By Katie Penny
I’m getting evicted! What is happening?
Eviction takes place when a person who is leasing something (usually a house or residence of some kind) ceases to retain the right to lease that something from the person leasing it to them. In other words, you can get evicted when your lease is broken.
A lease is a contract, just like most contracts, that has a party on either side: a lessee (the one paying for the use of the thing) and a lessor (the one accepting payment for the use of the thing). Unlike a sale, which exchanges ownership of an object, a lease exchanges simply the possession of the object. The lessee pays for the right to possess the object, and the lessor accepts payment in exchange for giving up possession of the object.
To make this easier, I will refer to the lessee as the occupant and the lessor as the landlord, and assume we’re discussing an apartment.
Leases do not necessarily have to be for specific amounts of time. Both the occupant and the landlord have certain obligations under the lease.
For example, the landlord must maintain the apartment in a condition suitable for the purpose for which the apartment was leased (usually, for living in), among other things. The occupant, for example, has a duty to pay rent, to be prudent in his use of the apartment, and to return the apartment in the same condition, except for normal wear and tear.
However, the lease can be terminated for various reasons. The term of the lease may simply have run—if it was merely for a year, then the passage of a year will mark the termination of the lease. If the occupant has failed to pay rent, the lease may be terminated because the occupant has violated the lease contract.
The lease contract may contain any number of reasons for which the lease may be terminated, so if you want to know how you can violate the terms of your lease, simply read it and see what was included when you signed it.
Once the lease has been terminated for any of those reasons, the landlord may deliver written notice to the occupant that he must vacate the premises within 5 days of delivery of the notice. If the landlord cannot locate the occupant, this notice can be attached to the door. At that point, the occupant has 5 days to vacate the premises and “deliver” it back to the landlord (“deliver” just means vacate and let the landlord take control of the apartment).
If the occupant does not vacate the premises within 5 days of the notice of eviction from the landlord, then the landlord can file suit for eviction in court, and serve a “rule to show cause” on the occupant. That means the landlord is demanding that the occupant come to a court hearing and “show cause” why the occupant should not be evicted.
The court hearing can be as soon as 3 days after the landlord serves the Rule to Show Cause on the occupant (which can also, if the occupant cannot be found, be attached to the door of the apartment). At that hearing, the occupant, if he believes he is being wrongfully evicted, should present evidence to the court showing that he did pay his rent, or show any opposition to the reasons that the landlord is attempting to have the occupant evicted. If the occupant either does not show up at the hearing, or the court decides the landlord is right about the eviction reasons, then the landlord will get a “judgment of eviction.”
If the landlord gets a judgment of eviction, the occupant has 24 hours to vacate the apartment. If the occupant still does not vacate within 24 hours after the judgment, then the court can immediately issue a warrant which orders the sheriff to “deliver possession of the premises.”
The sheriff delivering possession means the sheriff will move all of the property out of the apartment, and he can break any locked windows or doors in order to do it. It is possible for the occupant to appeal the court’s Judgment of Eviction, but even appealing the decision will not keep the sheriff from executing the warrant and moving the occupant's possessions out unless bond is posted with the court.
The worst thing of all is that you can waive the right to five days’ notice in the lease itself, and the landlord can simply file the Rule to Show Cause with the court without giving you any notice of eviction beforehand. This all seems really mean of the landlord.
However, remember that all of the things that the landlord is able to do, and all of the rights that the landlord has over you as his tenant, were given to him when you yourself signed the lease and entered into this contract.
I understand that most of us have very little power of negotiation with standard lease contracts, but if you actually read your lease and figure out what will lead to the landlord being able to evict you, it may help you avoid pitfalls and understand how to avoid getting into such an uncomfortable situation in the first place.
Monday, September 21, 2009
Wednesday, September 2, 2009
What in the world is a mortgage?
By Katie Penny
In law school, to illustrate mortgages, my professors always drew a diagram which resembled a kicked-over capital D. The two lines used to draw the D were arrows that represented the two transactions which had taken place, and it seemed simple enough. However, the amount of confusion about what mortgages actually are and the rights that they entail reveals that the simplicity of the diagram is a bit misleading. In light of the number of foreclosures taking place lately, and the fact that almost every homeowner in this country purchased their home with a loan and a mortgage, mortgages seem like an urgently pertinent topic.
The mortgage relationship at its simplest involves a borrower and a lender. The lender is usually a bank, so for simplicity’s sake, I will say “bank,” but anyone could be a lender to whom a mortgage is granted. Also, anyone could be a borrower, but in the most applicable case, it is a homeowner who has used the loan to purchase a residence.
In essence, when a simple mortgage has been granted, it means this: a bank loans a borrower money. To ensure that it will be able to get its money back, the bank gets the borrower to grant it a mortgage on the property the borrower is purchasing. [The bank gives you money; you give them a mortgage. These are the two lines of my D.] The loan debt is represented by a “promissory note,”—an IOU, if you will—and the borrower has a certain amount of time to pay back the debt, sometimes in installments or sometimes all at once. In exchange, the borrower/homeowner grants the bank a mortgage, which means the bank is “secured” for the amount of the loan through a right to the property on which the mortgage was granted—which is usually the very residence the loan was used to purchase.
In most simple homeowner mortgages, the mortgage document (which is separate from the promissory note) allows the bank to seize and sell the piece of property on which the mortgage was granted if the borrower goes into default on the loan. When the property is sold, the bank is entitled to take the outstanding amount of the loan out of the proceeds of the sale. That way, if you stop making payments on your loan, the bank has the right to take the property, sell it, and get the money you still owed.
I will now try to explain it yet again using actual numbers and names. Katie wants to purchase a house with a price of $250,000. She has 150,000 in the bank (ahh, sweet fantasy!!), but she needs someone to lend her the last $100,000. She goes to Moneybags Bank and they agree to lend her the $100,000 and give her 30 years to pay it back (with interest, of course) in monthly installments. To make sure they get their $100,000 back, Moneybags Bank demands a $100,000 mortgage on the house Katie is purchasing with the loan money. Katie signs the promissory note (this is the straight back of the capital D, by the way), and signs the mortgage (this is the potbelly bottom loop of the kicked-over capital D). She buys the house and moves in happily.
Unfortunately, after paying down $20,000 of the $100,000 debt, Katie finds herself unable to make a few loan payments. Because she has “defaulted” on her loan, the mortgage tied to that loan becomes enforceable by the bank. Moneybags Bank presents the promissory note and the mortgage to the court. If the mortgage and note documents have the proper requirements (and believe me, banks do not usually mess up on making sure mortgages have those requirements; they function on being able to enforce mortgages), the court orders the sheriff to “seize” Katie’s house (which usually just means putting a notice of seizure on the door) and the house is sold at a sheriff’s sale (basically, an auction at the courthouse.) The house sells for $120,000, despite its 300,000 value (since, though it increased in value while Katie owned it, property usually sells for much less than it is worth at a public auction). Katie still owed the bank $80,000 of her $100,000 loan, so the bank takes $80,000 of the $120,000 proceeds, and Katie—who, after all, put in $150,000 of the purchase price—gets the remaining $40,000.
When I say “this can get much more complicated,” I’m sure everyone who has watched the news in the past year would agree. You can grant multiple mortgages on your property, each tied to a different loan, and then when one of the loans is defaulted on, that mortgage becomes enforceable, but not necessarily the other ones (which are tied to other loans.) So older mortgages will stay “tied” to the property despite a sale, and some newer mortgages might be dissolved after the sale. Banks might grant mortgages, then sell the right to enforce the mortgages to other financial institutions. Sometimes, mortgages are not tied to specific loans, but rather to many different loans, or a line of credit. Sometimes there are collateral mortgages, but I don’t want to give anyone a headache.
At its most basic, taking out a loan and granting a mortgage means you give someone the right to sell your house out from underneath you if you do not make payments on the loan. If you take out a loan on which you know you will not be able to afford the monthly payments, do not be surprised when the lender exercises his rights and takes your property. It’s nice to get a loan and have cash in your hands, but when you grant a mortgage for that loan, believe me that you are not getting the money free. If you look up “money, strings attached” in the dictionary, you might just see a picture of my mortgage diagram.
In law school, to illustrate mortgages, my professors always drew a diagram which resembled a kicked-over capital D. The two lines used to draw the D were arrows that represented the two transactions which had taken place, and it seemed simple enough. However, the amount of confusion about what mortgages actually are and the rights that they entail reveals that the simplicity of the diagram is a bit misleading. In light of the number of foreclosures taking place lately, and the fact that almost every homeowner in this country purchased their home with a loan and a mortgage, mortgages seem like an urgently pertinent topic.
The mortgage relationship at its simplest involves a borrower and a lender. The lender is usually a bank, so for simplicity’s sake, I will say “bank,” but anyone could be a lender to whom a mortgage is granted. Also, anyone could be a borrower, but in the most applicable case, it is a homeowner who has used the loan to purchase a residence.
In essence, when a simple mortgage has been granted, it means this: a bank loans a borrower money. To ensure that it will be able to get its money back, the bank gets the borrower to grant it a mortgage on the property the borrower is purchasing. [The bank gives you money; you give them a mortgage. These are the two lines of my D.] The loan debt is represented by a “promissory note,”—an IOU, if you will—and the borrower has a certain amount of time to pay back the debt, sometimes in installments or sometimes all at once. In exchange, the borrower/homeowner grants the bank a mortgage, which means the bank is “secured” for the amount of the loan through a right to the property on which the mortgage was granted—which is usually the very residence the loan was used to purchase.
In most simple homeowner mortgages, the mortgage document (which is separate from the promissory note) allows the bank to seize and sell the piece of property on which the mortgage was granted if the borrower goes into default on the loan. When the property is sold, the bank is entitled to take the outstanding amount of the loan out of the proceeds of the sale. That way, if you stop making payments on your loan, the bank has the right to take the property, sell it, and get the money you still owed.
I will now try to explain it yet again using actual numbers and names. Katie wants to purchase a house with a price of $250,000. She has 150,000 in the bank (ahh, sweet fantasy!!), but she needs someone to lend her the last $100,000. She goes to Moneybags Bank and they agree to lend her the $100,000 and give her 30 years to pay it back (with interest, of course) in monthly installments. To make sure they get their $100,000 back, Moneybags Bank demands a $100,000 mortgage on the house Katie is purchasing with the loan money. Katie signs the promissory note (this is the straight back of the capital D, by the way), and signs the mortgage (this is the potbelly bottom loop of the kicked-over capital D). She buys the house and moves in happily.
Unfortunately, after paying down $20,000 of the $100,000 debt, Katie finds herself unable to make a few loan payments. Because she has “defaulted” on her loan, the mortgage tied to that loan becomes enforceable by the bank. Moneybags Bank presents the promissory note and the mortgage to the court. If the mortgage and note documents have the proper requirements (and believe me, banks do not usually mess up on making sure mortgages have those requirements; they function on being able to enforce mortgages), the court orders the sheriff to “seize” Katie’s house (which usually just means putting a notice of seizure on the door) and the house is sold at a sheriff’s sale (basically, an auction at the courthouse.) The house sells for $120,000, despite its 300,000 value (since, though it increased in value while Katie owned it, property usually sells for much less than it is worth at a public auction). Katie still owed the bank $80,000 of her $100,000 loan, so the bank takes $80,000 of the $120,000 proceeds, and Katie—who, after all, put in $150,000 of the purchase price—gets the remaining $40,000.
When I say “this can get much more complicated,” I’m sure everyone who has watched the news in the past year would agree. You can grant multiple mortgages on your property, each tied to a different loan, and then when one of the loans is defaulted on, that mortgage becomes enforceable, but not necessarily the other ones (which are tied to other loans.) So older mortgages will stay “tied” to the property despite a sale, and some newer mortgages might be dissolved after the sale. Banks might grant mortgages, then sell the right to enforce the mortgages to other financial institutions. Sometimes, mortgages are not tied to specific loans, but rather to many different loans, or a line of credit. Sometimes there are collateral mortgages, but I don’t want to give anyone a headache.
At its most basic, taking out a loan and granting a mortgage means you give someone the right to sell your house out from underneath you if you do not make payments on the loan. If you take out a loan on which you know you will not be able to afford the monthly payments, do not be surprised when the lender exercises his rights and takes your property. It’s nice to get a loan and have cash in your hands, but when you grant a mortgage for that loan, believe me that you are not getting the money free. If you look up “money, strings attached” in the dictionary, you might just see a picture of my mortgage diagram.
Saturday, August 22, 2009
Land Ownership: When Is It Yours?
By Katie Penny
Can you come to own land if you live there long enough?
It is a common belief among the public that if you live on a piece of land long enough, even if you do not technically own it, you can become the owner. For once, one of those strange legal urban legends that are kicked around is actually true.
This idea, in Louisiana, is known as “acquisitive prescription,” and it basically amounts to exactly what people think it does—if you live somewhere long enough, even if you never had good legal title to the land, you can actually become the legal owner of the property. The bad news is that you have to live there a really long time, and you still have to have yourself named the owner in a court proceeding before you can be the legal owner in the public records.
You can come to own something through acquisitive prescription if the thing you want to own is immovable (such as land, buildings, etc.) or movable (vehicles, jewelry, etc.), but the amount of time you must possess the item varies. There are two official kinds of acquisitive prescription for immovable pieces of property, a 10-year variety and a 30-year variety, and two types for movable property, a 3-year variety and a 10-year variety.
An important caveat here is that you can only gain ownership this way to certain types of property. You cannot just squat on government property for 30 years and come to own it, unfortunately. Only private property can come to be owned through acquisitive prescription. Common property and public property (such as the lawn of a courthouse or a public park), whether movable or immovable, cannot come to be owned through acquisitive prescription.
There are 3 requirements in order to be able to become the owner of immovable property in just 10 years, rather than 30 years. It must be private property that can come to be owned by acquisitive prescription to begin with. Then, you must actually physically possess the property continuously for at least 10 years.
For immovable property, physical possession means you do things on the property, like live on it, build fences, etc. Generally, if you use the land in a way that is typical for that kind of land, that would be physical possession. We do not expect you to build a high-rise on a swamp, that is; but if you cut down trees, or drain the swamp, or something someone would normally do who owned swampland, that would probably suffice.
Second, you must be in good faith (at least when you begin the possession of the property). Good faith means that you must reasonably believe that you actually do own the property.
“Reasonably,” for example, means that you could not put a tent in the State Capital and reasonably believe you could become the owner of the land under your tent. An ordinary person would have to believe reasonably that he could and does own the land, and he would have to have actually paid money for the property, and in an amount that a reasonable, ordinary person would expect that property to be worth.
Third, you must have what is called “just title.” This means that you have a document that is filed in the public records that would, under normal circumstances, have been enough to give you real actual legal title to the land.
Ten-year acquisitive prescription is actually intended to address a situation in which someone has done everything correctly to purchase and own some land, but it turns out that their paperwork was wrong or the lawyer goofed (that could NEVER happen, I tell you) drawing up the ownership paperwork, or the seller did not actually own the property they were trying to “sell”, or something else is wrong with the documents, but it was not really the fault of the buyer.
Then, if the buyer lives there for 10 years, physically possessing the land, and has what would reasonably be believed to be just title, filed in the public records , even if the “title” was not actually good, and the buyer was in good faith, then the buyer may be legally recognized as having become the owner of the property anyway through 10-year acquisitive prescription.
If you lack one of these elements, such as having a document that someone might reasonably consider to be a title transferring ownership, or you happen to know that someone else might have an ownership interest in the property, you may still become the owner through 30-year acquisitive prescription.
The only requirement for 30 year acquisitive prescription is that you physically possess the property for 30 years. Even if you know you do not own the property, even if you have no documents that say you might own the property, even if you know someone else does own the property, but you live publicly on the property uninterrupted for 30 years, you can come to court and be declared the legal owner. [If the real owner takes you to court, telling you to get off of his property, during the 30 years, that “interrupts” your 30 years.]
The idea behind 30 year acquisitive prescription is that we want land to be used. So, if someone is going to own property but never visit it, look at it, or take care of it for 30 years, so that some other person could come and live on their property for 30 years without them even noticing, we would rather the person who is actually living on and using the property be the owner than the legal owner.
[For movable property, the 3-year version has the same requirements as 10-year immovable acquisitive prescription; and the 10-year version for movable property has the same requirements as 30-year acquisitive prescription for immovable property.]
So, good luck to all the squatters out there. There’s hope!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Can you come to own land if you live there long enough?
It is a common belief among the public that if you live on a piece of land long enough, even if you do not technically own it, you can become the owner. For once, one of those strange legal urban legends that are kicked around is actually true.
This idea, in Louisiana, is known as “acquisitive prescription,” and it basically amounts to exactly what people think it does—if you live somewhere long enough, even if you never had good legal title to the land, you can actually become the legal owner of the property. The bad news is that you have to live there a really long time, and you still have to have yourself named the owner in a court proceeding before you can be the legal owner in the public records.
You can come to own something through acquisitive prescription if the thing you want to own is immovable (such as land, buildings, etc.) or movable (vehicles, jewelry, etc.), but the amount of time you must possess the item varies. There are two official kinds of acquisitive prescription for immovable pieces of property, a 10-year variety and a 30-year variety, and two types for movable property, a 3-year variety and a 10-year variety.
An important caveat here is that you can only gain ownership this way to certain types of property. You cannot just squat on government property for 30 years and come to own it, unfortunately. Only private property can come to be owned through acquisitive prescription. Common property and public property (such as the lawn of a courthouse or a public park), whether movable or immovable, cannot come to be owned through acquisitive prescription.
There are 3 requirements in order to be able to become the owner of immovable property in just 10 years, rather than 30 years. It must be private property that can come to be owned by acquisitive prescription to begin with. Then, you must actually physically possess the property continuously for at least 10 years.
For immovable property, physical possession means you do things on the property, like live on it, build fences, etc. Generally, if you use the land in a way that is typical for that kind of land, that would be physical possession. We do not expect you to build a high-rise on a swamp, that is; but if you cut down trees, or drain the swamp, or something someone would normally do who owned swampland, that would probably suffice.
Second, you must be in good faith (at least when you begin the possession of the property). Good faith means that you must reasonably believe that you actually do own the property.
“Reasonably,” for example, means that you could not put a tent in the State Capital and reasonably believe you could become the owner of the land under your tent. An ordinary person would have to believe reasonably that he could and does own the land, and he would have to have actually paid money for the property, and in an amount that a reasonable, ordinary person would expect that property to be worth.
Third, you must have what is called “just title.” This means that you have a document that is filed in the public records that would, under normal circumstances, have been enough to give you real actual legal title to the land.
Ten-year acquisitive prescription is actually intended to address a situation in which someone has done everything correctly to purchase and own some land, but it turns out that their paperwork was wrong or the lawyer goofed (that could NEVER happen, I tell you) drawing up the ownership paperwork, or the seller did not actually own the property they were trying to “sell”, or something else is wrong with the documents, but it was not really the fault of the buyer.
Then, if the buyer lives there for 10 years, physically possessing the land, and has what would reasonably be believed to be just title, filed in the public records , even if the “title” was not actually good, and the buyer was in good faith, then the buyer may be legally recognized as having become the owner of the property anyway through 10-year acquisitive prescription.
If you lack one of these elements, such as having a document that someone might reasonably consider to be a title transferring ownership, or you happen to know that someone else might have an ownership interest in the property, you may still become the owner through 30-year acquisitive prescription.
The only requirement for 30 year acquisitive prescription is that you physically possess the property for 30 years. Even if you know you do not own the property, even if you have no documents that say you might own the property, even if you know someone else does own the property, but you live publicly on the property uninterrupted for 30 years, you can come to court and be declared the legal owner. [If the real owner takes you to court, telling you to get off of his property, during the 30 years, that “interrupts” your 30 years.]
The idea behind 30 year acquisitive prescription is that we want land to be used. So, if someone is going to own property but never visit it, look at it, or take care of it for 30 years, so that some other person could come and live on their property for 30 years without them even noticing, we would rather the person who is actually living on and using the property be the owner than the legal owner.
[For movable property, the 3-year version has the same requirements as 10-year immovable acquisitive prescription; and the 10-year version for movable property has the same requirements as 30-year acquisitive prescription for immovable property.]
So, good luck to all the squatters out there. There’s hope!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Thursday, July 30, 2009
Traffic Ticket Know How
By Katie Penny
Is it worth going to a court date for a traffic ticket?
Unfortunately, as with most legal questions, the answer must be a decidedly and teeth-grindingly ambiguous, “it depends.” The most important thing to do is call the district attorney’s office and find out if court appearance is mandatory for the offense for which you were ticketed—and these are not immediately obvious, so always call to find out. If it is mandatory, then, you have to go to court. If it is not mandatory, then read on.
A traffic citation proceeding is a criminal one, in which the district or city attorney proceeds against the citizen. In any criminal proceeding, the offender has 3 options: to plead guilty, not guilty, or no contest (no lo contendere—is only done rarely for traffic offenses.) Pleading “guilty” sounds very serious—and it generally is—but it is often, in small issues like speeding, not a bad choice, because of the costs and trouble inherent in pleading not guilty. By pleading guilty, you waive the right to have a criminal trial in which to defend yourself and present witnesses in your defense, you admit your guilt, and accept the penalty.
If court attendance is not mandatory, you have the option of paying the fine or attending the court date to argue against the ticket. In essence, paying your fine equals pleading guilty. Showing up to court should mean pleading not guilty. You are given a certain amount of time, usually from 30 days to several months—it will say on the ticket and vary from parish to parish—to pay your fine before your court date.
Unfortunately, many people do not understand what their options are when they are issued a ticket, and they often do show up at their court dates simply intending to pay their fine. If you pay the fine, you have pled guilty and it is over. If you show up at your court date when it is not mandatory, the DA will view that as you pleading not guilty and contesting the grounds of the ticket. If you do not intend to contest your ticket and attendance is not mandatory, there is no reason to come to court.
The best advice, when you do agree that you were actually violating a traffic law—let’s say you were speeding—is not to go to court. Call the DA’s office, find out the amount of your fine, and find out where you are to pay the fine, go to that place, and pay the fine. Always ask what form your payment may take, as many parishes or cities will not accept personal checks, but only cash or cashier’s checks.
If you know you were guilty, and the police officer who issued you the ticket clocked you speeding and will testify against you at trial, then there is no real reason to come to court. If you come to court and admit you were speeding, you will simply be directed to the bonds and fines department of the sheriff’s office to pay your fine, which you could have done already without missing a day of work to go to traffic court.
If you do believe, on the other hand, that you were not really speeding and that the state could not prove you were, then by all means attend your court date. At that date, you should be prepared to go to trial: you must present evidence disputing the DA’s evidence of your guilt, i.e., your traffic citation issued by a police officer and that officer’s testimony.
Your court date is the time to bring witnesses and evidence to prove you were not speeding—or doing whatever your ticket was for. Your court date is not the time to show up and say you want to bring witnesses some time in the future. Go ahead and bring them with you. Simply showing up at court does not mean you will be judged not guilty, however; it just means that the DA will put on evidence that you were guilty and you will put on evidence that you were innocent, and the judge will decide who is right. That is not to deter people from pleading not guilty—if they truly were not guilty.
However, it might be difficult to prove—without video of your speedometer not speeding—and if you really kind of know you were speeding, and are just mad about getting caught, just pay the fine.
Other things to remember:
• Almost all of these things depend hugely on your particular parish. My best advice is to call the DA or sheriff’s office to find out your options in your parish.
• If you forget about your ticket until the day of your court date, and your head pops off your pillow in panic, then, yes, attend your court date rather than failing to pay your fine on time. If you do not pay your fine or show up to court on a non-mandatory citation, your driver’s license might end up getting suspended. If you do not come to a mandatory court date, the judge will issue a bench warrant on you. Very unappealing.
• If you cannot afford to pay your ticket all at once, then try calling whatever department collects fines and speak to them ahead of time about possibly setting up a payment plan to pay your ticket in installments. Whoever collects fines in your parish might be willing to work with you if you are being proactive about taking care of a fine. If your parish’s fine collector will not set up payment plans, then you can still usually show up at your court date and ask for an extension of time in which to pay the fine.
• The best advice of all: drive safely and do not break traffic laws in the first place!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Is it worth going to a court date for a traffic ticket?
Unfortunately, as with most legal questions, the answer must be a decidedly and teeth-grindingly ambiguous, “it depends.” The most important thing to do is call the district attorney’s office and find out if court appearance is mandatory for the offense for which you were ticketed—and these are not immediately obvious, so always call to find out. If it is mandatory, then, you have to go to court. If it is not mandatory, then read on.
A traffic citation proceeding is a criminal one, in which the district or city attorney proceeds against the citizen. In any criminal proceeding, the offender has 3 options: to plead guilty, not guilty, or no contest (no lo contendere—is only done rarely for traffic offenses.) Pleading “guilty” sounds very serious—and it generally is—but it is often, in small issues like speeding, not a bad choice, because of the costs and trouble inherent in pleading not guilty. By pleading guilty, you waive the right to have a criminal trial in which to defend yourself and present witnesses in your defense, you admit your guilt, and accept the penalty.
If court attendance is not mandatory, you have the option of paying the fine or attending the court date to argue against the ticket. In essence, paying your fine equals pleading guilty. Showing up to court should mean pleading not guilty. You are given a certain amount of time, usually from 30 days to several months—it will say on the ticket and vary from parish to parish—to pay your fine before your court date.
Unfortunately, many people do not understand what their options are when they are issued a ticket, and they often do show up at their court dates simply intending to pay their fine. If you pay the fine, you have pled guilty and it is over. If you show up at your court date when it is not mandatory, the DA will view that as you pleading not guilty and contesting the grounds of the ticket. If you do not intend to contest your ticket and attendance is not mandatory, there is no reason to come to court.
The best advice, when you do agree that you were actually violating a traffic law—let’s say you were speeding—is not to go to court. Call the DA’s office, find out the amount of your fine, and find out where you are to pay the fine, go to that place, and pay the fine. Always ask what form your payment may take, as many parishes or cities will not accept personal checks, but only cash or cashier’s checks.
If you know you were guilty, and the police officer who issued you the ticket clocked you speeding and will testify against you at trial, then there is no real reason to come to court. If you come to court and admit you were speeding, you will simply be directed to the bonds and fines department of the sheriff’s office to pay your fine, which you could have done already without missing a day of work to go to traffic court.
If you do believe, on the other hand, that you were not really speeding and that the state could not prove you were, then by all means attend your court date. At that date, you should be prepared to go to trial: you must present evidence disputing the DA’s evidence of your guilt, i.e., your traffic citation issued by a police officer and that officer’s testimony.
Your court date is the time to bring witnesses and evidence to prove you were not speeding—or doing whatever your ticket was for. Your court date is not the time to show up and say you want to bring witnesses some time in the future. Go ahead and bring them with you. Simply showing up at court does not mean you will be judged not guilty, however; it just means that the DA will put on evidence that you were guilty and you will put on evidence that you were innocent, and the judge will decide who is right. That is not to deter people from pleading not guilty—if they truly were not guilty.
However, it might be difficult to prove—without video of your speedometer not speeding—and if you really kind of know you were speeding, and are just mad about getting caught, just pay the fine.
Other things to remember:
• Almost all of these things depend hugely on your particular parish. My best advice is to call the DA or sheriff’s office to find out your options in your parish.
• If you forget about your ticket until the day of your court date, and your head pops off your pillow in panic, then, yes, attend your court date rather than failing to pay your fine on time. If you do not pay your fine or show up to court on a non-mandatory citation, your driver’s license might end up getting suspended. If you do not come to a mandatory court date, the judge will issue a bench warrant on you. Very unappealing.
• If you cannot afford to pay your ticket all at once, then try calling whatever department collects fines and speak to them ahead of time about possibly setting up a payment plan to pay your ticket in installments. Whoever collects fines in your parish might be willing to work with you if you are being proactive about taking care of a fine. If your parish’s fine collector will not set up payment plans, then you can still usually show up at your court date and ask for an extension of time in which to pay the fine.
• The best advice of all: drive safely and do not break traffic laws in the first place!
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Tuesday, July 21, 2009
Legal Eagle - Covenant Marriage In Louisiana
By Katie PennyTimes Columnist
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the below legal concepts.
There are only 2 kinds of marriage that can be entered into in Louisiana: covenant marriages or non-covenant marriages. The creation of the covenant marriage in Louisiana was quite controversial, but it is not really used very often, because entering into a covenant marriage, rather than an ordinary marriage, is completely optional. Once entered into, however, the fairly stringent requirements for entering and exiting the marriage are treated as contractual, and are, and tend to frighten off even some supporters of the Covenant Marriage Act (located in Louisiana Revised Statutes 9:272-276, established in 1997).
Of course, marriage itself is pretty serious, so even a regular marriage should not be entered into lightly—one would hope. A covenant marriage can be thought of as extreme-marriage, or marriage+, as the difference lies mainly in the more onerous requirements for the marriage to be formed and/or terminated.
A regular marriage has only 3 basic requirements: 1) There must be a marriage ceremony, performed by some authorized third party, attended by both husband and wife in person. That means that “common law marriages,” which some other states recognize when the parties have lived together as man and wife for a certain amount of time, but never had a wedding ceremony, are not valid marriages in Louisiana. 2) Both parties must verbally express their mutual, freely given consent. A minor must have permission of custodians or even have court authorization. 3) There must be no legal impediment to the marriage. In Louisiana, there are 3 of these legal impediments: 1) bigamy 2) same-sex 3) blood relation to a certain degree.
Marriage is not permitted between certain blood relatives (including adoptive relatives, with the caveat of legal permission in some cases), such as direct ascendants or descendants, and siblings, cousins, or uncles/aunts. Also, if the relationship is simply through marriage, and not blood, a marriage will be permitted.
To enter into a covenant marriage, all of the above requirements still exist. However, a covenant marriage has various extra requirements. The parties must also receive at least one session of premarital counseling—and obtain an affidavit from that counselor attesting that they were so counseled—and receive and read a pamphlet on covenant marriage prepared by the attorney general. The parties must declare their intent to enter into a covenant marriage on their marriage license application. They must also execute a “declaration of intent to contract a covenant marriage.”
The declaration includes a statement by the parties that they understand that they are “a man and a woman who agree to live together as husband and wife as long as they both may live.” (La. R.S. 9:273(A)(1). They have an affirmative duty to tell each other of anything that could negatively affect the other person’s decision to enter into marriage. The affidavit from the counselor must be included with the declaration of intent, and one copy of the declaration affidavit should be retained by the parties and the other copy should be filed with the official who issues the marriage license.
At that point, a covenant marriage is just like any other marriage, with the same obligations and duties of the parties. It also creates community property between the parties just like a regular marriage.
The next big difference arises if the parties decide they don’t like each other as much as they thought they did and want to either separate or divorce. In Louisiana, there are 3 basic grounds for divorce in a non-covenant marriage: when the parties live separate and apart for either 6 months—when there are no minor children—or 12 months—when there are minor children—when a party has committed adultery, or when one of the spouses has committed a felony and been sentenced to death or imprisonment with hard labor. These basic divorce requirements are fairly minimal, and the “living separate and apart” is the result of the institution of no-fault divorce in Louisiana. In some ways, a covenant marriage is simply an optional reinstitution of a divorce system where the parties do have to show fault of the other party.
The grounds for divorce in a covenant marriage are located in Louisiana Revised Statutes 9:307. These requirements ultimately amount to the fact that simply living apart is not really enough to get a divorce when one has entered into a covenant marriage, whereas living apart long enough will be perfectly sufficient to obtain a regular divorce.
The marriage can be terminated only after the parties receive counseling—from the time the marital difficulties begin until the divorce judgment is signed—and only if the party can also show one of the following grounds: 1) the other spouse committed adultery 2) the other spouse committed a felony and has been sentenced to death or imprisonment with hard labor 3) the other spouse has abandoned the marriage for one year and constantly refuses to return 4) the other spouse has physically or sexually abused the spouse seeking the divorce or a child of one of the spouses 5) the spouses have been living separate and apart without reconciliation for at least two years 6) the spouses have been living separate and apart from one year since a judicial separation was signed—judicial separations are not used in anything but covenant marriages anymore; in a regular marriage, just living apart for one year alone would entitle a party to a divorce.
7) if there is a minor child of the marriage, and the spouses have been living separate and apart for 18 months since the signing of the judicial separation—unless the basis for the judicial separation was abuse of a spouse or child, in which case the time period for obtaining the divorce after a judicial separation remains one year even when there is a minor child. A judicial separation can be obtained for basically the same reasons as above, except that it also may be obtained for habitual “intemperance” of the other spouse, excesses, cruel treatment, or outrages, or ill treatment that renders living together insupportable.
However, and to calm somewhat the outraged opponents of covenant marriage who think covenant marriage is unfair when there is abuse, the pre-divorce counseling requirement is done away with when the other spouse has physically or sexually abused the spouse seeking the divorce or one of the children.
Thursday, July 9, 2009
How To Legally Change Your Name
By Katie PennyTimes Columnist
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the below legal concepts.
Were your parents hippies? Have you paid the price for it? Sunflower Peaceandlove Smith? Mario Savio Jones? Do you cringe when people ask you your middle name? Fortunately, although we get named when we cannot yet roll our eyes at our parents, the law provides a procedure by which one’s name may be legally changed! And the process is neither as complex nor as simple as the average person probably imagines.
The reason people often think the process is simple is probably because of maiden names—and books, in which people always seem to be able to prance to the courthouse to get their name changed on a coffee break.
Taking your spouse’s last name is completely optional in these liberated days. If you do want to take your spouse’s name, however, the marriage license acts in the same way as a signed court order authorizing a name change, and it may be presented in the same way to the various organizations with whom a name change must be registered—except the Department of Vital Statistics, because only a court order will authorize a name change on a birth certificate.
So, if you want to change your surname because you have gotten married, you need not go through the following procedure. Tip to new brides: don’t buy honeymoon airplane tickets in your new name. Your passport cannot be changed until after you get the license, and international airport security is…tetchy, these days, about the name on the plane ticket matching the name on the passport.
And also, on the other end of the marriage spectrum, tip to new divorcées: if you request in the petition for divorce that you be permitted to revert to your maiden name after the divorce is final, the judgment of divorce will act in the same way as the marriage license.
All the court order—or marriage license/ judgment of divorce—really does is give you the authority to have all of the other important organizations change your name. If the court authorizes a name change, you yourself still have to contact the DMV, the social security office, the Department of Vital Statistics, etc., and have your name actually changed with them. Having the court approve a name change is just the necessary first step.
Another important caveat is that Louisiana law does not permit someone convicted of a felony—any felony, violent or not—to petition for a name change during their imprisonment, parole, or probation. Someone who has previously been convicted of a violent felony is not permitted to petition the court for a name change at all.
Also, petitioning the court for a name change for a minor is a bit more complicated than for an adult. Because a minor is not allowed to conduct legal acts, a petition to change a minor’s name must be brought by the minor’s parents, or other legal custodian, if there are no living parents, on behalf of the minor. With some exceptions regarding child support and communication, both parents must sign the petition for the change of name.
In a name change proceeding, the person who wants the name change is the plaintiff; the defendant in a name change proceeding is, by law, the district attorney of the parish in which the petition is brought.
In the petition, the requester has to give certain information to the court: the requester’s name at birth, their birth date, their birth place, their mother’s maiden name, their father’s name, and a reason for the desired change. The reason is very important, as the judge must make a determination that the law and evidence justify the name change. The reason does not always have to be a very good reason. An example might be: “My name is Sue and I’m a man and I keep getting attacked for it.” The judge needs to know your reason nonetheless. You should also inform the court of the name you are changing to.
Because the DA is technically the defendant in the name change proceeding, he or she has to be legally served with the petition and he has to respond to it. So, the requester will write up the petition, have the DA served, and the DA will either contest the proceeding or not. If the DA finds that you are not a felon and that there is no other impediment to the change, he will probably not object. If he does, though, the court can set a hearing at which the requester and the DA can explain their reasons and/or objections.
If the judge finds that the change is justified, such as when a gentleman is named Sue, the judge will sign a judgment authorizing the name change.
At that point, your work really begins. The judgment must be presented to any organization with whom the requester’s name must be changed. The responsibility to have your name changed on your passport belongs to you; getting a new driver’s license is your job. The most difficult part of all of this is probably remembering all of the places you need to tell about your name change and then getting through their red tape.
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the above legal concepts.
Tuesday, June 9, 2009
The Rights of Step Parents To Step Children
By Katie PennyTimes Columnist
The provided information is fact-sensitive and jurisdiction-dependent. Consult an attorney before employing the below legal concepts.
What are the rights of step parents to step children? The answer to this is, perhaps unfortunately, not many. At no point short of legal adoption of a step child, which itself requires the relinquishment of parental rights by the other natural parent (i.e., the other biological parent—there are 2 biological parents to every child, called the natural parents, and they are entitled to authority over their child) is a step parent considered a legal parent of a step child.
The natural biological parents, unless deemed unfit, retain all legal rights to control of their minor children. Consequently, step parents have very little authority over their step children (at least legally) simply by virtue of marrying a natural parent.
A general understanding of how custody and visitation of children is handled in this state can help explain why the rights of non-biological parents are so limited. There are 3 basic custody arrangements into which natural parents who are either divorced or unmarried may enter to control the time each parent will spend with the child and the authority each will have over the child.
The 3 arrangements are subject to virtually unlimited variation, however, depending on the specific schedules and needs of the children and parents involved. Sole Custody is when primary legal custody and control is given to only one parent and specific visitation times are given to the other parent. Shared Custody is a relatively rare plan where the parents have dual primary custody and authority and almost equal time with the child. Joint Custody is a plan where one parent is designated the “domiciliary parent,” with whom the child primarily lives, and the other parent, known as the non-domiciliary parent, is granted specific times to exercise his or her custody.
In joint custody, the most prevalent custody arrangement, the parents have almost equal rights to contribute to decisions about the child. However, when the natural parents cannot agree, the decision of the domiciliary parent will prevail. In sole custody, the parent who has sole custody is entitled to make all important decisions in the upbringing of the child (for example, in what religion the child will be raised, what school the child will attend, medical decisions about the child, etc.) In all events, the court is concerned only with what arrangement would be in the best interest of the child.
In any of these arrangements, the step parent is never given authority over the child, other than perhaps influence or conversation with the natural parent spouse. The step parent is not granted any decision-making rights to the child.
This seems bleak, especially to the many excellent step parents who care deeply about their step children’s welfares. As long as both natural parents can agree, the parents can come to any agreement that will work best for the two families. Therefore, if the parents can agree to it, the step parents can have as much time or contact with the child as they want (even visitation with the step parent when the natural parent is absent—if the parents can agree to that.)
Ex-spouses are perhaps understandably uncomfortable with the idea of a new step parent and often jealous of the influence of this new “replacement” parent. This often leads to the natural parent trying to keep the child away from the step parent. However, unless the natural parent can show that the other natural parent’s new spouse is somehow harmful to the child, the natural parent cannot force their ex-spouse to keep the child from the step-parent. The new step parent, by virtue of the marriage to the natural parent, is a part of the child’s life now, and the other natural parent, even if they are unhappy with the ex-spouse’s remarriage, cannot restrict the relationship with the new step parent.
Certainly, a step parent may be authorized by a natural parent to pick up the child from day care or school; no one can be there absolutely every day to pick a child up and the law would certainly permit a natural parent to have such help. However, the authority to make major decisions for the child rests with the natural parent, not with the step parent. The opinion of the step parent as to the decisions made for the child by the natural parents is fairly irrelevant, again except insofar as informal influence on their natural parent spouse.
Let me reiterate: the law does not bar associations or relationships with the step child by the step parent (except, of course, if the relationship is found to be harmful to the welfare of the child.) We would love for every child of divorce to have not just 2, but 4 loving, caring parents who have only their best interest in mind. The step parent can act as a parent as much as they are able as far as loving, providing for, and caring for the child.
Nevertheless, the authority to authorize medical procedures and courses of treatment for the child rests with the natural parents. The capacity to represent the minor in legal proceedings rests in the natural parents. The right to request (or demand, but let’s pretend everyone is nice enough to simply request) time with the child generally rests with the natural parents, and not with the step parents.
However, in some extraordinary circumstances (as when the natural parent has died or is incarcerated), a former step parent or step grandparent may be granted some visitation rights. That is, if the court finds that it is in the best interest of the child and considering many different factors of the individual case. The law does provide for some grandparent or sibling visitation in very limited extraordinary circumstances as well.
When both natural parents are present, capable, and not incarcerated, however, the rights of step parents to direct the child and spend time with the child are rather limited to what the natural parents can agree to. The harmony of the situation is always improved for everyone, especially the child, when all of the parties can amicably agree and can allow as many parents to care for the child as would like to.
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