Friday, February 12, 2010
Jackson Mississippi Snow Days and Driving Accidents
slow down and pay attention ...stay home if you can ..but if you have an accident call us immediately at 601 212 5433. We care cause we have been where you are now.
Thursday, February 4, 2010
child support how to maximize
Child Support
Who can be ordered to pay it?
A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis.
Many states now require that child support be paid by automatic deductions from the paycheck whenever available, thus reducing the need for subsequent enforcement actions.
Click Here! Book explains it all
Child Support
How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.
Child Support
What efforts can be taken to collect child support from the parent who does not pay?
When a parent fails to provide support for a child, the parents need to work together to make arrangements for mutual sharing of the expense of raising the child. For all parties concerned, the best solution is often found when parents work together.
In the situation where one parent does not cooperate in sharing the responsibility for child support, the controversy should be submitted to a court. The first step is to obtain an order for the payment of child support. Further action in the court for the purpose of collecting child support can be taken if the parent owing child support fails to comply with the court order for payment of child support. Like other enforcement of judgment actions, the available remedies range from simple to complex proceedings.
Click Here! Book explains it all
Wage assignments:
The most common "tool" used to collect child support payments that are not voluntarily made is through a wage assignment order. A wage assignment order is an order of the court directing the employer to deduct the child support payment from the earnings of the obligated parent and then make this payment directly to the obligee parent.
Violation of a wage assignment order could result in the employer becoming responsible for such payment to the custodial parent. assignment orders can be obtained through a relatively simple court procedure. Once obtained, the wage assignment order must be served upon the employer of the obligor parent before it becomes effective.
Enforcement action: When the obligated parent continually fails to make support payments, the total amount of the payments due and owing but not yet paid can be set as a judgment for further enforcement proceedings. Interest on the outstanding balance is often included as part of the judgment, since many states provide for interest to accrue on outstanding orders for support. The expense of an enforcement action to collect a judgment is justified as the amount due increases. When the obligor parent has income or property, there is financial incentive to pursue enforcement efforts and, with the assistance of professionals, well worth the effort and expense.
Attachment or levy: Child support can also be collected through other procedures. For example, if the obligated parent has money in a bank, a valuable automobile, an investment in a mutual fund, or an interest in a property in the possession of a third-party, an attachment or levy can be executed. When executing a levy or attachment, care must be taken since some property is exempt. In a levy or attachment proceeding, the court can have the property of the obligated parent "seized" or taken away and given to the custodial parent. Although an obligated parent may challenge the levy or attachment in court ("claim an exemption"), it can be very effective in obtaining payment of a child support judgment. Strict adherence to the established rules for levy and attachment is required to protect an obligated parent from an allegation theft of property.
Click Here! Book explains it all
Who can be ordered to pay it?
A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis.
Many states now require that child support be paid by automatic deductions from the paycheck whenever available, thus reducing the need for subsequent enforcement actions.
Click Here! Book explains it all
Child Support
How is the amount of child support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other.
Child Support
What efforts can be taken to collect child support from the parent who does not pay?
When a parent fails to provide support for a child, the parents need to work together to make arrangements for mutual sharing of the expense of raising the child. For all parties concerned, the best solution is often found when parents work together.
In the situation where one parent does not cooperate in sharing the responsibility for child support, the controversy should be submitted to a court. The first step is to obtain an order for the payment of child support. Further action in the court for the purpose of collecting child support can be taken if the parent owing child support fails to comply with the court order for payment of child support. Like other enforcement of judgment actions, the available remedies range from simple to complex proceedings.
Click Here! Book explains it all
Wage assignments:
The most common "tool" used to collect child support payments that are not voluntarily made is through a wage assignment order. A wage assignment order is an order of the court directing the employer to deduct the child support payment from the earnings of the obligated parent and then make this payment directly to the obligee parent.
Violation of a wage assignment order could result in the employer becoming responsible for such payment to the custodial parent. assignment orders can be obtained through a relatively simple court procedure. Once obtained, the wage assignment order must be served upon the employer of the obligor parent before it becomes effective.
Enforcement action: When the obligated parent continually fails to make support payments, the total amount of the payments due and owing but not yet paid can be set as a judgment for further enforcement proceedings. Interest on the outstanding balance is often included as part of the judgment, since many states provide for interest to accrue on outstanding orders for support. The expense of an enforcement action to collect a judgment is justified as the amount due increases. When the obligor parent has income or property, there is financial incentive to pursue enforcement efforts and, with the assistance of professionals, well worth the effort and expense.
Attachment or levy: Child support can also be collected through other procedures. For example, if the obligated parent has money in a bank, a valuable automobile, an investment in a mutual fund, or an interest in a property in the possession of a third-party, an attachment or levy can be executed. When executing a levy or attachment, care must be taken since some property is exempt. In a levy or attachment proceeding, the court can have the property of the obligated parent "seized" or taken away and given to the custodial parent. Although an obligated parent may challenge the levy or attachment in court ("claim an exemption"), it can be very effective in obtaining payment of a child support judgment. Strict adherence to the established rules for levy and attachment is required to protect an obligated parent from an allegation theft of property.
Click Here! Book explains it all
Wednesday, February 3, 2010
Bankruptcy facts
Upon the filing of a bankruptcy under any chapter, including but not limited to Chapters 7, 13, and 11, something called the "automatic stay" kicks in when you file and automatically halts the progress of all attempts to collect all debts, including existing lawsuits, repossessing your car, and garnishing your wages. If the creditor keeps hounding you after filing, you may take legal action. If found in contempt of court, they may have to pay you money damages.
The “automatic stay” is a rule that prevents any creditor from doing anything at all to enforce a claim against a debtor during the bankruptcy case. The granting of the stay depends on how many bankruptcies you have filed within 1 year.
Some examples of actions by a creditor that would violate the stay are these:
(1) Filing a new lawsuit, or continuing to press a lawsuit that had already been filed.
(2) Sending dunning letters or making phone calls in an attempt to collect a debt.
(3) Filing a “financing statement” to perfect a security interest.
(4) Refusing to issue a transcript of your schooling.
(5) Canceling your driver’s license.
Exceptions: Criminal prosecution, paternity proceedings, litigation to collect child support or alimony, repaying a loan from certain types of pensions, and IRS audits are not stopped. With residential real estate leases, landlords seeking to evict tenants are free to complete evictions if the landlord already has a judgment of possession or where the eviction is based on endangerment or use of illegal substances on the leased premises. Moreover, the automatic stay doesn't stop or postpone actions to suspend driver's licenses and revoke professional licenses.
utility company may not shut off service solely because you file bankruptcy or because you owe them money at the time you file. However, if you don’t give them an adequate deposit or other assurance of payment within 20 days after filing, the Bankruptcy Code allows them to shut off service. State utility regulations frequently have provisions that restrict utility shutoffs, however. For example, your state may not allow an energy company to shut off service during the winter months if that would deprive you of heat. Also for example, your state may not allow certain kinds of utility to demand a deposit from anyone.
Click Here! For more information on bankruptcy
Filing for bankruptcy protection does not allow your ex to discharge past due child support obligations. Any back payments owed for child support cannot be discharged in a bankruptcy proceeding. The automatic stay does not apply to child support collection efforts.
Under the post-October 17, 2005 rules, domestic support obligations are top priority in a Chapter 7 "asset case", where there are funds to pay creditors. The debtor should file a proof of claim to have most of his or her liquidated estate used to pay off the child support obligation.
In a Chapter 13 case, your back child support payments will be paid through your Chapter 13 plan, in addition to the regular payments due after the petition date. These support obligations must be current in order to have your Chapter 13 plan confirmed. Moreover, to obtain a discharge in a Chapter 13 case, the debtor will have to certify that all post-petition child support obligations have been met.
To put it another way, your ex's bankruptcy case shouldn't have any long-term effect on child support payments - and may even make it easier for him/her to make them, because he/she won't have as much other debt - but will complicate enforcement in the short term. Practically speaking, you will need an attorney's help.
Click Here! Info on child support
Filing a Chapter 7 case only temporarily sidetracks a lender's right to foreclose until it gets permission to go forward with the foreclosure proceedings by requesting and receiving "relief from the automatic stay" from the court. That relief is likely to be granted unless you can immediately bring your account up to date, demonstrate a likelihood and that you'll continue to make payments when due, and show that your equity in the home provides a sufficient "cushion" for the lender. In some bankruptcy districts, you must also negotiate a formal "reaffirmation agreement" with the lender.
A Chapter 7 never permanently stops a foreclosure, unless the creditor agrees and homestead (exemption) laws stop the trustee from selling the property.
Most people who file for bankruptcy have big back payments due on their mortgage that they can't pay off right away. The solution to that problem that allows them to keep their home is to file under Chapter 13 bankruptcy. The Chapter 13 plan provides for continuing monthly payments on the mortgage and paying off the amount in back payments over the life of the plan (three to five years).
Click Here!Foreclosure Defense Secrets here
The “automatic stay” is a rule that prevents any creditor from doing anything at all to enforce a claim against a debtor during the bankruptcy case. The granting of the stay depends on how many bankruptcies you have filed within 1 year.
Some examples of actions by a creditor that would violate the stay are these:
(1) Filing a new lawsuit, or continuing to press a lawsuit that had already been filed.
(2) Sending dunning letters or making phone calls in an attempt to collect a debt.
(3) Filing a “financing statement” to perfect a security interest.
(4) Refusing to issue a transcript of your schooling.
(5) Canceling your driver’s license.
Exceptions: Criminal prosecution, paternity proceedings, litigation to collect child support or alimony, repaying a loan from certain types of pensions, and IRS audits are not stopped. With residential real estate leases, landlords seeking to evict tenants are free to complete evictions if the landlord already has a judgment of possession or where the eviction is based on endangerment or use of illegal substances on the leased premises. Moreover, the automatic stay doesn't stop or postpone actions to suspend driver's licenses and revoke professional licenses.
utility company may not shut off service solely because you file bankruptcy or because you owe them money at the time you file. However, if you don’t give them an adequate deposit or other assurance of payment within 20 days after filing, the Bankruptcy Code allows them to shut off service. State utility regulations frequently have provisions that restrict utility shutoffs, however. For example, your state may not allow an energy company to shut off service during the winter months if that would deprive you of heat. Also for example, your state may not allow certain kinds of utility to demand a deposit from anyone.
Click Here! For more information on bankruptcy
Filing for bankruptcy protection does not allow your ex to discharge past due child support obligations. Any back payments owed for child support cannot be discharged in a bankruptcy proceeding. The automatic stay does not apply to child support collection efforts.
Under the post-October 17, 2005 rules, domestic support obligations are top priority in a Chapter 7 "asset case", where there are funds to pay creditors. The debtor should file a proof of claim to have most of his or her liquidated estate used to pay off the child support obligation.
In a Chapter 13 case, your back child support payments will be paid through your Chapter 13 plan, in addition to the regular payments due after the petition date. These support obligations must be current in order to have your Chapter 13 plan confirmed. Moreover, to obtain a discharge in a Chapter 13 case, the debtor will have to certify that all post-petition child support obligations have been met.
To put it another way, your ex's bankruptcy case shouldn't have any long-term effect on child support payments - and may even make it easier for him/her to make them, because he/she won't have as much other debt - but will complicate enforcement in the short term. Practically speaking, you will need an attorney's help.
Click Here! Info on child support
Filing a Chapter 7 case only temporarily sidetracks a lender's right to foreclose until it gets permission to go forward with the foreclosure proceedings by requesting and receiving "relief from the automatic stay" from the court. That relief is likely to be granted unless you can immediately bring your account up to date, demonstrate a likelihood and that you'll continue to make payments when due, and show that your equity in the home provides a sufficient "cushion" for the lender. In some bankruptcy districts, you must also negotiate a formal "reaffirmation agreement" with the lender.
A Chapter 7 never permanently stops a foreclosure, unless the creditor agrees and homestead (exemption) laws stop the trustee from selling the property.
Most people who file for bankruptcy have big back payments due on their mortgage that they can't pay off right away. The solution to that problem that allows them to keep their home is to file under Chapter 13 bankruptcy. The Chapter 13 plan provides for continuing monthly payments on the mortgage and paying off the amount in back payments over the life of the plan (three to five years).
Click Here!Foreclosure Defense Secrets here
Family Law Practice ..7 questions to ask
What is marital status?
Marital status refers to the lawful recognition of the agreement between a man and a woman to be husband and wife. Along with the legal marital status of being married, the husband and wife acquire rights and obligations to their respective spouses. The rights and obligations begin when the couple is married and may continue, to a certain extent, even after the termination of the marriage.
Marital status is one of the basic issues involved in a lawsuit for divorce (marital dissolution) or an annulment (nullity). At the end of a marital dissolution or nullity proceeding, the legal status of husband and wife is terminated and the spouses are returned to the legal status of being unmarried or single persons.
Marital status is automatically terminated upon the death of one spouse; the survivor becomes an unmarried person once again.
Click Here! hard hitting divorce advice
Can a couple become legally married by living together as man and wife under mississippi’s laws?
No
However a couple legally married at common law in another state is regarded as married in all states.
How can I obtain a tax deduction for a support payment?
In order for a support payment (other than any child support payment) to be eligible for an income tax deduction by the payer spouse, the following requirements must be met:
(1) The payment must be made in cash (including checks and money orders payable on demand, but excluding transfers of services or property)
(2) The payment must be made under either
(a) a divorce or separation instrument (a court order or decree of divorce or separation or a written instrument incident to such a decree or a decree which requires a spouse to make payments for the support or maintenance of the other spouse), or
(b) a written separation agreement between a husband and wife who are living apart requiring periodic payments because of the marital or family relationship (whether or not the agreement is a legally enforceable instrument)
(3) The spouses do not file a joint income tax return
(4) The written instrument or agreement does not provide for other tax treatment, and
(5) The payer has no liability to continue to make payment after the death of the other spouse.
Any child support included as part of an alimony, family support, separate maintenance or spousal support payment is not eligible for a deduction by the payer and is not taxable income to the supported spouse according to Federal income tax rules.
Click Here! hard hitting divorce advice
What is ‘legal separation?’
Legal separation is a formal judgment issued by a court of law that all the issues concerning a marriage have been resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct) with the exception of marital status. A judgment of a legal separation lawsuit leaves the couple with the legal status of married persons while settling the respective rights and obligations that each spouse has to the other. Spouses who are legally separated are not free to marry since neither has been returned to the legal status of an unmarried (single) person.
Legal separation is usually pursued when the parties want to stay married for religious reasons, want the advantage of deductability of spousal support payments for income tax reasons, or are do not want to wait the state statutory waiting period for termination of marital status. For some people, a legal separation is desired to set the parameters for dealing with one another while living separate and apart (especially with respect to continuing support obligations and child sharing issues) while maintaining the status of being married, and leaving the door open for a reunion/resumption of marriage.
Legal separation is not a prerequisite to divorce
Can a court order payment of support during the marriage?
Depending upon state law, one spouse may be ordered to pay support to the other spouse. One spouse may bring a lawsuit against the other spouse for his/her failure to provide support. In addition, if a county furnishes support to a spouse, the county may seek a court order to obtain reimbursement for support furnished, continuing support and attorney fees incurred in the action.
Can a court order spousal support before court date ?
Depending upon state law, one spouse may be ordered to pay support to the other spouse. One spouse may bring a lawsuit against the other spouse for his/her failure to provide support. In addition, if a county furnishes support to a spouse, the county may seek a court order to obtain reimbursement for support furnished, continuing support and attorney fees incurred in the action.
What is the difference between a ‘fault’ and a ‘no fault’ divorce?
Some states allow termination of marital status on both a basis of fault and alternatively on the basis of no fault. Grounds for fault include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease. The respective rights to distribution of property and spousal support can be affected by a spouse's fault in causing the breakdown of the marriage in some states.
In a no fault dissolution of marriage, a declaration by one spouse of the marriage that irreconcilable differences have arisen that neither time nor counseling will cure is sufficient grounds for a court to terminate the marriage and return the former spouses to the legal status of unmarried (single) persons. In a no fault divorce or dissolution of marriage, the actions of the respective spouses in the breakdown of the marriage does not affect property distribution or spousal support rights.
Mississippi is an option state.
Click Here! hard hitting divorce advice
How long will a spouse have to pay (or be able to receive) alimony?
Depending on the particular circumstances, alimony is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination.
If the supported spouse is of advanced age or suffers from a medical problem which would prevent this spouse from obtaining a career (thus preventing him/her from becoming self-supportive), alimony could be "permanent" (but subject to future modification based upon a material change in circumstances).
If there was a long term marriage (in California, for example, a marriage of ten years or longer is considered a long term marriage), a court may have continuing jurisdiction over the issue of spousal support. With continuing jurisdiction, a court may change the amount or duration of alimony payments from one spouse to the other any time in the future (although a material change in circumstances is usually necessary).In addition, typically a court order for alimony terminates upon the death or remarriage of the supported spouse.
I have taped some very abusive and harassing telephone conversations my , but am told that we cannot use these tapes in the court. Why?
Surreptitious tape recordings by telephone are illegal in most States, under their respective Penal (or Criminal) Codes. You must have permission, in most States, from the party being recorded or, at the very least, give the other person notice that the call is being recorded.
Can an ex-fiance go to court to get the ring back?
Whether you have to return a wedding ring if the wedding is called off depends on where you live and under what circumstances the ring came into your possession. It may also depend on who broke the engagement.
In the convoluted world of domestic relations, perhaps nothing is more confusing than the so-called "heart balm" statutes that were made the law in each of the various states, and then abolished more than a half century ago to be replaced with a hodgepodge of custom and modernity.
For the past 30 years, at least in New York, persons not under any impediment to marry have had the right to recover property given in contemplation of a marriage that didn't occur.
But in California, the courts have long called the gift of an engagement ring "implied conditional," and require its return on the breaking of the engagement by the recipient of the gift. However, if the man breaks the engagement, he cannot obtain the ring.
Engagement rings differ from other rings or jewelry in a number of states, which clearly are gifts that have no relationship to a marriage. And, if the relationship breaks up and the man wants it back, he must be prepared to lose the argument and to have no legal redress.
Other typical engagement gifts that are given by the intended to the beloved are treated the same way as state law treats the engagement ring.
When a marriage breaks up, there is a divorce, and the laws of all 50 states are geared to deal with it. An engagement breakup is less typical, and causes more headaches precisely because the parties frequently have no agreement that defines their rights.
There are a number of cases in which a married man, awaiting dissolution of a prior marriage, has become involved with a prospect for the position soon to be opening up, and gives an "engagement" ring to seal the transaction. If the relationship sours, the man cannot obtain the ring back since he lacked the legal right to enter the contract in the first place--because he was still married.
It's not the "right" emotional way to begin a marriage or an engagement, but if there is a valuable heirloom that you are planning to give your beloved, you may want to obtain a prenuptial agreement in which the disposition of this or other property is made clear should the marriage or the engagement sour, or if there is a problem in the short term following the marriage.
A prenuptial agreement is something that every contemporary couple planning to marry ought to carefully consider. It outlines certain rights, creates certain liabilities, but most important, sets forth what each party entering into matrimony expects of the other. It may sound callous, and may not be for everyone, but if the assets of the parties are sufficient, it is in the interest of both to do so while their heads are clear, and before the parties plan a life together.
If the assets aren't substantial, but the issues are the same, the parties can draw up a letter of agreement on their own: "We agree that in the event that the marriage does not take place that the following is the disposition of gifts received, including the engagement ring."
Marital status refers to the lawful recognition of the agreement between a man and a woman to be husband and wife. Along with the legal marital status of being married, the husband and wife acquire rights and obligations to their respective spouses. The rights and obligations begin when the couple is married and may continue, to a certain extent, even after the termination of the marriage.
Marital status is one of the basic issues involved in a lawsuit for divorce (marital dissolution) or an annulment (nullity). At the end of a marital dissolution or nullity proceeding, the legal status of husband and wife is terminated and the spouses are returned to the legal status of being unmarried or single persons.
Marital status is automatically terminated upon the death of one spouse; the survivor becomes an unmarried person once again.
Click Here! hard hitting divorce advice
Can a couple become legally married by living together as man and wife under mississippi’s laws?
No
However a couple legally married at common law in another state is regarded as married in all states.
How can I obtain a tax deduction for a support payment?
In order for a support payment (other than any child support payment) to be eligible for an income tax deduction by the payer spouse, the following requirements must be met:
(1) The payment must be made in cash (including checks and money orders payable on demand, but excluding transfers of services or property)
(2) The payment must be made under either
(a) a divorce or separation instrument (a court order or decree of divorce or separation or a written instrument incident to such a decree or a decree which requires a spouse to make payments for the support or maintenance of the other spouse), or
(b) a written separation agreement between a husband and wife who are living apart requiring periodic payments because of the marital or family relationship (whether or not the agreement is a legally enforceable instrument)
(3) The spouses do not file a joint income tax return
(4) The written instrument or agreement does not provide for other tax treatment, and
(5) The payer has no liability to continue to make payment after the death of the other spouse.
Any child support included as part of an alimony, family support, separate maintenance or spousal support payment is not eligible for a deduction by the payer and is not taxable income to the supported spouse according to Federal income tax rules.
Click Here! hard hitting divorce advice
What is ‘legal separation?’
Legal separation is a formal judgment issued by a court of law that all the issues concerning a marriage have been resolved (child custody, child visitation, child support, spousal support, distribution of property, attorney fees, and personal conduct) with the exception of marital status. A judgment of a legal separation lawsuit leaves the couple with the legal status of married persons while settling the respective rights and obligations that each spouse has to the other. Spouses who are legally separated are not free to marry since neither has been returned to the legal status of an unmarried (single) person.
Legal separation is usually pursued when the parties want to stay married for religious reasons, want the advantage of deductability of spousal support payments for income tax reasons, or are do not want to wait the state statutory waiting period for termination of marital status. For some people, a legal separation is desired to set the parameters for dealing with one another while living separate and apart (especially with respect to continuing support obligations and child sharing issues) while maintaining the status of being married, and leaving the door open for a reunion/resumption of marriage.
Legal separation is not a prerequisite to divorce
Can a court order payment of support during the marriage?
Depending upon state law, one spouse may be ordered to pay support to the other spouse. One spouse may bring a lawsuit against the other spouse for his/her failure to provide support. In addition, if a county furnishes support to a spouse, the county may seek a court order to obtain reimbursement for support furnished, continuing support and attorney fees incurred in the action.
Can a court order spousal support before court date ?
Depending upon state law, one spouse may be ordered to pay support to the other spouse. One spouse may bring a lawsuit against the other spouse for his/her failure to provide support. In addition, if a county furnishes support to a spouse, the county may seek a court order to obtain reimbursement for support furnished, continuing support and attorney fees incurred in the action.
What is the difference between a ‘fault’ and a ‘no fault’ divorce?
Some states allow termination of marital status on both a basis of fault and alternatively on the basis of no fault. Grounds for fault include adultery, physical or mental cruelty, desertion, alcohol or drug abuse, insanity, impotence or infecting the other spouse with a venereal disease. The respective rights to distribution of property and spousal support can be affected by a spouse's fault in causing the breakdown of the marriage in some states.
In a no fault dissolution of marriage, a declaration by one spouse of the marriage that irreconcilable differences have arisen that neither time nor counseling will cure is sufficient grounds for a court to terminate the marriage and return the former spouses to the legal status of unmarried (single) persons. In a no fault divorce or dissolution of marriage, the actions of the respective spouses in the breakdown of the marriage does not affect property distribution or spousal support rights.
Mississippi is an option state.
Click Here! hard hitting divorce advice
How long will a spouse have to pay (or be able to receive) alimony?
Depending on the particular circumstances, alimony is ordered to be paid during the time period that the supported spouse is seeking education, training, and marketable job skills in order to establish a career or otherwise become self-supportive. Consideration of the responsibility for providing child care during the early years of a minor child factors into this determination.
If the supported spouse is of advanced age or suffers from a medical problem which would prevent this spouse from obtaining a career (thus preventing him/her from becoming self-supportive), alimony could be "permanent" (but subject to future modification based upon a material change in circumstances).
If there was a long term marriage (in California, for example, a marriage of ten years or longer is considered a long term marriage), a court may have continuing jurisdiction over the issue of spousal support. With continuing jurisdiction, a court may change the amount or duration of alimony payments from one spouse to the other any time in the future (although a material change in circumstances is usually necessary).In addition, typically a court order for alimony terminates upon the death or remarriage of the supported spouse.
I have taped some very abusive and harassing telephone conversations my , but am told that we cannot use these tapes in the court. Why?
Surreptitious tape recordings by telephone are illegal in most States, under their respective Penal (or Criminal) Codes. You must have permission, in most States, from the party being recorded or, at the very least, give the other person notice that the call is being recorded.
Can an ex-fiance go to court to get the ring back?
Whether you have to return a wedding ring if the wedding is called off depends on where you live and under what circumstances the ring came into your possession. It may also depend on who broke the engagement.
In the convoluted world of domestic relations, perhaps nothing is more confusing than the so-called "heart balm" statutes that were made the law in each of the various states, and then abolished more than a half century ago to be replaced with a hodgepodge of custom and modernity.
For the past 30 years, at least in New York, persons not under any impediment to marry have had the right to recover property given in contemplation of a marriage that didn't occur.
But in California, the courts have long called the gift of an engagement ring "implied conditional," and require its return on the breaking of the engagement by the recipient of the gift. However, if the man breaks the engagement, he cannot obtain the ring.
Engagement rings differ from other rings or jewelry in a number of states, which clearly are gifts that have no relationship to a marriage. And, if the relationship breaks up and the man wants it back, he must be prepared to lose the argument and to have no legal redress.
Other typical engagement gifts that are given by the intended to the beloved are treated the same way as state law treats the engagement ring.
When a marriage breaks up, there is a divorce, and the laws of all 50 states are geared to deal with it. An engagement breakup is less typical, and causes more headaches precisely because the parties frequently have no agreement that defines their rights.
There are a number of cases in which a married man, awaiting dissolution of a prior marriage, has become involved with a prospect for the position soon to be opening up, and gives an "engagement" ring to seal the transaction. If the relationship sours, the man cannot obtain the ring back since he lacked the legal right to enter the contract in the first place--because he was still married.
It's not the "right" emotional way to begin a marriage or an engagement, but if there is a valuable heirloom that you are planning to give your beloved, you may want to obtain a prenuptial agreement in which the disposition of this or other property is made clear should the marriage or the engagement sour, or if there is a problem in the short term following the marriage.
A prenuptial agreement is something that every contemporary couple planning to marry ought to carefully consider. It outlines certain rights, creates certain liabilities, but most important, sets forth what each party entering into matrimony expects of the other. It may sound callous, and may not be for everyone, but if the assets of the parties are sufficient, it is in the interest of both to do so while their heads are clear, and before the parties plan a life together.
If the assets aren't substantial, but the issues are the same, the parties can draw up a letter of agreement on their own: "We agree that in the event that the marriage does not take place that the following is the disposition of gifts received, including the engagement ring."
Saturday, January 23, 2010
Estate Planning attorney ...fundamentals
* First, what is estate planning ?
Estate planning is a process to consider what you want if something happens to you or those you care about, such as injury, incapacity or death.
Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees and sets up contingency planning to make sure your wishes regarding health care treatment are followed. In cases with estates of married couples, the spousal exemption may cover the first deceased properties, BUT the surviving spouse wants to make certain the remainder of the estate is processed according to their wishes.
On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die.
On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters. If you ever become unable to give the directions yourself, someone you select would do that for you. Because they would be relying on your instructions, they would know when you would want them to authorize heroic measures and when you would prefer they pull the plug. The appointed person in this case is given specific instructions by YOU to follow.
* next, what is my estate?
The term "estate" consists of all the property a person owns or controls, that is the simple definition. This property may be in his or her sole name, held in a partnership, in a joint ownership arrangement, or through a Trust, and all other monies that would be generated on the person's death, such as through life insurance. So now it gets a little complicated..your estate includes:
(1) Real property and things attached to it (houses, buildings, barns, etc.);
(2) All personal property (including automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, art, collectibles, etc.);
(3) All businesses and business interests (sole proprietorship, partnerships, corporations, joint ventures, and the goodwill, inventory, tools and equipment, accounts receivable, and other business property, etc.); see it gets a little complicated pretty quickly
(4) Powers of appointment (the right to direct who gets property, both real and personal);
(5) Life insurance and annuity contracts, pension benefits, IRAs, 403(b)s, etc.;
(6) All debts and obligations owed to others;
(7) All debts and obligations owed to the person or estate; and
8) All other claims against others, such as for the pain and suffering from an auto accident.
An estate does not include assets a person has transferred to an irrevocable Trust during his or her lifetime. This is a legal instrument created during the estate planning process. A trust is legally a
separate'person'
If a Trust is irrevocable, it means the assets can’t be taken back. So once the transfer is made, the person no longer owns or controls those assets, even if the Trust continues to benefit that person.
. Property that the deceased has placed in a revocable Trust, such as a Living Trust, irrevocably belong to the Trust when the person who set up the Trust (Trustor) dies ( most like that is YOU or your spouse or Both of you ),
and all the assets of the Trust are no longer part of the deceased’s estate (though they may be considered for tax purposes).
Other property is also excluded from the estate when the property passes directly to another on the former owner’s death. contact us for details.
*When should I start my estate plan?
Well, the quick answer is NOW if you are reading this far into this site. You have to have the legal capacity to execute the prepared documents for the instruments to be enforceable. I know this sounds scary , but we can become mentally incapacitated at almost anytime, due to sudden sickness (a stroke), or through accidents. So now is the best time.
We all tend to think we don’t have to worry about this sort of thing until we’re old or sick, but we know from experience that isn’t true. If you drive a car, ride in a motor vehicle of any kind, fly, take medicinal drugs, or otherwise live a normal life, you could be in an accident, suffer a sudden drug reaction, or catch the latest epedemic,what will happen to your life and your affairs if you’re in a coma for 2 months?
One aspect of an estate plan will allow you to name the person to oversee your medical care and make health care decisions for you. If you don’t appoint someone and there is no family member to fill this role, the courts could appoint a stranger to decide what kind of care you should receive and whether you should receive life support or not.
We also don’t know when we’re going to die, another reason to make plans right away. Effective planning can save money in taxes and probate costs that can go to people you care about instead. If you die without planning, your property could go to people you don’t want to have it and property you wanted to pass on could be sold to pay taxes and costs.
The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract.
If you wait until you are unable to manage your own affairs or suffer from some other disability that affects your legal capacity, it will be too late to make an effective estate plan because the plans may be effectively challenged by those who assert that you lacked capacity at the time the documents were created or that you were subject to fraud, coercion or undue influence during the creation and implementation of your plan.
So, again, the best time to start an estate plan is now.
One more point before you contact us
*How can an estate plan prevent probate of my estate and why should I want to avoid probate? ( by the way , what is probate?)
Probate occurs when a court from gains jurisdiction over your estate in the event of your death.This happens when NO planning has been made.
The Durable Power of Attorney for Property ( an instrument YOU create with our supervision) enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be imminent.
A common technique used by your attorney-in-fact, who is often your Successor Trustee (The trustee who takes over when the initial trustee can no longer function) is to transfer property which is not currently held in your Trust into your Trust prior to you death so legal title to the property is held by the Trust at the time of your death.
Still with me here ? good
Both the use of trusts and Family Limited Partnership are legal entities which survive you after your death. Property held by a Trust or a Family Limited Partnership in legal title is held by that entity, and is thus not part of your estate at the time of your death. The instructions for the management of your property are set forth by you in these documents. This is the type of planning that needs to be NOW, so that all your assets are protected from probate.
Since you no longer own the property, it is not part of your estate at the time of your death. Only property you own at your death is subject to probate, so the assets owned by these entities would not have to go through that process.
The instructions for the management of your property are set forth in the Trust and Partnership documents by YOU, and the Trust or Partnership assets are managed by Successor Trustees or other Partners in the event of your incapacity or death.
In probate, the court oversees the transfer of assets from the deceased to others, but since the assets already belong to these entities there is no need to have the court involved, and the Trust or Partnership operates outside the court’s supervision. By getting a Trust or Family Limited Partnership in place and transferring ownership of particular properties to it, you avoid the need to get a court involved either with a Conservatorship (Conservatorship is a legal concept in the United States of America, where an entity or organization is subjected to the legal control of an external entity or organization, known as a conservator. Conservatorship is established either by court order (with regards to individuals) in the event of your incapacity, or probate in the event of your death. That means that should you die with an estate and NO plans, your life works are immediately under the supervision of the courts..it is too late. The courts normally appoint a conservator ( a person or a legal firm) to ascertain the proper disposition of your assets.
see why you want to avoid probate?
A Durable Power of Attorney for Property can help your representative deal with property that has not been transferred to a Trust. This document enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be in the near future.
Property can also pass outside of probate if it goes directly to a beneficiary on the death of the deceased. This is true for example of insurance policies, pension plans, and bonds that have a named beneficiary.
It’s true of property that is jointly owned with a right of Survivorship ..that means you own property together. On the death of one owner, the other owner(s) own that person’s interest automatically. Bank accounts can also be set up to pass directly to a beneficiary when the person who set up the account dies.
A well coordinated estate plan can not only avoid probate but help you maintain a semblance of control over your property even after your death.
To put all of this in simpler terms, the assets you have now can be compared to different jars...jars full of 'stuff'. IF you keep all your jars together with no directions about how the jars are to be distributed upon your death , then the state steps in and makes those decisions.
If on the other hand, you take your jars, and put them into different boxes, with labels on the boxes, directions about who gets what and when, then the 'stuff' in the jars is preserved.
contact us for a free consultation.
Estate planning is a process to consider what you want if something happens to you or those you care about, such as injury, incapacity or death.
Good estate planning is more than just a simple Will. Estate planning also typically minimizes potential taxes and fees and sets up contingency planning to make sure your wishes regarding health care treatment are followed. In cases with estates of married couples, the spousal exemption may cover the first deceased properties, BUT the surviving spouse wants to make certain the remainder of the estate is processed according to their wishes.
On the financial side, a good estate plan coordinates what would happen with your home, your investments, your business, your life insurance, your employee benefits (such as a 401K plan), and other property in the event you became disabled or if you die.
On the personal side, a good estate plan includes directions to carry out your wishes regarding health care matters. If you ever become unable to give the directions yourself, someone you select would do that for you. Because they would be relying on your instructions, they would know when you would want them to authorize heroic measures and when you would prefer they pull the plug. The appointed person in this case is given specific instructions by YOU to follow.
* next, what is my estate?
The term "estate" consists of all the property a person owns or controls, that is the simple definition. This property may be in his or her sole name, held in a partnership, in a joint ownership arrangement, or through a Trust, and all other monies that would be generated on the person's death, such as through life insurance. So now it gets a little complicated..your estate includes:
(1) Real property and things attached to it (houses, buildings, barns, etc.);
(2) All personal property (including automobiles, bank accounts, stocks and bonds, mutual funds, stock options, cash, furniture, jewelry, art, collectibles, etc.);
(3) All businesses and business interests (sole proprietorship, partnerships, corporations, joint ventures, and the goodwill, inventory, tools and equipment, accounts receivable, and other business property, etc.); see it gets a little complicated pretty quickly
(4) Powers of appointment (the right to direct who gets property, both real and personal);
(5) Life insurance and annuity contracts, pension benefits, IRAs, 403(b)s, etc.;
(6) All debts and obligations owed to others;
(7) All debts and obligations owed to the person or estate; and
8) All other claims against others, such as for the pain and suffering from an auto accident.
An estate does not include assets a person has transferred to an irrevocable Trust during his or her lifetime. This is a legal instrument created during the estate planning process. A trust is legally a
separate'person'
If a Trust is irrevocable, it means the assets can’t be taken back. So once the transfer is made, the person no longer owns or controls those assets, even if the Trust continues to benefit that person.
. Property that the deceased has placed in a revocable Trust, such as a Living Trust, irrevocably belong to the Trust when the person who set up the Trust (Trustor) dies ( most like that is YOU or your spouse or Both of you ),
and all the assets of the Trust are no longer part of the deceased’s estate (though they may be considered for tax purposes).
Other property is also excluded from the estate when the property passes directly to another on the former owner’s death. contact us for details.
*When should I start my estate plan?
Well, the quick answer is NOW if you are reading this far into this site. You have to have the legal capacity to execute the prepared documents for the instruments to be enforceable. I know this sounds scary , but we can become mentally incapacitated at almost anytime, due to sudden sickness (a stroke), or through accidents. So now is the best time.
We all tend to think we don’t have to worry about this sort of thing until we’re old or sick, but we know from experience that isn’t true. If you drive a car, ride in a motor vehicle of any kind, fly, take medicinal drugs, or otherwise live a normal life, you could be in an accident, suffer a sudden drug reaction, or catch the latest epedemic,what will happen to your life and your affairs if you’re in a coma for 2 months?
One aspect of an estate plan will allow you to name the person to oversee your medical care and make health care decisions for you. If you don’t appoint someone and there is no family member to fill this role, the courts could appoint a stranger to decide what kind of care you should receive and whether you should receive life support or not.
We also don’t know when we’re going to die, another reason to make plans right away. Effective planning can save money in taxes and probate costs that can go to people you care about instead. If you die without planning, your property could go to people you don’t want to have it and property you wanted to pass on could be sold to pay taxes and costs.
The only time that you can prepare and implement an estate plan is while you are alive and have legal capacity to enter into a contract.
If you wait until you are unable to manage your own affairs or suffer from some other disability that affects your legal capacity, it will be too late to make an effective estate plan because the plans may be effectively challenged by those who assert that you lacked capacity at the time the documents were created or that you were subject to fraud, coercion or undue influence during the creation and implementation of your plan.
So, again, the best time to start an estate plan is now.
One more point before you contact us
*How can an estate plan prevent probate of my estate and why should I want to avoid probate? ( by the way , what is probate?)
Probate occurs when a court from gains jurisdiction over your estate in the event of your death.This happens when NO planning has been made.
The Durable Power of Attorney for Property ( an instrument YOU create with our supervision) enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be imminent.
A common technique used by your attorney-in-fact, who is often your Successor Trustee (The trustee who takes over when the initial trustee can no longer function) is to transfer property which is not currently held in your Trust into your Trust prior to you death so legal title to the property is held by the Trust at the time of your death.
Still with me here ? good
Both the use of trusts and Family Limited Partnership are legal entities which survive you after your death. Property held by a Trust or a Family Limited Partnership in legal title is held by that entity, and is thus not part of your estate at the time of your death. The instructions for the management of your property are set forth by you in these documents. This is the type of planning that needs to be NOW, so that all your assets are protected from probate.
Since you no longer own the property, it is not part of your estate at the time of your death. Only property you own at your death is subject to probate, so the assets owned by these entities would not have to go through that process.
The instructions for the management of your property are set forth in the Trust and Partnership documents by YOU, and the Trust or Partnership assets are managed by Successor Trustees or other Partners in the event of your incapacity or death.
In probate, the court oversees the transfer of assets from the deceased to others, but since the assets already belong to these entities there is no need to have the court involved, and the Trust or Partnership operates outside the court’s supervision. By getting a Trust or Family Limited Partnership in place and transferring ownership of particular properties to it, you avoid the need to get a court involved either with a Conservatorship (Conservatorship is a legal concept in the United States of America, where an entity or organization is subjected to the legal control of an external entity or organization, known as a conservator. Conservatorship is established either by court order (with regards to individuals) in the event of your incapacity, or probate in the event of your death. That means that should you die with an estate and NO plans, your life works are immediately under the supervision of the courts..it is too late. The courts normally appoint a conservator ( a person or a legal firm) to ascertain the proper disposition of your assets.
see why you want to avoid probate?
A Durable Power of Attorney for Property can help your representative deal with property that has not been transferred to a Trust. This document enables your attorney-in-fact to handle your financial affairs and make last minute arrangements should your death be in the near future.
Property can also pass outside of probate if it goes directly to a beneficiary on the death of the deceased. This is true for example of insurance policies, pension plans, and bonds that have a named beneficiary.
It’s true of property that is jointly owned with a right of Survivorship ..that means you own property together. On the death of one owner, the other owner(s) own that person’s interest automatically. Bank accounts can also be set up to pass directly to a beneficiary when the person who set up the account dies.
A well coordinated estate plan can not only avoid probate but help you maintain a semblance of control over your property even after your death.
To put all of this in simpler terms, the assets you have now can be compared to different jars...jars full of 'stuff'. IF you keep all your jars together with no directions about how the jars are to be distributed upon your death , then the state steps in and makes those decisions.
If on the other hand, you take your jars, and put them into different boxes, with labels on the boxes, directions about who gets what and when, then the 'stuff' in the jars is preserved.
contact us for a free consultation.
Medical Malpractice...7 questions
what exactly is malpractice?
Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills at the level of care, skill and learning applied in similar circumstances by the average reputable member of the profession. Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.
In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professional's services. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
Can Doctors be the only professional to sue for malpractice?
In theory, any professional who renders services upon which you and others rely can commit malpractice. Often, the professional is licensed or regulated by the state.
Accountants, attorneys, actuaries, hospital, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action." When others engage in malpractice, the action is usually not specifically called malpractice, but negligence.
Only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
What is medical malpractice?
Legal liability in most medical malpractice cases revolves around the concept of “negligence.” To win a medical malpractice case, you must prove:
1) the doctor had a duty to you (in other words, there was a doctor-patient relationship; e.g., if you call a new doctor on the telephone and talk to a nurse, a doctor-patient relationship has probably not yet been established);
2) the doctor did something in diagnosing or treating you that no reasonable doctor would have done in similar circumstances;
3) the doctor injured you; or
4) the doctor’s treatment errors caused your injury.
Although we refer to “doctors” in this material, a medical malpractice lawsuit can include all types of health care professionals: doctors, nurses, psychologists, and hospitals.
If you have sustained losses due to the negligence of a medical professional, you should seek the advice of a medical malpractice attorney, and do so quickly to ensure your rights are preserved.
If a surgery or procedure performed by doctor is NOT successful, is that malpractice?
Not every medical injury is the result of medical malpractice. Operations and treatments are not always successful; doctors don’t perform miracles. An unfortunate outcome or injury - even death – may occur, but unexpected circumstances do not mean that the doctor botched your surgery or treatment or committed medical malpractice. The law recognizes that medicine is not a precise science and that doctors cannot guarantee results. However, the doctor is liable if he or she does not live up to the appropriate professional standards.
For example, a doctor may commit medical malpractice if he or she fails to diagnose an illness, fails to do tests, makes surgical errors, delays treatment, or makes a medication error.
Medical malpractice litigation is usually highly contested, expensive, and strongly defended. It requires detailed knowledge of medical procedures and the use of expert testimony from other doctors. Medical malpractice cases require skilled legal advice. You are better served by having an experienced medical malpractice attorney weigh the pros and cons of filing suit and determining whether you should pursue the matter. Contact us immediately for experienced help.
Ok, what alternatives do I have instead of suing for malpractice?
Your first step could be to contact the profession who rendered the service. The professional may not be aware that there is a problem and that something needs to be done.
Most professionals are honest and diligent, although as they are still human they can make mistakes. Where the mistake can be corrected, many professionals who become aware of a problem take the necessary steps to provide a remedy -- without the need for any further action.
Most professionals welcome the opportunity to make things right when given the chance -- this helps you obtain immediate relief and lets the professional correct the problem before any others are hurt.
State regulatory boards and licensing authorities also often regulate the practice of professionals rendering service within the state. As part of the regulation of professional practices, these state agencies or organizations typically have review and disciplinary functions. Penalties and fines -- as well as the suspension or revocation of authority to render services in the state -- can be imposed by state agencies and organizations
If you feel that a professional has committed malpractice, and you have been damaged, you should consult with an attorney. That can set the wheels in motion both to enable you to recover for the harm you were caused and to stop offending behavior by that and other professionals. contact us
How to recover any damages due to malpractice?
Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do. Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice (i.e., malpractice that you can base a lawsuit on).
You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you he or she was at fault. Often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.
If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved. contact us
Are emergency response teams , like EMR, firemen, even physicians exempt from Malpractice when they respond to an emergency situation?
Yes. Most states have enacted laws that protect medical and fire professionals from liability if they stop to assist at the scene of an accident.
Malpractice may arise from a professional's misconduct or failure to use adequate levels of care, skill or diligence in the performance of the professional's duties that causes harm to another. Malpractice typically occurs if a professional fails to exercise his or her professional skills at the level of care, skill and learning applied in similar circumstances by the average reputable member of the profession. Comparison of performance is based upon the standard of care for the professional in the "community" - what other professionals in the same field do for their clients who are located in the same geographic area.
In order for malpractice to be actionable, injury, loss or damage must be suffered by the person who retained the professional's services, or those otherwise entitled to benefit from or rely upon the professional's services. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
Can Doctors be the only professional to sue for malpractice?
In theory, any professional who renders services upon which you and others rely can commit malpractice. Often, the professional is licensed or regulated by the state.
Accountants, attorneys, actuaries, hospital, chiropractors, dentists, physicians, psychologists and therapists are typically the persons named in a "malpractice action." When others engage in malpractice, the action is usually not specifically called malpractice, but negligence.
Only those who hold themselves out as having special skills or abilities are held accountable in malpractice litigation. If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved.
What is medical malpractice?
Legal liability in most medical malpractice cases revolves around the concept of “negligence.” To win a medical malpractice case, you must prove:
1) the doctor had a duty to you (in other words, there was a doctor-patient relationship; e.g., if you call a new doctor on the telephone and talk to a nurse, a doctor-patient relationship has probably not yet been established);
2) the doctor did something in diagnosing or treating you that no reasonable doctor would have done in similar circumstances;
3) the doctor injured you; or
4) the doctor’s treatment errors caused your injury.
Although we refer to “doctors” in this material, a medical malpractice lawsuit can include all types of health care professionals: doctors, nurses, psychologists, and hospitals.
If you have sustained losses due to the negligence of a medical professional, you should seek the advice of a medical malpractice attorney, and do so quickly to ensure your rights are preserved.
If a surgery or procedure performed by doctor is NOT successful, is that malpractice?
Not every medical injury is the result of medical malpractice. Operations and treatments are not always successful; doctors don’t perform miracles. An unfortunate outcome or injury - even death – may occur, but unexpected circumstances do not mean that the doctor botched your surgery or treatment or committed medical malpractice. The law recognizes that medicine is not a precise science and that doctors cannot guarantee results. However, the doctor is liable if he or she does not live up to the appropriate professional standards.
For example, a doctor may commit medical malpractice if he or she fails to diagnose an illness, fails to do tests, makes surgical errors, delays treatment, or makes a medication error.
Medical malpractice litigation is usually highly contested, expensive, and strongly defended. It requires detailed knowledge of medical procedures and the use of expert testimony from other doctors. Medical malpractice cases require skilled legal advice. You are better served by having an experienced medical malpractice attorney weigh the pros and cons of filing suit and determining whether you should pursue the matter. Contact us immediately for experienced help.
Ok, what alternatives do I have instead of suing for malpractice?
Your first step could be to contact the profession who rendered the service. The professional may not be aware that there is a problem and that something needs to be done.
Most professionals are honest and diligent, although as they are still human they can make mistakes. Where the mistake can be corrected, many professionals who become aware of a problem take the necessary steps to provide a remedy -- without the need for any further action.
Most professionals welcome the opportunity to make things right when given the chance -- this helps you obtain immediate relief and lets the professional correct the problem before any others are hurt.
State regulatory boards and licensing authorities also often regulate the practice of professionals rendering service within the state. As part of the regulation of professional practices, these state agencies or organizations typically have review and disciplinary functions. Penalties and fines -- as well as the suspension or revocation of authority to render services in the state -- can be imposed by state agencies and organizations
If you feel that a professional has committed malpractice, and you have been damaged, you should consult with an attorney. That can set the wheels in motion both to enable you to recover for the harm you were caused and to stop offending behavior by that and other professionals. contact us
How to recover any damages due to malpractice?
Malpractice does not depend on "how nice" the professional was. What matters is what the professional did or failed to do. Would a similar professional in the community have done the same act or omission? Is there an injury, loss or damage as a result of the act or omission? Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice (i.e., malpractice that you can base a lawsuit on).
You yourself are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you he or she was at fault. Often an attorney has to hire an expert or consultant to help assess whether or not there was malpractice. Unless the facts are very clear, you generally would be asked to pay for the cost of that initial assessment.
If you have sustained losses due to the negligence of a professional, you should seek the advice of a malpractice attorney, and do so quickly to ensure your rights are preserved. contact us
Are emergency response teams , like EMR, firemen, even physicians exempt from Malpractice when they respond to an emergency situation?
Yes. Most states have enacted laws that protect medical and fire professionals from liability if they stop to assist at the scene of an accident.
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