Asiana Flight 214 Liability

I was watching the news about the Asiana 214 crash and an attorney came on to discuss who would the passengers could sue.  I wasn’t too impressed with what he said, so here goes.  Liability for aircraft accidents involving international flights is governed by the Montreal Convention.  The passenger does not have to prove fault on the part of the airline.  For claims less than $100,00 SDRs (approximately $179,000.00) the airline has to pay proven damages.  Even if they can show that someone or something else was responsible for the accident the airline has to pay.  For claims above this amount the airline has to prove the cause of the accident was out of their control, such as the airplane being shot down. 

This burden shift is important.  Normally, the Plaintiff, here the passenger, has to prove both fault and damages. Under the Montreal Convention all the passenger never has to prove is damages not fault. 

RENTERS RIGHTS WHEN HOUSE IS FORECLOSED ON

A few weeks ago an acquaintance had to move out of a home quickly.  They were living in a nice rental home.  Unfortunately, their landlord lost the house to foreclosure and the tenants were forced to move out at the last minute.  They told me what had happened after the fact.  My initial reaction was that had they called me when they got the notice to leave, I could have gotten them at least 30 days to find a new place instead of them having just a few days.  They may also have a cause of action against their landlord including fraud, which is not dischargable in bankruptcy.  Which brings up a related matter.  I tell people that attorneys, me, are handy critters to have at the other end of a phone call, email or text.  If someone contacts me with a question I may be able to answer it with quickly or we may need to have a formal consult in my answer.  If I can’t help I will refer them to someone who can.

HOW CHILD SUPPORT IS DETERMINED

When a court orders child support it first looks at what the custody arrangement is.  If the parties share joint physical custody then the parties’ child support obligation is averaged and the person who makes more pays the other parent.  The parties share joint physical custody if they both have the child for more than 40% of the time.   If one parent has primary physical custody then the Court determines what the non-custodial parent’s income is and applies the statutory formula to determine the child support obligation.  There are reasons for deviation from the formula such as the cost of health insurance, the cost of child care, if the child has special needs and if the person paying child support has a legal obligation to pay child support for other children to mention a few.

 

Generally, a person’s marital status and community income is not relevant.  One exception is if there is a large income disparity between the parties.  Then the court may make special findings and order a deviation.  This is rare.

How to Get Divorced Quickly

A question that comes up from time to time is how do I get divorced quickly?

In order to get divorced quickly both parties must:

1)      Have a desire to not fight,

2)      Have professional attorneys who want to get the divorce over with quickly

3)      Know the law as to division of property and assets, child custody and child support, and

4)      Know what their assets are.

The first two elements are the most important.   The divorce will be lengthy and expensive if one party wants to fight.

The important thing to remember is that Nevada is a no fault state, that means infidelity is not relevant in a divorce, unless it affects a person’s ability to parent.  Also remember that there just because parents have different parenting styles does not mean that the other parent is a “bad” parent.

The best way to get divorced quickly is to offer the other spouse what they are entitled to under the law.  The law requires that all things being equal or close to equal that assets be divided equally and the parents share joint legal and physical custody of the children.

There are of course exceptions to the above, such as if one party can’t work or has less earning power than the other spouse, a child has special needs, the parties don’t live close enough to each other to share joint physical custody or there is a specific reason why joint physical custody is not in the child’s best interest..

While many people file Joint Petitions for Divorce and it is faster to do so, I recommend each side have their own attorney to ensure that everyone’s interests are protected.

 

SPERM DONOR TO PAY CHILD SUPPORT

Can a sperm donor be required to pay child support?

It depends on the situation.  In Kansas a sperm donor has been found to be the father for the purposes of child support and has been ordered to pay child support.  In that case two women had adopted several children and wanted to have one of their own.  They placed an ad on Craigslist for a sperm donor.  They contracted with a sperm donor and a baby was born.  The two women later split up and the woman who had custody of the child in question then applied for public assistance.  The State of Kansas required the mother to identify the biological father as a condition of receiving public assistance.   He was then ordered to pay child support as the biological father.  Could the same thing happen in Nevada?  Yes.

Nevada law provides that a sperm donor is not the legal father only if the sperm donor goes through a licensed doctor and the sperm is donated to a couple consisting of a husband and wife as defined by Nevada statutes.  In all other situations the sperm donor can be determined to be the father for purposes of child support.   In Nevada even though the biological the parents or donor and donee can agree that there will be no child support obligation, this agreement is not binding on the State when the custodial parent asks for public assistance.  The best practice is terminate the putative father or donor’s parental rights once the child is born.

WHEN PHYSICALLY CHANGING YOUR SEX ALSO CHANGE YOUR FORMS OF IDENTIFICATION

A client called last week and wanted help.  The client had filed a Petition for a Name Change due to sex reassignment medical procedures and asked me how to get the sex changed on the birth certificate in addition to the name change.  My response was haven’t got the foggiest idea, but I will sort it out.  The court date was two days away.  This person didn’t want the complications of living as one sex and having a birth certificate specify a different sex.  The client wanted my help to make things go smoothly.  I said yes I would help and did my research.  It turned out to be simpler than I thought.

In Nevada there is a code section which provides for the Department of Vital Statistics changing the sex on a birth certificate if a court orders it.  The DMV has a form to change the sex on your driver’s license you need is a letter from the appropriate doctor.  The State Department has a form so that the sex on your passport matches your sex, you need a supporting letter from the appropriate doctor.

Long story short, In the process of physically changing your sex you need to get your forms of identification changed also.

Jury Duty

I was recently called for jury duty and had mixed emotions.  As the judge said it is our civic duty to serve as jurors and he also recognized that it is an inconvenience.  Boy is it an inconvenience.

The first day I went down and sat in the big room waiting to be sent to a court room.  However, each person in the group I was assigned to was given a questionnaire to fill out and told to return the next week.  The group I was in was a pool of jurors intended to hear a murder trial.  The questionnaire was designed to elicit our feelings about various actors in the justice system, such as the police, prosecutors, defense attorneys, judges, etc.  It also asked about our experiences with drug users and our attitudes about them.  When we returned the next week, we were sent to the court room for Voir Dire, where the attorneys ask question of potential jurors to determine who they want on their jury.  This is a very interesting process.  Attorneys are interested in potential learning jurors’ experiences and attitudes about certain things that are involved in the case.  An attorney can educate potential jurors about a case just by what questions are asked and how they are asked.  I enjoyed watching the attorneys “educate” the potential jurors in their voir dire.  Ultimately I was not selected.  I was not told why and I didn’t ask.  There is a popular myth that certain professions, including lawyers, are exempt from juror duty.  While that may have been true at one point in time it is not longer true.  I was talking with court staff and learned that Judge Villani had served on a jury.

During the jury selection process we were repeatedly told not to do any independent investigation about the case.  We were given the name of the Defendant and could have googled it.  After being cut from the jury, I did do some investigation into the case, read newspaper accounts and the case file that is available to the public.  Based on that investigation I formed an opinions about the guilt of the Defendant.  I will follow the case in the news to see what the jury decided.

If you get the opportunity to serve on a jury do it.  My mother has done so several times and afterwards asked me all sorts of questions.

USING PAY ON DEATH OR IN TRUST FOR TO AVOID PROBATEMany people use Pay on Death or In Trust For designations to pass assets such as bank accounts, money market accounts, etc., to their heirs outside of probate. This is one way to do so, however, like any other strategy you need to know the ins and outs of doing so. 1. Tell your heirs about their status on your accounts and what steps they need to take on your death to access the accounts. The institutions will not know that you have passed and will give the money in your accounts to the state after there has been no activity for a period of time. You don’t want that to happen. 2. Know how the account will be divided if you have multiple heirs. Some institutions will equally divide the account between the heirs and others follow a first come first served policy. Know what the institution’s policies in this regard are so that your wishes are followed. 3. Keep track of your heirs and make the appropriate changes on your accounts if they die before you do. Some institutions have procedures in place so that the account will go to the estate of the heir if the heir dies before the account holder. Others want to avoid the hassle and if the named heir can’t claim the account, the institution will turn the account over to the State after a period of inactivity. Pay on Death and In Trust For are good tools to pass assets outside of probate. Like any tool, you need to know how to use it properly. Contact me at yug@hyandoattorneys.com if you have any questions.

Many people use Pay on Death or In Trust For designations to pass assets such as bank accounts, money market accounts, etc., to their heirs outside of probate.  This is one way to do so, however, like any other strategy you need to know the ins and outs of doing so.

  1. Tell your heirs about their status on your accounts and what steps they need to take on your death to access the accounts.  The institutions will not know that you have passed and will give the money in your accounts to the state after there has been no activity for a period of time.  You don’t want that to happen.
  2. Know how the account will be divided if you have multiple heirs.  Some institutions will equally divide the account between the heirs and others follow a first come first served policy.  Know what the institution’s policies in this regard are so that your wishes are followed.
  3. Keep track of your heirs and make the appropriate changes on your accounts if they die before you do.  Some institutions have procedures in place so that the account will go to the estate of the heir if the heir dies before the account holder.  Others want to avoid the hassle and if the named heir can’t claim the account, the institution will turn the account over to the State after a period of inactivity. 

Pay on Death and In Trust For are good tools to pass assets outside of probate.  Like any tool, you need to know how to use it properly.

Contact me at yug@hyandoattorneys.com if you have any questions.