Wednesday, June 26, 2013

DOMA - DID THE SUPREME COURT REALLY CALL B.S.?

central indiana attorney at law, kokomo-lawyer
We have entered a new world. 

This is a world wherein acknowledgement of institutional discrimination against legally married same-sex couples has been made and partially OVERTURNED...

Ironically, a case about estate taxes brought the Feds to their knees in a Supreme Court Decision that will change the landscape of the United States as we know it.  In United States v. Windsor, 570 U.S. ___ (2013), Ms. Windsor, who was legally married to her partner, Ms. Spyer, had to pay significantly more in estate taxes than other heterosexual couples who were married, as Ms. Windsor was not considered a "surviving spouse" and could not take advantage of the marital exemption to the federal estate tax. Ms. Windsor paid the exorbitant estate taxes and then brought suit to challenge the constitutionality of Section Three of DOMA (otherwise known as the Defense of Marriage Act) that excludes a same-sex partner from the definition of spouse and to recover her overpayment to the IRS of over $300,000.00 in estate taxes.

Generally, the laws regarding marriage and domestic relations are reserved to the states and are part of the states' sovereign powers. However, in 1996, when States began thinking about ratifying same-sex marriages, the DOMA was passed, which excluded, federally, same-sex partners from the protections, responsibilities, and benefits of marriage.  In fact, DOMA applies, as the Supreme Court pointed out, " to a class of persons that the laws of New York, and of 11 other States, have sought to protect."  Laws applying to a class of persons, when that class is based upon gender, race, ethnicity, or religion, trigger equal protection problems.

Blog, attorney at law, civil rightsIn a landmark decision, handed down today, the Supreme Court called B.S. on DOMA's Section
Three, based upon provisions of the 5th Amendment to the United States Constitution, providing the Right to Equal Protection under the law.  In fact, the Court stated,

 

 "The avowed purpose and practical effect of the law [DOMA] here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States ... The Act’s demonstrated purpose is to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law... DOMA writes inequality into the entire United States Code...  By this dynamic, DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.  This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects ... and whose relationship the State has sought to dignify."


Clearly, the majority on the Supreme Court has had enough of Section Three of DOMA.  The majority astutely determined that calling out a class of persons, herein same-sex marital partners, was discrimination, plain and simple.  Not only was it discrimination, but it was also federalized discrimination, which is unconstitutional and insupportable.

While the Supreme Court ruled DOMA unconstitutional, the majority's opinion was very pointedly about Section Three of DOMA. Thus, until challenges are made and more information is discovered, it is unclear whether the entire act was declared unconstitutional, or just Section Three of DOMA,  to which the majority referred repeatedly.

The sleeper in DOMA, Section Two, allows States to refuse to recognize same-sex marriages that were performed under the laws of other States.  This also appears, to this attorney and blogger, to have the same problems as Section Three, hereinabove-mentioned.  Furthermore, Section Two would also appear to be in conflict with the Full Faith and Credit Clause otherwise in play between States regarding recognition of laws, etc.

The fall-out from this landmark decision will be far and wide and will have people guessing for quite sometime. The bottom line is, if you or your friends/family are in a same-sex marriage and seek to ascertain your rights with regard to divorce, custody, support, taxes, estate taxes, etc., you should see an attorney who is aware of these issues and can assist you in navigating these uncharted but wonderful waters.

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.






Monday, June 17, 2013

To Talk or Not to Talk -- That is the Question... The Lessons of My Cousin Vinny!

So, you get a call from a detective or representative of child services.  There has been a report that misdeeds have occurred between you and a child in your care, custody or control. You know you haven't done anything inappropriate. Should you just start speaking with them?  The normal human reaction would be to go and speak with the authorities. After all, that is how we are brought up -- let's explain things, take care of it, and move forward...

However, the legal system is tricky...  Taking the step to talk to authorities, whether the authorities be child services or the police, may not be the best route, especially if you are unrepresented and/or do not know what all has been alleged against you.  After all, you have no obligation to speak with any authoritative body, seeking to investigate you, thanks to the Constitution of the United States.  The Fifth Amendment right to remain silent, and Sixth Amendment right to an attorney allow you to avoid talking to police or other authorities, with or without an attorney on your side. 

When you are in a situation wherein a spouse, close friend, or other family member has made allegations against you in regard to a child in your care, your emotional and mental state, understandably, will not be at their best. You should definitely speak with an attorney before taking any action with regard to cooperating in an investigation.  It is your right to seek counsel, and it does not mean you have done something wrong. Frequently, you will be told, by some authorities, that it looks bad if you "lawyer up;" however, the tricky thing that they won't tell you is, they can't mention this later, if any charges are filed.  They simply want to get information from you, which is their job.  Therefore, they have every reason to push to elicit information from you.  You also have every reason to protect yourself, mentally and emotionally, when an investigation is being conducted.


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While the Karate Kid (Ralph Macchio) was not involved in a child abuse/neglect situation in My Cousin Vinny, an excellent film, his experiences in that movie are instructive.  While the Sheriff in a small Alabama town was interrogating Ralph Macchio's character about murder and robbery at the Sac O Suds, Ralph Macchio's character believed he was being questioned about potential shoplifting, as his fellow New York buddy, Stan, forgot to pay for a can of food.  While this movie's hilarious antics and quirky lawyering by Cousin Vinny, Joe Pesci, were entertaining, the lessons are instructive.  When you are nervous and scared, and there are misunderstandings in interviews, your statements may be used against you in a disastrous manner.  The two "yoots" in My Cousin Vinny, were "lucky" to have Cousin Vinny as an attorney, as he was eventually able to push through the misunderstandings, investigate the case, and prove their innocence.  However, it would have been best for the case never to have gotten that far.

While My Cousin Vinny was a study in extremes, there are things, in reality, you may do that can cause damage to you.  Chief amongst these things are attempting to explain things away. By this, I mean, any human being, confronted with allegations of abuse or neglect to a child, will be affronted and eager to explain how things did not happen.  In explaining how things did not happen, you could appear defensive or you may offer information in an effort to provide context for the situation or allegations the child or an adult described. However, the very explanations or context you provide may be twisted or used against you.   Essentially, anything you say may be taken at more than face value.  When you are in a high stress situation, like a police or child services interview/interrogation, that will highly impact your life, any misunderstanding may lead to your own, innocent, words being used against you. 

Without caring, competent and effective counsel on your side, you should avoid navigating the waters of interrogation and interview.  After all, you do not want to have Ralph Macchio's misunderstanding, in My Cousin Vinny, and be speaking to an officer about something like shoplifting one can of food, when an officer is interrogating you about murder........

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

Tuesday, June 11, 2013

Second Chances? Are you able to Clean the Slate?

Expungement, criminal defense, restrict records, new law

The legislature and governor have finally figured out that everyone makes mistakes, but that no one should be judged by them forever.  Thus, when July 1, 2013, rolls around, Indiana Law will change, and Indiana Code Sections 35-38-5-5.5, and  35-38-8 will be repealed. These sections allowed for restriction of criminal conviction and arrest information.  These two statutes were a good start in obtaining a second chance, by allowing for restriction, from public sight, of older convictions.  However, Indiana is proving that it is willing to go one step further. 

Under the new Indiana Code Section 35-38-9, effective July 1, 2013, entitled, "Expungement of Conviction Records", the legislature and governor have shown commitment to those who have done their time for their crime.  The new statute, although cumbersome to navigate, essentially allows for the expungement of criminal records for certain lower class felonies and most misdemeanors, provided 10 years has passed since the person's conviction and/or five years has passed since the person's sentence was completed, whichever was later in time.

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The new Expungement Statute also takes away a judge's discretion with regard to restricting access to arrest records when a person petitions for his/her arrest record to be so restricted, so long as there are no pending charges, and no conviction was obtained. The petition to expunge an arrest record may be made at anytime after the arrest.  This is new, and is less of a burden on the person arrested. Under the current law, a person with an old arrest on his/her record, has a more lofty burden of proof to remove said arrest from the record, and the judge hearing the petition has ultimate discretion regarding whether the record will be restricted.  The new law, going into effect July 1, 2013, will provide more consistent treatment of persons in Indiana, negating effects of different judges, prosecution philosophies, and personal biases. 

An attorney can assist you in obtaining relief from this new provision of Indiana law, after July 1, 2013.  It may behoove you, or your friend or family member, to talk to one of us, to determine if your past mistakes can be erased, allowing you to start with a clean slate.  While the law is there to help, you will not get the relief you desire if you do not ask for it correctly and follow procedures in the right manner. 

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.

Tuesday, June 4, 2013

We Are Family: Part Two

Ah ... family ... we must ensure they know our wishes regarding how we want to take care of our children. What happens to your children should something happen to you? Have you made plans for their care and let your family members know the plans?  Child care decisions are some of the most important decisions you make in life; you should certainly think about making provisions for your child in the event you unexpectedly pass away.

child custody, wills, estates
Your child care wishes may be set forth in a will. Your wishes will be more easily carried out if both parents of the child have set forth the same plan for the children upon their passing.  While your wishes regarding who cares for your children will have to be legalized by a court, if your wishes coincide, and you have spoken with family members and close friends about your decisions, your wishes are more easily taken care of in court, should an issue be made by anyone contesting the will provisions.

Thinking about the care of your children should you pass is not fun. However, thinking about it now has the potential to give peace of mind to you and your family.  When you see headlines or Facebook status posts about young parents passing in a tragic accident, you may experience that moment of panic and concern about what would happen to your children if something should happen to you.  You can mitigate a portion of the panic by planning ahead. Take control of your life and ensure you have a plan for your children's future. Hopefully, it will never have to come into play.

Stay tuned for the third installment of "We Are Family"!

*Nothing written or stated in this blog is meant to be legal advice forming an attorney/client relationship.  The statements are the opinion of the blogger only.