Tuesday, January 17, 2017

Family Law Part 4: Testifying in Court

Written by Jordan J. Mruz

            More often than not, when a case gets to the point of a trial being necessary, I will have a conversation with my client and discover that they have never testified in court before. I can understand why someone would be nervous to testify in court but with proper preparation and knowledge of the process you should be able to testify confidently.

Direct Examination

            Direct examination is when one party calls you as a witness to testify. Generally your attorney will call you as their witness, but the other party can call you as a witness for them as well. When you are called as a witness and you are being questioned by the attorney who called you up to testify, this is direct examination. Generally speaking the questions you are asked on direct examination will be open ended questions (meaning more than a one word answer). If you are on direct examination by your attorney, they will have a framework for how their questions will go. They may start with general questions, then move on to a topic that there is not much disagreement on, such as property, then move to child support, and finish with custody and visitation. I do not believe there is any right or wrong way to order the questions, but your attorney should discuss with you the direction their questioning will take.

Cross-Examination

            Cross-examination occurs when the party who did not call you up to the stand, has a chance to question you. These questions will usually be leading questions (one word answers, usually yes or no). Leading questions are allowed on cross-examination and because of this, attorneys use them because they can limit your testimony to one word answers that fit their version of events. An example of a cross-examination question would be, “Isn’t it true that you have been arrested five times.” The correct answer is either yes or no. You may have been arrested five times but only been charged with a crime on one of those occasions and you want to tell that to the attorney questioning you. If it’s the other party, they probably are not going to let you answer beyond “yes.” Your attorney will hopefully do a follow up question on their re-direct examination to clarify this topic. Something to remember: cross-examination is supposed to be limited to what is brought up during the direct examination. Depending on the judge, they may be very strict with this rule of evidence, but they may not.

Redirect

            As it mentioned in the previous paragraph the party who calls you as a witness will have an opportunity for redirect after the other party has cross-examined you. Again this testimony is supposed to be limited to what was brought up in the cross-examination.

Things to Remember When Testifying

            First thing to remember is to tell the truth. It is much better to tell the truth about something on the stand than to get caught in a lie on cross-examination. Hopefully you and your attorney have discussed the areas that may hurt your case so you have a chance to testify and explain them to the judge in your own words rather than the opposing party.

            Remember to answer the question that is being asked. This is a good rule in general, but you should really remember this when your being cross-examined by the opposing party. If they ask you a yes or no question, answer with a yes or no. If they ask you about the time you got a possession of marijuana ticket in 2014, only talk about that incident and not any other things you did before or after that. You do not want to offer up more answers to the opposition that could be used against you right away. If they like what they are hearing from you, they may let you keep talking instead of objecting to your answer that was not just yes or no.

            Keeping your composure on the stand is another key. Some attorneys will try very hard to get you rattled on the stand. They may ask you really difficult questions that you do not want to answer just to throw you off. They may speed up their tempo of questions to get you to answer more rapidly than you would otherwise and maybe make a mistake. Losing your cool and making dramatic faces on the stand will not help your case.

            Last thing to remember is to stop and think about the question being asked. You do not have answer immediately upon the attorney stopping. You can pause for a second to think about the question. Make sure you heard it correctly. If you do not understand the question, it is okay to ask the attorney to repeat it or to ask it differently. It is better to get a question clarified than to offer up an answer that does not match the question. If you do not know the answer to the question, simply state you do not know.

Conclusion


            These four things are not the only things to keep in mind while testifying, but I believe they are among the most important to remember. If you remember these things and remember to breathe, then you should be able to testify successfully. 

Tuesday, January 10, 2017

Non-Profit Series: 3. Who Runs a Corporation?

Written by Sagan L. Carman-Downer

If you’ve decided to operate your non-profit organization as a formal corporation, you will need to consider how it will be structured in order to carry out its purpose. A non-profit corporation doesn’t necessarily have owners to make decisions and put them into effect, so it is important to understand how these things will get done. Typically, a corporation is run by individuals serving in one or more of three roles: on the board of directors, as an officer, or as a member.

You have probably heard these terms before, but knowing the role of each can help you decide who will fill these positions. Put in very simple and broad terms, the board of directors makes the decisions, the officers carry out the decisions, and the members vote for the board of directors. Below is a bit of a closer look at each role.

Board of Directors
The board of directors is made up several individuals that are selected by the group of people starting the corporation. Some states require a minimum number of directors to serve on the board, in Nebraska the minimum is three. The board of directors provides oversight of the corporation by making decisions that they believe will help achieve or further its purpose. The board can do this by directly making decisions about operations, or by delegating the authority to others. For example, the board of directors may choose the recipient of a scholarship they are awarding, or they may authorize a subcommittee or officer to make the decision.

Officers
Officers carry out the decisions made by the board members for which they are given authority. A key point of distinction is that they can only take actions as directed by the board or as specified in the articles of incorporation. So, while they still have authority to make decisions, it is only to the extent the board or articles allows them to. Officers often include a president, secretary, treasurer and vice president. The role of each will be defined by the articles of incorporation or the board of directors. Typically, the president presides over meetings, the secretary prepares minutes of the meetings, and the treasurer keeps track of the corporation’s funds.

Members
A corporation may choose to have members, but is not usually required to. If there are members, they are typically the ones that vote on the board of directors. Their role is to vote for directors that they believe will make decisions they agree with. Members may be required to pay annual dues, volunteer a certain number of hours for the corporation, or meet other requirements set out in the articles of incorporation or as decided by the board of directors.


Ideally, each of the three groups work together to make sure the corporation runs smoothly to provide a public benefit. Keep in mind, though, that this is a brief description of each of these roles, meant to provide a general description and understanding. Their specific authority and duties and may differ depending on your state or what type of non-profit you operate.

Tuesday, January 3, 2017

Do I Need a Will? And Answers to Other Estate Planning Questions

Written by Tana M. Fye

Do I Need a Will?

This is probably the most frequently asked question that an attorney hears. And if you're asking the question you likely do need a will. At a minimum, you need to consult with an attorney to determine whether you need a will. Here are a few questions that we use to help determine whether the laws of intestacy (passing away without a will) will be sufficient, or if you need to engage in some sort of estate planning:

  • Do you have minor children? If so, estate planning can help ensure that your minor children are taken care of the way that you would want them to be taken care of if you pass away while they're still minors, and that they receive any assets in the way that you'd like them to.
  • Do you have adult children? If you have adult children, you need to decide how you'd like your assets to be distributed, whether your grandchildren or any spouses of your children receive anything.
  • Have any of your children passed away, leaving a spouse or children behind? If so, then you need to decide whether these folks would receive any of your assets or none of your assets at your passing.
  • Is this a second marriage for you or your spouse? Does your spouse have children from a prior relationship? This situation is notorious for creating hard feelings between spouses and step-children, unless estate plans are created for both of the married parties, and the children know what is going to happen upon the passing of either or both of parents.
  • What are your assets? Where are they held? Some assets pass outside of probate, meaning just by direction of the parties in a particular document. Insurance proceeds and certain bank accounts are good examples. A competent estate planning attorney can help you decide what estate planning tools are best for the amount and type of assets that you hold.
What Happens to My Young Kids if My Spouse and I Both Pass Away?

This is a nightmare situation that no parent wants to even think about. But making plans for who you'd like to care for your children if you're not able to is just responsible parenting. If married spouses pass away (like in a major accident) and leave minor children, then a court would likely have to determine who raises the minor children. Grandparents, aunts, uncles, and other family, or friends can be put into a very difficult and emotionally wrenching situation of trying to decide (or fighting in court about) who raises the kids, if the parents haven't given direction. And in the worst case scenario, children could be placed in foster care while guardians can be located and things are sorted out. The wills that our office drafts include language directing who should be given priority as potential guardians for minor children upon the passing of the parent(s). 

But What Happens if I Just Become Ill or Am Injured?

In this scenario, there are other documents, besides a will, that would be necessary. A living will would give direction on issues such as life support, feeding tubes, organ donation, so that family members and doctors know what you'd like to have happen.

A Power of Attorney for Healthcare directs who gets to make medical decisions for you, and usually also has a back-up if that person is unable or unwilling to serve.

A General Power of Attorney directs who makes other types of decisions for you. This covers things like banking, business, payment of bills, and general life decisions. This document usually also has a back-up listed, if the initial person selected is unable or unwilling to serve.

Can a Power of Attorney Make Decisions or Act After I Pass Away?

No. A Power of Attorney is no longer in effect after death. At this point, a Personal Representative takes over and administers an estate, often with the assistance of an attorney. Personal Representatives are usually named in a Will, but can also be appointed by the Court.  

What Should I Do if My Spouse and I Are Going on Vacation and Leaving Our Children With Someone Else?

First, you should make sure that you have your estate plans in place, so that if something happened to one or both of you, things are easier for the family left behind. Visiting with an attorney is the best way to make sure that this has been accomplished.

But in addition to estate plans, parents can also sign a Power of Attorney for Childcare, which is a temporary delegation of parental authority. It allows for grandparents or other caregivers to gain necessary information from schools or doctors, or to make medical decisions for your children if need be. Again, this is simply responsible parenting when parents are leaving their children with other individuals for care-giving for any length of time.


In sum, it's important to consult with an attorney about your particular situation to determine if estate planning, and what particular estate planning services are best for you and your family. All three attorneys in our office handle estate planning and would be happy to meet with you or visit with you on the telephone. Please feel free to call and set up a consultation at 402-519-4061 or 308-995-8061.

Tuesday, December 13, 2016

Family Law Part 3: What Happens to our Property?

Written by Jordan J. Mruz

A major part of a divorce is the distribution of property and debts. Both are equally important in terms of a court determining who will take what in a divorce. There is a two step process of dividing property. The court (or your attorneys if no trial is had) must first determine what is part of the marital estate and then it must determine what would be a fair distribution of property.

What is considered Marital Property?

Generally speaking, anything that is acquired after you were married, up until the point of a separation, is considered marital property. This would include tangible property, as well as debts. There are instances where property could be marital but be prior to the marriage (a home purchased in both of your names).

A common misconception for people is that they believe when they purchase something, like a car, with their own money for the down payment, are the only person on the loan, and even register the car in their own name, that this makes it their property, and not marital property. This is not the case. As long as that car was purchased after you were married and prior to separation, that car is part of the marital estate. This same logic applies to other property as well as debts. An example of this applying to a debt is if one of you went back to school and needed student loans to do so. Those may be in your name only, but they are part of the marital estate as well.

A very important item is retirement accounts. Retirement accounts are marital property. Portions of it may not be marital, if you had your retirement account for five years prior to your marriage.
What types of things are excluded?

There are a few things that are excluded from the marital estate. Again, things that you brought with you into the marriage are not marital property. Things you acquire as a result of a someone else’s will, is going to be excluded (unless it was left to both of you). This is not an exhaustive list, but these are ones most commonly dealt with in a divorce.

What does my attorney need?

As part of this action, at some point a property statement will need to be filed. This is simply a pleading that lists the marital property, marital debts, and significant items that should not be considered a martial asset or debt. The parties have a chance to list out items that they believe the court should know about, what the values are, who is in possession of it, and whether or not that party is seeking to retain possession of it.

Some attorneys may sit and fill this document out with you. I personally give a blank form to my clients and have them go home to fill out the document. This allows people to have time to either go through their home (if they are still in the home) or to think about what is in the home (if they moved out). I advise my clients to assign a value to the assets and debts. Some are easier than others (student loans for example are very exact). Some items are more difficult (that TV you bought two years ago for $800). The rule of thumb is to assign “garage sale” values to the items on the list. That TV is now worth more like $150-$200 on your property statement now. Other common items to value are cars, which can be determined by using a website such as Kelly Blue Book. Houses can be easy to determine value if they were purchased recently. They can be more difficult if you purchased it 25 years ago and an appraisal may be necessary.

What happens after both parties have completed a property statement?

If the parties agree on what is marital and what the values are, then a settlement may be accomplished quickly. The next step is then to determine who gets what and what, if any, equalization payment is needed. An equalization payment is payment that equalizes what each party is receiving. You add up the assets that you each are taking and subtract the debts each of you are taking and determine how far apart those numbers are. The amount it would take to make things equal is considered the equalization payment.

An example of the above is after adding up assets and subtracting debts, you have $50,000.00 net value and the other party has $100,000.00 in net value. It would take a payment of $25,000.00 to you, to make things equal.

If the parties don’t agree on what is marital or disagree on values of big items (houses or retirement), then property may need to be addressed at trial.

Does it have to be 50/50?

The laws in Nebraska do not require that the parties receive exactly 50% of the marital estate. The law requires an equitable distribution of property. Typically this will be close to 50/50, but could be 60/40 or a little more. You also can agree to take accept less than 50% in a settlement.

Conclusion

Property division can be a major sticking point between parties. It is important to remember that you in all likelihood you are not going to get everything you want, but neither will the other party. There is definitely a give and take that takes place. Fighting over the value of a platter you received for your wedding is probably not a worthwhile fight. Ultimately the $10.00 difference in value is not going to make or break your financial future. Choose your battles wisely, but always try to remain reasonable.

Tuesday, December 6, 2016

If I'm Not Elderly, Why Do I Need a Will?

Written by Sagan L. Carman-Downer

It has been my experience that when most people think about their will, they think about how they want their property distributed upon their passing. And while this is certainly an important portion of a will, some people may be surprised to learn that a will can provide additional information and/or instructions to help ease the burden on their loved ones.

When speaking with younger individuals or couples just starting to build their family and careers, I often find that they believe they don’t need a will because they haven’t accumulated a significant amount of assets. Your will, though, can be beneficial in addressing additional concerns; some of which are outlined below.

1.    A Guardian for Your Children. Should you have minor children at your passing, your will can make your wishes known as to whom you would like to care for and raise your children. This is a decision that deserves a great deal of thought and consideration, but making your wishes known can help your loved ones during a difficult time.

2.    A Personal Representative to Manage Your Estate. Your estate may be required to be administered through a process involving a state court, typically known as probate. This is where your debts will be paid, and your assets will be distributed to your beneficiaries. In your will, you can nominate someone to manage this process, known in Nebraska as a Personal Representative, or in other states as an Executor. It can be important to select someone you trust to take a position that will have such a high level of responsibility.

3.    Distribution of Assets to Minors. States often have specific rules and restrictions on how assets can be given to minors. If there is a possibility that your assets will pass to a minor, your will can address these rules and restrictions, and specify how you wish for those assets to be distributed.

4.    Visitation, Funeral & Burial Services. In a time where less traditional arrangements for after-life services, like more informal celebrations of life and cremation, are becoming more commonplace, your will can provide your wishes to your loved ones to ensure that those wishes are carried out.


These are just a few of the additional concerns that can be addressed in your will. To make sure that these, and your other wishes are included in your will, it is best to speak with an attorney to discuss your options in greater detail.

Tuesday, November 29, 2016

8 Tips for a Successful Working Relationship with your Lawyer

Written by Tana M. Fye

In my time practicing law and representing clients, I've had clients that were a breeze to work with, and clients that were exceptionally difficult to deal with. In many instances, I think that the difficult clients were difficult in large part because they didn't know what to expect from an attorney-client relationship. With that in mind, I thought it would be helpful to future clients, and for those looking for attorneys to have a few tips or guidelines for working with their lawyers.

1. Remember that although you have just this one case, your lawyer has many cases. This doesn't mean that your case is unimportant to your lawyer, it is. But lawyers have lots of cases that are all important to them and their clients. Remember this, and that it sometimes means your attorney cannot get back to you immediately. It is reasonable to expect a response from your attorney at some point, and for a time frame for when you can receive a response.

2. Set expectations at the outset. For example, it is reasonable to expect your lawyer to put the fee agreement in writing at the outset. I put into my engagement agreement some expectations that I have for clients. It also includes what clients can expect from me, and what I'm representing them on.

3. Remember that some issues you present to your lawyer may require legal research. Some questions (probably most) are easily answerable by an attorney who regularly practices in the particular area of law. But specialized issues, or when a case borders on different areas of law may require additional research by your attorney. It doesn't mean that he or she is inexperienced or stupid, but just that your attorney wants to give you the right answer.

4. Share all of the information with your lawyer, not just the good stuff. About the worst thing that can possibly happen to you is for your lawyer to be surprised by opposing counsel, particularly in court. You can avoid this scenario by sharing the good information and the bad information with your lawyer at the outset of his or her representation of you.

5. Don't be afraid of lawyers' secretaries having information. The staff in our office has access to our clients' files, and works closely with the attorneys to ensure that deadlines are met, and that everyone is on the same page. I've had clients who were afraid to leave any information in a message with a secretary. This does the client a disservice. Sometimes the answer to a client's question is a simple one, and if the client leaves a message with my secretary, that means that they might get a quicker call back than a client who refuses to leave a message, when I only have a few minutes to return calls.

6. If you're upset or concerned about something, tell your lawyer. Your attorney doesn't want you to be in distress. If they know about your fears or that you're upset, they can address those issues, which may help you to keep from worrying unnecessarily.

7. Make a list of any questions that you have, so that your appointments or telephone conferences with your lawyer are efficient. This will ensure that all of your questions are answered. It will also help to keep your bill lower if you are billed by the hour, than if you call several times with only a single question each time.

8. Follow the advice of your lawyer. You hired a lawyer because he or she is an expert at the law and you are not. If you don't understand, seek clarification. But follow your lawyer's advice.

Tuesday, November 22, 2016

Family Law Part 2: The Temporary Hearing

Written by Jordan J. Mruz.

During your initial consultation with your attorney you may discuss whether or not it will be necessary to file a motion for temporary custody/parenting time and child support. If you are getting divorced you may also request temporary spousal support (or alimony). The post will address the preparation for this hearing as well as the hearing itself.

Do I even need to have a hearing?

It is not required that a temporary hearing be held. Whether or not it is appropriate to have this hearing in your case is dependent on a few things. For example, if both parties are working outside of the home in full-time jobs, your case may not be appropriate for spousal support (alimony and child support will be addressed in depth in a later blog post). If there is no disagreement about who should have custody of the children then it may not be completely necessary to have a hearing for temporary custody/parenting time. An example would be if one of the parties lives in another state and it would be disruptive to the child to move them at that particular point in time. Additionally you may file a motion for temporary custody and support and after discussing with the other party (or their attorney) you two reached an agreement on temporary matters. A stipulation could then be submitted to the court without having to go through with a hearing.

What do I need to bring to my attorney?

In the Districts where I currently practice (Central/South Central Nebraska), typically temporary hearings are done using affidavits only and there is no live testimony. This means that you will either need to bring affidavits to your attorney or you will need to meet with your attorney to write them together. An affidavit is essentially a sworn statement of facts, signed in front of a notary public. The affidavits should contain information that is relevant to what your hearing is addressing (e.g. custody and visitation). Your affidavit may state where the child has lived, with whom they have lived, who has been the primary care giver, how you meet their needs, and whether there any special circumstances surrounding the child that the court should be aware of (physical or mental disability). You may also need to tell the judge the reasons for why the other party should not have custody of the child such as their violent criminal history, drug/alcohol issues, abusive behaviors, etc. It is also helpful to provide the judge with what you think an appropriate visitation plan would be. These are just a few the things that your affidavit may address.

Your attorney should also discuss with you about whether any additional affidavits are necessary and they could be from a number of people. Maybe you have a close family member or family friend that has been witness to your great parenting skills and how much you do for the child. Maybe a coworker of the other party witnessed them get into a physical altercation and the child was around to witness it. People like this can be helpful to your temporary hearing, but be sure to avoid providing extremely duplicative information. Typically the judge does not want to read 10 affidavits from your parents, siblings, aunts/uncles, and cousins that all state how wonderful of a parent you are. Once is generally enough, and usually more than two of these are not really helpful.

If child support is being addressed at your temporary hearing, your attorney will typically present the judge a proposed child support calculation. This is what you believe the other party or yourself should pay for child support. You should bring your attorney pay stubs (at least a month’s worth of pay stubs, if not more) or if appropriate, your recent tax returns. The other party’s income information will be necessary to create an accurate calculation, but you may not have this information in your possession. Your attorney should be able to work with the opposing attorney to obtain this information.

What happens at the hearing?

As stated above, in the Districts where I practice, the hearings take place using only affidavits. Depending on the judge, the hearing itself may take place in the Judge’s chambers (not in the court room) with only the attorneys present. In other counties, the hearing will take place in open court without the clients present. In some counties the hearing will take place in open court with the clients present. Your attorney will advise whether or not you need to be present.

District rules will provide how soon before the hearing the affidavits needed to be exchanged and when responsive affidavits must be filed (rebutting what the other party said in their affidavit). At the hearing these affidavits and other exhibits (such as a child support calculation) will be offered and the parties will have a chance to object to the affidavits and exhibits. After the judge accepts the affidavits into evidence the attorneys will each have a chance to make an argument. The judge may make a decision at that time or they may take the matter “under advisement” so they have a chance to review the affidavits and issue a written order. That order may be available the next day or it may take a few weeks. Remember to be patient.


Please remember that this information is relevant only to Nebraska law and even within the state, there are specific rules for each District that your attorney should be aware of. This is meant to provide general information on what to expect with a temporary hearing. As always for more precise information, seek out assistance of a local attorney in your area.