It is difficult in these economic times to set aside the funds for proper estate planning; however, families with small children cannot afford to risk the uncertainties associated with leaving your children unprotected.  This protection can include setting aside assets and accounts to help your children through college, securing the home and roof over their head or even making sure that your child has a wedding gift waiting for her even if you may be watching from above.

It is never pleasant to discuss the inevitable; however, delaying a conversation with your estate planning attorney will not only create uncertainty in the event of your passing, but leave your biggest assets in jeopardy of crashing.  Having a young daughter of my own, I urge you to contact one of our firm’s qualified and experienced estate planning attorneys and make an investment in estate planning that will guarantee to pay off dividends for your children in the long run.

We all experience transitions in our life.  There can be expected life transitions such as graduating from high school, leaving home, entering college, entering the service, etc.  It can be a transition from one job to another, or a transition from one relationship to another, or transitioning from dating to marriage.  Marriage is always a significant transition with all of the change that comes with that type of commitment.  However, what about the transition from being a childless couple to one with a child, or two or even three?  What about retirement?  What about the loss of a loved one?

The longer we live, the more transitions we undoubtedly will face.  A significant transition in life is one where a decision is made to leave employment by someone else and decide to be in business for yourself.  For anyone who has made this transition, you know all the emotions and stress it can bring.

As transitions occur in one’s life, it is important to review and consider your estate planning and the appropriate estate planning documents that follow the transition you are making.  Professional estate planning can help with the transition any one is facing.

Many individuals, and even some practitioners, believe young families with children don’t need trust based planning.  Perhaps it is more accurate to say they don’t believe they can afford it.  Nothing could be further from the truth.  Families with children at home and any assets at all simply can not afford not to plan properly.

Certainly as with any planning, it is a form of insurance.  Should nothing happen to any member of the family, the planning has simply been an insurance that wasn’t used.  But consider the consequences of the failure to plan.

The untimely death of a parent leaving minor children can easily result in the necessity of a conservatorship to provide protection for that minor child.  Such a conservatorship can require annual accountings, bond fees, probate court costs, and legal or administrative fees to administer.  Properly structured, a trust can avoid this.

Consider also the time of distribution to children.  Under state law, a person becomes an adult at age 18 inMissouri.  If assets are held for that person, they have full control of those assets at age 18.  History has proven people of that age can rarely manage assets prudently.  This can be avoided by using trusts.

There are other issues such as incapacity which can be much better handled by the use of a trust.

Anyone with children at home and any assets at all should discuss trust planning with an attorney.

So what is a frivolous lawsuit?  That’s not a question that is usually asked.  When you do ask most people will think of the McDonald’s coffee case.  So in honor of Stella Liebeck and the infamous McDonald’s coffee case I present you with the following quiz.

McDonald’s Coffee Quiz

1. When Stella Liebeck was burned, she was:

a) driving and attempting to add sugar to her coffee.

b) in the passenger seat at a dead stop.

c) in the back seat where all old people belong.

2. When the coffee spilled, Stella was:

a) squeezing her legs together while reaching for her Egg McMuffin.

b) removing the lid to add cream and sugar.

c) eating her breakfast.

3. Stella received burns to her:

a) inner thighs.

b) buttocks.

c) genitalia.

d) all of the above.

4. Stella’s hospital stay lasted:

a) two days.

b) five days.

c) eight days and included skin grafting surgery.

5. McDonald’s quality assurance manager testified that the company actively enforced a requirement that its coffee be served between (hint: your coffee at home comes out at about 135 to 140 degrees):

a) 140 to 150 degrees

b) 150 to 170 degrees

c) 180 to 190 degrees

6. True or False: McDonald’s quality assurance manager testified that the company knew that coffee served at the required temperature was not fit for consumption because it would burn the mouth and throat, and that the company had received over 700 complaints of burns caused by the coffee.

7. According to the experts, coffee served at the temperature as required by McDonald’s will cause full thickness burns to human skin in:

a) 2 – 7 seconds

b) 10 – 20 seconds

c) 30 – 60 seconds

8. Prior to filing her lawsuit, McDonald’s rejected Stella’s offer to settle all her claims, medical bills, injury and scarring, for the total amount of:

a) $20,000

b) $100,000

c) $500,000

9. After reductions by the court, the amount McDonald’s was ordered to pay was:

a) $975,000

b) $640,000

c) $1.5 million

d) none of the above

10. True or False: After the trial, McDonald’s offered to pay Stella an undisclosed amount, instead of the amount determined by the court, which she accepted.

Now that you have had a further examination of the McDonald’s coffee case I would ask you as I do a jury, when you hear about “frivolous lawsuits” that you step back and ask what facts that you are not being told and try to get the whole picture instead of only selected facts.  To learn more of Stella’s story or to bust a few myths of some other “frivolous lawsuits” I would encourage you to consider watching the documentary “Hot Coffee” by Susan Saladoff.

Answers: 1 – b, 2 – b, 3 – d, 4 – c, 5 – c, 6 – True, 7 – a, 8 – a, 9 – b, 10 – True

Among other things, the legislation that was struck down required candidates for the legislator and State wide offices to report contributions of $500.00 or more during the session within 48 hours of receiving them, it also bans certain committee to committee money transfers that although cumbersome had been intended to make the original source of contributions more obvious to the public.

The Law had given the Ethics Commission additional investigative power in which it could launch investigations on its own without receiving a complaint.

The Supreme Court Unanimously upheld March 31^st ruling by Cole County Circuit Judge Dan Green.  Judge Green had found the Law violated the Missouri Constitutional provisions prohibiting legislators from amending bills in such a way to change their original purpose.  The original purpose of Senate Bill 844 had to do with the Office of Administration in issuance of contracts.  The Supreme Court allowed the provisions relating to government contracting to stand.

It is worth noting that a concurring opinion, an opinion that at least somewhat agrees with the results, Judge Zell Fisher stated he would have struck down the entire Law.  Judge Fisher discussed “the judicially created doctrine” allows courts to severe unconstitutional parts of legislation and allows the other parts to stand.  Fisher found that the severance doctrine “amounts to Judges being allowed to draft legislation”.  He went on to point out it also may subvert a governor’s veto authority.

Being a good parent means different things to different people.  Rigid structure is considered good by some, while others prefer a more adaptive approach.  Protecting a child from all potential harms and being vigilant with a watchful eye is the approach some parents prefer.  Others prefer to give their children more freedom and teach self sufficiency.  Some parents guard their children from perceived harms such as influences in pop culture, unhealthy foods and non-educational endeavors.  And while there may be a “consensus” among many as to which form is “better” for a child, it does not make the other approach wrong in the eyes of the law.  The state is not going to step in and remove a six year old from a home solely because they are eating chicken nuggets, playing video games and watching Family Guy.  Neither is a judge likely to disallow a parent custody for these very same reasons.

What a judge may consider is what is in a child’s best interest.  The courts often focus on attempting to establish or maintain a relationship between a child and both parents as being in a child’s best interest.  Where there are not any allegations of abuse against a parent, and there are not issues of drugs or excessive alcohol use or other activities that create a danger of physical harm to a child, courts will generally allow both parties fairly substantial, unsupervised contact with the child.  Where a court perceives one parent attempting to hinder or prevent that contact for no apparent reason, the courts will often turn a critical eye to the parent who is limiting contact.  To the courts, “parenting issues” are generally not deemed sufficient grounds to warrant a lack of contact.  Therefore, unless contact with the other parent presents a danger of harm to the child, parents should think long and hard before denying the other parent access to the child.

Both the U.S. Constitution and the Missouri Constitution require that after every decennial census that the boundaries of the representative districts be reevaluated and realigned according to new population numbers.  For the U.S. Congressional lines the State Legislative Houses are challenged with coming up with a plan to pass on to the Governor for approval.  In a bipartisan effort our legislators were able to do that and then submitted that plan to the Governor.  Governor Nixon then vetoed the maps, but the legislators over road his veto.  For the State Senate and House boundaries a bipartisan committee of citizens is appointed by the Governor for each legislative house.  In 2011 neither of those committees was able to come up with a map that was acceptable by the majority of the committee.  Accordingly, the Constitution provided that a panel of Appellate Judges would take the next crack at the State boundaries.  That was done on or about November 30, 2011.  The Appellate Commission issued maps for both the Missouri State House and Missouri State Senate.  Approximately 10 days later the Appellate Commission revised its State Senate maps.

Here come the lawsuits.  Each of our representative district maps has now faced legal challenges.  First, the Congressional districts have faced a couple of different lawsuits.  Those lawsuits were filed in the State Court system.  Eventually the State Trial Court summarily dismissed those cases finding that they did not merit even a hearing.  That decision was subsequently overturned by the Missouri Supreme Court and sent back to the Trial Court for hearing.  As of today the boundaries stay the same as where issued in 2011, with a hearing pending in the Trial Court as to the Constitutionality of those lines.  Since starting this the trial court has issued a judgement upholding the new Congressional maps, it is anticipated but not know yet that the plaintiff’s will appeal that decision.

Our State Senate lines are in a little different place.  The first map on November 30, 2011 that was issued by the Appellate Judicial Commission was by many people’s account blatantly unconstitutional.  Presumably, the Appellate Judges realized that because they issued a new Senate map approximately 10 days later.  A lawsuit was then filed challenging Appellate Judicial Commissions lines.  That challenge was heard by the Missouri Supreme Court and the Supreme Court found that, 1) the original map issued by the Appellate Commission was unconstitutional and 2) the second map they issued was issued without proper authority.  They ordered that the Governor start all over by appointing another bipartisan commission.  By the Constitution once that Commission is reappointed it can be dissolved in two ways; 1) by agreeing to issuing a map or 2) in the passage of six months without issuing a map.  Accordingly, the boundaries that will be used in the process to be followed for the 2012 Missouri State Senate elections is up in the air.

Finally, the State House of Representative Districts appeared to be safe during the while the lawsuits mentioned above were filed and litigated.  However, after the Supreme Court’s rulings on the U.S. Congressional lines and the State Senate lines a new lawsuit was filed challenging the State House of Representative lines.  That lawsuit was filed directly with the Supreme Court of the State of Missouri.  The Supreme Court said its not our issue at this point and needs to be heard by the Trial Court.  A few days later a similar lawsuit was filed in State Court, with an additional twist.  A new challenge to the State House lines added an argument that the Judicial Commission violated the Missouri Sunshine Act in developing their maps.  That lawsuit continues today.

The conclusion to the questions “What district am I in”? For any of these representative districts is still somewhat up in the air.  All Missouri citizens stand by now and wait for our Court systems to act to resolve these questions.

Domestic violence is abuse directed toward a spouse or domestic partner; usually violence by men against women.  Physical and sexual assault may be one aspect of the abuse; however, many other tactics and actions are used by batterers to take control of their spouse’s/partner’s life.  The batterer may use only occasional physical assaults to instill threat of future attacks.

Demographics and Statistics of Domestic Violence

Domestic violence occurs in countless homes regardless of education, income, race or creed.  Unfortunately, victims of abuse rarely report the acts of their abusers.  The result is that victims suffer in silence, which often leads to increased violence.  Statistics as to domestic violence are varied, however, a few facts are clear.  First, Domestic violence is the leading cause of injury to women in theUnited States.  Additionally, abusers are more likely than not a member of the victim’s own family.  Also, sexual assault occurs in close to half of all battering relationships.

Children and Domestic Violence

Children are also victimized by domestic violence.  Approximately 40% to 50% of those who batter their significant other will also batter their children.  Witnessing violence at home is the strongest risk factor in transmitting violent tendency to children.  In fact, boys that witness domestic violence in their home are twice as likely to abuse their partner in adult relationships.

Characteristics of Domestic Violence

Domestic Violence is more than physical assault.  A batterer uses many tactics to control every aspect of their spouse’s/partner’s life.  For example, a few tactics are coercion, threats, intimidation, economic control, emotional abuse, isolation, minimization, blame or denial.

If you can answer “yes” to any of the following, you may be a victim of domestic violence:

1. Have you or your child(ren) been physically hurt?
2. Has your life or your child(ren)’s life been threatened?  Has your spouse/partner threatened to take their life?
3. Are you denied access to bank accounts?  Are you denied the ability to work?
4. Have you or your child(ren) been threatened with a weapon?
5. Have you been forced to stop seeing friends or family?
6. Does your spouse/partner threaten to take your child(ren)?
7. Is the abuser obsessed with you?  Does the batterer stalk you?
8. Do your attempts to discuss your fear result in denial or being blamed?

Your next step

If you are the victim of domestic violence, it will probably not get better.  You need help – emotional, financial, and legal.  Many programs and services are available.

http://www.ncdsv.org/index.html

http://www.ncdsv.org/ncd_links.html

http://www.ncdsv.org/images/NCDSV_DVandSA%20Resources_purple_9-30-11.pdf

Consumer bankruptcy may be a solution to the debts, however, many factors must be considered and consulting a practitioner knowledgeable in both bankruptcy and divorce will provide information to help assure you that the right decisions are being made regarding bankruptcy, the timing of filing, the effects of the automatic stay, and how bankruptcy will affect marital debts, child support and maintenance.

Chapter 7 and Chapter 13 Bankruptcy

There are two main chapters of bankruptcy for consumers, namely, Chapter 7 and Chapter 13.  Chapter 7 is a shorter proceeding that will allow the debtor to discharge most of his or her debts.  Chapter 13 is a repayment plan that requires debtors to make a monthly payment over 36-60 months, and most balances remaining at the end of the repayment plan are discharged.  The decision on which chapter should be carefully discussed with a bankruptcy and family law practitioner as to which chapter will grant the debtor their financial fresh start without delaying their fresh start at independence.  Considerations to include are timing, dischargability of property settlements, status of secured debt, income and child support to name a few.

The automatic stay

If you or your spouse files bankruptcy after filing for divorce and before finality of divorce, he or she becomes a debtor under the Bankruptcy Code and an automatic stay is created to make sure no property is transferred or debts are collected.  The automatic stay will cause a temporary standstill in the divorce proceedings as to division of property and debts.  The family law attorney needs to understand bankruptcy law in order to protect his or her client during a divorce with a bankruptcy pending.  It is important for the family law attorney to know what orders can be entered by the state court during the bankruptcy and what orders will violate the federal law.

Marital debt

When either party contemplates bankruptcy, one consideration is the timing of the filing and whether the parties should file a joint bankruptcy before or during the divorce, or an individual bankruptcy before, during, or after the divorce.  Your creditors are not part of the divorce, and the family court cannot alter, modify or revise the contract between debtors and their creditors.  Therefore, any joint debt discharged by one party will leave the other party solely liable, exposed to collection efforts and law suits, and will often forcing the other spouse to repay or file bankruptcy.

Under a Chapter 7, any debt incurred to a spouse or former spouse that is incurred during a divorce by agreement, decree or court order is not dischargable.  If any assets are recovered, these debts are paid before most of the other debts.  Under a Chapter 13, the debtor may receive a discharge from obligations incurred as part of the divorce if certain conditions are met.

Child support and maintenance (or alimony)

Filing a bankruptcy does not stop payment of child support or maintenance, known as “domestic support obligations”.  Additionally, support arrearages are not dischargeable, however, the automatic stay may cause a delay in the collection of support arrearages during the bankruptcy.