Maybe you are in a spot of trouble with the law. Perhaps you anticipate a legal problem and want to take preventive measures to protect yourself. Whatever your legal dilemma, with the right advice from the right attorney, it is possible to escape common legal entanglements.
Avoid being liable for a car accident
Did your habit of distracted driving finally catch up with you? Whether you were at fault in a car accident or not, you’re being sued. But, “You can potentially avoid liability or minimize your financial exposure by claiming the other driver was also at fault,” says Morris Lilienthal, attorney with Martinson & Beason in Huntsville, AL. How at fault do they have to be? Not very. “In a contributory negligence state, if the plaintiff is found to be at fault at all, even 1 percent, they are barred from making a recovery,” says Lilienthal.
Then, as Lilienthal explains, there is a comparative negligence jurisdiction, where the jury is asked to divvy up what fault, if any, the plaintiff shares in the accident. The reward to the plaintiff would then be reduced by the percentage they were determined to be at fault. For example, if a jury returned a $100,000 verdict, but determine the plaintiff to be 25 percent at fault, the court would reduce the award by $25,000.
Avoid being on the hook for your ex-spouse’s debt
What’s mine is yours, what’s yours is mine – these are words no person wants to hear when it comes to matters of their former spouse’s debt, especially since creditors are not bound by divorce decrees. “Even though a court orders one party to pay a debt, if they don’t pay it, the creditor can still pursue the other spouse,” says David Crouse, founding partner of David J. Crouse & Associates in Spokane.
“One way to get around this is to place language in the decree that payment of the debt is related to the health, maintenance, or welfare of the other spouse. Not all debts qualify for this language, but many do,” says Crouse. If this language is included, a party can use contempt of court as a remedy when the debt is not paid, and this move can be very effective in coercing compliance with the orders.
Beat marijuana possession charges (where cannabis is still not legal)
Have a little too much recreational cannabis on your person? Marijuana possession in non- cannabis-friendly states is common, but no one wants to incur a drug arrest no matter where they live. “When under investigation or arrest for a marijuana charge, resist the urge to speak to the police. Do not admit knowledge of the drug being in your possession, and certainly do not admit any frequent use or sale of the marijuana,” says David P. Shapiro, a San Diego criminal defense attorney.
Law enforcement may request to search your car, house, or body, but you do not have to give consent. “Let them get a warrant or formulate probable cause. Don’t do law enforcement’s job for them,” says Shapiro. “Take full advantage of your constitutional right to remain silent. Then hire the best, locally experienced, criminal defense attorney you can afford to maximize your chances of beating a marijuana charge.”
Prevent your affair from impacting your divorce settlement
Infidelity may have been the reason for your marriage’s implosion, but most courts aren’t overly concerned about an affair when it comes to divorce. “The biggest issue for any judge is early exposure of children to a new partner and exposure of children to sexual situations,” says Crouse. It’s a wise idea to keep any new love interests out of your child’s life, at least until your divorce is settled. If the other side raises the issue of an affair, an objection should be made about the relevance of the situation, according to Crouse.
An experienced divorce attorney will point out to the court that the children were not exposed to the new individual and that the parent has been responsible by not involving the children in their social life in any way. “This will satisfy most any court and can actually be seen as a positive if handled properly,” says Crouse.
Avoid the increase of spousal support payments
Maybe you’ve come into some money, or your job situation has improved. You may worry that your former spouse is going to come knocking. But in the state of NJ, for example, a party is prohibited from appearing again and asking for more alimony. You’re locked in at the amount you received at the time of the divorce because the court looks at financials like a snapshot in time, explains Kristin M. Lis, partner at Smedley & Lis in Woodbury, NJ.
Even if the supported spouse loses his or her job, temporarily or permanently, if there is a dramatic change of income, an inheritance, inflation, or a loss of payments through frivolous or underhanded reasons that has the former spouse asking for more support, the law prevents an increase. “Adding in this type of language helps protect the obligor from being hit up for additional support by their former spouse as a result of circumstances which are outside of his control,” says Lis.
Consider a situation where the supported spouse blows their alimony on gambling – this behavior and subsequent lack of funds does not entitle the alimony recipient to demand more money. Sudden unemployment doesn’t allow for the demand of more money either. Lis explains, “Imagine the increase in return motions that would occur if the message is that you can quit or be fired from your job and then come back and seek more money from your ex.”
Avoid an increase in child support payments
Where child support is concerned, the law works similarly to spousal support. “Creative language in a settlement agreement or consent order may save the day, however many courts refuse to withhold a greater entitlement to support than the child is due and aside these types of agreements on the basis of public policy and the parens patriae doctrine,” says Lis, who has occasionally included a provision that only an increase in either party’s income by 10 percent would trigger a recalculation. “That helps protect parties who maybe get a bonus but not on a regular annual basis.”
Nevertheless, any substantial increase in income of the parent paying child support would normally result in the other parent applying to the court to have the child support recalculated based on increased earnings. “Where the child support will not go up, however, is if the supported parent suddenly becomes voluntarily unemployed or underemployed,” Lis clarifies. She continues, “the courts generally do not penalize the working parent to reward the one who decided to sit home. We as attorneys need to vigilantly defend our client on such applications and ensure that our client’s support obligation does not increase because one person has chosen to reduce her earnings.”
Every legal issue has its own complexities and rarely will an answer be one-size-fits-all. Your best bet is usually to talk an attorney directly or on the Avvo Q&A forum.
