Written by Fred Anderson
When drafting legal documents, it is critically important to use correct punctuation, accurate grammar, and proper phrasing. A good example of this rule is a Maine case about overtime pay that hinged on a missing comma. In O’Connor v. Oakhurst Dairy, US Court of Appeals (1st Circuit May, 13, 2017), delivery drivers sued their employers over whether the drivers qualified for overtime pay. The Court found in the drivers’ favor, holding that the employers must pay overtime because certain clauses of Maine’s overtime laws were grammatically ambiguous due to the absence of a comma.
The serial comma, also known as the Oxford comma, is used just before the coordinating conjunction (“and” or “or,” for example) when three or more terms are listed. You will see a serial comma in the first sentence of this article: it’s the comma after “grammar.” Such a serial comma was missing in the language of the Maine law at issue in the O’Connor case. According to that law, the following types of activities were among those that do not qualify for overtime pay:
The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:
1) Agricultural produce;
2) Meat and fish products; and
3) Perishable foods.
The case rested on the comma-less space between the words “shipment” and “or.” Is packing (for shipment or distribution) a single activity that is exempt from overtime pay? Or are packaging and distribution two different activities, both of which are exempt?
If lawmakers had used a serial comma, it would have been clear that distribution was an overtime-exempt activity on its own. But without the comma, the court held that the law was ambiguous as to whether distribution is a separate activity or whether the whole last clause—“packing for shipment or distribution”—is one activity, meaning only the people who pack the dairy products are exempt. The drivers did distribute, but did not pack, the perishable food.
Given the amount of information available on the web, it is tempting to cut corners by downloading a legal form from the web. Using a do-it-yourself legal website to maneuver legal needs may save time and money in the moment but there is a very good chance that it will cause problems and will end up far more expensive in long run. The smallest omission can invalidate a document, much like the example from the O’Connor case. Knowing what to look for is crucial to avoid penalties and to ensure the language and applicable laws are up to date and applicable to your state of resident. Hiring a lawyer is key to evade a costly mess.
The lawyers here at Shindler, Anderson, Goplerud & Weese draft a lot of documents. We know how to draft and punctuate your documents. Grammar is not a mystery to us, and we will not misplace your commas.
Written by Katie Gallo
Any of these means of electronic communication can, and frequently are, used as evidence in court during a dissolution of marriage or modification proceeding. When going through a divorce or modification action, expect that your electronic communication and social media will be scrutinized.
Be cognizant of the potential risks to your case before your next Facebook post or text message. Consider the following:
- Always assume your communication will eventually be seen by the Court. Only include information that is necessary and be sure your language and tone are such that you would not be concerned if it were seen by a judge.
- Be calm and collected before sending any communication. Never send a text message, email, Facebook message or post in a moment of anger. Your hostility will be evident and once it’s out there, it can’t be taken back.
- Rough drafts can be useful. Start with a draft of what you would like to communicate to your spouse or ex-spouse. Before you send it, review it closely to be sure it relates only to necessary communication, conveys your message in a concise and straightforward manner, your demeanor is appropriate, and your message cannot be misinterpreted.
In addition, remember that your electronic communications and social media activity can be used in a variety of ways. It can be used as evidence of your state of mind, to undermine your credibility, to demonstrate your character or habits, or to show where you were at a particular date and time – amongst many other uses.
Remember, once you hit post or send, there is no going back – your message is permanently backed up and accessible to the opposition.
Written by Fred Anderson
The following is not our firm’s case, but is typical of ones we become involved in.
Lake Forest Property Owners Association v. Regina Gebauer and Taylor (Ala. App Court) The question the Court was asked to answer was whether a pig was livestock or a pet? The Association sued Gebauer claiming a 135 pound Vietnamese potbellied pig violated the neighborhood’s restrictions on livestock and constituted a nuisance or inconvenience to neighbors. The lower court ruled Taylor (the pig) constituted a nuisance and was livestock and should be banned. The appellate court found Taylor didn’t smell, didn’t wander outside the yard and didn’t make noise (except for an oink oink here and an oink oink there). Taylor’s expert (a veterinarian) testified that potbellied pigs do not fit veterinarians definition of livestock animals raised for consumption. The Court found Taylor was not livestock and not a nuisance.
Results of the case:
(1) This is one little pig that didn’t go to market; and
(2) Taylor’s attorney can now claim he truly brought home the bacon.
Association Restrictive Covenants bind the members of the Association. Covenants are necessary for the protection of the members and their property setting up standards and rules for the community. When questions arise, as they often do, about the interpretation or meaning of the Association covenants, courts generally rely on contract law to interpret the Covenants. Litigation, as is illustrated above, often becomes necessary to find out what the meaning is and what to do.
As condo and townhouse developments become more popular, clients and associations are calling attorneys with more questions and issues caused by Covenants. If agreement cannot be reached to resolve the issue, litigation or arbitration is used to get a resolution.
It is always good advice to review the Covenants prior to purchasing a condo or townhouse because there may be restrictions that you cannot live with, i.e. no fence allowed when you need or want a fence in your yard, not allowed to plant certain plants or vegetation, not allowed to conduct a business, or even not allowed to have the pet you want. Our firm invites questions about these and your issues. We know how frustrating it can be when you buy the place of your dreams and you can’t have “this little Piggy.”
Our firm represents both Associations and Members of Associations. Sometimes controversies arise between them concerning the Association Restrictive Covenants. Our firm handles such controversies.
Written by Michael P. Mallaney
You have just gone through the misery of an emotionally draining divorce. The State Court by virtue of Decree after trial or by agreement has established the rights and liabilities related to marital debt — the unpaid credit cards, car loans, first and second mortgages on the house that neither you nor your ex-spouse can now afford as the family is no longer a two-income family. The dissolution decree entered by the State Court Judge ordered your former spouse to hold you harmless on certain joint credit card debt, to pay the car loan, and to be responsible for the debt on the home which your former spouse is to refinance. The Court further directs that your former spouse pay you a specified sum of money by a certain date as part of the property settlement provisions of the decree. Your ex-spouse is also to pay alimony and child support. You believe you are done and that this matter is concluded and over, and you can move on with your life. Not so fast!
Your ex-spouse drops a bombshell on you. He or she cannot make the credit card payments as directed, and cannot refinance the house and pay the property settlement. Your former spouse further advises that he or she is going to file for bankruptcy. You then receive in the mail two weeks later a Notice of Bankruptcy Filing from the Bankruptcy Court indicating the fact that your former spouse has filed bankruptcy. What should you do?
You should first contact your divorce attorney and provide him or her a copy of the Bankruptcy Notice. This is very important as you are now in a different Court (Federal Court). Bankruptcy Court and Divorce Court are competing systems with competing and confusing rules. There are deadlines for filing claims and contesting your former spouse’s bankruptcy if warranted. The deadlines are short when compared to the deadlines you faced in the State Court dissolution proceeding requiring the bankruptcy of your former spouse be given immediate attention. Your divorce attorney, who probably knows nothing about bankruptcy, will refer you to a bankruptcy attorney.
When you meet with your bankruptcy attorney for the first time you will probably ask him and/or her whether or not the credit card debt holders and the mortgage company can pursue you when the dissolution Court has already ordered your ex-spouse to pay these debts. Your bankruptcy attorney will tell you that divorce settlements and divorce decrees do not bind creditors who can collect the debt from either of you. If your ex-spouse does not pay his or her share of the debt the creditor can come after you for payment. Your former spouse’s bankruptcy could very well send you into bankruptcy yourself. Your bankruptcy attorney will tell you that there are several kinds of bankruptcy. The most commonly known form is a Chapter 7 and the other is a Chapter 13 bankruptcy. The procedure and your rights and/or liabilities are different depending on what Chapter of bankruptcy is filed. Your bankruptcy attorney will tell you the good news that in a Chapter 7 bankruptcy proceeding alimony, child support and property settlement remain non-dischargeable. This means your former spouse will have to honor the Dissolution Decree and pay the support and/or property settlement. The non-dischargeability of these debts is automatic and no court order is needed from the Bankruptcy Court.
Chapter 13 bankruptcy is a different story. It’s more misery. Alimony and child support remain non-dischargeable which your former spouse will have to pay; however, property settlement may be modified and discharged and/or forgiven by the Bankruptcy Court which means your former spouse may not have to pay all or some of the property settlement. Every case is different and determined on the facts and the law. Chapter 13 issues will be decided by the Bankruptcy Court not the State Court in which you obtained your Dissolution Decree.
While the divorce process brings its own set of miseries, you may not be out of the woods if bankruptcy knocks on the door. Be sure to consult with an experienced divorce attorney in hopes of avoiding the misery that an ex-spouse may bring with the bankruptcy down the road. Sometimes this misery is inevitable. Be sure you have a trustworthy bankruptcy attorney to wade through the murky waters of misery.
Written by Steve Shindler
Clients will often inform us that they believe their spouse is involved in an extramarital relationship. They often follow up by saying, “Does it even matter? I heard that Iowa is a ‘no fault’ state.” Our answer is – when it comes to just being granted the divorce, Iowa is a no-fault state. But in every other aspect of the divorce, fault does matter.
While it’s true that you don’t have to prove who’s at fault to get a divorce in Iowa, the amount of time a spent away from the children and what your spouse does with this time are relevant matters to the court. It could determine which parent receives primary care of the children.
To prove what a spouse has been doing at certain places at specific times, a private investigator should be hired to conduct surveillance. The results of the surveillance can be extremely valuable for the court to consider in determining which party makes the children a priority and which party does not.
If the offending spouse then denies the affair and has a “casual relationship” with the truth, it’s all the more important for the court to have direct proof of the lie and documented time away from the children. It doesn’t matter what you claim, it matters what you can prove.
When someone gets hurt as the result of someone else’s negligence, it’s generally a requirement to litigate his or her claim to the extent that it exceeds the Iowa District Court small-claims limit of $5,000.00. This is typically an extensive, time-consuming process that can take up to a year and a half. It can also involve considerable expenses, those of which are most commonly associated with compensating the injured person’s doctor to testify about his or her injuries at trial.
As of January 1, 2015, the Iowa Supreme Court developed new, relaxed procedural requirements for injured persons with modest claims. This process is known as the “fast track” civil litigation process, and it involves various trade-offs that can, in certain circumstances, work to the injured person’s benefit. Among other things, the pre-trial process is abbreviated, with each side limited to 10 written questions, 10 document requests, and 3 depositions. The trial process is likewise simplified. Trial must take place within one year and is limited in time to two days. Additionally, the injured person’s treating physician is permitted to “testify” at trial by way of a written statement, which reduces litigation expenses significantly. In exchange, the damages the injured person is allowed to recover are limited to $75,000.00.
Written by: Brian O. Marty
Written by Ryan E. Weese
In the practice of family law, coming to a final resolution represents only part of the battle. So many times clients will ask, “How do I make sure my ex follows through with our agreement?”, “My ex hasn’t followed any of our agreements so far, he’s only going to follow a court order.”, and “How can I ensure she lets me have the kids for my court ordered time with the children?”.
These clients all crave certainty and finality to their dispute. No attorney can guarantee 100% compliance with a court order, but we do have remedies for non-compliance. That remedy comes in the form of “contempt” — more legally referred to as an Application for Order for Rule to Show Cause.
Let’s take a custody case as an example. Mom and Dad enter into a final stipulation setting forth the custody, visitation and support provisions regarding their children. The stipulation becomes a court order by way of a final decree. We now have the law of the case established. But, one of the parties fails to abide by the terms of the decree. That violation could be for a number of things- failure to pay child support; failure to provide the non-custodial parent with visitation; failure to return the children timely, etc.
To find a party in contempt, a court must set the matter for a hearing and determine, after taking testimony and receiving exhibits, whether or not a party failed to comply with a court order, had a duty to obey the court order, and willfully failed to perform that duty. This process is what’s referred to as quasi-criminal so the constitutional provisions that protect those alleged of committing a crime apply. A person alleged to be in contempt most likely has the right to be advised of the charges against him; be given an opportunity to defend themselves; be represented by counsel; and to testify and call witnesses in their defense. The person seeking to prove the contempt must meet the high burden of proof of beyond a reasonable doubt. The alleged violator’s behavior must be willful, intentional and deliberate. Accidental, or behavior out of the contemnor’s control, probably won’t suffice for a finding of contempt
The court has many punishments available, should it find an individual in contempt. Those remedies include punitive sanctions such as a thirty (30) day jail sentence for each offense, the payment of attorney fees, the equivalent of a modification of the current order, and the ability to generally make the victim whole. These are powerful tools the court can utilize depending on the nature of the violation, the severity of the conduct, and the necessity to correct the contemnor’s behavior.
Although contempt proceedings are never a slam-dunk, when a party violates an order of the court, the court has an interest in upholding its own orders. A judge doesn’t enter orders believing individuals are free to disregard their mandate. When appropriate under the law, courts will enforce their orders and punish those who willfully disobey.
Author: Andrew B. Howie
1. Filing Taxes? Double-check your marital status.
Here’s a good tax-season tip — if you have a divorce case pending, how you file your income tax returns is based on your marital status on December 31 the previous year. For example, for tax year 2015 (federal returns due April 18, 2016), your filing status (married filing jointly, married filing separately, single, or head-of-household) depends on whether you were married at 11:59 p.m., December 31, 2015. Be sure to bring this to the attention of your tax preparer. If your divorce is pending, the court can force you to refile under a different status if you’re not careful which means owing more in taxes or giving back that refund.
2. Think before you text…or post…or email
Always presume that your ex (and inevitably a judge) will discover (no matter how tight your passwords or privacy settings are) every photo, voicemail, email, text message, or social media posting that is from you, includes you, or is about you. Never leave a voicemail message for anyone after you’ve been drinking (or even if you’re sober for that matter) that you do not want played in court for a judge to hear.
3. Don’t ditch those divorce papers
If you are served with divorce papers, do not ignore them. Each jurisdiction has a deadline to formally respond a petition for divorce. If you are served and fail to timely respond in a timely manner, your soon-to-be-ex can obtain a default divorce judgment against you and receive virtually anything and everything he or she asks for.
4. Discussing your ex? Watch your language.
Anything you say to another person about your ex may be used in court against you in your divorce case. No matter how frustrated you are, never threaten your ex or talk badly about him or her to or near your children.
5. Keep your kids involved in your ex’s life.
Don’t try to remove your ex from your children’s lives, even in small ways. Subtle actions can be used to build a case against you receiving custody. For example:
- Hiding all photos of your ex and your kids.
- Denying or limiting agreed-upon opportunities for your children to talk to or interact with your ex.
- Loading your kids’ schedules with extracurricular activities, then claiming that they’re too busy to visit your ex.
The key exception in these situations is if direct physical harm or significant emotional harm to your child or yourself will likely result from such contact with your ex. Remember, judges hear in virtually every case, “my ex is crazy” or “my ex is verbally abusive”. Those claims only influence the judge if there is clear evidence of direct harm to a child or yourself. In other words, “sticks and stones may break my bones, but words don’t hurt me” holds true in divorce cases.
Author: Tara L. Hofbauer
“Ugh. Why can’t he just leave us alone? K would be better off without him!! –feeling frustrated.”
“That’s it. Thank you to everyone who has ever been supportive of me throughout the years. Ya’ll are good people. But, I can’t take it anymore. She won’t even let me see the kids. I have nothing left to live for…..”
“Kids are driving me nuts today! WHY CAN’T THEY GET ALONG? I think it’s an ‘entire-box-of-wine’ kind of night for this girl!!”
These phrases likely look familiar to most of you. If they don’t, it is possible that you haven’t been sucked into the vortex of Facebook’s oversharing, in which case, read no further, you rebel against social media! You are not the intended audience. It is also possible you did not recognize these as Facebook status updates because they contained proper grammar and spelling. Many such outbursts are unintelligible. They are typed out on smart phones with fat, angry fingers and subject to the whims of auto correct. They are expressed in the heat of the moment. They are non-edited, verbal hemorrhages—a way to vent to 500 of your closest friends. In any case, these very public streams of consciousness can end up costing you your children. Iowa courts are routinely considering parties’ Facebook timelines, pictures, “likes”, and private messages as fair game in custody battles. In fact, one of the first things I do after meeting with a client for the first time, is to check the Facebook pages of both parties. This is because I know they often contain a goldmine of evidence—either good or bad.
It is probable that your soon-to-be-ex will be privy to any and all eruptions you spew onto Facebook. Even more troubling, however, is that your own children may have access. Most judicial districts in the state of Iowa require parties to attend a “Children in the Middle” class when children are at issue in a family law case. The purpose of such a class—avoiding putting your children in the middle of your disputes—may seem like common sense. Facebook statuses such as the first two in this post, however, showcase people’s very strong urge and emotional need to do exactly the opposite of what these courses teach. People need validation for their feelings. Is there any quicker way to receive such validation than to turn your internet friends?
In the first status update, lies a classic example of parental alienation. We do not know how old “K” is, but the internet never forgets. “K” is very likely to see this post at some point, even if she cannot search the internet in her current toddler state. Any judge who reads this as evidence at trial, is likely to consider the possible alienating effects this post could have between “K” and her father. This mom may be constructing a breeding ground of negativity between the child and her father. While this post in isolation would not lose this mother custody of her child, it very well could be considered in the bigger picture.
The second status update is not only alienating in nature, but it is quite telling of the poster’s mental state. I have seen numerous instances of veiled threats of suicide due to the other parties’ refusal to allow contact with the children—whether real or perceived. While many of these threats are empty, this is hopefully not something a judge would take lightly. You are declaring yourself an unfit parent to the whole world by posting something like this. Be wary of what you put in writing while you are going through a custody battle. Whether you were serious or not, the courts can and should take it seriously.
Finally, while the last status update example is light-hearted, be careful of these posts as well. An ambitious party could use this as evidence that either you are a parent who cannot control her children or that you drink too much while the children are in your care. The poster surely did not intend to portray either of these scenarios. Enterprising internet police (i.e. opposing parties and their allies) will do all they can to twist these light-hearted posts into further advancing their custodial agendas.
The persona you present on Facebook could be the very picture that is painted of you at trial. Are you the sum of your status updates? Hopefully not. Your goal should be to avoid helping the other party gather evidence to use against you. Do not hand it to them on a silver Facebook platter. If you are unsure whether to post, do not post. Silence is pure gold when it comes to social media and custody.