tag:blogger.com,1999:blog-24140427621606522682024-03-08T01:27:06.170-05:00The Weidemann Law Firm, P.C., BlogBradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.comBlogger17125tag:blogger.com,1999:blog-2414042762160652268.post-60105200890932062692013-08-12T15:30:00.000-04:002013-08-12T15:30:16.880-04:00Some source documents on New York City's Stop and Frisk programBecause of the Internet, we have unprecedented access directly to information, unfiltered by media sources. A good example is New York City's Stop and Frisk policy, which has been declared unconstitutional.<br />
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Here is the original opinion, courtesy of <a href="http://scholar.google.com/scholar_case?case=5171115582863402046&q=stop+and+frisk&hl=en&as_sdt=3%2C34&as_ylo=2012" target="_blank">Google Scholar</a>. Of course, legal opinions have been available on the Internet for a long time.<br />
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What is truly surprising that the actual Stop and Frisk statistics are available on the Internet, courtesy of the <a href="http://www.nyc.gov/html/nypd/html/analysis_and_planning/stop_question_and_frisk_report.shtml" target="_blank">NYPD</a>. Unfortunately, the statistics are in SPSS format, which appears to be a proprietary file format. However, everyone with IBM SPSS software and a little statistics knowledge can analyze the Stop and Frisk program for themselves.<br />
<br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-9194111966971506722013-07-23T10:27:00.002-04:002013-07-23T10:27:23.433-04:00Jury Instructions from Florida v. ZimmermanLast week, I quoted from the standard jury instructions that are available on the Florida Supreme Court web site. Yesterday, I found the actual jury instructions given to the <i>Florida v. Zimmerman</i> jury. It, and many other primary documents from the trial, is available <a href="http://www.palmbeachpost.com/list/news/national/documents-zimmerman-trial/aH9w/">here</a>, at the Palm Beach Post.Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-5767172869485029992013-07-19T11:11:00.001-04:002013-07-19T11:11:10.353-04:00Florida's Standard Jury Instruction on Self-Defense<div class="tr_bq">
In a jury trial, the jury renders a verdict. Before the jury deliberates on its verdict, the trial judge instructs the jury on the law that the jury is to apply to the facts of the case. If a judge misstates the law in giving the instructions, then the jury's verdict may be overturned on appeal. The legitimacy of the jury verdict depends in large measure upon the correctness of the instructions. Judges are understandably cautious in giving jury instructions.</div>
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In most jurisdictions, judges use "pattern," "model," or "standard" jury instructions. These instructions are generally compiled by the jurisdiction's supreme court. The instructions represent language that the appellate court has approved. If a judge follows the language of the pattern jury instructions, then presumably the instructions will withstand appeal.<br />
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Before giving instructions to the jury, the judge holds a conference with prosecution and defense counsel. The judge, the prosecution, and the defense propose and argue which instructions to give, and whether they need to be modified. An erroneous inclusion, exclusion, or modification of an instruction may lead to the verdict being overturned.<br />
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Since the conclusion of <i>Florida v. Zimmerman,</i> there has been much public scrutiny of the jury's verdict. Considering the grave interests involved, this scrutiny is certainly appropriate. It would be appropriate to consider the jurors' actions in the context of what the judge instructed them to do.<br />
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Florida's jury instructions are available online. The instruction on self-defense is set out below. The judge would have given many other, standard instructions in addition to the self-defense instruction. For example, every charge to the jury would include an instruction on the burden of proof. However, the self-defense instruction seems to be the one that is of foremost importance in this case.<br />
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I do not know what, if any, modifications the trial judge made to the pattern jury instructions. I have edited the instruction only in three ways. First, I deleted parenthetical instructions to the judge. Second, I deleted citations to cases and statutes. Third, I deleted sections that appeared to be irrelevant to the specific case. I have probably modified the instruction less than the judge would have. <br />
<blockquote>
An issue in this case is whether the defendant acted in self-defense. </blockquote>
<blockquote>
It is a defense to the offense with which Zimmerman is charged if the death of Martin resulted from the justifiable use of deadly force. </blockquote>
<blockquote>
"Deadly force" means force likely to cause death or great bodily harm. </blockquote>
<blockquote>
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, or the imminent commission of a forcible felony against himself.<br /><br />However, the use of deadly force is not justifiable if you find: </blockquote>
<blockquote>
Zimmerman initially provoked the use of force against himself, unless: </blockquote>
<blockquote>
The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on Martin. </blockquote>
<blockquote>
In good faith, the defendant withdrew from physical contact with Martin and clearly indicated to Martin that he wanted to withdraw and stop the use of deadly force, but Martin continued or resumed the use of force. </blockquote>
<blockquote>
In deciding whether defendant was justified in the use of deadly force, you must judge him by the circumstances by which he was surrounded at the time the force was used. </blockquote>
<blockquote>
The danger facing the defendant need not have been actual; however, to justify the use of deadly force, the appearance of danger must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force. </blockquote>
<blockquote>
Based upon appearances, the defendant must have actually believed that the danger was real. </blockquote>
<blockquote>
There is no duty to retreat where the defendant was not engaged in any unlawful activity other than the crimes for which the defendant asserts the justification. </blockquote>
<blockquote>
If the defendant was not engaged in an unlawful activity and was attacked in any place where he had a right to be, he had no duty to retreat and had the right to stand his ground and meet force with force, including deadly force, if he reasonably believed that it was necessary to do so to prevent death or great bodily harm to himself or to prevent the commission of a forcible felony. </blockquote>
<blockquote>
In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and Martin. </blockquote>
<blockquote>
If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. </blockquote>
<blockquote>
However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find him guilty if all the elements of the charge have been proved.</blockquote>
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Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-32591679260752637332013-06-18T11:10:00.002-04:002013-06-18T11:10:46.521-04:00Who can sue for child custody and visitation?It may take a village to raise a child, but the legal system doesn't think so. Legal standards generally limit who can come into court to ask for custody or visitation of a child. At the same time, judges do want to protect children. The result of this tension is a patchwork of rules that can confuse family law attorneys, much less laypeople.<br /><br />
<h3>
Default: Parents win</h3>
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For many typical child custody cases, the first step in this analysis is also the last step. In other words, parents automatically have standing to sue for custody, and parents have priority over everyone else, subject to some exceptions that we will discuss later.<br /><br />
<blockquote>
[A] natural parent has a constitutionally protected paramount right in the care, custody, and control of his or her children which rises to the level of a liberty interest and is protected by the Due Process Clause of the Fourteenth Amendment.</blockquote>
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<i>Penland v. Harris,</i> 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999). All other things being equal, then, a parent will win over anyone else in a child custody case. As with most things having to do with the law, however, there are complications.<br /><br />
<h3>
Who is a "parent?"</h3>
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If parents almost always win over non-parents, then deciding who is a parent becomes one of the most important steps in a case.<br /><br />
The people who biologically created the child are usually the child's parents, but there are exceptions to that rule. A sperm donor whose parental rights have been terminated is no longer a parent. A biological parent whose parental rights have been terminated, for abuse or neglect, for example, is also no longer a parent. In states that allow surrogacy, the surrogate mother, at some point in the legal proceedings, will no longer be considered a legal parent. Biology alone sometimes does not settle matters.<br /><br />
One increasingly common fact situation that is beyond the scope of this introductory article concerns same-sex female couples. When one person supplies the egg, which is artificially inseminated by donated sperm, and the embryo is implanted in the other person, we speak of "biological" mothers and "gestational" mothers. Unfortunately, some states have decided that only one of those can be the child's parent.<br /><br />
Other people can also be parents of a child. People who have legally adopted the child are the child's parents, for example. People who have been judicially determined to the parents in a parentage order under the Uniform Parentage Act are also the child's parents. These cases are comparatively easy, since a court has already bestowed the title of "parent" upon these people.<br /><br />
Some people that we would popularly consider to be parents are often not parents for legal purposes. Step-parents are not legal parents by virtue of being step-parents. Step-parents <i>can</i> be parents by adopting their step-children, or by qualifying as "de facto" parents, as we will discuss later. In many states, same-sex partners are not automatically parents, unless they have adopted, been granted a parentage order, or qualify as a "de facto" parent.<br /><br />
<h3>
"De facto" parents</h3>
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"De facto" parentage is a legal concept that is relatively easy to describe, but quite difficult to prove in court. A "de facto" parent is someone who is a parent "in fact." ("De facto" is Latin for "in fact," and lawyers like to revert to Latin to make simple things sound complicated. "De facto" parents are also called "in loco parentis," which is Latin for "in the parent's place.") When a person has taken on the parental role and parental responsibilities, or when the child looks upon a person as a parent, a court may find "de facto" parentage. <i>See</i> <i>Price v. Howard,</i> 346 N.C. 68, 83, 484 S.E.2d 528, 537 (1997).<br /><br />
It is important to keep in mind what a finding of "de facto" parentage does and what it does not do. A "de facto" parent has access to the court and can sue for custody. However, a "de facto" parent is not on a level playing field with a parent. The legal standard for custody fights between parents is, what is in the child's best interest? The legal standard for custody fights between a parent and anyone else, on the other hand, is the parent unfit or otherwise not entitled to the parental priority? We will discuss that in more detail later.<br /><br />
<h3>
A whole lotta exceptions</h3>
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So far, we have been discussing how parents win over non-parents in custody cases. In several places, I promised to discuss the exceptions to that rule. Here we will discuss some of those exceptions.<br /><br />
Grandparents can get visitation, but not custody, under certain circumstances. However, there must be a custody proceeding underway between the parents, and the child must not be living in an intact family. <i>See</i> North Carolina General Statutes § 50-13.1(a); <i>Penland v. Harris,</i> 135 N.C. App. 359, 361, 520 S.E.2d 105, 107 (1999). Grandparents who can meet the "de facto" parent test, however, can sue for custody based upon that standard.<br /><br />
Assuming that a non-parent has established one of the grounds to sue for custody or visitation that we have already discussed, the non-parent has one more legal hurdle to surmount before getting to the actual question of custody or visitation. The non-parent must prove that the parent is unfit, or<br /><br />
<blockquote>
that the natural parent has acted in a manner inconsistent with his or her constitutionally protected status.</blockquote>
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<i>Id.</i> What is acting "in a manner inconsistent" is a complicated question that is beyond the scope of this informational article. Help from an experienced family law attorney is almost certainly necessary in cases that involve this issue.<br /><br />
Once a non-parent has established standing to get into court, and then established either parental unfitness or acting "in a manner inconsistent," then, finally, the court can address what custody or visitation is best for the child.<br /><br />
<blockquote>
Where such conduct is properly found by the trier of fact, based on evidence in the record, custody should be determined by the “best interest of the child” test mandated by statute.</blockquote>
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<i>Price v. Howard,</i> 346 N.C. 68, 79, 484 S.E.2d 528, 534-535 (1997).<br /><br />
<h3>
Practical suggestions</h3>
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There are a number of things that you might be able to do to protect yourself if you find yourself in this situation. If you are able to legally adopt the child, or to be declared a parent in a parentage order, you should consider doing that. If that is not possible, you should consider entering into a custody order by consent while you and the other parent are in agreement about what is in the child's best interest. If that is not possible, a custody agreement, while not legally enforceable, might at least lay a foundation for a later "de facto" parent case, by showing that you and the other parent intended for you to be a "de facto" parent, and what you and the other parent considered to be in the child's best interest. There may be other options in your jurisdiction. You should discuss these options with an experienced family law attorney in your jurisdiction.<br /><br />
<i>Disclaimer:</i>This article, and all other materials on this blog, are provided for general information only, and are not intended to be legal advice or to substitute for the advice of an experienced attorney licensed in your jurisdiction. No attorney-client relationship is intended, nor should any such relationship be assumed. For legal advice, please consult with a competent attorney licensed in your jurisdiction.<br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-13559817511072733012013-05-29T15:15:00.002-04:002013-05-29T15:15:44.611-04:00Cohabitation Provisions Do Not Make SenseThe piecemeal, state-by-state nature of same-sex marriage often causes problems. <a href="http://abcnews.go.com/US/wireStory/texas-judge-lesbian-couple-cohabitate-19229008#.UZ0W0CtDui8">The Associated Press</a> describes one such problem succinctly:<br />
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<blockquote>
A judge has ruled that a North Texas lesbian couple can't live together because of a morality clause in one of the women's divorce papers. The clause is common in divorce cases in Texas and other states. It prevents a divorced parent from having a romantic partner spend the night while children are in the home. If the couple marries, they can get out from under the legal provision — but that is not an option for gay couples in Texas, where such marriages aren't recognized.</blockquote>
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I often see cohabitation provisions in custody orders, but they are less common than they used to be. The rationale behind cohabitation provisions is to protect children from their parent being distracted by a new lover, or from a succession of sketchy characters drifting in and out of their lives. Nevertheless, I believe that cohabitation provisions are poor tools. It would make more sense to evaluate mommy or daddy's new friend based upon his or her particular character. Cohabitation provisions are blanket restrictions on a parent's right of association without discerning the good from the bad.<br />
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Apparently, this county's local rules include a "standard" divorce order that includes a cohabitation provision. Is that order mandatory, or is it just a suggested example? If the cohabitation provision is not actually mandatory, did the mother have counsel at the time of the divorce? Did the mother's counsel try to strike the provision? If the provision is mandatory, would it have been possible to file the divorce in a different county? The best practice for lawyers might be to look at example orders with a critical eye, rather than unthinkingly copying them.<br />
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Going forward, I wonder if this mother could file a motion to modify the order to strike the cohabitation provision.<br />
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This cohabitation provision adversely impacts same-sex couples in Texas. It is true, as the judge and the father's attorney disingenously point out, that the provision is gender-neutral. However, in Texas, cohabitating opposite-sex couples can comply with the cohabitation provision by getting married. Same-sex couples cannot get married in Texas, nor will Texas recognize their out-of-state marriage. Same-sex couples are left without a remedy that opposite-sex couples have.<br />
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The tragedy in this case is that, by enforcing the cohabitation provision, the judge is creating a certainty of harm to the children by disrupting their home.<br />
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Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-67834570871990817202013-05-23T10:50:00.002-04:002013-05-23T10:50:23.249-04:00What is Equality? Part 1Attorneys see some fact situations with predictable regularity. What seems to be a novelty to the general public is, to us, an old, familiar song.<br />
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<a href="http://www.nytimes.com/2013/05/22/us/florida-18-year-old-arrested-for-encounters-with-friend-14-gets-online-support.html?_r=0">The New York Times</a> reports that, in Florida, an eighteen-year-old girl is being prosecuted for a sexual relationship with a fourteen-year-old girl. In many ways, this story is unfolding just like any opposite-sex statutory rape case.<br />
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When interviewed by the police, Kaitlyn, the eighteen-year-old, allegedly admitted to the sexual encounters. As a criminal defense attorney, I always marvel, why do people talk to the police? Why do they admit to the essence of the crime?<br />
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Kaitlyn also stated that “she did not think about it [being wrong] because” the girl “acted older.” How many times have we heard older men utter those same words when caught with underage girls?<br />
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The state attorney has offered a plea bargain under which Kaitlyn would avoid jail time, and, more important, avoid sex offender registration. Kaitlyn's parents are against taking the plea bargain, but I hope that they will reconsider. If Kaitlyn has already admitted to the sex, then she has no defense to present at trial. Avoiding sex offender registration is a huge consideration. Most criminal defendants would snap up such a plea bargain immediately; unfortunately, they seem to be offered rarely.<br />
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Kaitlyn's parents criticize Kaitlyn's prosecution because, they say, she is being prosecuted solely because it is a same-sex relationship. I take that to mean that they are alleging selective prosecution: that a neutral law is being applied in a discriminatory fashion. Discussing the difficulties of such a challenge are beyond the scope of a simple blog post. More important, I doubt that they could factually prove selective prosecution. In my experience, prosecutors are just as eager to prosecute opposite-sex statutory rape cases, if not actually moreso.<br />
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One could argue for a change to the Florida law on the age of consent. I hope that any change would be gender-neutral. However, that change will not come (and should not come) from a trial-court judge.<br />
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Gays and lesbians are fighting for equality, and this is not a case that implicates equality. Equality means that, if something is illegal when straight people do it, then it is likewise illegal when gay people do it. If Kaitlyn were Kyle instead, an eighteen-year-old boy who had sex with a fourteen-year-old girl, then that situation would still be illegal under Florida law.<br />
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The problem with equality, however, is that there never seems to be enough of it to go around. Often, it seems that gays and lesbians are treated equally by the majority when there is punishment to be meted out, such as here. But when there are benefits to be conferred, gays and lesbians do not get in on equality there. Florida is a perfect example: It does not treat gays and lesbians equally when issuing marriage licenses, or adoption decrees.<br />
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I look forward to a day when the State of Florida treats its gay and lesbian citizens equally in every respect.<br />
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Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-55410433167502405172013-02-18T11:35:00.000-05:002013-02-18T11:35:14.354-05:00Using Written Contracts in States that do not Recognize Same-Sex Marriage<br />
I spent this morning in a stimulating discussion with Dean Suzanne Reynolds' Family Law class at Wake Forest University School of Law. The students' questions were tough and insightful, and I enjoyed my experience immensely. The topic of the discussion was written contracts for same sex couples.<br />
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Such written contracts are useful, but parties' contracts can not totally substitute for marriage rights. For example, agreements can not provide for alimony. Likewise, courts are not bound by agreements regarding child custody and support.<br />
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Further, agreements do not bind the government. So, tax consequences are out of the parties' hands. Also, parties may still be ineligible for government benefits such as Social Security. Finally, parties may still have no standing for claims such as wrongful death or loss of consortium.<br />
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Parties can agree about the ownership of property. So, essentially, agreements substitute for equitable distribution. Agreements will provide for the acquisition, ownership, and dissolution of joint property.<br />
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The preface to the agreement should do three things. First, the preface should show how the property was acquired. Second, the preface should show what property will continue to be separate property. Third, the preface also should list the property that will be held jointly.<br />
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If one partner already owns the property, there may be negative tax consequences for the other partner. There may be a presumption that the joint property was a taxable gift from one partner to the other.<br />
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To avoid the presumption of a taxable gift, the agreement should show the initial contribution that each party made to the purchase of the property. The initial contribution may be an amount paid for the down payment, or sales proceeds from the party's other property.<br />
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Agreements should set out how the property will be held and managed. The parties may establish a joint account solely for joint expenses. They may agree to contribute a certain amount or a certain percentage to the joint account. The agreement may provide for sharing the cost of upkeep, maintenance, repairs, and improvements.<br />
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Agreements should set out how the property will be dissolved. Many events may trigger dissolution of the joint ownership. The parties might sell the property while remaining a couple. Due to aging, illness, or some other factor, one party may become incompetent. One party may predecease the other. The agreement should provide for each of these contingencies.<br />
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One party may be forced into bankruptcy. Since property owned by unmarried parties is held jointly or in common, instead of by the entireties, the property is vulnerable to a party's separate creditors. The agreement should provide a way for the other party to buy out the bankrupt party's share of the property.<br />
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Most contentiously, the parties may break up. The agreement should set out who gets to choose to stay, and who has to go. The one who has to go may have to continue to pay the property's joint expenses until the property is sold. The one who gets to stay may have to give the other party some credit for the fair rental value of the residence. Or, the one who stays may have to buy the other one out. The agreement may provide that the leaving partner has no financial obligation if the staying partner brings in a new girlfriend/boyfriend.<br />
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Generally, agreements give one party the right of first refusal to buy the other out. The agreement will have to set out how the property will be appraised. If the right of first refusal is not exercised, the agreement should set out how a Realtor will be selected, how the listing price will be set, and when an offer will be accepted.<br />
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To keep the parties' private affairs out of the public record, agreements should include recourse to mediation or arbitration, or both.<br />
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Agreements are not the last step. Parties may decide to be married, civilly united, or domestically partnered. While not recognized here and now, when recognition comes, these events may establish an early beginning date for tax purposes or government benefits. However, parties must be careful not to become "wed-locked:" unable to dissolve their marriage, union, or partnership.<br />
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Parties may decide to establish an inter vivos trust to substitute for alimony. Such trusts are sometimes appropriate when one partner earns substantially more than the other. However, unlike alimony, trusts are not as easily modifiable.<br />
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Parties must ensure that they actually title joint property jointly. Joint property may include real estate, time shares, vehicles, bank accounts, financial instruments, retirement accounts, life insurance, and closely-held businesses.<br />
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Parties may wish to execute reciprocal wills, living wills, powers of attorney, and health care powers of attorney.<br />
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Parties may have to do something to protect their children. They may consider adoption, second-parent adoption in another state, artificial insemination agreements, sperm donor agreements, parenting agreements, or "friendly" lawsuits.<br />
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Clearly, these agreements can become quite complicated. This general outline is not intended as legal advice, nor should it be relied upon as such. If you are considering whether an agreement might be right for your situation, I would be happy to discuss your particular situation with you in a private consultation; just call me to set up an appointment. Also, I welcome general comments and questions in the public comments section below.<br />
Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-30244271988455587112013-01-02T15:39:00.002-05:002013-01-02T15:39:31.853-05:00New Web SiteI have launched a new web site for my law firm. You can check it out at <a href="http://www.weidemannlawfirm.com">www.weidemannlawfirm.com</a>.Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-81634200413152804582012-05-14T15:39:00.001-04:002012-05-14T15:39:10.688-04:00After Amendment One, How Can Families Protect Themselves?<br />
<div style="margin-bottom: 0in;">
The passage of Amendment One in North
Carolina last week was a setback for the protection of same sex and
other unmarried families. While same sex marriage was already illegal
by statute, Amendment One further prohibits civil unions and domestic
partnerships. Amendment One will prohibit same sex marriages, civil unions,
and domestic partnerships in North Carolina, and it will prohibit the
recognition of out-of-state marriages, civil unions, and domestic
partnerships. Yet, same sex and other unmarried families can
still employ some legal means to protect their families.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
With a married couple, any child born to a party of the marriage is presumed to be the child
of the spouse. This presumption does not apply to unmarried couples.
The part of the couple with a genetic connection to the child is
presumed to be the parent. The part of the couple who gave
birth to the child is presumed to be the parent also. With
modern alternative reproduction technology, the genetic parent and
the birth parent are not necessarily the same person. However, the
other parent in an unmarried couple has no automatic protection in
North Carolina.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
Parents can pursue some in-state
remedies, although they are limited in their effectiveness. The
genetic or birth parent can name the other parent as guardian in a
will, but wills can be revoked, and wills only speak at the time of
death. The parents can go through a legal proceeding called a
“standby guardian,” but that only becomes effective when the
genetic or birth parent is incapacitated. The only other protection
for unmarried parents in North Carolina is the legal doctrine of<i> in
loco parentis </i>or<i> de facto parentage, </i>which means that a
person who has acted as a parent has standing to sue the genetic or
birth parent for custody. These are often highly-contested cases.
None of these options confers the full, permanent rights of
parenthood.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
For greater protection, parents may
choose to look outside of North Carolina. While North Carolina’s
case law has prohibited same sex couples from adopting, other states
do allow same sex couples to adopt. These adoptions may be done as
full, second-parent adoptions or as step-parent adoptions. Also, states that have
adopted the Uniform Parentage Law may give couples a parentage
order, decreeing both parties to be parents of the child. However,
since step-parent adoptions and parentage orders are predicated upon
a couple’s relationship,
Amendment One may be construed to void them. A full, second-parent adoption may be preferable to a step-parent adoption or a
parentage order.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
Unmarried partners may also protect
their own relationship in several ways. The partners may enter into a living together agreement. Similar to a prenuptual agreement,
this agreement spells out in advance how the parties are to maintain
their finances, and how they are to divide property if there is a
split. Partners may own title to houses, cars, and other property as
joint tenants with right of survivorship. They may also name each
other as beneficiary in financial instruments such as individual
retirement accounts, mutual funds, or life insurance. They may name
each other in their wills, powers of attorney, and health care powers
of attorney. On the one hand, these protections are limited in
comparison to the rights of marriage, but on the other hand, they
have enjoyed long usage and their effectiveness is generally certain.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
Even employing all of these legal
protections is not a complete substitute for marriage, civil union,
or domestic partnership. For example, because of the federal Defense
of Marriage Act, same sex couples cannot avail themselves of the tax
benefits of married couples. For the same reason, same sex couples
cannot enjoy the spouse’s benefits conferred by government
programs. Some protection is better than none at all, however.</div>
<div style="margin-bottom: 0in;">
<br /></div>
<div style="margin-bottom: 0in;">
This article has only skimmed the
surface of a complicated area of law. This is an area of law that
changes quite frequently. It is also an area of law that depends a
great deal upon individual clients’ individual circumstances.
Therefore, this article is not intended to be, and should not be
taken as, legal advice, nor does it establish an attorney-client
relationship. For legal advice tailored to your specific
circumstances, please contact the Weidemann Law Firm, P.C., for a
confidential appointment.</div>Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-1394189839052495122012-01-23T14:41:00.000-05:002012-01-23T14:41:17.760-05:00Billie Jean and Child Support"She says I am the one, but the kid is not my son."<br /><br />-- Michael Jackson, "Billie Jean"<br /><br />Many times, in legal cases that involve children, a party finds it advantageous to dispute paternity. Sometimes the father wants to sing, like Michael Jackson, "The kid is not my son," especially when there is child support money to be paid. Other times, the mother wants to dispute fatherhood, such as when the supposed father wants custody or visitation. Depending upon the case, it may be difficult or impossible to raise the issue of paternity.<br /><br />In many ways, paternity should be an easier situation than the law makes it. The law on paternity mostly predates genetic testing, and it has not kept up with changing technology. Now it is so easy and so inexpensive to determine paternity accurately, the law should take more advantage of DNA testing. Last year, the General Assembly passed some amendments that made genetic testing easier; these amendments became effective on January 1.<br /><br />Prior to these amendments, it was not clear how to get DNA testing after the fact, or even if it were possible at all. Rule 60 of the Rules of Civil Procedure imposes strict requirements for overturning established orders, including paternity orders. Now, the General Assembly has created three motions: To set aside paternity, to set aside affidavit of parentage, and for relief from child support order. The motions are written to work together.<br /><br />With all of these new motions, the first step is to establish the necessity for the motion. Parties cannot file these motions at will. If the motion is not filed in good faith, the moving party could be charged with the other party's attorney fees. The moving party has to establish that the original order was obtained by fraud, duress, mutual mistake, or some other excusable neglect. It is uncertain how high the court will set this bar.<br /><br />After the moving party establishes a basis for one, the court can order DNA testing. Parties who do not cooperate in the genetic testing can be found in contempt. If DNA testing proves that the party is not the biological father, the court can (but does not have to) make the mother pay the cost of the test.<br /><br />The motion or claim for relief from child support only suspends pending child support payments under a few circumstances. If the recipient of the child support is the mother, then the child support payments are not suspended. If the recipient is a third party or the State, then the payments are suspended. For this reason, motions should be filed as soon as possible, to avoid child support arrearages accruing. <br /><br />The motion or claim for relief from child support order must be "filed within one year of the date the moving party knew or reasonably should have known that he was not the father of the child." The other two motions do not appear to have time limits on them. However, it would be best to file all of these motions as soon as possible, to avoid a possible common-law defense of laches.<br /><br />The General Assembly intentionally limited the effect of the new amendments. The amendments do not overturn the old legal presumption that a child born to a married woman is the child of the husband. A party cannot file a motion or claim for relief from child support order if he knew that he was not the father when he acknowledged paternity, adopted or legitimated the child, or prevent the biological father from exercising his rights. Nevertheless, it seems reasonable that many parties will avail themselves of this new motions.<br /><br />The bottom line question for many people will be, what happens to the money? Any child support due and payable as of the date of the motion is still due and payable, even if the moving party turns out not to be the father. Any child support paid to the State is gone. Only if the mother used fraud or duress in obtaining the original order can she be required to repay the already-paid child support.<br /><br />If you are involved in a case where paternity is an issue, give me a call.<br /><br />You can read <a href="http://www.ncleg.net/EnactedLegislation/SessionLaws/HTML/2011-2012/SL2011-328.html">SL2011-0328</a> on the General Assembly's web site.<br /><br /><br /><br /><br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-65583109687315152822012-01-02T12:08:00.000-05:002012-01-02T12:08:39.558-05:00Happy New Year's ResolutionsEvery year, as January 1 approaches, I get excited about the chance to start over, to start the new year with a clean slate, to make some changes. If you are like me, part of this process involves making a list of new year's resolutions. I would like to suggest that you add the following to your list of resolutions: <br />
<ul>
<li>A will. A will disposes of your property if you die. If you do not have a will, then your property will be distributed according to state law, which may not be in line with your wishes. A will also names your executor and gives your executor certain powers; this makes probating your estate much easier. If you have under-aged children, you can nominate a guardian for them. While every person should have a will, people with children especially should have a will.</li>
<li>A living will. This document states your wishes about being kept alive on life support. If you do not want to be kept alive on life support indefinitely, then you should have this document. If you do not, then your doctors will feel obligated to do everything possible to prolong your life.</li>
<li>A power of attorney. A power of attorney gives someone the power to act on your behalf when you cannot do it yourself. If you were in a catastrophic accident and were facing months in the hospital, who would deposit your checks, pay your bills, and otherwise handle your financial affairs? If you had a power of attorney, it would be your attorney-in-fact. Without a power of attorney, someone would have to petition the court to have you declared incompetent and have a guardian appointed for you. I have been involved in family fights over who gets to be the guardian -- these fights began before I became a practicing attorney, and I suspect that they will continue long after I retire. A power of attorney would prevent these conflicts in most cases.</li>
<li>A healthcare power of attorney. Like your power of attorney, your healthcare power of attorney gives another person the power to act on your behalf when you cannot. In the case of the healthcare power of attorney, you are delegating the power to make medical decisions, but only if you are not able to make or communicate those decisions. Without a clear healthcare power of attorney, hospitals have a difficult time figuring out whom to talk to when they cannot talk to you. Your "next of kin" (however they decide to define that) may be elderly, or out of state, or estranged. In non-traditional families, your significant other may be shut out of the hospital entirely. </li>
</ul>
The new year is an excellent occasion to get these documents done. If you already have them, the new year is also a good time to have them reviewed for changes. Please do not download a program or a kit and try to do it yourself. The form may not be the correct one for the state you live in, or it may be outdated. I was involved in a situation some years back in which we had to go through a guardianship proceeding, even though the clients had done a power of attorney on their own, because they used the wrong form and the power of attorney was not valid. Considering the risks at stake, and considering how reasonably these documents can be done in an attorney's office, there is just no reason not to have an attorney take care of these for you.<br />
<br />
I would like to make it even easier for you to make -- and keep -- this new year's resolution. If you make an appointment for the month of January to see me about your estate plan, I will take one hundred dollars off my normal fee. Go ahead and make that appointment today!Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-70302184824529457552011-11-30T17:45:00.001-05:002011-11-30T17:48:44.910-05:00Professor Accused of Viewing Child Pornography on Flight<br />
This news story would make one of those dumb criminals lists if it were not so awful:<br />
<blockquote class="tr_bq">
A University of Utah professor pleaded not guilty today in an East Boston courtroom to charges that he viewed child pornography on his laptop while flying from Salt Lake City to Boston.</blockquote>
What could account for this professor's behavior? Stupidity? Compulsiveness? Arrogance? An unconscious desire to get caught?<br />
<br />
However, this is the part of the article that caught my attention:<br />
<blockquote class="tr_bq">
Prosecutor Erik Bennett said that a passenger seated behind Smith’s first-class seat on the Delta flight on Saturday took a picture of what Smith was doing and sent a text message to his son with the picture, asking him to contact Massachusetts police.</blockquote>
Given how broadly child pornography laws are written, it seems that the passenger and his son probably broke the law. Crazy, isn't it? By looking at the professor's laptop, the passenger is guilty of viewing child pornography. Since he took a picture of the picture on the laptop, he is also guilty of producing child pornography. Since he sent it to his son, he is also guilty of disseminating child pornography. The son likewise is guilty of receiving -- and viewing -- child pornography. Crazy.<br />
<br />
Obviously, the Boston police have no intention of arresting these good Samaritans. But, how many people may find themselves in a similar situation, and they do not get involved because they do not want the authorities to falsely accuse them of somehow being involved in the crime? In this way, poorly written laws fail to protect children because the laws scare away people who might come forward and report crimes against children.<br />
<br />
The abuse of children is a terrible evil. However, laws meant to protect children are often haphazardly written. Consequently, the laws often do a very poor job of protecting children. Perhaps one good thing that can come out of the recent attention on child sexual abuse is that we will give these laws a thorough going-over with an eye toward improving them. Such a review is already under way in Pennsylvania, where legislators are looking at improving the child abuse reporting law.<br />
<br />
See the original article here:<br />
<br />
<a href="http://www.boston.com/Boston/metrodesk/2011/11/university-utah-professor-due-east-boston-court-face-child-porn-charges/83M6ssM6eLLfcwr2Ng44AN/index.html">http://www.boston.com/Boston/metrodesk/2011/11/university-utah-professor-due-east-boston-court-face-child-porn-charges/83M6ssM6eLLfcwr2Ng44AN/index.html</a><br />
<br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-27506385073551561042011-09-19T12:12:00.000-04:002011-09-19T12:12:34.288-04:00Does a Bad Economy Cause Child Abuse?As many of you know, I represent parents against allegations of abuse, neglect, and dependency. These cases arise when the Department of Social Services seeks to take children from their parents.<br /><br />Some of the most heart-breaking cases that I get are "shaken baby" cases. This vivid term is something of a misnomer. It actually involves any physical injury to a child, especially a child too young to communicate. Sometimes these injuries result in death, and sometimes they result in permanent disfigurement.<br /><br />Yet, these cases are disturbing to me for a number of other reasons.<br /><br />First, health care providers and police now seem predisposed to see any injury as evidence of a criminal act. A child is injured, therefore someone must have intentionally caused the injury. There is a medical definition for non-accidental injury, but it is ambiguous enough to fit whatever conclusion the doctor is predisposed to reach. For instance, I used to think that a "cluster of injuries" meant two or more injuries, of the same kind, in different places or in different different stages of healing. Now it seems that doctors can describe any two injuries as a cluster. Sometimes it seems to me as if there is no such thing as an accident any more.<br /><br />Second, investigators use what seem to me to be questionable methods to build their criminal case. Often, they will sidestep their legal duties and get the social worker to ask their questions for them. They will try to get the parent to state that no one else has been with the child for a certain period of time. That makes the investigator's job easier because it narrows down the possible suspects, hopefully to only one. Then no further investigation or evidence is required: The police have a hurt baby, a doctor who says it is abuse, and only one person who had custody of the child.<br /><br />Third, these cases generally move on two tracks with conflicting goals. In criminal court, the police and district attorney try to punish the perpetrator. In civil court, the Department of Social Services tries to take custody of the child away from the parents. In every case in which I have been involved, this two-track phenomenon has caused a mess. The civil case drags on because we want to see what happens in the criminal case. The parents cannot make progress on their case plan because their attorneys have warned them not to make incriminating statements. If the goal of civil court is to reunite children with their families when that can be done safely, then the intervention of criminal authorities is unhelpful, to say the least.<br /><br />This article from the Winston-Salem Journal suggests that there may be an increase in child abuse, and that increase may be tied to the stress of a bad economy. I am not inclined to agree. I think that an increase in child abuse cases being reported comes largely from doctors being more vigilant and reporting more cases to the authorities. Also, my experience is that child abuse comes not from economic status but from ignorance. Inexperienced parents do not know what to do with a crying baby, and then they get frustrated, and then they do the unthinkable. Rather than blaming the economy and shrugging the problem off, we could be teaching young people how to be good parents and preventing the problem in the first place.<br /><br /><a href="http://www2.journalnow.com/news/2011/sep/19/wsnat02-new-look-at-child-abuse-ar-1406178/">http://www2.journalnow.com/news/2011/sep/19/wsnat02-new-look-at-child-abuse-ar-1406178/</a><br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-7084915882418350702011-08-12T14:56:00.000-04:002011-08-12T14:56:15.415-04:00Legal Aid of North Carolina Closing Boone OfficeWhen I was a law student, I worked two summers for legal aid. At that time (was it really over fifteen years ago?), the legal aid office in Winston-Salem was in a rickety office building on Fourth Street. The top floor wasn't used because the roof leaked. The elevator hadn't worked in years. I loved it.<br /><br />I felt that I was doing real lawyering. I learned to interview clients, prepare lawsuits, everything but appearing in court. The people I worked with were committed to helping ordinary people and gracious about teaching the basics to an inexperienced law student. You don't work at legal aid to get rich, and they were there because they loved what they were doing and saw it as a calling. I hope that my experience there and then helped me to become a better lawyer.<br /><br />Years later, legal aid sold that old office building. Coincidentally, legal aid's office is now in the same building as my office, on the same floor. Now, in addition to representing people in the traditional attorney-client relationship, legal aid gives free classes on representing yourself in some kinds of cases. And, legal aid still mentors bright young law students through a domestic violence clinic. <br /><br />North Carolina, like many states, is struggling through this economy. Over 3.2 million North Carolinians meet the definition of poverty that legal aid uses. That's 35% of the population. Without legal aid, those millions of people would have no legal representation.<br /><br />As a lawyer, I believe that one of the things that defines civilized society, and differentiates us from lawless anarchy, is that we have a court system for the redress of wrongs. That system doesn't work if a whole segment of our society can't get access to it. <br /><br />Legal aid has been unpopular in DC and Raleigh for decades. So I should not have been surprised to read that legal aid's funding has been cut again in the latest round of budgets, and 30 people are being laid off across North Carolina. I've been told that is about ten percent of the work force. Western North Carolina seems to have taken the brunt of the layoffs. Boone's whole office is closing. <br /><br />Something can be done, however. Please consider donating to your local legal aid's Access to Justice Campaign. Here is North Carolina's: <a href="http://www.legalaidnc.org/public/give/access_to_justice/">http://www.legalaidnc.org/public/give/access_to_justice/</a><br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-20892234465439637142011-07-14T14:54:00.000-04:002011-07-14T14:54:22.500-04:00JAMA Proposes Taking Obese Children from ParentsAccording to David Ludwig in the <i>Journal of the American Medical Association, </i>states should take obese children from their parents and put the children in foster care.<br /><br />After all, obesity can increase the risk of many diseases. Obese children may develop life-threatening conditions later in life. Therefore, allowing a child to be overweight is a kind of child abuse, and the state must step in to protect the child.<br /><br />However, it is impossible to single parents out when a child is overweight. Many factors contribute to a child's weight. As University of Pennsylvania bioethicist Art Caplan notes, "obese children are victims of advertising, marketing, peer pressure and bullying, things a parent can't control." Yanking children out of their homes does not address those other factors.<br /><br />States are already struggling to provide basic services. Child abuse cases can go on for a year or more, and every case will require bailiffs, clerks, judges, attorneys, and social workers. Every child will require a state-subsidized foster home, which are already in short supply. If the state gets its hands on the two million overweight children in America, the entire system will collapse under the added case load. <br /><br />This proposal is an unprecedented expansion of the state's intrusion into parenting. Foster care should be a last resort when it is truly necessary to safe a child from imminent harm. If letting a child gain weight is to be considered child abuse, then there is no end in sight. Not brushing, not flossing, staying up too late at night? Here comes the state, which knows better and has to protect your children from you.<br /><br />States can and should step in when a parent's actions directly endanger a child. However, states can not and should not interfere with parenting on the tenuous basis that a parent maybe is not doing enough to prevent a condition that may increase the risk of health problems years in the future. As with most well-intentioned but poorly-thought-out proposals, the consequences are worse than the supposed cure. <br /><br />North Carolina's statute on child abuse is here: <a href="http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-101.html">http://www.ncga.state.nc.us/EnactedLegislation/Statutes/HTML/BySection/Chapter_7B/GS_7B-101.html</a><br /><br />The Winston-Salem Journal article on David Ludwig's proposal is here: <a href="http://www2.journalnow.com/news/2011/jul/13/wsnat01-obesity-triggers-custody-debate-ar-1202197/">http://www2.journalnow.com/news/2011/jul/13/wsnat01-obesity-triggers-custody-debate-ar-1202197/</a><br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-87206867299498128992011-07-05T11:47:00.001-04:002011-07-05T11:48:37.312-04:00New York Passes Marriage Equality BillRecently, New York became one of a growing number of states to recognize same-sex marriages through legislation.<br />
<br />
The New York statute refers to "marriage" rather than "civil unions." This terminology is important for more than just symbolic reasons. A married couple automatically gets the rights (and responsibilities) of marriage, while the legislature has to pick and choose what goes into a civil union. Despite New York's move, however, uncertainties and difficulties remain for some same-sex couples.<br />
<br />
The New York statute contains an exception for religious institutions. Certainly, the exception means that religious officiants will not be required to perform same-sex marriages if their religious tenets prohibit it. Such an exception seems reasonable, if not possibly required by the First Amendment. However, the exception also appears to immunize religious institutions and charities from discrimination lawsuits if they discriminate against same-sex married couples in public accommodations. In other words, the courthouse doors may be closed to same-sex married couples in discrimination cases where they would be open to different-sex married couples. Such an exception would seem to be an extraordinary setback for same-sex couples. Time will tell how far-reaching this language actually extends.<br />
<br />
Many states have a residency requirement to obtain a marriage license. New York does not. However, out-of-state couples may not want to go to New York to get married. Problems may arise when they return to their home state.<br />
<br />
A same-sex couple married by the State of New York may find it of limited benefit to them in their home state. Many states have passed "Defense of Marriage Acts" or similar constitutional amendments. These acts and amendments generally prohibit same-sex marriage in the state, refuse to give full faith and credit to out-of-state same-sex marriages, and deny same-sex couples any "marriage-like" benefits. In such states, the New York marriage may be only symbolic.<br />
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A more complicated problem can occur if the same-sex couple splits up. The DOMA state often denies the couple the right to divorce, calling that a benefit of marriage. New York may not have jurisdiction to dissolve the marriage, either because the couple never resided there or because the couple moved away. In this all-too-common situation, the couple is stuck remaining married because they cannot get a divorce anywhere.<br />
<br />
President Barack Obama has said that same-sex marriage should be an issue for states to decide. However, the situation is not that convenient. The federal government has to decide the marriage question in many of its own circumstances: immigration, survivor benefits, and income tax filing, to name a few examples. Currently, the federal DOMA denies married same-sex couples access to those federal incidents of marriage.<br />
<br />
Despite these limitations, New York's decision to recognize same-sex couples' right to marriage is significant. The full text of the original bill is available <a href="http://www.governor.ny.gov/assets/marriageequalitybill.pdf">here.</a>Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0tag:blogger.com,1999:blog-2414042762160652268.post-3537734848054894542011-06-26T12:03:00.000-04:002011-06-26T12:03:46.352-04:00"Tort Reform" is Unnecesary and Harmful"Tort reform" is a buzz word that has been circulating around North Carolina and the rest of the country for several years.<br /><br />"Tort reform" laws set arbitrary caps on the amount of money that injured parties can recover from negligent parties. Many times, these caps are far below the injured parties' projected future medical expenses, much less past medical expenses, lost wages, other out-of-pocket expenses, and pain, suffering, and inconvenience. Large companies love these caps because it limits how much they have to pay for hurting innocent people. In this way, "tort reform" advocates want to protect wrong-doers from having to pay the full price of their wrongs.<br /><br />Sometimes, people who do not work in the legal system hear about large jury verdicts, and it outrages them. However, they may not know the whole story. First, large jury verdicts are the exception, not the rule. Second, jury verdicts must be based upon the injured person's actual damages. Large jury verdicts, when they do occur, are not a windfall: They are a reflection of how badly the negligent party hurt the innocent party.<br /><br />Some people do not deserve to be compensated. The law already takes care of those people. Plaintiffs must prove that they were actually injured by the defendants' negligence. Defendants are free to try to prove at trial that they were not negligent, or that the plaintiff was not actually damaged. Under the rules of "contributory negligence" and "comparative negligence," defendants are free to try to prove at trial that the plaintiff was the truly negligent party. These are a few examples of the mechanisms that the law already has in place to prevent plaintiffs' unjust enrichment. The law's existing mechanisms are more reasonable than "tort reform's" arbitrary caps.<br /><br />Ultimately, arbitrary caps on damages hurt the American taxpayers. When injured people cannot recover all of their damages from negligent parties, the compensation that they do recover runs out before the cost of their injuries do. Then, they are forced to go on public assistance. Negligent parties go free while ordinary taxpayers pick up the tab.<br /><br />"Tort reform" protects wrong-doers and screws injured people and taxpayers. It claims to address problems with the legal system that are best solved by existing mechanisms. It is unnecessary, and, more than being simply unnecessary, it is harmful.<br /><br />HBO is airing a new documentary on "tort reform," called "Hot Coffee." "Hot Coffee's" <a href="http://hotcoffeethemovie.com/">web site</a> has more information.<br />Bradley J. Weidemannhttp://www.blogger.com/profile/14433507225417322800noreply@blogger.com0