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.


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.

Tuesday, November 15, 2016

Non-Profit Series: 2. How Should My Non-Profit Operate?

Written by Sagan L. Carman-Downer

When forming a non-profit organization, one of the first things you will need to decide is what type of entity you will use to operate the organization. An organization is not necessarily required to establish a formal non-profit corporation under state law. Additionally, there is no requirement that a non-profit that is formally organized under state law apply for status as a tax-exempt organization for purposes of federal income tax.

Thus, there are three options you can consider when deciding how to operate your non-profit organization.

1.  Form a non-profit corporation under state law and apply for federal income tax exemption.
2.  Form a non-profit corporation under state law and forego federal income tax exemption.
3.  Forego formal incorporation under state law and forego federal income tax exemption.

If you choose to form a non-profit corporation under state law, commonly known as incorporating your organization, you will need to look at state law to see what is required. Incorporating will involve filing a document known as the Articles of Incorporation. State law will provide guidance on what information is required in the Articles. Typically, the Articles will indicate the purpose of the organization, the address where it is located, and who is incorporating it. The Articles may, and commonly do, include additional information regarding how the organization will be managed. Once you have filed the Articles, and the state has accepted that document, you will have become a non-profit corporation.

At this point, you can either operate at a non-profit corporation that is subject to federal income tax, or you can seek tax-exempt status. To qualify as a corporation that is exempt from paying federal income tax, you will file an application with the Internal Revenue Service. In order to qualify, you will need to meet specific requirements provided by the IRS. The application will examine, among other things, the purpose for which the corporation is formed and the restrictions on how its revenue is generated and used. If the corporation meets the requirements, it will be determined to be a tax-exempt organization. If the corporation fails to meet the requirements, it will still be subject to federal income tax.

Another option is to forego incorporation under state law and federal income tax exemption, and simply operate as an unincorporated association. If the organization chooses this option, there may be tax and liability ramifications. That is not to say, though, that this option is never appropriate under certain circumstances. Depending on the facts of your situation, this option may be adequate, and would save the organization the time and money involved in incorporating and seeking tax-exempt status.

In order to decide which of these three option will work best for your non-profit organization, it is best to speak with an attorney in your state. An attorney can look at the facts of your specific situation, and advise you of the pros and cons of each of the options provided.

Tuesday, November 8, 2016

Guilty, Not Guilty, No Contest...What do they mean?

When a person is charged with a crime and makes his or her first court appearance, the judge advises that individual (although usually along with a courtroom full of other folks) of his or her rights. Additionally, the judge advises the defendants of the possible pleas that they can enter. There are three: guilty, not guilty, and no contest. So, what do these pleas actually mean, and what is the difference between them?

Guilty means that the defendant is admitting to what he/she has been charged with. If a guilty plea is entered, the judge may sentence the defendant immediately, or may order a Pre-Sentence Investigation (PSI) to be completed with the probation office before a sentence is imposed.

Not Guilty means that the defendant is not admitting to what he/she has been charged with. This plea is often entered at the outset of the case, essentially as a placeholder, to allow the defendant to meet with his/her attorney, conduct discovery, engage in plea negotiations, and generally decide how to proceed in the case. Ultimately, if the defendant decides to go to trial, he/she will stand on the not guilty plea, and the judge or jury will decide whether the defendant is guilty or not guilty at trial.

No Contest means that the defendant is neither admitting nor denying the charge. Instead, the defendant is allowing the judge to find him/her guilty and impose a sentence without a trial. I often tell my clients that if you disagree with some of the facts in the police reports, but ultimately wish to accept a plea offer and avoid trial, then a no contest plea is the way to go. Generally speaking, prosecutors and judges don't care whether a defendant enters a guilty or no contest plea, so it doesn't lead to a more severe sentence than a guilty plea.

Innocent is not a plea. People sometimes tell me that they want to plead innocent. What they really mean is that they want to enter a not guilty plea, and proceed to trial because they did not do what they are charged with. If you want to look smart, don't tell the judge or your attorney that you're pleading innocent, say you're pleading not guilty.

Tuesday, November 1, 2016

Family Law Part 1: The Initial Consultation

Written by Jordan J. Mruz.

My name is Jordan Mruz and I am currently in my third year of practice at Fye Law Office. My practice does not have a focus per se, but family law cases are a large portion my work up to this point and I hope it will be for years to come. This will be first installment of an ongoing series where I will discuss the various aspects of different family law cases.  Look for future posts that will include discussions about what is required of you by statute, what a final trail may look like, and anything in between.

Are you married and considering getting a divorce? Are you considering leaving your significant other with whom you have children? If your answer is yes to either of these questions, you may be considering speaking with an attorney. This post will hopefully provide you with some guidance on what to be prepared for when you go to meet with an attorney.

One of the first things someone asks me over the phone is usually, “Do I need to bring anything?” The correct answer is (in true legal form):  maybe.  If you have a previous court order (and you are seeking to modify this custody order), then this is a great piece of information to bring to your consultation. If you cannot find your copy, your attorney should usually be able to look up the case. You may have text messages or emails from the other party showing a threat against your safety or claiming they will never let you see your child. You may have school records that show your child being absent from school for extended periods of time when they are staying with the other party. These are the kinds of things that can be helpful to prove your case. There is not always physical documentation of the evidence you need and I meet with many people in this position.

Many people come into my office and simply do not know where to start. I encourage these people to start with simple things such as: who the other party is, whether your are married, where you were married, when you were married, names and ages of children. These questions usually allow the person to open up and get to the more intimate details of why they need assistance. Tell the attorney your story and they will guide you through how that story plays out with the legal system. They will explain to you the basic process of a divorce/custody action, what will be required of you by the court, as well what the potential outcomes are for your case.

No two cases are exactly the same, so your attorney may explain how based on the information you provided, what direction they believe your case will take. I believe it is the best practice to tell the people I meet with what they can realistically expect for an outcome. I do not believe in telling people simply what I think they want to hear (that they will absolutely get X, Y, Z, etc.). I believe these types of open and honest opinions about the case early on can help the case reach an ultimate resolution with greater ease.

Tuesday, October 25, 2016

Non-Profit Series: 1. What is a Non-Profit Organization?

Written by Sagan L. Carman-Downer

Have you and a group of your peers started or considered starting a non-profit organization? It can be difficult when starting out to decide whether creating a formal non-profit entity is necessary in your situation. And if it is necessary, figuring out the next steps you need to take can be overwhelming. This article will start a mini-series discussing non-profit organizations and answering some common questions.

First, it is important to understand what a non-profit organization is and what differentiates it from a traditional business entity. The main distinction is that a non-profit’s goal or purpose is not to generate a profit for its shareholders. That is not to say, though, that a non-profit will not generate money. The difference lies in how that money is distributed. Non-profit organizations utilize that money to further one or more charitable purposes recognized by their state, while traditional business entities typically distribute their profit among the business’s owners.

Next, it is worth noting that the requirements for recognizing a non-profit for purposes of state law are not identical to those for federal law. Non-profit entities are creatures of state law. Thus, the requirements you must meet to establish a formal non-profit will depend on the state in which you are located. The main question the state will examine is the purpose for which the organization is formed. There are numerous purposes that state law typically recognizes as charitable. These purposes will be addressed in a later article. For now, it is enough to understand that what is charitable will depend on your state’s laws.

While this may come as a surprise to some, an organization that is considered a non-profit for purposes of state law, is not necessarily a non-profit for purposes of federal law. In fact, federal law does not expressly recognize “non-profit organizations.” Instead, federal law provides that certain organizations, meeting specific requirements, are exempt from paying federal income tax. Thus, you may sometimes hear non-profits referred to as “tax-exempt organizations” in reference to federal law.

In sum, a non-profit is an organization formed and operated for some charitable purpose that is recognized by state law. If that non-profit meets certain federal requirements, it may be a tax-exempt organization, meaning it does not have to pay federal income tax. While many of the state and federal requirements are the same or similar, they are not always identical, so it is possible that a non-profit organization recognized by a state would still be required to pay federal income tax.

Tuesday, October 18, 2016

What is a Preliminary Hearing? And what do I need to know about it?

Written by Tana M. Fye

If a person is charged with a felony, one of the very first hearings that will be scheduled is called a preliminary hearing. This type of hearing is not scheduled in cases where a person is only charged with misdemeanors, so people are often confused about what exactly happens at the preliminary hearing.  

A preliminary hearing is a hearing where the State (through the County Attorney or the Attorney General) has to show (1) that there is probable cause to believe that what was charged actually happened, and (2) that the person charged is the person who committed that act. Probable cause is the standard. And probable cause is a much lower standard than reasonable doubt, the standard used at trial. Consequently, it is much easier for the State to show probable cause and win at the preliminary hearing than it is to prove the case beyond a reasonable doubt and win at the trial.

A defendant (the person charged with the crime) has two options as it relates to the preliminary hearing. One option is to have the preliminary hearing, where the State would try to prove up the two items discussed above. The second option that a defendant has is to waive his/her right to preliminary hearing. This waiver can happen either in the courtroom, or using a document called a Waiver of Right to Preliminary Hearing. Both essentially accomplish the same thing, giving up the ability to challenge probable cause. 

There are several reasons that a person may want to waive his/her right to a preliminary hearing. They include (but aren't limited to): the ability to screen for drug court, to curry favor with the prosecutor to try to get a more favorable plea offer, to obtain discovery or reports more quickly, because the judge has already found probable cause, because a better strategy may be to file suppression motions than to waste time on a preliminary hearing. 

There are several reasons that a person may want to have his/her preliminary hearing. They may include: putting witnesses or a law enforcement officer on the record, because the Probable Cause Affidavit left out key information that may show that there is not probable cause.

In any event, if you are charged with a felony, you should seek the advice of a competent criminal defense attorney who can evaluate your particular case and circumstances and arrive at the best strategy for you. No two cases are the same, and each requires individual attention and discussion with a criminal defense attorney.