November 9, 2009
Process Served via Facebook – What’s next?
Recently an Australian Supreme Court allowed formal service of court papers to two individuals via Facebook after several failed attempts to personally serve the documents to the individuals’ homes and via email. The court agreed that this was a valid way to provide service after examining their on-line profiles and determining they matched the individuals in question.
What does this mean for U.S. litigation practices?
An individual located within a U.S. judicial district can be served by leaving documents at an “individual’s dwelling or usual place of abode…” according to Federal Rule of Civil Procedure 4(e)(2)(B). This is accepted in California only after Personal service has been attempted, and then “substituted service” is appropriate as stated above by leaving the documents at the residence in addition to mailing a copy of the same documents. It’s generally understood that “dwelling or usual place of abode” refers to an individual’s physical home, though one could assume that a court could expand it’s definition of abode and interpret this as including a virtual abode.
While there is no record yet of courts in the U.S. allowing formal service via Facebook, prosecutors are commonly permitted to use materials and photographs obtained from social networking websites as admissible evidence in court for a variety of proceedings.
Be Careful what you post on Facebook.
Examining the potential legal ramifications of how one would be judged by a court of law according to their on-line profile, begs the question of what is appropriate content and what level of accessibility should I allow to this data. Basically would I want the contents of my on-line profile being bandied about in a court of law?
Secondly, the information super-highway and it’s latest byway of social networking seems to be a double-edged sword. Facebook has allowed users to connect more easily to friends and family but at the same time it can make one more accessible to the law. The future of process servers may soon be as simple as logging into Facebook. No more frantic games of hide and seek all over town and prolonged multiple attempts, searching for an illusive individual that needs to be served.
http://www.dlapiper.com/facebook-the-future-of-service-of-process/
October 12, 2009
Does Bankruptcy Eliminate Child Support In Some Cases?
I think this is pretty ridiculous, because in this case the child suffers here. A Georgia woman is being held personally liable for seeking child support payments from former University of Alabama and pro basketball player Jason Caffey after he had filed for bankruptcy protection.
U.S. Bankruptcy Judge Margaret A. Mahoney ordered Karen Russell to pay Caffey $57,470.50 after determining that an arrest warrant issued against the former Davidson High School standout violated rules prohibiting creditors from seeking debt collection during bankruptcy proceedings. Which seems like an oxymoron in my opinion.
At least here in California, child support payments are excluded in a Bankruptcy proceeding and thus it would seem absurd to fine someone who is attempting to collect child support payments. Each parent is financially responsible for caring for their children, bankruptcy doesn’t eliminate that responsibility and it seems as though mom is being punished here for collecting what she is owed. I truly hope someone takes a good look at this case and determines (like I have) that there is obviously a problem!
Caffey once starred at the University of Alabama before playing seven years in the NBA. Lately, he’s known more for fathering 10 children by eight different women. Many of those women – including Russell – have sued for child support, which prompted him to file for Chapter 11 protection in August 2007.
September 27, 2009
Support Needs Change – Will Your Support Order Adjust Accordingly?
In most cases, child care costs are included in any child support award if child care is necessary for either party to work. So what happens when child care previously awarded or the amount necessary has been decreased?
Although this may seem like a simple issue, that is not always the case. In many situations, when child support is awarded the child may be 4 or 5 years old, and the paying party may split the cost of child care/daycare. However, when that child gets older and begins school and other activities, such amount will most likely decrease.
In any order it is very important to specifically state what the actual “Guideline” Child Support will be and in addition specifically state in the order that the paying party is responsible for 1/2 or 50% of child care costs. This way as the needs of the child changes, the paying party will not be on the hook for the costs of the original order, but will pay the “actual” cost of childcare.
As the children grow older, some assume that the party paying child support is on the hook for half of all extracurricular expenses, which is not necessarily true. If the Parties share “joint legal custody” typically the Parties must “meet and confer” to determine which activities the children will participate in. If the Parties agree to the activities, on some levels they tend to agree to costs, etc. However, if one parent wants the children to participate in an activity and the other parent disagrees, that they may be solely on the hook to cover that expense.
Bottom line: Pay very close attention to the way your child support orders are worded and be sure to specify that the paying party is obligated for half the costs of child care, and attempt to stay clear of any specific amount. Because if there is a certain amount set and circumstances change, the paying party will have to seek a modification.
September 21, 2009
Divorce Issue: Determining Child Support When the Payer is a Business Owner
This is a touchy subject considering that most business owners report as little as possible on their tax returns and most businesses (at least service businesses) do not show much of a “surplus” of income. Not to mention that in cash businesses, it’s easy to ‘forget’ to report all cash!
When determining income, both parties to a divorce are required to complete a Income and Expense Declaration and sign under penalty of perjury. If either party is a business owner they are also required to bring tax returns and recent profit and loss statements to any court hearing on the matter.
Although most people are basically honest, on the subject of how much a business owner really makes it seems that more often than not they make more than an initial look at their books reveals.
So the next step is to subpoena bank records (business and personal) to determine if what the business owner reports as income actually matches what was deposited to all bank accounts and to look at and verify what is listed as expenses.
For example, if it’s stated that income from a business is only 5000 a month, but the expenses show 9000 a month and there is no other source of income, then this helps establish that the facts are being stretched and the business owner is earning more money than stated. Tip to business owner: Don’t overstate your expenses if you don’t want this used against you.
If initial review of the bank records shows a real discrepancy, sometimes a “forensic accountants” needs to be brought in to better determine the earnings of a business owner. Even with all this it is not easy to calculate it to the penny.
To top it off, it can be hard to collect support from an unwilling business owner. Issuing a wage garnishment order to a business owner to garnish their own checks is not very effective!
September 13, 2009
If You Can’t Do The Time, Pay The Support!
I just don’t get how this happens, especially if you have the money!
If you don’t have it, it’s different. And, yes just because you play football does not mean you always have it….but you are more likely to than not! Former NFL linebacker Dwayne Rudd has pleaded guilty to failure to pay more than $540,000 in child support. Wow! That is A LOT of money!
The U.S. attorney in Nashville announced this past Wednesday that Rudd, who played for Minnesota, Cleveland and Tampa Bay during his seven-season career, pleaded guilty in federal court last week and faces up to two years in prison, which sounds like someone was extremely angry with him and his failure to pay his child support obligations!
Court records shows that Rudd, who is 31 and lives in Atlanta, owes child support for his 11-year-old daughter, who currently lives with her mother in Tennessee.
Drafted by the Vikings in 1997, Rudd may be best known for costing the Browns a win against Kansas City in 2002.
According to court records, Rudd’s yearly income while in the NFL was about $5 million and since retiring he has been receiving annuity payments of about $11,000 a month, as well as income from investment sources and real estate income.
Rudd and Stacie Wade had a child in 1998, but never married. He was ordered by an Illinois state court to pay $7,500 per month in child support, but prosecutors say he consistently failed to pay.
“This is another sad example of a parent who has the means to pay child support, failing to meet his court-ordered responsibilities,” said U.S. Attorney Ed Yarbrough.
He is scheduled to be sentenced on Nov. 30.
Shaking My Head (SMH)….only because he actually had the money and didn’t pay!!
