Tag: Family lawyers blog

Categories
Claims Family Law

Family Member a Victim of Fraud Against the Government? How to Fight Back

Fraud

(US law) Criminal acts commonly result in collateral damage. When the criminal act results in the taking of a human life, the victim’s family may be left with a lost source of income and an emotional toll that can never be overcome. In such cases, members of the immediate family may file a civil action to recover damages. Fraud against the government is no exception, although in such cases, family members have an additional option.

Suing for Wrongful Death

Wrongful death lawsuits entitle certain people, usually immediate family members, executors of an estate, or other appointed parties, to sue on behalf of a person who was killed as the result of another person’s wrongful act. A wrongful act is an illegal or tortious act. In the context of an unnecessary medical procedure, the wrongful act may be fraud; in the context of a procedure that the patient never consented to, the wrongful act may be battery.

The only difference between a person being killed by a drunk driver and by an ongoing Medicare fraud is the chain of events that led to the death and the complexity of the fact pattern. The underlying concept is the same: a wrongful act caused a death and the persons responsible are liable for damages. The law does not require that the wrongful act be directed at the decedent. It is sufficient that a wrongful act occurred and that the decedent died as a result thereof.

Suing Under the False Claims Act

If the death resulted from fraud against the government, victims have another avenue of recourse. 31 U.S.C. §§ 3729-3733, more commonly known as the False Claims Act of 1863, prohibits a long list of conduct committed in furtherance of defrauding the federal government. It is unlawful, among other things, to present fraudulent claims for payment or make false statements in connection with any claims made to the federal government. Billing for unnecessary procedures or defrauding the government in sales of equipment that is claimed to meet certain specifications but does not meet those specifications is a federal crime.

The False Claims Act of 1963 creates a private right of action; any citizen can sue the offending parties for the unlawful conduct. Parties may initiate a claim under the False Claims Act by filing a qui tam action and serving it upon the U.S. Attorney General as well as the local U.S. Attorney. The government has 60 days to investigate the claim. If the government decides to pursue the claim, the plaintiff’s involvement ends and the government prosecutes the case. If the government declines to pursue the case, the plaintiff may still pursue the case privately on behalf of the government.

This opens up another avenue of recovery for victims and their families. Wrongful death lawsuits normally limit damages to expected future income; proving such damages can be difficult and a large damage award may be reduced upon appeal due to the speculative nature of such awards. In contrast, a successful qui tam action will result in a percentage of the recovery being awarded to the original plaintiff. The False Claims Act allows for recovery of treble damages and disgorgement of profits; as a result, the awards from such claims can be high. If the government takes over the case, the plaintiff may receive 15 percent of the settlement or award; if the plaintiff litigates the matter and obtains a settlement or judgment, the plaintiff may be entitled to as much as 30 percent of the damages.

Deterring future conduct is as important as obtaining compensation for a lost friend or family member. If your family member underwent unnecessary procedures or was victimized by defective products as a result of ongoing fraud against the federal government, it is likely that your family member was not the only victim. If nothing is done, your family member may not be the last. Seek legal counsel as soon as possible; consult a tort lawyer for a wrongful death claim and a whistleblower attorney to discuss the feasibility of pursuing a claim under the False Claims Act.

Valerie Stout Cyrus is a freelance writer who frequently researches claims of fraud against the government. She has found that the attorneys at the whistleblower law firm of Goldberg Kohn Ltd, at www.whistleblowersattorneys.com, are experienced in securing judgments against entities that commit fraud against the government.

Photo credit: http://www.flickr.com/photos/20692718@N00/4038317140/

Categories
Divorce Law Family Law

5 Things to Consider When Choosing a Divorce Attorney

(US family/divorce law & general tips) Most of us would agree that “things” have gone wrong long before you realize you must look for and pick a divorce attorney. Whatever is wrong with your marriage did not sneak up on you – it has been in the works for years. But you probably did not get much warning before the emergency alarm bells started to ring in your head. You may have discovered your spouse was cheating on you. Or one of you may have moved out of the marital home.  The most clear-cut emergency alarm bell may have taken the form of a process server appearing at your door.

Whatever the case, you fell into a situation where you had to pick a divorce attorney really fast.  That means you must make one of the most expensive, critical, and life-changing purchases in your entire life, and you must do it really fast. That is not the best of combinations to face. But if you follow this quick list you will find the decision a bit easier:

1.  You have 20 days to respond to the petition if you have been served. 

This timeline could vary in different states. Normally the time to respond is on the court summons.  What many people do not initially know is that a response can be put together and filed by an attorney in one day. Most responses are not a big deal. They usually consist of boilerplate provisions and are easy to bang out. So that means you have more time to pick an attorney than you think.  Don’t rush out and hire an attorney in one day. This is way too important a decision to make in a dire rush.

2. Do not call around for pricing and make a decision solely based on price.

There is an old saying: “statistics don’t lie, but liars use statistics.”  For this discussion we can modify that saying: “prices don’t lie, but liars use prices.” Understanding divorce attorney prices can be very difficult because most of the tactics regarding pricing will always be invisible. For example, you may find out the attorney that bills $100/hour is more expensive than the attorney with a billing rate of $300/hour. It all comes down to billing practices in that particular law office. One attorney might take four hours to draft your initial documents where another attorney takes one hour.  Another example is where attorneys quote their initial retainer. An unusually low retainer might be “burned up” in the first two weeks of the case.  A good attorney quotes a retainer that will cover a significant part of the case. That retainer should have some chance of covering your case through the end of mediation.  Most cases end shortly after mediation. So a realistic retainer should be designed to possibly reach that goal.

3. Carefully examine the appearance of the attorney’s office.

Not all attorneys have an office in Trump Towers. But any office should be reasonably neat and organized in appearance. Are there stacks of papers all over the office? Does the office equipment appear to be held together with duct tape? Does the attorney have personal pictures or other personal items in the office that show a long-term presence?   A disorganized office usually means a disorganized case.  Take the hint when the attorney’s office is a complete disaster.

4. Is your prospective attorney willing to give real answers to real questions in the first meeting?

A good attorney never uses mystery and fact spinning to get your business. They are proud to show off their expertise. Giving good answers to potential clients is a way of showing there is more expertise available in the same person. Try not to waste the attorney’s time – but you should have some expectation of good answers for your initial questions. Attorneys that do nothing but sell themselves are a red flag.

5. Did the attorney promise specific results?

If they did promise results, this is a big red flag.  Most state Bar associations prohibit promises of specific results. And the fact is that judges make decisions, not attorneys.  Besides, wouldn’t it be silly for the attorneys on both sides to promise completely opposite results? How could they ever both be right?  A good attorney will tell you the chances of success and then explain several possible scenarios based on your individual facts.

A good attorney will tell it like it is. Their pricing is transparent, ethical, and oriented toward the benefit of the client. They will show you their best in the initial interview and then continue to prove they are the correct pick by conducting an organized, cost-efficient case. Never make your decision on a moment’s notice. For a life-changing event, you must carefully choose who will best help you achieve your goals.  Make sure you follow these easy steps and you will soon be on your way to a new life and continued happiness.

Categories
Child Custody Family Law

Hazardous Playgrounds: Can My Ex Take My Child There?

Playground Hazardous Playgrounds: Can My Ex Take My Child There?

In any marriage, parents will have different ideas about properly raising children. These disputes regarding parenting styles continue after couples divorce. Some parents will be more permissive to the point of ignoring a hazardous environment, such as an old and battered playground. When one parent is irresponsible with the child’s safety, the other parent should be motivated to take action.

Criminal Penalties

Criminal sanctions for taking a child to a playground are usually not possible. Child endangerment statutes vary between jurisdictions, but generally, there has to be intent to place the child into a dangerous situation. California law requires criminal negligence, which is a much higher standard than ordinary negligence. Taking a child to a playground that has peeling paint or the occasional sharp edge would probably not meet this standard.

If the parent is taking the child along to meet with drug dealers at the local playground, discussing the situation with the local police may be prudent. In practice, getting the police to file charges and getting the prosecutor to pursue the case can be difficult.

Custody Dispute

Divorcing parents have a high probability of being involved in a dispute over joint custody. In most states, custody decisions are made by the courts. Judges can modify custody arrangements at their discretion in most jurisdictions. While a parent may not be criminally liable for bringing a child to a hazardous playground, a judge can set conditions on the parent’s custody.

Endangering the child by taking him or her to a hazardous location may not constitute criminal liability, but it can sway a judge. The court can either order the parent to not bring the child to that location or modify the parent’s right to custody. Parents often raise trivial issues during custody disputes, so the judge will want proof that the playground is actually dangerous. Showing evidence of blatant criminal activity, drug usage, and other serious safety problems can sway the judge.

Liability

In the event of an injury, our Charleston personal injury attorney adviser points out that a property owner who fails to maintain the property may be liable. If the property had hidden defects, such as rusted or sharp equipment, the property owner must either warn guests or repair the defect. Failing to do so constitutes a breach of the property owner’s duty of care, and may make the property owner liable for negligence. A playground is likely to be in a public park or school. Thus, the city would be liable for failing to maintain its facilities.

Filing a lawsuit against the spouse for the same cause of action is also possible. The guardian has a duty to care for the child, and taking the child to a hazardous location may constitute a breach of that duty. If the plaintiff can show that the playground was actually dangerous, then the parent may sue on behalf of the child as his or her legal guardian. Lawsuits are expensive. Additionally, lawsuits will cement an adversarial relationship between the parties, which can have detrimental effects on the way that the child views one or both parents. Thus, parents should view a lawsuit as a last result.

Divorced parents will often disagree with one another. Parents who have disputes over where the adult should take the child should first discuss the issue with the other parent. Failing that, modifying the custody agreement may be possible. Parents do not have the right to endanger their children simply because they have custody at the moment.

Ann Bailey is a parent and contributor for research about playground safety. She adds this report highlighting work that can be done by lawyers like the Charleston personal injury attorney firm of Howell and Christmas, a U.S. group offering clients help and protection in litigation and compensation for instances of child injury or death.

 

Categories
Child Custody

Child Support – How is it Calculated? (A Helpful U.S. Perspective)

The dissolution of a marriage, also called a divorce, is never an easy thing to deal with. It becomes increasingly more difficult and heart breaking when there are kids involved. Once you’ve decided that divorce is the only option, you’ll need to start the process if legally ending the marriage. As a part of this process, one of the parents will likely get custody of any minor children. It’s also safe to assume that the other partner will probably be on the hook for child support until a certain agreed upon time in the future, most likely when the kids turn 18 years old. There are many good child support calculators available online, find one geared towards the state that you’ll be filing for divorce in.

According to a top Arizona divorce attorney there are a few key factors in determining how Child Support is calculated, they are:

  • Family Income – Most child support guidelines take into account, the income from both parents. Some states base their formula on gross income, while others chose to use net income as a guide.
  • Child Support Deductions – In a situation where one parent is already paying child support from a previous marriage or situation, that may qualify to be deducted from their income. In most cases, there are 2 qualifiers for this deduction, they are: 1) the previous child support must be court ordered, and 2) the parent must be making the payments.
  • Child Care & Healthcare Expenses – Most states will consider child care expenses that are incurred while the parents are working. The federal government and the states have set-up child care deductions and other benefits. Healthcare can be a major sticking point in child support because it is of utmost importance to determine who will pay for the child’s health insurance. Typically, the amount spent on insurance is added to the child support order and then credited to the parent who pays for it.
  • Custody and Visitation – Many child support guidelines attempt to account for the time each parent has the child or children. The more time that the children spend with the non-custodial parent, the higher the expenses that parent incurs to support the kids. In many situations where there is shared custody, the award amount to the custodial parent will be less than if there was sole custody.

These are just a few of the things that go into calculating child support. You should always consult with a Family Law Specialist when you have decided that divorce is the only option. As a parent, you have rights and those need to be accounted for when the division or property and custody occurs. You should also research the laws or guidelines in your state as they relate to child support matters.

This post is from The Cantor Law Group a Family Law firm based in Phoenix, AZ.

Categories
Divorce Law Family Law Separation Law

How to Divorce: The Divorce Process Explained

Below is a guest blawg post on how to divorce, explaining the divorce process. Please note that the terms are relevant to the laws of England and Wales. If you’d like to submit a guest family law blog post, please get in touch through the contact form.

Deciding to pursue a divorce can be a daunting challenge, fraught with a range of perils. There are a lot of things to consider, such how the divorce process works, what you’re entitled to and who gets the rights to any children you may have.

In order to get a divorce, you will have to undertake a range of steps in order to come to an agreement with your partner. These include your reasons for divorce, which of you will take care of the children and how you’ll split up your money, property and possessions.

One of the first ports when considering a divorce is hiring legal help. You may consider hiring divorce solicitors in Kent, or wherever you are based, who will act on your behalf in divorce proceedings.

The good news is that if you and your spouse agree on these points then the divorce process can be completed in as quickly as 4 months. If not, then divorce proceedings can drag on for much longer.

There are four formal stages to divorce in the UK:

  1. Establishing the grounds for divorce
  2. Filing a divorce petition
  3. Applying for ‘decree nisi’
  4. Getting a decree absolute

You can only divorce under UK law if your marriage has ‘irretrievably’ broken down and you have been married for a least a year. You will be required to prove this to the court by relaying the ‘facts’ of why your marriage has ended. These facts can include reasons such as adultery, unreasonable behaviour and desertion.

To start divorce proceedings you will need to fill out three copies of a D8 form, also known as a ‘divorce petition’. You will also have to pay a fee of £340, but you could be entitled to a discount if you have a low income or are on benefits. Once the forms are completed, you will need to send them to the court.

A notice of divorce will then eventually be served to your husband/wife. Your partner can then choose to either accept or argue against the divorce. If your spouse chooses to fight against the divorce then proceedings can be delayed significantly. If no agreement can be made then this is where divorce solicitors will step in to negotiate with your partner to try to reach an agreement.

Once you both agree on the divorce you can then apply for a ‘decree nisi’ – a document from the court which says that it can’t see any reason why you can’t divorce. A judge will consider whether there is enough evidence to allow the divorce to proceed and review all your paperwork, such as any arrangements you’re proposing for your children.

If the judge gives permission for the divorce to continue then you are able to apply for a ‘decree absolute’ 6 weeks after you have been issued with your decree nisi. Once you have the decree absolute, you are officially divorced.