Money & Career
Legal Roundup
7/5/2017 8:37:27 AM



Making It Legal:

Navigating Today’s Common Areas of Law Practices

by Victoria Hartley-Ellender


For many, hiring an attorney is a new, unfamiliar, and once-in-a-lifetime experience. Whether it’s your first time venturing into the legal world or you’ve had some past experience, the process of seeking legal counsel to meet a specific need can be overwhelming. Law practices are divided into several overlapping categories that collectively form a representative framework for society’s civil justice system. From business and personal injury to bankruptcy and real estate law to family and divorce cases, each lawyer has a defined niche that offers a refined skillset to potential clients. Here are six areas of the most common types of law practice.


Nonprofit 

Nonprofit attorneys provide services for clients who cannot afford to pay for legal services. Locally, the Southwest Louisiana Law Center has provided legal services to economically disadvantaged citizens for the past fifty years. The center operates on a sliding scale for cases of family law, including custody child access disputes, child support, use and occupancy of home and car, spousal support, community and domestic violence, intra-family adoption, name changes, and successions; as well as landlord tenant disputes and expungement cases.

Mark Judson, executive director of the Law Center, said the organization continually seeks new and innovative ways to serve clients and close the justice gap in society. "At the Southwest Louisiana Law Center, we have a core belief that in order to have a healthy and functioning society, all citizens must be able to access the civil justice system. We work every day to ensure that as many citizens as possible can gain access to the civil justice system.”


Personal Injury 

 If you have suffered an injury and feel that another party is responsible, a personal injury attorney may be able to help you. Personal injury attorneys represent clients who have sustained either physical or emotional injuries when another party was responsible. Common situations that require a personal injury attorney include botched surgeries, work related injuries, traffic accidents, air pollution, and falling in public places. Personal injury attorneys usually charge based on contingency, which means the client pays nothing up front, and the attorney takes a percentage if the case wins.  


Family and Divorce 

The five basic areas of family law are divorce, child support, custody, spousal support, and community property partitions. Other issues that fall within the category are interdicting elderly people who can no longer care for themselves, name changes, and emancipation cases. Lee Boyer, attorney at Stockwell Sievert Law Firm, has been practicing family law in Southwest Louisiana since 1985. Over the years, Boyer has observed an improvement in family law practices as processes have been streamlined making it easier for families to resolve issues more efficiently. "Working in family law is very rewarding because I am able to help people through what is usually a very difficult time in their lives,” said Boyer.  


Property and Real Estate 

Property and real estate lawyers provide a valuable service for clients who are purchasing homes and property. The lawyer is typically retained to perform a title examination, which ensures that a title is clear and there are no liens or judgments against the property. They also review the buy/sell agreement to ensure fairness for all parties. Transactional real estate attorneys are typically well versed and up-to-date in current laws pertaining to property and zoning restrictions. Real estate attorneys also defend clients in litigation over property rights when a buy/sell agreement is violated or when a tenant or landlord breaks a law. 


Immigration 

The process of bringing a family member, employee, or friend to the United States from another country can be very complicated and involves many applications and filings with multiple government agencies. Hiring an immigration attorney who has expertise in local, state, and federal immigration procedures can streamline the process for businesses and individuals who are attempting to immigrate to and from the United States. Many businesses seek the help of immigration attorneys since they oftentimes hire and relocate employees from outside the U.S. 


Business 

Whether it’s for a small business starting out or a large corporate merger, business transactions often require the assistance of a business attorney.  When it comes to business, the general rule is, "an ounce of prevention is worth a pound of cure,” and consulting a reliable attorney is crucial for businesses of all shapes and sizes. In addition, retaining a business attorney can make a business more successful, stable, and profitable.  A good business attorney will provide vital assistance in nearly every component of business including hiring compliance, copyright and trademark advice, business incorporation, and lawsuits/liability issues. 


2017 Legislative Session Review:

A mixed bag at best, a potential debacle in the making

by Deborah Hacker Serra


Prison Reform

Much was made ahead of the regular session about the Governor’s efforts at legislative prison and sentencing reform. Even his most ardent supporters were skeptical that the Governor’s reforms would make it through both houses. However, ten bills have been signed into law in an attempt to rid the state of its dubious title of ‘World’s Incarceration Capital.’  Sentences will be shortened and parole will be more easily granted for non-violent crimes such as drug possession, car theft, and simple theft. First time offenders with drug addictions may not be sentenced to prison, instead being remanded to treatment programs. Sentences may be shortened for those already in prison for these non-violent crimes. The legislation is aimed at reducing the state prison population by 10% over ten years, with a projected savings to the state of $262 million.  Programs designed to rehabilitate offenders and support victims will be funded by 70% of these savings.

 Representative Stephen Dwight’s (Lake Charles) bill improves the victim notification system which will allow people to receive notification about an offenders’ release or parole hearings in a more efficient manner. Life without parole for juveniles will no longer be available with the exception of first-degree murder cases. Child support payments will be suspended for people who have been jailed more than six months unless they have others means to pay the support.  And food stamps and welfare will be available for drug offenders returning home from prison.  


Mental Illness

Unfortunately those with mental illness, at times, find themselves in the prison system through misunderstandings, miscommunication, and the inability to access the resources that can help them navigate in society. The budget proposed by both the House and the Senate included cuts to services for children and adults with mental illness. Access to medication was not affected in either proposal but daytime  programs and assistance were cut as were services to people too stable for hospitalization but in need of psychiatric and psychological services.


Higher Education

Actual good news in the higher education category, TOPS is fully funded for the coming school year. Although funding will be uncertain in the 2018-2019 funding cycle, parents and students have at least one more year to experience the benefit of TOPS. Universities themselves are fully funded for the first time in a decade through 2018.

In an interesting move, a new law goes into effect this Fall prohibiting public post-secondary educational institutions from asking about the criminal history of the applicant, with a few exceptions. A college or university may ask about criminal history after the admission process has been completed. This would include questions on forms dealing with funds and scholarships, as well as housing.


Taxes

Never a popular subject, as the adage goes, ‘death and taxes are inevitable.’ However, there was a strong effort to increase gasoline taxes at the pump. The funds would have addressed infrastructure and other needs throughout the state. A Louisiana chapter of a national anti-tax group, Americans for Prosperity, organized an effort that resulted in legislators receiving calls and emails urging them to vote against the gas tax and several others taxes. The gas tax was removed from consideration and the other taxes never made it to the floor.

This move merely delays the inevitable. Taxes or alternative means of funding must be addressed in upcoming special sessions. Funds have been set aside in current legislation whereby agencies will hold back $60 million for use if mid-year projections are not realized. Louisiana has experienced mid-year deficits over the past nine years. And this projection guessing game has been at the heart of the many vitriolic disagreements between the House and the Senate.  Although a date has not been set for the next special session, taxes and funding will be at the heart of every discussion.


A Cleaner State

House Bill 111 passed with no rancor and little debate other than positive words of encouragement. On a collaborative effort by Keep Louisiana Beautiful, the state chapter associated with Keep America Beautiful, the principles of litter education will be incorporated into the public school curriculum statewide. This is an effort to instill environmental stewardship in our youngest citizens, thus promoting a cleaner state.


Solar

For those of you who thought you were cut out of the solar state tax credit payments, there is hope. You will receive some money over the next three years. If you bought and installed your system two years ago and did not receive the promised credit, it should be coming.


Show Me the Money

In the coming weeks much will be made of the ‘fiscal cliff.’ Temporary sales taxes expire June 30, 2018 which will leave a deficit estimated to be no less than $1.3 billion. Yes, that’s billion with a ‘b.’ The House leadership indicates lawmakers will be more comfortable considering taxes closer to the June 30 expiration date and when it’s clearer if other revenue sources have realized their potential. The Senate appears more amenable to tax discussions but at their political peril.

One veteran lawmaker remarked that when he was in the midst of making a difficult legislative decision, he would look at the back rows of the House and all he saw were lobbyists and special interest advocates. He wanted to see his constituents being actively involved and supporting or providing input to his efforts. Although we could all comment that it’s difficult to get to Baton Rouge even if we knew when votes were taking place, we can call, email, and snail mail our Representatives and Senators. This is the active part of the democracy we so zealously guard. But in order for it to work, we need to do our part.

These are not easy times in Baton Rouge, and decisions being made in the coming months will have both short and long-term consequences affecting us for years to come. In a bit of irony, Lake Charles and Southwest Louisiana are realizing prosperity the rest of the state can only dream of. Yet, the tough budget decisions that must be made for the good of all could have a cooling effect on our corner of the state, as well.


Q&A

Ask an Attorney 

You asked, and we responded. Here are answers to several questions commonly asked of lawyers.


Q. Are handwritten wills legal in the State of Louisiana? If so, do they need to be witnessed and notarized?

A. Yes, a handwritten will, also known as an olographic testament, is valid in Louisiana as long as the document meets certain requirements of form and substance. Louisiana Civil Code Article 1574 gives the requirements for a valid olographic will. The article provides that the will must be "entirely written, dated, and signed in the handwriting of the testator.” (The testator is simply the person making the will.) The day, month, and year must be reasonably ascertainable from the document. Also, the language of the document must be absolutely clear that the writer intends for that particular piece of paper in question to be his or her will. In addition, the testator’s signature should be at the very bottom of document, with no other writing after the signature of the testator.

An olographic testament does not have to be witnessed and notarized at the time it is written and signed. But when it is time for the will to be probated, two credible witnesses will have to testify before a judge, or execute a sworn affidavit, that the will in question was entirely written, dated and signed in the testator’s handwriting. Brad Guillory, Law Office of Brad Guillory


Q. I was hurt at my workplace and was in rehab for three months. Now workman’s comp won’t pay me. What recourse do I have?

A. If you are injured during the course and scope of employment, you may be entitled to certain benefits under the Louisiana Workers’ Compensation Act. Those benefits include medical treatment for your injuries and periodic payments for lost time from work if you are disabled as a result of your injuries. If you are injured at your workplace, you should contact an attorney experienced in the area of Workers’ Compensation for advice as soon as possible. Jason Bell, Cox, Cox, Filo Camel & Wilson, LLC


Q. I was injured in a car accident and neither I nor the other driver has insurance. What should I do?

A. Unfortunately, there is not much you can do. Louisiana law requires every vehicle to carry a minimum of $15,000 per person, $30,000 total per accident insurance coverage. If a vehicle is not insured, the driver may be cited with failure to provide proof of insurance, a misdemeanor offense. Additionally, Louisiana has a "no pay, no play” law, which means that a person who is injured by the fault of another cannot recover the first $15,000 of damages if they have no insurance. So, assume that your damages total $20,000; an injured person in this situation could only recover $5,000. 

 However, damages are only part of the equation. With no insurance, you would have to go after the person who caused the accident, personally, meaning that you have to get a judgment and collect on that judgment, which is a very expensive process that oftentimes results in no one collecting anything.

The rule to take away from this scenario is that you must have a minimum of $15,000/$30,000 of liability insurance. I would encourage you to speak with your insurance agent about getting uninsured/underinsured motorist coverage to protect yourself in the event the person who injures you does not have any insurance or enough insurance. It’s inexpensive and is probably some of the best insurance you can buy to protect yourself. Matthew McGlathery, Hoffoss DeVall


Q. I’m considering divorcing my spouse due to infidelity. What exactly does "No Fault Divorce” mean? 

A. Louisiana law provides that the parties to the marriage can get divorced based on the following: 

  1. Living separate and apart for either 180 or 365 days depending on whether minor children are involved.
  2. Adultery.
  3. Commission of a felony and sentencing to death or hard labor.
  4. Physical or sexual abuse.
  5. Issuance of a protective order or injunction based on abuse.

Only the first ground for divorce is considered to be a "No Fault Divorce,” which is just living separate and apart for the required time period. Typically, it requires more work to obtain a fault based divorce because of the burden of proof and not being able to get the divorce solely based on affidavits. The only real advantage to a fault based divorce, other than potentially being able to have the judgment of divorce rendered sooner, is that the fault would be a bar to permanent spousal support. Lee Boyer, Stockwell Sievert Law Firm


Q. I have a child who is a U.S. citizen, but I am not. How can I obtain legal status in the United States?

A. Under the current immigration laws of the United States, U.S. citizens who are 21 years of age or older may petition for their foreign-born parents to obtain lawful permanent resident status (green cards). However, doing so does not necessarily mean that the foreign-born parent will be granted such status. Each case is fact-specific and will depend on numerous factors including, but not limited to:  the current location of the foreign-born parent; the current immigration status of the foreign-born parent; how many times the foreign-born parent entered the United States without lawful status; the dates on which the foreign-born parent entered the United States; and the amount of time that the foreign-born parent may have been unlawfully present in the United States, if any. Due to the complexity of these cases and immigration law as a whole, U.S. citizens wishing to obtain legal status for their foreign-born parents should first consult with an experienced immigration attorney. Jeb Richard,  Ashley Foret Dees Law Office


Q. My spouse and I are facing divorce and we have three young children. How is Child Support calculated? 

A. Child support is a continuing obligation of both parents, even after a separation or divorce. Although every case is determined based on its particular facts and circumstances, the basic premise is that children are entitled to share in the current income of both parents and should not be the economic victims of a divorce or out-of-wedlock birth. Typically, either parent will file a request for child support in the divorce proceeding via a petition. However, child support can be requested at any time and does not have to necessarily be requested in conjunction with the divorce proceeding. Nevertheless, it’s always best to request child support along with the divorce petition because any judgment awarding child support will be retroactive to the date of judicial demand (aka the date of filing the divorce petition/request for support). 

The basic child support guidelines are set out in LA R.S. 9:315. These guidelines set forth the formula that courts use to calculate child support. The court will use certain variables including, but not limited to: the relative income of the parties, the number of children involved, child care costs, the health insurance premiums for the child(ren), and any legitimate extra-ordinary expenses – medical or otherwise. Each party’s share of the total obligation is then calculated by plugging these variables into the formula that is set forth in the guidelines. While each case is determined by its own unique facts and circumstances, generally, the party that earns the most income will pay a larger share of the total obligation. However, a court can deviate from the child support guidelines in certain circumstances if the application of the guidelines would not be in the best interest of the child or would be inequitable to the parties.

Child support is also contingent on custody. For example, a court may adjust a child support award downward to reflect time spent by the child living in the home of the payor. Basically, the more custody that a parent exercises, the less support they may have to owe to the other party. Generally, the party without legal custody or the non-domiciliary party will owe his/her total support obligation to the custodial or domiciliary party. An award of child support may be modified if the circumstances of the child(ren) or of either parent materially change. Alyson Vamvoras Antoon, Antoon Law Firm

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