Co-Parenting Tips for the Holidays

                Lisa Garbardi, Ph.D, is a mental health specialist that deals with difficulties like co-parenting after a divorce. She wrote an exceptional article comparing co-parenting over the holidays to Charles Dickens story, A Christmas Carol. She speaks about the bitterness that can come with the divorce process, especially through litigation, and how that effects parent’s enjoyment of the holidays.

                Here is a link to the article. If you are going through your first (or twentieth) holiday after a divorce, it is worth the read.

                http://gabardi.com/2014/12/14/a-lesson-from-dickens-for-co-parents-this-holiday-season/

Workers’ Compensation: What am I entitled to?

                A person that gets injured at work is often unaware of the process involved in workers’ compensation cases, and even more unaware of what they are entitled to. In the first instance, the most important thing is getting medical treatment for the injury they sustained. If the injury occurred within the scope of employment, the workers’ compensation insurer is required to pay for all related medical bills. So, if a person hurts themselves badly at work and has to go to the emergency room, then the workers’ compensation insurer will have to pay for it. In order to have them pay in the first instance, the employer and employee complete a first report of injury. This specifies what happened, where it happened, and how it happened. Then the employee gets the insurance information in order to have the medical provider bill the workers’ compensation insurer directly.

                If the injury takes the person out of work, in New Hampshire the person is entitled to what are called “indemnity benefits”. This is a term that really means “wage benefits”. A person gets paid for the time they miss from work, and in NH this means sixty percent (60%) of their average weekly wage. Thus, if the person makes $1,000.00 per week, their workers’ compensation benefit should be $600.00 per week. In Massachusetts, this figure is virtually identical. However, in Massachusetts, if a worker can prove a permanent and total disability, they would be entitled to sixty-six percent (66%) of their average weekly wage.

                A person may also be entitled to a permanent impairment award. This is only in cases where a person suffers a permanent injury. In NH and MA, the person is entitled to a specific one-time award for this permanent disability. Further, while MA a person may be entitled to scarring and disfigurement awards without the necessity of a permanent injury, a person in NH can only obtain a scarring and disfigurement award if it is part of another permanent disability from the injury.

                Workers’ compensation cases are very complicated, and very often contested. There are usually multiple hearings on any given case, and navigating that process in NH and MA can be very difficult without counsel. The experienced attorneys at Parnell, Michels and McKay can help injured workers navigate this process effectively, and allow them to recover the full amount they are entitled to. If you are in need of legal help from a work related injury, please contact our office to find out what your rights are. 

TIMING OF DIVORCE IN PREPARATION FOR COLLEGE

As couples with teenage children are considering divorce,  one of the things to think about is the timing of the divorce.  We have always considered the timing of divorce as this impacts the parties’ ability to file a joint income tax return.  However, I had never considered how this might impact their children’s ability to get financial aid.  I recently came across a post from Robert Bordett, a Certified Financial Planner and Certified Divorce Financial Analyst in Georgia, in which he shares some information he learned about the timing of divorce and its impact on financial aid. http://www.familyaffaires.com/co-parenting-work-together-divorce/.

A collaborative divorce process allows the family to consider all factors associated with their divorce, including the timing.  As Mr. Bordett explains, the timing of the divorce can be crucial to the child’s ability to get financial aid.  This is because the income that is considered on the FAFSA (Free Application for Federal Student Aid) form is the parent’s income for the year prior to the start of college.  If a couple’s divorce is final in January of 2015 and the child starts college in September of 2015, the information from the joint tax return must be used for the FAFSA form.  If the divorce is final in December of 2014, then the information from the primary residential parent’s tax return can be used instead.  If the primary residential parent is the lower wage earner, this can make a significant difference on the amount of financial aid the child receives.  

This is just one of many reasons that the Collaborative divorce process makes sense.  It provides the necessary information and flexibility to enable parties to consider things like the timing of their divorce. 

PERSONAL INJURY SERIES: HAVING A LIEN ON YOUR SETTLEMENT OR JUDGMENT ON AN INJURY CASE

                When a person gets injured, the last thing they are thinking about is how the various insurances interplay with one another. The first thing that should always be focused on is getting the necessary medical treatment. At our firm, we have a textured knowledge of insurance law and how each policy affects the other and we can unwind the confusing mess that a personal injury claim becomes. This allows our clients to focus on the treatment they are receiving, while we focus on getting the right insurance to pay for our client’s medical bills.

                There are three basic sources for payment of medical bills. The first is obvious, and it the health insurance for our clients. The second is no fault coverage, and not everyone is aware that this provision in your automobile policy covers medical bills from an accident. This takes the form of “medical payments coverage” in New Hampshire, and “personal injury protection (PIP)” in Massachusetts. Our attorneys are very familiar with both types of insurance, and can help utilize these sources to reduce your obligations at the end of the case.

                If your health insurance pays bills, then the health insurer has a right of recovery against our client’s settlement or judgment called a “subrogation” right. Often, the health insurer will send our office a notice requesting a lien on the file. This is due to the fact that a person injured in an accident is not allowed to get a “double recovery”. This would be where health insurance pays a bill, and then the client takes a settlement that includes compensation for those bills but does not pay the health insurer back. This right of subrogation by a health insurer is a contractual right included in the health insurance policy. Accordingly, it almost always must be paid back.

                If a client has Medicare, Medicaid or Tricare (a/k/a “military”) insurance, then each has a statutory right to be paid back from a settlement or judgment our clients secure. This is based on the same “double recovery” principle, except the rules are much stricter and coordination of benefits becomes very important. Medicare, especially, can create significant delays in resolving these subrogation liens, so it is always important to talk to an attorney about your rights in your case.

                There are other forms of liens in Massachusetts, including statutory hospital liens. In all cases, the interplay of the various insurances involved become very important to coordinate. For example, the medical payment coverage referenced above does not include any subrogation rights. This means that if your medical payment portion of your policy pays a bill, then they cannot recover that payment from the settlement or judgment. Thus, it becomes very important to find an attorney with a detailed knowledge of the insurance rules and how liens on injury files work.

                Personal injury cases are complex and require the assistance of experienced attorneys to help you navigate the various pitfalls and maximize the value of your case. If you were injured and need assistance, contact our office today and put our decades of experience to use.

Revocable Trust v. Will: What is the best choice for you and your family?

            We often get questions on whether a client should have a will or a trust, and what the benefits of each are. For each client, there are benefits to both types of estate plans.

            Wills are simple and can be much cheaper to complete then trusts. They direct where your property goes when you pass into the great beyond, and they can provide direction to your family when they deal with your passing. However, wills can sometimes be inefficient to deal with the property in a way that you want, and they require the will to be probated in Court. They are also public documents that can be viewable at Court, and for some more private people that can be a problem.

            Revocable trusts provide clients with more options on how to deal with their property. A trust can avoid the problems of probate, and address specific situations like what happens if you become incapacitated. Trusts are private agreements and do not become public records. They can provide a trustee to make decisions if a beneficiary is not properly prepared to receive the property. A trust can be effective for life, and most importantly you can maintain control over your assets during your life. Trusts also can provide protections for situations like divorce or drug abuse, and allow a person to maintain control over their assets during their life. There are some cons to trusts as well, like the cost which is more expensive than wills. Trusts can be time consuming, and may involve other potential costs as part of the trust’s creation.

            There are also ways to essentially combine a will and trust with what is called a “pour over clause” in your will. In this situation, you can create a trust through that provision which effectively funds the trust at the time of your passing. Any such provisions need the careful attention of an estate planning attorney who understands the estate process.

            No matter what you choose for yourself and your family, it is always important to get proper legal advice on which options would benefit you the most. The experienced estate planning attorneys at Parnell, Michels and McKay can help you determine which options are best for you, and prepare an estate plan tailored to your needs. Should you be interested in finding out which options work best for you, contact our office to schedule an appointment. 

YOUR DRIVER’S LICENSE: A PRIVILEGE, NOT A RIGHT

                It is often a concern of clients of ours that are facing violations of New Hampshire’s driving laws that they normally face two hearings after being arrested. The most common forms of these are when a person is arrested for driving while under the influence of alcohol or drugs. There is often concern and confusion about the dual hearings and what they both mean.

                In New Hampshire, when a person is arrested for driving under the influence they face two hearings. The first, if they request it, is called an “Administrative License Suspension Hearing” or “ALS hearing” for short. These hearings are done at an administrative office in Concord at the Bureau of Hearings, which is a part of the New Hampshire Department of Safety. These hearings are often based on someone testing with a blood alcohol level (BAC) of 0.08 or higher, or because a person refused a blood or breath test. The result is a hearing at the Department of Safety where the hearing is held to determine whether the Department can suspend your license for a period of time. This is not a criminal conviction, but an administrative one. The difference is in the standard of proof that must be met.  In an ALS hearing, the burden for the State is much lesser to get the license suspension upheld than it is in the criminal case. In a criminal case, the standard is beyond a reasonable doubt, which the standard most people know in criminal cases.

                The reason that the State can suspend your license under a lesser burden of proof lies in the fact that a driving license is a privilege, and not a right. Thus, the standard of proof for the State is much lesser. Whereas the criminal case can involve jail time and fines, and the deprivation of personal liberty requires a much higher standard like beyond a reasonable doubt. Your freedom to be free is a right you have under the U.S. Constitution, and the State cannot take that away without proving you committed a crime beyond a reasonable doubt. 

                Now this lesser standard of proof at ALS hearings does not necessarily mean that winning an ALS hearing is impossible. The state has to meet a smaller burden, but still needs sufficient facts to meet that burden to sustain the license suspension. There are many issues that are created by arresting officers, and it is important to consult an attorney to find out what rights you may have in your case.

                If you find you need an attorney as you were charged with driving under the influence, contact our office today to find out what you can do to preserve your privileges, and your rights. 

Injury Claims – The Road Map to Getting Back to Normal

The key to understanding injury claims is that claims handling is driven by insurance requirements. The vast majority of injury claims are resolved by settlement.  The parties to the settlement discussions are most commonly the injured party, his/her attorney and an insurance company. It is necessary to know how insurance companies process claims in order to achieve the best possible result. The most important thing to remember is that insurance companies rely heavily on objective information to form a valuation of each claim. This comes in the form of medical and billing records, accident reports, pictures, lost wages documentation, investigative reports and other related records. The more complete your documentation the better your chance of a satisfactory result. Gathering documentation should be your first priority when you suffer from an unfortunate injury.

Here at Parnell, Michels & McKay, we make information gathering a top priority in each injury claim we handle. Our attorneys and investigative team have the knowledge and experience to be able to track down every piece of important documentation on your claim. We understand what insurance companies are looking for, and we exert pressure on insurance companies based on that knowledge in order to obtain the highest settlement for our clients. We have secured millions of dollars in compensation for our clients using this time tested practice, and look forward to helping future injured parties get back on their feet.

If you were injured, read more about our personal injury practice here. As always in injury cases, consultations are free. Contact us today.

The Voice of a Child of Divorce

This video titled. "Dear Mom and Dad: Voice of a Child of Divorce" touches on one of the major problems associated with parental disputes in divorces. Certain divorces can become very bitter and emotional affairs, and often parents seek to "win over" their children to their side. This can have catastrophic consequences for the parties' children. One divorce Judge in Minnesota offered profound remarks on what happens when a child is put in the middle of a divorce and asked to choose. Judge Michael Haas, now retired, said:

“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is YOUR problem and YOUR fault.

“No matter what you think of the other party – or what your family thinks of the other party – these children are one-half of each of you. Remember that, because every time you tell your child what an ‘idiot’ his father is, or what a ‘fool’ his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of HIM is bad.

“That is an unforgivable thing to do to a child. That is not love! That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.

“I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”

Collaborative Law Getting More and More National Recognition

            CNBC recently featured an article on collaborative law being applied in divorce cases. As the author, Deborah Nason, states, “Divorce will never be a walk in the park, but it doesn't have to be a traumatic process, either.”  She addresses the major problems that can be created by litigating a divorce to conclusion in Court.  For a lot of people, the cost of a divorce is a major factor. According to the article, litigating a divorce can cost as much as three times or more than a collaborative divorce.

            As we have discussed in this blog before, Collaborative Divorce is a process that involves each party having their own lawyer. The agreement includes a clause in each party’s contract with the lawyer that if the collaborative process breaks down, the parties must find different lawyers to litigate their issues. By keeping the divorce out of litigation, it allows the parties to craft their own agreements through various meetings with the attorneys and other collaborative professionals like mental health counselors and financial specialists.

            Yet, the effect of choosing collaborative law over litigation can save the parties much more than money. As Gary Direnfield, (MSW RSW) writes, “Collaborative Family Law has long been presented as a kinder more gentle way of facilitating the dissolution of intimate relationships where the parties’ finances, assets and other relationships are intertwined and in particular when parent-child relationships will survive the dissolution of the intimate partnership.” Mr. Direnfield is a social worker, and his article speaks to attorneys who litigate for a living. He talks about the nature of collaborative law, and how the parties generally recover better from a collaborative process versus litigation. Often, litigation can result in a sort of “scorched earth” process that leaves both divorce parties in a difficult situation. Collaborative law can avoid this, and allow the parties to work out a deal outside of Court where the pressure and stress is much greater.

            Collaborative divorce is a great option, but is not always the solution. At Parnell, Michels and McKay, we offer the collaborative option to all our clients, and will litigate when necessary. Should you find yourself in a difficult situation and a pending divorce, contact us today to explore the collaborative option. 

USING A PHONE WHILE DRIVING: TO BE ILLEGAL IN NEW HAMPSHIRE BY 7/1/15

                HB1360 (House Bill 1360) has made its way through the New Hampshire House of Representatives and the New Hampshire State Senate. The bill is set to prohibit the use of electronic devises while operating a motor vehicle. You can read the proposed text of the statute here. The bill is set to be signed by Governor Hassan in the near future.

                The basis of the bill stems from the many accidents that are caused by cell phone use while driving. Most commonly, this happens when a person is texting, surfing the web, or posting to social media sites like Facebook when they should be concentrating on the road. This bill goes beyond just texting while driving, and seeks to limit any use of a handheld electronic device. This includes not only cell phones, but tablets and GPS devices as well.

                The bill would ban the use of a cell phone in any context. This would mean you can no longer talk on the phone, text, surf the internet, or even use your cell phone for GPS purposes. In fact, this bill would make it illegal to even text someone while you are stopped at a red light. The only exception is if the driver pulls off the road completely, and then they can use their cell phone or GPS device.

                The bill would also ban the use of GPS devices while driving. The basis for that is the belief that typing in addresses or locations in a GPS device while driving is just as dangerous as texting while driving. The goal for the New Hampshire congress is to prevent any type of accident that will occur as a result of driver inattention. And while texting while driving is already against the law in most states, banning the use of a cell phone in any way while driving is going to cause a major change in the way law enforcement handles the use of cell phones while driving. Many granite state residents will be faced with being pulled over for cell phone use, and it is important for all residents to understand the potential new law.  

                It is always important for any citizen to be aware of the rights and laws that affect them on a day to day basis. If you find yourself with questions about the law, even new laws like HB1360, contact the experienced attorneys at Parnell & McKay. If you disagree with the proposed new law, it is always important to be active and vocal in your community. Speak out to your fellow representatives, senators and governor to tell them how you feel about HB1360. 

PARNELL & McKAY AND MICHELS & MICHELS TO MERGE AND FORM PARNELL, MICHELS & McKAY, PLLC

                It is with great honor that we at Parnell & McKay announce that we will be merging with the law firm of Michels & Michels. Michels & Michels have been providing exceptional legal services since 1984 in New Hampshire. The firm was run by Nancy Michels and her late husband, John Michels. John Michels was a pillar of the community in Southern New Hampshire until his unfortunate passing in February of last year. Nancy continues to provide excellent legal services, along with her associate, Carole Mansur, and they will continue to do so with the new firm, named Parnell, Michels, & McKay, PLLC.  

                Michels & Michels practice in the fields of bankruptcy, estate planning, probate administration and corporate law in Southern New Hampshire, and have done so for over thirty years. These practice fields will be merged with Parnell & McKay’s current practices of advocacy oriented litigation.

                We are in the process of performing the work necessary to complete the merger of these two great firms, and will be providing periodic updates on the website of our progress. We plan on launching a new website within the coming months, and this site will include more information about all of the exceptional services Parnell, Michels & McKay will continue to provide. We will also be expanding our blog to address the areas of practice from Michels & Michels, and will continue to update our site with new happenings in the law in New Hampshire.

                If you are interested in learning more about our merger, the practice areas of Parnell, Michels, & McKay, or just have general questions, please feel free to contact our office or post your comments in the blog. We are extremely excited about the new firm and the direction we are taking, and look forward to continuing to provide a higher standard of legal services. 

PROPERTY LAW SERIES: ADVERSE POSSESSION

                At Parnell & McKay, we handle a large number of property litigation cases. One such type of litigation is claims made through adverse possession. It is one of the oldest forms of law in property, and involves the taking of title to property without having to execute a written deed. It most commonly arises in boundary line disputes, and can involve something as innocuous as the misplacement of a fence by a friendly neighbor. However, the effects this doctrine can have on people’s property can be immense, so it is important to try to understand the concept of adverse possession and to seek legal advice as soon as possible.

                Basically, the initial test is whether the person claiming adverse possession has acted as the true and lawful owner of the property. The reason being is an adverse possession claim must be open, notorious and continuous throughout the statutory period.  Open means that the claim is obvious. In our sample above, it is the placement of a fence across the boundary line of a neighbor. This can also be done in the form of farming, building an addition on a house, or just simple planting bushes and trees and tending to them over time.

               

                The claim must also be “notorious”, which is a nicer way of saying that use of the neighbor’s property cannot be by that neighbor’s permission. It is ok to be operating under a mistake of where the true boundary line is, but if the neighbor is aware of the issue and says its ok, then there is no “adverse” possession.

                The final part is the use must be continuous for the statutory period. In New Hampshire, this means for twenty years. So, in our example above, the neighbor (or his predecessors) would have had to have the fence on his neighbor’s property for twenty continuous years.

                Adverse possession can also be found in roads, paths or even beaches. In each situation, the factual circumstances become integral to the case. In these situations it is always important to consult with an attorney who handles boundary dispute litigation. Our firm regularly handles boundary dispute litigation, including adverse possession cases.  So, if you believe an adverse possession issue exists on your property, contact the experienced attorneys at Parnell & McKay to discuss your rights. 

INTEREST ON JUDGMENTS: HOW TO GET THE MOST OUT OF YOUR JUDGMENT

                Recently, our office appeared in front of the New Hampshire Supreme Court to argue on the issue of post-judgment interest. The Case was titled “Estate of Jack Bergquist” and the brief we prepared can be read here. In that case, the creditor obtained a Judgment on the Defendant, and periodic payments were made. Over the course of the next eight (8) years, the Defendant made all of his regularly scheduled payments until his death. Unfortunately, a balance remained on the Judgment, and the creditor claimed not only the amount of the Judgment minus any payments, but interest accrued since the date the periodic payment order was made. The two main questions to be resolved were whether a Plaintiff is required to request post-judgment interest as part of the Judgment, and two, whether the order of periodic payments cuts off the interest from being accrued.

                However, while the decision is up to the New Hampshire Supreme Court, it outlines an issue many of our clients face. If a Judgment is obtained, and the Defendant takes a year to pay, how do I get the full benefit of those funds? Well, in the first instance, interest is awarded on Judgments from the date suit is filed until the Judgment is rendered under New Hampshire law. This is accounted for at the conclusion of litigation by requesting costs and interest be added. In all cases, it is important to assert your rights and not leave it up to the Court to assert them for you.

                The second problem is the one we first addressed: why should the Defendant get the benefit of not paying me, when the interest I could have earned is lost. This is a problem many Judgment creditors face, and it is important to talk to an attorney to find out how to assert your rights in the most complete and efficient way possible. This way any judgment creditor can be proactive in asserting their complete rights.

                If you need assistance with the legal process, or enforcement of Judgments, please feel free to contact the experienced lawyers of Parnell & McKay.  

Personal Injury Series: Health Insurance Liens

                In almost all injury cases, when the plaintiff gets injured they seek healthcare almost immediately. Most times the person’s health insurance company pays the bills generated by an accident in the first instance. Sometimes, this is a private company like Blue Cross Blue Shield, and other times it is government provided insurance like Medicare or Medicaid. In each scenario, both types of insurance will have a “lien” or right of reimbursement from the settlement an injured party can get from a third party insurance policy.

                Most commonly, it is a private health insurer like BCBS that pays the bills. As part of all health insurance contracts, the health insurer reserves a “subrogation” right through the contract. This allows the health insurer to get paid back through a settlement or judgment any medical bills that they paid that are being accounted for in the settlement. The theory is that a person should not be able to be paid twice for the medical service, which would lead to a sort of “double recovery”. This is built into the health insurance contract and is only triggered by the collection of actual settlement or judgment dollars. If you review your own health insurance contract, you will find this provision likely under the title “subrogation”.

                In other situations, the health insurer is a governmental agency like Medicare, Medicaid or Tricare (military insurance). These insurers have a statutory right of reimbursement. This means that, like the private insurers above, they have a right to be reimbursed from any settlement or judgment the insured receives for bills they have paid. Since these are statutory rights of reimbursement, it becomes imperative to understand these liens and coordinate the benefits in order to avoid having the plaintiff be sued in the future. This is because these liens are “automatic” and many people do not understand that such liens exist. It is very important to identify all types of liens in each case, and coordinate paying them back prior to reaching a settlement.

                Negotiating these liens can often yield to lower reimbursement amounts, which can only benefit our clients. Having an experienced personal injury litigation attorney becomes very important for any potential plaintiff. If you were injured and need help getting back to normal, contact the experienced personal injury attorneys at Parnell and McKay  and put our 40 years of combined experience to use.