October 1996

Vol.1 – No.3

How Real Estate is Divided in a Divorce

“Marital property” is property acquired during the marriage which is equitably distributed (but not always equally) between the husband and wife in a divorce or separation regardless of which spouse has title. “Separate property” is property owned prior to the marriage or acquired by one spouse during the marriage as a gift or inheritance. It is not subject to equitable distribution. The courts have ruled that the following is marital property:

• Real estate acquired by the husband during the marriage, although titled in his name alone.
• Real estate given by the husband to the wife during the marriage.
• A home conveyed by the husband to his wife at her request to shield it from his creditors. The wife was holding the real estate for the benefit of both which constituted an implied promise to hold title jointly as tenants by the entirety.
• The increase in the value of a residence which was owned by the husband and placed in joint names two months prior to separation. The wife contributed to improvements during the marriage.

The following has been ruled to be separate property:

• The increase in value of rental property owned by the husband before the marriage which increased due to market forces and inflation. His only contribution was periodic visits to collect late fees and inspect the property.
• A farm purchased with an inheritance by the husband during the marriage.

(CSBLG – Divorce Planning)

What’s New in DWI/Traffic Law?

Even without an accident or injuries, speeding motorists can be guilty of criminal endangerment and sentenced to ten years in jail (Montana Supreme Court). The defendant, suspected of stealing a vehicle, was involved in a high speed chase at speeds of up to 80 miles per hour. (# 10314)

What’s New in Debtor/Creditor Law?

The Fair Debt Collection Practices Act. Debt collection practices in violation of state law are not per se violations of the FDCPA and a notice sent to a debtor in a state which the collection agency did not have a license to collect, did not violate the FDCPA (U.S. Court of Appeals, Ninth Circuit). Recovery of bad checks does not constitute a “debt” under the FDCPA (U.S. District Court, Northern District of Illinois). (# 10315)

What’s New in Divorce/Family Law?

Inheritance doesn’t affect child support. A $90,000.00 inheritance by a divorced father was not a “change in circumstances” warranting higher child support (Pennsylvania Superior Court). Courts in Alaska and Colorado have issued similar rulings. (# 10302) New child support rules. Parents who don’t pay child support can have their driver’s licenses, professional licenses and passports revoked. The state’s enforcement agency will forward delinquencies to the licensing office and the licensing offices will send notices stating that the licenses will be revoked if the payments are not made within a few months. All wage garnishments will have to go through a central state agency. The procedures for garnishing the pay of military and other federal employees has been clarified. If the court in one state authorizes a lien on property, it must automatically be considered valid by a court in another state. (# 10303) Child support insurance. New child support insurance will provide child support payments for up to four months if the payer looses his job due to downsizing or permanent layoff after a 60 day waiting period. However, there is no coverage if the employee is temporarily laid off, goes on strike, quits his job, becomes incarcerated or is unable to work because of illness or disability. Self-employed persons are not eligible. The annual premium for four months of coverage is 56 percent of one month’s child support. (# 10304) Bankruptcy effects divorce settlement. The income of an ex-husband’s live-in girlfriend can be considered in determining whether to grant his request to discharge a divorce property settlement in bankruptcy (U.S. Bankruptcy Court of Georgia). Where an ex-husband succeeded in discharging a property settlement by going bankrupt, the divorce court could go back and award the wife more alimony based on “change of circumstances” (Virginia Court of Appeals). (# 10305)

What’s New in Estate Planning Law?

Testamentary Trusts. Do you envision your children squandering your estate away on expensive cars and vacations? Would you like your children’s inheritance managed for them until they reach the age of 25 or even 35? The answer is not to leave your estate directly to your children or to a guardian but to provide in your will for a testamentary trust to be managed by a bank or trusted friend. If your estate is left to a guardian for your child, the guardian must turn the property over to the child when he or she reaches the age of 18 to do as he or she wishes. When drafting a testamentary trust in your will, consider the following situations of your children and grandchildren: 1) their ages; 2) their educational needs – the costs of undergraduate, graduate and technical school; 3) the best age at which to distribute trust income and principal in a lump sum or installments; 4) their ability to manage money (disabilities, alcoholism and gambling problems); 5) their financial needs and earning capabilities; 6) if disabled, the effect distributions may have on their eligibility for disability benefits or medicaid; and 7) if divorced, on the verge of bankruptcy or being sued, the need to safeguard their assets from creditors and ex- spouses.

What’s New in Health Law?

Patient can refuse blood transfusions. A patient’s right to refuse medical treatment takes priority over a hospitals interest in preserving life (Connecticut Supreme Court). After entering the hospital to deliver a baby, the defendant refused blood transfusions because they violated her religious beliefs as a Jehovah’s Witness. The court stated that the hospital “had no common law right or obligation to thrust unwanted medical care on a patient who, having been sufficiently informed of the consequences, competently and clearly declined that care”. (# 10307)

What’s New in Landlord/Tenant Law?

A landlord may be liable for criminal assaults on a tenant where: (1) A property defect such as a broken lock or window latch, enhances the risk of attack or (2) The landlord agreed to provide specific security measures and then failed to do so according to the New Hampshire Supreme Court. While landlords have no general duty to protect tenants from criminal attack, such a duty may arise when a landlord has created, or is responsible for, a known defective condition on the premises that foreseeably enhanced the risk of criminal attack. Moreover, a landlord who undertakes, either gratuitously or by contract, to provide security will thereafter have a duty to act with reasonable care. The South Carolina Supreme Court ruled that a landlord has no duty to protect apartment tenants against crime. A landlord can be sued for active negligence that caused the claim to occur, but it cannot be sued when the only thing it did wrong was to fail to provide security. The landlord’s implementation of practices to help assure safety of tenants does not create a duty to protect tenants from criminal attacks by third parties (Arkansas).

What’s New in Personal Injury Law?

Accident victim can sue taxi’s insurance agent. A passenger injured in a taxi can sue the taxi company’s insurance agency for failing to have uninsured motorist coverage (Arizona Court of Appeals). The plaintiff was ruled to be “third party beneficiary” of the contract between the agency and the company. The court cited similar rulings from Illinois, Massachusetts, New Jersey and Tennessee as well as contrary rulings from Louisiana and New York. (# 10312) City sued for injury at a public park. A girl who hurt her knee on a city tennis court can sue the city because a state “recreational use” statute doesn’t apply to “public” landowners such as the city (Connecticut Supreme Court) citing similar rulings from California, Florida, New York and West Virginia as well as contrary rulings from Georgia, Kentucky, Massachusetts, Michigan, Nebraska, New Jersey, Ohio, Oklahoma, Oregon and Pennsylvania. (# 10313)

What’s New in Small Business Law?

New retirement plan. The “Savings Incentive Match Plan for Employees” (SIMPLE) is available to any business with fewer than 100 employees. Either a 401(k) or an IRA can be set up. In order to qualify:

• Employee contributions must be limited to $6,000.00 per year;
• The company must agree to (1) match employees’ contributions dollar-for-dollar up to three percent of the employee’s salary, or (2) contribute two percent of each employee’s salary regardless of the employee’s contribution (for this requirement, “salary” is capped at $150,000.00);
• The total of the employee’s contribution and the company’s contribution can’t be more than $10,500.00;
• The company can’t maintain any other retirement plan; and
• All contributions must vest immediately.

Vegetarian can sue for job discrimination. A bus driver was fired after he refused to give passengers coupons for free hamburgers. The Equal Employment Opportunity Commission determined that this was “religious” discrimination which includes “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views”. Total quality management (October release). Once associated mainly with the large corporation, total quality management can literally mean survival today for the small business. “Total quality management: Mastering Your Small Business” (Upstart Publishing Company by Jill Rossiter) For more information, click here.

Injured Victims’ Rights

The Friedman & Ranzenhofer, P.C. Ten Point Pledge to Accident/Injury Clients is:

• To communicate with you in plain language that is easy to understand.
• To promptly return your telephone calls.
• To quickly and thoroughly investigate and analyze your case. Friedman & Ranzenhofer, P.C. does not accept every accident case.
• To have your case personally handled by an attorney.
• To keep you informed of the progress of your case at all times.
• To show you the personal care, concern and attention which has been the hallmark of our law firm since 1955.
• To not handle your case in an “assembly line” fashion.
• To accommodate the needs of you and your family during the handling of your case.
• To vigorously protect your legal rights.
• To never release your name to the media after your case has been completed, except with your written permission.

Attorney Michael H. Ranzenhofer limits his practice to automobile accident, slip and fall, dog bite and defective product cases. He is a member of the Association of Trial Lawyers of America, the New York Trial Lawyers Association, the New York State Trial Lawyers Association and the Erie County Bar Association Negligence Committee.