Know your legal rights

A LEGAL firm is warning unmarried couples in the borough to make a will - or they may lose out.

More than half of unmarried couples wrongly believe their assets are protected by the law and between half and two-thirds of adults have not made a will.

Under the Inheritance (Provision for Family and Dependants) Act 1975 if you are a couple who has lived together for two years or more and one of you dies without making a will, then spouses, children, civil partners and cohabitees are entitled to make an application for 'reasonable financial provision' in court. Similarly if you are married without a will you will not automatically inherit your partner's estate - this only happens if a couple hold their assets in joint names.

Howard Burns, wills and probate partner at Lewis Hymanson Small, in Manchester, said: "Until the law changes and unmarried couples have the same rights as married ones they have a moral obligation to their family and their security to draw up a will.

"This will stop any unnecessary litigation and disputes. Be prepared for the future especially if you have children and own property."

For mote information on these matters, please call our office at 305 548 5020.

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About Background Contact Us Maps Videos Facebook, Privacy, and Family Litigation: A Few More Points to Know

By familyllb 

In several recent articles I have discussed the increasingly-important role that Facebook (and other social networking sites) can potentially play in family litigation.  Although I have discussed its use in several different contexts, one of the primary uses – or misuses – of Facebook information occurs where one party uses photos and information found on another party's profile to undermine his or her legal position in a family dispute.

In this context, the existence of Facebook has given rise to several evidentiary issues, including the question of whether and to what extent opposing sides of a litigation dispute can demand access to Facebook information as part of the normal discovery procedure.  

This has arisen recently in a few insurance cases, both from Ontario and other provinces.  (And the evidentiary legal principles derived from those cases have equal applicability to family law matters).    The cases each involved plaintiffs who had been victims of motor vehicle accidents, and had sustained injuries which affected their quality of life and their ability to engage in physical activity.   They were suing their insurers for their damages.  
In each case, the courts had to consider the right of the insurer to have access to the plaintiffs' Facebook photos, and the evidentiary value of that information.  

In one case called Leduc v. Roman, the plaintiff had posted potentially-relevant photos of himself in the private portion of his Facebook profile only (i.e. the part visible only to his "friends" to whom he had deliberately granted access).   The question was whether the court should grant the insurer access to these.   It held that an individual user's Facebook "privacy settings" were irrelevant to the court's ability to order the information and photos produced.   The mere fact that the plaintiff was willing to "share" his photos and other personal information with the public via a social networking website – even if only to a limited pool of "friends" – meant that it was reasonable for the court to conclude that there would be relevant information on the quality of life that the plaintiff was enjoying post-accident.

In Sparks v. Dube the question was whether a court could make a preservation order to pre-empt the removal of Facebook evidence.  There the plaintiff – despite claiming that her range of physical activity was limited due to the car collision – had posted post-accident photos on Facebook showing her engaged in various adventure activities such as "ziplining".   The insurer had discovered the photos and was concerned that the plaintiff would remove them prior to trial.  (Indeed, this precise thing had happened in another case called Kourtesis v. Joris:  before the court could make an order granting the insurer access to the incriminating photos, the plaintiff had taken them down from Facebook, and they could not be recovered.  They were therefore lost as evidence.)  The court crafted a solution which essentially involved interjecting an impartial third-party lawyer to carry out the necessary tasks:   it ordered that the lawyer representing the injured plaintiff should himself get an independent lawyer who would serve the plaintiff with the order to download all her private and public Facebook materials; moreover the plaintiff was specifically disentitled from receiving any advance notice of the order that would be served on her.

Finally, the issue of the precise scope of such a preservation order came up in the decision inSchuster v. Royal & Sun Alliance.   There, the insurer had asked the court for an injunction – without giving the plaintiff/accident victim any notice whatsoever– which would not only ensure that the Facebook evidence was preserved, but which would also force the plaintiff to hand over her Facebook username and password, thus giving the insurer full access to both the public and private portions of her profile.   The court refused to go so far on an injunction-without-notice basis, since it would allow the insurer to go on a "fishing expedition".  Instead it ordered the plaintiff to simply give the insurer a list of the documents/information that could be found on her profile.  The relevancy of each would be determined by the court at a later date.   (This principle was followed in another recent Ontario case called Re McDonnell.)

Collectively, these cases give rise to several important points for family law litigants:

• Any information on Facebook or other social networking websites is potentially vulnerable to being produced in a court action.     This includes photographs, commentary and videos.

• The location of the information – i.e. public or private profile – is irrelevant.  It is all subject to being ordered produced by a court, if it is potentially relevant to the litigation.

• A court may potentially make such a preservation order without giving the other party any notice; this serves to prevent the removal of incriminating, embarrassing or inappropriate information before the court order can be carried out.

• However, this does not mean that party with the order will be handed the other party's username and password, and given carte blanche access to his or her Facebook profile; rather, the legal relevance for litigation purposes of the information contained on it will still have to be examined, just like in any other trial.

For more information on these matters, please call our office at 305 548 5020. 

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Women And Divorce: Become The C.E.O. of Your Life (Confident, Empowered, Optimistic)

By Jennifer Calandra

I am often annoyed at the articles and interviews that position women in a very ugly light when it comes to money. We are often depicted as dumb, flighty, air-headed and out of control. If you were to Google search books about women and money, there are numerous ones in the marketplace to "help us" get a grip on what we need to do in our financial life. Some of them are very helpful, some are not. But, on the flip side of things, if you search for books about men and money, the results are dismal. The reality is that men are viewed as having it all together, women are not.

Why is that? Women have allowed themselves, to a certain extent, to be kept in the dark about their household finances. A recent survey indicated that 65% of men make all of the financial decisions in their home without any input from their spouse. Time and time again I see the impact this has on a woman. I have sat down with many distraught women who seek out my guidance after going through a divorce or when they suffer the loss of their spouse. I have had to teach them how to write a check, balance their checkbook, pay a utility bill -- simply because their husbands handled it all. Why do we allow ourselves to become so dependent on a man? We are the caregivers, the nurturers, the listeners, but we are also the ones that allow ourselves to lose our independence. Why is that? I still try to understand that myself.

One of the hardest and most financially devastating experiences to go through in life is divorce. You enter into a marriage never looking for the exit door, but sometimes it just happens. The unfortunate reality is that one out of two marriages will end in divorce. If you are newly divorced, there are specific items that need to be addressed as soon as possible.

1. Get Your Documents Organized: Make sure you have several copies of your Final Judgment or Decree and/or Marital Settlement Agreement. These may be needed if you are transferring any property, separating debt, etc. Also, make a list of your team of consultants -- CPA, Stock Broker, Banker, etc. Notify them of the divorce and make appointments to bring them up to speed and determine how your new status is going to affect things.

2. Work with a Financial Professional: This is a key step if you are new to handling your finances. Sit down with an advisor and get an overall picture of where you are now as the new financial head of household. Review your divorce decree pertaining to your investments, ownership and custodial responsibility of your children's accounts (if applicable), and take a full Personal Financial Inventory of all of your investments.

3. Settle Accounts: If you have joint checking/savings accounts, make sure to close or distribute all joint assets according to the decree. You want to make sure your ex-spouse is removed from your signature card, safety deposit box, etc. at your bank and that all credit/debit cards are returned or disposed of properly.

4. Retitle Assets: According to your decree/settlement, properly retitle assets such as cars, motorcycles, boats, homes, etc. as soon as possible.

5. Change Your Beneficiary: One of the most commonly "overlooked" mistakes is to not change your beneficiary. Review your life insurance policies, retirement accounts, annuities, etc. to make the necessary updates to your beneficiary. You want to make sure your wealth transfers to the right hands, not the wrong ones!

6. Consider Your Retirement: Pay close attention to retirement assets. Roll over or transfer retirement assets according to your divorce decree and/or QDRO (Qualified Domestic Relations Order). Make sure to review all of your retirement accounts, including pensions and employer-sponsored plans.

6. Update Your Will: If you have a will, update it. If you don't, establish one! You are now the new captain of your financial ship. Establish a new power of attorney, health care and financial directive and if you have children , you may consider establishing a trust for their benefit.

7. Consider Insurance: Most people cringe at the word insurance. It is better to have and not need than need and not have. Review with your financial professional and consider adding life and/or long term care insurance to your financial house. Now that you are on your own, putting the necessary investments in place in case of sickness or death just might be the right thing to do.

8. Review Your Benefits: Contact the Social Security Administration to check your eligibility if you are 62 or older and were married for longer than 10 years. If you spouse was a veteran, contact the VA to see if there are any benefits available to you.

9. Review Your Health Coverage: If your divorce decree establishes that you will continue coverage under your spouse's employer, make sure to contact the company and request current information about the type of plan and what is covered. Also update them to your new address if you have relocated and make it a point to stay in touch every few months. This will keep you in the loop if your ex-spouse has made any changes to the plan. If you need to establish your own health care coverage, shop around and compare companies and quotes.

10. Design a New Plan: Design a plan that meets your new life. If you are not used to being responsible for the bills, devise a budget and stick to it. Do not allow yourself to get overwhelmed. Stay involved and encouraged. You need to be financially responsible in your new life. Don't feel ashamed to ask questions and listen to advice, from a qualified financial professional.

Even though you may feel like you are living in a fog , the smoke does clear. You can recover from a divorce, sometimes better than you ever were before. I am speaking from personal experience. Stay in control, even if love does find you again.

For more information on these matters, please call our office at 305 548 5020.

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DIY Wills Don't: Do It Yourself Wills Not Always a Good Idea

By Ameer Shaikh 

Americans are the masters of do-it-yourself. It's why places like Home Depot and IKEA exist. Heck, even the first airplane flight was a DIY project for the Wright brothers.

And in the legal arena, Americans do a lot of things on a DIY basis. This includes real estate, fighting traffic violations, small claims court, sometimes divorces, and even going starting the administrative process of filing employment discrimination complaints. And, of course, people write their own wills all the time.

However, perhaps that DIY attitude should be checked a little when it comes to disposing of your estate.

The greatest problem with a do-it-yourself-will is that the creator won't be fully aware of potential problems until it is too late, notes FindLaw's KnowledgeBase. Unlike in other legal actions, with a will you're not going to be around to fix misunderstandings, so you really should be a hundred percent confident about what you're doing.

A number of the more complex problems in a do-it-yourself-will include the following:

A will has to be completely unambiguous. Ambiguity is diminished through clear and concise use of language of the sort that lawyers are trained to write.

The provisions of a will depending on changing regulations and laws. For example, the estate tax rate keeps changing from one period to another. Keeping up with this may be difficult for an average person.

Assets and estates change in value because of the economy and other valuations issues.

To be valid and enforceable, a will has to comply with numerous formalities enshrined in the laws of a particular state. Property law is the culmination of hundreds of years of disputes and arguments worked out in the state's case law. It can become difficult tracking every case down.

And the best part of all, in New York, a will execution that is supervised by an attorney is considered to be done according to the formalities of the law. So using a lawyer provides a kind of automatic stamp-of-approval.

Do-it-yourself-will problems can create hurdles for even the most grizzled, street-smart people. If you're going to do it yourself, check the resources at FindLaw. But, otherwise, please speak to an attorney.

For more information on these matters, please call our office at 305 548 5020. 

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Carefully Structure Family Loans To Avoid Unintended Consequences

Family loans could be effective in many situations, but families have to be sure to consider tax and relationship implications. The main consideration is to be sure to structure and document the loans properly. If you don't, then you could end up with unintended gift and income taxes. If you don't have a high enough interest rate on the loan, then the IRS views the "forgiven interest" as a gift and that will eat into your annual gift tax exclusion and possibly your lifetime exclusion.

Proper structure and documentation involves several steps. Below are several of the steps that The Street mentions:

• Properly record with the right governmental authority
• A promissory or mortgage note should have an interest rate equal or greater than AFR. It should also spell out terms and payment dates.
• If you properly record and document a mortgage, then you can list the interest as income on Schedule B of your return and deduct mortgage interest expense.

Other things you want to consider include whether the borrower will pay you back, whether you will start a precedent that will lead to other family members asking for loans, and how the family relationship is.  

For more information on these matters please call our office at 305 548 5020.

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In support of the state Supreme Court’s unpublished citation rule

BY: GREGG HERMAN

In support of the state Supreme Court's unpublished citation rule

A recent Wisconsin Law Journal article questioned the necessity of the Wisconsin Supreme Court rule allowing citation of certain unpublished cases.

The article quoted various lawyers who said the rule is rarely invoked, leaving the impression it is not worthwhile. The article states unpublished cases are rarely cited due to "limitations on eligible cases, cost to clients and need."

In adopting the rule, the Supreme Court made two substantial limitations on the use of citing unpublished cases. First, it only applies to signed opinions, not per curium ones. Second, it only applies to decisions filed after July 1, 2009.

So, no surprise that, so far, the rule has been rarely used.

As a result, the questions we should be asking are: first, has this rule caused any problems? And second, has it substantially changed the practice of law?

The answer to both questions is "no."

At several conferences, including a judicial one, I've asked lawyers and judges how many unpublished, but citable, cases they have either cited or seen cited. In all instances, the answers were few, if any.

Personally, I have not seen a single appellate case where either the Court of Appeals or the Supreme Court has availed itself of this rule.

Clearly the rule has not revolutionized the practice of law. But, then again, it was never contemplated that numerous citations to unpublished cases would be forthcoming. After all, if these cases were all that important, they would be (or should be) published.

Rather, the rule is intended for the few unpublished cases that would, on occasion, provide some guidance to lawyers and trial courts.

While the new rule has not substantially changed the practice of law, there have been no reports of the rule creating any problems. The fears of lawyers or courts getting blindsided or inundated by obscure unpublished cases has simply not materialized.

Similarly, it has not greatly increased the workload of lawyers or courts. In 2011, there were nine unpublished family law cases which are citeable under this rule. That is approximately one case every six weeks. It is hardly a great burden for lawyers and judges to read that many cases.

So why is the rule a good idea? It prevents an absurdity in the law with no adverse consequences.

The absurdity is best illustrated by trying to explain to a client that the appellate court has ruled on a similar issue in a different case, but you cannot remind the court of its decision. It's a secret.

It's even more absurd when you realize that you can cite a circuit court opinion, but not an appellate court opinion.

The rule, once it has been in effect for a sufficient time, will likely result in a more efficient legal system. If lawyers and trial courts know how an issue is likely to be decided by the Court of Appeals, it will lead to settlement as no lawyer wants to engage in a kamikaze mission.

It is premature to give examples of this efficiency in action since the limitations on use of this rule will result in some time needed for its use.

In the short term, however, the rule is doing no harm. In my opinion, future benefits with no adverse consequences are not bad results.

For more information on these matters please, call our office at 305-548-5020.

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Fertility Laws Unclear in Canada

By  CBC News 

Fertility Laws Unclear in Canada

A lack of government regulation overseeing reproductive technology is failing to protect prospective parents and their would-be kids, lawyers and infertility support groups claim — one year after a landmark Federal Court ruling on the private industry.

Uncertainty about rules on matters such as the collection of donor information, the number of embryos that can be implanted, and compensation for donors and surrogates were expected to be settled following the December 2010 Supreme Court of Canada decision.

But little about the fertility laws has been made clear since then, said Diane Allen, who used assisted reproductive technology 27 years ago to conceive her son, Chris.

For more information on these matters please, call our office at 305-548-5020.

--
Sincerely,

Tatiana, Restrepo, Front Office Manager
From the Law Office of Yoel Molina, P. A.
Office: 305-548-5020
782 NW 42nd Ave, Suite 343, Miami, Fl. 33126 in the "Ocean Bank" Building


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I kept my word and finally made a will

By Paul Farrow 

I kept my word and finally made a will

My New Year's Day family meal went without a hitch this year. There was no medium-rare topside for me to choke half to death on, just a tender boeuf bourguignon that even Jude, my three-year-old son, was able to munch on.

It is 12 months since I confessed that I hadn't got around to writing a will, despite my numerous articles on the importance of having one.

But two events a year ago prompted a New Year resolution to get a will. The first was having my sister and father perform the Heimlich manoeuvre on me as I choked alarmingly on a piece of beef. Later that same day I tuned into The Archers, to hear super-posh Nigel Pargetter plunge to his death, leaving his wife, Elizabeth, a widow and his twin sons fatherless.

I have always been reluctant to think about death, getting older and making a will. I am not alone – recent research from Brewin Dolphin, the private client investment manager, found that 63pc of people did not have a will. Those surveyed blamed a lack of time, being too young or not having enough money.

It is understandable why talk about the future is often put on the back burner. Talk of wills, inheritance tax and estate planning seems far removed from your day-to-day life. Besides, there is already enough doom and gloom around for us to bear.

For more information on these matters please, call our office at 305-548-5020.

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Indian family law key to emotional custody battle

By CNN

Indian family law key to emotional custody battle

For the prototypal some moments of her life, Veronica was with her relation mother.

For the incoming digit years, she was with her foster parents.

And for the terminal week, the bambino has been with her natural father, over 1,000 miles absent from the exclusive bag she'd ever known.

It's been a long, complicated travelling for teen Veronica — digit prefabricated doable by a federal accumulation meant "to protect the prizewinning interests of Amerindic children" that, in the process, has tugged at the heartstrings of every involved.

The news began in 2009, when Veronica's natural care and father, Dusten Brown, subscribed a jural writing agreeing to place the woman up for adoption. Brown's attorney, technologist Jones, says that her computer subscribed the relinquishment but didn't quite see it.

Soon after the woman was born, emancipationist — a U.S. Army shirker — headlike soured on a 1-year deployment. It was then that the female touched on as well, to the Charleston, South Carolina, bag of Matt and Melanie Capobianco.

It was an unstoppered adoption, kinsfolk someone Jessica Munday said. That meant the girl's relation care could and did reassert a relation with the girl.

But Brown, the natural father, wasn't on board. Four months after Veronica's birth, he began jural transactions hunt safekeeping of her.

"My computer has been conflict for safekeeping of his woman since presently after her birth," technologist Jones, Brown's Charleston-based lawyer, said by e-mail. "He loves this female with every his heart."

Brown appeared to get that effort New terminal year. On New Year's Eve, he arrived in South Carolina, picked up Veronica from her foster parents, and headlike westerly to his bag in Oklahoma.

"It's awful," Matt Capobianco said life after to CNN affiliate WCIV. "Everyone keeps locution how intense they see for us. But, I mean, she's a 2-year-old woman that got shoved in a pushcart and unvoluntary to Oklahoma — with strangers."

Key to Brown's housing is a 1978 federal accumulation titled the Amerindic Child Welfare Act.

Its intend is to "promote the unchangeability and section of Amerindic tribes and Amerindic families by the organisation of peak federal standards to preclude the capricious remotion of Amerindic children from their families and tribes and to secure that measures which preclude the change of Amerindic families are followed in female safekeeping proceedings."

Brown is registered in the Iroquois Nation, a "federally-recognized government" of Indians that has "inherent ruler status," supported nearby Tahlequah, Oklahoma. That effectuation teen Veronica has Amerindic blood, as well.

Chrissi doc Nimmo, supporter professional generalized for the Iroquois Nation, says that the protections inexplicit in the Child Welfare Act are country and important. Applied as she sees it, emancipationist — as an Amerindic and the natural ascendant of Veronica — is entitled to safekeeping of the girl.

"There's a positioning preference. If children are distant by the land or if they're settled in clannish adoption, the prototypal alternative is for a kinsfolk member," Nimmo told CNN affiliate KOTV.

Others disagree. CNN jural shrink Avery Freedman, for one, said the accumulation was utilised in this case.

"It's a wonderful accumulation which seeks to protect the state of … Native dweller families," she said. "But it cannot be utilised as a hit to defeat existing families."

Jones insists that emancipationist "would ease be entitled to safekeeping of his woman low South Carolina law."

"It is essential to see that the Amerindic Child Welfare Act was not utilised as a loophole in this action," the professional said.

Whatever the jural arguments, the emotions are ease raw. The Capobiancos hit uttered to Veronica erst since she left, on New Year's Day.

"She said, 'Hi Mommy! Hi Daddy! She measured rattling agog to center us. And she said, 'I fuck you!' numerous times," Melanie Capobianco told WCIV.

She additional that her economise change same he'd unsuccessful as a father, sending her soured with grouping she didn't undergo and not lettered what the lowercase woman staleness conceive of them and the full situation.

Melanie Capobianco said she is worried most what's next, and how Veronica is effort finished apiece period and night.

"We meet desire we could be there, if she was afraid," she said.

For more information on these matters please, call our office at 305-548-5020.

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More act on wills

TASMANIANS are contesting more wills than ever before as disinherited children and disgruntled spouses let the courts decide if they have been ripped off.

Estate industry insiders have noted a growing nationwide trend in the number of people willing to fight the perceived injustice of finding they had been left less than they believed they were entitled to.

An experienced estate planner told the Mercury yesterday many people had no idea how easy it was for family and spouses to contest a will.

"Under the legislation, family members or a spouse can make a claim for free and in most cases the person lodging the claim is successful," she said.

"People are more informed today than they have ever been and they're less willing to sit back and accept their lot if they feel they deserve more."

She said some people reacted very badly and her firm had been forced to hire security guards on occasion.

Those in the industry say it is essential to engage a professional estate planner when making a will if there is any possibility it could be contested and the person making the will has good reasons for disinheriting someone.

"The courts look at whether there is a moral obligation for the person who made the will to have provided for the person who's lodged the claim," the estate planner said.

"If there is, the court is likely to award them something but not necessarily what they're asking for."

A jump in house prices and the state of the economy in recent years, as well as an increase in family and marital breakdowns, are just some of the reasons put forward to explain the spike in disputes.

Hobart lawyer and Tasmanian Law Society spokesman Daniel Zeeman says if a claim is lodged the case goes to mediation first and most people come to an agreement in order to avoid a trial.

"Mediation makes the option of contesting a will more accessible," he said.

Mr Zeeman said children made up the most common category of claimants in Tasmania with many people regularly discovering their parents had disinherited them.

There were important factors to consider, he said, when making a will in circumstances where a child was not a beneficiary.

"If a client had a reason for disinheriting a child the advice is to write down exactly why you're doing it and be specific," he said.

"Look at the people in your life to whom you had a moral duty to provide for and treat them fairly."

For more informatio on these matters , please call our office at 305 548 5020.

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DOMESTIC VIOLENCE INCIDENT ENDS IN MURDER-SUICIDE

By  MSNBC

On behalf of Hanan M. Isaacs, P.C. posted in Domestic Violence on Sunday, January 1, 2012

During the holiday season, many individuals are anxious to see loved ones they have not been around for an entire year. A person's life can change drastically over that 365-day span: new homes, new cars and new relationships. But, what if some of those changes aren't for the better? Like most other states, New Jersey -- particularly the month of December -- is notorious for its increased amount of domestic violence. This escalation may stem from the financial and emotional stressors that many experience as the year comes to a close.

One such incident may have occurred earlier this month. According to preliminary information, a man was visiting his ex-wife when the violence escalated to a deadly level. Neighbors living near the Bayonne, New Jersey home heard an argument coming from within the house. While one of them was attempting to phone police to take care of the domestic dispute, shots were fired.

Law enforcement arrived and found three adults dead. A woman who had a gunshot wound was located outside of the home and was taken to Bayonne Medical Center to be treated. An infant had also been shot in the incident.

The shooter was among the dead. Authorities believe he shot himself after firing on the three individuals. Initially, the infant -- a boy between the age of 12 and 18 months -- was alive, despite being shot when emergency responders arrived. He was taken to a local hospital before he passed away.

The mayor of Bayonne would not readily discuss the relationship of the shooter to the victims. Two other children were in the house at the time of the incident, but were not hurt in any way. According to the mayor, both were traumatized by what had happened.

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