FINAL ASSIGNMENT- Due next Wednesday
You are a paralegal working for a firm representing one of the parties (choose Arnica OR Mark). Your attorney is about to go into mediation with the judge. You must write a memo to assist the attorney. Use memo form. Include: Name. Date. Name of class. Subject Calhoun Mediation. Do not make up names. Give attorney client's primary goals. What to keep in mind at all times. Client's position on each issue (property, parenting, child support, spousal maintenance). Evaluate competing claims for each issue, strengths and weaknesses. Custody from client's position, based on facts, and in best interest of child. You do some evaluation for attorney. Child support based on custody. Spousal maintenance based on goal identified, distribution of assets, lifestyle. Evaluate strength and weaknesses of position, what points might the other side bring up in opposition? Where is there room for agreement, based on arguments form other side. "Our positions are not so far apart on this issue...". "Our positions are so polar that it cannot be resolved...". Suggest a resolution for each issue, that might be accepted by the other side. State proposed resolution, support with facts and law if necessary. Use subheads. Make easily referenced by attorney. Not more than four pages. Shorter is better.
Thursday, May 26, 2011
Wednesday, May 25, 2011
5.24.11 Complex Litigation
"Some of us are standing awfully close to the woodchipper."
-Bruce's words of encouragement on studying for the final
Distribution (§ 726)
First: Secured creditors to extent of security
-may be delayed by automatic stay
Second: "Priority" creditors (§ 507)
a. Expenses of administering estate (lawyers, appraisers, etc.)
b. Unpaid wages ($10,000/90days)
c. Employee benefit plans
d. Post-filing expenses of business (ability to continue business, get credit, etc.)
e. Alimony and taxes (non-dischargeable through bankruptcy)
Third: Unsecured creditors (pro rata after ALL of the above are paid in FULL)
Refiling Restrictions
If discharged under 7, 11, or 12 AND #2 is a 13, 4 years
If discharged under 13 AND #2 is ANOTHER 13, 2 years
If never discharged OR #2 is not a 13, no wait
(Discharge=completed bankruptcy)
8 Bad Acts (Non-dischareable § 523)(you will still owe debt after bankruptcy)
1. Taxes/fines
2. Money by false pretenses
3. Willful and malicious injury (drunk driving charges)
4. Alimony/child support
5. Embezzlement/larceny
6. Student Loans within 5 years
7. Failure to schedule creditor
8. Secured claim in exempt asset
($500+ in luxury goods within 90 days of filing is PRESUMED non-dischargeable.)
5 REALLY Bad Acts (Discharge Denied § 727) (If you do any of these all debts are NON-dischargeable)
1. Falsify/coerced/destroy records
2. Conceal property
3. Failure to fully account
4. Failure to obey court order
5. False statements or claims
Plan of Reorganization (Debtor has exclusive for 120 days)
Must be accepted by:
½ the number of creditors
AND
2/3 of dollar value of the claims
Liquidation vs. Reorganization
Chapter 7- Trustee in charge
Chapter 11- Debtor in possession (debtor knows business best)
Trustee can be appointed to takeover.
Plan of Reorganization- Debtor must prove they have a plan to get back on track
Must be able to deliver more under chapter 11 than chapter 7.
If plan cannot be agreed upon, converted to chapter 7 and liquidated.
Biggest Bankruptcy in history $639 Billion- Leeman Brothers
Chapter 12 Family Farm Bankruptcy
What is a family farm?
1. 50% of debt arises from farming operations
2. Debt must be less than $3.2 million
3. At least 50% of income must be from farming
Chapter 13 Regular Income Reorganization
Must owe less than:
Unsecured $336000
Secured $1,010,650
Submit plan for repayment:
No less than 36 months
Not longer than 60 months
Must pay all disposable income (everything after basic bills)
If you can pay at least $6000, you can't file chapter 7
2005 changes
-If you can pay, you must ($6000 over 60 months)
-You must propose a plan and begin funding it before plan is approved
Product Liability
New area of law
"caveat emptor" buyer beware
Thomas v. Winchester (1852)
-inherently dangerous products- those that could kill you (poison, guns, etc.)
McPherson v. Buick (1916)
-defective wooden wheel, made by another manufacturer
"caveat venditor" vendor beware
"Everything in Threes"
Types of Losses
1.Personal Injury
2.Property damage
3.Economic losses
Recovery
1.Contract- warranty
a.Express- clearly stated
I.Affirmation of fact or promise- says something concrete and tangible about goods "will last for 3 years"
II.Description- "made of 24k gold" etc.
III.Samples/Models/Demos- goods you buy must conform
(Puffing not included, opinions aren't warranties, facts are.)
b.Implied warranty of merchantability- must be fit for ordinary purpose of goods
c.Implied warranty of fitness for particular purpose-
I.Seller knows purpose
II.Known reliance
III.Actual Reliance
2.Tort-(negligence) You have a duty to manufacture products that do not cause losses
a.Manufactured- rare, a product turns out different from the others, flawed
b.Designed-
I.Structure- made as designed, poor material, etc.
II.Safety- saw designed with safety guard
III.Forseeable misuse- most common-if manufacturer can foresee a misuse of a product, they are liable for torts as a result.
d. Failure to warn or instruct- it is a product defect to not inform consumers of proper use
3.Strict Liability- Liability without culpability
-"condition unreasonably dangerous"
- inherently dangerous/unavoidably unsafe (knives, guns, bleach, utility makes them dangerous)
New Trends in Product Liability
1. Market Share liability- hold manufacturer liable even if it cannot be shown that it was their product that caused the loss. All manufacturers pay according to market share.
2. Liability for product manufacturing goes beyond the manufacturers - sue for defective product, can sue anyone in the retail chain.
3. Privity- even if product is dangerous and defective, only person who buys it may sue, only they have direct connection to manufacturer. NO LONGER REQUIRED We almost never get our products from the manufacturer. Now "any reasonably foreseeable plaintiff." Rail Road case
RCW 7.72
-Bruce's words of encouragement on studying for the final
Distribution (§ 726)
First: Secured creditors to extent of security
-may be delayed by automatic stay
Second: "Priority" creditors (§ 507)
a. Expenses of administering estate (lawyers, appraisers, etc.)
b. Unpaid wages ($10,000/90days)
c. Employee benefit plans
d. Post-filing expenses of business (ability to continue business, get credit, etc.)
e. Alimony and taxes (non-dischargeable through bankruptcy)
Third: Unsecured creditors (pro rata after ALL of the above are paid in FULL)
Refiling Restrictions
If discharged under 7, 11, or 12 AND #2 is a 13, 4 years
If discharged under 13 AND #2 is ANOTHER 13, 2 years
If never discharged OR #2 is not a 13, no wait
(Discharge=completed bankruptcy)
8 Bad Acts (Non-dischareable § 523)(you will still owe debt after bankruptcy)
1. Taxes/fines
2. Money by false pretenses
3. Willful and malicious injury (drunk driving charges)
4. Alimony/child support
5. Embezzlement/larceny
6. Student Loans within 5 years
7. Failure to schedule creditor
8. Secured claim in exempt asset
($500+ in luxury goods within 90 days of filing is PRESUMED non-dischargeable.)
5 REALLY Bad Acts (Discharge Denied § 727) (If you do any of these all debts are NON-dischargeable)
1. Falsify/coerced/destroy records
2. Conceal property
3. Failure to fully account
4. Failure to obey court order
5. False statements or claims
Plan of Reorganization (Debtor has exclusive for 120 days)
Must be accepted by:
½ the number of creditors
AND
2/3 of dollar value of the claims
Liquidation vs. Reorganization
Chapter 7- Trustee in charge
Chapter 11- Debtor in possession (debtor knows business best)
Trustee can be appointed to takeover.
Plan of Reorganization- Debtor must prove they have a plan to get back on track
Must be able to deliver more under chapter 11 than chapter 7.
If plan cannot be agreed upon, converted to chapter 7 and liquidated.
Biggest Bankruptcy in history $639 Billion- Leeman Brothers
Chapter 12 Family Farm Bankruptcy
What is a family farm?
1. 50% of debt arises from farming operations
2. Debt must be less than $3.2 million
3. At least 50% of income must be from farming
Chapter 13 Regular Income Reorganization
Must owe less than:
Unsecured $336000
Secured $1,010,650
Submit plan for repayment:
No less than 36 months
Not longer than 60 months
Must pay all disposable income (everything after basic bills)
If you can pay at least $6000, you can't file chapter 7
2005 changes
-If you can pay, you must ($6000 over 60 months)
-You must propose a plan and begin funding it before plan is approved
Product Liability
New area of law
"caveat emptor" buyer beware
Thomas v. Winchester (1852)
-inherently dangerous products- those that could kill you (poison, guns, etc.)
McPherson v. Buick (1916)
-defective wooden wheel, made by another manufacturer
"caveat venditor" vendor beware
"Everything in Threes"
Types of Losses
1.Personal Injury
2.Property damage
3.Economic losses
Recovery
1.Contract- warranty
a.Express- clearly stated
I.Affirmation of fact or promise- says something concrete and tangible about goods "will last for 3 years"
II.Description- "made of 24k gold" etc.
III.Samples/Models/Demos- goods you buy must conform
(Puffing not included, opinions aren't warranties, facts are.)
b.Implied warranty of merchantability- must be fit for ordinary purpose of goods
c.Implied warranty of fitness for particular purpose-
I.Seller knows purpose
II.Known reliance
III.Actual Reliance
2.Tort-(negligence) You have a duty to manufacture products that do not cause losses
a.Manufactured- rare, a product turns out different from the others, flawed
b.Designed-
I.Structure- made as designed, poor material, etc.
II.Safety- saw designed with safety guard
III.Forseeable misuse- most common-if manufacturer can foresee a misuse of a product, they are liable for torts as a result.
d. Failure to warn or instruct- it is a product defect to not inform consumers of proper use
3.Strict Liability- Liability without culpability
-"condition unreasonably dangerous"
- inherently dangerous/unavoidably unsafe (knives, guns, bleach, utility makes them dangerous)
New Trends in Product Liability
1. Market Share liability- hold manufacturer liable even if it cannot be shown that it was their product that caused the loss. All manufacturers pay according to market share.
2. Liability for product manufacturing goes beyond the manufacturers - sue for defective product, can sue anyone in the retail chain.
3. Privity- even if product is dangerous and defective, only person who buys it may sue, only they have direct connection to manufacturer. NO LONGER REQUIRED We almost never get our products from the manufacturer. Now "any reasonably foreseeable plaintiff." Rail Road case
RCW 7.72
Wednesday, May 18, 2011
5.18.11
Each group should have received financial documents in response to email.
Emergency issues- usually present in family law cases. EX dangerous situations, emptying of bank accounts, etc.
Family Law Process
Phase 1- filing of petition and emergency orders.
Phase 2- discovery
Phase 3- dispute resolution
Child Support- Strict guidelines
Review charts to determine support in Arnica case
Focus on kids needs is paramount- stable, maintenance of lifestyle and social/learning/school situation
Motion to modify- must be substantial change in circumstances
Relocation Statute- Included in all parenting plans
May limit movement of custodial parent in interest of child
Child Support
-Net income of each parent, added up, equals total benefit to child.
Proportionate share from each parent is determined. Parent who makes more income gives "transfer amount" to parent who makes less.
-Money can be transferred by check, joint account, or DSHS may act as routing authority. Involving DSHS helps track payments, and has enforcement rights under order.
-Termination date must be established for child support. Line between spousal maintenance and child support can be blurred. Pay-or can deduct spousal maintenance for tax purposes, but not child support. Usually when child turns 18, or graduates high school, whichever comes last.
-Statute allows child support to be requested for any dependant, regardless of age, (developmentally disabled, etc.). Practice in King County is to not allow it.
-College education support may be allowed, but must be requested before the child turns 18. (Jurisdiction)
Domestic violence, addiction, and other danger issues
- People are reluctant to discuss/admit
- "What was the level of tension during the marriage?"
- Ask about conflict resolution in the marriage. Responses can be very telling.
- The Cycle - Honeymoon - Tension - Explosion - Apology - Reconciliation
- If there have been issues, joint custody and joint parenting may be restricted.
Create- Child support worksheets, proposed orders, and parenting plan.
Decide how to proceed based on strategy. Make arguments for division and use of property, who should have custody and why, and why support will be required based on custody. What is the strongest argument that we can make?
Proposed order by attorney, and declaration from client that addresses these issues. Don't look to case law, go for fairness and justification.
PROJECT DUE WEEK after NEXT
Fill out child support worksheet, and parenting plan worksheet. Also prepare declaration from client.
Emergency issues- usually present in family law cases. EX dangerous situations, emptying of bank accounts, etc.
Family Law Process
Phase 1- filing of petition and emergency orders.
Phase 2- discovery
Phase 3- dispute resolution
Child Support- Strict guidelines
Review charts to determine support in Arnica case
Focus on kids needs is paramount- stable, maintenance of lifestyle and social/learning/school situation
Motion to modify- must be substantial change in circumstances
Relocation Statute- Included in all parenting plans
May limit movement of custodial parent in interest of child
Child Support
-Net income of each parent, added up, equals total benefit to child.
Proportionate share from each parent is determined. Parent who makes more income gives "transfer amount" to parent who makes less.
-Money can be transferred by check, joint account, or DSHS may act as routing authority. Involving DSHS helps track payments, and has enforcement rights under order.
-Termination date must be established for child support. Line between spousal maintenance and child support can be blurred. Pay-or can deduct spousal maintenance for tax purposes, but not child support. Usually when child turns 18, or graduates high school, whichever comes last.
-Statute allows child support to be requested for any dependant, regardless of age, (developmentally disabled, etc.). Practice in King County is to not allow it.
-College education support may be allowed, but must be requested before the child turns 18. (Jurisdiction)
Domestic violence, addiction, and other danger issues
- People are reluctant to discuss/admit
- "What was the level of tension during the marriage?"
- Ask about conflict resolution in the marriage. Responses can be very telling.
- The Cycle - Honeymoon - Tension - Explosion - Apology - Reconciliation
- If there have been issues, joint custody and joint parenting may be restricted.
Create- Child support worksheets, proposed orders, and parenting plan.
Decide how to proceed based on strategy. Make arguments for division and use of property, who should have custody and why, and why support will be required based on custody. What is the strongest argument that we can make?
Proposed order by attorney, and declaration from client that addresses these issues. Don't look to case law, go for fairness and justification.
PROJECT DUE WEEK after NEXT
Fill out child support worksheet, and parenting plan worksheet. Also prepare declaration from client.
5.17.11 Complex Litigation
Midterms handed back. Average 79.2%
Problems- Failure to outline, failure to proofread, lack of analysis.
6 Free Speech Exceptions
1. Clear and present danger (of inciting imminent lawless action)
2. Fighting words
3. Obscenity
4. Defamation
5. False advertising
6. Compelling government interest
6 Free Speech Concepts
1. Void for vagueness- law must be specific. "Offends passersby" struck down. If you are to curtail speech by law, you must be specific.
2. Void for overbreadth- "No nudity on tv until after 9pm" struck down, (diaper commercials, breast cancer psa).
3. Prior restraint- "A rule of ordinance restricting speech before it is uttered." Prior restraints are presumptively unconstitutional.
a) Injunction (court) -
b) Permit (government body) (Cantwell case) -
c) Licensing (tv/radio) - control of content through licensing
d) Censorship (FCC) -
4. Symbolic Speech - Conduct protected as speech. EX Boston Tea Party.
a) Pure speech - Literal talk, gets most amount of protection.
b) Speech plus (verbal and conduct) - Marching/rally/parade while delivering spoken message, gets less protection. "Freedom of Expression"
c) Symbolic speech (conduct) - EX Stromberg case, still protected, but less than other two.
5. Traditional forums - Areas that are known traditionally for free speech- town squares, public parks, city hall, city streets, etc. get more protection than other locations.
6. Police powers (time/place/manner) - Health, safety, welfare of citizens. State says- where, when, how, NOT if.
Speech Cases
New York Time v. U.S. (1971) - Prior restraint/Injunction- Pentagon Papers- leaked to NYT, injunction to stop publishing of papers. (Exception on clear and present danger- not granted, papers published.)
National Socialist Party v. Skoke (1977) - Prior restraint/Permit- Nazi March in Skoke IL- (Exception on clear and present danger- not granted.)
Stromberg v. California (1931) - Symbolic Speech- Summer camp red flag for communism- "Illegal to display any emblem of opposition to organized government."
Texas v. Johnson (1989) - Symbolic Speech- Burning American flag, protected. (Rehnquist dissent- An inarticulate grunt or roar.) (88% of American's believe it should be illegal.)
U.S. v. Haggerty (1990) - WA flag burning case
Edwards v. South Carolina (1963) - Protest march against discrimination while singing Star Spangled Banner- Symbolic speech. This case tests all 6 free speech concepts.
NOT required to know any of these cases for final.
Bankruptcy
"Capitalism without bankruptcy is like Christianity without hell."
Helps Everybody
Debtor- Fresh Start
Creditor- Process may allow creditor to step in and run company, etc. to benefit creditor
Society- rehabilitate to become successful tax paying citizen
Constitution allows bankruptcy
Relatively unique to US.
Refuge for the financially irresponsible, but also natural disaster, divorce, and severe economic dislocation (getting fired), illness = #1 cause, 62% of bankruptcies.
Every state has financial law to help debtors. Garnishment, foreclosure, receiverships.
Bankruptcy- Federal law only- Title 11
Chapter 7 - Liquidations - "no asset 7"- call it quits, ends business.
Chapter 9 - Municipalities - City goes bankrupt
Chapter 11 - Corporate reorganizations - buys time to restructure and emerge healthy, does not end business.
Chapter 12 - Family Farms - Designed for specific needs of farmers
Chapter 13 - Regular income reorganization - (previously "wage earner") extends time for repayment, usually at less than full amount owed. (doesn't need to be a job)
Chapter 15 - Foreign corporations (very limited)
7, 11, 13- most common
11 USC § 362 Automatic Stay ("362 Motion")
When a debtor files bankruptcy the second they file the automatic stay goes into effect to and protects debtor from any effort to collect a debt. (garnishment, foreclosure, lawsuits, collection notices, etc.) Anything done to collect a debt is VOID, after bankruptcy is filed.
Adequate Protection Hearing- 362(d)
Judge gives Debtor choice- lift stay or give adequate protection to creditors, assure them that they will not take the loss.
3 Forms
1. Cash - Stream of payments, may be less than amount owed.
2. Replacement Lien - Lien on another property, etc.
3. Equity in property - If sufficient equity in property to protect creditor, then stay will not be lifted.
Doesn't stop paternity actions, alimony, and criminal actions.
Before you can file you must go through professional debt counseling.
Debt forgiveness is TAXABLE. Debts discharged through bankruptcy are NOT taxable.
Chapter 7
Anybody can file. (Except cities, savings and loans, and banks, railroads.)
Involuntary Chapter 7 - Creditor can force Debtor
11 or fewer creditors, if one creditor is owed at least $10,775 and is not paying in reasonable course. (only one creditor must agree)
12 or more creditors, 3 must agree to put you into bankruptcy, one must be owed at least $10,775.
Trustee appointed- Marshall assets
Gather, liquidate, distribute to creditors.
If no assets, report no assets.
11 USC § 522- Exempt property- Fresh start, must allow enough to manage.
State also has exempt list- RCW 6.13-6.15
Must decide between State or Federal (no pick and choose, State usually more generous.)
Texas, Florida, Nevada- cannot take primary residence to satisfy debt, regardless of equity.
Tax Evasion (illegal) vs. Tax Avoidance (Legal)
Exempt property- It is NOT illegal to use non-exempt assets to purchase exempt property, exemptions exist to be taken advantage of.
Tools of the trade $2025 (stuff you need to make a living.)
Personal/Household goods ($475/$9850)
Health aids (100%)
Car ($3225)
Furniture ($525/$10,775)
Athletic/sporting equipment - In re Griffin
IRA
Prepaid mortgage/rent
Car repair
Life insurance
Down payment on house
Jewelry ($1350)
Liens- exemption is impaired
Trustee has power to set aside liens, provided the creditor has placed the liens. (Not by the bank, as a loan to you. If so you lose the lien exemption.)
Preference - § 547
Can you pay one creditor over the other? (Pay back your uncle, etc.)
If one creditor gets paid and the other does not, the Trustee can go to that creditor and DISGORGE the amount paid. If one creditor gets more than they are entitled to, the Trustee can get it back. Trustee goes back 90 days from filing of bankruptcy. If creditor is an "insider" (friends, family, etc.) Trustee can go back a year to examine who was paid.
Fraudulent Transfer § 548
Anybody that the Debtor gives property to for less than reasonable value. (Doesn't need to be market value, obviously a distressed sale.) Can be DISGORGED for a year. If you do not still have it, you are responsible for the value of it (NOT the price you paid).
Problems- Failure to outline, failure to proofread, lack of analysis.
6 Free Speech Exceptions
1. Clear and present danger (of inciting imminent lawless action)
2. Fighting words
3. Obscenity
4. Defamation
5. False advertising
6. Compelling government interest
6 Free Speech Concepts
1. Void for vagueness- law must be specific. "Offends passersby" struck down. If you are to curtail speech by law, you must be specific.
2. Void for overbreadth- "No nudity on tv until after 9pm" struck down, (diaper commercials, breast cancer psa).
3. Prior restraint- "A rule of ordinance restricting speech before it is uttered." Prior restraints are presumptively unconstitutional.
a) Injunction (court) -
b) Permit (government body) (Cantwell case) -
c) Licensing (tv/radio) - control of content through licensing
d) Censorship (FCC) -
4. Symbolic Speech - Conduct protected as speech. EX Boston Tea Party.
a) Pure speech - Literal talk, gets most amount of protection.
b) Speech plus (verbal and conduct) - Marching/rally/parade while delivering spoken message, gets less protection. "Freedom of Expression"
c) Symbolic speech (conduct) - EX Stromberg case, still protected, but less than other two.
5. Traditional forums - Areas that are known traditionally for free speech- town squares, public parks, city hall, city streets, etc. get more protection than other locations.
6. Police powers (time/place/manner) - Health, safety, welfare of citizens. State says- where, when, how, NOT if.
Speech Cases
New York Time v. U.S. (1971) - Prior restraint/Injunction- Pentagon Papers- leaked to NYT, injunction to stop publishing of papers. (Exception on clear and present danger- not granted, papers published.)
National Socialist Party v. Skoke (1977) - Prior restraint/Permit- Nazi March in Skoke IL- (Exception on clear and present danger- not granted.)
Stromberg v. California (1931) - Symbolic Speech- Summer camp red flag for communism- "Illegal to display any emblem of opposition to organized government."
Texas v. Johnson (1989) - Symbolic Speech- Burning American flag, protected. (Rehnquist dissent- An inarticulate grunt or roar.) (88% of American's believe it should be illegal.)
U.S. v. Haggerty (1990) - WA flag burning case
Edwards v. South Carolina (1963) - Protest march against discrimination while singing Star Spangled Banner- Symbolic speech. This case tests all 6 free speech concepts.
NOT required to know any of these cases for final.
Bankruptcy
"Capitalism without bankruptcy is like Christianity without hell."
Helps Everybody
Debtor- Fresh Start
Creditor- Process may allow creditor to step in and run company, etc. to benefit creditor
Society- rehabilitate to become successful tax paying citizen
Constitution allows bankruptcy
Relatively unique to US.
Refuge for the financially irresponsible, but also natural disaster, divorce, and severe economic dislocation (getting fired), illness = #1 cause, 62% of bankruptcies.
Every state has financial law to help debtors. Garnishment, foreclosure, receiverships.
Bankruptcy- Federal law only- Title 11
Chapter 7 - Liquidations - "no asset 7"- call it quits, ends business.
Chapter 9 - Municipalities - City goes bankrupt
Chapter 11 - Corporate reorganizations - buys time to restructure and emerge healthy, does not end business.
Chapter 12 - Family Farms - Designed for specific needs of farmers
Chapter 13 - Regular income reorganization - (previously "wage earner") extends time for repayment, usually at less than full amount owed. (doesn't need to be a job)
Chapter 15 - Foreign corporations (very limited)
7, 11, 13- most common
11 USC § 362 Automatic Stay ("362 Motion")
When a debtor files bankruptcy the second they file the automatic stay goes into effect to and protects debtor from any effort to collect a debt. (garnishment, foreclosure, lawsuits, collection notices, etc.) Anything done to collect a debt is VOID, after bankruptcy is filed.
Adequate Protection Hearing- 362(d)
Judge gives Debtor choice- lift stay or give adequate protection to creditors, assure them that they will not take the loss.
3 Forms
1. Cash - Stream of payments, may be less than amount owed.
2. Replacement Lien - Lien on another property, etc.
3. Equity in property - If sufficient equity in property to protect creditor, then stay will not be lifted.
Doesn't stop paternity actions, alimony, and criminal actions.
Before you can file you must go through professional debt counseling.
Debt forgiveness is TAXABLE. Debts discharged through bankruptcy are NOT taxable.
Chapter 7
Anybody can file. (Except cities, savings and loans, and banks, railroads.)
Involuntary Chapter 7 - Creditor can force Debtor
11 or fewer creditors, if one creditor is owed at least $10,775 and is not paying in reasonable course. (only one creditor must agree)
12 or more creditors, 3 must agree to put you into bankruptcy, one must be owed at least $10,775.
Trustee appointed- Marshall assets
Gather, liquidate, distribute to creditors.
If no assets, report no assets.
11 USC § 522- Exempt property- Fresh start, must allow enough to manage.
State also has exempt list- RCW 6.13-6.15
Must decide between State or Federal (no pick and choose, State usually more generous.)
Texas, Florida, Nevada- cannot take primary residence to satisfy debt, regardless of equity.
Tax Evasion (illegal) vs. Tax Avoidance (Legal)
Exempt property- It is NOT illegal to use non-exempt assets to purchase exempt property, exemptions exist to be taken advantage of.
Tools of the trade $2025 (stuff you need to make a living.)
Personal/Household goods ($475/$9850)
Health aids (100%)
Car ($3225)
Furniture ($525/$10,775)
Athletic/sporting equipment - In re Griffin
IRA
Prepaid mortgage/rent
Car repair
Life insurance
Down payment on house
Jewelry ($1350)
Liens- exemption is impaired
Trustee has power to set aside liens, provided the creditor has placed the liens. (Not by the bank, as a loan to you. If so you lose the lien exemption.)
Preference - § 547
Can you pay one creditor over the other? (Pay back your uncle, etc.)
If one creditor gets paid and the other does not, the Trustee can go to that creditor and DISGORGE the amount paid. If one creditor gets more than they are entitled to, the Trustee can get it back. Trustee goes back 90 days from filing of bankruptcy. If creditor is an "insider" (friends, family, etc.) Trustee can go back a year to examine who was paid.
Fraudulent Transfer § 548
Anybody that the Debtor gives property to for less than reasonable value. (Doesn't need to be market value, obviously a distressed sale.) Can be DISGORGED for a year. If you do not still have it, you are responsible for the value of it (NOT the price you paid).
Wednesday, May 11, 2011
5.11.11 Criminal & Family Law
Next week, special guest: Judge Robert W. Winsor
Personal and Community Property
- What mingling of assets occurred at time of marriage?
- Joint bank account, separate with joint, etc.
- Property acquired before marriage is personal property
- Inheritance is personal, but can become community if intermingled
All comes before the court for "just and equitable distribution".
- Debts are also property
Community Liability
- Tort
- What pool of assets is available to cover the debt?
- Was act in management or in benefit of the community?
Spousal Maintenance
- Economic Rehabilitation
- Lifestyle Maintenance
Statute
- Duration
- Standard of living
- Resources
- Time to acquire skills
- Needs
Short
-Less than 7 years
- Look back, return to pre-marriage condition
Medium
- Need, ability, and fairness
Long
- 25+ years
- Look forward, to balance economic disparity
CR 2a
Written agreements valid unless....
IRS
- Maintenance is tax deductible to payer, and taxable to recipient.
Presentence Reports
P = pass
+ = pass
P- = pass (could use improvement)
In-Class Project
- Interview Client Mark or Arnica Calhoun
- Create a list of legally significant facts to draft declaration
- Questions or targets for discovery (verifications, subpoenas, etc.)
- And develop case theory: strategy, property, parenting (what does client need and want)
• Use Divorce Checklist from course packet to frame issues
• Client goals
• What assets did you enter marriage with
• What skills and education did you enter marriage with
• Current situation- parenting/living (literally, room for child)
• Resources
• Needs (expertise, etc.)
• Danger Issues - domestic violence, drug use, etc.
- Child support paperwork and calculation
FOR NEXT CLASS- Create group list of questions and email to Andrew
(In family court motions to compel cost the client $3,000-5,000. Some questions go unanswered.) Organize what you know and be prepared for discussion.
Personal and Community Property
- What mingling of assets occurred at time of marriage?
- Joint bank account, separate with joint, etc.
- Property acquired before marriage is personal property
- Inheritance is personal, but can become community if intermingled
All comes before the court for "just and equitable distribution".
- Debts are also property
Community Liability
- Tort
- What pool of assets is available to cover the debt?
- Was act in management or in benefit of the community?
Spousal Maintenance
- Economic Rehabilitation
- Lifestyle Maintenance
Statute
- Duration
- Standard of living
- Resources
- Time to acquire skills
- Needs
Short
-Less than 7 years
- Look back, return to pre-marriage condition
Medium
- Need, ability, and fairness
Long
- 25+ years
- Look forward, to balance economic disparity
CR 2a
Written agreements valid unless....
IRS
- Maintenance is tax deductible to payer, and taxable to recipient.
Presentence Reports
P = pass
+ = pass
P- = pass (could use improvement)
In-Class Project
- Interview Client Mark or Arnica Calhoun
- Create a list of legally significant facts to draft declaration
- Questions or targets for discovery (verifications, subpoenas, etc.)
- And develop case theory: strategy, property, parenting (what does client need and want)
• Use Divorce Checklist from course packet to frame issues
• Client goals
• What assets did you enter marriage with
• What skills and education did you enter marriage with
• Current situation- parenting/living (literally, room for child)
• Resources
• Needs (expertise, etc.)
• Danger Issues - domestic violence, drug use, etc.
- Child support paperwork and calculation
FOR NEXT CLASS- Create group list of questions and email to Andrew
(In family court motions to compel cost the client $3,000-5,000. Some questions go unanswered.) Organize what you know and be prepared for discussion.
Tuesday, May 10, 2011
5.10.11 Complex Litigation
Lemon v. Kurtzman (1971)
3 prong test:
1. Valid secular purpose?
2. Primary purpose to advance/inhibit religion?
3. Danger/risk of excessive government entanglements?
ESTABLISHMENT CLAUSE
Lynch v. Donnelly (1984)
Reynolds v. U.S. (1878) - Poligamy and Mormons
Cantwell v. Conneticut (1940) - Jehovah's Witness soliciting on street
Sherbet v. Verner (1963) - 7th Day Adventist denied unemployment
Lyng v. NW Indian Cemetery (1988) - Sacred forest harvested for timber
Wisconsin v. Yoder (1972) - Amish education after 8th grade
Goldman v. Weinberger (1988) - Yamulke worn in Air Force
Dept. of Human Resources of OR v. Smith (1990) - Peyote smoking by Native Americans
Minnesota v. Hershberger (1990) - Amish buggy safety triangles
Religious Practice:
Religious belief is absolutely protected, no exceptions.
Conduct which is subversive to good order can be controlled and eliminated and prevented.
Government can control religious practice as long as it falls under the concepts below.
Restricting Free Exercise Concepts
1. Does the State have a compelling reason under police powers (health, safety, welfare, education)?
2. Is there a sincere religious principle which will be significantly compromised?
3. Is the restriction an outright prohibition or a mere inconvenience?
4. Is the restriction a legitimate time-place-manner* exercise, or an attack on content?
*when-where-how
"Supreme Court will not interfere with believe, can interfere with practice, and will uphold mere inconveniences."
Speech Restrictions - (1-3= most likely to see on final)
1. Clear present danger - of inciting imminent lawless action.
2. Fighting words - words by their very utterance inflict injury, likely to bring immediate, physical, visceral reaction. Must be directed to an individual.
3. Obscenity - LAPS Test- Lacks literary artistic, political, or scientific value. (Pornography is not necessarily obscene.)
4. False advertising -
5. Defamation
6. Compelling government interest - EX contempt of court, gag orders, closed courtrooms. (6th Amend. trumps 1st Amend.)
EXAM- Stick with the law, Bruce isn't looking for your opinion or a sociological evaluation.
Hugo Black- Absolute constitutional right to say anything, at anytime, to anyone.
(Not anywhere at anytime without consequences.)
Congress shall make no law abridging the freedom of speech.
FREEDOM OF SPEECH
Schenck v. U.S. (1919) - "The first amendment does not give one the right to shout fire in a crowded theater", speech which constitutes a clear and present danger is not constitutionally protected. Danger of what?...
Brandenburg v. Ohio (1969) - ...of inciting imminent lawless action. Teaching does not equal advocacy.
Chaplansky v. New Hampshire (1942) - Jehovah's Witness
Lewis v. New Orleans (1974) - Insult to police
Gooding v. Wilson (1972) - threat to police officer, not fighting words
Cohen v. California (1971) - "Fuck the Draft" written on jacket, not fighting words. "We are often captives outside the sanctity of the home." If you don't like it, stay home.
Jacobellis v. State of Ohio (1964) - "I can't define it, but I know it when I see it."
Miller v. California (1973) - LAPS Test- Lacks literary artistic, political, or scientific value.
N.Y. v. Ferber (1982) - Child pornography is obscene
Valentine v. Christensen (1942) - False advertising
N.Y. Times v. Sullivan (1964) -
N.Y. Times v. U.S. (1971) -
Phelps v. Snyder - Picketing funerals
3 prong test:
1. Valid secular purpose?
2. Primary purpose to advance/inhibit religion?
3. Danger/risk of excessive government entanglements?
ESTABLISHMENT CLAUSE
Lynch v. Donnelly (1984)
Reynolds v. U.S. (1878) - Poligamy and Mormons
Cantwell v. Conneticut (1940) - Jehovah's Witness soliciting on street
Sherbet v. Verner (1963) - 7th Day Adventist denied unemployment
Lyng v. NW Indian Cemetery (1988) - Sacred forest harvested for timber
Wisconsin v. Yoder (1972) - Amish education after 8th grade
Goldman v. Weinberger (1988) - Yamulke worn in Air Force
Dept. of Human Resources of OR v. Smith (1990) - Peyote smoking by Native Americans
Minnesota v. Hershberger (1990) - Amish buggy safety triangles
Religious Practice:
Religious belief is absolutely protected, no exceptions.
Conduct which is subversive to good order can be controlled and eliminated and prevented.
Government can control religious practice as long as it falls under the concepts below.
Restricting Free Exercise Concepts
1. Does the State have a compelling reason under police powers (health, safety, welfare, education)?
2. Is there a sincere religious principle which will be significantly compromised?
3. Is the restriction an outright prohibition or a mere inconvenience?
4. Is the restriction a legitimate time-place-manner* exercise, or an attack on content?
*when-where-how
"Supreme Court will not interfere with believe, can interfere with practice, and will uphold mere inconveniences."
Speech Restrictions - (1-3= most likely to see on final)
1. Clear present danger - of inciting imminent lawless action.
2. Fighting words - words by their very utterance inflict injury, likely to bring immediate, physical, visceral reaction. Must be directed to an individual.
3. Obscenity - LAPS Test- Lacks literary artistic, political, or scientific value. (Pornography is not necessarily obscene.)
4. False advertising -
5. Defamation
6. Compelling government interest - EX contempt of court, gag orders, closed courtrooms. (6th Amend. trumps 1st Amend.)
EXAM- Stick with the law, Bruce isn't looking for your opinion or a sociological evaluation.
Hugo Black- Absolute constitutional right to say anything, at anytime, to anyone.
(Not anywhere at anytime without consequences.)
Congress shall make no law abridging the freedom of speech.
FREEDOM OF SPEECH
Schenck v. U.S. (1919) - "The first amendment does not give one the right to shout fire in a crowded theater", speech which constitutes a clear and present danger is not constitutionally protected. Danger of what?...
Brandenburg v. Ohio (1969) - ...of inciting imminent lawless action. Teaching does not equal advocacy.
Chaplansky v. New Hampshire (1942) - Jehovah's Witness
Lewis v. New Orleans (1974) - Insult to police
Gooding v. Wilson (1972) - threat to police officer, not fighting words
Cohen v. California (1971) - "Fuck the Draft" written on jacket, not fighting words. "We are often captives outside the sanctity of the home." If you don't like it, stay home.
Jacobellis v. State of Ohio (1964) - "I can't define it, but I know it when I see it."
Miller v. California (1973) - LAPS Test- Lacks literary artistic, political, or scientific value.
N.Y. v. Ferber (1982) - Child pornography is obscene
Valentine v. Christensen (1942) - False advertising
N.Y. Times v. Sullivan (1964) -
N.Y. Times v. U.S. (1971) -
Phelps v. Snyder - Picketing funerals
Friday, May 6, 2011
5.5.11 Business Law
Guest Speakers from Attorney General's Office
Andrew -Torts/Employment Law
Gina -Labor Law
Andrew-
Title 7- Shouldn't have to trade your personal rights for a paycheck.
1. WHO- Employment Discrimination Law
Things you cannot change, gender, race, religion, (age, disability).
WA Law against discrimination/Fed. Title 7 -Disparate treatment/Disparate impact/Hostile work environment
a. Protected class
b. Adverse treatment- less favorably than non-protected class, or because of gender. Must be something other than an inconvenience. Must materially change terms and conditions or work.
c. Damages- Money or emotional distress.
Motion for Summary Judgment- Almost never direct evidence, usually circumstantial. Must prove prima facia case, inference of discrimination. Legitimate Non-Discriminatory Reason-Defense chance to show business related reason. Inference disappears unless employee can show pretext.
-"Our laws are not a workplace civility code."
-Must complain to EEOC, and receive right to sue
Age -40yrs+
Age discrimination and employment act- cannot sue state under.
Disability-
Am. with Disabilities Act- Accommodation process
Disability- Medically cognizable, exists as a matter of record, impacts one or more major life function & must be able to do job with or without accommodation.
Employer is NEVER required to give:
a. New boss
b. Displace existing employee
c. Remove essential function of position
2. WHAT- Employment Retaliation Law
Statutory Whistle Blower- state employees only
- Complains to State Auditors Office/Investigation/Employer takes action because of that/Adverse act/Damages
- Mistaken Identity - Employer believes you complained
- Providing information in investigation
1983 Claim
Employer/Individual, acting under state authority, violates federal rights, leading to damage.
1st Amend. Claims
Oppositional- Employee opposes employer practice
3rd Party Claims- Oppositional party's boyfriend fired, even though he did not participate.
Wrongful Discharge- Legislative or judicially protected activity/Adverse employment action
Cannot get:
-Job back
Can get:
-Wages (front or back wages)
-Special damages- Medical expenses, etc.
-Attorney's fees
-Nominal damages- $1, but if you get any award from jury you get attorney fees as matter of right.
3. OTHER- Workplace Related Violations
Statutory Wage loss claim-
Beach of Contract-
Outrage- Rare- Unwanted, horrible behavior, materially changes the nature of work.
Lilly Ledbetter Fair Pay Act- If your current pay is affected by previous discrimination; each paycheck is a new violation. Two year statute.
Gina-
Risk Management/Advice Giving - Personnel actions
Representing Employers in Grievance Arbitration
Unions
-Employment at Will vs. Termination for Cause
Forewarning, equal distribution of policy, investigation, and reasonable discipline.
-Improve wages, health benefits, working conditions.
Union Organization
-National Labor Relations Act
-Personnel System Reform Act RCW 41.80
-How are Unions formed and regulated?
Employees sign petition cards to join union. File, hold election (35% must vote), and certify. Employer has right to object to bargaining unit. May argue that signatures are forged, scope of unit does not share community of interest. Must also petition to de-certify.
Statutory Scheme
-RCW 41.56.100 and 41.56.030(4)
-Collective Bargaining- Limits direct dealing with employees.
Scope of items that must be bargained
-Permissive- Organizational structure, size of workforce, financial basis for layoff, direction and supervision.
-Mandatory- Wages, hours, terms and conditions of employment.
Decision vs. Effects of Decision
Even if decision is permissive, the effects of the decision must be bargained.
Duty to Bargain to Impasse
When neither party can come to agreement through continued discussion.
Elements of Good Faith
-Did employer comply with certain forms and procedures to avoid the impression of being perceived as acting in bad faith? Prompt meeting, work with bargaining team, direct dealing, counterproposals, negotiator's authority.
-What concessions were made?
-How accommodating was the employer?
Duty to supply info to Union- Request for Information
-To assist in coming to an agreement
Role of Strikes
-State employees not permitted to strike
Enforcement
-Grievance Resolution- Allegation of violation/misapplication/misinterpretation
Disciplinary vs. Contractual
Must exhaust grievance mediation before moving on to arbitration.
-Arbitration
Preparation- Meaning of contract provision, past practice, consistency, review negotiation history notes.
Research Arbitrators- similar issues heard and decision.
Unfair Labor Practice
-Refusal to bargain, unlawful discharge, discrimination for union activity, discouraging union involvement, etc.
-Must be timely- 6 months
Remedies
Reinstatement, wages, attorney fees.
NLRB National Labor Relations Board
-Can appeal to board
-Issue case decisions and advice memos
-PERC Public Employment Relations Commission relies on NLRB decisions
NLRB Arbitrators decisions published on website
Andrew -Torts/Employment Law
Gina -Labor Law
Andrew-
Title 7- Shouldn't have to trade your personal rights for a paycheck.
1. WHO- Employment Discrimination Law
Things you cannot change, gender, race, religion, (age, disability).
WA Law against discrimination/Fed. Title 7 -Disparate treatment/Disparate impact/Hostile work environment
a. Protected class
b. Adverse treatment- less favorably than non-protected class, or because of gender. Must be something other than an inconvenience. Must materially change terms and conditions or work.
c. Damages- Money or emotional distress.
Motion for Summary Judgment- Almost never direct evidence, usually circumstantial. Must prove prima facia case, inference of discrimination. Legitimate Non-Discriminatory Reason-Defense chance to show business related reason. Inference disappears unless employee can show pretext.
-"Our laws are not a workplace civility code."
-Must complain to EEOC, and receive right to sue
Age -40yrs+
Age discrimination and employment act- cannot sue state under.
Disability-
Am. with Disabilities Act- Accommodation process
Disability- Medically cognizable, exists as a matter of record, impacts one or more major life function & must be able to do job with or without accommodation.
Employer is NEVER required to give:
a. New boss
b. Displace existing employee
c. Remove essential function of position
2. WHAT- Employment Retaliation Law
Statutory Whistle Blower- state employees only
- Complains to State Auditors Office/Investigation/Employer takes action because of that/Adverse act/Damages
- Mistaken Identity - Employer believes you complained
- Providing information in investigation
1983 Claim
Employer/Individual, acting under state authority, violates federal rights, leading to damage.
1st Amend. Claims
Oppositional- Employee opposes employer practice
3rd Party Claims- Oppositional party's boyfriend fired, even though he did not participate.
Wrongful Discharge- Legislative or judicially protected activity/Adverse employment action
Cannot get:
-Job back
Can get:
-Wages (front or back wages)
-Special damages- Medical expenses, etc.
-Attorney's fees
-Nominal damages- $1, but if you get any award from jury you get attorney fees as matter of right.
3. OTHER- Workplace Related Violations
Statutory Wage loss claim-
Beach of Contract-
Outrage- Rare- Unwanted, horrible behavior, materially changes the nature of work.
Lilly Ledbetter Fair Pay Act- If your current pay is affected by previous discrimination; each paycheck is a new violation. Two year statute.
Gina-
Risk Management/Advice Giving - Personnel actions
Representing Employers in Grievance Arbitration
Unions
-Employment at Will vs. Termination for Cause
Forewarning, equal distribution of policy, investigation, and reasonable discipline.
-Improve wages, health benefits, working conditions.
Union Organization
-National Labor Relations Act
-Personnel System Reform Act RCW 41.80
-How are Unions formed and regulated?
Employees sign petition cards to join union. File, hold election (35% must vote), and certify. Employer has right to object to bargaining unit. May argue that signatures are forged, scope of unit does not share community of interest. Must also petition to de-certify.
Statutory Scheme
-RCW 41.56.100 and 41.56.030(4)
-Collective Bargaining- Limits direct dealing with employees.
Scope of items that must be bargained
-Permissive- Organizational structure, size of workforce, financial basis for layoff, direction and supervision.
-Mandatory- Wages, hours, terms and conditions of employment.
Decision vs. Effects of Decision
Even if decision is permissive, the effects of the decision must be bargained.
Duty to Bargain to Impasse
When neither party can come to agreement through continued discussion.
Elements of Good Faith
-Did employer comply with certain forms and procedures to avoid the impression of being perceived as acting in bad faith? Prompt meeting, work with bargaining team, direct dealing, counterproposals, negotiator's authority.
-What concessions were made?
-How accommodating was the employer?
Duty to supply info to Union- Request for Information
-To assist in coming to an agreement
Role of Strikes
-State employees not permitted to strike
Enforcement
-Grievance Resolution- Allegation of violation/misapplication/misinterpretation
Disciplinary vs. Contractual
Must exhaust grievance mediation before moving on to arbitration.
-Arbitration
Preparation- Meaning of contract provision, past practice, consistency, review negotiation history notes.
Research Arbitrators- similar issues heard and decision.
Unfair Labor Practice
-Refusal to bargain, unlawful discharge, discrimination for union activity, discouraging union involvement, etc.
-Must be timely- 6 months
Remedies
Reinstatement, wages, attorney fees.
NLRB National Labor Relations Board
-Can appeal to board
-Issue case decisions and advice memos
-PERC Public Employment Relations Commission relies on NLRB decisions
NLRB Arbitrators decisions published on website
5.4.11 Criminal & Family Law
Transition - Criminal to Family Law
Criminal
Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.
Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)
In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.
State interest in children being raised well. Who decides what that means? and where does authority come from?
Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution
Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance
Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.
Commity- state to state respect, marriage in another state stands in this state.
WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition
Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-
3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.
Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.
Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.
Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity
Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal
Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo
Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.
Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)
Emotional Component in Family Law Cases
Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed
Ethical Questions
Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)
Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people
Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken
Petition for Temporary Orders
-Custody
-Child support
Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child
-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).
Criminal
Collateral Consequences
Conviction for Domestic Violence Offense- Lose the ability to carry a firearm
Protection Order- Preponderance of the evidence, lose the ability to carry a firearm
- Disparity of power in relationship, can't have joint decisions making with regards to the kids.
State will press charges on victim's behalf if they choose not to press charges.
More domestic violence reported in low income areas- Immigration
If convicted they become deportable and will not be granted citizenship.
Possession of Marijuana- disqualifies you from any government funding (student loans, scholarships, etc.)
In warranted search where drugs, guns, etc. are found children will be put into foster care.
Dependency Action - Danger or neglect of children
(Civil action where state is a petitioner)
Parents often receive counseling, but these programs are usually the first cut due to budget issues.
State interest in children being raised well. Who decides what that means? and where does authority come from?
Rules of Family Law
Best interest of child
All property is fairly before the court for just and equitable distribution
Marriage
What gives government the right to determine who marries?
Early marriage- contract for property (woman)
Why does the government care?
-Taxes
-Health insurance
Loveless v. Virginia (1967)
State cannot prohibit African Americans from marrying someone of another race.
Commity- state to state respect, marriage in another state stands in this state.
WA No fault divorce state- Marriage must be "irretrievably broken"
Cooling off period- 90 days required after filing initial petition
Two method of dissolving a marriage
Legal Separation- debts incurred are separate, can be converted to dissolution after 6 months. Useful when religion does not allow divorce, and to maintain health insurance. (If kids go with Mom and Dad has the only insurance coverage, then the kids lose coverage too.)
Dissolution (Divorce)-
3 Ways to Get to Court on Family Law Matter
Dissolution (divorce)
Parentage Action - Paternity tests
Third-Party Action - Guardianship (Grandmother/Aunt/Etc. becomes legal guardian) Has become more difficult to have granted.
Prenuptials Agreement
Contract between two parties that shifts the law in this context
Legal in WA so long as they are fair, involve the full disclosure of resources, sufficient time for each individual to consider knowingly, and that everyone has opportunity to have counsel review.
As with all contracts- must be a meeting of the minds
If it seems to violate another law, the court would not uphold.
Annulment-
Void/Voidable- Distinction
Second Marriage (if already married) is VOID
If marriage is never consummated it is VOIDABLE
Nunc Pro Tunc- today it is deemed that at it's inception, this was the case. Order goes into effect on the day that the marriage took place.
Maritricious relationship (common law marriage)- looks so much like marriage that the state gives it validity
Petition for Parentage or Dissolution
Notice pleading - Temporary Orders - Prove service - Discovery (rogs, depos, formal docs-financials and income proof) - Motions - (ADR-Settlement Conference) - Discovery Cutoff - Trial - Discretionary Right to file an Appeal
Temporary Orders- Trial date may be 13month later, what happens in the meantime? Children must remain in state, insurance policies must be continued, bank accounts cannot be emptied, etc. ie. maintain the status quo
Enforcement of TO's
-Motion for Contempt usually only recourse RCW 721
If there is no remedial action that can be taken then there is no contempt.
Where curing the violation is impossible there can be no contempt.
For Contempt must find:
-They were aware the order existed
-Valid court order violated
-Compliance with court order is possible
If found the court has authority to issue compliance orders, sanctions, fines, and even jail time.
Order to Show Cause-
Preliminary showing sufficient for the Judge to issue an Order to Show Cause.
Summons to court to explain themselves and the violation before they may be found in contempt.
-Actual notice and actual service required (substantial not sufficient)
Emotional Component in Family Law Cases
Telling the Kids
Someone moves out
Coping with changes
Polarization of clients before trial
Personal life exposed
Ethical Questions
Decree of Dissolution
Custody Agreement/Child Support
Property Division
Spousal Maintenance - Read the Spousal Maintenance Debate for next class (in the class packet)
Do Over- bulk of family law is modification of orders (child support, parent plans, etc.)
Not allowed in all cases. Can become addictive to some people
Petition for Dissolution
-Marriage
-Location/Date
-Irreparable broken
Petition for Temporary Orders
-Custody
-Child support
Respond with:
-GAL Guardian ad Litem for child and also possibly Arnica
-Review hearing in 60 days with ability to hear issues de novo
-You can ask the court for anything as long as it is fair and equitable, and in best interest of child
-If temporary orders are allowed to stand until trial, it will be difficult to make changes at that time (custody of children, etc.).
Tuesday, May 3, 2011
5.3.11 Complex Litigation
MIDTERM handed out tonight- Due next week
Contract Remedies
Equitable -ONLY come into play when a legal remedy will not due
-specific performance
-injunctions CR 65 must prove irreparable harm, and likely to prevail on the merits
-rescission - undo contract, in case of fraud or misrepresentation
-reformation - "scrivener's error" typo, or other mistake in contract
-restitution
-quiet title - asking court for pronouncement of rights and interests of parties, exception to "ripeness"
-declaratory relief - does this particular event trigger coverage?
-constructive trust - court imposes trust on material (similar to injunction, holds the item in third party hands)
Legal (Monetary relief) - Three interests to protect.
1. Expectation- (aka "benefit of the bargain")- gain or profit you would have expected under the contract
2. Reliance- Losses suffered as a result of changing position (due to reliance)
3. Restitution- Return of the benefit conferred on the breaching party (give the item or money back, etc.)
Remember: Can seek BOTH equitable AND legal remedies
"Courtney"
Paid $20,000 (for horse worth 10k, told it was worth 50k)
FMV $10,000
Represented value $50,000
Expectation interest $30,000 -give back the horse
Reliance interest $10,000 -keep the horse
Restitution interest $20,000 -give back the horse
Fraud $40,000
"Brittany"
Paid $20,000 (for horse worth 20k, told it was worth 25k)
FMV $20,000
Represented value $25,000
Reliance $0
Restitution $20,000
"Crystal"
Paid $20,000 (for a horse worth 10k, told may eventually be worth more)
FMV "unlimited potential"
Represented value $10,000
Expectation interest $0
Restitution $20,000
Limitations on Damages
1. Reasonable certainty (must be able to ID damages with reasonable certainty)
2. Forseeability- Hadley v Baxendale (1854)
3. Mitigation - must affirmatively take steps to reduce their damages
4. Cannot IMPROVE position through breach of performance
Court hates to give damages without you proving what your damages actually were.
Liquidated Damages Clause
1) Reasonable in amount AND
2) Actual damages difficult to calculate
Only applies in certain cases.
"Time is of the essence" clauses do not trigger breach unless time really IS of the essence (performance loses most or all value if not timely rendered)
-Often included along with liquidated damages clause
First Amendment
1. Speech
2. Religion
3. Press
4. Assembly
5.
Establishment Clause-
Separationist View (minority)- Wall of separation between church and state
1947 Justice Hugo Black, Everson v. Board of Ed.
Accomodationist View- Requires government not hinder nor prefer religion but may neutrally assist all religion. Justice Warren Burger, Lemon v. Kurtzman (1971)
Test- 3 factors
1. Is there a valid secular (non-religious) purpose? -YES
2. Is the primary purpose to advance or hinder religion? -NO
3. Is there excessive entanglement? (need for constant monitoring) -NO
EX can government furnish school buses taking children to religious schools?
1. Yes
2. No
3. No
Answer- Pass
EX Can government furnish books on secular subjects to religious schools?
1. Yes
2. No
3. No
Answer- Pass
EX Can government subsidize teachers salaries for secular subjects in religious schools?
1. Yes
2. No
3. Yes
Answer- Fail
Prayer in School-
Engel v. Vitale (1962)
-Non-denominational prayer
Zorach v Clausen (1982)
Bible Study
Released time or dismissed time programs
"In God we trust"
Originally- from star spangled banner
Through rote repetition they have lost all meaning, used to impart solemnity.
81% of general population would vote for prayer in schools
We do not get to vote on amendments
Contract Remedies
Equitable -ONLY come into play when a legal remedy will not due
-specific performance
-injunctions CR 65 must prove irreparable harm, and likely to prevail on the merits
-rescission - undo contract, in case of fraud or misrepresentation
-reformation - "scrivener's error" typo, or other mistake in contract
-restitution
-quiet title - asking court for pronouncement of rights and interests of parties, exception to "ripeness"
-declaratory relief - does this particular event trigger coverage?
-constructive trust - court imposes trust on material (similar to injunction, holds the item in third party hands)
Legal (Monetary relief) - Three interests to protect.
1. Expectation- (aka "benefit of the bargain")- gain or profit you would have expected under the contract
2. Reliance- Losses suffered as a result of changing position (due to reliance)
3. Restitution- Return of the benefit conferred on the breaching party (give the item or money back, etc.)
Remember: Can seek BOTH equitable AND legal remedies
"Courtney"
Paid $20,000 (for horse worth 10k, told it was worth 50k)
FMV $10,000
Represented value $50,000
Expectation interest $30,000 -give back the horse
Reliance interest $10,000 -keep the horse
Restitution interest $20,000 -give back the horse
Fraud $40,000
"Brittany"
Paid $20,000 (for horse worth 20k, told it was worth 25k)
FMV $20,000
Represented value $25,000
Reliance $0
Restitution $20,000
"Crystal"
Paid $20,000 (for a horse worth 10k, told may eventually be worth more)
FMV "unlimited potential"
Represented value $10,000
Expectation interest $0
Restitution $20,000
Limitations on Damages
1. Reasonable certainty (must be able to ID damages with reasonable certainty)
2. Forseeability- Hadley v Baxendale (1854)
3. Mitigation - must affirmatively take steps to reduce their damages
4. Cannot IMPROVE position through breach of performance
Court hates to give damages without you proving what your damages actually were.
Liquidated Damages Clause
1) Reasonable in amount AND
2) Actual damages difficult to calculate
Only applies in certain cases.
"Time is of the essence" clauses do not trigger breach unless time really IS of the essence (performance loses most or all value if not timely rendered)
-Often included along with liquidated damages clause
First Amendment
1. Speech
2. Religion
3. Press
4. Assembly
5.
Establishment Clause-
Separationist View (minority)- Wall of separation between church and state
1947 Justice Hugo Black, Everson v. Board of Ed.
Accomodationist View- Requires government not hinder nor prefer religion but may neutrally assist all religion. Justice Warren Burger, Lemon v. Kurtzman (1971)
Test- 3 factors
1. Is there a valid secular (non-religious) purpose? -YES
2. Is the primary purpose to advance or hinder religion? -NO
3. Is there excessive entanglement? (need for constant monitoring) -NO
EX can government furnish school buses taking children to religious schools?
1. Yes
2. No
3. No
Answer- Pass
EX Can government furnish books on secular subjects to religious schools?
1. Yes
2. No
3. No
Answer- Pass
EX Can government subsidize teachers salaries for secular subjects in religious schools?
1. Yes
2. No
3. Yes
Answer- Fail
Prayer in School-
Engel v. Vitale (1962)
-Non-denominational prayer
Zorach v Clausen (1982)
Bible Study
Released time or dismissed time programs
"In God we trust"
Originally- from star spangled banner
Through rote repetition they have lost all meaning, used to impart solemnity.
81% of general population would vote for prayer in schools
We do not get to vote on amendments
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