FAMILY LAW
1) Are there guidelines for whether I should get a prenuptial agreement?
In general, a party should consider entering into a premarital agreement if he or she owns substantial assets at the time marriage is being contemplated. This fact pattern is generally more common in the case of a second marriage (and premarital agreements themselves are more common in second marriages as well). A basic version of this kind of premarital agreement would prevent premarital assets (and often the income derived from them) from ever becoming marital property. More complicated agreements may contain detailed terms addressing many financial dealings between the parties during marriage (such as, for instance, the payment of taxes, living expenses, ownership of a residence, etc.). —James Carmody, Carmody MacDonald
2) My spouse and I are going through a divorce, but he is currently serving on active duty in the military. How long can the proceedings be stayed?
When a party is on active duty military, the proceedings can be stayed throughout the entire duration of the active service, up to 60 days thereafter. However, the stay can be waived by the active duty service member if they wish to proceed with the divorce. If the service member will not waive it, this can truly delay divorce proceedings. On the other hand, as to the service member, in a contested divorce or a divorce where the parties cannot agree on substantive issues, it really isn’t fair to them not to stay the proceedings because the service member cannot effectively present their side of the story if they are unable to appear in court. —Kirk Stange, Stange Law Firm
3) Should I hire an experienced mediator or a family law attorney for my divorce?
If the parties are inclined and well-suited to work directly side-by-side to begin addressing and resolving issues in their divorce proceeding, they should consider jointly hiring an experienced mediator. At some point in this process, depending upon the nature of the issues involved, each should also consider hiring an experienced attorney. If the parties are not inclined or are not well-suited to working face-to-face with one another (due to conflict or for other reasons), then the first step would be hiring an experienced family law attorney, but mediation may be an option later. —James Carmody, Carmody MacDonald
4) What’s the most creative custody agreement you’ve seen a couple reach?
Most recently, I had two parties agree to maintain the marital home for their three children after divorce and the parents rotated staying in the home for their custodial time rather than shuffling the children. They agreed that when the youngest child went to college, they would sell the home and split the proceeds! This was a very unusual case and is not a typical or realistic resolution for most families. The most common misperception I encounter in my practice is that a mother has a legal advantage or is preferred in custody matters. Under Missouri law, the court must first consider a joint custody arrangement before considering other options and there is no legal preference for a mother or father to have sole custody. —Amanda McNelley, Sandberg Phoenix & von Gontard
5) Do I have the right to demand that my ex take a paternity test?
The law in Missouri provides that upon the request of any party the court shall require the child, mother, alleged father, and any presumed father, or anyone who had sexual relations with the mother at the possible time of conception to submit to blood tests. If someone refuses to submit to the exam, this shall constitute civil contempt. The fact that they refused to take the test can be admissible in evidence. The court may also strike the pleadings of the party who will not submit to the blood test and enter a judgment on the issue of the existence of the parent-child relationship by default. If someone wants a blood test, they can ask the Family Support Division in Missouri to request a test. The state of Missouri will pay for the test. If there is a disagreement regarding obtaining the test, the court can order the paternity test at the request of either party. —Alisse Camazine, Paule, Camazine & Blumenthal
6) My adopted 15-year-old daughter wants to live with her biological mother, who’s now willing to let her stay. Can I stop her?
As the adoptive parent, you are the legal guardian of that child. As a result, you are responsible for providing care for and supporting the child. It is your decision as to where the child resides so long as the child is a minor (under the age of 18). The biological mother’s rights to that child were terminated at the time of the adoption. Therefore, she has no rights with respect to the child, nor does she have any financial responsibilities. —Cynthia Albin, The Center for Family Law
7) After living with my girlfriend for 10 years, are we married by common law? If so, are we responsible for each other’s financial obligations?
There has been no common law marriage in Missouri since June 1921. This means that if you are living with someone, no matter how long, you have no right to maintenance or what we used to call alimony. You are entitled to share property only if the property is in joint names. If you have a child in common, however, you may seek child support. You are not responsible for each other’s debts and obligations unless your name is also on the debt. If a credit card is in joint names, it is joint responsibility. However, if all the expenses for the house are placed on a credit card in your partner’s name alone, you are not responsible for this. —Alisse Camazine, Paule, Camazine & Blumenthal
8) In your opinion, what are the most common causes of divorce?
The cause of divorce can be confused with the symptoms leading up to it. The symptoms span from the relatively superficial to the nasty and brutish, even life-threatening or sanity-threatening. So although the “cause” is usually coincidental with an individual reaching the end of his tolerance/commitment level, at least with the usual behaviors—infidelity, money problems, parenting derelictions, cooling of ardor—the more difficult problems, like violence, mental illness of the more serious types, and other antisocial behaviors, especially those involving moral turpitude, are less susceptible to correction. Commitment can therefore be less relevant, all the way down to dangerous and definitely inadvisable. The takeaway is, as it usually is, the rule of common sense. The goal should then be to save the saveable and run like hell from the dangerous or pathological. —Sam Hais, Hais, Hais, Goldberger & Lambson
9) After being involved in many complicated family-law cases over the years—and practicing at a family law firm—what have you found is the key for families to endure difficult times?
After practicing family law for 22 years, the key I have found for families to survive the tough times of a divorce case is the fundamental desire not to put the children in the middle of the parents’ conflict and to try to treat the financial aspects of the divorce case as a business negotiation, rather than adopting an emotional “scorched earth” policy.” —Michael Schechter, The Schechter Law Firm
TRUSTS & ESTATES
10) How can my family avoid probate?
There are generally three ways a family member can avoid probate. First, a family member can give away his or her property during life, leaving no assets to probate at death. That alternative is often not viable because the family member will not be able to support himself or herself after the gift is made. In that event, the family member must consider other planning tools.
Another planning tool a family member can use is to title property jointly with one or more other family member, which passes by right of survivorship to the surviving joint owners. No probate is required in that instance. However, joint ownership can create its own problems. Sometimes, the wrong joint owner dies first (e.g., a child predeceases a parent), so when the family member who created the joint property dies, there is no other surviving joint owner. In that event, the property has to be probated, which defeats the purpose of creating the joint property in the first place. Furthermore, when a family member transfers property to himself or herself and another family member as joint owners with right of survivorship, sometimes the other family member has creditor problems, resulting in a portion of the property being paid to the creditor. Consequently, the family member who created the joint property no longer has use of the entire property.
Instead of giving property away or creating joint property with a right of survivorship, a family member should consider a third planning tool: a revocable living trust. A revocable trust provides at least four benefits. First, if the family member who creates a revocable trust for himself or herself becomes disabled, the successor trustee (e.g., a close relative) can take care of the disabled family member by distributing amounts needed for his or her health and maintenance. No probate is needed in that event. Second, upon the family member’s death, the trust property will pass under the trust to or for the benefit of the surviving family members. No probate is needed in that event, either. Third, the trust can be drafted so that property held in trust for the surviving family members will not be subject to their creditors, thereby providing creditor protection for the surviving family members. Fourth, a revocable trust can be drafted to take advantage of many tax benefits that currently exist. In summary, a revocable trust is much more than a probate avoidance device and should be considered for estate-planning purposes because of the benefits it provides over other probate-avoidance alternatives. —Kenneth Kingma, Husch Blackwell
11) What’s the best way to get siblings to agree on a plan for an aging parent’s long-term care? Are there any guidelines for getting started with the process?
Many are finding that they must care for their elderly parents, while also caring for their own family. It is important for these families to have the resources in place before the issues arise. This must begin with the parents themselves. It is never too soon for a parent to address the possibility of incapacity. The key documents include a durable power of attorney for financial matters and a healthcare durable power of attorney.
In these documents, a loved one is appointed to act with respect to financial and medical decisions on behalf of the parent when he or she is unable. A parent should also have an advance directive setting forth his or her wishes concerning life-sustaining procedures. Absent them, a court proceeding is required to appoint a guardian and conservator for an incapacitated parent. Planning ahead allows a family to avoid this expensive and emotionally difficult process. —Jennifer Davis, Greensfelder, Hemker & Gale
12) Are children responsible for their parents’ outstanding debts when they pass away, particularly if the debts are greater than their assets?
Children will not be personally responsible for their parents’ debts unless they agree to become liable on those debts. Rather, when parents’ die, the parents’ estates or revocable trusts will be responsible for any debts incurred by the parents. If those estates and trusts fail to timely pay those debts, the parents’ creditors can often look to the persons who received property from those estates and trusts to satisfy those debts. The law, though, will often limit the time in which the creditors can assert their claims against the persons who received the property. —Kenneth Kingma, Husch Blackwell
13) I am planning to retire soon and would like to create a succession plan for my business. what are some of the most important considerations as I get started?
Should your business be sold to a third party, pass to one or more family members at your death, or should the other owners, the company, or a key employee be required to purchase your interest? Should you be bought out upon retirement or disability? Does a family member have the desire and capability to effectively participate in the business? Can your family afford to remain an owner in the business? If your interest in the business is sold, is the value best determined by appraisal, a formula, or a fixed price? Should the sale be funded through life insurance, cash flow from the business, or otherwise? Who should handle the sale? If you give or sell your business to your children who work there, what are you going to leave to your other children to make things fair? Also, consider the advantages of discussing the succession plan with your family. —Matthew Madsen, Lewis, Rice & Fingersh
14) Can I use an online template while creating a will or healthcare directive?
Yes, you can use an online template for such purposes, but the better question is should you do so? Choosing among the numerous, often-nuanced alternatives available when designing a will or healthcare directive is not the same as choosing between chocolate and vanilla ice cream. Serious judgments must be made regarding such things as: 1. the ages at and circumstances under which a child should receive a trust distribution; 2. who should be designated as the initial and successor trustees and in what order; and 3. in what cases your advance directive should permit or mandate artificially supplied nutrition and hydration to be withheld or withdrawn.
A computer program cannot help you make these kinds of judgments, but a qualified and experienced estate planning lawyer can. On second thought, perhaps I should encourage individuals to draft their own wills, so I can be employed to clean up the messes that will surely ensue down the road! —Charles Redd, Stinson Leonard Street
15) I am considering a planned or deferred gift to a local charity. What are the first steps in figuring out the best type of gift for my situation?
First, clarify your charitable and financial goals. Second, ask your professional advisors (attorney, financial advisor, and accountant) and the charity you seek to benefit to help clarify these goals. Planned gifts blend charitable and financial goals. If the blend is not correct, planned gifts will not work well on either front. It would not make sense, for instance, to establish a charitable remainder trust with $50,000, when a charitable gift annuity would accomplish similar results at a much lower cost. Added questions to consider: To what extent can you afford to make outright gifts now? Is a mix of current giving and testamentary giving more appropriate? What are the best assets to gift? For example, an IRA, 401(k), or similar plan might be appropriate to give, or highly appreciated stocks, each with distinct tax advantages. Good questions and thoughtful answers lead to planned gifts that are charitably and financially win-win. —Matthew Madsen, Lewis, Rice & Fingersh
REAL-ESTATE LAW
16) My new house’s driveway encroaches on a neighbor’s property. How do I get an easement?
Easements can arise by operation of law even without a written agreement, and it is possible that an easement already exists for the driveway depending on a variety of factors (including how long the driveway has existed). However, it is almost always better to have a written easement agreement so that the terms of the easement are clear. A written easement agreement might even be required by your title insurance company or lender. It will need to be signed (and notarized) by the neighbor who actually owns the ground under the driveway, so ultimately that neighbor will have to be approached about the issue. Most often, the buyer will object to the encroachment during the buyer’s title inspection period under the sale contract and require the seller to approach the neighbor about signing an easement agreement. —Joseph Bealmear, Polsinelli
17) We made an offer on a short sale that the sellers quickly accepted. Unfortunately, their bank has not responded for months. Is there a way to expedite the process?
A short sale is where the lending institution agrees to release its deed of trust for less than the seller owes on the loan. Generally, the sale price must equal or exceed the anticipated foreclosure-sale proceeds, and the bank must receive all of the sale proceeds. Many lenders are overwhelmed with short-sale approval requests, but certain government programs may encourage banks to consider and approve short-sale requests. Sellers should work with the lender’s loss mitigation department, so they are dealing with someone with the expertise and authority to consider such requests. Also, many home loans are serviced by someone other than the owner of the loan. For example, the bank services the loan on behalf of an investor, such as Fannie Mae or Freddie Mac. The seller might be able to learn who owns the loan by visiting fanniemae.com or freddiemac.com. Often, the servicer of the loan is simply unable to approve short-sale requests under the terms of its agreement with the investor. —Francis “Butch” Miller, Lathrop & Gage
18) I would like to build a privacy fence that is taller than the municipality stipulates as the maximum fence height. Do cities ever make exceptions to such restrictions? What is the best course of action?
Yes, cities can generally make exceptions to a fence ordinance, but there is no guarantee that they will do so. The first step is to inquire with the person at the city who handles fence permits (the title of this person can vary by city) as to what forms needs to be completed to obtain a “variance” to the ordinance. This person can also usually give you a good idea as to whether the variance is likely to be approved given the location of the property and what has previously been approved in the surrounding area (although it should be noted that this person’s opinion is not binding on the city). —Joseph Bealmear, Polsinelli
INTELLECTUAL-PROPERTY LAW
19) I would like to purchase a domain name, but it appears the current domain owner is cybersquatting and won’t sell. What legal actions can I take?
A common first step is to contact the cyber-squatter, explain the strength of your position, and assess whether an amicable resolution may be reached. One risk with this approach is that the cybersquatter may play a “shell game” with the registration and try to make it difficult for you to successfully proceed with a legal proceeding. This leads to another option, or step—initiating a Uniform Domain-Name Dispute Resolution. If you can establish, among other things, that you own prior rights in a trademark, that the domain name is identical or confusingly similar to the trademark, and that the cybersquatter registered the domain name in bad faith, you may be able to procure the transfer of the domain name registration. Finally, if the registered domain name is being used in a manner that is likely to cause confusion with your trademark (assuming you have priority), you may choose to initiate a lawsuit. Of course, procuring the advice of a competent intellectual property lawyer will assist you in assessing a variety of options and choosing the best course. —David Roodman, Bryan Cave
20) I created a new product on my own time, though in a related field as my employer’s company. Is there a possibility that my employer could claim the rights to it?
Yes. This is a relatively fact-intensive issue that will require a detailed assessment of a variety of factors. Pertinent factors include, by way of example: 1. Do you have an employment and/or invention assignment agreement? 2. What tools or company resources were used, if any? 3. What company business or technical information was used? 4. What state are you working in? 5. Does the state you are in recognize a “shop right”? 6. Did you use any information or knowledge that you gained as a result of your employment? 7. How “related” is the product to your employer’s business? And 8. What are your duties and responsibilities at the company (past and present)? This is an issue that you would be well served to have reviewed by a competent intellectual-property lawyer. —David Roodman, Bryan Cave
EMPLOYMENT LAW
21) What does a prospective employer not have the right to ask me during an interview?
Questions an employer should not ask in an interview may vary with the job or other circumstances; however, one topic that generally should not be discussed before you are offered a job is health. In an interview, an employer should not ask questions about your medical history, your family’s medical history, your current health condition (including whether you are pregnant or plan to be pregnant), and whether you have filed workers’ compensation claims in the past. —Sally Barker, Schuchat, Cook & Werner
MEDICAL MALPRACTICE & PERSONAL INJURY
22) Is my doctor’s failure to diagnose a disease considered malpractice?
Every case is disease-, physician-, and patient-specific. A cause of action for “malpractice” requires three elements: liability, causation, and damages. To determine liability, you must prove that the doctor fell below the standard of care in failing to make the diagnosis. It is essentially a question of what did he/she know, when was it known, and what did the delay cause that would not have been caused otherwise? Other common questions in such a case would include: 1. Is the disease itself one that is difficult to diagnose or one that is fairly straightforward in its presentation? The easier it is to spot and diagnose, the more likely the physician fell below the standard of care in failing to do so. 2. Did the patient present with “classic” symptoms of the disease or at least with symptoms that with some testing would have revealed the culprit? 3. Did the patient return and/or communicate any new or escalating signs of deterioration? There are some diseases that are easier to differentiate from other potential causes as they progress. 4. With the information provided, what were the possible differential diagnoses? The physician may not immediately know what is causing the symptoms but should be able to at least narrow down the causes to a fairly short list of possibilities. From that list, the doctor should eliminate through available testing the most immediate and life-threatening first and then proceed down the list. Often, this is where the breakdown occurs. A test gets done that would help rule in or out a disease but the test goes unreported, is performed inadequately, or is read incorrectly, resulting in an erroneous diagnosis. —Gretchen Myers, The Law Offices of Gretchen Myers
23) If I stop to help a stranger in a car accident, could I be held liable?
Like many legal questions, the answer is “It depends.” Missouri has a “Good Samaritan Law” that protects licensed medical providers, or people who have been formally trained in first aid, from civil liability in the event they stop and render emergency care at the scene of an accident. They can still be held liable for an injured person’s injuries, however, if they are deliberately or extremely careless in providing that care. In Illinois, licensed medical providers, trained first-aid providers, first responders, and even veterinarians enjoy similar protections.
If you do not fall under one of these categories, however, and you choose to render emergency aid at the scene of an accident, you should be aware that there is not an automatic or absolute legal protection for your actions if those actions—however well-intentioned—create or cause an independent or new injury. —Amanda Mueller, HeplerBroom
DWI & TRAFFIC LAW
24) In Missouri, is it typically considered reasonable suspicion for a police officer to pull over a sober driver when the passengers have open containers?
Although socially acceptable to many, my general advice is not to drive with an open container in your vehicle. The short answer is that it is not against state law for passengers in a vehicle to have open containers but it is illegal for the driver to have an open container. You could be stopped for violating county or municipal ordinances against open containers that are stricter than the state law.
The state of Missouri has no law against passengers in a vehicle with open containers of alcohol. The driver cannot have an open container. The state charge is only an infraction and is not something that would show up on your driving record. Many counties and municipalities have their own ordinances outlawing open containers of alcohol in a vehicle for both drivers and passengers. If a police officer in one of these counties or municipalities sees an open container in plain sight, the officer could make a lawful stop to investigate. If you are on a state highway or are driving in a locale that does not have an open container ordinance, it would be unlawful for a law enforcement officer to stop you for this reason alone.
I caution you that it is illegal in Missouri for any driver to have possession of an open container of alcohol and/or any minor to be in possession of alcohol (the container need not be open for a minor). If you are stopped for an open container violation and charged with a crime, contact a criminal defense attorney to review your case. —John Schleiffarth, JCS Law
25) I recently received a red-light camera ticket. Should I pay it?
There are currently several challenges in the area of red light cameras in the Missouri Court of Appeals. At this time, I would retain an attorney and challenge the ticket. —Travis Noble Jr., Sindel, Sindel & Noble
26) If I’m stopped while driving after having one or two drinks, should I agree to a breathalyzer test or a field sobriety test? What’s the best course of action?
If stopped by the police after one or two drinks, you should comply with the officer’s request. Your blood alcohol should not be above the legal limit after one or two standard drinks. Just keep in mind that one drink means a shot of alcohol; two shots in one drink is equivalent to two drinks. If you believe you are above the legal limit and are requested to take a blood or breath test, you have the right to request to speak with an attorney. Request and obtain legal advice based on the specific facts of your case. —Travis Noble Jr., Sindel, Sindel & Noble
Disclaimer: All of the information contained herein came from practicing attorneys. However, nothing within this article is intended to be legal advice or the practice of law. Legal advice may differ due to the specific circumstances of each case. Only a licensed attorney can provide appropriate legal advice for your specific situation. Additionally, the law can change and may vary depending on the jurisdiction. Accordingly, the information listed may not be applicable to the facts of your case and the status of the law at that time and in your jurisdiction. When confronted with a legal matter, you should always consult a licensed lawyer who focuses on the area of law at issue.
