Rutherford Real Estate on WGNS Murfreesboro

I had a great time this morning as a guest of Chris Phillips and Dave Gober on their Saturday morning radio show, Rutherford Real Estate. We talked about Chapter 7 and 13 Bankruptcy and how this affects homeowners and prospective homeowners who have filed for bankruptcy in the last few years. Dave and Chris both have years of experience and knowledge to help someone with alternative solutions for tough times in regards to owning and financing a home and I can help answer questions to anyone who needs to talk about what options are available under the Federal Bankruptcy code.

Child Support Guildelines calculator

I receive a fair amount of questions regarding child support. Frequently, the question has to do with a proposed modification based upon the non-custodial parents losing a job or have a financial setback. Generally speaking, a significant change in income is required to revisit a prior child support order and modify and more often than not, a non-custodial parent losing a job would meet this standard.

Tennessee law authorizes the Department of Human Services to create and issue the "Child Support Guidelines." The parent who pays child support is usually called the "Alternative Residential Parent," and the parent who receives child support is usually called the "Primary Residential Parent." When the "Guidelines" are discussed, this usually refers to the Rules as issued by the DHS. These Rules have the authority of law and most, if not all, states have similar provisions in their law. "The Charts" refers to the charts published with the Guidelines which cross reference both parent's gross income with both parent's actual support obligation. The “Income Shares Model” is a phrase describing that under our new child support law (effective January 2005), both parents’ income are considered in determining child support.

Tennessee provides a helpful website to calculate how much could be owed.

How long will a Social Security decision take?

Deadlines do not exist for social security disability and SSI disability applications.

Statistically, the average is 90-120 days. Averages, however, tend to be very misleading. For instance, if one claim takes 180 days to complete (which is not at all uncommon) and another claim takes 2 days to complete (which almost never happens), the average of those two numbers is 91 days. In the Middle Tennessee area, waits as long as two years have been reported.

Typically, the social security office will dispense "average" information because, in the absence of doing this, they are unable to tell claimants anything about their claim status. Therefore, while a disability case is pending, it is always best to contact DDS and speak to the disability examiner assigned to the case. An attorney can keep track of your case and may be able to use practices and procedures to speed the process along.

Age Discrimination in Employment Act in Murfreesboro

This federal legislation is applicable to employers of more than 20 employees and covers individuals of 40 years of age or more. The key elements to consider if you feel that you have been denied employment, wrongfully terminated, or passed over for promotion or advancement opportunities because of your age:

• You are qualified for the position that you applied for or held;
• That you were replaced by someone outside of the protected class (under 40) and substantially younger than the claimant.

In other words, though a 41 year old who was passed over in favor of a 38 year old, would technically meet this criteria, a more successful claim would be a scenario where a highly experienced 55 year old employee was fired and a 25 year old with a fraction of the training and experience was hired instead.

If you feel that you have been discriminated against because of your age, call me and I can help to evaluate your case and assist you through the process. This kind of discrimination occurs more often than you might expect.

Why do I need a will?

1. You have minor children.
You should have a will in order to appoint guardians for your minor children, and trustees to manage their property. If you do not leave a will, the court may appoint a guardian whom you would not have chosen.

You also need to have a will in order to prevent minor children from inheriting real estate outright. Although minors have the legal capacity to own property, they do not have legal capacity to manage it. If your children inherit a share of your house, your spouse would not be able to sell it, rent it out, or even refinance the mortgage without a court order. Getting court orders is expensive and time consuming. Additionally, will provisions can be set up to restrict how and when young adults receive property. Would your 18 year old wisely manage a sizable inheritance on their own?

2. You have no children.
Do you know what would happen to your property if you died right now without a will? You might be surprised to find out that your spouse might not inherit everything. If you and your spouse have no children, your parents or siblings might inherit part of your home and become co-owners with your spouse. Your spouse would not be able to sell the house or other property without their permission, and vice versa. If you want to remember your parents or siblings in your will, it is best to leave them specific pieces of property that they will not have to share with your spouse.

3. You have a large family.
All of your heirs will become co-owners of every asset you own, and will have to manage all the property together. They may not live in the same state, or they may not be able to agree on what should be done with the property. The more heirs you have, the more money and effort they will have to spend trying to get organized. With a will, you could leave specific assets to specific heirs, or put one heir in charge as trustee for the others. Either way, having a will would save your heirs significant hassle and expense. It could also prevent acrimonious feuding.

4. You own real estate.
In the absence of a will, real estate may be inherited by minors or numerous co-owners, and either result may be costly or result in problems not easily anticipated. A little estate planning now can save your heirs significant expense and trouble later.

How a Living Trust can help you and your family

One way to minimize probate is through the creation of living trusts.

A living trust facilitates the transfer of property from any person, trust or entity to any person, trust or entity while you are alive and is much easier to amend or revoke than a will. One example is a Life Insurance trust whereby the trust, and not a named individual, is the beneficiary of the life insurance proceeds.

Some of the ways an attorney can help with an estate settlement include: Gathering the estate assets, whether in a living trust or not; evaluating your estate planning documents and determine what is required; creating Trustee authority; determining type, character and value of each asset; determining allocation, distribution and division of assets, balancing document requirements, Trustee obligations and tax planning options; transferring assets according to the estate documents or requirements of state law.

Even with a solid estate plan and extensive trust management, probate is not always avoidable, nor should it be. A living trust will be able to minimize probate when the trust is settled.

Civil litigation complaint

Whether your case involves a personal injury action concerning a car wreck or a suit filed to recover damages associated with a negligently constructed home, after attempts at settling a case have failed or approached the statute of limitations, the next step is to file a complaint.

In Tennessee, a personal injury lawsuit begins with the filing of a Complaint by the plaintiff against the defendants. That Complaint must set out a “prima facie” case, which is a Latin expression for “at first view.” A prima-facie case is a lawsuit that makes factual allegations that support the claim being brought under Tennessee or Federal law. In other words, assuming plaintiff can prove everything that she alleges, is there law that would make the defendant(s) liable for the harm suffered by the plaintiff?

In a personal injury case in Tennessee, the plaintiff’s lawyer must allege the elements of negligence. These elements include: There existed a duty between the plaintiff and defendant, the defendant breached that duty, and the plaintiff suffered a loss that was a proximate result of the defendants breach. (Put more simply, the Complaint in a car accident case lays out the bare facts of the accident and generally alleges injuries and other damages.) Practically, the plaintiff typically files a Complaint in the appropriate court and then the clerk of the court issues a summons and sends it back to the plaintiff’s lawyer to serve on the defendant(s) (there are fees associated with filing any personal injury lawsuit which vary according to jurisdiction). This Complaint must then be served on the defendants, by either certified mail, return receipt requested, or, as more typically is the case, by private process server or sheriff.

Special and General Damages

Many people ask about how their injuries translate into the more legal definition of damages. The exact terminologies can be deceptive and maybe confusing to those who are unfamiliar with the terms. The terms are inversely defined when dealing with tortuous claims as opposed to contracts to further confuse the subject. Here is a good explanation when dealing with torts:

Special damages are sought in lawsuits in addition to general damages. These two types are classified as Compensatory Damages and are both designed to return persons to the position they were in prior to the alleged injury.

For example, if a person was injured in an automobile accident, the victim could seek damages that would cover medical expenses, damage to the motor vehicle, and the loss of earnings now and in the future. Each of these would be classified as special damages. If the victim sought a money award for pain and suffering, mental anguish, and loss of consortium, these would be classified as general damages. Thus, special damages are based on measurable dollar amounts of actual loss, while general damages are for intangible losses that can be inferred from special damages as well as other facts surrounding the case. In this description special damages are damages that are reduced to a "sum certain" before trial.

Should you be paid salary or are you an hourly employee?

This question frequently comes up when a company brings someone on board and declares they are salary and will be paid a set amount regardless of how much time is worked. This more often than not works out in favor of the employer as the employee may put in hours and hours of time over forty hours a week, but is compensated at the set, flat rate.

The Federal Fair Labor Standards Act (FLSA) regulates employer-employee relations in regard to overtime pay and minimum wage. Some examples of occupations exempt from these regulations include:

Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and employees in certain computer-related occupations (as defined in Department of Labor regulations);

Employees of certain seasonal amusement or recreational establishments, employees of certain small newspapers, seamen employed on foreign vessels, employees engaged in fishing operations, and employees engaged in newspaper delivery;

Farm workers employed by anyone who used no more than 500 "man-days" of farm labor in any calendar quarter of the preceding calendar year;

Casual babysitters and persons employed as companions to the elderly or infirm.

Certain commissioned employees of retail or service establishments; auto, truck, trailer, farm implement, boat, or aircraft sales-workers; or parts-clerks and mechanics servicing autos, trucks, or farm implements, who are employed by non-manufacturing establishments primarily engaged in selling these items to ultimate purchasers;

Employees of railroads and air carriers, taxi drivers, certain employees of motor carriers, seamen on American vessels, and local delivery employees paid on approved trip rate plans;
Announcers, news editors, and chief engineers of certain non-metropolitan broadcasting stations;

Domestic service workers living in the employer's residence;

Employees of motion picture theaters; and
Farm workers.

If you believe that you are being paid a salary, but should be paid hourly based upon the nature of your work, call an attorney to discuss your rights and what violations in which your employer may be engaged.

Subsequent marriages, insurance, and trusts

When a parent re-marries, it becomes more important than ever to protect life insurance proceeds designated for children. An occurrence that happens more frequently than might be expected is where the second wife changes the life insurance benefits to her name. If the re-married father and parent of children from a previous marriage dies, the second wife will receive all the benefits of the life insurance and none will go to help support the fathers biological children. When that wife dies, it is likely that the money will go to her biological children and the fathers children will again receive nothing. This was probably not what the father had in mind when he purchased the insurance and made the premium payments. Can anything be done to protect assets for descendants now? Absolutely.

How can you allow a portion of the money to be available for the benefit of a second or third wife and give part to your biological children? One way is through changes in the beneficiary designations. Although this can be difficult and some companies require the consent of the spouse, it is not impossible.

A better way, is to set up a revocable trust. The trust can designate who you would like to receive the proceeds and how you want the money distributed. Even better, once you create the trust, you can amend it.

It is best to create the trust before you get married, and amend it when you choose. Call for a free consultation if you think this situation applies to you.

Workers Compensation Statute of Limitations

The right to receive workers' compensation benefits does not stay open forever. An injured worker must file Form C40B, "Request for Benefit Review Conference," before the time limit runs out. Generally, that is one year from the date of injury, or the date the employer last paid temporary disability or medical bills. Some special circumstances can extend the time to file.

If you have been injured on the job, you should immediately report any work-related accident, injury or illness to your employer. Employer notification, preferably in writing, is required by law within 30 days of the date of injury or when a physician first tells the employee that his/her injury is work related.

Employers covered by the Tennessee Workers’ Compensation Act must submit all known or reported injuries or illnesses to their insurer on Tennessee Employer’s First Report of Work Injury or Illness (Form C-20) within one (1) working day of knowledge of the injury or illness. Insurance carriers and self-insured employers must file a Form C-20 with the Division through Electronic Data Interchange (EDI) as soon as possible, but not later than fourteen (14) days after knowledge of the injury or illness.

If you feel that your claim is not being processed correctly or at all, you should contact an attorney.

Second or None: A Celebration of Liberty

I'd like to join Barrett Firearms, Tennessee Gun Owners and The OutPost Armory in inviting everyone out to 5435 Miller Lane in Christiana directly off Exit 89 on I-24. This will be a celebration of our Second Amendment Rights. There will be food and fun activities for the kids, a great family get together.

Disorders of the Musculoskeletal System

One of the most frequent disorders is a broken bone or fracture.

A fracture is simply a break in the surface of the bone. Fractures are classified in one or a combination of three ways, 1) by the integrity of the overlying tissue, 2) by the specific location in the bone, and 3) by the degree of displacement.

From an attorney's standpoint, it is critical to keep any and all medical documentation as proof of your injury and probably to schedule a deposition of your doctor to show that your treatment was necessary and reasonable based upon the local standard of care.

Divorce action contempt of court

Reality TV star Jon Goselin may soon learn all about contempt of court after he allegedly emptied the couples joint checking account according to this New York Daily article.

Generally, at least here in Rutherford County, any divorce action, when filed, is issued a Restraining Order that, among other things, enjoins both parties from "transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property."

Why many people file for Bankruptcy

Bad things happen to good people and tough times affect everyone. Many people who would not have dreamed about bankruptcy last year, are now considering the options, and even speaking to an attorney. Our office offers a free consultation and this is a great idea. The internet provides a wealth of information but the ability to speak with an attorney about your individual, unique situation is invaluable.

What are the factors that bring many people to this point?

1. Job loss or other financial setback
2. Medical expenses
3. divorce or legal separation
4. small business failures
5. foreclosure

If any of these factors or others have you thinking about whether bankruptcy is for you, give me a call, 893-1239.