The Legal Insider

October 2012

Seasonal Preparations: Don’t Let Fall Wreck Your Winter

The first day of fall was Saturday, September 22, which meant wherever deciduous trees were found the autumn foliage turned brilliant colors.  Although fall can be a time of year to enjoy the burst of colors it can also bring with it unexpected situations and expenses. Luckily, we can put into place some preventative measures to lower the risk of something bad happening.

Tree trimming is overlooked way too often.  Those winter storms are vicious and you don’t want to be liable for wrecking your neighbor’s home.  According to this Garden Web forum there’s a 12% chance in any given year that a tree will fall on your home. “Who cares,” right?

Wrong. You can be held financially responsible for the damages if a tree from your property falls on a surrounding home or automobile.  A mishap like that is far more expensive than paying a tree trimmer.

Your automobile is another facet of everyday life you may overlook this time of year.  Getting a regular checkup on your automobile can ensure you’re not risking a collision.  The worn tires that got you through the summer probably won't do any good on wet and icy winter roads. AA1Car postulates that about 45% of all accidents could have been avoided by preventative maintenance like replacing tires, brake pads, or cracked windows among many other specific mechanical causes.  In some cases it’s a defective product at fault, however, those instances are very few and harder to prove in court.


Top Bankruptcy Questions by Consumers

You probably are aware that consumer bankruptcies are fairly common in this down economy.  Aside from alleviating your debt and calls from harassing creditors, bankruptcy can be a very workable situation.

Below is a selection of common questions we received from people considering filing for bankruptcy: 

Q:  Which types of debt cannot be discharged by bankruptcy?

A: Filing bankruptcy cannot discharge student loans, recent taxes, child support and alimony, as well as legal fines like traffic tickets.

Q:  Can I keep my new car after filing bankruptcy?

A:  In most cases, yes.  However, you will likely need to sign a “reaffirmation agreement” that assures the creditor you will keep paying for it.  The bankruptcy trustee may frown upon you keeping the car if it’s a luxury item.

Q:  Can I file for a divorce if my spouse and I just filed bankruptcy?

A: Generally, yes.  The divorce action will be stayed (put off) while your bankruptcy is finalized.  Then you’ll have to look into dividing debts in divorce.

Q:  If you’re in a Chapter 13 Bankruptcy plan, can you switch to a Chapter 7 Bankruptcy?

A:  You may request for your attorney to convert your Chapter 13 case into a Chapter 7 case if you do not have the means to make the Chapter 13 payments.  You’re also able to add all of the bills you’ve incurred since the Chapter 13 case was filed into your new Chapter 7 filing.


Drinking and Open Container Laws by State

If you’re an automobile enthusiast or have been in a doctor’s office lately then you have likely paged through Car and Driver Magazine.  Recently on their blog, Car and Driver released this post: “Swishing Lanes: The Current State of Open-Container Laws”.  It is good information to keep in mind, especially since Fall is the Holiday Season, and there will be lots of parties - you don’t want a good time to end in DUI/DWI charges.  

Since knowledge is the best type of prevention, we’ve put together a little “supplemental reading,” below, breaking down a few additional DUI/DWI points:

What are your rights during a DUI/DWI stop?

In many cases, lawyers advise their clients to refrain from performing the common field sobriety tests: reciting the alphabet backwards, balancing on one leg, and walking in a straight line.  You aren’t required to take these tests and, more often than not, the officer is only testing you to reconfirm his plan to arrest you.  Yes, those men in blue can spot drunk drivers like hawks. 

What about the chemical test at the police station?

After you’re arrested on suspicion of DUI or DWI you will be asked to take a blood, breath, or urine test to measure your level of impairment (.08 or below for most states).  Refusing the chemical test at a police station can have a negative effect on your case. During trial, the prosecutor could accuse you of refusing the test because you knew you’d fail.  Additionally, most states immediately suspend your license if you refuse the test.  That really puts negative pressure on a positive outcome for your case.


3 Big Advantages to a Prenuptial Agreement

People are still getting married despite the odds– check where your state ranks on the US Census website.  The divorce statistics show that marriage isn’t quite what many believe it to be.  

Much of the headache during divorce can be avoided by hammering out the details while both parties are optimistic and level headed with a prenuptial agreement.

  1. Debts—If your new spouse has crippling debt now, or a propensity for making more in the future, a prenuptial agreement can protect you from having to split your spouse’s debt.  Can you imagine having to pay debts that are not your own? 
  2. Property—The increase of people getting married late in life or more than once presents a specific set of issues when things go sour since everyone owns more property by then.  Property in divorce such as real estate, businesses you own, and personal belongings can all be protected in a prenuptial agreement.
  3. Enforceable—Obviously, prenuptial agreements work and simplify the divorce timeline.  Two factors are imperative for enforcing most prenuptial agreements: 1) both parties are required to have a lawyer present, and 2) they must be in writing with all of the signatures and notarizations needed for your particular state.

If you would like to speak with a lawyer about drafting a prenuptial agreement, it’s best to consult with a local family lawyer who is knowledgeable of local and state provisions. 


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