Archive for September, 2011

Watch what you put on Facebook!

Sunday, September 25th, 2011

We all know that you shouldn’t put things like your home address or phone number on facebook.  But a lot of people put things on Facebook that can really ‘come back to bite  you’.  Talking to a good friend in person or on the phone is one thing, but typing some things onto Facebook can cause very severe repercussions, especially if you are in some sort of legal situation.  Privacy settings get changed relatively often these days and you really don’t know who is reading what you post.

In fact, you should always assume that whatever you post is being seen by everyone, including your soon-to-be-ex or his/her attorney and the Guardian Ad Litem that has been assigned to help the court make a custody decision.  Posting derogatory remarks about your spouse often backfires and leads the decision-makers to think poorly about you and your ability to co-parent your children effectively.

Talking about a new boyfriend and what a great weekend you spent together with your kids will possibly send you back to court when your children’s father points out that there was a court order that did not allow you to have overnight visitors of the opposite sex when the children were present.

Talking about your adventures on the new horse at the stable where you ride will not show you in a good light when you are brought into court for failure to provide the child for visitation and your excuse was that you are in a high-risk pregnancy that does not allow you to drive for over an hour to bring your child to his other parent after you moved away to be in a different state with your new husband.

Stories and pictures of you skiing do not help when you are trying to get disability or workman’s comp because of a back injury.

Bragging about having a new wide-screen TV that ‘fell off the back of the truck’ just might show up as evidence in a criminal investigation.

A picture of you with someone might be used as evidence that you and the person knew each other even though you say you never met.

Pictures of you with your ‘friend’ might just show up in your divorce proceeding as evidence of an extra-marital affair.  Or pictures of you out drinking with your buds might just show up in your custody case.

And don’t forget that potential employers might be reading when you write that your job is soooo boring and the time and date stamp of the post shows that you post on Facebook a lot while you are supposedly working.  I especially like the posts that tell the world that you think your boss is a ___ (fill in the blank).

You might think I’m just making this stuff up, but I’m not.  These things are really happening.

Text messages and Facebook posts are showing up more often in legal actions and they can often derail your legal plans.

Just be careful of what you post.  Remember that what you post, or what comments you make, are not just being seen by your closest friends.  Your fiercest enemy might also be watching!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

3 day right to rescission

Monday, September 19th, 2011

I get calls from people who bought something (maybe a car from a ‘buy here – pay here’ lot) and they want to know if they can take it back because they are still within the first 3 days.  They always start the conversation with “‘There is a 3 day right to rescission, right?’

Well, maybe right.  But most often, WRONG.

First of all, a rescission is a way of voiding the contract.  It means that things would go back to the prior status as if the contract never happened.  Another way to think of this is that you are cancelling the contract.

There is a 3 day right to rescission when you refinance your home mortgage.  Of course, that also means that the funds are not released until the end of that 3 day period either.

You can also rescind the ‘refund anticipation’ loan from your tax preparer within one day.  Of course, you must either return the check uncashed or give the same amount in cash to payback the loan in full.

There are also some other types of right to rescission, but they are not really common in everyday life.

The big point is that when there is a right to rescission, it will be written into the contract.  That is only one of the reasons that it is very important for people to read contracts before signing.  You really need to know what is in that agreement!  Most of the time there will be a notice of a “Right to Cancel”, or “Cancellation”, or “Right to Rescind”.  As with other parts of the contract, if you don’t understand what something means, don’t sign the contract until it has been explained to you so that you do understand.

If you are talking to a salesperson and he says that you have a right to take the car back at no cost to you, ask him where that is written in the contract, just so you can read it yourself to be sure.  Or, you can just make it a point to wait a few days before you make any big purchase so you have time to consider whether you really want the item.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

What is a ‘Life Estate’?

Sunday, September 11th, 2011

I had a question this week from a potential client who knew that her brother was allowed to live in her deceased mother’s house until he died and then the house was supposed to be divided equally between the remaining sisters and brothers.  This arrangement is called a ‘life estate’, and it means that the brother has lawful possession as long as he is alive.  The other sisters and brothers are called ‘remaindermen’.

A more common example is when a parent (for our example we will say the mother) dies leaving a spouse and children.  The spouse later remarries and wants to make sure that his new wife will not need to move out of the family home if something should happen to him.  He grants a life estate to his new wife with the remainder of the ownership going to his children at her death.

This sounds like a simple way to handle things and you may wonder why it isn’t used more often.

One problem is that the life estate ends when the named person dies.  This means that if the named person is sick or in a nursing home, the remainder owners do not have the right to do anything with the property until the named person dies.

There is also the problem that a person with a ‘life estate’ can only give or sell what he owns.  That means that he can’t sell the house to anyone else, or make arrangements for someone else to live in the house either.  This has caused problems like the situation where an uncle had a life estate in the family home and put in his Will that the home should go to his favorite niece.  She thought it was hers, except that the uncle didn’t have ownership to give!  Once he died, the house belonged to the ‘remaindermen’.

In the case of the person who called our office, the brother had gotten married and the family wanted to know if his wife would inherit the house if the brother died.  (the answer is no…because once he died, his life estate ended).

Then, there is the problem of who is supposed to pay the bills for the house.  You may think that the person living in the house should be paying the bills.  But what if the house needs a new roof that is expected to last 30 years?  Should a 90 year old person with a life estate be required to put a new roof on the home, even though it is unlikely that he will be in the home long enough to use it all?

A Life Estate can also be set to terminate on the death of someone else.  For example, let’s suppose mother has four children.  Son 1 is disabled and cannot live on his own.  Daughter 1 is not disabled and has agreed to take care of son 1.  Son 2 and Daughter 2 are both married and living in another state with their respective families.  Mother wants to make sure that Daughter 1 has a home in which to care for Son 1 so she grants a life estate to Daughter 1 for so long as Son 1 is alive, with the remainder being divided equally between the 3 remaining children when Son 1 dies.    What this means is that Daughter 1 will probably need to move out of the home after Son 1 dies because otherwise she would need to be able to purchase the other 2/3 of the house from her remaining siblings.

I’ve even seen a case where a cat lover gave a life estate in her home to her friend for so long as her favorite cat was alive so that the friend could take care of the cat and the cat would not need to move to a strange house.

As you can see, a Life Estate can be a useful tool in your estate planning arsenal, but only if it is planned correctly.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Do I need to go to court?

Monday, September 5th, 2011

I was in court last week and noticed that there were a lot of people who didn’t show up for their scheduled court dates.  The judge was NOT happy and issued a lot of ‘failure to appear’ charges.

In fact, in one case I remember, the judge dismissed the underlying reason for the person to come to court that day….but issued a summons for the person and that person now has a ‘failure to appear’ charge pending.  I know this judge usually gives people a couple of days in jail for the failure to appear, so this one particular person went from having his charge dismissed to facing possible jail time.  All because he didn’t show up.

Why do people not show up in court as scheduled?

I imagine that a lot of them just forget.  Forgetting is NOT a good excuse.  Think of it this way, would you want the jail to ‘just forget’ to let you out?  Get a calendar and mark that date.  Put a reminder on your cell phone.  Put a note on your refrigerator.  Whatever it takes to get you to court on the right day.

And make sure you know what courtroom you are assigned.  I’ve often seen situations where people will sit in court all morning just to find out they were in the wrong court!  If you don’t know for sure where you are supposed to be, ask the guard when you first come in the building.  Show the guard your summons and ask for directions to the right courtroom.   This can be especially frustrating when there are different buildings.  You can also check online to make sure you know where the court is located.  Or call the clerk’s office to confirm your date (and time) and ask the clerk for directions to make sure that you are going to the right place.

Some people say that they got a paper in court, but they never got anything in the mail.  In the past, they always got something in the mail, so they figured they would get a notice in the mail this time too.  Sorry, you get notices in the mail when they can’t give you the notice in person.  If they give you a piece of paper in court with the next court date, you NEED to be there!

I had one person tell me that the original date was ‘just for child visitation’ and they decided they didn’t want to fight the visitation request, so they didn’t show up.  Not a good idea!  If you don’t want to fight the visitation request, you need to show up in court and tell that to the judge.  Otherwise, the judge will probably issue a ‘failure to appear’ summons and you will show up in court at a later time, with a much bigger problem!

Some people say that something else came up and they couldn’t make it to court.  If something really does come up, you can contact the court before your scheduled time to appear and the judge MIGHT give you a break and schedule another day.  Being in the hospital for surgery is the type of thing that the judge might accept.  Wanting to go shopping instead, or oversleeping because you were up late the night before is something that the judge will probably NOT accept.

For traffic tickets, the officer will write on the ticket whether or not you need to appear.  Most of the time, you can use the online system to pay for simple speeding tickets (although you should be aware that pre-paying the ticket is the same as pleading ‘guilty’ and you will receive the ‘points’ against your license).  If you have been charged with reckless driving, you must appear.

Sometimes an attorney can appear in court on your behalf and you don’t need to be there yourself.  Be sure to check with your attorney to make sure whether or not you need to appear yourself.  I generally suggest that my clients also appear in court even if they don’t really need to be there.  After all, it’s your life, your money, or your freedom that is at stake and you really should be involved in anything that might happen.  The attorney can tell you what the ‘regular’ judge will probably do, but that judge may be sick this one day and there is a substitute.  It’s just better to be there yourself.

The bottom line is that if you have been told to be in court on a certain day at a certain time, you need to make arrangements to be there!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.