway, garage, and everything else attached to the land. Everything else is personal property or personalty: cars, jewelry, furniture, books, CDs, and the lawn mower.

Sally and Sam Sellers want to sell their house. When they do, they’ll be the grantors. As you’ll see, this is quite a process.

 

First they have to answer some basic questions. How do they hold title? That is, what do they own that they can sell?

TYPE OF TITLE HELD BY SELLER

Fee: Ownership of real estate. A funny word, it comes from �fiefdom� in the Middle Ages. There are various types of ownership interests. For example:

Fee simple or fee simple absolute: Complete ownership, with the right to sell or devise (give in a will) the property.

“I grant, sell, convey my house at __________to William Smith and his heirs and assigns forever.”

Most American homeowners have this type of fee.

Fee simple conditional: Complete ownership, but limited in some way. For example, property sold (devised) so long as it’s used for religious purposes; or as a working farm; or whatever. If the use ever changes, then the property reverts (goes back) to the grantor or his heirs or assigns. This is called a “reversion.”

“I grant, sell, convey my house at _________ to Brother John so long as it is used for religious purposes.”

If you buy or get one of these properties, you’d better know about this condition!

Life estate: Freehold interest with no inheritance rights. Ownership for the life of the person holding it or some other life (per autre vie). When the person dies, the life estate terminates and the fee simple reverts to the grantor or his heirs.

“I grant, sell, convey my house at ________ to Kate Brown as long as she lives or as long as__—–______ lives (the other life; the autre vie).-

Two other forms of ownership are new; created by statute – not the old common law. As you can see, these are hybrids of the law: part this and part that! These are:

1. Condominium: The owner has separate ownership of an airspace inside an individual apartment, office space, et cetera, in a multiple-unit building or complex of buildings. The owner also has a right to use (and part ownership of) the common areas, such as the halls, elevators, land, walls, garage, swimming pool, whatever.

The single unit is a fee simple; the shared areas are tenancies in common.

2. Cooperative: The entire property – real estate (land, buildings) and personal property related to it (lawn mowers, snowblowers, shovels) is owned by a cooperative corporation. Every “owner” owns a share of stock in the corporation and is entitled to a “proprietary lease” from the corporation of a unit – a dwelling or office, et cetera. The corporation may have a loan from a bank used to buy the property. If so, if one member defaults in his payments, all members chip in to cover the default. Often an owner will get a personal loan from a bank to buy his or her share of stock. This is an individual – not group obligation.

Let’s assume Sally and Sam has a fee simple absolute.

TYPE OF OWNERSHIP INTEREST

Next, how do they hold it? What does each of them actually own that each can sell? As you may have guessed, there are several forms of ownership. These include, among others, the following:

Sole tenancy; also called several tenancy or tenancy in severalty: One person owns the entire property and can sell it or devise it (unless he’s getting a divorce in a community property states and acquired the property during the marriage). (See community property, below.)

Joint tenancy with right of survivorship: Two persons own the entire property in equal interests. If one dies, the property goes to the other. The conveyance must clearly state the intent to form this tenancy: “To Sally and Sam as joint tenants with the right of survivorship.�

Tenancy by the entirety with right of survivorship: A special form of joint tenancy, only possible for married couples.

Tenancy in common: Property held by two or more persons, each owning a separate and separable interest, with no right of survivorship. When an owner dies, his interest is devised to his heirs, not to his cotenant. This can make for strange bedfellows!

Community property: (Exists only in some states.) Property obtained after the marriage, through the work and efforts of one or both spouses, becomes the property of both, regardless of how the title is held. In case of divorce the property is divided equally. At death, however, the decedent’s interest passes to his heirs; the survivor retains his interest.

In legalese, this is because there is no automatic right of survivorship to the spouse in community property.

Let’s assume Sally and Sam own the property as tenants by the entirety and can sell it.

REAL ESTATE BROKER

Next, they decide whether to sell the house on their own or with a real estate broker (or “agent” or “realtor.” For our purposes these professionals are treated interchangeably).

Let’s assume they opt to use a broker. The broker is the seller’s representative (agent). Therefore, when the house sells, it’s the seller/grantor who will pay the commission. Buyers beware!

Commission: A fee paid to the broker for services performed. It’s not a salary, which generally is payment for time worked. A commission is usually the same amount whether it takes one week or one year to find a buyer. The amount of the fee is usually a percentage of the sale price.

Sally, Sam, and the broker enter into a listing agreement-yes, another contract (K)! Sally and Sam agree to pay a commission if the broker sells the house (and sometimes even if he doesn’t. Watch this one!).

As you probably guessed, there are several types of listing agreements. For example:

1. Exclusive: Here, the broker gets a commission if the house is sold during the period of the agency, no matter who sells it! Thus, even if you alone find someone to buy it, you owe the commission.

To avoid this, when writing the listing agreement (K), the seller may be able to write in an exception for the potential buyers who have already been shown the house. Then, if any of them buy it, there will be no commission.

2. Open listing: You can list your house with any and all agents you wish. Whoever sells it gets the commission. It’s a free-for-all.

3. Multiple listing service (MLS): Here, you list your house with a broker, who places it on a master list to which all member brokers have access. Your broker is the “listing broker.” Then the broker who sells your house splits the commission with the listing broker.

When does a broker get paid? There are lots of different possible times: when the house is sold at closing; or when he or she presents a buyer who is “ready, willing, and able” to buy your house; or when you reach a purchase and sale agreement; or…

Make sure you get the listing agreement to say what you want. Negotiate and read carefully before you sign!

Yeah! Just when you were tired of cleaning your house all the time and had given up hope of selling it … here come Betsy and Bill Buyer. They love your house! They are “ready, willing, and able” to buy it.

If they actually buy the house, they will be the grantees. Great! Break out the champagne? No, not quite so fast…

It’s time to write a purchase and sale agreement (P & S). (Again, a K!)

THE PURCHASE AND SALE AGREEMENT

What’s in a purchase and sale agreement? It should state all the important terms of the agreement between the buyer and seller, such as the price, date, and other important terms. Who gets the carpeting? the stove? the chandelier? and so on. It may include the following legalistic terms:

1. Date: The date for transfer of the house (the actual sale) is listed in the P & S agreement. If the date is critical to either party, it should state, “Time is of the essence.” If not, the date may be changed without penalty or breach of K.

2. Title: What type of ownership can the seller convey? Not all owners own the same rights even if they own” their own house.

The seller’s ownership (title) can be affected (limited) by an:

Eccumbrance: Any right someone has to the property, such as a lien, lease, mortgage, easement, taxes due, et cetera.

Lien: A legal claim against the property. For example, a tax lien for taxes owed a mechanic’s lien for payment for work performed on the property, a judgment lien for payment of a court order. There are lots of types of liens.

Mortgage: Defined below.

Easement: A right others have to use your property for specific purposes. For example, someone may have a fight to cross it to get to a road; a utility company may have rights to construct and repair power lines on it. Easements are created either in writing or through continued use. “But we’ve always gone this way. Now you can’t stop us. We have an easement!” Or “We’ve always parked here.” Well, you get the idea.

Covenants that “run with the land.” A covenant is an agreement. One that “runs with the land” “touches and concerns” the land. For example, there may be “no liquor” laws; there may be restrictions in the subdivision. These covenants must be in writing.

Zoning regulations: These are governmental rules and restrictions that regulate the types or use of buildings and land. They may be ordinances and bylaws. For example, in a historic district the renovations you make may be restricted. In a residential area you may not be able to have your office at home, with clients coming and going. In a commercial district you will undoubtedly have to build according to codes and standards.

Riparian rights: Rights belonging to the owners on the banks of a river (sometimes a sea or lake also). These give all owners along the river the right to use it for useful purposes, as long as they don’t deprive others of use of the water.

Lease: An agreement that sets up a landlord-tenant relationship on the land. Unless the lease says otherwise, even if you sell the property, you may not be able to evict the tenant until the end of the lease period.

The buyer/grantee gets title insurance. The insurance protects the buyer against any deficiencies (“clouds”) in the title.

Other terms in a P & S agreement:

Financing: The buyer who does not have enough cash to pay the entire price for the home (as most of us don’t), will seek a mortgage.

A mortgage is a written document, in which the borrower (mortgagor) pledges his property as security in exchange for getting a loan from the mortgagee (often, a bank). The property is the mortgagee’s security interest. The mortgage is a conditional transfer of legal title pending repayment of the loan. The mortgagee retains the right to redeem legal title in case the mortgagor defaults.

If all goes well, after a specific period of time of paying mortgage payments (for example, fifteen years or thirty years), the legal title to the house will again belong to the grantee/buyer and he can “burn” the mortgage.

If all does not go so well, particularly if he fails to make his payments (he defaults), the mortgagee may foreclose the mortgagor’s right to redeem legal title to the house. The mortgagor may be forced out and the house may be sold at a foreclosure sale.

But let’s not worry about this now….

Inspection: The grantee/buyer will seek to have the property inspected by an engineer, termite, lead-paint (in some jurisdictions) inspectors, and so forth.

inspectionLet’s assume all goes well you get a mortgage, there are no termites, and the house will stand for the next hundred years – no problems! It’s on to the closing!

THE CLOSING AND THE DEED

Closing: The transfer of title from grantor to grantee (seller to buyer) by a deed. Basically, the buyer pays for the house at the closing.

Deed: A signed document that transfers property. The transfer is also called a “conveyance.”

Again, have you guessed? There are several types of deeds, depending on how much is promised and sold.

Remember that a covenant is an agreement, a K. A warranty is a promise that the title is good. The buyer may be buying one of several types:

Full covenant and warranty deed: The best! It conveys good title to the property, that it is free of any encumbrances. The grantee/buyer gets a covenant of quiet enjoyment. Lovely term, isn’t it? It means that no one can have competing claims or better title to his property. Quiet here means that no one can disturb your right of ownership. Yes, you may still be bothered by loud parties or dogs, but that gets into another area of law altogether-nuisance in tort law!

Bargain and sale deed: Not so good. This covenant does not guarantee title. Here, the grantor/seller warrants that he has not done or will not do anything to interfere with the grantee’s quiet enjoyment. But there may be a prior defect in the title. No promises (warranties) are made about that.

Quitclaim deed: Here, the grantee buys “as is.” The grantor conveys all he has but makes no warranties about what that might be. In some states he also warrants that he did not impair the title.

Title insurance protects against encumbrances you don’t know about, such as survey errors.

Other provisions in a deed:

Consideration: As in any K the deed will list the amount paid.

Legal description of the property: Description of the exact boundaries of the property measured in longitude and latitude (degrees and minutes) or metes and bounds (listing distances of the boundaries; using compass directions).

Granting language: The words of transfer. “I, Miriam Freedman, sell my house to Paul Harris and his heirs and assigns forever . . .

Habendum clause: It starts with words “To have and to hold . . . It usually follows the granting clause.

Signatures: Signing the deed authenticates it; says you mean to do what the deed says.

Notary: Is proof that the document has been executed (signed, completed, et cetera); that it was a free act by the parties. Sometimes a seal is used. Sometimes the notary’s jurat is sufficient: stating the date, location, and person before whom the deed is signed. As in “Signed, sealed, and delivered”!)

Recording: The deed should be filed at the local recording office or registrar of deeds (usually the courthouse).

Why would you want to do this? So that the entire world has notice of your deed. It creates a record of ownership. Mortgages and liens are also recorded to give notice that the property is thus encumbered.

The type of notice created here is called “constructive notice. Constructive means “as if.” This means that anyone who may make a claim against the property is deemed to have been notified of its status, whether or not he or she actually went to the records to check. That person can’t claim he didn’t know about the sale or the mortgage or lien, or whatever. He had notice and should have known.

Now – finally – congratulations. Break out the champagne!
Betsy and Bill Buyer, you are homeowners!

 
from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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Should We File Joint or Separate Tax Returns

January 8th, 2015 | Posted by Warren in Family Law - (0 Comments)

You may only file a joint return if you are married at the end of the tax year (December 31) and both of you agree to file and sign a joint return.1 The box you check on your return is “Married filing jointly.” Same sex couples and domestic partners cannot file joint returns. You qualify as married even if you are separated as long as there is no final decree terminating your marital status. A temporary pendente order does not affect your marital status. However, if the divorce is final and your marital status is terminated by the end of the tax year your filing status is either “single” or “Head of household.”

There are pros and cons to filing a joint tax return which you should discuss with your tax advisor and your attorney. Generally, your tax burden will be lower although this will not always be the case depending on your respective incomes, deductions and credits. The main disadvantage of filing jointly is that both of you are jointly and severally liable for taxes on the return, including any tax deficiencies, interest and penalties. This exposure can be partially mitigated by executing a Tax Indemnification agreement discussed below. Also the IRS may allow relief to a spouse who files jointly. The three types of IRS relief (“innocent spouse,” “separation of liability” and “equitable relief”) are discussed in IRS publication 971.
My spouse said they would sign a joint return but they are now refusing to do so?

Spouses often use tax returns as a bargaining tool. Generally, a joint return can only be filed where both parties agree and both sign the return. 2. A court will not order unwilling spouses to file a joint return. 3. However, in rare circumstances the IRS will accept a joint return signed by only one spouse where there is evidence of a clear intent to file a joint return and the non-signing spouse does not file a separate return. 4.

Effect of filing status upon child and spousal support

In calculating guideline child and spousal support, the Court has to take into account “the annual net disposable income of each parent” which is computed by deducting from annual gross income, state and federal income tax liability after considering the appropriate filing status, all available exclusions, deductions, and credits. 5. Therefore, your filing status as “Married filing jointly,” “Separate” or “Married filing separately” will have an impact on the amount of support you pay or receive. In one case, the California Court of Appeal overturned the trial court’s decision where guideline support had been incorrectly based on husband’s status as “Married filing jointly” instead of “Married filing separately.” 6. If the parties calculate guideline child and spousal support using a certified program such as “Dissomaster” and incorrectly input that the parties will be filing jointly when the Husband payor should have been filing as “Married filing separately” and the Wife as “Head of household,” the Husband may well end up paying less in child and spousal support because the program makes allowances for tax liability.

 
If we file a joint return what precautions should we take?

First, make sure that any tax refunds are paid to both of you. If you decide to have any refund sent to you by check make sure that the check is paid to both of you jointly. If a direct deposit is sought make sure the refund is routed to a joint account. You should reach a clear agreement as to how tax liability will be apportioned. A common approach is to prorate tax liability using a ratio based on both spouses separate incomes. Another approach could be based upon what each spouse would have paid if they had filed separate returns. Then to the extent a spouse’s share exceeds what he or she has already paid by way of salary or withholding or estimated tax, that spouse would pay the difference.

Second, if you are going to file taxes jointly, it’s a good idea to get your spouse to sign a Stipulation regarding Tax Indemnification since both spouses will be jointly and severally liable taxes on the return, including any tax deficiencies, interest and penalties. Even if the divorce (dissolution decree) states that one spouse will be liable for any amounts due on previously filed joint returns, the IRS may still hold both spouses jointly and severally liable and go after either spouse.

Example of a Tax Indemnification Agreement

IT IS HEREBY STIPULATED by Wife and Husband as follows:
1. Wife shall immediately provide the Husband with copies of all records and documents necessary for the preparation by Husband and his accountant of Joint Federal and State Tax Returns (‘the Tax Returns’) for the year ending _____. Parties acknowledge that the Tax Returns will be prepared soley under Husband’s direction and control.
2. Wife shall immediately respond to any reasonable requests for information from the Husband or his accountant in the preparation of the Tax Returns.
3. Wife shall sign the Tax Returns immediately upon presentation to her. Such signing does not constitute an admission by Wife as to the accuracy of the Tax Returns.
4. In the event that the parties shall receive a Federal or State tax refund, the _____ shall immediately endorse the full amount of the tax refund check to the ______.
5. The Husband agrees to release, indemnify and hold harmless the Wife from any Federal or State claims, fines, liabilities, penalties and assessments arising out of the filing of the _____ Tax Returns, with the exception of any unreported income to the Wife that she failed to provide to Husband and his accountant in preparing the Tax Returns.
6. The Husband shall pay all costs and fees of any administrative or judicial proceedings in connection with the filing of the Tax Returns.

Be warned. Even if you have a Tax Indemnification Agreement it may not help you if your spouse files for bankruptcy. If you have doubts about the accuracy of your spouse’s, file separately.

If you are still married at the end of the tax year (December 31) but separated and your spouse will not file a joint return how should you file?

You must file either “Married filing separately” or as “Head of household” depending on your circumstances. Filing as “Head of household” has the following advantages:
You can claim the standard deduction even if your spouse files a separate return and itemizes deductions.
Your standard deduction is higher.
Your tax rate may be lower.
You may be able to claim additional credits such as the dependent care credit and earned income credit that you cannot claim if your status is “Married filing separately.”
There are higher limits for child care credit, retirement savings contributions credit, itemized deductions.

If you are still married by the end of the tax year you can file as “Head of household” if you satisfy the following requirements:
You paid more than half the cost of maintaining your home for the tax year. Maintaining a home includes rent, mortgage, taxes, insurance on the home, utilities and food eaten in the home.
Your spouse did not live with you for the last 6 months of the tax year.
Your home was the main home of your child, step child or eligible foster child for more than half the year.
You could claim a dependent exemption for the child.

The other non-custodial spouse must then file as “Married filing separately.” Once you are divorced you may still file as “Head of household” if you paid more than half the cost of maintaining your home for the tax year and your children lived with you for more than half the tax year. There are different rules for filing as “Joint Custody of Head Household” and receiving a credit against California State taxes.7.

If one spouse files “Married filing separately” do we take the standard deduction or can we itemize deductions?

Consider this example.

Bob who separated from Jackie but is still married at the end of 2005 decides to file “Married filing separately” in his 2005 taxes. He decides to itemize deductions which are considerable. Jackie his wife does not have large deductions and wants to take the standard deduction. The rule is that if Jackie qualifies as “Head of household” she can elect to take the standard deduction or itemize.8 If she does not qualify as “Head of household” and Bob itemizes she must also itemize even if she has limited deductions.9. This is true even if she files before Bob and claims a standard deduction. She will have to file an amended return when Bob claims itemized deductions.

When the parties file separately who gets the mortgage interest deduction and property tax deductions?

If the marital home is the separate property of one spouse they can claim the deductions. If the property is jointly owned, the spouse that actually pays the mortgage interest and property taxes is entitled to take the deductions. 10. Other expenses are deductible to the spouse to the extent that they are paid out of separate funds. If they are paid out of community funds each spouse can deduct one half of the interest and taxes.

Who can claim the dependency exemption and the Child Tax Credit and the Child Care Credit?

Generally, where the parties file separately it is the parent with whom the children have resided for the longest period of time during the tax year that can claim the dependency exemption and the Child Tax Credit ($1,000 for each child under 17).11. If the child lived with both parents for the same amount of time, the parent with the highest annual adjusted gross income gets to claim the child. It can therefore be important to keep a log of the actual amount of time the children spent with you. However, the non-custodial parent may take the exemption and the credit if the custodial parent signs an IRS Form 8332 “Release of Claim to Exemption of Divorced or Separated Parents” or a divorce decree or separation agreement releases the exemption and satisfies the wording of Form 8332. In California the court has the power to allocate the dependency deduction to the non-custodial parent. 12. It may do this to maximize support. The Child Tax credit can only be claimed by the parent who claims the dependency exemption. 13. Generally, whichever spouse is in the higher bracket should claim the exemption and compensate the other spouse for the shortfall.
The Child Care credit can only be claimed by the custodial parent if the other parent is not a member of the household for the last 6 months of the tax year. 14. Unlike the dependency exemption it cannot be traded although you may claim the credit even if the dependency exemption has been allocated to the other parent.

  • 1. Generally see IRS Pub 504 “Divorced or Separated Individuals” at www.irs.gov
  • 2. IRS Pub. 17, p.21. Available at www.irs.gov. 26 C.F.R. 1.6013-1(a)(1)
  • 3. Marriage of Carlton & D’Allessandro (2001) 91 Cal. App. 4th 1213.
  • 4. In Riportella v. Commissioner, TCM 1981-463, Tax court held that Mrs. Riportella’s failure to sign a joint return was not fatal because she had signed joint returns for the previous two years, had signed a joint Form 4868 for an automatic extension, and had attempted to “sell” her signature for concessions in the divorce.
  • 5. Fam. Code, 4059
  • 6. Marriage of Carlton && D’Allessandro, supra.
  • 7. See www.ftb.ca.gov
  • 8. I.R.C. 2(b)(c)
  • 9. I.R.C. 63 (c)(6)(a)
  • 10. Rev. Rul. 71-268.
  • 11. I.R.C. 152 (c)(4)(B)(i). IRS Pub. 501, p.12-13.
  • 12. Monterey County v. Cornejo (1991) 53 Cal. App. 3d 1271.
  • 13. IRC 24 (c)(1)(A).
  • 14. IRC 21(e)(4). IRS Pub. 503. Returns

 

© 2007 Warren S. All rights reserved. Contact Warren S. at 1.888.GRIND.LAW or 1.888.474.6352 The information contained in this website is an “Advertisement.” It is for informational purposes only and shall not constitute legal advice. Nothing in this Website shall be deemed to create an Attorney-Client relationship. An Attorney-Client relationship shall only be created when this office agrees to represent a Client and a Client signs a written retainer agreement. 

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Commonly Used Symbols of Law

December 11th, 2014 | Posted by admin in Uncategorized - (0 Comments)

D Defendant

P Plaintiff

K Contract

Ste. Statute (law)

Reg. Regulation

 

Facts

Facts include the following types of issues:

Did the D drive through a red light?

Was he under the influence of alcohol at the time?

Did the D intend to harm the victim?

What did the parties mean in their CONTRACT?

Law

Law includes the following types of issues:

What does driving under the influence signify legally?

If the D intended to harm the P, does that mean he is guilty?

Did the police use illegal procedures?

Once a verdict or decision is reached at the trial court, the parties may, in some cases, appeal to an appellate court.

Appellate jurisdiction involves the court’s power to review questions of law as they occurred at the trial court. If there were errors more than de minimis (insignificant), the verdict may be reversed, a new trial ordered, et cetera.

Venue

Then, there’s venue.

Once jurisdiction is established a trial may be moved within that jurisdiction for the convenience of the parties or in order to assure a fair trial. This involves the principle of venue, which means the place of the trial.

A change of venue means that a trial is moved for one of the above reasons.

Administrative law

And finally, remember that many disputes aren’t handled initially in any court! They are heard by administrative agencies, which derive their jurisdiction from specific statutes. Officials called hearing examiners, hearing officers, or administrative law judges…hear them. For example, the Nuclear Regulatory Commission (NRC) hears cases dealing with nuclear power plants, the Federal Communications Commission (FCC) hears cases dealing with television and radio stations, licenses for them, et cetera. Social Security benefit cases are heard by the Social Security Administration (SSA). And so it goes! Remember: Always be in the right place!

Standard of proof

In order to prevail (win) in court, a party has to prove its case. PROOF IS THE NAME OF THE GAME – THE ONLY GAME IN COURT.

The party that brings the case to court usually has the burden of proof at first. In criminal cases this burden is always on the government. The defendant (D) is presumed to be innocent until proven guilty. It�s the government’s burden to prove him guilty. The D has to neither prove nor disprove anything.

In civil suits the plaintiff (P) has generally the first burden to present a prima facie case, which includes enough evidence that could prevail if not rebutted by the D.

What does a side need to prove its case to win? As you may have guessed by now – it depends on the case!

Beyond ALL doubt is not required in any trial.

Beyond a reasonable doubt is the degree to which the prosecution/government must prove its case to get a guilty verdict in a criminal case. The jury or judge (the trier of facts) must be fully satisfied with the evidence. In a jury trial there must be a unanimous verdict; all jurors must vote to convict.

Motion to dismiss may be granted by a judge when he rules (decides) that the P or prosecution has failed to meet its burden of presenting a prima facie case. This means that, even if everything it sought to prove is proven, it would still lose. The facts may not be determinative. The law is against the P or prosecution.

By a preponderance of the evidence is the degree to which either party must prove its case to win a civil suit. It means that one side’s evidence has greater weight than the other does. A unanimous jury vote is generally not required. Each jurisdiction has its own standards for a necessary majority.

Note: There are cases when the government cannot convict a D but a P in the civil suit on the same matter may win – because of the lower civil standard. Remember the OJ Simpson trials.

In a criminal case, remember that the D may have an affirmative defense. This shifts the burden to the D to prove that even if he committed a criminal act, he had a valid defense, a reason, a “license, to do the act.�

Time and its legal consequences

Time is money. You can’t sit on your rights forever. He who hesitates is lost. These truisms are also very important legal concepts.

Sometimes the mere passages of time will win-or-lose your case!

Two important legal concepts are based on time: The statute of limitations and retroactivity.

Statute of limitations

This time concept marches forward into the future from an event. It is a time limit on how long a person has for bringing a lawsuit or being prosecuted for a crime. Purpose: to eliminate “stale” cases. A plaintiff (P) shouldn’t be rewarded for laziness or procrastination and “sitting on his rights.” A defendant (D) shouldn’t have to worry forever about being sued or prosecuted. Thus, if the time has passed, a P can lose before he ever begins his case! And, of course, a D can use the statute of limitations defense to move for a dismissal of the case. A motion to dismiss asks the court to, throw the P’s case out because it is too late; it is time barred.

Specific statutes of limitations exist in various areas of the law. Each state/case/situation is different and must be checked carefully in current statutes.

Tolling: The start of the time period; the event that triggers the beginning of counting days/weeks/months/ years for the specific statute of limitations.

Note: If the P is a minor, the time does not begin to toll until he reaches the age of majority in the state in which he lives. Of course, if a guardian ad litem brings a lawsuit on his behalf, that may be done before he reaches the age of majority. Examples of specific statutes of limitations include:

Torts: Statutes of limitations generally range from one to six years. The interesting and unsettled issue is whether the starting time (beginning of tolling) is the time of injury or the time P first becomes aware of the injury (which could be far later). For example, in a products liability case, does the time begin to toll from the time the product was sold, the P used it first, or when a latent disease or condition (caused, P believes, by the product) was first discovered?

You can be sure that lawyers, judges, P’s, and D’s (often large companies) have debated these issues long and hard.

Very little time is given for tort claims due to government negligence (where the government is the D). For example, a mail truck hits you. These have a very short statute of limitations period. It’s a matter of weeks or months!

Why is this so? Because, historically, the government had immunity from being sued. It did not permit itself to be sued. This immunity is being eroded by new laws and court decisions, but the government still sets a very short period of time in which it can be sued.

Contracts: Varies from state to state. Time generally starts tolling when the K is executed.

Criminal cases: Varies from state to state, crime to crime. There are no statute of limitations for homicides (murders, manslaughter, et cetera). That’s why you read of cases prosecuted many, many years after the homicide!

Federal (not state) law, according to the Constitution governs the following areas. Thus these periods are definite and uniform throughout the U.S.

Patents: Six years to sue for unauthorized use (infringement) of your patent.

Copyright: Three years to sue for copyright infringement.

Federal income tax: Three years for the IRS (Internal Revenue Service) to come after you for more taxes after the filing date or after you filed if you filed late. Thus, if you don’t file your tax return, the time does not begin to toll, and the IRS can come after you without any statute of limitations! There are longer statutes of limitations for specific tax matters, omissions, et cetera. You have to check the IRC (Internal Revenue Code). Remember though, if there is fraud, no statute of limitation applies. The government’s time to find you is limitless.

Finally, here is a concept from equity:

Laches: While no specific laws are involved, this concept prevents stale claims. Thus, even if there is no specific statute of limitations, one could use the laches defense to prevent the suit from going forward. This concept is used especially in property cases, where it’s called the “Doctrine of Stale Demands.” So, in law as in the kitchen, don’t let things get stale!

Retroactivity

Retroactivity, unlike statute of limitations, goes backward in time. Yes, a legal time machine!

In civil cases this concept is properly called “retrospectively�. In criminal cases it’s ex post facto laws. These are banned in our Constitution. In both cases it concerns a law that relates to events or decisions in the past. In doing that, it gives the earlier event a different legal effect than it had at the time it occurred.

For example, let’s say a new state law requires couples applying for marriage licenses to take a blood test for HIV/AIDS. Such a law probably may not be applied retrospectively (retroactively) to married couples, as they had no expectation of such a requirement when they applied for licenses and have a vested interest in not taking it now and jeopardizing their valid license.

Generally, retroactive/retrospective laws are unconstitutional if they interfere with rights, which were vested under earlier laws. That would be a “taking” without due process.

Ex post facto laws are unconstitutional. (See the Constitution, Article 1, Section 9.) Ex post facto means “after the fact.” Such a law would make an act criminal (or more severe) that was innocent (or less severe) when it occurred earlier.

Why are these laws unconstitutional (not allowed)? Simply stated, because they would be unfair. People can be prosecuted only for laws that are knowable to them. The government cannot change the rules in midstream and hold people who relied on earlier laws responsible for later ones. A D must be tried under the laws which existed when the crime was committed.

However, if a later law gives new or different rights, it may be given full retroactive effect.

Nunc pro tunc is another concept that goes backward in time. It means “now for then.” It’s a way to correct the record or a document in the past to make it be as it was supposed to be . . . and not as it actually was. Confusing? For example, if your marriage license was defective for some reason, you can by a nunc pro tunc order, alter the license to reflect the way it was supposed to be. No, a defect in the license is not a quick and easy way to get a divorce or annulment!

When What Is In Your Heart and Mind Does Matter
States of Mind That Have Legal Meanings and Importance

Many cases depend on a person’s mental state of being. Did the person intend to do what he did?

How important is this? Extremely important. Think about it. They say even a dog knows if he has been kicked. Little children know to say, “But it was only an accident.” “I didn’t mean to take your bike/book/cookie.”

Thus, from dogs to children, we all know that a person’s state of mind is vital in assessing an event. Let’s see how it plays out in specific situations in both criminal and civil law.

In criminal law, the term mens rea deals with the importance of a state of mind. It means a guilty mind, guilty intent. It encompasses many of the terms described below, including intent, knowledge, malice, gross (criminal) negligence, and recklessness, among others.

Generally, a crime is the combination of a mens rea and the actus reus (the criminal act).

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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I’ll See You in Court! Or will I? Introducing … Alternative Dispute Resolution

November 20th, 2014 | Posted by admin in Uncategorized - (0 Comments)

As the costs (in time, money and effort) of going to court rise and the courts are often backlogged, several ways to settle legal disputes without going to court have emerged. They are called alternative dispute resolution (ADR) models. Alternative to what? (A) To litigation: the judicial (court) contest that decides and enforces legal rights. (B) To the adversary system: another name for litigation.

Generally, people use ADR because it is less time consuming, less expensive, and less stressful than litigation. ADR currently exists in several forms: negotiation, arbitration, conciliation, mediation, and pretrial hearings.

  1. Negotiation: Occurs when the parties try to settle their dispute themselves. Just as between parents and children, husbands and wives or neighbors and colleagues, it is a possible avenue for resolving disputes that involve legal rights and responsibilities.
  2. Conciliation: Occurs in court before trial, when the parties meet to try to settle their differences. If they do so, they are said to, “reach a settlement agreement.” Also used in labor disputes before the arbitration as a final effort to settle the case.
  3. Pretrial hearing or conference: Occurs when the parties meet before the trial begins to attempt to settle their dispute or narrow the issues between them or agree on certain facts (“stipulations”), to simplify the trial. This meeting usually occurs with the judge or administrative hearing officer who will hear the case if it doesn’t settle.
  4. Mediation: Occurs when the disputing parties try to settle their differences by having a neutral third person, a mediator, help them. The mediator may be a stranger or friend or someone hired by the parties through a mediation service. The mediator
    • hears both sides,
    • listens to each side privately (in what is called a “caucus”),
    • brings the parties together,
    • helps them see their areas of agreement as well as disagreement, so they may settle their dispute.

    Mediation may be used often in divorce cases and in relatively minor criminal matters, as when neighbors argue about unruly children or dogs, or in assault and battery situations among family members or schoolmates. People who know each other and need to get along in the future often use it. A court may order the parties to attempt mediation. Mediation is used in business settings, as well as disputes about special education.

    Note: The mediator does not decide the case for the disputants. He acts as a facilitator. If the parties reach an agreement, the mediator helps them to write it down. It is called a “settlement,” or “mediated agreements,” or “settlement at mediation,” or-well, you get the idea! One could always mediate to decide what to call the agreement!

  5. Arbitration: Occurs when, as in mediation, the parties use a neutral third person, an arbitrator. However, the arbitrator’s role is quite different from that of a mediator. The arbitrator is chosen by both parties from a list of persons provided by government or private agencies. He hears the evidence from both sides in a setting that is somewhat like a court, but less formal and usually takes less time than a full trial. Then the arbitrator makes the decision for the parties, specifying their rights and responsibilities.Note: This is very different from the mediator, who does not decide the parties’ legal rights and responsibilities, but only facilitates their agreements. Arbitration is often incorporated into
    • labor contracts,
    • business contracts,
    • consumer laws such as automobile “lemon laws,”
    • and contracts between parties. For example, in fee disputes between lawyers and their clients! “If we can’t agree on a fee, we’ll take this matter to binding arbitration.”

    The arbitrator’s decision is almost always binding. That is, the parties agree that this will be “binding arbitration,” and they will live with the decision and not to appeal it (except on rare occasions).

    In other cases, as when a judge orders parties to arbitration instead of pursuing their lawsuit, the arbitrator’s decision may not be binding. (Remember: people cannot be deprived of their day in court, i.e., and their due process rights!)

As you can see, even with Alternative Dispute Resolution there are several alternatives.

 

from: Legal Grind Press first release:

The Little Law Book is an adaptation of LEGALESE by Miriam Kurtzig Freedman (Dell 1990). The book is written for legal description and thus should not be relied upon in the execution of legal decisions. Since laws vary from State to State, we urge you to contact a legal professional in your own State.

Read the online book in the Law Library.

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