Blogs > The Law Blogger

The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, August 30, 2012

Ten Tips for Social Security Planning

We here at the Law Blogger are quietly aging along with the rest of our fellow Baby Boomer generation.  A good chunk of this generation is slipping into retirement mode; slowly, but as surely as ever.

Here are some things to keep in mind as you approach the age where certain decisions need to be made; and elections need to be taken relative to the mighty Social Security Administration.

Many folks are faced with a bewildering array of options regarding their social security benefit.  When should  you start taking the benefit?  At the earliest possible age of 62; or should you wait [can you afford to wait] until age 70?

These tips are merely general principles, not intended as specific legal advice.  Here are some things to consider:

1.  Spousal Benefits.  If you are married, and at full retirement age [66], you and your spouse, but not both, can elect to receive a spousal benefit while deferring on your retirement benefits, thereby enabling those retirement benefits to grow.  If you are the low-earning spouse, however, it could make more sense to take your benefit at the earlier age of 62, then switch to your [presumably higher] spousal benefit upon reaching full retirement age.

In general, there is no advantage to waiting to start collecting either spousal benefits or survivor benefits after you reach your full retirement age.

2.  "Start Stop Start" Strategy.  Complicated, but worth it, this strategy involves electing to take your social security benefit at an early age, say 62, then suspending the benefit at the full retirement age of 66, if you can afford to do so.  Then, at age 70, you start the benefits back up, taking advantage of a much higher [over 30% higher] monthly benefit checks for the balance of your life.

3.  One-Year Repay Option.  This one is interesting.  If you elect to begin taking your benefit, but later decide it was not the right move, you have one year to pay back all the benefits you received.  Then you can re-apply for [higher] benefits at a later point in time.  

4.  Working Into Your 60s.  If you are blessed with good health, and are fortunate enough to be in a profession or job you can handle deep into your 60s, the result will be a significantly higher social security benefit when you finally do hang up the cleats.  This benefit will also accrue to any spousal and child benefits; so your family will benefit as well.  If you opt to receive benefits at an early age [62], you could be locking in on a permanently lower benefit.

5.  Divorced?  Depending on the length of your marriage, you or your ex-spouse may be able to file for benefits based on each other's work histories.  This is beneficial for the divorcee that was married to a high earner.

6.  Federal Income Tax Exposure.  When it comes to calculating your income for tax purposes, disbursements from a Roth IRA are not counted [because you already paid the taxes], but withdraws from a regular IRA, 401(k) or 403(b) are included as income.  Therefore, it may make sense to stage your withdraws on these accounts, taking disbursements from the tax deferred accounts prior to your social security election.  Also, as a general principle, it would make sense to deplete your tax-deferred accounts first.

7.  Survivor Benefit Election.  Widowed?  Some folks will want to elect to receive their survivor benefits at age 60, and to take their retirement benefit after full retirement; others will benefit by electing to take their retirement benefit at age 62, and deferring the survivor benefit until full retirement age.  The difference depends on individual circumstances and the projected benefits.  A careful calculation is needed here and a professional should be consulted in most cases.  The differences in strategy could be significant.

8.  Beware of the SSA's Benefit Calculator.  The SSA's on-line benefit calculator does not adequately handle spousal, divorcee, child, mother, father, widow or widower benefits.  Because the benefits calculator does not factor-in wage growth or inflation, a projected benefit output for a younger worker performing a calculation will be distorted; the worker's actual benefit could be much less than anticipated.  The best practice is not to rely on these calculations as accurate benchmarks.

9.  Children's Survivor Benefits.  Provided they are under the age of 18 [age 19 if still in high school], your children can receive a survivor benefit from your deceased spouse, or ex-spouse.

10.  Enjoy Your Retirement!  This tip is the most important in this  post.  You have worked your entire life; now it's time to take your foot off the gas and cost a bit; take a look at the scenery.  By all means take care of your family, but remember that you cannot take it with you.  So be sure to spend at least a portion of your retirement on yourself.

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Saturday, August 25, 2012

Debt Relief: Student Loans

Ever since the Great Recession put the strangle hold on the U.S. economy back in 2008, the default rate on student loans has skyrocketed.  This in turn has increased the debt collection case-load among the various United States Attorneys.

Michigan, hit particularly hard in the recession, is ranked 11th among the states in overall student debt load.  A full ten percent of the loans to Michigan students are defaulted.  The problem has become so acute, the U.S. Attorney's Detroit office hired a private law firm to aggressively pursue claims against students that defaulted on federal government loans.

Due to the number of public and private educational institutions located within the jurisdiction of the United States District Court for the Eastern District, and considering the drastic tuition increases to which these institutions have resorted, the USDC - EDMich has one of the most robust civil collection dockets in the nation.

It is crucial for college grads, law students, and other graduate students to avoid getting enmeshed in this collection docket.  Unfortunately, bankruptcy is not an option for educational loans.

The crux of the problem is that the ever-increasing student loan burden is met at graduation with a continuously shrinking job market. A veritable disaster waiting to happen; a disaster that is happening.

What is a graduate to do?  First, do not ignore the problem.  These loans will not go away, regardless of the nievete or hard luck of the student borrower.  Ignoring the debt will only remove any repayment options such as forbearance or rehabilitation periods.

Second, student debtors should thoroughly educate themselves on the student loan statutes and regulations prior to commencing negotiations with the federal lender or collection entity.  The Internet is an excellent source of information that will lead the borrower to primary resources.

Third, consider hiring legal counsel to assist you with negotiations with the lender; definately hire legal counsel if you have been sued.

Fourth, if you are a current student, scour the Internet for as many grant and scholarship opportunities as you can find prior to executing additional loans.  There is "free" money out their for students; you just have to find it.

Finally, be realistic when establishing your educational goals.  Avoid paying out-of-state tuition if at all possible.  Michigan has many great institutions of higher learning that fit the bill.

Good luck out there getting educated.  Take it seriously as you are mortgaging your future to obtain your degree.

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Thursday, August 23, 2012

Cooley Law In-Line with National Trends in Legal Industry

By now, we've heard the familiar tales-of-woe within the legal industry: too many lawyers; no jobs for newly-minted lawyers; young graduates are slaves to their law school tuition debts; and, the legal service industry is contracting.

With such a gloomy backdrop, the nation's largest law school, Thomas M. Cooley Law School, provides an interesting petre dish to test these national trends.  Sure enough, Cooley seems to bear out what is happening in law schools and legal service markets across the country.

The first trend of note is the steady decline in law school enrollment.  According to statistics published by the Law School Admission Council [publishers of the LSAT entrance exam], law schools have experienced more than a 30% decline in enrollment since 2003.

In an article last week in the Lansing State Journal, Cooley Dean Don Leduc admitted that his school's admissions took a hit; dropping by nearly 27% and expected to drop by another 15% when classes resume next week.  Dean Leduc told the LSJ that many law school applicants across the country regard Cooley as their "backup" choice.  Since law schools across the country are plunging ever deeper into their applicant pools to fill their classes, many students no longer need to play their Cooley card.

It is no secret, as the LSJ points out, that Cooley Law is one of the least selective ABA accredited schools in the country, and that out-of-state students make-up a significant portion of its student body.  Presumably, from sea to shining sea, students that cannot get into other law schools around the country flock to Cooley for their "ticket".

The next trend in the industry is the curious response of law school administrators to their steadily declining enrollments: raising tuition.  The National Law Journal has analyzed tuition rates at private law schools like Cooley and reports a 4% average tuition hike for this fall.

This year, the average cost for a single year of tuition in a private law school will crack the $40,000 mark for the first time in history.  In line with this trend, Dean Leduc announced that Cooley was raising its tuition by a whopping 8%.  This fall, students will pay $37,140 to attend Cooley Law School on a full-time basis.

Next trend: is law school worth the expense and effort?  Many voices are saying no.

One way to determine the value of a law degree is to track employment statistics among recent law school graduates, as required by the ABA to maintain a law school's accreditation.  Nationally, the average salary for 2011 law graduates is $60,000; down from $72,000 in 2009.

In related litigation, Cooley was recently sued on a fraud theory in federal court by a group of its alumni.  The law suit was tossed for lack of merit; it was really the ABA's vague reporting regime that was indicted in the case.  The issue involved how Cooley reported employment statistics for its recent graduates.

Earlier this year, the ABA announced that only 55% of recent law graduates held full-time employment that required bar passage to hold the position.  For Cooley, the numbers were well-below that mark.  The LSJ article reported that only 37.5% Cooley's 2011 graduates held full-time law positions.  Of those legally engaged grads, a significant percentage [20%] were solo practitioners straight of of law school; a dubious proposition if you are facing more than $100,000 in student loan debt and have zero experience representing clients.

To combat this negativity, Dean Leduc has recently released his own report, with commentary, citing statistics from the National Association of Legal Professionals and the Bureau of Labor Statistics, concluding the employment rate for law graduates is higher than the overall national average and the unemployment rate across this group is lower.

Regardless of the forecast, lawyers will always be with us.  We agree with Dean Leduc that future legal professionals should not be swayed by the current obvious gloom.

Instead, be persistent and follow your dream.  There is nothing more fulfilling than doing what you love to do for your profession.

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Saturday, August 11, 2012

Consumer Reports Reviews Self-Help Legal Sites

In today's world, everybody wants to be the lawyer.

Consumer Reports, that trusty publication that does in-depth research on products that we consumers know little about, has targeted three of the most popular self-help legal websites in the attached report.  The web sites reviewed are Legal Zoom; Nolo; and Rocket Lawyer.

The most popular of the three sites is Legal Zoom, founded by Los Angeles lawyer Robert Shapiro, and hawked by the likes of Rush Limbaugh.

The CP review of the sites is luke warm, as you may expect.  The general conclusion is that, if you have a very simple matter, these sites are "better than nothing."  If you have any complexity to your legal matter, however, you will be better off hiring a lawyer.

As any lawyer knows, the devil is in the details in any legal situation.  One-form-fits-all simply does not work in the law. Sure, lawyers are trained to use checklists and forms, but every document drafted must be customized to some extent to ensure that the client's objective is completed within the four corners of a document.

These days, with on-line review services and easily accessible electronic profiles, you can do a lot of preliminary groundwork and research at your computer.  This is true of your specific legal issue, as well as for the lawyers who are in the best position to handle your matter.

So take a look at the linked report before paying fees to one of these sites.  And be careful out there...

Post Note 11/24/2012: Here is a great post in the Simple Justice blog about the litigation erupting between legalzoom and rocketlawyer.

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Tuesday, August 7, 2012

Former Lesbian Finds Religion Kidnaps Child

This case from Vermont displays some of the worst features of a parent taking family law into her own hands.  It is one thing for a parent to denounce her same-sex union and her lesbianism; it is entirely another to then plunge into a "born-again" culture, kidnapping her child to Central America and removing her from the other legal parent.

The case of Lisa Miller, Janet Jenkins and their 10-year old daughter, Isabella, is in the headlines as the Mennonite pastor that assisted Miller in fleeing the country goes on trial today in federal court in Burlington, Vermont.  No one knows where Miller and Isabella are today; Jenkins has not seen her daughter in over 3-years.

The civil union between the two women began to deteriorate 8-years ago when Miller denounced lesbianism in favor of her born-again conversion into a conservative Christian sect known as the Beachy Amish Mennonites.  Miller moved with Isabella to Virginia to be near church headquarters and tried to terminate Ms. Jenkins' parental rights.

The resulting protracted family court battle, waged in two state courts, resulted in an order of the Vermont Supreme Court granting custody to Jenkins; the Vermont ruling was honored and upheld by the courts in Virginia, where Miller tried to plead her cause.

Apparently, Miller had a change-of-heart regarding the family she created with Jenkins, and the lifestyle to which the parents belonged.  Once Miller "found God" within the conservative Christian Mennonite sect, she saw lesbianism as an "addiction" and found her partner to be an unfit parent who would not be allowed into heaven because she lived, in sin, with women.

At that point, as is so often the case with folks who find religion later in life, no laws of man or high court rulings could hold her back from her religious convictions.  In Virginia, Miller was employed for a time at Liberty Christian Academy, a school with close ties to Liberty University, the conservative christian college founded by Jerry Falwell.

Miller was represented in the family courts in the two states by lawyers from the Liberty Counsel, affiliated with the Liberty University's School of Law.  Her lawyers took the position that Virginia law, not Vermont law, should apply to the custody dispute in this case on the basis that the latter state "recognized as a parent a person that is not a parent", contrary to "biblical truths."  Virginia does not recognize same-sex unions as Vermont does.

Nevertheless, the Virginia family court and appellate courts ultimately ruled that Vermont properly had jurisdiction of the case.  When the Vermont family court judge ordered a parenting schedule that Miller refused to follow, he changed custody of the child to Jenkins in Vermont.

Shortly after this custody ruling, Miller disappeared with her daughter to Nicaragua.

Stay tuned to see how the federal jury that is being selected today in Virginia decides the fate of the local pastor that assisted Miller with fleeing the country, and whether Miller and her daughter will ever turn-up.

Clashes over child custody, lifestyle and religion; this case features all that and then some.  But we here at the Law Blogger must insist that it is never a good idea to take the law into your own hands.  That principle holds true whether you are the parent, or the pastor.

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Sunday, August 5, 2012

Michigan Supreme Court Acknowledges an "Impossibility" Defense to Felony Child Support

This blog has covered the child support saga of Ms. Selesa Likine.  Her felony child support conviction was just reversed by the Michigan Supreme Court, and her case has been sent back down to the Oakland County Circuit Court.

The family court was created by statute pursuant to the Michigan Constitution back in 2000; now, there is a family court division for every county in Michigan.  Family courts issue support orders that obligate a parent to pay a specified sum each month for the support of their minor children.

Ever since parents have been ordered to pay child support, there have been those who cannot or will not make their required  payments.  There are different reasons for not paying: some withhold payment from their ex-spouse for revenge; others simply cannot afford to pay, or do not put a high priority on their child support obligation.  [e.g. the "Worm" aka Dennis Rodman.]  Still others find it impossible to satisfy their court-ordered obligation based on hard economic circumstances.

Regardless of the reason, when a child support payor fails to pay pursuant to a court order, an arrearage builds-up and the courts take notice.  Quite apart from the family court, the county circuit courts of general jurisdiction are the courts where felony criminal matters are prosecuted.

The Michigan Penal Code has a law on the books known as "failure to pay child support"; a four-year felony.  This felony has always been considered a "strict liability" crime, meaning that there is no defense to the charge once the prosecutor proves that the family court issued a support order and the payor, for whatever reasons, did not pay.

On Tuesday, the Michigan Supreme Court addressed the felony child support statute in People v Likine.  This case is significant to the extent that it expressly reverses a Court of Appeals decision that precludes a defendant from asserting any "ability to pay" defense whatsoever.  The Likine Court held that "impossibility to pay" is an affirmative defense on which a jury can be instructed at a trial provided certain offers of proof are tendered.  Also, the Court reaffirmed that, despite the availability of this affirmative defense, felony child support remains a "strict liability" crime.

In the initial divorce case, Selesa Likine was diagnosed with depressive schizoaffective disorder.  Family Court Judge Linda Hallmark initially ordered her to pay only $54 per month in support; a relatively low amount.

Likine's support was increased, first to $184 per month then to $1131 per month, on the basis of "imputed income".  At a support hearing conducted before the FOC Referee, evidence revealed that Ms. Likine made [false] representations of high income on two mortgage applications in order to purchase an expensive home.

Based on these representations, and based on the  projected earnings of someone paying on that large a mortgage, the FOC Referee imputed income of $5000 per month to Likine.  Of course, this was a fiction; not only did Likine never earn that much income, she basically had no chance whatsoever to satisfy her new increased child support obligation.

Enter the criminal charge against Ms. Likine.  When her lawyer tried to "tell it to the judge", and then to the jury, about her lack of income, it was too late.  The trial judge relied on the holding of a Michigan Court of Appeals case [People v Adams] precluding Likine from presenting any evidence on her so-called "inability to pay."

Bottom line: now, a felony defendant is able to offer proof of an "impossibility" to pay, but not an inability to pay.  The latter concerns must still be addressed to the family court.  The reason is that our criminal jurisprudence requires a "mens rea" or "guilty mind" as a required component to every crime listed in the Michigan Penal Code.

Note to attorneys: The Likine case was a companion case with two other consolidated cases.  In those other cases, the felony child support convictions of the child support payors were NOT reversed on the basis that neither defendant had preserved the "impossibility to pay" issue in the trial court.  

Just sayin; had they done so, those convictions also may have been reversed.

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Thursday, August 2, 2012

Illinois is 3rd State to Legislate Social Media Privacy Law

This just in.  Illinois joins Maryland and Delaware to pass a law protecting the social media privacy of individuals from prospective employers.

Michigan also has a similar bill under consideration known as the Social Network Account Privacy Act.  The general concept of these laws is to proscribe employers or educational institutions from requiring prospects to provide account access data such as passwords or log-in information.

Many of these prospective employers are law enforcement agencies, perhaps looking to see whether their recruits have any gang connections.  Other employers seek inappropriate photos are company disparaging remarks.

This practice is widely regarded as a breach of privacy.  Further, it is a breach of the operating agreement for most sites to share a password.  While the Justice Department considers the practice of entering a social media site in violation of the site's agreement to be a federal crime; albeit, the JOD has admitted in recent congressional testimony that such crimes will, for now, go un-prosecuted.

These laws are considered by legal experts to be both pro-business and pro-privacy.  The benefits to our ever-eroding privacy are obvious.  As for business, such legislation relieves a company or educational institution from the duty of monitoring protected digital content.

We will monitor the bill currently pending in the House Committee on Energy and Technology.

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