In this episode we’ll discuss legal remedies for unhappy shoppers. A lot of our material is derived from, “Nolo’s Encyclopedia of Everyday Law,” written by Shae Irving, and the Nolo editors. Okay, let’s start with a typical consumer question:
QUESTION: I don’t like a lamp that I purchased. There’s nothing wrong with it; I just don’t like it. Do I have the right to a cash refund?”
ANSWER: Many merchants will refund your money or reverse your credit card charges, but they’re doing it because it’s their policy, not the law. Nolo, for example, the sponsor of this podcast, has a “no questions asked” return policy – if you don’t like a book, you can return it for a cash refund. But a seller is not legally required to make a cash refund. A seller may be required to make an exchange for merchandise that is defective or does not perform as advertised. These are requirements that occur because of laws about warranties – implied and expressed warranties. We’ll talk about those in a few minutes. But it’s important to remember that a merchant doesn’t have to make a cash refund to a consumer. There are rules in four states however:
In California, sellers who do not allow a full cash or credit refund within seven days of purchase have to post the store’s refund credit policy. If the seller fails to post the policy, you can return the goods for a full refund within thirty days of your purchase.
In Florida, if the seller has a no-refund policy, such a statement must be posted in a store. If a no-refund policy isn’t posted, you may return unused goods in the original packaging within seven days for a full refund.
In New York, sellers with a no-refund policy have to post it. If a seller does not post the policy, you’re entitled to a choice of cash or credit refund within twenty days if goods are not used or damaged.
In Virginia, sellers must post the refund or exchange policies, unless they give a full cash refund or a full credit within twenty days after purchase.
QUESTION: What does a warranty mean? Does every new product come with a warranty?”
ANSWER: The main thing to remember about warranties is that they’re based on common sense. A contract for a sale is based on a principle that merchandise will perform either as commonly expected – for example, that a lamp will work, or that a product will be sold as advertised. For example, if it says that batteries are included, then you expect that batteries will be included. These guarantees are part of the sale. So, a warranty is just an assurance about the quality or performance of the product or service. The most common warranty is the implied warranty of merchant’s ability. It’s a part of every consumer transaction that you will make. What that means is that a product or service will perform as expected for its basic purpose. So, if you buy a juicer that can’t perform it’s basic purpose, that is, it can’t make juice, then the seller broke the implied warranty, and the seller owes you a replacement juicer that will make juice. For used items, there’s also a warranty of merchant ability, and that’s a promise that the product will work as expected given its age and condition. So, for example, a ten-year-old used juicer may not look or work as well as a new one considering its condition and age. There’s a second implied warranty, and that’s the implied warranty of fitness. That means that if you and the seller communicated a specific or an unusual purpose when you purchased the item, then it’s expected that the item can perform for that unusual or specific purpose. So, for example, if you purchased a juicer and indicated to the seller that you wanted a juicer that could both do citrus fruits and carrots and apples, and the juicer could only do carrots and apples, then there’s a breach of the warranty of fitness for a particular purpose. Those are the two implied warranties that exist in all states for purchases of new and used items. There’s also an expressed warranty, and that’s a warranty that’s specifically stated, usually in writing. So, for example, the juicer may come with a warranty that says, “This juicer is warranted against defects and materials or workmanship for ninety days.” So, if there was a breakdown in parts, the manufacturer would have to replace those parts, to honor the expressed warranty. An expressed warranty can also be an advertisement, or even a sign in the store -- for example, a statement that all dresses are 100% silk. An expressed warranty lasts for the period of time stated in the warranty, for example, three years after the date of purchase, and in most states, an implied warranty lasts as long as the product can be used for its intended purpose. In a few states, however, if there’s an expressed warranty, the implied warranty lasts only as long as the expressed warranty that comes with the product. In some states, if there is no expressed or written warranty, a seller can sometimes avoid an implied warranty by selling the item “as is.” There are other states that prohibit all as-is sales, but in all states, the buyer must know that the item is sold as-is in order for the seller to avoid any implied warranty.
QUESTION: What good does a warranty do me if I purchase a defective item?”
ANSWER: Since most of the time a defect is going to show up immediately, you can ask the seller or the manufacturer to fix or replace the item. If the seller won’t, or tries only once and the fixed or replaced item is still defective, you can withhold payment or inform a credit card company that the charge is disputed. If you’re uncomfortable doing this, or have already paid for the item, call the seller and try to work out an arrangement. If the seller refuses, you can try to mediate the dispute through a community or better business bureau mediation program, or else you’re going to have to sue, usually in small claims court. Nolo has an excellent book on dealing with small claims court, Everybody’s Guide to Small Claims Court, but it’s best if you can sort out your dispute without resorting to small claims court, since the process can be time-consuming, and sometimes requires chasing the merchant further, even if you win. If the seller or manufacturer won’t make good under a warranty, you must sue within one to four years of when you discovered the defect, depending on your state’s laws.
QUESTION: What happens if my juicer works fine for the one-year written warranty period, but then breaks the day after the warranty period ends?
ANSWER: If there’s an expressed warranty and it’s expired, you usually don’t have any recourse. However, in some states, if the item gave you some trouble while it was under warranty, and you had it repaired by someone authorized by the manufacturer, the manufacturer must extend your original warranty for the amount of time the item sat in the shop. If you think you’re entitled to this type of extension, call the manufacturer, and ask to speak to the department that handles warranties. Also, keep in mind that you have some other options – if your item was trouble-free during the warranty period, the manufacturer may offer a free repair for a problem that arose after the warranty expired, if the problem is widespread. Many manufacturers have secret “fix-it” lists – items with defects that don’t affect safety, and therefore don’t require a recall, but that the manufacturer will still repair for free. It can’t hurt to call and ask.
QUESTION: What about an extended warranty? Should I buy one?
ANSWER: Probably not. Merchants encourage you to buy extended warranties, also called service contracts, because they are a source of big profits for stores, which usually pocket up to 50% of the amount that you pay. It’s rare that you have the chance to exercise your rights under an extended warranty. Name-band electronic equipment and appliances usually don’t break down during the first few years, and if they do, they’re usually covered by the original warranty.
QUESTION: I received some unordered merchandise in the mail, and now I’m getting billed. Do I have to pay?
ANSWER: No, you don’t. You don’t owe any money if you receive an item you never ordered; it’s considered a gift. If you get bills or collection letters from a seller who sent you something you never ordered, write to the seller stating your intention to treat the item as a gift. If the bills continue, insist that the seller send you proof of your order. If this doesn’t stop the bills, notify the state Consumer Protection Agency in the state where the merchant is located. If you sent for something in response to an advertisement claiming a free gift or trial period but are now being billed, be sure to read the fine print of the ad. It may say something about charging shipping and handling, or worse, you may have inadvertently joined a club or subscribed to a magazine. Write the seller, cancel your membership or subscription, offer to return the merchandise, and state that you believe the ad was misleading.
QUESTION: I just signed a contract to have carpet installed in my house, but I’ve changed my mind. Can I cancel?
ANSWER: Under the federal trade commission’s cooling off rule, you have until midnight of the third day – not including Sundays and federal holidays – after a contract was signed to cancel either of the following: one, door-to-door sales contracts for more than $25, or two, a contract for more than $25 made anywhere other than the seller’s normal place of business. For example, a sales presentation at a hotel or restaurant, an outdoor exhibit, a computer or trades show, with two exceptions: public auctions and craft fairs are excluded. This cooling off period also does not apply to contracts to buy a car, truck, van, or camper. If your dealer says otherwise, that is, if the dealer is promising you a cooling off period, be sure to get it in writing.
QUESTION: What other types of contracts can I cancel?
ANSWER: The Federal Truth and Lending Act lets you cancel some loans up until midnight of the third day – not including Sundays or federal holidays – after you sign the loan contract. It applies only to loans for which you pledged your home as security, as long as the loan is not a first mortgage. In addition, many states have laws that allow you to cancel written contracts covering the purchase of certain goods or services within a few days of signing. These usually include contracts for dance, or martial arts lessons, credit repair services, health club memberships, dating services, weight loss programs, time-share properties, and hearing aides. In a few states, you can also cancel a contract if you negotiated the transaction in a language other than English, but the seller did not give you a copy of the contract in that language. Call your state Consumer Protection Agency to find out what contracts, if any, are covered in your state.
QUESTION: I ordered some clothing online, and there’s a delay in the shipping. Can I cancel my order?
ANSWER: With the exception of photo development services, magazine subscriptions, and the ordering of seeds or plants, if you order something online, or by mail, phone, or fax, the Federal Trade Commission’s mail or telephone order rule requires that the seller ship to you within the time promised or, if no time was stated, within thirty days. If the seller cannot ship within that time period, the seller must send you a notice with a new shipping date, and offer you the option of canceling the order and getting a refund or accepting the new date. After you receive this first notice, you have to contact the seller to cancel. If you don’t, you’ll be considered to have consented to the delay.
QUESTION: I purchased a defective item using my credit card. Can I request that the credit card company reverse the charges?”
ANSWER: Under federal law, you must first attempt in good faith to resolve the dispute with the merchant. If that doesn’t work, the credit card company is required under the law to begin a dispute resolution process, during which time the charges are temporarily reversed, pending the outcome. Now, your ability to use this law depends on several variables, including whether the merchant is within your state, or within 100 miles of your home, or whether you are using a seller’s card, for example a JC Penny’s card to buy at JC Penny’s, and the extent of the proof that you can furnish to demonstrate that the product or service is defective. Check with your credit card company, because many companies provide better dispute resolutions procedures than guaranteed by this law, and in general, it’s much more satisfying than dealing with small claims court, because if you win, the charge is permanently reversed; you don’t have to chase the merchant to enforce the judgment. But, like small claims court, it still requires time and preparation, and for small consumer disputes, say, for example, for matters between $50 and $100, you may spend more time preparing your case for the credit card dispute resolution procedure than you’ll be getting back. That said, it’s still one of the better forms of consumer protection when making purchases.
Sunday, June 25, 2006
Sunday, June 18, 2006
What Does a Dog Owner Need to Know About the Law?
We’re speaking with Mary Randolph, the author of “Every Dog’s Legal Guide: A Must-Have Book for Your Owner.”
NOLO: Mary, considering that dogs have been around for thousands of years, why is it necessary to license them, and what’s going to happen to a dog owner who doesn’t license a dog?
MARY RANDOLPH: Well, the theory behind licensing is that cities want to keep track of dogs; they want to know how many dogs they have, they want to get a little money from the dog owners to go towards the cost that a city incurs when it’s taking care of the dog population… they have to have animal control officers, they have noise ordinances… so, that’s the idea behind it; it’s just that having a dog is a bit of a privilege, it’s not just a right, and you have to pay a little fee for it. But no one comes around, obviously, knocking on doors, checking to see if your dog has a tag… you can get into trouble if your dog gets picked up, if your dog is running loose and the animal control people pick it up, you’re much more likely to get the dog back quickly and safely if you’ve got a license for the dog, because they can trace you right away, and they can contact you. If the dog doesn’t have an identifying tag, you might not get the dog back. In some places, they have rules that they keep licensed dogs longer on the theory that they are not strays; they have an owner out there looking for them. They also use licenses to keep track of rabies vaccinations, because you’re required to have a rabies vaccination, and in some places, some other vaccinations as well, so that usually goes along with the licensing requirement.
NOLO: In your book, you provided the interesting story of Toby, a dog who ran wild and whose owner was fined $500 for that, and later appealed the case to the California Court of Appeal. Two questions: in most places, dogs can’t run free, but how zealous can animal control enforcement people be when chasing dogs and what can they do once they’ve gotten hold of a dog? And, I guess, another question might be, what could motivate a dog owner to pay thousands of dollars in lawyer fees to appeal a $500 fine?
MARY RANDOLPH: Well, in dog cases, there’s always something going on more than money; people are very emotional attached to their dogs. This must have been a big issue; I don’t know the particulars of this case, but Toby had a rap sheet – Toby had been caught fifteen times I think, by the animal control people, so this was a dog who was obviously let free all the time, and the owners were flouting the law, but how this case came about is because the animal control folks were chasing this dog, the dog ran home, ran in through an empty door, jumped on the bed presumably, went right in the bedroom, and the police came because the door was open, and they thought perhaps there had been a burglary. The animal control people followed the dog into the house and impounded it, so the owners were understandably upset that the people had gone into their house and taken the dog who was not running loose at that moment, and carted it off and locked it up. So, that is beyond the pale – animal control folks are not supposed to come into your house and take the dog. Otherwise, they can, if the dog is running at large, they’re pretty free to track it down and lock it up. It’s a public safety issue.
NOLO: Mary, if there’s a no-pet clause in a lease, what if the landlord permits a dog in the beginning, and then later wants to enforce the no-pets provision?
MARY RANDOLPH: Landlords are free to discriminate against people with pets. They can’t discriminate against people with families or people with disabilities, but pets are okay for landlords to decide that they just don’t want to deal with pets, that’s alright. But a landlord who tells you that you can have a pet, and then later changes his mind, might be in trouble. For example, if you move in, and you have a pet that doesn’t cause any problems for several years, and it’s okay with the landlord and they know about it, but in the lease there’s that little fine print, no-pets clause, the landlord can’t suddenly say, “Oh, I’m going to enforce that clause now, and you have to leave or get rid of the pet,” because it’s often a pretext for getting rid of someone for another reason; perhaps the landlord wants to raise the rent or get a different tenant. Courts understand that landlords use a no-pets clause sometimes to get rid of someone for another reason, so you’re not allowed to essentially waive that clause for several years and then enforce it.
NOLO: You told the story of a man who shipped nine racing greyhounds by air from Portland to Boston. The airlines left the cages on a baggage cart in ninety-seven degree heat, and seven of the dogs died. But the court awarded the owner a total of $750. How can that be?
MARY RANDOLPH: That’s right, it’s obviously far below the market value even, of those dogs, much less anyone’s emotional value of a dog. The reason they could do that is because federal law limits airlines’ liability, and dogs are treated just like baggage for purposes of that limit, so the limit now is $2,800, which still, of course, is not very much, and in no way replaces the value of a pet. Airlines have also, since that time, become more restrictive and selective about transporting animals. They’re really not set up to do a very good job of it, and it’s best to avoid it if you can. Some airlines no longer take animals, some won’t take them during the summer months, some don’t take certain breeds that tend to have breathing problems… so, you have to be smart about it, and pay real close attention to the conditions of the flight, and non-stop flights of course are best, avoiding hot weather or very cold weather is best, but you’re certainly not going to get very much financial compensation if something goes wrong.
NOLO: The barking dog issue… in an episode of Seinfeld, Elaine, unhappy about a barking dog, enlists Kramer and her friends to kidnap the dog. Now, most of us have faced similar noise problems, so what can a person do in this type of situation?
MARY RANDOLPH: This is probably the most common problem that people have with dogs, because owners, unfortunately, are often blissfully unaware that their dog is causing problems, because dogs typically bark when they’re left alone; dogs hate to be left alone – that’s kind of the worst thing you can do to a dog, so they bark and howl because they’re sad and lonely. So, the owners, when they come home, think they have a perfectly quiet dog. What you need to do is be solicitous of your neighbors, if you have the dog. If you get a new dog, tell people that you want to know about the problem; people don’t like to bring up those problems, so let them know that you’d like to know about things so you can take care of it. There are lots of things that behaviorists also recommend that owners can do to keep their dogs happy while they’re gone. If you’re on the other side of the fence, and you’re being disturbed by a dog, the best thing to do is approach the owner first. Again, you have to assume good will, assume that the person doesn’t know that they’re causing a problem, and if you’re being bothered, probably other neighbors are as well, so you can enlist their help. Approach the owner in a cordial way, at least to start. You may have to ramp up your efforts later; it doesn’t always work to be cordial, but it’s the best way to start – these are your neighbors, you don’t want to poison relationships if you can possibly avoid it. But you can call the animal control folks. Different towns have different systems for responding; some can be very helpful, but with others you’ll have to be more persistent to try to get someone to come out and try to speak to the owner. The police are the last resort, but you can call them if it’s a continuing problem that you can’t seem to solve, and sometimes that has the desired effect.
NOLO: What should a person do if they witness unnecessary cruelty to a dog?
MARY RANDOLPH: The best thing you can do is to call the animal control authorities for your town; sometimes that duty is contracted out to a local humane organization or an SPCA, but every town has someone who’s in charge of that, and animal cruelty or neglect is a crime – it’s punishable by fines, and, if it’s really horrendous, by jail, so you can do something; you don’t have to stand by and watch. People have certain basic duties to care for their animals, so if an animal is neglected continuously, or if it’s chained out without proper food or shelter, for example, or if it’s actually abused, you should definitely try to take action. You don’t have to rescue it yourself, but you can enlist help.
NOLO: Providing for your dog after you’re gone – it’s surprising how often that question seems to come up. What’s the answer for a dog owner?
MARY RANDOLPH: Well, you’re right that it is a big question; a lot of people, especially older people, are concerned about what would happen if their pets outlive them, and it’s a reasonable question, because you have to have some kind of plan in place for just the care of an animal, and the animal can’t wait; it needs a home right away. So, the most important thing you can do is to find a home for the animal ahead of time. Talk to somebody, make sure that they’re willing to take the animal – don’t let it be a surprise, make arrangements. And the financial part is the next part. If you’re leaving your dog to someone, which is really what you’re doing by making these arrangements, it’s good to leave some money with the dog. Dogs take care, they take veterinary care, especially as they get older, and simple upkeep, and it’s going to take some money, so it’s a thoughtful thing to leave some money along with the dog. Now, you can make fancier arrangements, and most states now have a legal arrangement under which you can make a trust for a dog; you appoint a trustee, you leave money… it’s like leaving money in trusts for a child. I don’t think most people need to go that route, to have to set up a trust. If you have someone that you’re entrusting the dog with, hopefully you would entrust them with some money for the dog’s care, and that’s really the most important thing; you’re not going to be around. A trust is a legal mechanism to make sure that your wishes are carried out, but how many people really need that? How many people really need the thought of a lawsuit to enforce their wishes? So, really, it’s just best to find someone trustworthy and leave them your pet and some money.
NOLO: Mary, speaking of dogs, Nolo recently unveiled its branding initiative that features a dog on the cover of many Nolo books. Can you tell us a little bit about this initiative, and the dog that was chosen for the cover?
MARY RANDOLPH: That’s right, we have a whole new look for Nolo books, and it goes along with our new theme, which is called “your legal companion.” We’re trying to make the book covers reflect how people think about Nolo; we are peoples’ companion through legal manners – we’re not like a professor, and we’re not like a lawyer, we’re a friend, and someone who helps you through these issues and explains them in plain English, and we were really looking for something that cuts across all the different kinds of books that Nolo does that would convey that, and we came up with the idea of a dog and your legal companion; it seems to resonate with people. Our cover dog has her own story; her name is Astrid, and she’s a yellow lab who was in the guide dog training class at Guide Dogs for the Blind in San Raphael, California. She was at the top of her class, and she was pulled out to become a breeder dog, so she’s a working mom, and she’s going to Japan to start the breeding program there for a guide dog program there, so she’s quite a star in her own rite, and we just thought that she conveyed that image of Nolo as your companion in a very good way.
NOLO: Mary, considering that dogs have been around for thousands of years, why is it necessary to license them, and what’s going to happen to a dog owner who doesn’t license a dog?
MARY RANDOLPH: Well, the theory behind licensing is that cities want to keep track of dogs; they want to know how many dogs they have, they want to get a little money from the dog owners to go towards the cost that a city incurs when it’s taking care of the dog population… they have to have animal control officers, they have noise ordinances… so, that’s the idea behind it; it’s just that having a dog is a bit of a privilege, it’s not just a right, and you have to pay a little fee for it. But no one comes around, obviously, knocking on doors, checking to see if your dog has a tag… you can get into trouble if your dog gets picked up, if your dog is running loose and the animal control people pick it up, you’re much more likely to get the dog back quickly and safely if you’ve got a license for the dog, because they can trace you right away, and they can contact you. If the dog doesn’t have an identifying tag, you might not get the dog back. In some places, they have rules that they keep licensed dogs longer on the theory that they are not strays; they have an owner out there looking for them. They also use licenses to keep track of rabies vaccinations, because you’re required to have a rabies vaccination, and in some places, some other vaccinations as well, so that usually goes along with the licensing requirement.
NOLO: In your book, you provided the interesting story of Toby, a dog who ran wild and whose owner was fined $500 for that, and later appealed the case to the California Court of Appeal. Two questions: in most places, dogs can’t run free, but how zealous can animal control enforcement people be when chasing dogs and what can they do once they’ve gotten hold of a dog? And, I guess, another question might be, what could motivate a dog owner to pay thousands of dollars in lawyer fees to appeal a $500 fine?
MARY RANDOLPH: Well, in dog cases, there’s always something going on more than money; people are very emotional attached to their dogs. This must have been a big issue; I don’t know the particulars of this case, but Toby had a rap sheet – Toby had been caught fifteen times I think, by the animal control people, so this was a dog who was obviously let free all the time, and the owners were flouting the law, but how this case came about is because the animal control folks were chasing this dog, the dog ran home, ran in through an empty door, jumped on the bed presumably, went right in the bedroom, and the police came because the door was open, and they thought perhaps there had been a burglary. The animal control people followed the dog into the house and impounded it, so the owners were understandably upset that the people had gone into their house and taken the dog who was not running loose at that moment, and carted it off and locked it up. So, that is beyond the pale – animal control folks are not supposed to come into your house and take the dog. Otherwise, they can, if the dog is running at large, they’re pretty free to track it down and lock it up. It’s a public safety issue.
NOLO: Mary, if there’s a no-pet clause in a lease, what if the landlord permits a dog in the beginning, and then later wants to enforce the no-pets provision?
MARY RANDOLPH: Landlords are free to discriminate against people with pets. They can’t discriminate against people with families or people with disabilities, but pets are okay for landlords to decide that they just don’t want to deal with pets, that’s alright. But a landlord who tells you that you can have a pet, and then later changes his mind, might be in trouble. For example, if you move in, and you have a pet that doesn’t cause any problems for several years, and it’s okay with the landlord and they know about it, but in the lease there’s that little fine print, no-pets clause, the landlord can’t suddenly say, “Oh, I’m going to enforce that clause now, and you have to leave or get rid of the pet,” because it’s often a pretext for getting rid of someone for another reason; perhaps the landlord wants to raise the rent or get a different tenant. Courts understand that landlords use a no-pets clause sometimes to get rid of someone for another reason, so you’re not allowed to essentially waive that clause for several years and then enforce it.
NOLO: You told the story of a man who shipped nine racing greyhounds by air from Portland to Boston. The airlines left the cages on a baggage cart in ninety-seven degree heat, and seven of the dogs died. But the court awarded the owner a total of $750. How can that be?
MARY RANDOLPH: That’s right, it’s obviously far below the market value even, of those dogs, much less anyone’s emotional value of a dog. The reason they could do that is because federal law limits airlines’ liability, and dogs are treated just like baggage for purposes of that limit, so the limit now is $2,800, which still, of course, is not very much, and in no way replaces the value of a pet. Airlines have also, since that time, become more restrictive and selective about transporting animals. They’re really not set up to do a very good job of it, and it’s best to avoid it if you can. Some airlines no longer take animals, some won’t take them during the summer months, some don’t take certain breeds that tend to have breathing problems… so, you have to be smart about it, and pay real close attention to the conditions of the flight, and non-stop flights of course are best, avoiding hot weather or very cold weather is best, but you’re certainly not going to get very much financial compensation if something goes wrong.
NOLO: The barking dog issue… in an episode of Seinfeld, Elaine, unhappy about a barking dog, enlists Kramer and her friends to kidnap the dog. Now, most of us have faced similar noise problems, so what can a person do in this type of situation?
MARY RANDOLPH: This is probably the most common problem that people have with dogs, because owners, unfortunately, are often blissfully unaware that their dog is causing problems, because dogs typically bark when they’re left alone; dogs hate to be left alone – that’s kind of the worst thing you can do to a dog, so they bark and howl because they’re sad and lonely. So, the owners, when they come home, think they have a perfectly quiet dog. What you need to do is be solicitous of your neighbors, if you have the dog. If you get a new dog, tell people that you want to know about the problem; people don’t like to bring up those problems, so let them know that you’d like to know about things so you can take care of it. There are lots of things that behaviorists also recommend that owners can do to keep their dogs happy while they’re gone. If you’re on the other side of the fence, and you’re being disturbed by a dog, the best thing to do is approach the owner first. Again, you have to assume good will, assume that the person doesn’t know that they’re causing a problem, and if you’re being bothered, probably other neighbors are as well, so you can enlist their help. Approach the owner in a cordial way, at least to start. You may have to ramp up your efforts later; it doesn’t always work to be cordial, but it’s the best way to start – these are your neighbors, you don’t want to poison relationships if you can possibly avoid it. But you can call the animal control folks. Different towns have different systems for responding; some can be very helpful, but with others you’ll have to be more persistent to try to get someone to come out and try to speak to the owner. The police are the last resort, but you can call them if it’s a continuing problem that you can’t seem to solve, and sometimes that has the desired effect.
NOLO: What should a person do if they witness unnecessary cruelty to a dog?
MARY RANDOLPH: The best thing you can do is to call the animal control authorities for your town; sometimes that duty is contracted out to a local humane organization or an SPCA, but every town has someone who’s in charge of that, and animal cruelty or neglect is a crime – it’s punishable by fines, and, if it’s really horrendous, by jail, so you can do something; you don’t have to stand by and watch. People have certain basic duties to care for their animals, so if an animal is neglected continuously, or if it’s chained out without proper food or shelter, for example, or if it’s actually abused, you should definitely try to take action. You don’t have to rescue it yourself, but you can enlist help.
NOLO: Providing for your dog after you’re gone – it’s surprising how often that question seems to come up. What’s the answer for a dog owner?
MARY RANDOLPH: Well, you’re right that it is a big question; a lot of people, especially older people, are concerned about what would happen if their pets outlive them, and it’s a reasonable question, because you have to have some kind of plan in place for just the care of an animal, and the animal can’t wait; it needs a home right away. So, the most important thing you can do is to find a home for the animal ahead of time. Talk to somebody, make sure that they’re willing to take the animal – don’t let it be a surprise, make arrangements. And the financial part is the next part. If you’re leaving your dog to someone, which is really what you’re doing by making these arrangements, it’s good to leave some money with the dog. Dogs take care, they take veterinary care, especially as they get older, and simple upkeep, and it’s going to take some money, so it’s a thoughtful thing to leave some money along with the dog. Now, you can make fancier arrangements, and most states now have a legal arrangement under which you can make a trust for a dog; you appoint a trustee, you leave money… it’s like leaving money in trusts for a child. I don’t think most people need to go that route, to have to set up a trust. If you have someone that you’re entrusting the dog with, hopefully you would entrust them with some money for the dog’s care, and that’s really the most important thing; you’re not going to be around. A trust is a legal mechanism to make sure that your wishes are carried out, but how many people really need that? How many people really need the thought of a lawsuit to enforce their wishes? So, really, it’s just best to find someone trustworthy and leave them your pet and some money.
NOLO: Mary, speaking of dogs, Nolo recently unveiled its branding initiative that features a dog on the cover of many Nolo books. Can you tell us a little bit about this initiative, and the dog that was chosen for the cover?
MARY RANDOLPH: That’s right, we have a whole new look for Nolo books, and it goes along with our new theme, which is called “your legal companion.” We’re trying to make the book covers reflect how people think about Nolo; we are peoples’ companion through legal manners – we’re not like a professor, and we’re not like a lawyer, we’re a friend, and someone who helps you through these issues and explains them in plain English, and we were really looking for something that cuts across all the different kinds of books that Nolo does that would convey that, and we came up with the idea of a dog and your legal companion; it seems to resonate with people. Our cover dog has her own story; her name is Astrid, and she’s a yellow lab who was in the guide dog training class at Guide Dogs for the Blind in San Raphael, California. She was at the top of her class, and she was pulled out to become a breeder dog, so she’s a working mom, and she’s going to Japan to start the breeding program there for a guide dog program there, so she’s quite a star in her own rite, and we just thought that she conveyed that image of Nolo as your companion in a very good way.
Sunday, June 11, 2006
What are Current Gay and Lesbian Legal Issues?
Hello. We’re speaking with Attorney Emily Doskow, an expert on Lesbian and Gay legal rights, and the editor of, “A Legal Guide for Lesbian and Gay Couples,” from Nolo.
NOLO: Emily, there’s a great movie called “Normal,” about a rural couple that’s been married for twenty-five years. Then, one day, the husband announces he plans to change his sex. Legally, what happens in situations like this, when a married couple becomes a same-sex couple? Is the marriage over?
EMILY DOSKOW: The marriage isn’t legally over if they were opposite sex when they got married; their marriage will still be valid after one partner transitions. It’s different if the partners are same-sex, and then one partner transitions so they become opposite sex, and the courts are split on that about whether a marriage would be valid that was done after a transition. Some courts say that the sex that the person was at birth is the sex that they stay, and so they’re still the same-sex couple that can’t have a valid marriage, and some states say that if they become opposite sex then their marriage is valid.
NOLO: In your book, there’s a discussion about a debate among gay activists as to whether the pursuit of marriage rights is a proper goal for same-sex couples. Considering all the rights that are denied same-sex couples, that is, compared to married couples, what’s the thinking behind opposing marriage rights for same-sex couples?
EMILY DOSKOW: I think it comes from a bunch of different places. One is a political stance that says, “Nobody should get married; marriage is an institution of the state that’s oppressive, and everybody should be able to define their legal and financial relationships however they want to.” Another is that it’s just too much too soon, and people aren’t ready for it, and it causes a backlash, and a lot of negative, you know, all of these anti-same-sex marriage laws that we’re seeing everywhere. Another is that it sort of closes doors to alternative types of relationships by mainstream, I mean the LGBT community. So, for example, in situations where a Lesbian couple asks a man to be a sperm donor, they want all three of them to be parents, and that’s something that has happened in the past, so that a child can have two female parents, one male parent, and courts have actually granted adoptions where it ends up that a child has three legal parents… that’s getting more and more uncommon because the structure of domestic partnerships, marriage, civil unions, all of that, is so much like marriage that courts are sort of becoming more reluctant to do things that are sort of outside of that mainstream, so that’s another argument against it.
NOLO: Five states have domestic partner programs: Maine, New Jersey, Vermont, Hawaii, and California. Which offers the best legal rights?
EMILY DOSKOW: Well, Connecticut also is on that list; there are six now. And, of course, Massachusetts offers same-sex marriage, which is the best among them. I would say of the others, California, Connecticut, Vermont, and Maine all offer benefits that are equivalent to marriage on the state level; none of them are recognized by federal government.
NOLO: Let’s talk about living together contracts; there’s one on the CD in the Nolo book. What are the minimum requirements for making a living together contract, and are there times when a couple should get a lawyer to do one, rather than use the Nolo agreement?
EMILY DOSKOW: Well, I think people can do living together contracts for a lot of different reasons; the main reason for making sort of the most basic, simple kind, is that you’re acquiring property together, and you want to decide who owns it. I think the minimum things you need to have in it in that case are to identify the property, identify its value (or at least how much you spent to buy it, its purchase price), and then say what would happen to it if you split up; that’s the main purpose of having it, is to avoid a fight over who owns it if you break up. So, those are sort of the minimum things that should be in it other than, you know, the date, and your names, and all that basic stuff. In terms of when you would get a lawyer involved, I think that when you have a lot of property, or extremely valuable property, it might be good to have a lawyer review the agreement, where there’s really expensive real estate, if there are third parties involved besides the couple, that’s a good idea to have a lawyer look it over, or when people are doing contracts in anticipation of registering as domestic partners, or in a civil union. Oftentimes those types of pre-registration agreements are very much like a prenuptial agreement, which require both parties to have a lawyer in most states.
NOLO: In communities where landlords can discriminate based on sexual preference, is there a best strategy as to whether to tell the landlord about the sexual orientation? Can you think of a situation, for example, where a same-sex couple would have to disclose their sexual orientation?
EMILY DOSKOW: From a legal standpoint, I don’t think there are situations where you have to; my own personal view is that it’s not really that pleasant to live in a situation where you are worried about your landlord or anybody else finding out that you’re Gay or Lesbian, so I personally think it’s better not to stress yourself out by getting into a situation like that. Legally, though, I don’t think there’s any place where you would have to disclose.
NOLO: Same-sex couples cannot marry, except for Massachusetts. They also cannot divorce. So, how does a court sort out the ownership of the property when the same-sex couple splits?
EMILY DOSKOW: Well, in Massachusetts and in California, Connecticut, New Jersey, and Vermont, same-sex couples who split up who have registered legally, or entered into a civil union, or married, all of those same-sex couples can use the courts, and are required to use the courts, to get a divorce, or to dissolve their relationship just as heterosexual married couples would. In other states, basically, same-sex couples are treated as though they’re legal strangers who own property together; they don’t have any legal relationship other than their property ownership. They would go to civil court, rather than family court, and the judge would look at it as though they were business partners owning property together. It’s different, though, with children. If same-sex couples, even if they’re not registered or married, if they have children and they’re both legal parents, then they’ll go to family court as if they were married, just like heterosexual unmarried couples who have kids go to family court.
NOLO: Name changes. When name changes create the appearance of marriage, will courts permit it?EMILY DOSKOW: Sure. Courts will permit any name change as long as it’s not for a fraudulent purpose, or as long as it doesn’t contain fighting words, that sort of thing. So, people, very often same-sex couples, change their names so that they have the same last name, and having the appearance of marriage doesn’t really matter as long as they’re not intending to defraud anybody by doing it.
NOLO: Can you refer people to some places on the web to keep up with these Gay and Lesbian legal rights issues?
EMILY DOSKOW: Sure. There are a number of legal organizations that have tons of information on their websites; the National Center for Lesbian Rights at nclrights.org is one, lambdelegal.org is another, the Human Rights Campaign at hrc.org is another, and then for more sort of newsy, social connection type of things, planetout.com and gay.com are both big websites with lots of information.
NOLO: Emily, there’s a great movie called “Normal,” about a rural couple that’s been married for twenty-five years. Then, one day, the husband announces he plans to change his sex. Legally, what happens in situations like this, when a married couple becomes a same-sex couple? Is the marriage over?
EMILY DOSKOW: The marriage isn’t legally over if they were opposite sex when they got married; their marriage will still be valid after one partner transitions. It’s different if the partners are same-sex, and then one partner transitions so they become opposite sex, and the courts are split on that about whether a marriage would be valid that was done after a transition. Some courts say that the sex that the person was at birth is the sex that they stay, and so they’re still the same-sex couple that can’t have a valid marriage, and some states say that if they become opposite sex then their marriage is valid.
NOLO: In your book, there’s a discussion about a debate among gay activists as to whether the pursuit of marriage rights is a proper goal for same-sex couples. Considering all the rights that are denied same-sex couples, that is, compared to married couples, what’s the thinking behind opposing marriage rights for same-sex couples?
EMILY DOSKOW: I think it comes from a bunch of different places. One is a political stance that says, “Nobody should get married; marriage is an institution of the state that’s oppressive, and everybody should be able to define their legal and financial relationships however they want to.” Another is that it’s just too much too soon, and people aren’t ready for it, and it causes a backlash, and a lot of negative, you know, all of these anti-same-sex marriage laws that we’re seeing everywhere. Another is that it sort of closes doors to alternative types of relationships by mainstream, I mean the LGBT community. So, for example, in situations where a Lesbian couple asks a man to be a sperm donor, they want all three of them to be parents, and that’s something that has happened in the past, so that a child can have two female parents, one male parent, and courts have actually granted adoptions where it ends up that a child has three legal parents… that’s getting more and more uncommon because the structure of domestic partnerships, marriage, civil unions, all of that, is so much like marriage that courts are sort of becoming more reluctant to do things that are sort of outside of that mainstream, so that’s another argument against it.
NOLO: Five states have domestic partner programs: Maine, New Jersey, Vermont, Hawaii, and California. Which offers the best legal rights?
EMILY DOSKOW: Well, Connecticut also is on that list; there are six now. And, of course, Massachusetts offers same-sex marriage, which is the best among them. I would say of the others, California, Connecticut, Vermont, and Maine all offer benefits that are equivalent to marriage on the state level; none of them are recognized by federal government.
NOLO: Let’s talk about living together contracts; there’s one on the CD in the Nolo book. What are the minimum requirements for making a living together contract, and are there times when a couple should get a lawyer to do one, rather than use the Nolo agreement?
EMILY DOSKOW: Well, I think people can do living together contracts for a lot of different reasons; the main reason for making sort of the most basic, simple kind, is that you’re acquiring property together, and you want to decide who owns it. I think the minimum things you need to have in it in that case are to identify the property, identify its value (or at least how much you spent to buy it, its purchase price), and then say what would happen to it if you split up; that’s the main purpose of having it, is to avoid a fight over who owns it if you break up. So, those are sort of the minimum things that should be in it other than, you know, the date, and your names, and all that basic stuff. In terms of when you would get a lawyer involved, I think that when you have a lot of property, or extremely valuable property, it might be good to have a lawyer review the agreement, where there’s really expensive real estate, if there are third parties involved besides the couple, that’s a good idea to have a lawyer look it over, or when people are doing contracts in anticipation of registering as domestic partners, or in a civil union. Oftentimes those types of pre-registration agreements are very much like a prenuptial agreement, which require both parties to have a lawyer in most states.
NOLO: In communities where landlords can discriminate based on sexual preference, is there a best strategy as to whether to tell the landlord about the sexual orientation? Can you think of a situation, for example, where a same-sex couple would have to disclose their sexual orientation?
EMILY DOSKOW: From a legal standpoint, I don’t think there are situations where you have to; my own personal view is that it’s not really that pleasant to live in a situation where you are worried about your landlord or anybody else finding out that you’re Gay or Lesbian, so I personally think it’s better not to stress yourself out by getting into a situation like that. Legally, though, I don’t think there’s any place where you would have to disclose.
NOLO: Same-sex couples cannot marry, except for Massachusetts. They also cannot divorce. So, how does a court sort out the ownership of the property when the same-sex couple splits?
EMILY DOSKOW: Well, in Massachusetts and in California, Connecticut, New Jersey, and Vermont, same-sex couples who split up who have registered legally, or entered into a civil union, or married, all of those same-sex couples can use the courts, and are required to use the courts, to get a divorce, or to dissolve their relationship just as heterosexual married couples would. In other states, basically, same-sex couples are treated as though they’re legal strangers who own property together; they don’t have any legal relationship other than their property ownership. They would go to civil court, rather than family court, and the judge would look at it as though they were business partners owning property together. It’s different, though, with children. If same-sex couples, even if they’re not registered or married, if they have children and they’re both legal parents, then they’ll go to family court as if they were married, just like heterosexual unmarried couples who have kids go to family court.
NOLO: Name changes. When name changes create the appearance of marriage, will courts permit it?EMILY DOSKOW: Sure. Courts will permit any name change as long as it’s not for a fraudulent purpose, or as long as it doesn’t contain fighting words, that sort of thing. So, people, very often same-sex couples, change their names so that they have the same last name, and having the appearance of marriage doesn’t really matter as long as they’re not intending to defraud anybody by doing it.
NOLO: Can you refer people to some places on the web to keep up with these Gay and Lesbian legal rights issues?
EMILY DOSKOW: Sure. There are a number of legal organizations that have tons of information on their websites; the National Center for Lesbian Rights at nclrights.org is one, lambdelegal.org is another, the Human Rights Campaign at hrc.org is another, and then for more sort of newsy, social connection type of things, planetout.com and gay.com are both big websites with lots of information.
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