The Legal Insider

December 2015

Divorce: Coming Together Again During the Holidays

Divorce: Coming Together Again During the Holidays Christmas is a time for family to get together and for children to feel the wonder of the season. But when parents' divorce, it is difficult for families to come together and celebrate. Whether it is due to custody issues or resentment between the parents, divorce can make the holidays difficult for families.

Nature of the Custody

Depending on the type of child custody, one parent may miss out on holidays, like Christmas, with their child. But unless ordered by the court, the parent without sole custody still has visitation rights.

Rotating Holiday Visitation

Often, custody can rotate so that each parent gets every other major holiday with the child. The rotation is something the parents can agree on beforehand. The agreed rotation can change if the parents can come together and agree for an alteration. The parents may trade or compromise holiday custody. Parents can also hold separate holidays for the child and may have to following a court order.

Going to Mediation

Compromising or trading holidays may be informal. But if either parent feels that they cannot compromise or come to a fair agreement alone, then they may opt to attend mediation. During mediation the parents can have a neutral third-party help decide the details of holiday visitation.

How Mediations Work

Mediations are confidential, and does not need a lawyer to be present. The mediator will also interview the children to determine what the child desires. In the end, the mediator's goal is to help make a plan that best fits the child's needs and wishes. To help the mediator reach that goal, parents in mediation should listen, be respectful to each other, and put the child's needs first.

Coming Together for the Family

Christmas is a magical time for children and a chance for families to remember what matters most at the end of a year. The holidays are the perfect time to set aside differences and disagreements and recapture moments of wonder for the children.

Whether You're Buying or Selling an Older Home, Know What Ought to be Disclosed

Whether You're Buying or Selling an Older Home, Know What Ought to be Disclosed Different states have very distinct rules about what a seller needs to disclose when selling a private home, and what role the buyer must play in inspecting the property. Some states require a great deal of mandatory disclosure by sellers, making the transaction more predictable for everyone involved. On the opposite end of the spectrum, other states follow the "caveat emptor" rule: buyer beware.

Once a buyer knows about a flaw in a home and buys the home anyways, there's generally no liability for the seller on that flaw. However, if an important flaw (especially one that isn't obvious) is not disclosed, it can spell trouble for both the buyer and the seller later on.

What Does "Buyer Beware" Really Mean?

Some states more or less follow "caveat emptor" and emphasize the duty of the home buyer to "reasonably inspect" property before purchase. In these states, courts are concerned that those who sell older homes often have no more technical or historical knowledge than the buyer, and that they may be sued unfairly. Even in states where real estate disclosure is heavily regulated, the "caveat emptor" doctrine may apply to information buyers are not required to disclose.

Since buyers have a duty to inspect, sellers must answer questions during a homeowner's inspection truthfully and must not obstruct a reasonable investigation into the condition of the property. Buyers are not expected to know things that are not "readily observable" or that only experts would know. Given the "don't ask, don't tell" nature of these rules, it's not a bad idea for a buyer to follow a home inspection checklist or to get a professional inspection before sealing the deal.

Reporting Physical Problems with the Home

In many states, sellers are required to report things that they know are broken or wrong with the physical home. This could mean telling buyers about a leaking roof, a chimney that doesn't work anymore, or a charming nest of raccoons in the wall. In some states, sellers must report home repairs that have been made in the past. Finally, under federal law, all sellers must report the presence of lead paint.

Reporting History of the Home

Even in the "buyer beware" states, sellers must report some facts about the home. In one famous New York case, buyers successfully sought legal damages after they purchased a property containing at least one poltergeist from a person who knew it was haunted. More commonly, states may require sellers to disclose stigmatized property , including whether people have recently died in the property or whether a violent crime has occurred there.

Reporting Features of the Land or Neighborhood

In many states, it is important to report certain features of the land or the neighborhood. This varies from place to place because the dangers vary: proximity to a flood plain, susceptibility to earthquakes, or potential subsidence (lowering of the land) from mining could be concerns. Beyond the borders of the property, some sellers may be required to report on noise, lousy neighbors, general safety, or the presence of a nearby hazardous waste dumping facility.

The Limits of At-Will Employment

The Limits of At-Will Employment At-will employment has been a part of U.S. labor for over a century, and is the standard in every state except Montana. Any work under an employment contract is not at-will; the terms the contract apply instead. With an at-will job, neither employer nor employee is required to give notice or warning that the employment relationship will terminate; and an employer does not have to provide "just cause" or follow any particular procedure for termination. This is a good type of employment for companies that want to limit their liability, and in situations where neither employer nor employee wants a long-term commitment.

However, many argue that in the real employment market, at-will employment favors the employer. Many employees would prefer a more reliable, stable form of work, and cannot find it. Hard times often leave employees without bargaining power and little option but to accept an at-will job. In part because of this power difference, states and the federal government have carved out certain additional protections for at-will employees. It is important for employers and employees alike to understand these protections and the limits of the at-will employment doctrine.

Employers cannot retaliate against law abiders or whistleblowers

If an employer asks an employee to do something illegal, that employee should be able to refuse without being fired. Any retaliation for refusal to participate in an illegal scheme is wrongful termination. In addition, employees are often protected if they report the illegal acts of employers through "whistleblower" laws that vary from state to state.

In a majority of states, employers cannot act against public policy

This is a bit broader than the rule above. "Public policy" can generally mean the State constitution, laws, or administrative rules. In one expansive definition, an Illinois court said that public policy includes matters that "strike at the heart of a citizen's social rights, duties, and responsibilities." For example, an employee should be able to use state employment resources (i.e. to complain about sexual harassment) or offer testimony without risking their job.

Employers cannot violate federal or local discrimination laws

While at-will employees can be let go for almost any reason (or no reason at all), they cannot be fired due to employment discrimination. In other words, employers cannot make firing decisions based on race, color, national origin, religion, sex (including pregnancy), disability, or age. In some places, sexual orientation is also protected. Employers must also allow for federal family or medical leave.

In some states, employer documents may be binding

Under some state laws, conditions of employment that are written in employee handbooks or documents must be followed before an employee can be fired. In a minority of states, things that an employer says may also be considered part of an oral employment contract (for example, "I would never fire you unless you did something really wrong.") It is important to know whether these rules apply in your state, and whether or not a disclaimer written in the handbook or document is enough to release an employer from responsibility.

In a handful of states, employers must deal fairly and act in good faith

Under this rule, an employee may be able to fight back when termination is simply unfair or wrong. Cases in which long-term satisfactory employees suddenly face job loss may fall into this category. However, most states are not willing to adopt this rule because courts may become heavily involved in sorting out at-will employment relationships.

The Basics of Federal Disability Support

The Basics of Federal Disability Support The federal government offers different programs for disabled individuals. These programs are given based upon several factors, such as the severity of the disability, the age of the recipient, and whether they have a history or are able to work.

Understanding the different programs can be daunting. However, complex government rules should not stop qualified individuals from seeking disability benefits.

What is Social Disability Insurance?

Social Security Disability (SSD) is for individuals who once worked and meet the federal requirements for a disability, but now have a disability that interferes with their ability to work.

To qualify for SSD, the applicant must have worked between the ages of 18 to 64 and paid into Social Security for a length of time. If the applicant receives SSD, any dependents will also receive benefits. But SSD will only distribute after the applicant is disabled for five consecutive calendar months. On the sixth month, the benefits will be distributed.

To apply for SSD, a detailed application can be submitted online. Medical information, work history, and other relevant records must be included for the application to be complete.

What is Supplemental Security Income?

Supplemental Security Income (SSI) is for individuals who have never worked or not worked enough to qualify for SSD. Individuals who receive SSI must have a low level of income. They must have a limited number of resources (cash, savings, vehicles, etc.) for the number of individuals in their household.

Monthly SSI payment varies on factors like living expenses, medical expenses, and other household costs. It may take an SSI application three to six months for approval or rejection. During this time, no SSI benefits or funds are given. If the application is approved, SSI benefits are given from the date of application submission.

Like SSD, the SSI application can be submitted online. It requires detailed information about finances, medical information, and other relevant records.

What If the Application is Rejected?

If your SSD or SSI is rejected, then you may file for an appeal. Appeals may succeed depending on factors like the nature and severity of the disability. The appeal takes place at a hearing with a judge. A lawyer is not necessary for the hearing, but an administrative lawyer will increase the chance of the decision overturning.

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