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Monday
Jan032011

Living in Electronic Age Changing Legal World

By MJ Goodwind

       For 2010, Time Magazine’s Person of the Year was Mark Zuckerberg, a young man who was born the year that I graduated from high school.  He is a 26 year old billionaire and the founder of FaceBook.  Now, if you don’t know what FaceBook is, I can’t imagine how you come to be reading an online newspaper.   But in the interest of clarity, I will say that FaceBook is a social networking site with so many members that  if it were a country, it would be the third largest in the world.  This mega-empire was founded in Zuckerberg’s college dorm room.  It is an electronic world.  

       I began law school in 1988.  At that time, though from a family considered fairly well off, I did not own a personal computer.  There were only three or four people in my law school class that owned computers at that time.  Computerized legal research was in its infancy and was very expensive.  Now, it is free through my SC Bar membership.

       When I went to work at the Anderson County Solicitor’s Office in 1991, I owned a computer, but it was very slow and was primarily a glorified word processor.  By 1994, when I opened M. J. Goodwin, Attorney at Law, LLC, the internet was becoming more common place and I opened my first AOL account.   Now computers are an integral part of my daily practice.  In fact, if they go down, we are in trouble!  We have multiple daily back ups and consider ourselves “state of the art.”

       So, what does all this have to do with my Legal Pad column?  This e-history lesson does have a purpose.  The legal establishment resists change.  And hiring a lawyer can be expensive.   But change, it is a-coming.  In fact,  it is here.  To attempt to increase access to Family Court, our State Supreme Court developed a self-represented litigant package for uncontested divorces.  More and more of those are being filed.  However, many have problems and are not effective.  One of my earlier Legal Pad columns was about the dangers and benefits of self-representation.  There is now an in between solution.  One no longer has to choose between representing one’s self with no legal assistance and paying thousands of dollars to hire an attorney.  One can hire a virtual lawyer. 

       Virtual law offices, or VLOs, have been around for several years.  But they are only now gaining more widespread attention.  Like FaceBook, it is taking them time to get noticed and “go viral”, as the computer literate say. 

       A VLO works like this:  the prospective client contacts the lawyer online and contracts with the lawyer for specific, unbundled legal services.  For example, a client could contract with the lawyer for advice about filing a self-represented divorce and for assistance in drafting the documents.  The client then files the documents himself and goes to the hearing on his own.  The total cost for a virtual package is a fraction of the cost of hiring an attorney to do the work and go to court.  With a VLO package, a client in a uncontested divorce case walks into the courtroom with all the necessary documents, including an expertly drafted Divorce Decree for the Judge to consider.  Additionally, by using a VLO, the client can be more certain that his or her case is actually appropriate for self-representation in court.

       VLOs are not limited to divorces.  They are useful for simple wills, power of attorney documents, contracts and legal research issues, to name a few.  Again, the documents are generated by a lawyer, with specific legal advice being provided.  The client executes the documents on his own.

       VLOs are not form generating websites like Legal Zoom ™.  With form generators, there is no customized legal advice.  In fact, there is no legal advice whatsoever.  With a VLO, you are getting a lawyer.  You are establishing a relationship with a trained legal professional to guide you through a legal process.  Your information is submitted securely.   Flexibility is greatly increased as you can contact your virtual lawyer 24/7 and your virtual lawyer can respond 24/7.  Neither party is restricted to the normal 9am to 5pm relationship. 

       Attorneys practicing with a VLO must follow the same rules as a traditional brick and mortar law firm.  Conflicts of interest must be checked.  Professional responsibility rules apply.  The only real difference in the VLO and the traditional attorney-client relationship is the face to face contact.  If that element is important to you, then a VLO is probably not for you.

       I have always believed in citizen access to court.  But access to court is of little value without an experienced lawyer to help the citizen.  The VLO allows that access for low to middle income people.  It is my hope that it will help them navigate the waters of the legal system at a cost that they can afford.

       So 2011 is the year of my grand experiment with a virtual law office.  I believe this to be the first full service virtual law office in the Anderson area.  If you think these services would be useful to you or someone you know, please visit my website at www.mjgoodwin.com  I will continue to offer my traditional brick and mortar firm as well.

 

Sunday
Oct172010

Adoptions Create New Families

By MJ Goodwin

Registry Prevents Surprises

Adoptions are wonderful things.  Families are created by adoptions.  They are virtually the only “happy” case filed in Family Court.  But like many Family Court cases, they can go wrong and when they do, it is particularly devastating.  Other than the biological mother of the child changing her mind at the last minute, the worst thing that happens, in my opinion, is when the biological father shows up, after not being around for the nine months of gestation, or longer, and claims the child.   I have vivid memories of the news footage of that five year old child that was wrenched from the arms of the only parents he had ever known and returned to his biological father several years ago.  In that case, the father claimed he had not known about the child until after the adoption.  

The new South Carolina Responsible Father registry is designed to prevent “surprises” for adoptive parents by requiring putative fathers to register their desire to know of any adoption of a child that they might have fathered with a particular woman.  The purpose is to give unmarried biological fathers, who affirmatively assume responsibility for children they may have fathered, notice of any proceedings regarding their parental rights.  

The Responsible Father Registry can be found at: https://ssl.sc.gov/DSSFatherRegistry/FatherReg/RegIndex.aspx.  Like everything in life, there are rules.  In order to file, the man must be at least eighteen years old and not married to the biological mother of the child of whom he claims to be the natural father.  Only the father himself can register.  So, grandparents or other interested relatives cannot sign their sons up for this.  The father must register his claim of paternity either before or after the birth of the child, but before the date of a petition for termination of parental rights has been filed and before and adoption petition has been filed.  Any claims filed after the dates of the petitions are void.  Addresses must be kept up to date.   

To make the process idiot proof, DSS has developed form 1549, which is found on the website.  The claim must include all of the information on the form marked with an asterisk.  The claim must be signed by the putative father and mailed to DSS. If there is a multiple birth, a separate form must be filed for each child.  I suppose that a particularly promiscuous man might have to spend a lot of time filling out these forms.  There is no fee to file the claim for paternity.  There is a $50 fee to search the registry and get a certificate.  This is a cost borne by the adoptive parents.

It is the grand hope of everyone involved in adoption work that this will eliminate the legal risk associated with John Doe adoptions.  I suppose there is room for abuse, as there is with any thing of this sort.  I suppose a man might file a claim when he knows he is not the father of the child, but other than spite, I cannot imagine why he would do so.  There are penalties for filing false claims.  A person who knowingly, maliciously or in bad faith files a false claim of paternity with the registry, upon conviction, must be fined not more than $500 or imprisoned for not more than 30 days or both.  I have tried to imagine how one would prove this crime.  I suppose if the putative father had had a vasectomy that might qualify.  But I suspect we will see few, if any, prosecutions of this crime. 

Adoptions require a lot of paperwork.  All of them begin with a Summons and Complaint for termination of the biological parents’ rights and adoption.  Assuming that it is a “stranger” adoption and not a step-parent or other relative who is adopting the child, a home study must be done.  An accounting must be filed.  A Guardian ad Litem is appointed in all adoptions.  There are Consent Relinquishments done by biological parents who consent.  Now there is the search of the Responsible Father Registry.   Hopefully this registry will eliminate some of the uncertainty and pain that adoptive families have endured for many years. 

There is never any question about who a baby’s mother is.  The problems associated with the mother are with her changing her mind at the last minute following the child’s birth.  In these cases, there is no recourse for the adoptive parents who may have spent thousands of dollars on prenatal care, food, clothing and shelter for the biological mother.  It is a chance they take willingly because they want a child. 

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information in this column is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.  If you would like to hire M. J. Goodwin, Attorney at Law, LLC to represent you in your family, criminal or civil court action, please call 864-375-0909.  http://www.mjgoodwin.com/**

Tuesday
Jul062010

Absent Parents Not Compelled to Provide College Education

Summer is blazing down on us in all her sweaty, sticky, humid glory.  But before you know it, the “Back to MJ GoodwinSchool” sales will start.  All parents will be expected to shell out hard earned dollars for the necessities of paper and pencils, as well as the unnecessary status clothing and electronic devices.   Computers, calculators, all sorts of gadgets and even cars are touted as being “back to school” items.  For any parent, but most especially the single parent, this can be a daunting expense.  It’s bad enough in grade school and high school.  But what about college?
State schools are hiking tuition rates.  Room and board expenses are up.  And most folks’ incomes are down.  So what is a single parent to do when the tuition bill comes but the child support check has stopped?
For many years, attorneys in SC have faced a daunting task in attempting to advise clients on how to collect monies for college expenses from a non-custodial parent.  Finally, thirty-one (31) years after Risinger v. Risinger, our Supreme Court answered the question once and for all in a case called Webb v. Sowell.   The Court found that requiring a parent who is subject to a child support order to contribute to an emancipated child’s post-secondary education violates the equal protection clause of the Constitution.  The Equal Protection Clause provides that no person shall be denied the equal protection of the laws.
So what does that mean?  That’s a good question.  Consider this:  if you and your spouse have a child, you have no legal obligation to provide support of any kind to that child beyond that child’s emancipation.  So once your child is an adult, you are free from the legal monetary requirements.  The equal protection clause requires that we all be treated equally, that we are all the same in the eyes of the law.  So being divorced, and not having custody, cannot put a more onerous requirement on a parent with regard to post-emancipation support.   
The answer in such cases now is that absent some agreement, a parent cannot be ordered to pay for a child’s college education.  Why anyone would agree to such a Court order is beyond me.  It is important to note that a parent can still voluntarily contribute to a child’s college education without being ordered to do so.  No legal obligation is created by that act.  
The good news is that there are more grants and loans available for a young person’s college education than ever before.  That, plus hard work, is the only way a young person can assure him or herself of a college education.  Of course, as I often state, moral obligations and legal obligations are two different things.  It remains my personal opinion that we have a moral obligation to educate our children.

Summer is blazing down on us in all her sweaty, sticky, humid glory.  But before you know it, the “Back to School” sales will start.  All parents will be expected to shell out hard earned dollars for the necessities of paper and pencils, as well as the unnecessary status clothing and electronic devices.   Computers, calculators, all sorts of gadgets and even cars are touted as being “back to school” items.  For any parent, but most especially the single parent, this can be a daunting expense.  It’s bad enough in grade school and high school.  But what about college?
State schools are hiking tuition rates.  Room and board expenses are up.  And most folks’ incomes are down.  So what is a single parent to do when the tuition bill comes but the child support check has stopped?
For many years, attorneys in SC have faced a daunting task in attempting to advise clients on how to collect monies for college expenses from a non-custodial parent.  Finally, thirty-one (31) years after Risinger v. Risinger, our Supreme Court answered the question once and for all in a case called Webb v. Sowell.   The Court found that requiring a parent who is subject to a child support order to contribute to an emancipated child’s post-secondary education violates the equal protection clause of the Constitution.  The Equal Protection Clause provides that no person shall be denied the equal protection of the laws.
So what does that mean?  That’s a good question.  Consider this:  if you and your spouse have a child, you have no legal obligation to provide support of any kind to that child beyond that child’s emancipation.  So once your child is an adult, you are free from the legal monetary requirements.  The equal protection clause requires that we all be treated equally, that we are all the same in the eyes of the law.  So being divorced, and not having custody, cannot put a more onerous requirement on a parent with regard to post-emancipation support.   
The answer in such cases now is that absent some agreement, a parent cannot be ordered to pay for a child’s college education.  Why anyone would agree to such a Court order is beyond me.  It is important to note that a parent can still voluntarily contribute to a child’s college education without being ordered to do so.  No legal obligation is created by that act.  
The good news is that there are more grants and loans available for a young person’s college education than ever before.  That, plus hard work, is the only way a young person can assure him or herself of a college education.  Of course, as I often state, moral obligations and legal obligations are two different things.  It remains my personal opinion that we have a moral obligation to educate our children.

Friday
Apr162010

Last Will & Testament Can Avoid Added Grief

Everyone has heard the adage “old age ain’t for sissies.”  That is true on a legal level as well as a physical one.  Most everyone with any assets worth noting makes a Last Will and Testament.  They want to be sure that MJ Goodwintheir favorite niece gets that ruby broach.  Lots of people have a Power of Attorney or a Living Will, too.  They want to know that they won’t be kept on a machine.  But few prepare for the horror story I’ve recently been witness to as part of my practice.  

Consider this:  Husband and Wife have been married almost sixty years. Both are well into their 80s.  They have worked hard during their lives and have accumulated around $250,000 in assets.  Not a fortune, but not chump change either.  Wife’s mental state has deteriorated and is so common in such situations, she is no longer herself and is even violent on occasion.  Husband loves wife dearly.  He remembers his promise that he would not put her in a nursing home.  But his ability to care for her is compromised by his age and her condition.  The government agency, out of necessity, steps in and takes custody of the wife.  She is placed in a nursing facility over husband’s objection.  Husband is ordered by the Court to pay for her care.

 

A number of issues arise in this situation.  First, is Husband obligated to pay for the nursing home?  He does not want it.  He believes he can take care of her.  But this is not realistic.  The answer is yes, he is required to pay her bills under the Necessaries Doctrine.  

So the next question becomes, to what extent is the Husband obligated to pay?  At $4000 per month, that $250,000 will not last long.  Is he obligated to spend all of his savings?  The answer is no.  The Medicaid regulations allow him to keep his home and $66,400.  

The situation is sickening.  Medicaid supports many, many people who have not saved and planned for their old age.  Is Husband penalized for working and saving?  The short answer is yes.  This is another flagrant example of what I call the success tax.  The success tax pops up in most aspects of our law abiding tax paying lives.  If you go to school and earn a good income, success tax.  If you save and buy a nice car or home, success tax.  It goes on and on.  If you are a parasite and have nothing, the government takes care of your bills.  Husband and Wife would have been better off to blow their savings on vacations and whatever else they wanted to buy while they were younger and in better health.  As it stands, the government will allow him to keep only a portion of the money he worked so hard to save.  He wanted to have something to leave his children.  That does not seem likely.  Another couple, in an identical situation, but who had not saved anything, would already be eligible for the government to pay for the nursing care.  How in the world is that the right result?  I cannot fathom it.

This is not an isolated situation.  I recently saw a dear friend withdraw her entire retirement savings so that her husband would qualify for medical treatment at a reduced rate.  She had saved and was punished for it.  Success tax.

So how could Husband avoid this?  Well, at this point, all he could do would be to divorce Wife.  He won’t do that.  But for the sake of argument, let’s say he did.  Wife would arguably be entitled to half of the estate.  So she would get $125,000 and half of the value of the house.  So he would still lose a substantial portion of the savings.  But he will not divorce her.  He cannot do that because of his love for her.  

The only other option is Long Term Care insurance.  But it is too late for this couple to buy that now.

So, in addition to knowing that “old age ain’t for sissies,” we can also be sure that the only certainties in life are death and taxes.  The success tax is particularly troubling and will only continue to plague Americans if we keep on the course we are on now.  We should be appalled at this situation.  We should be appalled that our government, by its regulations and taxation laws, actually encourages people to be frivolous and not save money.  It is not what our Founders intended.  

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation. http://www.mjgoodwin.com/**

Friday
Feb262010

Nothing Tacky about Proposed Horse Bill in S.C. Senate

By MJ Goodwin

I was reminded of my Law School days recently when I returned to the University of South Carolina, this time as an instructor.  Law School is part of my own personal history.  Some parts of Law School were like MJ Goodwin. Legal Padthe movie “The Paper Chase.”  Constitutional Law was one such class.  Consequently, Constitutional Law was not a favorite among first year law students.  It is, of course, a required course.  It is very necessary for any lawyer to have a good understanding of the basic fundamentals of our legal system no matter in what area he or she chooses to practice.  But nevertheless, there was a collective “groan” among first year law students as the subject of Constitutional Law was approached.   I realize it’s been twenty years since I was in Law School, but I don’t remember Constitutional Law being discussed outside the Law School.  Compare that with the almost constant Constitutional debates that are now on the 24 hour news networks.  It seems everyone has a book out with his or her view of what the Constitution really means and what the Framers really intended.  It is important to know history.  History shapes the future.  Our collective history is as important as our personal histories.

While I was a typical first year law student over two decades ago and while I readily admit to loathing my first year Con Law class, I do have a love for our Constitution.  I also love the history of the American Revolution.  Jefferson is a favorite of mine.  I tend to be Jeffersonian in my thinking.  I love to read books about Jefferson.  Last year, my son portrayed Thomas Jefferson at a school function.  Our family visited Monticello in preparation for that role.  Seeing a fascinating place like Monticello can really make history come alive.  I mention this because “living history” is important.  Seeing “living history” is much more fun than studying Constitutional Law.  And as I have said, history is important.

One does not have to go as far as Virginia to see evidence of our Founding Fathers.  There is “living history” quite close by.  Here in Anderson, we are not more than a few hours drive from many historic Revolutionary War sites.  Cowpens is close by and worth the trip.  Kate Barry’s farm, Walnut Grove, is also in the Spartanburg area.  Perhaps the most famous South Carolina Revolutionary was General Francis Marion, also known as “The Swamp Fox.”  His stomping ground was in the Low Country of South Carolina.

General Francis Marion was able to attack the British suddenly, with no warning and then vanish into the swamps.  The British were unable to follow him.  Bewildered and frustrated, the British bogged down in the marsh and were forced back to drier land.  Marion had a camp at Snow’s Island, deep in the swamp.  From that dark, dank, secret marshy place, he planned his attacks.  He shaped the future of the war and ultimately of our country. It has only been recently that I learned one of Marion’s secrets.  Everyone likes to know a good secret, so I’ll share it with you:  the Carolina Marsh Tacky horse.  

So what is a Carolina Marsh Tacky horse?  The Marsh Tacky evolved from the horses brought to the coast of South Carolina by the Spanish more than 500 years ago, long before the American Revolution.  These little horses were tough.  They (or their ancestors) survived a grueling Atlantic voyage.  When they got to the Americas, life was hard.  Often horses would escape the Spanish or were simply abandoned to the wild.  They formed wild herds and roamed the coast and the outer banks of North and South Carolina for years.  At one point in history, the British attempted to tax fences put up by the Colonists.  To avoid the fence tax, colonial livestock was moved to the islands or peninsulas on the coast.  There, it could be left to graze until needed with a minimum of fencing (and therefore taxes) required.  Gullah used the wild horses that they rounded up and tamed for work on Hilton Head Island.  Gullah horses and the Colonial live stock bred with the wild Marsh Tacky herds.  The herds survived the harsh conditions, requiring very little and being extremely tough.  They became their own breed.  The American Livestock Breeds Conservancy has found the Marsh Tacky to be a unique, gaited horse.  This horse is unlike any other horse anywhere in the world.  It is truly South Carolinian.  It is living, breathing history.

So what does this have to do with Francis Marion and the Revolutionary War?  Well, that War was not like the wars fought today.  Marion’s band was not a well-equipped unit.  The Continental Army was new.  It was all volunteer.  It was most certainly not rich.  Each man brought his own weapon and his own horse.  At the time, the Marsh Tacky horse was the most common horse in the low country of South Carolina.  These horses were well suited to get in and out of swamp land, something that the larger horses brought over by the British could not do.  Marion had a life long love of horses.  I am sure he appreciated the Marsh Tacky and all it was capable of accomplishing.

Not only were the British out-foxed by Marion, they were out-horsed by him, too.

Ultimately, the Marsh Tacky evolved to the sturdy, well balanced 14 hand horse that lives today.  For many years, these horses were wild on Hilton Head Island.  The bridge and subsequent development ended that.  Thought by some already to be extinct, this little horse is still alive.  There are estimated to be around 220 Marsh Tacky horses left in the world.  The Tackys have come to represent more than just horses.  They represent a connection to the past.  They are a prime example of the South’s ability to adapt and thrive, no matter what.  Long after the Revolution, they were used in the Civil War and as recently as World War II.  They represent freedom, both in the fights that they participated in long ago and in their fight to survive now.  If not for their contributions to the Revolutionary War, we might not have defeated Lord Cornwallis and become our own country.  If not for these sturdy, tough little horses, it might not have been the Constitution of the United States of America that we first year law students complained so about studying.

So you can breathe a sigh of relief.  This animal is not yet gone, only to be remembered in the pages of old journals and history books.  This animal still has a chance.  And you can help it.  The Carolina Marsh Tacky Association was instrumental in getting a bill introduced in the State Senate to name the Carolina Marsh Tacky the State Heritage Horse of South Carolina.  You can find this bill at:  www.scstatehouse.gov/sess118_2009-2010/bills/1030.htm.  

Please encourage your State Senator to support State Bill 1030.  Recognition of this horse as the State Heritage Horse would help to maintain the preservation efforts of this critically endangered breed and insure future protection of the Carolina Marsh Tacky.  The passage of this bill will help this truly living, breathing history to continue to live and breathe.

General Francis Marion died on February 27, 1795.  Here, at the anniversary of his death, this column is intended to help honor his and his horses’ contributions to our freedom.  Without the legendary General Francis Marion, the “Swamp Fox”, we might not have won the Revolutionary War.  Without the legendary Carolina Marsh Tacky, Francis Marion might not have become legendary.  

On February 28, 2010, the 2nd annual Carolina Marsh Tacky races will be held on Hilton Head Island as part of the Gullah Festival.  

The Carolina Marsh Tacky Association can be found at:  www.marshtacky.org

**Disclaimer:  M. J. Goodwin, Attorney at Law, LLC, is located at 113 North Main Street, Anderson, SC 29621.  864-375-0909.  The information here is not intended as a substitute for specific legal advice for any given situation.  Only clients who have hired M. J. Goodwin, Attorney at Law, LLC, are receiving actual legal advice that pertains to their particular situation.**