We’re speaking with Paul Mandelstein, the author of Always Dad: Being a Great Father During and After Divorce from Nolo.
NOLO: Many Dads don’t think the legal system is capable of giving them a fair shake in the divorce process. What do you think and what, if anything, can be done to balance the arrangement?
MANDELSTEIN: The arrangement might be unbalanced, but in the last ten years or so things have been shifting and more fathers are wanting to spend more time, and being more present and accountable. And basically, what you really need to do from Day One is to stay in your kid’s life, which might be hard, because everything’s emotional, but you’ve got to make sure that you create a legacy that you’ve been there from Day One, that you pick up the kids from school, doesn’t have to be full-time, any of that, but you need to show that from Day One that you’re in their life, that you’re not abandoning them. So that creates a clear pathway. Because often, you’ll move out of your house, and it’ll appear like you’re not taking care of them, and that you’re going to be the “weekend dad.” But if you just create a clear path that you are being there on a daily basis, and you’re very involved, and try to document that in some way, an email or whatever, that will help a lot.
NOLO: When you say Day One and you refer to the history … What point are you referring to exactly … the date of the divorce filing.
MANDELSTEIN: The history of when you split up, because when you’re an intact family, it’s hard to know who did what, and who’s taking care of who, but when you split up, you need to stay in the kid’s life. And if you want custody, if that’s your plan, then you should, from Day One, cut that amount of time for them, and ask for that amount of time. If you can only see them two days a week, then see them two days a week. But you need to set that precedent, because otherwise courts will look at this thing six months down the line and make a determination, and they’ll say “Well, you know, you haven’t been around, and you know, we’ll just keep it the way it is.” So it’s important to be pro-active in this way and step up.
NOLO: Paul, one point you make in discussing the initial breakup between a husband and wife with kids is that spouses should not jump right into the legal proceedings. Take it slow. Analyze the situation a little bit before you rush off to the lawyer’s office.
MANDELSTEIN: Exactly. One thing that’s going to happen is, as soon as someone goes to the lawyer’s office, that raises the ante quite a bit. And it makes things more emotional, more volatile, because even if you’re the one filing for divorce, things are going to change, right then. If the hot buttons are still hot, and no one’s in a big rush, your kids are okay, the money’s in place, and you can agree on things like that, it’s fine to wait until things settle down. Filing the papers is almost the point of no return.
NOLO: Your book is a very helpful manual for divorcing Dads. It even includes some advice on cooking. One tip you give is about using “right speech” Can you elaborate a little on what that is?
MANDELSTEIN: Right speech comes from a Buddhist term. And the Buddhists teach that right speech is essential for a satisfying life. And it means telling the truth, refraining from unjust criticism of others, using language constructively rather than harshly, and refraining from gossip. If you follow these principles, it can go a long way towards creating and maintaining a collaborative divorce. But because avoiding the truth, criticizing others and using harsh language and gossiping are all ways we vent our pain when our relationship breaks up, it’s far easier said than done.
NOLO: I liked your ten rules for communicating with an ex-spouse. One of the rules – listen to your ex-spouse without defending yourself – seemed a little unrealistic. Wouldn’t you have to be almost Zen-like to not want to defend yourself against accusations – especially unfair ones?
MANDELSTEIN: And right speech is also about staying focused on the future. You know, part of establishing a daily routine is figuring out how to communicate with your ex, and what this means. The first thing that you really need to consider is that this is about the kids. And it’s not about you right now. You’re not feeling good, you’re angry, you’re confused, you’re upset, so’s your ex, it’s a constant war. But what you’ve got to do is, you’ve got to end this war. Because the kids are unwilling hostages in an uncivil war.
NOLO: Let’s talk about custody issues. When it comes to resolving legal custody issues, you start with a quote from Virginia Burden Tower, basically ---nobody can get there unless everybody gets there. How can a divorcing Mom or Dad maintain that spirit of cooperation when dealing with divorce attorneys?
MANDELSTEIN: As I mentioned, in Virginia Towers’ book, she points out that a relationship of cooperation rather than combat begins with the thorough conviction that no one gets out of here unless everybody gets out of here. And it’s not that much different from the Buddhist philosophy where there’s no final and perfect enlightenment until everyone’s enlightened. So unless you create a collaborative path that works for everybody---so it’s not like your wife is out of the family---this is the extended family now. It’s not the broken family. Broken family is an old paradigm that doesn’t really work. This is the extended family. Which means there’s not just you and the kids, it’s you, the kids, your ex-wife, perhaps your mom and dad, the kids’ grandparents on either side, and different cousins and uncles, and everybody’s concerned. And also, if you’re going to be involved in another relationship, maybe you want to get married again, or maybe your ex gets married again, then you have perhaps her husband or your new wife and the kids. This is a large group of people and you have to take care of everyone. No one is expendable here.
NOLO: For some of our listeners who don’t know the basics, could you explain the difference between legal, physical and split custody?
MANDELSTEIN: Legal custody means that a parent has the legal authority to care for and make decisions concerning the child’s health, education and welfare. Legal custody is either joint or sole custody. Unless there’s a compelling reason to keep one parent from the involvement of decision making, the courts usually grant joint custody.
Physical custody refers to living with the children and seeing to their day-to-day physical needs, like feeding them and making sure they’re clothed. So you might have joint custody, you might have joint legal custody, which is you’re both responsible for their health, education and welfare, but one parent might be more responsible for the physical. Which means that, if you have the kids just on the weekends, well, on those days, you have physical custody. On the other days of the week, if your ex has them five days a week, then she has physical custody. Split custody---you know, in most families, siblings stay together. And that’s what split custody is about, it’s often giving others crucial stability and support---for example, if one parent tends to move to another city and there’s a great school system that would benefit their younger child, but the oldest sibling is in their last year of high school, and is involved in lots of activities and wants to stay, the parents might decide to have her live with the one parent who is remaining in that original city. But this doesn’t happen very often. In most cases, kids want to stay together. And it makes the most sense to do that.
NOLO: Tell me a little about your story? What prompted you to write this book?
MANDELSTEIN: When I split up---we split up in October--- and then a couple of weeks later it was Thanksgiving, and I have three kids, and they went over to mom’s. Where I would have been also, because mom’s a good cook, and throws a good party. But I was home, and I was feeling sad. I was sitting on my bed, and took out my yellow pad. My background is in publishing; I’ve foundered two publishing companies, I’ve been in the business for thirty years, so I kind of thought in terms of books. So I scribbled on a yellow pad, and then I went to bookstores to see what was around ,and I noticed that there were walls of information for women. And if you went to look for fathers, for men, there were about three books. And the books that there were about fathers, involving divorce, were all about men’s rights, and all about adversarial and trying to, for lack of a better word, conquer the ex-wife. I thought this was all wrong. And after talking to hundreds of people about all this, I felt that a new process should be created, and by doing that, I did my own healing by going through this and trying to help out.
NOLO: You’ve created the resource, www.father.com. First of all, I’m seriously impressed that you landed that domain name
MANDELSTEIN: You know, I bought it! I bought it! But I only paid $600 for it. It was in 1997, or 1996. Back then, I was going to do this great for profit portal. I found it very difficult and it was very hard to raise money because you couldn’t’ quantify your bottom line. And one day I woke up, and I said “You know, this is all wrong. I’m not doing this for money. I’m doing this to try to help.” And I turned it into a non-profit. And as soon as I did that, immediately I felt successful. Because in a non-profit, how you quantify your success is: Are you helping people. And I was helping people.
NOLO: And I’m also impressed that you launched this resource. It’s not just about divorcing dads, though is it?
MANDELSTEIN: No, it’s not. It’s about fathers and families in transition. We did a poll on the site and we asked “Do you have one, two, three, or four kids?” And almost half of them said “No kids” but that they were expecting. So it’s for new dads, and it’s certainly for divorced dads, and it’s for people dealing with end of life issues for their own parents, and maybe their own family. It’s basically for fathers and men for the tough transitions in life. And I believe that the father is a very vital and initiating force for the younger child. It’s very well-documented, the difficulties kids have in fatherless households. For example, 90% of the men in San Quentin are from fatherless households.
NOLO: Father.com has some great links. Can you tell us about any other online resources you recommend?
MANDELSTEIN: Of course, Nolo is a wonderful resource. Their specialty is self-help legal books. There’s also a site I really like called Dads and Daughters.com. As the title suggests, this is about relationships for fathers and daughters. And we have a ton of links on Father.com.
Saturday, October 7, 2006
Saturday, September 30, 2006
Can a Nonprofit Make a Profit?
We’re speaking with Anthony Mancuso, an expert on corporations, business forms, and nonprofits, and the author of, “How to Form a Nonprofit Corporation.” We’re going to speak with Tony today about the ability of a nonprofit corporation to earn income.
NOLO: Tony, most people understand that nonprofits get special tax breaks, but one thing that’s not clear about nonprofits is whether they can actually make a profit. Perhaps you can start out by defining the word “profit,” and then explaining whether a nonprofit corporation can actually make a profit.
TONY MACUSO: Well, it’s interesting, because the common meaning of profit is basically, you take in more than you spend, and you end up having a margin or a profit related to your activities that isn’t really what it is meant under the nonprofit statues. Basically, they don’t want you to be a commercial profit-making business; they don’t want the end that you’re trying to achieve to be the making of money. So, it’s not really in an accounting sense, it’s more of a common sense definition that has to do with your motives, your reasons for operating a nonprofit. They don’t want a substantial purpose to be simply to make money. It’s okay to make money, but they don’t want that to be your overriding interest, so it’s rather fuzzy and vague, the standard, but that’s really why they look very closely at your operations when you apply for tax exemption; they want to see your overall purposes of your program. If they feel, for instance, that you’re going into a publishing business simply to sell books to make money and not for any other reason, they’ll say, “Well, you’re a profit-making business; you really don’t qualify as a 501 (c) 3 educational nonprofit.” On the other hand, if you’re selling books that do the public good, that are clearly focused on benefiting the public and educating them in a certain way, then you can qualify, and you can make money from your sales.
NOLO: If a nonprofit can make a profit, then what can’t it do with this profit?
TONY MANCUSO: The big thing you can’t do, the major prohibition, is against self-inurement; you can’t help out anyone individually in their individual capacity associated with your nonprofit. So, you couldn’t take the money you made and simply pay it out as some kind of benefit to your CEO, and say, “Thanks a lot; we’re so happy you’re with us, here’s the extra profits.” In other words, give someone a participating profit interest in your nonprofit. Now, obviously, people try and get around that sometimes, but the whole point is, you’re not supposed to be their to benefit anyone in their individual capacity; you’re supposed to be benefiting the public at large, or a segment of the community. So, you can spend your money in any way you want to help that purpose, to help your nonprofit purposes, but once you start paying people simply to pay them, to kind of thank them, to incentivize them… basically, the nonprofits statutes and regulations say that’s not a valid nonprofit way to spend your money.
NOLO: You used the term “self-inurement?”
TONY MANCUSO: It’s an old-fashioned term, inurement, and it basically means a self-benefit. So, we’ve heard in the news over the last several years, there’ve been some scandals regarding some fairly well-known nonprofits where that’s exactly what they did; they bought yachts for their executive officers or had them available for them. So, spending money in that way, to benefit someone personally, is self-inurement, and it’s prohibited.
NOLO: You provided an example in your book, where Friends of the Library Nonprofit gets a lot of donations for its book sale, but after its sale, there are a lot of books left over, so the nonprofit sets up a way to re-sell these books using outside dealers. You write in your book that this can lead to problem, because it’s “unrelated income.” What’s the difference between related and unrelated income, and how can a nonprofit know when it has crossed that line from one to the other?
TONY MANCUSO: Well, again, as in many areas of nonprofit law and practice, it’s a fuzzy line, and it takes a bit of analysis, and it’s hard to predict all the time how the IRS or a court will decide the issue, but, basically, common sense is your best guide. So, if a group is clearly just getting rid of surplus books as a very, very small part of their overall operations, then perhaps it’s not a problem. But if you start looking more and more like a commercial bookseller, making more and more money from purposes that are not strictly related to your tax-exempt purposes, in other words, you’re no longer trying to educate people through the sale of books but rather you’re trying to make money in any way you can, then the IRS can quite justifiably say, “You’re engaging in purposes unrelated to your stated nonprofit tax-exempt purposes.” So, again, there’s no bright-line test for that type of income or activities, but common sense can be a helpful guide. I can give an example: I believe at one point I had heard of – and I don’t know how accurate this is, but it serves as a good example – a builder’s center who had the purpose of helping people produce environmentally sound and environmentally friendly homes, and they did quite well at selling the kits, and it served a valid nonprofit purpose, but they branched out and more and more became a more commercial operation, and I believe the IRS questioned them about it, and said, “You know, you’re really starting to look like a homebuilder,” and so they split off that part of their operations from their nonprofit to satisfy the IRS; so, it’s not always going to be the worst thing; it’s not always going to be the demise of the nonprofit all the time. As you get more and more successful with sidelines and certain commercial activities, you can spend them off perhaps, if you’re doing well at them, but you’ll need to separate them sometimes from your nonprofit activities.
NOLO: So the IRS is always the final arbiter of that line between related and unrelated income?
TONY MANCUSO: Generally that’s true.
NOLO: Some nonprofits earn income from royalty-generating sources. For example, the author of Winnie the Pooh donated all royalties to a nonprofit. How is this royalty income characterized?
TONY MANCUSO: Royalty income is basically unrelated income, in many ways, so if you’re getting that type of income, it gets a little bit technical, depending on the type of nonprofit that receives it. Nolo’s nonprofit books, the ones I’ve written for Nolo, deal with 501 (c) 3 public charities. They don’t have to worry about the strict rules about passive income usually; it’s more the 501 (c) 3 private foundations, which are a very special type of nonprofit that we don’t deal with. Rich families and well-to-do companies often set up foundations to receive passive income, and they have a lot of stringent rules about dealing with the income – recording it, spending it, how you spend it, and they have some fairly strict taxes and penalties that apply if you don’t do it the right way. So, passive income can present problems, but generally, if you get contributions and you’re a 501 (c) 3 engaging in your tax-exempt purposes, you generally don’t have to worry about it. I think the more important point for nonprofits, the kind we talk about, has to do with, if you’re going into a book-related field as a nonprofit, the IRS sometimes wants your authors to assign the copyrights to the publisher. I’ve had that happen when I’ve applied for nonprofit status on behalf of some clients that were in the book business or publishing books that they thought would help people, or educational materials. They wanted the nonprofit to own the copyright. They didn’t want the nonprofit to essentially be a conduit, to be helping out an author who had a proprietary interest in the material. That was the issue for them, so the one you cited is a little bit different; it’s on the other side of things, where they’re receiving income from a successful author. Oftentimes, the IRS, generally, it arises in a different context; they want the nonprofit to own the book; they don’t want the nonprofit basically to be a selling agent on behalf of an individual.
NOLO: You used the term “passive income.” Just so we’re clear, passive income is…?
TONY MANCUSO: As opposed to actively doing something to get it, they consider receiving rents or royalty income, and other types of investment income as passive income, and so there are some technical rules about it, but usually a small or medium-sized nonprofit engaging in an active nonprofit program doesn’t have to worry too much about it.
NOLO: So, that’s three types of income for nonprofits: related income, unrelated income, and passive income?
TONY MANCUSO: Passive income can be unrelated income; in many cases, it is.
NOLO: Let’s review the rules you’ve talked about for a second. Let’s say I want to create a nonprofit that furthers environmental awareness. Tell me how the following activities will affect the nonprofit status: the nonprofit starts a book store that sells only environmental books.
TONY MANCUSO: If you clearly have an environmentally-friendly mission, and you couch it that way in your tax-exemption application, you have a good chance of being classified as a 501 (c) 3 educational group.
NOLO: Okay, now the environmental book store decides to sell not just environmental books, but other types of books as well.
TONY MANCUSO: You have less of a chance.
NOLO: Okay, now the environmental book store offers a lecture series on environmental topics.
TONY MANCUSO: Lectures of any kind that are educational in nature, you can charge admission; just think of all the nonprofit schools and universities; they can teach almost anything they want. The requirement having to do with educational involving 501 (c) 3 is that you have a balanced perspective. So, you can’t limit, in a way, you can’t limit the type of educational materials, you can’t strictly say, “We’re only going to teach this,” I mean, we’ll present a balanced view of things; they can object on that basis. But, generally, charging tuition or charging admission for a lecture series is completely above board, and a very standard educational activity under 501 (c) 3.
NOLO: Okay, so, back to that environmental company, the book store that sells environmental books. It also out rates a web-based book store that sells environmental book.
TONY MANCUSO: The environmental site, if they limited themselves to that and made it clear that that’s really their mission, that’s probably okay. Again, though, the more it starts looking something like a commercial bookseller, the less of a chance it has of that activity being subsumed in its 501 (c) 3 nonprofit. So, the IRS, for instance, if you disclosed that on your exemption application and said, “We want to sell all types of books on our website,” they may say, “Well, you have a valid 501 (c) 3, but we feel that your website does not qualify, so that’ll have to be a separate activity.”
NOLO: Okay, now the environmental nonprofit is doing so well, they decide to become a publisher of environmental books. That is, the bookstore begins publishing its own books.
TONY MANCUSO: I don’t think becoming a publisher as opposed to simply a retailer is critical; I think that’s fine, being a publisher. Again, the despositive issue might be, what are you publishing, and how does it benefit the public?
NOLO: Back to the bookstore now for one more question. If you’re operating a bookstore in furtherance of your nonprofit goals, can everyone who shops there claim a tax deduction when they buy something? In other words, is making a purchase similar to making a donation?
TONY MANCUSO: Well, generally, charitable contributions are only to the extent that you don’t get value for what you pay; so, if you buy a $30 book, and pay $100, maybe you’re entitled to a $70 deduction, but if you’re paying market value for your book, there’s no amount that qualifies as a contribution.
NOLO: Let’s shift gears a little bit and talk about director liability. One purpose in forming a nonprofit corporation is to shield the members and directors from personal liability. As an example, if the nonprofit bookstore violates rules regarding earning money, will the corporate shield for liability disappear?
TONY MANCUSO: No, the tax statute is separate from the state corporate law statutes, so, you may lose your tax exemption, but your corporate entity is intact. It’s kind of a distinction without a difference, because a nonprofit corporation that isn’t tax-exempt is not a very helpful entity; essentially, if you lose your tax exemption, it probably makes sense to dissolve your corporate entity; nonprofits really only make sense if they have a tax exemption. There are some types that can operate fine without a tax exemption, but really, in the real world of 501 (c) 3-type nonprofits, you need both. Technically, it doesn’t destroy your Limited Liability status; that can happen if you don’t operate your corporation properly and keep minutes, and if you kind of play fast and loose with corporate formalities, but the tax statutes are separate, really.
NOLO: How much of a salary can a nonprofit member or owner receive? Are there limits established under the tax law?
TONY MANCUSO: Well, that’s a really good question, and it’s a very timely one, because there have been a number of scandals in the nonprofit world; some very well-known, reputable nonprofits have had trouble recently because of the amount of compensation they’ve paid their directors and executive officers, and the kind of lavish benefits they’ve given them, so the IRS has become very concerned about this and issued very complex and lengthy excess benefit regulations that they want nonprofits to comply with; it’s not required, but they’re strongly suggesting you do that. In fact, to help implement them, they’ve changed their tax-exemption application to lead you to disclose how you might comply with these excess benefit rules, and you don’t have to, but really what they’re saying is, if you don’t, you’re going to have a harder time obtaining your 501 (c) 3 tax exemption. So, the Nolo books have incorporated these new regulations into our corporate bylaws, and into our tax-exemption application responses to help people comply and understand the significance. It’s very important these days to try and satisfy the IRS from the start, so you don’t plan to excessively benefit anyone. Now, what does that mean? Again, there’s no bright-line test for this; it’s a fact-based determination the IRS makes, but think about how difficult it is to determine what excess compensation is. Symphony orchestras now are paying their conductors, nonprofits, at least 2 million dollars a year or more, so how can you say that a highly-paid executive officer of another nonprofit is getting too much money when the IRS kind of believes that a symphony conductor should get a lot? Well, the truth is that in certain fields you can get away with it, you can pay a lot of money, and in others you can’t, and it depends on the market rate; that really is what drives it. So, if you’re compensating your people in a way that is fair generally, given the kind of work they do, and the kind of organization you have, then you’re probably fine. But if you’ve gone out of your way to overpay somebody, if they’re really getting a golden deal that they could only get at your organization, then you probably are paying them excessively. Now, there’s a lot of safe-harbor rules you can get into, and the book talks about them, and how you can help satisfy yourself ahead of time, that you’re paying people fairly, and basically it has to do with taking a look at the data in your field, and getting some sample data and recording it in your minutes to show that the amount that you’re paying your people, your directors and executive officers, is comparable to what they would get in other organizations; that’s really the test.
NOLO: So, it’s really a matter of comparability.
TONY MANCUSO: It really is, and now they really want you to go out and look before you decide how much to pay somebody.
NOLO: Tony, most people understand that nonprofits get special tax breaks, but one thing that’s not clear about nonprofits is whether they can actually make a profit. Perhaps you can start out by defining the word “profit,” and then explaining whether a nonprofit corporation can actually make a profit.
TONY MACUSO: Well, it’s interesting, because the common meaning of profit is basically, you take in more than you spend, and you end up having a margin or a profit related to your activities that isn’t really what it is meant under the nonprofit statues. Basically, they don’t want you to be a commercial profit-making business; they don’t want the end that you’re trying to achieve to be the making of money. So, it’s not really in an accounting sense, it’s more of a common sense definition that has to do with your motives, your reasons for operating a nonprofit. They don’t want a substantial purpose to be simply to make money. It’s okay to make money, but they don’t want that to be your overriding interest, so it’s rather fuzzy and vague, the standard, but that’s really why they look very closely at your operations when you apply for tax exemption; they want to see your overall purposes of your program. If they feel, for instance, that you’re going into a publishing business simply to sell books to make money and not for any other reason, they’ll say, “Well, you’re a profit-making business; you really don’t qualify as a 501 (c) 3 educational nonprofit.” On the other hand, if you’re selling books that do the public good, that are clearly focused on benefiting the public and educating them in a certain way, then you can qualify, and you can make money from your sales.
NOLO: If a nonprofit can make a profit, then what can’t it do with this profit?
TONY MANCUSO: The big thing you can’t do, the major prohibition, is against self-inurement; you can’t help out anyone individually in their individual capacity associated with your nonprofit. So, you couldn’t take the money you made and simply pay it out as some kind of benefit to your CEO, and say, “Thanks a lot; we’re so happy you’re with us, here’s the extra profits.” In other words, give someone a participating profit interest in your nonprofit. Now, obviously, people try and get around that sometimes, but the whole point is, you’re not supposed to be their to benefit anyone in their individual capacity; you’re supposed to be benefiting the public at large, or a segment of the community. So, you can spend your money in any way you want to help that purpose, to help your nonprofit purposes, but once you start paying people simply to pay them, to kind of thank them, to incentivize them… basically, the nonprofits statutes and regulations say that’s not a valid nonprofit way to spend your money.
NOLO: You used the term “self-inurement?”
TONY MANCUSO: It’s an old-fashioned term, inurement, and it basically means a self-benefit. So, we’ve heard in the news over the last several years, there’ve been some scandals regarding some fairly well-known nonprofits where that’s exactly what they did; they bought yachts for their executive officers or had them available for them. So, spending money in that way, to benefit someone personally, is self-inurement, and it’s prohibited.
NOLO: You provided an example in your book, where Friends of the Library Nonprofit gets a lot of donations for its book sale, but after its sale, there are a lot of books left over, so the nonprofit sets up a way to re-sell these books using outside dealers. You write in your book that this can lead to problem, because it’s “unrelated income.” What’s the difference between related and unrelated income, and how can a nonprofit know when it has crossed that line from one to the other?
TONY MANCUSO: Well, again, as in many areas of nonprofit law and practice, it’s a fuzzy line, and it takes a bit of analysis, and it’s hard to predict all the time how the IRS or a court will decide the issue, but, basically, common sense is your best guide. So, if a group is clearly just getting rid of surplus books as a very, very small part of their overall operations, then perhaps it’s not a problem. But if you start looking more and more like a commercial bookseller, making more and more money from purposes that are not strictly related to your tax-exempt purposes, in other words, you’re no longer trying to educate people through the sale of books but rather you’re trying to make money in any way you can, then the IRS can quite justifiably say, “You’re engaging in purposes unrelated to your stated nonprofit tax-exempt purposes.” So, again, there’s no bright-line test for that type of income or activities, but common sense can be a helpful guide. I can give an example: I believe at one point I had heard of – and I don’t know how accurate this is, but it serves as a good example – a builder’s center who had the purpose of helping people produce environmentally sound and environmentally friendly homes, and they did quite well at selling the kits, and it served a valid nonprofit purpose, but they branched out and more and more became a more commercial operation, and I believe the IRS questioned them about it, and said, “You know, you’re really starting to look like a homebuilder,” and so they split off that part of their operations from their nonprofit to satisfy the IRS; so, it’s not always going to be the worst thing; it’s not always going to be the demise of the nonprofit all the time. As you get more and more successful with sidelines and certain commercial activities, you can spend them off perhaps, if you’re doing well at them, but you’ll need to separate them sometimes from your nonprofit activities.
NOLO: So the IRS is always the final arbiter of that line between related and unrelated income?
TONY MANCUSO: Generally that’s true.
NOLO: Some nonprofits earn income from royalty-generating sources. For example, the author of Winnie the Pooh donated all royalties to a nonprofit. How is this royalty income characterized?
TONY MANCUSO: Royalty income is basically unrelated income, in many ways, so if you’re getting that type of income, it gets a little bit technical, depending on the type of nonprofit that receives it. Nolo’s nonprofit books, the ones I’ve written for Nolo, deal with 501 (c) 3 public charities. They don’t have to worry about the strict rules about passive income usually; it’s more the 501 (c) 3 private foundations, which are a very special type of nonprofit that we don’t deal with. Rich families and well-to-do companies often set up foundations to receive passive income, and they have a lot of stringent rules about dealing with the income – recording it, spending it, how you spend it, and they have some fairly strict taxes and penalties that apply if you don’t do it the right way. So, passive income can present problems, but generally, if you get contributions and you’re a 501 (c) 3 engaging in your tax-exempt purposes, you generally don’t have to worry about it. I think the more important point for nonprofits, the kind we talk about, has to do with, if you’re going into a book-related field as a nonprofit, the IRS sometimes wants your authors to assign the copyrights to the publisher. I’ve had that happen when I’ve applied for nonprofit status on behalf of some clients that were in the book business or publishing books that they thought would help people, or educational materials. They wanted the nonprofit to own the copyright. They didn’t want the nonprofit to essentially be a conduit, to be helping out an author who had a proprietary interest in the material. That was the issue for them, so the one you cited is a little bit different; it’s on the other side of things, where they’re receiving income from a successful author. Oftentimes, the IRS, generally, it arises in a different context; they want the nonprofit to own the book; they don’t want the nonprofit basically to be a selling agent on behalf of an individual.
NOLO: You used the term “passive income.” Just so we’re clear, passive income is…?
TONY MANCUSO: As opposed to actively doing something to get it, they consider receiving rents or royalty income, and other types of investment income as passive income, and so there are some technical rules about it, but usually a small or medium-sized nonprofit engaging in an active nonprofit program doesn’t have to worry too much about it.
NOLO: So, that’s three types of income for nonprofits: related income, unrelated income, and passive income?
TONY MANCUSO: Passive income can be unrelated income; in many cases, it is.
NOLO: Let’s review the rules you’ve talked about for a second. Let’s say I want to create a nonprofit that furthers environmental awareness. Tell me how the following activities will affect the nonprofit status: the nonprofit starts a book store that sells only environmental books.
TONY MANCUSO: If you clearly have an environmentally-friendly mission, and you couch it that way in your tax-exemption application, you have a good chance of being classified as a 501 (c) 3 educational group.
NOLO: Okay, now the environmental book store decides to sell not just environmental books, but other types of books as well.
TONY MANCUSO: You have less of a chance.
NOLO: Okay, now the environmental book store offers a lecture series on environmental topics.
TONY MANCUSO: Lectures of any kind that are educational in nature, you can charge admission; just think of all the nonprofit schools and universities; they can teach almost anything they want. The requirement having to do with educational involving 501 (c) 3 is that you have a balanced perspective. So, you can’t limit, in a way, you can’t limit the type of educational materials, you can’t strictly say, “We’re only going to teach this,” I mean, we’ll present a balanced view of things; they can object on that basis. But, generally, charging tuition or charging admission for a lecture series is completely above board, and a very standard educational activity under 501 (c) 3.
NOLO: Okay, so, back to that environmental company, the book store that sells environmental books. It also out rates a web-based book store that sells environmental book.
TONY MANCUSO: The environmental site, if they limited themselves to that and made it clear that that’s really their mission, that’s probably okay. Again, though, the more it starts looking something like a commercial bookseller, the less of a chance it has of that activity being subsumed in its 501 (c) 3 nonprofit. So, the IRS, for instance, if you disclosed that on your exemption application and said, “We want to sell all types of books on our website,” they may say, “Well, you have a valid 501 (c) 3, but we feel that your website does not qualify, so that’ll have to be a separate activity.”
NOLO: Okay, now the environmental nonprofit is doing so well, they decide to become a publisher of environmental books. That is, the bookstore begins publishing its own books.
TONY MANCUSO: I don’t think becoming a publisher as opposed to simply a retailer is critical; I think that’s fine, being a publisher. Again, the despositive issue might be, what are you publishing, and how does it benefit the public?
NOLO: Back to the bookstore now for one more question. If you’re operating a bookstore in furtherance of your nonprofit goals, can everyone who shops there claim a tax deduction when they buy something? In other words, is making a purchase similar to making a donation?
TONY MANCUSO: Well, generally, charitable contributions are only to the extent that you don’t get value for what you pay; so, if you buy a $30 book, and pay $100, maybe you’re entitled to a $70 deduction, but if you’re paying market value for your book, there’s no amount that qualifies as a contribution.
NOLO: Let’s shift gears a little bit and talk about director liability. One purpose in forming a nonprofit corporation is to shield the members and directors from personal liability. As an example, if the nonprofit bookstore violates rules regarding earning money, will the corporate shield for liability disappear?
TONY MANCUSO: No, the tax statute is separate from the state corporate law statutes, so, you may lose your tax exemption, but your corporate entity is intact. It’s kind of a distinction without a difference, because a nonprofit corporation that isn’t tax-exempt is not a very helpful entity; essentially, if you lose your tax exemption, it probably makes sense to dissolve your corporate entity; nonprofits really only make sense if they have a tax exemption. There are some types that can operate fine without a tax exemption, but really, in the real world of 501 (c) 3-type nonprofits, you need both. Technically, it doesn’t destroy your Limited Liability status; that can happen if you don’t operate your corporation properly and keep minutes, and if you kind of play fast and loose with corporate formalities, but the tax statutes are separate, really.
NOLO: How much of a salary can a nonprofit member or owner receive? Are there limits established under the tax law?
TONY MANCUSO: Well, that’s a really good question, and it’s a very timely one, because there have been a number of scandals in the nonprofit world; some very well-known, reputable nonprofits have had trouble recently because of the amount of compensation they’ve paid their directors and executive officers, and the kind of lavish benefits they’ve given them, so the IRS has become very concerned about this and issued very complex and lengthy excess benefit regulations that they want nonprofits to comply with; it’s not required, but they’re strongly suggesting you do that. In fact, to help implement them, they’ve changed their tax-exemption application to lead you to disclose how you might comply with these excess benefit rules, and you don’t have to, but really what they’re saying is, if you don’t, you’re going to have a harder time obtaining your 501 (c) 3 tax exemption. So, the Nolo books have incorporated these new regulations into our corporate bylaws, and into our tax-exemption application responses to help people comply and understand the significance. It’s very important these days to try and satisfy the IRS from the start, so you don’t plan to excessively benefit anyone. Now, what does that mean? Again, there’s no bright-line test for this; it’s a fact-based determination the IRS makes, but think about how difficult it is to determine what excess compensation is. Symphony orchestras now are paying their conductors, nonprofits, at least 2 million dollars a year or more, so how can you say that a highly-paid executive officer of another nonprofit is getting too much money when the IRS kind of believes that a symphony conductor should get a lot? Well, the truth is that in certain fields you can get away with it, you can pay a lot of money, and in others you can’t, and it depends on the market rate; that really is what drives it. So, if you’re compensating your people in a way that is fair generally, given the kind of work they do, and the kind of organization you have, then you’re probably fine. But if you’ve gone out of your way to overpay somebody, if they’re really getting a golden deal that they could only get at your organization, then you probably are paying them excessively. Now, there’s a lot of safe-harbor rules you can get into, and the book talks about them, and how you can help satisfy yourself ahead of time, that you’re paying people fairly, and basically it has to do with taking a look at the data in your field, and getting some sample data and recording it in your minutes to show that the amount that you’re paying your people, your directors and executive officers, is comparable to what they would get in other organizations; that’s really the test.
NOLO: So, it’s really a matter of comparability.
TONY MANCUSO: It really is, and now they really want you to go out and look before you decide how much to pay somebody.
Sunday, September 24, 2006
Should You Co-Buy a Second Home?
We’re speaking with Craig Venezia, a nationally-recognized expert on home mortgages, and the author of the soon-to-be released, “Buying a Second Home: Income, Getaway, or Retirement.” Today, we’re in the midst of a second-home ownership boom, fueled by such factors as the shrinking American family, older and wealthier households, and new technologies for working from home. One out of every three homes purchased in the United States today is a second home. A 2006 survey by the National Association of Realtors revealed that most second-home owners are married couples - 83% of vacation-home owners, and 75% of investment homeowners. Also, that minorities are playing an increasing role in the second-home market, accounting for 11% of vacation-home purchases, and 17% of investment-home purchases, and that buyers must be enjoying the second-home experiences. 21% of vacation-home buyers go on to buy one or more additional vacation homes, and 34% of investment-home owners go on to buy additional investment properties. Perhaps you’re thinking about taking the plunge, maybe as an alternative to other investments. For example, to rent or resell the property. Or, maybe you’re thinking of buying a cabin by your favorite lake or your favorite ski area. Or, perhaps you’re thinking ahead towards retirement; you may want to find a manageable, well-located home now. Whatever the reason, investment, vacation, or future retirement, the purchase of a second home can still be a burden. One solution is to share ownership of a second home. That can significantly reduce your debt burden. Co-ownership might also, depending on the background of your co-buyer, enhance your collective knowledge of home improvement, financing, property management, and other relevant matters. But, co-ownership of a second home may also have downsides. We talked about it with Craig Venezia.
NOLO: Craig, over the past five years, median home prices have skyrocketed 37% nationally, while household incomes have grown by only 4%. So, someone who is maintaining one household and home may be stretched to purchase a second home. One solution you discuss in your book is to partner financially with someone else interested in owning a second home. Why don’t you start out by listing the pros and cons of shared ownership?
CRAIG VENEZIA: Shared ownership, also called co-ownership, is effectively buying a home with another person, and what that means is that both of you are putting your money in, both of you are appearing on the mortgage documents, both of you have legal ownership of the property. Depending on how you structure the deal, it may be a fifty-fifty split, or it may be some proportionate amount based on who puts in what money, who is doing property upkeep and management, etc. But, overall, the things to think about with co-ownership are that it’s a way to have somebody else share the debt burden of owning a second home. For many people that can mean the difference between whether they even own a second home or not. Now, obviously, there are a couple of other benefits, as well, that you’d want to look at; depending on your co-buyer’s background, you may be able to round out experience where you’re lacking. So, for example, if you are sharing the purchase of a home with someone who is handy with a hammer and you’re not, that person can bring those skills to the table. Maybe you’re pretty good on the financial end and managing the books, you add that to the table, so everybody wins. It also saves a lot of time in the management and upkeep in a second home; you can share the responsibilities, which a lot of people find very advantageous. Now, you’re right, where there are pros, there are also cons, and the cons are something that you really need to look at, and then balance the two, and decide which makes sense for you. So, let’s talk about a few of the cons. Well, sometimes you could have a situation that becomes strained, and broken relationships can even occur. It depends on what expectations are laid out upfront, and that’s the key, doing it upfront. Who is going to take care of what? By not knowing what you’re going to do ahead of time, you can have a lot of miscommunication occur, and that can lead to problems. You’re not going to figure out everything right off the bat; things are going to come up that you’re going to say, “Jeez, we never even knew this existed,” or, “We never knew this problem was going to happen.” That’s okay; the key is to communicate with the co-owner, and make sure there’s a give-and-take. Silent treatment is the worst thing co-owners can do. Another con to think about is you really have to have the foresight to think about all the issues that are involved and, more importantly, nobody likes to do this, but what happens if a disagreement comes up? How are you going to handle it? Or, worse, what happens if somebody wants out of the deal, you know, two, three, or four years down the road? Does the person who’s going to stay in the deal have first right to buy the property? What happens if they can’t? So, these are all issues that you need to discuss and think about, and even pull in some professional such as a real estate attorney, who ultimately would draw up a contract between you and your co-owner. And, yes, I did say draw up a contract, and that’s an important thing. Sure, you’re going to have the legal documents in terms of being listed on the mortgage and listed in the promissory note, but you don’t have a legal document that is required that says who does what, what happens if someone wants out of the deal, what happens if somebody wants to bring another co-owner into the equation. These are the types of things that working with a real estate attorney who has experience in co-ownership agreements, you can work out these scenarios. Truth be told, you could do a contract on a napkin; that’s okay. It really depends on the relationship you have with your co-owner. I think the bottom line of co-ownership is that, for the right individuals, it makes sense; you just need to think about the issues that will come up, and make sure you map it all down, you put it in writing, and you have a contract between the parties. If you take care of it from that perspective, you should minimize the amount of problems that you’ll have down the road.
NOLO: Craig, co-ownership seems like it just makes the whole thing a lot more complicated, more of a hassle, and if you’re sharing it with a friend or a relative, it seems like a recipe for disaster. So, how do you know whether someone is right for you for co-ownership?
CRAIG VENEZIA: It’s interesting you should ask that, because I have a chapter entitled, “You don’t have to go it alone: Buying with others.” That chapter focuses on co-ownership, and within that chapter, I have developed the co-buyer compatibility questionnaire, and basically what it is is a half a dozen questions that you should ask your potential co-buyer, and they should ask you, and you should do it alone. Each answer them, and then compare your answers, and it’s going to be very telling whether you are compatible with that person or not. For example, the very first question is, “What is your primary reason for buying a second home?” Well, that sounds like a pretty simple question that everybody shouldn’t even have to ask the second person. But, imagine if you said “for future retirement,” and your potential co-buyer said, “for vacation.” Well, you may have a problem – what happens if, five years from now, when you want to retire into that house, all of a sudden your co-buyer keeps showing up at now your primary residence and saying, “Hey, we’re here to spend our two weeks this summer; move on over.” You got a problem. So, co-buying may not be the best with that person.
NOLO: Another question about co-ownership of a second home… although it’s probably not a common issue, I’m sure many owners are wondering, what happens if their co-owner dies?
CRAIG VENEZIA: It all depends on how you’re holding title on a property. There are two ways to hold title on a property: tenancy in common, and joint-tenants with rights of survivorship. With tenancy in common, what that means is that each of you can sell or transfer your ownership interest in the property without getting the consent from the other. That’s by far the most common way for unrelated co-buyers to take title, and if one co-owner dies, his or her share is transferred to the beneficiaries of the estate. So, in my book, I have an example about this. Let’s suppose that Thelma and Louise are best friends who buy an investment home together for $200,000. Thelma covers 65% of the purchase price, with Louise making up the rest. They agree that Thelma will take 65% ownership interest in the property, and Louise 35% interest. Suddenly, Thelma dies when her car goes over a cliff. According to Thelma’s will, her young beau Brad is her beneficiary. That means Brad gains a 65% ownership interest in the property. If you’re holding title as joint-tenants with rights of survivorship, it usually means your co-buyer is somebody that’s related to you, maybe your spouse, significant other, or even somebody that’s really close to you. With this form of ownership, you and your co-buyer have no choice but to have equal interest in the property, fifty-fifty, right down the middle. Unlike a tenancy in common, upon the death of one of the joint tenants, the remaining owners gain the deceased owners’ interest in the property, and this happens automatically. So, using the same example, under joint-tenant with rights of survivorship, if Thelma and Louise had taken title that way, each would have had a 50% ownership interest in the property, regardless of the amount each had contributed towards the purchase of the property. After Thelma’s death, her half would automatically be transferred to Louise, who now has 100% ownership in the property, while Thelma’s young beau Brad, well, he would just be out of luck.
NOLO: Craig, one last question about co-buying a second home… some co-buyers form a separate business entity, like an LLC, to co-own the second home. Will forming a separate entity to own the second home shield you and the co-buyer from a default on the mortgage?
CRAIG VENEZIA: Probably not. Your bank’s not going to let you off the hook that easily. Many mortgage-lenders will have you and your co-buyer co-sign your second-home loan. And they do that because they want your personal guarantee that you’re going to make good on the money that they’re lending to you. Think about it from their perspective – if somebody comes to you and says, “Can I borrow a few hundred thousand dollars? Oh, and by the way, if I default on this loan, you’re not going to come after me personally, because you can’t,” well, you may have a little problem lending the money. That’s how the banks think, so they’ll usually ask for your personal guarantee on the loan, in spite of the fact that you set up a separate business entity.
NOLO: Thanks very much to Craig Venezia. Following the release of his book, Buying a Second Home: Income, Getaway, or Retirement, we’ll be back with a second interview with Craig Venezia. You can pre-order Craig’s book at amazon.com.
NOLO: Craig, over the past five years, median home prices have skyrocketed 37% nationally, while household incomes have grown by only 4%. So, someone who is maintaining one household and home may be stretched to purchase a second home. One solution you discuss in your book is to partner financially with someone else interested in owning a second home. Why don’t you start out by listing the pros and cons of shared ownership?
CRAIG VENEZIA: Shared ownership, also called co-ownership, is effectively buying a home with another person, and what that means is that both of you are putting your money in, both of you are appearing on the mortgage documents, both of you have legal ownership of the property. Depending on how you structure the deal, it may be a fifty-fifty split, or it may be some proportionate amount based on who puts in what money, who is doing property upkeep and management, etc. But, overall, the things to think about with co-ownership are that it’s a way to have somebody else share the debt burden of owning a second home. For many people that can mean the difference between whether they even own a second home or not. Now, obviously, there are a couple of other benefits, as well, that you’d want to look at; depending on your co-buyer’s background, you may be able to round out experience where you’re lacking. So, for example, if you are sharing the purchase of a home with someone who is handy with a hammer and you’re not, that person can bring those skills to the table. Maybe you’re pretty good on the financial end and managing the books, you add that to the table, so everybody wins. It also saves a lot of time in the management and upkeep in a second home; you can share the responsibilities, which a lot of people find very advantageous. Now, you’re right, where there are pros, there are also cons, and the cons are something that you really need to look at, and then balance the two, and decide which makes sense for you. So, let’s talk about a few of the cons. Well, sometimes you could have a situation that becomes strained, and broken relationships can even occur. It depends on what expectations are laid out upfront, and that’s the key, doing it upfront. Who is going to take care of what? By not knowing what you’re going to do ahead of time, you can have a lot of miscommunication occur, and that can lead to problems. You’re not going to figure out everything right off the bat; things are going to come up that you’re going to say, “Jeez, we never even knew this existed,” or, “We never knew this problem was going to happen.” That’s okay; the key is to communicate with the co-owner, and make sure there’s a give-and-take. Silent treatment is the worst thing co-owners can do. Another con to think about is you really have to have the foresight to think about all the issues that are involved and, more importantly, nobody likes to do this, but what happens if a disagreement comes up? How are you going to handle it? Or, worse, what happens if somebody wants out of the deal, you know, two, three, or four years down the road? Does the person who’s going to stay in the deal have first right to buy the property? What happens if they can’t? So, these are all issues that you need to discuss and think about, and even pull in some professional such as a real estate attorney, who ultimately would draw up a contract between you and your co-owner. And, yes, I did say draw up a contract, and that’s an important thing. Sure, you’re going to have the legal documents in terms of being listed on the mortgage and listed in the promissory note, but you don’t have a legal document that is required that says who does what, what happens if someone wants out of the deal, what happens if somebody wants to bring another co-owner into the equation. These are the types of things that working with a real estate attorney who has experience in co-ownership agreements, you can work out these scenarios. Truth be told, you could do a contract on a napkin; that’s okay. It really depends on the relationship you have with your co-owner. I think the bottom line of co-ownership is that, for the right individuals, it makes sense; you just need to think about the issues that will come up, and make sure you map it all down, you put it in writing, and you have a contract between the parties. If you take care of it from that perspective, you should minimize the amount of problems that you’ll have down the road.
NOLO: Craig, co-ownership seems like it just makes the whole thing a lot more complicated, more of a hassle, and if you’re sharing it with a friend or a relative, it seems like a recipe for disaster. So, how do you know whether someone is right for you for co-ownership?
CRAIG VENEZIA: It’s interesting you should ask that, because I have a chapter entitled, “You don’t have to go it alone: Buying with others.” That chapter focuses on co-ownership, and within that chapter, I have developed the co-buyer compatibility questionnaire, and basically what it is is a half a dozen questions that you should ask your potential co-buyer, and they should ask you, and you should do it alone. Each answer them, and then compare your answers, and it’s going to be very telling whether you are compatible with that person or not. For example, the very first question is, “What is your primary reason for buying a second home?” Well, that sounds like a pretty simple question that everybody shouldn’t even have to ask the second person. But, imagine if you said “for future retirement,” and your potential co-buyer said, “for vacation.” Well, you may have a problem – what happens if, five years from now, when you want to retire into that house, all of a sudden your co-buyer keeps showing up at now your primary residence and saying, “Hey, we’re here to spend our two weeks this summer; move on over.” You got a problem. So, co-buying may not be the best with that person.
NOLO: Another question about co-ownership of a second home… although it’s probably not a common issue, I’m sure many owners are wondering, what happens if their co-owner dies?
CRAIG VENEZIA: It all depends on how you’re holding title on a property. There are two ways to hold title on a property: tenancy in common, and joint-tenants with rights of survivorship. With tenancy in common, what that means is that each of you can sell or transfer your ownership interest in the property without getting the consent from the other. That’s by far the most common way for unrelated co-buyers to take title, and if one co-owner dies, his or her share is transferred to the beneficiaries of the estate. So, in my book, I have an example about this. Let’s suppose that Thelma and Louise are best friends who buy an investment home together for $200,000. Thelma covers 65% of the purchase price, with Louise making up the rest. They agree that Thelma will take 65% ownership interest in the property, and Louise 35% interest. Suddenly, Thelma dies when her car goes over a cliff. According to Thelma’s will, her young beau Brad is her beneficiary. That means Brad gains a 65% ownership interest in the property. If you’re holding title as joint-tenants with rights of survivorship, it usually means your co-buyer is somebody that’s related to you, maybe your spouse, significant other, or even somebody that’s really close to you. With this form of ownership, you and your co-buyer have no choice but to have equal interest in the property, fifty-fifty, right down the middle. Unlike a tenancy in common, upon the death of one of the joint tenants, the remaining owners gain the deceased owners’ interest in the property, and this happens automatically. So, using the same example, under joint-tenant with rights of survivorship, if Thelma and Louise had taken title that way, each would have had a 50% ownership interest in the property, regardless of the amount each had contributed towards the purchase of the property. After Thelma’s death, her half would automatically be transferred to Louise, who now has 100% ownership in the property, while Thelma’s young beau Brad, well, he would just be out of luck.
NOLO: Craig, one last question about co-buying a second home… some co-buyers form a separate business entity, like an LLC, to co-own the second home. Will forming a separate entity to own the second home shield you and the co-buyer from a default on the mortgage?
CRAIG VENEZIA: Probably not. Your bank’s not going to let you off the hook that easily. Many mortgage-lenders will have you and your co-buyer co-sign your second-home loan. And they do that because they want your personal guarantee that you’re going to make good on the money that they’re lending to you. Think about it from their perspective – if somebody comes to you and says, “Can I borrow a few hundred thousand dollars? Oh, and by the way, if I default on this loan, you’re not going to come after me personally, because you can’t,” well, you may have a little problem lending the money. That’s how the banks think, so they’ll usually ask for your personal guarantee on the loan, in spite of the fact that you set up a separate business entity.
NOLO: Thanks very much to Craig Venezia. Following the release of his book, Buying a Second Home: Income, Getaway, or Retirement, we’ll be back with a second interview with Craig Venezia. You can pre-order Craig’s book at amazon.com.
Sunday, September 17, 2006
Is Divorce Bad for Your Health?
In this episode we’re going to talk about divorce and health issues and we’re going to speak with attorney Emily Doskow, author of Nolo’s Essential Guide to Divorce. There’s little dispute that divorce has a negative impact on health.
For example, a study published in the August 2006 Journal of Marriage and Family indicates that women who had been divorced, widowed or remarried were more likely to develop heart disease than those who were married continuously. Other studies have shown that divorced males have higher rates of some types of cancer than their married counterparts. Premature death rates -- defined as occurring between the ages of 15 and 64, -- are significantly higher among divorced men and women compared to married persons of the same sex and age. There is considerable evidence that divorce can cause short-term and long-term emotional problems for children. And the National Institute of Mental Health has stated that "the single most powerful predictor of stress-related physical as well as emotional illness, is marital disruption."
Since divorce appears inevitable for many couples -- approximately forty percent of the marriages in this country end in divorce -- what can be done to alleviate the stress in the legal process and what can be done to preserve the health of everyone involved in a divorce?
We asked attorney Emily Doskow some questions that relate to divorce and health.
NOLO: Emily, in your book, you make the point that there’s not just one way to divorce. Perhaps you can summarize the various ways couples divorce and then explain – at least in terms of stress and emotional turmoil, which methods might get the highest ratings for preserving your health.
EMILY DOSKOW: There’s definitely a continuum that goes from “do-it-yourself” uncontested divorce where there are no lawyers involved and you just do the paperwork and figure it all out yourselves, to the opposite end, which is the sort of knock-down drag-out divorce trial that’s ugly and expensive and horrible for everybody. And then in between, there are a lot of other options, like a mediated divorce, a collaborative divorce, arbitration, or even a divorce that you settle by having lawyers negotiate for you.
From my perspective, a mediated divorce is the most conducive to people’s mental and physical health, because mediation is a process that supports everybody having their say, everybody getting heard, creating solutions that work for both people and for the kids, and promoting good communication that will support the ongoing relationship, especially between parents.
NOLO: Let’s talk about something that has a direct impact on people’s health -- health insurance. Many people are insured through their spouse’s health insurance. Can a divorcing nonemployed spouse ask that as part of the settlement, the health insurance will continue under the other employed spouse’s policy?
EMILY DOSKOW: The nonemployed spouse actually doesn’t need to take any approach…it’s not really a negotiation. That spouse has a legal right under a federal law called COBRA to continue their insurance coverage for three years after the divorce is final. All they have to do is make sure that they comply with some very strict time limits for notifying the employer and the insurer that they want the COBRA coverage, and then paying the premiums in time. They continue it at their own expense, but they have the right to keep it for up to three years.
NOLO: Can the nonemployed spouse request those COBRA payments be included as part of the spousal support payments?
EMILY DOSKOW: Sure, the employed spouse can continue covering the nonemployed spouse, and that could be considered spousal support, or in lieu of spousal support.
NOLO: What about health insurance for children? Can continuing health insurance be part of the child support package?
EMILY DOSKOW: If the employed spouse has coverage for the children, they’ll just continue to be covered, because there is no change in the parent-child relationship after the divorce, so again, it’s just a matter of making sure that you get a special order that notifies the employer that the employed spouse, especially if the employed spouse isn’t the custodial parent, if they’re the non-custodial parent. Occasionally, an employer or an insurer will balk at continuing to cover the children, but they have to by law, so you just have to get a special order.
NOLO: Let’s consider an example: A couple with a child divorces. The divorced husband is ordered to provide the child’s health insurance. The woman remarries, and her new husband adopts the child. I know that terminates certain child support obligations, but does it also terminate the obligation to continue health insurance payments for the child?
EMILY DOSKOW: Yes, if there is a step-parent adoption by the mother’s new spouse. The only way that that could happen would be if the biological father relinquished all his rights and that would also relieve him of all obligations toward those children. He wouldn’t be a parent anymore, so he wouldn’t be responsible for support or health insurance.
NOLO: Another important health issue in divorce and custody is substance abuse. Often in television dramas, this issue is portrayed as the basis for an ugly custody fight. Is this true in real life? What effect does one spouse’s substance abuse problems have on the divorce and on custody issues?
EMILY DOSKOW: Right, and what you see on TV is if somebody has a substance abuse problem of any kind, the other spouse is probably going to use it to try to get whatever advantage they can. I think most judges, if you were in front of a judge, and there was evidence that you have a substance abuse problem, the judge will order that your visitation with your kids be supervised and probably will order you to get treatment and be in recovery and be able to show that you’re in recovery, and that you’ve been sober a certain amount of time before they’ll take the supervision requirement off.
NOLO: Everyone agrees that divorce has an effect on a child’s short-term and long-term health. Any suggestions for parents?
EMILY DOSKOW: I think it’s universally agreed among experts on this issue that the single most important thing that parents need to do for their kids is to insulate the kids from the conflict between the parents, to make sure that the kids understand that the divorce isn’t their fault, to make sure that the kids understand that they aren’t losing either of their parents. So that means, for the parents, not to fight in front of the kids, for neither parent to bad-mouth the other parent in front of the kids. If it’s possible for the parents to be in the same space together, to continue doing things as a family, those are the kind of things that help children understand that they’re not losing either of their parents, they’re just having a restructuring of their family, and they can continue to feel secure in their relationship with both of their parents.
In terms of taking care of your kids on a day-to-day basis, you need to make sure that you’re listening to what they say to you, pay attention to what they DON’T say to you, making sure that there’s room for them to express their feelings and ask their questions so that you can do what you need to do, which is repeat, over and over, “it’s not your fault, you’re not losing your parents, both of us still love you”, all of those things that kids sometimes need to hear more than once.
NOLO: One factor contributing to health issues for women after divorce is economic. Studies indicate a woman’s standard of living drops an average of 27 percent after divorce while a man’s rises 10 percent. And it’s also been shown that these economic factors have an effect on health. One thing that may contribute to the disparity here is when a spouse hides assets. What are some red flags that a spouse is hiding assets and what are some things you can do to locate those assets?
EMILY DOSKOW: I would say the first thing that should clue you in that your spouse is hiding assets is if they don’t want to share information with you. So if you’re in a situation where you’re trying for an uncontested divorce, for example, but your spouse doesn’t want to give you financial information, you might want to reconsider the uncontested thing, and at least get a mediator, or somebody who’s going to require that information is turned over.
NOLO: What’s a common place where a spouse might hide assets?
EMILY DOSKOW: Spouses hide assets in businesses. If your spouse owns a business, there are a lot of ways in a business to hide assets. For example, paying fake salaries to relatives who aren’t actually working, and then the relative turns the money back over, or deferring a big sale until after the divorce is final, so those assets aren’t included in the marital property, or taking a big loss earlier, so that the loss is included in the marital property. Those kinds of things are what people do to try and hide money.
NOLO: So, if you suspect your spouse is hiding assets, you’re probably going to want a lawyer’s help.
EMILY DOSKOW: You probably want a lawyer. The other professional you might want is called a forensic accountant, somebody who is trained to look for hidden assets.
NOLO: Again, focusing on the women’s economic issues: What effect does a spouse’s bankruptcy have on spousal or child support?
EMILY DOSKOW: Spousal and child support are non-dischargeable in bankruptcy so if your spouse owes you past-due child or spousal support, they can’t get rid of that obligation in bankruptcy, they still owe you that money. So if you’re doing a Chapter 7 bankruptcy, where all your debts are just wiped out, the child and spousal support debts are excluded from that. They’re not wiped out. You still owe them.
If you’re doing a Chapter 13, where you’re reorganizing your assets, the Chapter 13 repayment plan has to call for repayment of 100% of those debts.
NOLO: One person who studied the health of divorced people remarked that divorce is deceptive because legally it’s one event, but psychologically it is a chain of events. One element in that chain of events may be a sense that the divorcing spouse has made the wrong decisions about divorce. Is it common for there to be some equivalent of “buyer’s remorse” after a divorce or custody settlement has been reached?
EMILY DOSKOW: It’s true and it’s part of why, for many people, anytime there is significant assets, anytime there’s a retirement plan, anytime there’s a good amount of money changing hands, even people who are doing an uncontested divorce, are wise to get an hour or two of a lawyer’s time to just look over their deal, and have somebody say to them “this is a fine deal”, or, “this is a deal you may regret later.” And people make a lot of different decisions. Oftentimes, people do things that don’t look like they are in their interest. But they do it for reasons. For really valid reasons, in terms of what they think is best for their kids, or why they feel like it’s fair for their partner to get more, or various reasons that they have for making a deal that doesn’t look like their best deal. And that’s fine, to make a decision like that. You just need to be sure you’re totally educated.
NOLO: And part of that education can be accomplished by reading Emily Doskow’s new book, Nolo’s Essential Guide to Divorce. Nolo has other books on the subject of divorce, and you can find an excellent selection of divorce books at GoodDivorceBooks.com
For example, a study published in the August 2006 Journal of Marriage and Family indicates that women who had been divorced, widowed or remarried were more likely to develop heart disease than those who were married continuously. Other studies have shown that divorced males have higher rates of some types of cancer than their married counterparts. Premature death rates -- defined as occurring between the ages of 15 and 64, -- are significantly higher among divorced men and women compared to married persons of the same sex and age. There is considerable evidence that divorce can cause short-term and long-term emotional problems for children. And the National Institute of Mental Health has stated that "the single most powerful predictor of stress-related physical as well as emotional illness, is marital disruption."
Since divorce appears inevitable for many couples -- approximately forty percent of the marriages in this country end in divorce -- what can be done to alleviate the stress in the legal process and what can be done to preserve the health of everyone involved in a divorce?
We asked attorney Emily Doskow some questions that relate to divorce and health.
NOLO: Emily, in your book, you make the point that there’s not just one way to divorce. Perhaps you can summarize the various ways couples divorce and then explain – at least in terms of stress and emotional turmoil, which methods might get the highest ratings for preserving your health.
EMILY DOSKOW: There’s definitely a continuum that goes from “do-it-yourself” uncontested divorce where there are no lawyers involved and you just do the paperwork and figure it all out yourselves, to the opposite end, which is the sort of knock-down drag-out divorce trial that’s ugly and expensive and horrible for everybody. And then in between, there are a lot of other options, like a mediated divorce, a collaborative divorce, arbitration, or even a divorce that you settle by having lawyers negotiate for you.
From my perspective, a mediated divorce is the most conducive to people’s mental and physical health, because mediation is a process that supports everybody having their say, everybody getting heard, creating solutions that work for both people and for the kids, and promoting good communication that will support the ongoing relationship, especially between parents.
NOLO: Let’s talk about something that has a direct impact on people’s health -- health insurance. Many people are insured through their spouse’s health insurance. Can a divorcing nonemployed spouse ask that as part of the settlement, the health insurance will continue under the other employed spouse’s policy?
EMILY DOSKOW: The nonemployed spouse actually doesn’t need to take any approach…it’s not really a negotiation. That spouse has a legal right under a federal law called COBRA to continue their insurance coverage for three years after the divorce is final. All they have to do is make sure that they comply with some very strict time limits for notifying the employer and the insurer that they want the COBRA coverage, and then paying the premiums in time. They continue it at their own expense, but they have the right to keep it for up to three years.
NOLO: Can the nonemployed spouse request those COBRA payments be included as part of the spousal support payments?
EMILY DOSKOW: Sure, the employed spouse can continue covering the nonemployed spouse, and that could be considered spousal support, or in lieu of spousal support.
NOLO: What about health insurance for children? Can continuing health insurance be part of the child support package?
EMILY DOSKOW: If the employed spouse has coverage for the children, they’ll just continue to be covered, because there is no change in the parent-child relationship after the divorce, so again, it’s just a matter of making sure that you get a special order that notifies the employer that the employed spouse, especially if the employed spouse isn’t the custodial parent, if they’re the non-custodial parent. Occasionally, an employer or an insurer will balk at continuing to cover the children, but they have to by law, so you just have to get a special order.
NOLO: Let’s consider an example: A couple with a child divorces. The divorced husband is ordered to provide the child’s health insurance. The woman remarries, and her new husband adopts the child. I know that terminates certain child support obligations, but does it also terminate the obligation to continue health insurance payments for the child?
EMILY DOSKOW: Yes, if there is a step-parent adoption by the mother’s new spouse. The only way that that could happen would be if the biological father relinquished all his rights and that would also relieve him of all obligations toward those children. He wouldn’t be a parent anymore, so he wouldn’t be responsible for support or health insurance.
NOLO: Another important health issue in divorce and custody is substance abuse. Often in television dramas, this issue is portrayed as the basis for an ugly custody fight. Is this true in real life? What effect does one spouse’s substance abuse problems have on the divorce and on custody issues?
EMILY DOSKOW: Right, and what you see on TV is if somebody has a substance abuse problem of any kind, the other spouse is probably going to use it to try to get whatever advantage they can. I think most judges, if you were in front of a judge, and there was evidence that you have a substance abuse problem, the judge will order that your visitation with your kids be supervised and probably will order you to get treatment and be in recovery and be able to show that you’re in recovery, and that you’ve been sober a certain amount of time before they’ll take the supervision requirement off.
NOLO: Everyone agrees that divorce has an effect on a child’s short-term and long-term health. Any suggestions for parents?
EMILY DOSKOW: I think it’s universally agreed among experts on this issue that the single most important thing that parents need to do for their kids is to insulate the kids from the conflict between the parents, to make sure that the kids understand that the divorce isn’t their fault, to make sure that the kids understand that they aren’t losing either of their parents. So that means, for the parents, not to fight in front of the kids, for neither parent to bad-mouth the other parent in front of the kids. If it’s possible for the parents to be in the same space together, to continue doing things as a family, those are the kind of things that help children understand that they’re not losing either of their parents, they’re just having a restructuring of their family, and they can continue to feel secure in their relationship with both of their parents.
In terms of taking care of your kids on a day-to-day basis, you need to make sure that you’re listening to what they say to you, pay attention to what they DON’T say to you, making sure that there’s room for them to express their feelings and ask their questions so that you can do what you need to do, which is repeat, over and over, “it’s not your fault, you’re not losing your parents, both of us still love you”, all of those things that kids sometimes need to hear more than once.
NOLO: One factor contributing to health issues for women after divorce is economic. Studies indicate a woman’s standard of living drops an average of 27 percent after divorce while a man’s rises 10 percent. And it’s also been shown that these economic factors have an effect on health. One thing that may contribute to the disparity here is when a spouse hides assets. What are some red flags that a spouse is hiding assets and what are some things you can do to locate those assets?
EMILY DOSKOW: I would say the first thing that should clue you in that your spouse is hiding assets is if they don’t want to share information with you. So if you’re in a situation where you’re trying for an uncontested divorce, for example, but your spouse doesn’t want to give you financial information, you might want to reconsider the uncontested thing, and at least get a mediator, or somebody who’s going to require that information is turned over.
NOLO: What’s a common place where a spouse might hide assets?
EMILY DOSKOW: Spouses hide assets in businesses. If your spouse owns a business, there are a lot of ways in a business to hide assets. For example, paying fake salaries to relatives who aren’t actually working, and then the relative turns the money back over, or deferring a big sale until after the divorce is final, so those assets aren’t included in the marital property, or taking a big loss earlier, so that the loss is included in the marital property. Those kinds of things are what people do to try and hide money.
NOLO: So, if you suspect your spouse is hiding assets, you’re probably going to want a lawyer’s help.
EMILY DOSKOW: You probably want a lawyer. The other professional you might want is called a forensic accountant, somebody who is trained to look for hidden assets.
NOLO: Again, focusing on the women’s economic issues: What effect does a spouse’s bankruptcy have on spousal or child support?
EMILY DOSKOW: Spousal and child support are non-dischargeable in bankruptcy so if your spouse owes you past-due child or spousal support, they can’t get rid of that obligation in bankruptcy, they still owe you that money. So if you’re doing a Chapter 7 bankruptcy, where all your debts are just wiped out, the child and spousal support debts are excluded from that. They’re not wiped out. You still owe them.
If you’re doing a Chapter 13, where you’re reorganizing your assets, the Chapter 13 repayment plan has to call for repayment of 100% of those debts.
NOLO: One person who studied the health of divorced people remarked that divorce is deceptive because legally it’s one event, but psychologically it is a chain of events. One element in that chain of events may be a sense that the divorcing spouse has made the wrong decisions about divorce. Is it common for there to be some equivalent of “buyer’s remorse” after a divorce or custody settlement has been reached?
EMILY DOSKOW: It’s true and it’s part of why, for many people, anytime there is significant assets, anytime there’s a retirement plan, anytime there’s a good amount of money changing hands, even people who are doing an uncontested divorce, are wise to get an hour or two of a lawyer’s time to just look over their deal, and have somebody say to them “this is a fine deal”, or, “this is a deal you may regret later.” And people make a lot of different decisions. Oftentimes, people do things that don’t look like they are in their interest. But they do it for reasons. For really valid reasons, in terms of what they think is best for their kids, or why they feel like it’s fair for their partner to get more, or various reasons that they have for making a deal that doesn’t look like their best deal. And that’s fine, to make a decision like that. You just need to be sure you’re totally educated.
NOLO: And part of that education can be accomplished by reading Emily Doskow’s new book, Nolo’s Essential Guide to Divorce. Nolo has other books on the subject of divorce, and you can find an excellent selection of divorce books at GoodDivorceBooks.com
Sunday, September 10, 2006
When Can You Stand Your Ground?
Hello. In this episode we’ll discuss several questions regarding criminal law and thanks to listeners who have posed some of the questions. We’ll talk again with Criminal Law expert Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System from Nolo.
We’ll start with a question about ‘Stand Your Ground’ laws. Every state has always had some form of ‘Stand Your Ground’ law. These laws are based on what’s known as the “Castle doctrine,” that is, “a man’s home is his castle,” and that if an intruder broke into a home, the resident of that home could use deadly force against the intruder provided the citizen had a reasonable suspicion that the intruder would inflict serious physical injury. As a general principle in most states, outside the home you could only use deadly force if you were threatened with physical injury and were unable to retreat from the criminal. This was known as the “Duty to Retreat.”.
In October 2005, Florida enacted new a type of Stand Your Ground law. Now, Florida residents can use deadly force in their homes even if they don’t fear physical injury. They can fire on anyone who unlawfully, forcibly enters their home. And the definition of ‘home’ now includes vehicles, so a Florida resident can use deadly force against anyone who forcibly unlawfully intrudes in their car or on their boat.
The Florida law also extended ‘Stand Your Ground’ rights beyond the home and car. A Florida resident outside their home can now use deadly force if they have a reasonable fear that someone is about to use deadly force against them. In other words, in Florida, outside your home, there is no longer a duty to retreat when faced with deadly harm.
When we say that resident can use this law, we mean that the resident can invoke it as a defense from prosecution. And if law officers disagree, the person can be charged with a crime and will have to prove their ‘Stand Your Ground’ defense in court. For example, the owner of a Florida towing company invoked the law to justify shooting a man whose car was impounded. Police disagreed and charged him with murder. At trial, the owner will have to prove that he feared being hit by the driver, who drove off without paying the impoundment fee.
In addition, to shielding Florida citizens from criminal charges, the law also shields citizens from civil lawsuits for money damages brought by the person who was shot.
South Dakota and Indiana have also passed Stand Your Ground laws similar to the Florida law and fifteen other states are reportedly considering similar Stand Your Ground laws.
Opponents argue that these laws – which they refer to as “Shoot First” laws or “Make My Day” laws -- encourage vigilantism, and that they encourage a shooting range mentality, allowing you to shoot people who cut through your backyard if you feel threatened.
Proponents of the law argue that it reflects today’s crime realities, that criminals are intent on causing physical harm and that the days of the gentleman thief are over.
Legal experts like Anthony Sebok at Findlaw, argue that the laws send a “very confusing message” because they often are not really clear when you can use lethal force without being prosecuted. For example, in Kentucky’s first case under that state’s new home intruder/Stand Your Ground law, the judge hearing the case, said that the law was “confusing, vague, poorly written.” One of the drafters of Kentucky’s penal code called it “the worst legislation I have ever seen.”
Stand Your Ground laws will stand their ground legally unless successfully challenged on grounds that they violate the constitution. And that’s one of the questions that we’re posing today. We asked criminal law expert Paul Bergman whether he felt that Stand Your Ground laws would be held to be unconstitutional.
PAUL BERGMAN: It’s unlikely that I think that they’re going to be held to be unconstitutional. There might be some claim that somebody’s life was taken away without due process of law, but it would have been taken away by an individual, not by the state, in most cases. So it’s not going to amount a constitutional problem. The real issue is whether or not it’s good policy, does it make sense, how far will people push this and how will prosecutors and juries react. Are people really using deadly force in situations that the law wasn‘t meant to apply to. I would say we’re going to have to see how the interpretation of the rule plays out before we make any judgments. If there are problems with the rules, they won’t amount to violations of the Constitution, I don’t think.
NOLO: We’ve had a few other questions about criminal law and one of them is about what to do when questioned by a police officer. Should you respond to all questions in order to show your willingness to cooperate? Should you stay quiet until you know whether this has anything to do with a criminal charge against you? Does refusing to answer questions make you more suspicious in the eyes of the police officer? We asked Paul Bergman what’s a recommend course of action for someone who’s stopped and questioned by police?
PAUL BERGMAN: That’s a pretty individual judgment. I’d say that if the person is at all uncomfortable, they should first, ask whether they’re under arrest, or whether they are free to leave. And if they are free to leave, they should say something like “Look, I’m willing to talk to you”, if you are, “but this really isn’t a good time.” And make an appointment for another time. Even if you don’t have a lawyer present, you will at least have an opportunity to think about it, be in a more comfortable setting where you’ll be more relaxed and able to provide accurate information.
If the officer says you’re not free to leave, more or less, you ARE under arrest. Then I think people out to not talk until they have access to a lawyer.
NOLO: What about your home? If your home is your castle, do you have to answer questions posed by a police officer who comes to the door? Should you let the officer in your house?
PAUL BERGMAN: Well, people should understand that they have a right not to allow a police officer in their house unless the officer has a warrant. You should always ask to see the warrant first. If the officer says, “I don’t have one, but I’d like to come in. If you’re not guilty you have nothing to be afraid about”, you DO have the right to say no and if you do allow the police officer in, then it’s voluntary and anything the police officer sees may be properly seized and used as evidence. All of these are individual judgments, but as a general rule, people at least ought to know that they have a right to say no to a police officer coming in the house unless that officer has a search or arrest warrant.
NOLO: Another question that we have for Paul Bergman is a basic one -- but it’s still an interesting one. What exactly does it mean to be ‘under arrest’? We asked Paul Bergman for an explanation.
PAUL BERGMAN: Well, what it means to be under arrest is that you can’t go wherever you’d like to go. It’s kind of a physical control, where you can go is determined by the police officer. Your freedom is restricted, that’s basically what it means to be under arrest.
NOLO: Can you be charged with a crime without being arrested?
PAUL BERGMAN: Well, you CAN leave. . You can be given a citation---people who get traffic tickets, for example, are given a citation, and then they leave. The police may also be unable to arrest you, they may have a probable cause to believe that you committed a crime, and you may be charged with a crime, but before you’re arrested. Usually the charge doesn’t come until the arrest takes place, but it’s theoretically possible for a charge to be made assuming they have probable cause without having the person in custody.
NOLO: A listener asked the question ‘What is circumstantial evidence and why do attorneys for defendants always criticize evidence when it is circumstantial? Isn’t it as good as other evidence? We asked Paul Bergman.
PAUL BERGMAN: Circumstantial evidence is often derided. We hear that all the time in movies…”that’s just a bunch of circumstantial evidence.” But in fact, most evidence offered at trial IS circumstantial and legally, there’s no problem with it
Its counterpart is direct evidence, and the only difference is, in direct evidence, you do not need an inference to connect the evidence to a crime. With circumstantial evidence, you do need to infer. That’s kind of a common thing we do all the time. If you see somebody smiling, you might infer that they’re happy. Well, that’s the same as we do in court. But circumstantial evidence can be quite powerful. There’s this legal saying that there is nobody who wouldn’t accept dog tracks in the snow as evidence that a dog had passed by, against the sworn affidavits of ten people that it had not. So circumstantial evidence, in that case, the dog tracks, can be quite powerful.
Actually, DNA test results and most scientific evidence, is simply a form of circumstantial evidence. The fact that the blood, let’s say, appears to have the same DNA characteristics as the blood left at a crime scene, is simply circumstantial evidence that the person whose blood was at the crime scene is the person whose blood was taken for the purpose of the DNA test. So scientific evidence is really just another form of circumstantial evidence. Circumstantial evidence has pretty much gotten a bad rap.
NOLO: The Fourth Amendment of the U.S. Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …” The Fourth Amendment is basically about privacy – that is, which details of your life shall be revealed to the public and the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement.
However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords, and private security personnel, unless the search is made at the request of a law enforcement authority.
As a general rule, however, the police may override your privacy concerns and conduct a search of your home, or car, or office, or personal or business documents, bank records, even your trash if:
• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
• The police search is proper without a warrant because of a variety of circumstances.
In 1961, the U.S. Supreme Court established the exclusionary rule. That states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution. Many commentators still criticize this rule on the grounds that it unfairly “lets the criminal go free because the constable has erred.”
We asked Paul Bergman one final question. Knowing what we know now, would the drafters of the Constitution have written the Fourth Amendment in the same way today?
PAUL BERGMAN: Well, from a civil liberties point of view I’d like to believe that it would be written the same way. I think there’s still a consensus in the country that it’s a good idea for police not to have a right to arrest people on a whim, a hunch, that it’s a good idea for police officers not to simply enter somebody’s house or apartment, or property, on a whim or a hunch. That right, at the base of the Fourth Amendment, states a value that everybody believes in. That’s why I believe the Fourth Amendment WOULD be enacted. Now there are times when it may hamper the police, but the courts have been quite creative in creating exceptions to the warrant requirement, or for example, police can pursue a suspect into a house when they’re in hot pursuit. They’ve created opportunities for police officers to get warrants at all times of the day, there’s
NOLO: Thanks to Paul Bergman for his assistance. Much of the information for this episode came from Paul’s book, The Criminal Law Handbook.
FINDLAW http://writ.news.findlaw.com/sebok/20050502.html
FLORIDA LAW: http://news.bbc.co.uk/2/hi/americas/4415135.stm
TAMPA TOWING CASE http://www.usatoday.com/news/nation/2006-03-20-states-self-defense_x.htm
OPPONENTS http://www.licensetomurder.com/main.php
Kentucky Case http://www.kentucky.com/mld/kentucky/15132235.htm
Wiki Self Defense http://en.wikipedia.org/wiki/Self-defense_(theory)
Wiki Stand Your Ground http://en.wikipedia.org/wiki/Stand_your_ground_law
We’ll start with a question about ‘Stand Your Ground’ laws. Every state has always had some form of ‘Stand Your Ground’ law. These laws are based on what’s known as the “Castle doctrine,” that is, “a man’s home is his castle,” and that if an intruder broke into a home, the resident of that home could use deadly force against the intruder provided the citizen had a reasonable suspicion that the intruder would inflict serious physical injury. As a general principle in most states, outside the home you could only use deadly force if you were threatened with physical injury and were unable to retreat from the criminal. This was known as the “Duty to Retreat.”.
In October 2005, Florida enacted new a type of Stand Your Ground law. Now, Florida residents can use deadly force in their homes even if they don’t fear physical injury. They can fire on anyone who unlawfully, forcibly enters their home. And the definition of ‘home’ now includes vehicles, so a Florida resident can use deadly force against anyone who forcibly unlawfully intrudes in their car or on their boat.
The Florida law also extended ‘Stand Your Ground’ rights beyond the home and car. A Florida resident outside their home can now use deadly force if they have a reasonable fear that someone is about to use deadly force against them. In other words, in Florida, outside your home, there is no longer a duty to retreat when faced with deadly harm.
When we say that resident can use this law, we mean that the resident can invoke it as a defense from prosecution. And if law officers disagree, the person can be charged with a crime and will have to prove their ‘Stand Your Ground’ defense in court. For example, the owner of a Florida towing company invoked the law to justify shooting a man whose car was impounded. Police disagreed and charged him with murder. At trial, the owner will have to prove that he feared being hit by the driver, who drove off without paying the impoundment fee.
In addition, to shielding Florida citizens from criminal charges, the law also shields citizens from civil lawsuits for money damages brought by the person who was shot.
South Dakota and Indiana have also passed Stand Your Ground laws similar to the Florida law and fifteen other states are reportedly considering similar Stand Your Ground laws.
Opponents argue that these laws – which they refer to as “Shoot First” laws or “Make My Day” laws -- encourage vigilantism, and that they encourage a shooting range mentality, allowing you to shoot people who cut through your backyard if you feel threatened.
Proponents of the law argue that it reflects today’s crime realities, that criminals are intent on causing physical harm and that the days of the gentleman thief are over.
Legal experts like Anthony Sebok at Findlaw, argue that the laws send a “very confusing message” because they often are not really clear when you can use lethal force without being prosecuted. For example, in Kentucky’s first case under that state’s new home intruder/Stand Your Ground law, the judge hearing the case, said that the law was “confusing, vague, poorly written.” One of the drafters of Kentucky’s penal code called it “the worst legislation I have ever seen.”
Stand Your Ground laws will stand their ground legally unless successfully challenged on grounds that they violate the constitution. And that’s one of the questions that we’re posing today. We asked criminal law expert Paul Bergman whether he felt that Stand Your Ground laws would be held to be unconstitutional.
PAUL BERGMAN: It’s unlikely that I think that they’re going to be held to be unconstitutional. There might be some claim that somebody’s life was taken away without due process of law, but it would have been taken away by an individual, not by the state, in most cases. So it’s not going to amount a constitutional problem. The real issue is whether or not it’s good policy, does it make sense, how far will people push this and how will prosecutors and juries react. Are people really using deadly force in situations that the law wasn‘t meant to apply to. I would say we’re going to have to see how the interpretation of the rule plays out before we make any judgments. If there are problems with the rules, they won’t amount to violations of the Constitution, I don’t think.
NOLO: We’ve had a few other questions about criminal law and one of them is about what to do when questioned by a police officer. Should you respond to all questions in order to show your willingness to cooperate? Should you stay quiet until you know whether this has anything to do with a criminal charge against you? Does refusing to answer questions make you more suspicious in the eyes of the police officer? We asked Paul Bergman what’s a recommend course of action for someone who’s stopped and questioned by police?
PAUL BERGMAN: That’s a pretty individual judgment. I’d say that if the person is at all uncomfortable, they should first, ask whether they’re under arrest, or whether they are free to leave. And if they are free to leave, they should say something like “Look, I’m willing to talk to you”, if you are, “but this really isn’t a good time.” And make an appointment for another time. Even if you don’t have a lawyer present, you will at least have an opportunity to think about it, be in a more comfortable setting where you’ll be more relaxed and able to provide accurate information.
If the officer says you’re not free to leave, more or less, you ARE under arrest. Then I think people out to not talk until they have access to a lawyer.
NOLO: What about your home? If your home is your castle, do you have to answer questions posed by a police officer who comes to the door? Should you let the officer in your house?
PAUL BERGMAN: Well, people should understand that they have a right not to allow a police officer in their house unless the officer has a warrant. You should always ask to see the warrant first. If the officer says, “I don’t have one, but I’d like to come in. If you’re not guilty you have nothing to be afraid about”, you DO have the right to say no and if you do allow the police officer in, then it’s voluntary and anything the police officer sees may be properly seized and used as evidence. All of these are individual judgments, but as a general rule, people at least ought to know that they have a right to say no to a police officer coming in the house unless that officer has a search or arrest warrant.
NOLO: Another question that we have for Paul Bergman is a basic one -- but it’s still an interesting one. What exactly does it mean to be ‘under arrest’? We asked Paul Bergman for an explanation.
PAUL BERGMAN: Well, what it means to be under arrest is that you can’t go wherever you’d like to go. It’s kind of a physical control, where you can go is determined by the police officer. Your freedom is restricted, that’s basically what it means to be under arrest.
NOLO: Can you be charged with a crime without being arrested?
PAUL BERGMAN: Well, you CAN leave. . You can be given a citation---people who get traffic tickets, for example, are given a citation, and then they leave. The police may also be unable to arrest you, they may have a probable cause to believe that you committed a crime, and you may be charged with a crime, but before you’re arrested. Usually the charge doesn’t come until the arrest takes place, but it’s theoretically possible for a charge to be made assuming they have probable cause without having the person in custody.
NOLO: A listener asked the question ‘What is circumstantial evidence and why do attorneys for defendants always criticize evidence when it is circumstantial? Isn’t it as good as other evidence? We asked Paul Bergman.
PAUL BERGMAN: Circumstantial evidence is often derided. We hear that all the time in movies…”that’s just a bunch of circumstantial evidence.” But in fact, most evidence offered at trial IS circumstantial and legally, there’s no problem with it
Its counterpart is direct evidence, and the only difference is, in direct evidence, you do not need an inference to connect the evidence to a crime. With circumstantial evidence, you do need to infer. That’s kind of a common thing we do all the time. If you see somebody smiling, you might infer that they’re happy. Well, that’s the same as we do in court. But circumstantial evidence can be quite powerful. There’s this legal saying that there is nobody who wouldn’t accept dog tracks in the snow as evidence that a dog had passed by, against the sworn affidavits of ten people that it had not. So circumstantial evidence, in that case, the dog tracks, can be quite powerful.
Actually, DNA test results and most scientific evidence, is simply a form of circumstantial evidence. The fact that the blood, let’s say, appears to have the same DNA characteristics as the blood left at a crime scene, is simply circumstantial evidence that the person whose blood was at the crime scene is the person whose blood was taken for the purpose of the DNA test. So scientific evidence is really just another form of circumstantial evidence. Circumstantial evidence has pretty much gotten a bad rap.
NOLO: The Fourth Amendment of the U.S. Constitution guarantees that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …” The Fourth Amendment is basically about privacy – that is, which details of your life shall be revealed to the public and the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement.
However, the Fourth Amendment does not protect against searches initiated by nongovernmental people, such as employers, landlords, and private security personnel, unless the search is made at the request of a law enforcement authority.
As a general rule, however, the police may override your privacy concerns and conduct a search of your home, or car, or office, or personal or business documents, bank records, even your trash if:
• the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or
• The police search is proper without a warrant because of a variety of circumstances.
In 1961, the U.S. Supreme Court established the exclusionary rule. That states that evidence seized in violation of the Fourth Amendment cannot be used as evidence against defendants in a criminal prosecution. Many commentators still criticize this rule on the grounds that it unfairly “lets the criminal go free because the constable has erred.”
We asked Paul Bergman one final question. Knowing what we know now, would the drafters of the Constitution have written the Fourth Amendment in the same way today?
PAUL BERGMAN: Well, from a civil liberties point of view I’d like to believe that it would be written the same way. I think there’s still a consensus in the country that it’s a good idea for police not to have a right to arrest people on a whim, a hunch, that it’s a good idea for police officers not to simply enter somebody’s house or apartment, or property, on a whim or a hunch. That right, at the base of the Fourth Amendment, states a value that everybody believes in. That’s why I believe the Fourth Amendment WOULD be enacted. Now there are times when it may hamper the police, but the courts have been quite creative in creating exceptions to the warrant requirement, or for example, police can pursue a suspect into a house when they’re in hot pursuit. They’ve created opportunities for police officers to get warrants at all times of the day, there’s
NOLO: Thanks to Paul Bergman for his assistance. Much of the information for this episode came from Paul’s book, The Criminal Law Handbook.
FINDLAW http://writ.news.findlaw.com/sebok/20050502.html
FLORIDA LAW: http://news.bbc.co.uk/2/hi/americas/4415135.stm
TAMPA TOWING CASE http://www.usatoday.com/news/nation/2006-03-20-states-self-defense_x.htm
OPPONENTS http://www.licensetomurder.com/main.php
Kentucky Case http://www.kentucky.com/mld/kentucky/15132235.htm
Wiki Self Defense http://en.wikipedia.org/wiki/Self-defense_(theory)
Wiki Stand Your Ground http://en.wikipedia.org/wiki/Stand_your_ground_law
Sunday, September 3, 2006
Is it a Crime to make a False Confession?
Hello. This week we’re going to explore criminal law and we’ll address some questions relating to a high profile case recently in the news. We’re speaking with Paul Bergman, a Professor of Law at the UCLA School of Law, and the co-author of The Criminal Law Handbook: Know Your Rights Survive the System form Nolo, a highly-recommended guide to criminal law.
In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.
PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime.
NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.
PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them.
In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.
NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.
PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.
NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a police officer. Can that be used in court?
PAUL BERGMAN: Sure … the police or state office of some kind is the only person who has to give Miranda warnings. What people say to friends, strangers, in bars, et cetera, is admissible without any kind of restriction at all.
NOLO: Most of us are familiar with the concept of DNA testing from high profile trials and from television shows. We asked Paul Bergman whether a suspect in a criminal case has to agree to DNA testing.
NOLO: Yes if the police have the need for a sample from which they can extract DNA, they have a right to demand it and you have no constitutional privilege to refuse. Now of course if they take the DNA sample in some horrible or inappropriate way -- let’s say given a person’ religious beliefs or something like that -- then the person could demand that the DNA sample be obtained in some more neutral manner. But you have no basic right to refuse to permit a DNA sample to be taken.
There’s a constitutional right that a lot of people are aware of having to do with – you don’t have to incriminate yourself -- but the Supreme Court at least 50 years ago, interpreted that to mean that you don’t have to provide testimony. But that doesn’t mean that you don’t have to provide certain physical evidence coming from your body -- like I think in those days, it was a blood test.
QUESTION: Can you go into a bar and let’s say, after someone used a glass, can you take that glass and get the DNA and use that as DNA evidence?
NOLO: I believe so If you’re talking about whether the police can do it, then you’ve left that in public, they’re not conducting a search for which they would need permission, so yes, they could look at the glass and take it to a lab, and if they could get some usable DNA, then that would be acceptable.
NOLO: Many people are unclear about how DNA is obtained and about how it is used in court. DNA can be obtained from just about any human tissue and its commonly obtained from hair, fingernails, bones, teeth and bodily fluids. There is a well-known DNA database maintained by the FBI commonly used by law enforcement called CODIS, which stands for Combined DNA Index System. CODIS. For example, CODIS contains DNA samples from convicted sex offenders and from many felons. By the way, DNA has one interesting quirk. Identical twins are the only people with identical DNA – that’s because identical twins are created when a fertilized egg splits. That’s not the case for fraternal twins. Identical twins do not have identical fingerprints however. We asked Paul Bergman if DNA is always admissible in court.
PAUL BERGMAN: DNA evidence is generally admissible. I’m not an expert on DNA but I know that DNA sampling has been done on kind of a group- by-group basis. And I could be that, a judge might say that a particular DNA result is not admissible because of the defendant, or the person whose DNA was tested, is from one group, let’s say Caucasian and the DNA results were obtained by looking at a different group, let’s say Hispanics, or African American.
And there may be some novel way of testing for DNA that a court may not yet approve. But as a matter of science, the courts have accepted the science underlying DNA testing, and the results that are generally admissible.
NOLO: Scientific evidence has always been important in criminal cases but during the past 25 years, it has increased, particularly with the use of DNA evidence. Along with that has come considerable media attention, particularly a series of television shows, most prominent of which is CSI, which stands for Crime Scene Investigation. Surprisingly, these shows may have made it harder for prosecutors to obtain convictions., We asked Paul Bergman about the CSI effect.
NOLO: What these television shows tend to do now is to glorify and probably exaggerate the role of forensic scientists in detecting and proving crimes in court. And these shows are quite dramatic and these performers playing scientists have access, apparently, to all sorts of nifty gadgets to catch all sorts of things and come up with evidence that no one could have known about. The problem is that, at least many prosecutors believe, that it’s making it harder to obtain convictions, when they don’t have any of this nifty forensic testimony. And in most cases, it’s not appropriate to have forensic testimony, there’s no need for it. But the jurors, having seen all these CSI shows, are perhaps less likely to convict, because they say, “Well, this guy must not be guilty…we haven’t seen anyone in white coats, with machines, to prove guilt.” So, that’s the CSI effect. It kind of ramps up the pressure on prosecutors to produce the latest scientific gadgets in court, or else a defendant might go free.
NOLO: In movies and TV -- we often see stories like the Fugitive – where a person resists a police office to maintain their innoncence. We asked Paul Bergman whether it’s a crime to resist arrest even if you’re innocent.
PAUL BERGMAN: Sometimes it seems unfair, but somebody who is factually innocent could still be prosecuted for resisting arrest or escaping --- I mean, everyone understand the unfairness of it.
I guess the policy is that these matters ought to be fought out in the courts, where people are less likely to get hurt. If we allow people to take justice into their own hands, that’s vigilante justice…a vigilante may be pursuing somebody who has committed a crime, but we don’t want vigilantes taking the law into their own hands; we want the arrest to be made and for guilt to be determined in court. In the same way, you could say that someone who has been arrested, though innocent --- it may be unfair to charge them with a crime because if they try to escape, the police officer may pull out a gun and shoot him, or the police officer may get hurt, so it’s a better overall policy to have those matters play out in court, not out on the street.
In a recent criminal case, a man, John Mark Karr, confessed to trhe murder of Jon Bent Ramsay, committed over a decade ago. Karr was extradited to the United States where a handwriting analyst stated Karr’s handwriting matched a ransom note in the case. Then, twelve days after his confession, a DNA test revealed that Karr’s DNA did not match DNA found at the crime scene and he was released. We asked Paul Bergman a question that a lot of people are wondering ---Is it a crime to confess to a crime that you did not commit? That is, to make a fraudulent confession.
PAUL BERGMAN: There are statutes certainly in the federal government and in some states which make it a crime to lie to a police officer. And so if an individual makes a false confession to a police officer, then in theory, they might be prosecuted for that crime.
NOLO: If a suspect is lying when they make their confession, why not just give the suspect a lie detector test.
PAUL BERGMAN: Well the police sometimes do use lie detector tests to clear suspects. Generally, the lie detector test results are not admissible as evidence because the courts think the results are too subjective, they depend too much on the subjective judgement of the person running the lie detector test, and some people might be able to affect the results by practicing. So the general rule is that lie detector tests are not admissible in evidence whether the prosecution or defense wants to offer them.
In a number of states, assuming the prosecution and the defense agree before the test is given that the results will be admissible no matter which way they come out, the court in those states will admit the test. Apart from admissibility, police often do administer lie detector tests, just for their own purposes; they tend to have faith in their outcomes. And they may, for example, decide not to pursue further evidence against a potential suspect who passes the lie detector test. And so they might use it as way of clearing particular individuals, for their own purposes, apart from any courtroom use.
NOLO: As most people who watch police shows on TV are aware a police officer arrests someone and often says something like: you have the right to remain silent. If you give up that right, anything you say can and will be used against you in a court of law. You have the right to an attorney and to have an attorney present during questioning. If you cannot afford an attorney, one will be provided to you at no cost. During any questioning, you may decide at any time to exercise these rights, not answer any questions or make any statements. We asked Paul Bergman whether a confession made without these warnings is still admissible in trial.
PAUL BERGMAN: Generally, yes. What people say voluntarily either before or after they’re in custody, is admissible in evidence. The Miranda warnings are required only when the police conduct an interrogation or question a suspect, and if they begin the interrogation without giving the warning, then the confession will probably not be admissible in evidence. But if somebody just starts talking to the police with no interrogation, then no need for Miranda warnings.
NOLO: In the case that’s recently in news, a suspect confessed via email, to someone other than a police officer. We asked Paul Bergman about the admissibility of confession that’s made to someone other than a police officer. Can that be used in court?
PAUL BERGMAN: Sure … the police or state office of some kind is the only person who has to give Miranda warnings. What people say to friends, strangers, in bars, et cetera, is admissible without any kind of restriction at all.
NOLO: Most of us are familiar with the concept of DNA testing from high profile trials and from television shows. We asked Paul Bergman whether a suspect in a criminal case has to agree to DNA testing.
NOLO: Yes if the police have the need for a sample from which they can extract DNA, they have a right to demand it and you have no constitutional privilege to refuse. Now of course if they take the DNA sample in some horrible or inappropriate way -- let’s say given a person’ religious beliefs or something like that -- then the person could demand that the DNA sample be obtained in some more neutral manner. But you have no basic right to refuse to permit a DNA sample to be taken.
There’s a constitutional right that a lot of people are aware of having to do with – you don’t have to incriminate yourself -- but the Supreme Court at least 50 years ago, interpreted that to mean that you don’t have to provide testimony. But that doesn’t mean that you don’t have to provide certain physical evidence coming from your body -- like I think in those days, it was a blood test.
QUESTION: Can you go into a bar and let’s say, after someone used a glass, can you take that glass and get the DNA and use that as DNA evidence?
NOLO: I believe so If you’re talking about whether the police can do it, then you’ve left that in public, they’re not conducting a search for which they would need permission, so yes, they could look at the glass and take it to a lab, and if they could get some usable DNA, then that would be acceptable.
NOLO: Many people are unclear about how DNA is obtained and about how it is used in court. DNA can be obtained from just about any human tissue and its commonly obtained from hair, fingernails, bones, teeth and bodily fluids. There is a well-known DNA database maintained by the FBI commonly used by law enforcement called CODIS, which stands for Combined DNA Index System. CODIS. For example, CODIS contains DNA samples from convicted sex offenders and from many felons. By the way, DNA has one interesting quirk. Identical twins are the only people with identical DNA – that’s because identical twins are created when a fertilized egg splits. That’s not the case for fraternal twins. Identical twins do not have identical fingerprints however. We asked Paul Bergman if DNA is always admissible in court.
PAUL BERGMAN: DNA evidence is generally admissible. I’m not an expert on DNA but I know that DNA sampling has been done on kind of a group- by-group basis. And I could be that, a judge might say that a particular DNA result is not admissible because of the defendant, or the person whose DNA was tested, is from one group, let’s say Caucasian and the DNA results were obtained by looking at a different group, let’s say Hispanics, or African American.
And there may be some novel way of testing for DNA that a court may not yet approve. But as a matter of science, the courts have accepted the science underlying DNA testing, and the results that are generally admissible.
NOLO: Scientific evidence has always been important in criminal cases but during the past 25 years, it has increased, particularly with the use of DNA evidence. Along with that has come considerable media attention, particularly a series of television shows, most prominent of which is CSI, which stands for Crime Scene Investigation. Surprisingly, these shows may have made it harder for prosecutors to obtain convictions., We asked Paul Bergman about the CSI effect.
NOLO: What these television shows tend to do now is to glorify and probably exaggerate the role of forensic scientists in detecting and proving crimes in court. And these shows are quite dramatic and these performers playing scientists have access, apparently, to all sorts of nifty gadgets to catch all sorts of things and come up with evidence that no one could have known about. The problem is that, at least many prosecutors believe, that it’s making it harder to obtain convictions, when they don’t have any of this nifty forensic testimony. And in most cases, it’s not appropriate to have forensic testimony, there’s no need for it. But the jurors, having seen all these CSI shows, are perhaps less likely to convict, because they say, “Well, this guy must not be guilty…we haven’t seen anyone in white coats, with machines, to prove guilt.” So, that’s the CSI effect. It kind of ramps up the pressure on prosecutors to produce the latest scientific gadgets in court, or else a defendant might go free.
NOLO: In movies and TV -- we often see stories like the Fugitive – where a person resists a police office to maintain their innoncence. We asked Paul Bergman whether it’s a crime to resist arrest even if you’re innocent.
PAUL BERGMAN: Sometimes it seems unfair, but somebody who is factually innocent could still be prosecuted for resisting arrest or escaping --- I mean, everyone understand the unfairness of it.
I guess the policy is that these matters ought to be fought out in the courts, where people are less likely to get hurt. If we allow people to take justice into their own hands, that’s vigilante justice…a vigilante may be pursuing somebody who has committed a crime, but we don’t want vigilantes taking the law into their own hands; we want the arrest to be made and for guilt to be determined in court. In the same way, you could say that someone who has been arrested, though innocent --- it may be unfair to charge them with a crime because if they try to escape, the police officer may pull out a gun and shoot him, or the police officer may get hurt, so it’s a better overall policy to have those matters play out in court, not out on the street.
Sunday, August 27, 2006
How Can You Best Advocate for a Special Education Child?
How Can You Best Advocate For a Special Education Child?
As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?
And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.
LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.
NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?
LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepancy between the child’s general ability, wherever that may be, and how the child is performing? If there’s a discrepancy, that’s fairly important. Thirdly, are there physical things that impact on the child’s ability to be educated? A vision loss, hearing loss, or physical restriction. Other ways in which you can determine whether the child’s education is adversely affected would be, how’s the child doing in developing various skills that a child ought to have at a certain age? Cognitive skills, is the child becoming literate, is the child developing the ability to write… if it appears the child is not doing that, that suggests that something is going on, and would be proof that the disability is affecting education.
NOLO: The IDEA states that a child with a disability is entitled to an appropriate education at no cost to the parents. That term, “appropriate education,” is one of the terms that has been subject to a great deal of debate since the law was enacted thirty years ago. We asked Lawrence Siegel his interpretation of the meaning, “appropriate education.”
LAWRENCE SIEGEL: It means, ultimately, that the child can progress from year to year, and make academic progress. It does not mean, if I can use a cliché, it doesn’t mean a Cadillac program, it means a Chevrolet program. So, you’ve got to look to the fact that the child with that program is going to advance academically and make progress.
NOLO: Another controversial aspect of the IDEA, and IEPs, is the concept of mainstreaming. Some courts have concluded that mainstreaming is a requirement of the IDEA. We asked Lawrence Siegel what mainstreaming means.
LAWRENCE SIEGEL: Mainstreaming is really the same as placement with non-disabled children in a regular class. It’s one option on what’s called the continuum of placement options under IDEA. IDEA doesn’t really use the term “mainstreaming,” what it says is, the legal term – and this is very important – is that every child with a disability is entitled to be educated in the least-restrictive environment, as determined by the IEP team. Furthermore, the law says that a child is entitled to be educated in a regular classroom and cannot be removed from that regular classroom unless there’s evidence that the child cannot achieve satisfactorily in the classroom, even with supplementary aides and services. So, at least theoretically, it means that all children should start in a regular class, and only be removed to a non-regular placement when there’s evidence that they can’t succeed there.
NOLO: Because the IDEA and the IEP rules are so complex, we asked Lawrence Siegel where parents whose children may qualify under the IDEA can look for assistance on these topics.
LAWRENCE SIEGEL: Your school district has an absolute legal duty to provide you with information about the whole special ed process, that’s the first place. Secondly, your state Department of Education usually will have a whole bunch of information about IDEA – how it works, what the rules are. So, you can start in those two places. If your child’s not in special ed yet, but you think your child belongs there, you certainly should start to talk to his or her teacher, talk to your doctor about the child, is the child not meeting developmental milestones, is the child having trouble with certain courses, is the child having trouble with handwriting, or a learning disability, or whatever it might be. So, talk to your teacher, talk to your doctor; there are a whole number of both generic support groups in your area and in the country, as well as specific support groups for specific disabilities who can give you some direction on what you should be looking for if you suspect your child is autistic or learning-disabled. Then, you may want to think about getting an assessment done, which the school has a duty to do, or even go outside of the school and get an assessment done.
NOLO: The IEP hearing can be quite expensive for a parent, especially if they have to pay for expert witnesses. We asked Lawrence Siegel for any suggestions about keeping fees down.
LAWRENCE SIEGEL: In terms of expert witnesses and other costs, this recent decision in the Arlington v. Murphy case, the court did say that, when there’s an expert witness who testifies in a hearing, you better be prepared that, if you have such a person and you win the case, you’re not going to get reimbursed for those costs. So, some alternatives would be, first of all, again, contact those organizations, and they’re fairly easy to find on the web and in my book. Those organizations that provide support for individuals and families with the specific disability your child has, they may in fact know a nonprofit or other folks who can provide you the expertise at no or low cost, that’s certainly one option. The second option is, if your expert has also done an evaluation on your child, I’d suggest you talk to the expert about the possibility of her testifying in a hearing, and whether she would do that or he would do that, as part of the total cost, and that total cost, for the assessment, is reimbursable. That’s one way to do it. And then, one other way, although I don’t particularly like it, is when you go to hearing, the expert may in fact provide written information as well as testifying. An alternative to cut your costs down would be to have the expert do a very thorough written report, which you would submit to the hearing officer, and not have that person testify. Now, I prefer that both happen, because it’s important that you have live testimony, but that would be a way to cut down your costs, too.
NOLO: The IEP hearing can also be a tense situation. Lawrence Siegel has participated in many of these hearings, and we asked him to describe what it’s like.
LAWRENCE SIEGEL: Well, you know, obviously the tension level will depend a good deal on the personalities involved… some administrators, even though they disagree with you, are really fairly decent people, and then others can be very difficult. It also depends on what the nature of the dispute is, and if it’s been acrimonious in the past then you can anticipate that it will be that way in the hearing. As a general rule, these hearings will take place certainly not in courts; they often will take place in the school district. They’ll be in rather informal settings, like a conference room. The hearing officer will generally try to put people at ease. It does have the trappings of going to trial in a way, but it’s much more informal so that there’s certainly going to be an anxiety level; everyone feels that, including the most jaded and experienced lawyer, but it’s informal enough that if you’re in it and you’re doing it yourself, you can always say to the hearing officer, “Can we stop? I’m really confused here,” or “I’m nervous,” or “I don’t know,” and it’s the kind of setting where you can ask questions like that.
NOLO: Should a family bring a lawyer to these hearings?
LAWRENCE SIEGEL: Certainly if you think the district’s going to have an attorney, you better seriously think about it. If the district’s not going to have an attorney, I think – and you can go to my book and other places to get some recommendations how you do the hearing yourself, but it’s certainly something that if you can do it, you should have an attorney. You’re probably going to do better with an attorney, and remember, if you win, you’re going to get reimbursed. In the alternative, one way to do it is to do it yourself – then you don’t have to put money out for an attorney – but possibly hire a special ed attorney. Remember, not every attorney is going to know special ed law, so make sure the attorney knows special ed law. Perhaps you can hire the attorney for a couple three-hours to review your case, and he or she can give you some pointers. That’s a heck of a lot less expensive than having the attorney go to the hearing, which can often involve anywhere from twenty to fifty hours of time for the lawyer.
As schools prepare to open, many parents wrestle with a federal law called The Individuals with Disabilities Education Act, or IDEA, passed in 1975. The goal of this law is to help children with disabilities succeed in school. Before it was enacted, public schools frequently ignored children with disabilities, or shunted them off to inferior or distant programs. The IDEA created the concept of special education: special services and programs for students with disabilities. Since its enactment, millions of students have had access to improved educational opportunities in public institutions. But much of the language in the act, for example, terms such as “disability,” “appropriate education,” and “unique needs” stir up emotional, medical, legal, and financial issues. Lawsuits between school districts and the disabled and their advocates are not uncommon. So what should a parent do when their child has a disability, and how can a parent maneuver through the maze of special education rules?
And what about school districts squeezed for funds? How can they best provide for the needs of all students? We start with the principle that a child qualifies as being disabled by meeting two standards. First, the child must have a listed disability. There are a list of disabilities in the IDEA such as physical disabilities, hearing, speech, and vision impairments, emotional and mental conditions including autism, retardation, and attention deficit disorders, and many other conditions. For example, in October 2006, Tourette’s Syndrome was added to the list. Second – and both of these conditions must be met – the child’s disability has to adversely affect the child’s education. A child who qualifies under the IDEA must then consider special education options with the school district. The key for accomplishing these goals is the Individualized Education Program, or IEP, and it is here, with the IEP, that parents face the greatest challenges. We spoke with Lawrence Siegel, an attorney who has represented many parents of disabled children in the IEP process, and is the author of “The Complete IEP Guide: How to Advocate for your Special Ed Child,” and “Nolo’s IEP Guide: Learning Disabilities.” We asked him to explain the basics of the IEP.
LAWRENCE SIEGEL: Well, under IDEA, the special ed law, the Individualized Education Program, the IEP, is actually several things, and it is the blueprint for the child’s program, and it describes what the child is going to get. The IEP is a meeting that usually takes place once a year, in which the family and the school district meet to discuss all elements of the child’s program, and that’s written down on a form called an IEP, and that IEP will create with a good deal of detail what the child’s program is going to look like, and that’s what both the family and the child and the school and the teacher will follow to provide the child with the individually-tailored program that meets his or her needs.
NOLO: It’s estimated that there are over five million school-age children with disabilities, or one out of twelve children or teenagers. As we noted, to qualify under the law, it’s not enough that a child has a disability; the disability must adversely affect the child’s educational performance. So, how does a parent prove that a disability affects learning?
LAWRENCE SIEGEL: Well, there are a number of ways that a family can prove that, and they should, whether their child is in or out of special ed, qualified or not, they obviously should keep track of how the child is doing in school. First of all, through grades, of course. Second of all, is there a discrepancy between the child’s general ability, wherever that may be, and how the child is performing? If there’s a discrepancy, that’s fairly important. Thirdly, are there physical things that impact on the child’s ability to be educated? A vision loss, hearing loss, or physical restriction. Other ways in which you can determine whether the child’s education is adversely affected would be, how’s the child doing in developing various skills that a child ought to have at a certain age? Cognitive skills, is the child becoming literate, is the child developing the ability to write… if it appears the child is not doing that, that suggests that something is going on, and would be proof that the disability is affecting education.
NOLO: The IDEA states that a child with a disability is entitled to an appropriate education at no cost to the parents. That term, “appropriate education,” is one of the terms that has been subject to a great deal of debate since the law was enacted thirty years ago. We asked Lawrence Siegel his interpretation of the meaning, “appropriate education.”
LAWRENCE SIEGEL: It means, ultimately, that the child can progress from year to year, and make academic progress. It does not mean, if I can use a cliché, it doesn’t mean a Cadillac program, it means a Chevrolet program. So, you’ve got to look to the fact that the child with that program is going to advance academically and make progress.
NOLO: Another controversial aspect of the IDEA, and IEPs, is the concept of mainstreaming. Some courts have concluded that mainstreaming is a requirement of the IDEA. We asked Lawrence Siegel what mainstreaming means.
LAWRENCE SIEGEL: Mainstreaming is really the same as placement with non-disabled children in a regular class. It’s one option on what’s called the continuum of placement options under IDEA. IDEA doesn’t really use the term “mainstreaming,” what it says is, the legal term – and this is very important – is that every child with a disability is entitled to be educated in the least-restrictive environment, as determined by the IEP team. Furthermore, the law says that a child is entitled to be educated in a regular classroom and cannot be removed from that regular classroom unless there’s evidence that the child cannot achieve satisfactorily in the classroom, even with supplementary aides and services. So, at least theoretically, it means that all children should start in a regular class, and only be removed to a non-regular placement when there’s evidence that they can’t succeed there.
NOLO: Because the IDEA and the IEP rules are so complex, we asked Lawrence Siegel where parents whose children may qualify under the IDEA can look for assistance on these topics.
LAWRENCE SIEGEL: Your school district has an absolute legal duty to provide you with information about the whole special ed process, that’s the first place. Secondly, your state Department of Education usually will have a whole bunch of information about IDEA – how it works, what the rules are. So, you can start in those two places. If your child’s not in special ed yet, but you think your child belongs there, you certainly should start to talk to his or her teacher, talk to your doctor about the child, is the child not meeting developmental milestones, is the child having trouble with certain courses, is the child having trouble with handwriting, or a learning disability, or whatever it might be. So, talk to your teacher, talk to your doctor; there are a whole number of both generic support groups in your area and in the country, as well as specific support groups for specific disabilities who can give you some direction on what you should be looking for if you suspect your child is autistic or learning-disabled. Then, you may want to think about getting an assessment done, which the school has a duty to do, or even go outside of the school and get an assessment done.
NOLO: The IEP hearing can be quite expensive for a parent, especially if they have to pay for expert witnesses. We asked Lawrence Siegel for any suggestions about keeping fees down.
LAWRENCE SIEGEL: In terms of expert witnesses and other costs, this recent decision in the Arlington v. Murphy case, the court did say that, when there’s an expert witness who testifies in a hearing, you better be prepared that, if you have such a person and you win the case, you’re not going to get reimbursed for those costs. So, some alternatives would be, first of all, again, contact those organizations, and they’re fairly easy to find on the web and in my book. Those organizations that provide support for individuals and families with the specific disability your child has, they may in fact know a nonprofit or other folks who can provide you the expertise at no or low cost, that’s certainly one option. The second option is, if your expert has also done an evaluation on your child, I’d suggest you talk to the expert about the possibility of her testifying in a hearing, and whether she would do that or he would do that, as part of the total cost, and that total cost, for the assessment, is reimbursable. That’s one way to do it. And then, one other way, although I don’t particularly like it, is when you go to hearing, the expert may in fact provide written information as well as testifying. An alternative to cut your costs down would be to have the expert do a very thorough written report, which you would submit to the hearing officer, and not have that person testify. Now, I prefer that both happen, because it’s important that you have live testimony, but that would be a way to cut down your costs, too.
NOLO: The IEP hearing can also be a tense situation. Lawrence Siegel has participated in many of these hearings, and we asked him to describe what it’s like.
LAWRENCE SIEGEL: Well, you know, obviously the tension level will depend a good deal on the personalities involved… some administrators, even though they disagree with you, are really fairly decent people, and then others can be very difficult. It also depends on what the nature of the dispute is, and if it’s been acrimonious in the past then you can anticipate that it will be that way in the hearing. As a general rule, these hearings will take place certainly not in courts; they often will take place in the school district. They’ll be in rather informal settings, like a conference room. The hearing officer will generally try to put people at ease. It does have the trappings of going to trial in a way, but it’s much more informal so that there’s certainly going to be an anxiety level; everyone feels that, including the most jaded and experienced lawyer, but it’s informal enough that if you’re in it and you’re doing it yourself, you can always say to the hearing officer, “Can we stop? I’m really confused here,” or “I’m nervous,” or “I don’t know,” and it’s the kind of setting where you can ask questions like that.
NOLO: Should a family bring a lawyer to these hearings?
LAWRENCE SIEGEL: Certainly if you think the district’s going to have an attorney, you better seriously think about it. If the district’s not going to have an attorney, I think – and you can go to my book and other places to get some recommendations how you do the hearing yourself, but it’s certainly something that if you can do it, you should have an attorney. You’re probably going to do better with an attorney, and remember, if you win, you’re going to get reimbursed. In the alternative, one way to do it is to do it yourself – then you don’t have to put money out for an attorney – but possibly hire a special ed attorney. Remember, not every attorney is going to know special ed law, so make sure the attorney knows special ed law. Perhaps you can hire the attorney for a couple three-hours to review your case, and he or she can give you some pointers. That’s a heck of a lot less expensive than having the attorney go to the hearing, which can often involve anywhere from twenty to fifty hours of time for the lawyer.
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