FAMILY LAW
In the specialty of family law and divorce, one misperception seems to be associated with which spouse desires to be divorced. Many parties believe that the party desiring the divorce should somehow suffer some legal or financial consequences due to the mere fact that he or she is the one who has initiated the idea of divorce and is pursuing a divorce. This is not accurate. While negative conduct of a party can be considered, merely choosing to seek a divorce—standing alone—is not some conduct which is considered in the financial and other terms of a divorce.
Another often misunderstood element of family law is the idea of a “no-fault” divorce. The concept of “no-fault” refers only to the threshold granting (or not granting) of a dissolution of the marriage. Missouri’s statutory scheme is referred to as a “modified no-fault” arrangement. In Missouri, a party who denies that his or her marriage should be dissolved can thereby compel the other party to prove the grounds for the divorce in order for the court to have the power to grant it. But, irrespective of this threshold inquiry about granting or not granting a dissolution of the marriage, the court can consider “fault” (or conduct) of the parties when deciding how to fairly divide the marital property and what orders to make regarding spousal support. —James Carmody, Carmody MacDonald
The biggest misconceptions held by the public are that Missouri is a no-fault state and that marital assets are automatically divided evenly. Misconduct is relevant is Missouri for the division of assets, amount of maintenance, and custody. Missouri is an equitable distribution state and not a community property state. Marital assets are divided by the court based on statutory factors. —Ted Schechter, The Schechter Law Firm
The most common [misconception that] I have seen in the field of divorce law is that the divorce lawyers who are the loudest and pushiest get the most attention and sometimes, the best results, when, in reality, just the opposite is true. The best-prepared lawyers don’t have to be loudmouths. They don’t have to be sarcastic, and they don’t have to slander anyone. They are the best because they are always prepared. They work the hardest. —Sam Hais, Hais, Hais & Goldberger
One of the most common misconceptions that my clients have about divorce is that the judge has to be the one to determine what happens with respect to the issues involved, including child custody and support, maintenance, and property and debt division. The reality is that the parties may reach agreements on these issues without court involvement. The parties may do so while working with a mediator, who is a neutral third party who helps them to work through the resolution of these issues. They may utilize the collaborative process, which involves both parties and their attorneys working together to share information and resolve issues between them as it best benefits their family. Their settlement may be reached simply cooperatively, with both parties and their attorneys working together to reach a resolution. In any of these processes, the parties are the ones that make the decisions that are in theirs and their children’s best interests, rather than a judge who meets them for the first time at trial. —Cynthia Albin, The Center for Family Law
EMPLOYMENT LAW
Many people incorrectly believe that an employer cannot fire an employee for an unfair reason. Unfortunately, there is no legal recourse for simply an unfair discharge, unless you are protected by a union labor agreement or individual contract of employment. It is unlawful to fire someone for his or her race, sex, religion, disability or medical history, age (over 40), or national origin. Generally, however, without the protection of a union or individual contract, termination of an “at will” (meaning employment without the protection of a contract) employee for an unfair, stupid, or even incorrect reason is not unlawful. —Sally Barker, Schuchat, Cook & Werner
INTELLECTUAL-PROPERTY LAW
There a wide variety of myths and misperceptions regarding intellectual-property rights. Several extremely common myths—all which are not true—include: 1. If you find it on the Internet, you can use it as it is in the public domain; 2. Inventions are not patentable unless you first actually “make” the product; 3. A patent owner automatically has the right to practice the invention claimed in his/her patent; 4. You can copy anything and not violate a copyright if you only use 10 percent or less of the original material; and 5. The corollary, if you change something by 10 percent or more, it cannot infringe. —David Roodman, Bryan Cave
TRUSTS & ESTATES
The most widely held misperception in the trusts and estates field is that some folks don’t need a will. Virtually everyone 1. has some money or tangibles or other assets to dispose of; 2. has a minor child for whom a guardian may need to be appointed; or 3. wants to designate who shall have authority to wind up his or her affairs. Having assets held jointly does not obviate the need for a will because the person with whom you own assets jointly could predecease you and you could die shortly thereafter, or you could die simultaneously with that person, with no will in place. If you die without a will, the state has written a very substandard one for you. It is called the intestate succession statute. —Charles Redd, Stinson Leonard Street
If you are incapacitated, do not assume that your spouse can automatically make all decisions on your behalf. This is not true. Without a durable power of attorney and healthcare declaration, your family could find themselves saddled with expensive and time consuming legal proceedings at the worst moment. Similarly, do not assume that if your assets will automatically pass to your spouse at death. Some assets will (such as jointly owned assets or life insurance naming the spouse as a beneficiary), but your spouse will not automatically get everything. Suppose you die intestate (without an estate plan), survived by a spouse and a minor child. In that case, your spouse will receive one half of the probate assets (plus certain statutory allowances), and the remaining probate assets will pass to your minor child, subject to a court-supervised conservatorship (which can be expensive and time-consuming) that ends on the child’s 18th birthday. Avoid this mess with an estate plan. —Matthew Madsen, Lewis, Rice & Fingersh
PERSONAL INJURY & MEDICAL MALPRACTICE
[One common misconception is] that doctors and hospitals are sued too much. Consider this: In 1999, the Institute of Medicine reported that 98,000 people die each year due to mistakes in hospitals. In 2010, the Office of Inspector General for Health and Human Services said the number was up to 180,000 patients in Medicare alone. A study in the Journal of Patient Safety says that in 2014, there will be 210,000 to 440,000 patients who suffer some preventable harm that causes or contributes to their death. That makes medical errors the third leading cause of death in America, only behind heart disease and cancer. These statistics do not include preventable medical errors that cause injuries, such as brain damage or loss of limbs, etc. that fall short of death. Colorado research showed that in that state, only 21.5 percent of those patients whose operations were erroneously performed on the wrong site sued. People generally file because they need answers and are left in the dark. The Kaiser Family Foundation found that 70 percent of medical errors are never disclosed to the patient. In St. Louis, we are lucky to have some of the finest doctors in the country, not all of them are part of these statistics. Unfortunately, a small percentage of physicians continue to make life-altering errors. Our system of justice helps to hold them accountable and additionally provides guidance to the physician so that hopefully they do not commit the same error on more patients. It is the only thing we have that we, as a community, can do to make a difference. We do not have an epidemic of lawsuits; we have an epidemic of substandard healthcare. —Gretchen Myers, The Law Offices of Gretchen Myers
[One common misconception is] that people are “sue happy." Nothing could be further from the truth. Every client I meet starts by saying that this is the last thing they wanted to do, but…the insurance company won’t pay, the defendant won’t take responsibility, or they can’t find out what really happened from the hospital. Personal injury and medical malpractice lawsuits have been steadily decreasing. According to the National Center of State Courts, only 4.4 percent of all civil suits filed are personal injury cases, and of that number, only 2.8 percent involve medical negligence. What is on the rise is corporations suing other corporations, domestic/family disputes, and criminal cases. —Gretchen Myers, The Law Offices of Gretchen Myers
ELDER LAW
Since 8,000 people turn 65 every day in the U.S., the area of elder law will become of increasing importance to people turning 65 and their adult children. So what is elder law? In Missouri, these laws pertain to people 60 years and older. They are designed to protect vulnerable individuals from financial exploitation, abuse, and neglect. The most common myths and misconceptions are: 1. Your spouse does not automatically have authority to make health and financial decisions for you; 2. A will does not keep your assets out of probate; 3. Medicare does not pay for more than 100 days of nursing home care; 4. You do not need to spend all of your money to qualify for Medicaid nursing home benefits. For answers to these and other questions, please seek the advice of an elder-law attorney. —Debra Schuster, Debra K. Schuster, P.C.
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.
