These are complicated family law questions that many people feel strongly about because, for one thing, engagement rings tend to be expensive, and for another, they typically have quite a bit of sentiment attached to them. In a case that was filed late last month in New York, a man is actually suing his former fiancée in an attempt to get her to turn over the ring.
]]> According to a news report, the man gave his fiancée a $10,000 ring in May of 2012. Less than one month later, the couple decided not to marry. The woman apparently kept the ring, and now her former fiancé wants it back as well as compensatory and punitive damages in addition to court costs.The reason for the cancellation of the nuptials was not provided in the news report.
So, who is in the right here?
In fact, these disputes are so common that most states do have laws on the books regarding this very issue. Under New York law, where this case was filed, engagement rings are considered to be conditional gifts, the condition being marriage. So, if the condition of marriage is not met, the engagement ring is to be given back to the giver. Here in Virginia spouses cannot sue each other for civil damages if a marriage is called off, and this has extended to engagement ring lawsuits. Thus, engagement rings are unconditional gifts.
There are always exceptions, however. In some cases, couples enter into agreements that rings will be returned if an engagement to marry is canceled. In other cases, parties can negotiate a property settlement agreement outside of court.
Like many family law questions, this is a complicated one that may require legal guidance.
Source: Newsroom Jersey, "Man Sues Hillsborough Woman for $10,000 Ring in Broken Engagement Battle," April 26, 2013
Source: FindLaw, "What Happens to the Engagement Ring in a Broken Engagement?" 2013
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What are the issues to be resolved?
CHILD CUSTODY:
If you have children, child custody must take center stage. Children need to be protected as much as possible from the process and be reassured that both parents love them and even though their parents may be in separate homes they will continue to have the love and support of both parents and extended family.
SUPPORT:
Child Support:
Child support is based on the incomes of both parents and can be affected by the number of days each parent has the children. Three are statutorily mandated guidelines. Day care costs and health insurance are factored into the formula. The guidelines are presumed to be the appropriate amount needed to support the children based on the income levels of both parents.
SPOUSAL SUPPORT/ALIMONY:
Spousal support: Spousal support may be appropriate if there is a significant disparity between the incomes of the parties. Spousal support/alimony is based on the spouse's need, the other spouse's ability to pay and based on the standard of living established in the marriage. The support can be awarded for an indefinite period of time or be limited to a term of years depending of the circumstances of the marriage including the number of years of marriage and the decisions made during the marriage which has affected both parties' career choices and income levels.
PROPERTY DIVISION:
Property division: The property acquired in the marriage will need to be divided prior to the entry of the Divorce Order. There is no presumption in Virginia that the property acquired during the marriage should be divided equally. If a court is requested to divide eh property several factors are considered. The contributions of each party are considered and this includes both monetary and non-monetary contributions. The ages of the parties and the length of the marriage are also considered.
]]>An interesting example of this is the estate of a Holocaust survivor who died last year at the age of 97. The man, a successful real estate developer, did not leave behind any known heirs or family members. He did leave behind an estate that has been valued at almost $40 million, and it appears that he had no will in place.
]]> The New York comptroller's office has reported that it is the largest unclaimed estate in the state's history.Because he died without any known will or heirs, a public administrator is performing an in-depth and worldwide search to learn whether the man has a will someplace and whether any relatives can be identified. If nothing turns up, the estate will be directed to the state's coffers.
When people have no family members or loved ones whom they wish to inherit their assets, they may think that they do not need to create an estate plan. However, wills and trusts can also be used to direct an estate to organizations or charities, for example. In many cases, residents of Virginia choose to create a trust in order to leave money to various foundations or charitable organizations. This can make a significant impact, even the gift is not very sizeable.
Regardless of what one's final wishes may be, it is important to dictate this information in a clear estate plan. Doing so helps ensure that one's assets will be distributed to one's liking, and it will help prevent unnecessary disputes that can diminish the worth of an estate.
Source: New York Times, "Holocaust survivor left $40 million, but no heirs," Julie Satow, April 27, 2013
]]>Although underage drinking might be somewhat common in many parts of the U.S., it can lead to very harsh consequences in Virginia. This is because, unfortunately, juvenile charges often leave a record behind. This means the criminal charge can follow a young person well into adulthood--affecting scholarship and college admission opportunities, as well as career options down the road. This is why juveniles should always seek criminal defense counsel--no matter how minor or harmless the charges seem--in order to obtain the most favorable results possible.
]]> Because underage drinking has become almost synonymous with leaving the nest and going away to college, many otherwise law-abiding minors do acquire fake IDS. In fact, a 2007 study found that 32 percent of Midwestern undergraduates owned a fake ID by the end of their sophomore year in college; even the highly recognizable daughter of Demi Moore and Bruce Willis, Scout Willis, was caught using a fake ID last year at the age of 20. Back in 2001, an underage Jenna Bush, of the then first family, was famously caught using a fraudulent ID to buy alcohol.While underage drinking can lead to jail time, both of those young women were sentenced to community service. While many underage drinking defendants might not think community service is an unbearable sentence, it is very important to worry about the long-term penalties, namely how the charges will be recorded and the potential effects of that.
Source: BBC News, "Why fake ID is an American rite of passage," Jon Kelly, April 7, 2013
Dissociation of a Member
A member of an LLC may be dissociated for many reasons including unanimous vote of other members if it is unlawful to carry on the business of the LLC with that member, the member executed an assignment of their membership interest for the benefit of creditors, or the member files for bankruptcy. In the event of dissociation, the LLC continues to operate and the membership interest held by the dissociated member or the former member's successor in interest is not affected. When a member is dissociated from a limited liability company, that member is divested of all rights as a member to participate in the management or operation of the company. Simply put, the dissociated member is expelled from the company, but does not forfeit the value of his/her ownership interest.
]]> Dissolving an LLCOn the other hand, choosing to dissolve the LLC winds up of the affairs of the business and distributes any remaining assets of the company to the members. The Virginia Code allows a member of an LLC to apply to the circuit court where the registered office of the limited liability company is located for a judicial dissolution if is "not reasonably practical to carry on the business in conformity with the articles of organization." Unless provided otherwise in the articles of organization or operating agreement, the members may wind up the LLC's affairs except that, on "cause shown," the circuit court may appoint a liquidating trustee who may prosecute and defend suits, wind up the LLC's business, dispose and convey the LLC's property, discharge any remaining liabilities, and finally, distribute to the members any remaining assets of the LLC.
What should I do?
The first place to start is to read your LLC's controlling documents the operating agreement and articles of incorporation. Any definition of what events will cause a members dissociation and/or dissolution of the company will control. If the operating agreement is silent, the Virginia Code substitutes in a statutory foundations for either dissociation or dissolution. If it is possible to either dissociate your partner from the LLC or dissolve the company, you must decide what goals you seek to accomplish: Is it possible to operate the LLC without your partner? Do you mind if your partner continues to make a profit on their share of the LLC, even not participating in the operations? It is important to review these considerations with your attorney prior to deciding a course of action and our business law team would be happy to discuss these and any other questions you have about your legal rights as a member or shareholder in a business.
]]>In Virginia and other states, government authorities often assist with child support collection. Naturally, they tend to be on the lookout for innovative programs that make the collection process smoother for all concerned - and deliver money more dependably to the children that child support awards are intended to help.
]]> To be sure, there's always the threat of jailing a parent who gets badly behind on child support payments. But that is a pretty extreme step. It's extreme not just because jail can be a harsh place. It's also an extreme step because being in jail obviously greatly limits the ability of a parent who owes support to make money to pay that support.Recently, however, the state of Michigan has come up with a new and effective way to get parents who owe child support to comply. In Ottawa County, Michigan, authorities have drawn considerable attention for using a special device to immobilize the cars of parents who are late on child support.
The device is called a "boot," and it will shred someone's tire if they try to drive away with one on. When authorities put the boot on someone's car, they also leave a warning sticker with contact information about how to resolve the child support payment issue.
So far, most people whose cars have received this treatment have chosen to pay up. In exchange for doing so, they not only regain use of their vehicles; they also get bench warrants against them lifted by the court that enforces child support orders.
Critics of the program are concerned that it will prevent people from getting to work, and thus with earning the income they need to pay child support. Supporters of the program respond that if those parents were working, they should have been paying child support in the first place.
Source: "Parents Late With Child Support Get Boot On Car In Michigan," digtriad, 3-6-13
Our firm handles situations similar to those discussed in this post in Virginia. To learn more about our practice, please visit our child support page.
]]>But is there such a thing as a "seven-year itch" driving couples apart? To be sure, there was a Marilyn Monroe movie by that name. And the phrase is solidly entrenched in colloquial American English. That does not necessarily mean, however, that the mere passage of seven years is a cause of divorce in Virginia or anywhere else.
]]> Still, researchers have tried to test out the theory. One study, by a psychology professor in 1999, concluded that there is not only a seven-year-itch, but also a four-year itch. This is because most couples tend to begin marriage with a high degree of unity, only to see it decline markedly after four years - and again after seven.Not surprisingly, the hard work of raising children only accelerates these declines. That, at least, was the finding of Dr. Larry Kurdek of Wright State University.
More recently, a 2010 study showed that a majority of divorce today are of couples who have been together for a decade or more. The study, by the accounting group Grant Thornton, found that are most at risk after about 12 years.
Clearly, even from glancing at a couple of studies like this, it's clear that there are certain times when marriages are most threatened. Of course, circumstances vary somewhat for each couple. The birth of a child, or of a subsequent child, is well known to take a toll on marital satisfaction.
Ultimately, then, it's not so much a matter of whether there's a four-year ache, seven-year ache or a 12-year ache. When there's any kind of heartache, it can take years to be resolved. And sometimes, in order to do, divorce is necessary.
Source: "The Seven-Year Itch: Fact or Fiction," Huffington Post, Jennifer Nagy, 1-28-13
]]>1. Consult with an experienced family law attorney at the beginning of the process, and especially before signing any type of agreement with your spouse.
2. Put your children first throughout the separation and divorce process - try to keep things as "normal" and routine as possible for them.
]]> 3. Do not talk to your children about the intimate details of the separation and/or divorce and do not speak poorly about your spouse or their extended family in front of your children.4. If you are on social media - stop using it - especially, if you have a Facebook account. De-activate your account. If you continue to use social media, then minimize your use, and do not reference your personal situation or litigation.
5. Make copies of all financial documents, including, but not limited to income tax returns, pay statements, bank account statements, investment account statements, retirement benefit statements, credit card statements, loan statements, and the like.
6. Request a copy of your credit report.
7. Establish credit in your own name if you have not done so.
8. Inventory household furniture and possessions.
9. Meet with a financial planner to begin thinking about what your financial future will look like post-divorce in order to start planning for it now.
10. If you suspect your spouse has committed adultery or if you are committing adultery consult with an experienced family law lawyer in your jurisdiction before speaking to anyone else about the situation or taking any further action.
Separation and divorce are difficult life events to navigate. Contact one of the experienced family law attorneys at Surovell Isaacs Petersen and Levy PLC for a consultation and specific advice tailored to your situation.
]]>Yet, every divorce is unique and no solution is one-size-fits-all. An experienced divorce lawyer can help you determine what is best for you by evaluating all of the options.
Selling the business to, or buying out, your spouse
One of the most common agreements spouses make is for one spouse to keep the business and buy out the other spouse.
]]> A business is considered property during a divorce and can be divided like all other assets and debts you and your spouse own. After business valuation, the spouse who would like to keep the business can pay the other spouse for his or her share of the business' value.This is a good solution when a business is a viable business that one spouse would like to continue to operate.
Selling the business and dividing the assets
In many cases, it would simply be impossible for one spouse to run the business alone. In others, neither spouse would like to continue to operate the business. Spouses may choose to sell the business and split the proceeds, or they may simply close up shop and divide the remaining assets and debts.
Dividing business assets is a complicated process, since many assets are intangible, but there are ways to determine an approximate value.
Keeping the status quo
In unique cases, such as where a business is profitable and the divorce is relatively amicable, some spouses decide to continue as business partners after a divorce. In order to make this option work, you must set very clear expectations in your divorce agreement and be able to both trust and respect each other. If you haven't done so already, now is the time to create a business agreement that details what should happen if one person wants to sell the business or make significant changes.
Learn more about dividing assets during divorce by visiting our page on equitable distribution of assets.
Source: The New York Times, "When couples divorce but still run the business together," New York Times, Byran Borzykowski, Dec. 5, 2012
]]>The court held that if MERS did not hold the note, it is not the lawful beneficiary. The court's primary ground for this holding was based on the plain language of the Washington Deed of Trust Act, which defined beneficiary in relevant part as "the holder of the instrument or document evidencing the obligations secured by the deed of trust." The court was also persuaded by the homeowners' argument that the interpretation of the deed of trust act should be guided by the Washington Uniform Commercial Code, which includes virtually identical provisions to the Virginia Code regarding authority to enforce a promissory note.
Unfortunately, the court was unable to address the legal effect of MERS appointment without possession of the note based on the record before it. Nevertheless, this was a groundbreaking and well-reasoned decision capable of influencing future development on nonjudicial foreclosure laws even though it is only binding in the state of Washington. The Supreme Court of Virginia has not had the opportunity to the appointment of trustees by MERS, but hopefully it will rely heavily on the Bain decision if presented the opportunity.
Our law firm represents individuals who were harmed by prescription drug errors similar to the ones mentioned in this article. For more information, please visit our medical malpractice page.
]]>An individual's level of intoxication is normally a function of a few major variables that are unrelated to sex: the amount consumed, weight, time frame, and food consumption. When alcohol is consumed, it travels into the stomach. Some is absorbed into blood through the stomach and most is absorbed into the blood stream mostly in the large intestine. Food slows down how quickly alcohol gets into your blood.
How drunk a person feels is usually correlated to the percentage of alcohol in your blood. The amount of alcohol in the blood is partly related to the amount of water in your body. On average, women's bodies tend to have lower proportional water content than men (49-52% v. 58-61% depending on whose study you read). This is because women tend to have more body fat than men.
Lower proportional water content causes women's blood alcohol concentration to rise faster than men. In other words, if a man and a woman who weigh exactly the same drink the exact same amount over the exact same time, the woman will have a higher blood alcohol concentration.
Women also have a lower amount of an alcohol metabolizing enzyme called ADH in their stomach than men. This causes more alcohol to reach their blood causing blood alcohol concentration to go higher.
Once alcohol is in the blood, it is primarily eliminated through metabolism in your liver although some is eliminated through breathing, sweat, saliva and urine. When it comes to metabolism, women tend to metabolize or eliminate alcohol faster than men.
It is important to note that there are many other variables that can affect alcohol concentration. For example, if a person has an abnormal hematocrit level - a high or low amount of hematocrit can also affect blood alcohol concentration because it either allows more or less water into a person's blood.
Alcohol metabolism can also be affected by drugs. A 1984 Study showed that oral contraceptives can slow the rate of metabolism in women from 0.019% per hour to 0.015% per hour and also that during the premenstrual cycle metabolism can further slow down. Some drugs can slow down alcohol metabolism by utilizing similar receptor sites in the liver causing someone to remain intoxicated for a longer period of time.
Additionally, chronic drinkers or alcoholics present an entirely different scenario. When people are drinking heavily every day, many of the processes can become altered, and all assumptions change.
The bottom line is that differences in sex cause alcohol to be processed differently by the human body. These are factors that must be taken into account by your attorney in assessing any defenses you may have to a prosecution for driving while intoxicated.
This also demonstrates that trying to predict your own breath alcohol concentration while drinking can be tricky. The safest course of action is to not drink and drive.
]]>According to the Centers for Disease Control and Prevention, 71 percent of infant fatalities and 54 percent of toddler fatalities could have been avoided if children were properly secured in recommended car seats.
A new study published in the American Journal of Preventative Medicine has found that parents are ignoring or unaware of the current child seat safety guidelines. The study analyzed data compiled by the National Highway Traffic and Safety Administration (NHTSA) from 2007 through 2009 on booster seat use. The study revealed that as children aged, proper car seat use decreased. It also found that minority children were less likely to follow the recommended guidelines. Children of parents who don't wear a seatbelt are also 23 times more likely to be unrestrained in the car.
]]> The study ultimately recommends that more education on the child safety recommendations is needed to ensure that everyone knows how to keep their children safe while in the car.What are the Recommended Car Seat Safety Guidelines?
The American Academy of Pediatrics recommends the following car seat safety guidelines:
• Infants and toddlers up to the age two should be in a rear facing car seat
• Toddlers age two and up should stay in a forward facing car seat until they reach the maximum weight and height restrictions for the seat
• School age kids should use a booster seat until a seat belt fits correctly - generally this is when the child is four feet nine inches
• Older kids should sit in the back seat until they are 13 years of age.
Following the safety guidelines and making sure children are properly secured is the best way to prevent injury and death due to car accidents.
Source: CBSNews.com, "U.S. children at risk from poor adherence to car seat guidelines, study warns," Ryan Jaslow, August 8, 2012
Our firm handles cases with personal injury issues similar to the ones discussed in this article. For more information, please visit our car accidents page.
]]>But is that true? Not according to new research.
Public Citizen, a consumer group, used available data from the National Practitioner Data Bank (obtainable from the federal government) and reports that in 2011 medical malpractice claims reached a new low, in contrast to the continued rise in health care costs.
]]> As reported by Insurance Journal, Public Citizen's report specifically found that for 2011:Further, the report found that all of these declines in medical malpractice payout occurred amid continued rises in health care costs. And, the report is quick to note that there is no evidence that the decline in medical malpractice costs were a result of safer health care. In fact, the opposite may be true, as the report notes that many injured patients go uncompensated for their injuries and are left to shoulder the burden of medical malpractice costs themselves.
A doctor or nurse's negligence can lead to longer recover times, additional procedures and recovery time, and added pain and suffering; in fact, the effects of medical negligence can last a lifetime. If you've been injured by the hands of someone who was supposed to heal you, do not be deterred by the talking heads and pundits that who claim medical malpractice claims are to blame for the rise in health care costs, and advocate for your own health and recovery by speaking with a medical malpractice attorney.
Source: Insurance Journal, "Malpractice Claims at Record Low, Not Driving Health Costs: Consumer Group" Andrew G. Simpson, July 13, 2012
]]>At Surovell Isaacs Petersen & Levy, we have represented many clients who have purchased a new or used vehicle from a dealership and seek legal recourse for the dealer's fraudulent actions in advertising, selling and financing the car. Buying a new car can be an exciting time, but it is well worth an investment of your time and effort prior to stepping foot on a dealer's lot to avoid being duped by an unscrupulous car dealer. Below are eight helpful tips from our auto fraud attorneys based on our experience and legal expertise to help make you a well-informed consumer.
1. PLAN YOUR PURCHASE
What kind of vehicle are you looking for? Make a list of your love/hate relationship with your current car, and what things you need to have in your new car. Is the car for you or a family member? Do you take long trips frequently? How often do you have to deal with stop and go traffic? All of these decisions should be made prior to going to a dealership, where an overly aggressive salesperson can pressure you into buying something that is not a good fit for you, or that has none of the options you loved most in your current car. Researching car models allows prepares you to ask intelligent questions at the dealership and ensure that you're getting the car that is the best fit for you.
]]> 2. DO YOUR HOMEWORKIf you're responding to an advertisement for a specific car at a dealership, it is well worth it to obtain the VIN and do some homework on the car. Go online and buy:
- A Carfax history
- A title history report from the National Motor Vehicle Title Information System
- A Virginia Prospective Purchaser Inquiry through the DMV
For a few dollars, these databases can provide a wealth of information that some dealers might not tell you about in order to hide vehicles that have been reported as junk, rebuilt, salvage, and flood damaged. Bring these with you to the dealership so that you know what questions to ask, and to avoid wasting a trip on a lemon.
3. ARRANGE FOR FINANCING THROUGH YOUR BANK, NOT THE DEALER
If you are financing the purchase of your new car instead of paying cash, go through your bank or credit union to seek approval for a loan you can afford. Banks almost always offer you a loan at a more favorable rate than a dealer, especially if you currently have a positive lending history with them. Dealers frequently profit when arranging financing for your car, which can make the overall price of the loan much higher. Having pre-approval for a certain loan amount allows you to avoid the misleading focus on the "monthly payment," and concern yourself with the overall price of the car. This also helps avoid the unfavorable situation of a "yo-yo sale", or spot delivery, whereby you go home with the car, but the dealer calls you a few days later to bring it back or re-sign the financing paperwork at a higher interest rate because they cannot finance it at the terms they originally promised to you.
4. BRING SOMEONE WITH YOU TO THE DEALERSHIP
When you go to the dealership to inquire after the car you've researched, bring someone with you who you trust and will give you an honest opinion. They can help point out concerns or ask questions, keep the salesperson busy when you take the car for a test drive and act as a potential witness if the salesperson makes promises or guarantees that turn out to be wrong or fraudulent.
5. TAKE IT TO YOUR OWN MECHANIC FOR INSPECTION
Ask the dealer to let you take the car to your own mechanic and have it inspected. This can cost about $100-$300, but could save you thousands in the long run. The "110 point inspection" that many dealerships offer is no guarantee that there are not major problems with the car that can surface as soon as you drive it off the lot.
6. INSPECT THE BUYERS GUIDE
Federal and Virginia law require that a completed Buyers Guide be placed in the window of the vehicle at the time of the sale. If there is an existing manufacturer's warranty, the Buyers Guide must state what it is on that form. Dealers frequently attempt to disclaim all warranties and sell the vehicle "as is," in which case the Buyers Guide should be clearly marked as such. Virginia law also requires that for a car to be truly "as is," the consumer must sign the section of the Buyers Order disclaiming all warranties.
7. READ THE DOCUMENTS YOU ARE SIGNING
Its not just the big letters that are important; the fine print includes many important contractual provisions. Virginia law presumes that you read what you sign, with certain limited exceptions. Consumers almost always spend hours on end at a dealership attempting to finalize the purchase of their new car, only to find that the salesperson is suddenly in a mad dash to have you sign the paperwork without giving you time to review it. Do not let them rush you! Read the documents, ask questions, and get an answer you are satisfied with. There are many important provisions in those documents that can make or break the sale of the car, if you know what to look for:
- Ensure that the terms are what you agreed upon and the blanks are filled in
- Be wary of "extras" in the purchase price (rustproofing, window etching, fabric protection, etc.)
- Mandatory arbitration agreements
- "No cooling off period" warnings (this is often the direct OPPOSITE of what salespersons tell you)
8. BE PREPARED TO WALK AWAY
This is probably the most important thing to bear in mind when purchasing a car. If you are uncomfortable with the answers you are getting, you feel pressured to make a hasty decision, the car is not what you expected, or you find yourself compromising your original "wish list" for the car, be prepared to say no. This is especially important in the purchase of a used car, if the dealer refuses or tries to dissuade you from having your mechanic inspect the car. No car, no matter how fancy or how great the deal is, is worth the hassle and expense you may be signing up for if you are truly being sold a lemon.
If you feel that you've been cheated by a car dealer, call us today for advice about what to do next.
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