COVID-19 & Finances: Is Bankruptcy For You?

            The COVID-19 pandemic continues to plague our country as millions are out of work. Recognizing the monumental task before it to stave off depression, the Federal Government passed the CARES Act. This Act provided various forum of relief, but the most well-known include providing some families with a one-time, tax-free stimulus payment and increased unemployment insurance.  Still, families are struggling to find ways to pay the bills during the pandemic. During this period of financial and employment uncertainty, many individuals are considering bankruptcy to try to save their homes, keeping their cars, or discharge debt they can simply no longer afford after months of joblessness.

A common misconception is that bankruptcy means “losing” every single asset that you possess. This is simply not true. The Bankruptcy Code provides for many exemptions found in either federal or state regulations that helps people keep many of their assets in most circumstances. Others reorganize their debt through a Chapter 13 plan to help permit the debtor to keep their home. Though potential filers are restricted in how often they can file a bankruptcy, it is unquestionably a useful means to help provide relief to those in considerable debt, and the fresh start that is promised under the Bankruptcy Code. During the COVID-19 pandemic, the United States Bankruptcy Court for the District of New Hampshire remains opens for electronic filing of all bankruptcy petitions. Most hearings are being accomplished by telephone or internet video conferencing. 

            Bankruptcy is not right for everyone, but if you are enduring new or old significant financial hardship, it may be right for you. Filing for bankruptcy need not be a daunting or embarrassing process. Rather, many are quite thankful for the relief a bankruptcy filing can provide after months of angry phone calls, threatening letters and dealing with creditors. Many debtors attempt to resolve their problems by liquidating assets they may not need to relinquish, take on loans that may not be dischargeable, or borrow money from friends and relatives that if paid back, may result in a preference payment. Anyone struggling with debt, should speak with a bankruptcy attorney to see if it is right for them. There are many more issues in bankruptcy that require decisions based on the right time to file that only a bankruptcy attorney can provide.

At Parnell, Michels & McKay, we offer over four decades of experience in navigating the difficult bankruptcy and debt collection fields. Nancy Michels and David Stamatis will help you determine the right type of relief, if any, is best for you. Our firm offers hands on advice, and will go through all of your finances to determine what the best method is for you to address your climbing debt.

            A bankruptcy filing does not mean you failed; it means you were strong enough to get help so you could start again. If you find yourself concerned about your financial future during COVID-19, contact the experienced attorneys at Parnell, Michels & McKay today to see how we can help you navigate your debt problems.

NOTICE: Pursuant to § 528 of the Bankruptcy Code, our law firm is a debt relief agency. We help individuals file for bankruptcy relief under the Bankruptcy Code.

EVICTIONS DURING THE COVID-19 STATE OF EMERGENCY

                The COVID-19 pandemic has created very difficult situations for many people. In the context of landlord/tenant relationships, it has created significant concerns among both landlords and tenants about what their rights are.

                Before the pandemic and emergency orders, evictions were conducted through the process outlined in RSA 540. While this process is still the law of New Hampshire, it has been modified significantly by Governor Sununu’s emergency orders. The first modification was Emergency Order #4 (found here: https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-4.pdf). This provides that any attempt to begin or prosecute eviction actions would likely be deemed a violation of RSA 540-A, New Hampshire’s prohibited practices statute for landlord/tenant relationships. These violations could result in a fine of $1,000, attorney’s fees, and double or treble damages. This was designed to protect those who have lost jobs and cannot afford to pay their rent.

                Like most rules, there are exceptions. The Governor issued Emergency Order #24 (found here: https://www.governor.nh.gov/sites/g/files/ehbemt336/files/documents/emergency-order-24.pdf), which modified the above emergency order #4. This allowed evictions to proceed where there are lease violations that cause substantial damage, or substantially adversely affect the safety of other persons in the residence. It also allows evictions to proceed where the tenant has abandoned the property.

                While it is unknown how long the emergency orders will remain in effect, it is important to seek the assistance of a legal professional if you find yourself either facing an eviction, or if you are a landlord with a tenant that has caused distress or is simply not paying rent.

                If you need assistance, please contact the experienced lawyers at Parnell, Michels & McKay.

NEW STATUTE MAKES IT EASIER TO SUBMIT MEDICAL BILLS AT TRIAL SAVING VALUABLE TIME FOR MEDICAL FACILITIES

                In an effort to make trials easier, and the burden less on medical providers, Parnell, Michels & McKay’s own Rory Parnell provided substantial input and testimony relative to the new bill known as RSA 516:29-c, which allows medical bills to be submitted without the need to call the keeper of the records or doctors to testify the records are accurate.

                This effort was made primarily to make it easier on medical providers to submit bills and not subject their office manager, record keepers, or managing doctors to be forced to testify by insurance defense counsel to submit simple medical bills. While this is allowed for all cases where the medical bills are lower than $25,000, it is an important step for lessening the burden on local medical providers and their staff.

                This also benefits normal working folks who are injured due to no fault of their own in keeping trial costs down, and making it easier to try a case. This also reduces court time, and allows courts and juries to focus on important issues in cases.

                While the insurance industry was not supportive of the idea, there were various attorneys who practice insurance defense who recognized the efficiency of this new statute. Moreover, many medical providers were in support of the bill, which allowed them to focus on treatment of their patients.

                If you need assistance because you were injured in a car accident, motorcycle accident, trucking accident, workplace injury, or other injuries, contact the experienced attorneys at Parnell, Michels & McKay to get the fair resolution you deserve.

COVID-19 Parenting Orders and Modifications

COVID-19 continues to present many challenges to New Hampshire and its families. With the Governor’s directive limiting gathering significantly, closing schools, and asking many people to work from home, families have been inundated with concerns about their current parenting orders or obtaining new ones.

Please note that this article should not be read for any one person’s particular situation or be interpreted as legal advice. Everyone’s situation is different, and if you have legal concerns regarding interpretation or modification of a parenting plan, you should speak with one the family law attorneys at Parnell, Michels & McKay.

NH RSA 461-A:6 sets the “best interest of the child” legal standard for drafting or modifying a parenting plan. The best interest of the child is determined by up to twelve (12) factors which can be weighed differently by the judge depending on the case, as well as any other factor the Court deems relevant. The legal standard is purposely “open”. It is intended to provide the Family Court the flexibility to make a judgment on what is right for any child, in any situation, when the parents are unable to agree.

NH RSA 461-A:11 is for when the parties want to change the routine schedule after a parenting plan has been ordered. In this statute the Court enumerates nine (9) different factors that permits the Court to modify the routine schedule for the child. A parent must list and prove a factor under this section if they want to change the child’s schedule. However, any other modification request must only prove the best interest of the child standard.

The question facing many family law practitioners concerns with how to best guide parents in an unprecedent event. To be frank, there is no single clear and obvious answer.

The general consensus is that unless someone in the parent’s household has COVID-19, parenting should continue under the parenting plan except for good and compelling cause shown. Parent must have exceedingly severe circumstances to unilaterally deny parenting time to the other parent. Any unilateral decision faces the risk of a contempt motion at a later date for denying parenting time.

The current shelter in place orders permit grocery and pharmacy trips, and certain outdoor activities so long as proper group reduction and social distancing measures are taken. So, facts will need to be more persuasive than something like “I think I am sick” or “I think my child could get sick”.

Although it is true that no hearings will be scheduled until at least May 4, 2020 and/or the termination of the Governor’s State of Emergency due to COVID-19, the Family Court remains open for emergency (ex parte) hearings if there are concerns for your child’s safety and health. For any ex parte motion, the party will need to demonstrate that immediate and irreparable harm will come to the child if the Court does not take preventative action. This cannot be hypothetical. The Court is very wary of people trying to abuse this process during the pandemic, and is denying many ex parte filings.

In addition, the Family Court remains open to receive any and all motions and pleadings. Further, the Court is holding other hearings such as temporary hearings and child support referee hearings to ensure that parenting and child support cases can remain on track. 

Organizations and Courts across the country have tried to develop guidelines for co-parenting during the COVID-19 pandemic. What follows is from the American Academy of Matrimonial Lawyers (AAML) and the Association of Family and Conciliation Courts (AFCC):

“Seven Guidelines for Parents Who Are Divorce/Separated and Sharing Custody of Children During the COVID19 Pandemic

From the leaders of groups that deal with families in crisis:

Susan Myres, President of American Academy of Matrimonial Lawyers (AAML)

Dr. Matt Sullivan, President of Association of Family and Conciliation Courts (AFCC)

Annette Burns, AAML and Former President of AFCC

Yasmine Mehmet, AAML

Kim Bonuomo, AAML

Nancy Kellman, AAML

Dr. Leslie Drozd, AFCC

Dr. Robin Deutsch, AFCC

Jill Peña, Executive Director of AAML

Peter Salem, Executive Director of AFCC

1. BE HEALTHY.

Comply with all CDC and local and state guidelines and model good behavior for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don't leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and custody agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The custody agreement or court order exists to prevent endless haggling over the details of timesharing. In some jurisdictions there are even standing orders mandating that, if schools are closed, custody agreements should remain in force as though school were still in session.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are being advised not to fly and vacation attractions such as amusement parks, museums and entertainment venues are closing all over the US and the world. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can't be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It's important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

Moreover, the Massachusetts Probate and Family Court issued the following open letter about one week ago: https://www.mass.gov/news/open-letter-regarding-co-parenting-during-covid-19-from-chief-justice-john-d-casey.

The most important thing that parents can do right now is be understanding and be kind. If you need help seeking a modification of your court ordered parenting obligations, or want advice on interpreting your current orders through the pandemic, the family law attorneys at Parnell, Michels & McKay have the experience necessary to assist you. Contact us today.

COVID 19 Child Support and Alimony Modifications

Pursuant to the State of New Hampshire’s orders due to concerns about the COVID-19 outbreak, many businesses are shut down and employees are out of work.  While the federal and state governments are working on stimulus packages and the expansion of unemployment benefits, parties that are subject to Court orders for child support and/or alimony may want to take some additional steps.

NH RSA 458-C:7 permits parties to seek a modification of a child support order any time there has been a substantial change in circumstances.  The modification can become effective on the date a party has provided “notice” of the request to modify to the other party. “Notice” means service on the other party or acceptance of service by the other party.

NH RSA 458:19-aa permits parties to seek a modification of an alimony order when there has been a substantial and unforeseeable change of circumstances since the alimony order was entered.

The Court has created a straightforward process to seek a modification of child support or alimony.  To seek a modification, a party needs to prepare and file a Personal Data Sheet and a Petition to Change Court Order with the Court. These forms can be found on the Court’s website.  https://www.courts.state.nh.us/fdpp/forms/index.htm.  As the Court will need to re-open the original divorce or parenting case to address the modification request, the filing party will be required to pay a $252.00 filing fee.  If circumstances warrant, a Motion to Waive Filing Fee can also be filed asking the Court to allow a party to file for a modification without paying the filing fee. A completed and signed Financial Affidavit must be filed at the same time. These forms can also be found on the Court’s website.

After the documents are filed with the  Court and a case is opened, the Court will issue instructions to have the other party served.  Once the other party has been served, a child support hearing will be scheduled.

Although it is true that  no hearings will be scheduled until at least May, 4 2020 due to COVID-19, it is still important to get the Petition to Change Court Order filed now. If a Petition is not filed, the support obligation will continue to be owed and a substantial arrearage can be accrued.  Between the time of filing the Petition to Change Court Order and receipt of the Court’s Orders, parties need to do the best they can to fully comply with the child support or alimony orders.  A Court will not be happy to see a party eating out, making large purchases, etc. while not paying his/her support obligations.

Private agreements between parties suspending the obligation to pay child support are not enforceable unless approved by the Court.  If you and your child’s other parent reach an agreement to suspend or modify the child support obligation, you must file a new Uniform Support Order with the  Court.  Otherwise, the full amount of your obligation will be owed.

If you need help seeking a modification of your court ordered support obligations, the family law attorneys at Parnell, Michels & McKay have the experience necessary to assist you. Contact us today.

Is Divorce Seasonal?

‘Tis the Season for Divorce?

Research from the University of Washington has suggested that divorce filings in some states consistently peak in the months of August and March.  The study noted that divorce filings may be driven by a “domestic ritual” calendar and suggested that the increased filings may be the result of unhappy spouses realizing that the holidays or vacations did not live up to their expectations. Unhappy couples often think that the holidays or vacations are good times for them to mend their relationships. They seem to develop an optimistic approach thinking that things will be better in the relationship if they have a nice holiday or vacation together, as a family.  

In New Hampshire, the attorneys at Parnell, Michels & McKay have experienced a similar increase in divorce consultations and filings in the first quarter of the year (after the holidays) and in the summer (after the kids get out of school).  We have traditionally felt that the biggest reason for the increase in consultations and filings was more practical. We believed that the increase during the first quarter of the year had more to do with not wanting to face divorce or force the kids to face divorce during a time of year that is supposed to be happy (i.e. the holidays). It seemed to us that the increase in divorce action in the summer was based on the possibility of the family needing to sell the family home and therefore, changing the kids’ schools. We had not considered the possibility that couples may have delayed pursuing divorce feeling that holidays or vacations would bring change to a troubled relationship. This realization reminds us that family dynamics and reasons to divorce are different for all people.

Whatever the time of year and whatever the reason, clients regularly tell us that going through a divorce was the most difficult time in their lives. The emotional and financial toll is devastating to an individual, and the family as a whole.  Our experience with divorce shows us that divorce is at least 90% emotional and only about 10% legal.  This means that helping our clients to manage their emotional responses during the divorce process can provide tremendous benefit to the client and allow the divorce process to be less adversarial and less expensive.  Divorcing clients regularly experience a variety of emotions including anger, sadness, fear, distrust, and many others.  It is often the emotional reactions and responses that prevent divorces from settling, not the complexity of the legal issues.

Collaborative Practice can help clients manage their emotions and get through the divorce in a healthier and less adversarial way.  Collaborative Practice is a method of dispute resolution that aims to keep divorcing couples and their children out of court.  Unlike traditional divorce, Collaborative Practice gives couples more control over the outcome of their separation. Rather than having a judge decide the family's future through litigation, Collaborative Practice allows couples to make flexible agreements that address the financial, psychological and legal aspects of divorce. In addition to often being less expensive than a traditional divorce, Collaborative Divorce takes the entire family into account. “Moms and dads can’t divorce, husbands and wives do and that is one big difference”,  Anne Lucas, a Licensed Mental Health Counselor and member of King Collaborative Law in Seattle said.

The Collaborative Practice team is made up of a collaboratively trained lawyer for each party and a combination of collaboratively trained neutral financial, mental health and/or child specialists. These jointly retained specialists help couples navigate the emotional aspects of divorce and negotiate solutions that are mutually beneficial to the whole family.   

For more information about Collaborative Divorce check out this short video.

Attorney Catherine McKay has been practicing Collaborative Divorce since 2000.  If you have questions or wish to learn more about the process and how it can benefit your family anticipating divorce, contact Attorney McKay.

Personal Injury - Health Insurer's subrogation lights - Know the law

                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.

                This can also dovetail with a person’s auto insurance coverage in New Hampshire called Medical Payments coverage. Based on a recent decision by the New Hampshire Supreme Court, this medical payment coverage can be used to help off-set the cost of the medical treatment. In the first instance, this can be used to pay co-pays and deductibles. If money remains on the coverage, it can be used to reduce the health insurance lien. However, distinct from health insurance, medical payment coverage has no subrogation rights, and thus should be maximized in all cases. If you have insurance coverage issues related to an auto accident or other injury, the experienced lawyers at Parnell, Michels & McKay can help.

                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, Michels and McKay  and put our 50 years of combined experience to use.

Dog Bites Injuries

                Dogs are man’s best friend. Most of us have had them as a part of our families over the years. However, dogs (especially poorly trained dogs) can be highly dangerous animals. When they attack, they can cause lasting and permanent physical and emotional scarring. Some breeds (like pit bulls, German Shepherds or Dobermans) can cause even more significant damage because of their physiological makeup. These breeds are often black listed by insurance companies because of this. Often, insurance companies will charge higher premiums to dog owners who own dogs like a pit bull or Doberman. This is not necessarily because they are more aggressive than other dogs, but because the damage they cause is so much more significant.

                In New Hampshire, dog bite cases are strict liability. This means that the owner of a dog is strictly liable for injuries caused by their dog’s attack. So, an insurance company normally cannot claim that the victim of the dog attack contributed to our caused the attack. While there are exceptions to this rule (like deliberately antagonizing a dog), it is a very difficult defense to establish. Our firm also handles looking at whether other entities could be held responsible besides the owner, as it is not always just the owner’s fault for the dog attacking someone.

                While dog bite cases are not that complicated when it comes to liability, they are much more complicated when it comes to damages a person can suffer. Often, the injuries are open wounds but do not involve broken bones. They typically involve permanent scarring, which can have lasting effects both physically and mentally. It is also common to suffer significant emotional trauma from a dog attack. This can include the victim being unable to be around dogs for fear of their safety, or post-traumatic stress from the incident.

                At Parnell, Michels & McKay, we have experienced personal injury attorneys that can address all the ramifications of a dog attack. Contact us today if you were a victim of a dog or animal attack, and see how our team can help you.

Divorce - A Personal Perspective

DIVORCE

-          By Christian Bonnano

With almost 50% of all marriages in the United States ending in divorce or separation, most people you encounter will have one ‘crazy’ family story or another. Sadly, when I was 13 years of age, my parents decided it was time to end their marriage and get a divorce. At the age of 13, I did not fully understand why they were leaving each other and the circumstances around it. Nothing too bad was going on, in reality, they just weren’t in love with each other anymore and wanted to separate. Of course, they had their moments, but from what I have seen throughout my life, most divorces are very difficult.

At such a young age, my parents did not expose me to the legalities surrounding their divorce. I would constantly hear them arguing about property, money, and even me. At the time, I could care less about all of that, I really just wanted my parents to get back together, but as the years have passed I look back and wish they explained the concept of divorce a little better. All that arguing I heard them do had a deeper meaning and it took a few years before I fully understood why and what it was all about.

Through all the arguing and frustrations between my parents, they decided to work together to make sure I was happy. Growing up with divorced parents, I was allowed to live where I want and visit the other parent at free-will. Although they worked together to make sure my life was good, they could not work together when it came to money. Money is something my parents have always argued about and even to this day, with their limited number of conversations, do not see eye to eye on. When I was young, I really just thought they were complaining for no reason because I did not fully understand how child support or alimony worked; now, I see why there were many arguments and frustrations from both sides.

Overall, I appreciate what my parents did to assure my happiness, although I still wish they would have explained things to me back then. I completely understand the fact that I was 13 and might not understand, or even care, about the legalities surrounding their divorce, but I believe it would have helped me understand why certain things were happening. Today, I have a great relationship with both of my parents and both of them are doing great. Yes, they still argue, but most divorced couples do. At the end of the day, I know they are both there for me and love me and that’s all I could ever ask for.

Moving on from my life story, I think it is important to note an interesting fact about divorce in New Hampshire.

1.       New Hampshire is a no-fault and a fault state.  – No fault divorces mean that there does not have to be a reason for divorce. If a couple decides they have had enough of each other, like my parents, then they can separate. At fault divorces mean there is a specific reason of separation, such as cruelty, incarceration, alcoholism, etc. This makes it easier to get a divorce, and makes the process simpler and with less animosity. This is one of the reasons collaborative law (https://www.pmmlawyers.com/collaborative-law.asp)  is an important development as well. 

As my internship at Parnell, Michels & McKay moves forward, it is interesting to learn the application of these rules, especially with the great lawyers I am able to work with. The law is ever changing, and understanding the law is important for anyone interested in a legal career like myself.

Social Media and Litigation: Why you need to be wary of posting online?

                It is common for most of our society to be on social media. At this point, even most of our grandparents have a Facebook page. While this is a great way to connect to people online, it also presents potential problems for those of us engaged in potential or ongoing litigation. As many people like to say, beware what you post on social media! This is good general advice, but also good legal advice. Social media requests have become common place in litigation discovery requests, and courts are not as reluctant to order that information released.

                The most common requests are for Facebook posts. While most Courts will not allow complete access to a Facebook page of a party, they will look into specific posts related to the issue at trial. So, for example, assume a person is involved in a car accident. They were injured, but for the most part escaped serious injury. After the accident, the person posts that they are lucky to survive, but are going to sue the other driver and get a big judgment and they want money. Lots of money. Further, as the case goes on, this same person posts multiple times images of them running marathons, doing strong man competitions and playing sports. In this situation, almost all of those posts can be made public. This is because they go to the actual issues in the case, and the damages claim for the injured party. The post about wanting money can be argued as they are looking to just get paid, and not that they are actually really injured. The posts about their physical activity can be used to show they aren’t hurt. In these situations, those posts can be used against a person.

                These posts can also help. Let’s say the same person is really badly injured, and their social media posts cover their recovery from their injuries. There are posts and pictures of them in rehab and physical therapy, post-surgical pictures, and even posts from their friends on their page lamenting how difficult everything has been for them. These can be used to support the claimed damages.

                Regardless, all of us have to be conscious that our social media posts are for the most part public, and can be used against us. Some of us are aware of this anyways in how we see Twitter and Facebook posts go “viral”. It’s important to be careful about what we post online, especially if you are in litigation. We often advise clients to reduce their posting, and while that is more difficult for the younger generation, it often helps in the underlying case.

                At Parnell, Michels & McKay, we stay apprised of all developments in the law, including how social media affects our clients and their cases. If you are involved in potential litigation and need legal help, contact us to find out how to protect yourself. 

OCTOBER 20-26, 2018 IS NATIONAL ESTATE PLANNING AWARENESS WEEK!

            Congress has designated the third week in October as National Estate Planning Awareness Week (October 20-26, 2018).

            It is estimated that at least 60% of Americans do not have an estate plan.  Most people think that only older adults need to have an estate plan.  However, it’s important for younger people to have a Will, especially if they have minor children.  A proper estate plan will provide for a guardian for your minor children to ensure that they’ll be cared for by the people you want as guardians in the event of your death or incapacity. Yet, based on a recent AARP survey, 78% of people age 18-36 and 64% of people age 37-52 do not have a will. 

Without an estate plan such as a Will or Trust, when you pass away, your affairs will be settled pursuant to the intestate laws of the state where you reside.  The intestacy laws may not provide that your assets go to the people you want to receive your property.  In fact, depending on the size of your estate and how your assets are held, your spouse may not receive the entire estate.  It is especially important to have an estate plan if you have a blended family, especially if you want to provide for your children from a prior marriage.

If you don't have an up-to-date estate plan, including durable powers of attorney, and you are unable to manage your financial affairs due to incapacity, the courts will appoint someone to manage them for you.   If you have not designated the individual that you would like to be your agent, the court may appoint someone that you would not want to perform those responsibilities.

A good estate plan starts with a planning meeting with your attorney and proper drafting and signing of appropriate legal documents such as wills, trusts, financial durable powers of attorney and a health-care power of attorney. Having a properly designed estate plan will help your family get through a very difficult and emotional time.

If you would like to discuss your estate plan, please contact an attorney in our office. The attorneys at Parnell, Michels & McKay have the experience necessary to design an estate plan to achieve each client’s goals and needs.

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 in 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.

WHAT ARE CHARGING ORDERS AND HOW DO THEY AFFECT MY LIMITED LIABILITY COMPANY?

            Congratulations!  You are opening your first business and you have decided to form a single member limited liability company (LLC).  The LLC provides similar liability protection as that of a corporation.  For example, if there is a judgment against the LLC for money damages, in most cases, the LLC judgment creditor cannot attach your personal assets.  However, what if one of your personal creditors has a judgment against you?  If you had incorporated, the judgment creditor may be able to reach your shares in the company as they are personal assets.  But can the creditor reach the assets of your single member LLC?  This is where the charging order comes in.  A creditor may ask the court to enter a charging order requiring the company to forward any distributions you are entitled to receive from the LLC to the creditor.  Although the charging order can reach distributions (usually profits) payable to you, it generally cannot require the LLC to forward any monies which are earned income (i.e. wages) and it cannot force the LLC to make distributions.  In other words, the judgment creditor doesn’t get to stand in your shoes and vote your membership rights.

            But wait a minute – if you are the sole member and the charging order doesn’t allow the creditor to direct any distributions from the LLC, what if you just don’t take any distributions until the statute of limitations on the judgment expires?  In that case, the judgment creditor does not receive anything.

            Well that seems too easy – and it is.   If the creditor can show that the judgment cannot be satisfied in a “reasonable time,” the creditor has the right to challenge the LLC protection.  If successful, the court would force a sale of both your financial and management rights of the LLC.   If there are significant assets of the company, this could be a financial disaster to the member, both personally and for his or her business.  Often, the creditor is the successful bidder at the execution sale and, the creditor can take over your company and, presumably, vote that the LLC pay the distributions or sell off the assets to satisfy its judgment.  But whether it is the successful bidder or not, the creditor would get paid what it is due from the proceeds of the execution sale.

            For all of the reasons above, you may want to consider bringing in a spouse or adult child as a minority member.  This makes your company a multi-member LLC with you as the manager.  As a multi-member LLC, the judgment creditor can still get a charging order against your economic interest in the LLC but it cannot force a transfer of your noneconomic interest (i.e. voting and management rights).  The state law makes a distinction between multi-member and a single member LLCs to protect the other members of the LLC under a theory called “pick your partner.”  In other words, the other LLC members did not intend to become partners with your creditor and the state is reluctant to force them to accept the creditor as a potentially unfriendly owner of your interest.    

When forming your business and choosing the correct entity, contact the attorneys at Parnell, Michels & McKay, PLLC.  We offer advice to all types of corporations, limited liability companies and other business entities designed to achieve each client’s goals and needs. Contact us here if you need our assistance.

FANTASY SPORTS: LEGAL OR ILLEGAL SPORTS GAMBLING

                Fantasy Football is gearing up, and we are on the eve of many drafts and leagues forming for the new season. As attorneys, we often get asked about the legality of sports gambling and in particular, fantasy sports. As some of you are aware, the U.S. Supreme Court struck down a gambling ban from 1992 called the Professional and Amateur Sports Protection Act. Thus, sports gambling is no longer illegal under federal law. However, each state can have laws that restrict or forbids gambling within their state borders. As for fantasy sports, that has been dealt with separately.

                As of May 16 of this year, fourteen (14) states have specifically allowed fantasy sports, and daily fantasy sports to exist (SEE: http://www.espn.com/chalk/story/_/id/14799449/daily-fantasy-dfs-legal-your-state-state-state-look). New Hampshire is one of those states, as Governor Sununu signed the bill into law on July 18, 2017.

                As noted here, the law provides the following:

·         Regulation of the industry will fall to the New Hampshire lottery commission, which is given the power to promulgate some rules to oversee the industry.

·         There is no fee or tax for operators that register with the state. An earlier version of the bill had both an upfront fee and a tax on revenue.

·         Operators must register with the commission, but may continue to operate in the state while the law is taking effect, if they apply for registration.

·         The law sets up basic consumer protections for users at registered DFS sites, including a ban on employee play; the segregation of player funds and operational funds; and responsible gaming protocols.

·         The minimum age for users is 18.

                Thus, daily fantasy sites like FanDuel and DraftKings are specially legalized in the State of New Hampshire. Most importantly, the law mandates you must be eighteen (18) years of age, and provides consumer protections to those using those sites.

                Fantasy sports is something many of us are involved in, and it’s evident that right now all of those that play are not in danger of breaking the law. However, laws can change quickly, and it’s important to know your rights. Here at Parnell, Michels & McKay, we keep ourselves updated on the developments in the law to help he assist all of our clients dealing with legal issues. Contact us today if you need help navigating the legal playing field.

Self-Drivings Cars and the Intersection of Human Negligence and Products Liability

                Self-Driving cars are now becoming more and more popular. Other states, like California, are now allowing them to be operated on their roads in controlled settings. For many of us, this will remind us of movies involving cars that drive themselves while the human in the car is able to relax on their drive. It’s almost like a taxi, but it’s the person’s car and a computer program is driving. Technology is always a fascinating thing, but in this context, what happens when self-driving cars cause an accident?

                As many people are aware, if you cause an accident and are liable, an insurance claim and possible litigation may be brought against you. This would require the person that was hit and injured to prove that the other driver was negligent, and that this negligence caused the collision and the injuries to the Plaintiff. But what about if the car was self-driving?

                This makes these cases potentially much more complicated. First, there is typically a requirement that any self-driving car have a human that is alert and attentive at the wheel. If the collision with a self-driving car is caused by the human’s inattention, then a negligence theory will still work. Second, however, is much more complicated. If the car crash was caused by the computer program, then the negligence standard will not work in the traditional sense. In this case, the likely remedy is a products liability claim. Products liability claims require proving manufacturing defects, design defects, or warning defects. In this sense, the fault in a computer program likely involves the first two (manufacturing and design defects). A manufacturing defect involves a problem that occurs when the product is being manufactured, or created. A design defect is when the design itself is problematic.

                In either circumstance, to prove a self-driving car acted in appropriately will likely involve a blend of negligence and product liability laws. While New Hampshire and Massachusetts aren’t currently dealing with an influx of self-driving cars, it is likely going to happen in the coming years.

                If you are injured by any driver (even a computer), the experienced attorneys at Parnell, Michels and McKay can help you. Contact us if you find yourself in a situation where you need to know your legal rights.

Adoption - A Personal Perspective by Anna M.

Adoption is about what is best for the child not what is best for the parents. As the law states, a child’s needs should come first, or better put, the best interests of the child should come first. The best situation for a child is sometimes to be adopted into a stable home. Financial security and the love of caring parents are both important to a child’s development. The time spent raising a child affects how the child behaves, feels, and ultimately interacts with the world as the person they become. Many factors play into the decision of what is best for the child. It can be hard for birth-parents to give up their child, but adoption can sometimes be the in the best interest of the child. The child may be afforded a better opportunity with adoptive-parents that love them just as much as or more than the birth-parents and can give the child emotional security and stability.

            Yet, the question often remains, will the child end up knowing their birth-parent? Or better put, is open adoption or closed adoption the best option? Often there are legal issues where the decision is out of the hands of the birth-parent. However, in a lot of situations the choice between open, closed, or semi-open adoption and the degree to which it is open is decided by the birth-parents and adoptive-parents. For those who do not know what open and closed adoption is, open adoption is when the child knows the birth-parents and can even have a relationship with them, while closed adoption is when the child is unaware of who their birth-parents are and the birth-parents do not know who adopted their child. Semi-open is a blend of both.

            Closed adoption can be good for both birth and adoptive parents, and depending on the situation, the child. In a closed adoption, the adoptive-parents do not have to worry about the influence of the birth-parents on the child, and the birth-parents can move on from what they gave up since they are not involved in the child’s life. Closed adoption can also be good for the child in that the birth-parents could be a bad influence and could impact their development in a negative way. However, the child would go through their life not knowing about where they came from and will wonder where they would be if they weren’t adopted. They will also wonder who their birth-parents are, and that can create a fantasy parent. This is when a child imagines who their parent was, and creates an unrealistic person in their mind. Moreover, just like fear of the unknown, not knowing who their parents are can haunt someone and affect their emotional development, relationships with others, and their connection to the parents that actually raised them.

            Open adoption can be good for all parties involved. The birth-parents can still see their child grow up and see the good situation their child is in and that they made the right decision to give them up for adoption. However, the birth-parents might be upset that they are not raising their child themselves. Despite the possible emotional issues with the parents, the child gets to have some closure and a possible relationship with their birth-parents. Instead of wondering for the rest of their lives where they came from, who their parents are, and what their life could have been like, the child has peace from the knowledge they receive from having their birth-parents in their life. However, this can create conflict between birth-parents and adoptive-parents, and is a big factor in deciding what type of adoption is best. Moreover, there may be behavioral issues with the birth-parents that caused the adoption in the first place that may make an open adoption untenable.

I can attest to the idea of constant wondering, as I am adopted. I was adopted at birth by two amazing parents and into a wonderful Christian family with two of the best older brothers a sister could ask for. I do not doubt for a second that I am in the best situation. However, that does not eliminate the wondering I have. I have always been curious as to who my birth-parents are, how my life would turn out if I wasn’t adopted, and how much of who I am comes from my biological parents. I don’t know about anyone else, but not knowing things, especially big things such as this, can cause me a lot of stress and anxiety. My mind wanders and flies around looking for answers, only it feels I am never able to land on solid ground. An outsider might say it’s looking for the part of me that has always been missing. There’s something about the biological connection one has to family that you don’t know is absent until you are in a situation like mine. Now, my adoptive parents are my parents. They’re the ones who raised me and they’re the ones who take care of me. But that doesn’t mean I don’t feel as though something’s missing. Not to mention, everything could have turned out differently. Every argument, every fight, every bad outcome is made worse by the idea that there was a possibility it couldn’t have happened. I could have been adopted into a different family or I could have just not been adopted and this whole problem that’s causing me pain could have never happened in these other scenarios. However, just like I wonder about the good that might come from not being adopted, there is also bad.

I say all this because I strongly believe that if I had the opportunity to meet my birth-parents, the wondering would stop. The mystery would be solved. I would have reached the understanding  that I am where I’m supposed to be a whole lot sooner than I did. I know this understanding that I may be disappointed by what I see in them. Still, I would have closure, and that is valuable in itself.

My adoption is a semi-open adoption, although it often feels like a closed one. I know some details about my birth-parents, such as a medical history and that my birth-mother is now married (not to my birth-father) and has three children. That’s it. That’s all I know. To me, that’s not enough.

Since I have turned eighteen, I have started to make steps towards finding my birth parents. I’m not looking for a fairy-tale ending. I know that fairy tale endings are rare in life, but I would like to know. I just want some closure so I can stop wondering, even if the answers may not be what I was looking for.

Open adoption would have solved all these problems. Yet, these problems are nowhere near the possible problems I could have faced if I was not adopted. I am so thankful for my family and for everything they have done for me. I would not be where I am today without them and I am looking forward to seeing how much more I can accomplish and grow all because they gave me the opportunities needed to succeed.

I am quite passionate about adoption. I wouldn’t be writing this if I wasn’t. If I get married and decide to have children, my first step is to adopt or to foster a child. There are children out there that need a safe home with caring parents or guardians. If you’re considering adoption, know that you could be the best place for a child to be and take the leap to provide your love and care that child needs. If you’re considering giving your child up for adoption, think about the child first and foremost. Do what is best for the child, because that is the most important thing.

Written By – Anna M.