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Leading Causes of Wrongful Convictions: 27% involve False Confessions.

This chart is incredibly revealing. The wrongfully convicted persons in these cases of exoneration were conclusively proven innocent, not just not guilty. In 72% of the cases, there was an eyewitnesses mis-identification.  Craziest: there was a false confession in 27%.

Exonerated off death row for wrongful “shaken baby” case

Sabrina Butler was first woman exonerated from death row.









IRS offers special tax-filing options for domestic violence victims

Tax filing season opens tomorrow. As this local TV report suggests:

Financial control plays a big role in domestic violence, which is why an abuse survivor is thankful for a memo the IRS put out three months ago.

Rights of Domestic Violence Victim:

In the memo released in October 2016 specifically for domestic violence victims, the IRS highlighted that taxpayers have the following rights:

Domestic abuse is not just physical abuse. It often includes economic control. As a survivor of domestic abuse, you can take control of your finances. An important part of managing your finances is understanding your tax rights and responsibilities.
  • File a separate return even if they’re married
  • Review the entire tax return before signing a joint return
  • Refuse to sign a joint return
  • Request more time to file their tax return
  • Ask the IRS for copies of prior-year tax returns
  • Seek independent legal advice

Innocent Spouse:

“The IRS also offers a separate form called a Request for Innocent Spouse Relief, which is Form 8857. If a survivor and a spouse file a joint return and the survivor is not aware that the abuser has not paid the taxes, the survivor can fill out the form to be relieved of liability. It’s a right for all taxpayers, but it can be very helpful to someone under an abuser’s financial control.”

There are others as well: Injured spouse relief which releases a spouse from liability for certain past-due tax debt that are attributable to the other spouse. Separation of liability divides tax liability based on ability to pay for spouses who are legally separated or no longer married. Equitable relief divides tax liability based on the adjusted gross income of each spouse but does not clear either spouse of the total liability. Reasonable cause relief provides clearance from the obligation to file a tax return or pay penalties if you can present compelling facts to show why you were unable to do so on time.

Address Confidentiality:
Some state agencies or coalitions may offer an Address Confidentiality Program, which provides survivors with a safe address. Thirty-six states have Address Confidentiality Programs, but Alabama is not one of them.

Bank Accounts:

Some EITC coalitions can help survivors establish bank accounts. Some VITA sites have options for pre-paid debit cards.
Tax Credits:
Domestic violence survivors should know about three federal tax credits: the federal Earned Income Tax Credit, the federal
Child Tax Credit, and the federal Child and Dependent Care Tax Credit. Per the IRS:

The Earned Income Tax Credit (EITC) may be available if you are working and your earnings are low. The credit may be larger if you have one or more children living with you. You cannot take this credit if you file as married filing separately, but if your spouse didn’t live in your home at any time during the last six months of the year, you may be able to file as “head of household” and claim the EITC.

See IRS Publication 596, Earned Income Credit, for more information on the credit, and IRS Publication, 501 Exemptions, Standard Deduction, and Filing Information for more on filing as “head of household.”
The Child Tax Credit may reduce your tax or increase your refund for each qualifying child. See IRS Publication 17, Your Federal Income Tax, for more information.
Finally, the Child and Dependent Care Credit may reduce your tax. See IRS Publication 503, Child and Dependent Care Expenses, for more information.
Tax Preparation assistance:
VITA is a program that offers free tax help to low- to moderate-income (generally, $49,000 and below) people who cannot prepare their own tax returns. Trained certified volunteers sponsored by various organizations help prepare basic tax returns in communities across Alabama. VITA sites are generally located at community and neighborhood centers, churches, libraries, schools, shopping malls, and other convenient locations. Most locations also offer free electronic filing. To locate the nearest VITA site, call 1-800-906-9887.
The VITA in Alexander City is offers free tax help for taxpayers who qualify. (256-234-0347)

The Alabama Legislature fails at pretrial bail reform; the courts will step in.

Republican governors have been leading the nation in pretrial bail reform proposals, in Alaska, New Jersey, and Kentucky. New York is pursuing this as well, now.  It has proven successful in Washington and New Orleans.

Unfortunately, in Alabama, a restricted bill to limit money-bail in municipal courts has failed.

As individual cities across Alabama reform their bail practices, a bill that would codify those changes into state law has stalled in the Alabama Legislature.

Sen. Greg Albritton, R-Range, sponsored SB31, which would require municipal judges to release defendants who are charged with low-level violations.

“The two opposing sides I’ve been working with seem to have hit an obstacle they can’t overcome at this point,” said Albritton. “(The bill) is done for this season. We’ll continue to work on it.”

The fear-mongering has not proved true in other states and jurisdictions.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety.

In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime.

New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

As I expected, the Legislature will not act; therefore, the courts must force the Alabama to move.

How the Proposed Medicaid Work-Requirements May Affect Seniors and their Caregivers

Per the Atlantic:

The Trump administration has been signaling for months that it plans to implement conservative reforms to core federal welfare programs, including by allowing states to have work requirements for Medicaid. So it was no surprise on Thursday when the Centers for Medicare and Medicaid Services issued guidance for “state efforts to test incentives that make participation in work or other community engagement a requirement for continued Medicaid eligibility.”

In a series of tweets announcing the policy shift, CMS Administrator Seema Verma explained the agency’s rationale that requiring eligible able-bodied adults to have jobs to qualify for Medicaid will make them healthier and less reliant on welfare in the future. “Our fundamental goal is to make a lasting and positive difference in the health and wellness of Medicaid beneficiaries,” she tweeted. She also cited a 2014 meta-analysis that concluded that “employment is beneficial for health, particularly for depression and general mental health.”

Alabama has initiated the process to impose the work requirement:

Alabama may become one of nearly a dozen mostly Republican states that are seeking a waiver from the federal government that could allow the state to institute work requirements for some of those who are on Medicaid.

Gov. Kay Ivey said Tuesday that she has directed Medicaid Commissioner Stefanie Azar to begin working on seeking a waiver for the requirements and raising co-pays for beneficiaries. States are typically required to request waivers from the federal government for changes to their Medicaid programs.

“That process has been ongoing, and I look forward to the future implementation of those policies,” Ivey said.

So what does this mean for the elderly? In general in Alabama, the elderly would be exempt from the work requirement—as  would children under 19 and pregnant women. Thus, an 85 year old widow with dementia will not have to get a job in order to keep her nursing home benefits.

However, the new rules may impact their caregivers. The devil will be in the details of Alabama’s proposal for the waiver. 30% of non-working Medicaid adults reported that they did not work because they were taking care of home or family.

Forbes details the scenario which may catch caregivers:

The administration guidance says that Medicaid recipients are exempt from the work requirement if they are caring for a “dependent.” But that may not mean what you think.

For some purposes, Medicaid uses the same definition of dependent as the Internal Revenue Service. According to the tax law, the rules for child dependents are pretty straightforward. Children qualify if they are under age 19, students under age 24, or if they are “permanently or totally disabled.” They must also live with their caregiver for at least half the year.

It is different—and more complicated– for older adults. They are subject to a seven-part test to qualify as a non-child dependent. For example, only certain relatives–such as parents, spouses, or siblings–are eligible. They can’t have more than about $4,000 in annual income and half their total support must come from the person who claims them as a dependent. In effect, that means that many people receiving Social Security benefits, Supplemental Security Income (SSI) or who are themselves on Medicaid may not meet the definition of a dependent.

The result: Even though that daughter may be spending 40 hours a week caring for her parents, they may not count as dependents. And that means she may lose her Medicaid benefits—and thus access to health care– unless she gets a paying job or meets other requirements.

Watch for the petition for waiver to know the details.

100-mile Fourth-Amendment Free Zone

Perhaps you have seen this video floating on Twitter or Facebook:









The video records US Border Patrol agents boarding a bus and demanding each passenger to produce their “papers.” (Apparently, one lady and her belongings are taken into custody.) The video has generated a good bit of social media outrage. However, this practice isn’t new. What really should outrage every citizen is the continuing assault on the Fourth Amendment. I only wish we had 1/10th of the zeal and jealousness for the Fourth as we do for the Second Amendment.

UPDATE:

Though immigration inspections on Greyhound buses are not widely publicized, they are not new. Border Patrol agents routinely conduct such inspections at transportation centers across Florida, the Customs and Border Protection’s Miami sector said in a statement Tuesday. . . The Border Patrol’s Miami sector said Tuesday that agents arrested a Jamaican woman at the Fort Lauderdale bus station. Officials said the woman had overstayed her visa and was transported to the Dania Beach Border Patrol station and then turned over to Immigration and Customs Enforcement for deportation proceedings.

The video is proof of the the legal position of the US government. Did your know that federal officials claim authority, without any suspicion or probable cause, to stop and conduct searches on any vessels, trains, aircraft, or other vehicles anywhere within “a reasonable distance from any external boundary of the United States?” 8 U.S.C. § 1357(a)(3) And they define the term “reasonable distance”, to mean within 100 air miles from any external boundary of the United States. 8 C.F.R. § 287.1(a)2 and (b). And they don’t stop there; they also claim authority to enter, access, and search any private lands or property (but not dwellings) within 25 air miles of the border. (The regulation actually authorizes this zone to extend beyond 100 miles if a federal agent “determines that such action is justified, [and] declare such distance to be reasonable.”)

There is no Fourth Amendment rights to be secure in our persons and property from unreasonable searches and seizures within 100 miles of the border and maybe further if the agent declare such is reasonable.

Accordingly, based upon the federal government’s position, here is a map of the United States wherein the Fourth Amendment of the Constitution does not apply:

Dothan, Alabama? No Fourth Amendment. The entire state of Florida? No Fourth Amendment. The entire states of Maine, Connecticut, Rhode Island, Maryland, Hawaii, Vermont, New Hampshire, Massachusetts and Michigan? No Fourth Amendment.

Consider this “border” definition and border search power in relation with this: Cellphone and Computer Searches at U.S. Border Rise Under Trump:

Customs officers stationed at the American border and at airports searched an estimated 30,200 cellphones, computers and other electronic devices of people entering and leaving the United States last year — an almost 60 percent increase from 2016, according to Homeland Security Department data released on Friday. . .

“In this digital age, border searches of electronic devices are essential to enforcing the law at the U.S. border and to protecting the American people,” said John Wagner, the deputy executive assistant commissioner at Customs and Border Protection. . .

A 2014 Supreme Court ruling did say, however, that law enforcement needed to have a warrant to search electronic devices when a person was being arrested.

But since that case did not involve a search at the border, Homeland Security officials said the ruling did not apply to Customs officers, who argue that the examination of electronic devices is akin to searching the luggage of travelers entering or exiting the United States. Customs officials also say the search of electronic devices has led to the arrests of individuals caught with illegal material, such as child pornography.

Accordingly. the federal government claims the power to search your phone and computer within 100 miles of the border.

As I have written before, the courts have further gutted the Fourth Amendment and the state of Alabama has statutorily empowered this assault on the Constitution. The law in the United States and particularly Alabama allows law enforcement to make pretextual stops any where in the United States regardless of proximity to the border. Law enforcement are allowed to employ “the use of some minor offense, typically a traffic violation, as a tool for obtaining evidence or statements relating to a greater offense for which the police lack the required probable cause or reasonable suspicion otherwise to obtain.” Scarborough vs. State of Alabama, 621 So.2d 996.

According to federal case law (and bolstered by Alabama statutory law) police do not even need a pretextual traffic office anymore. Here are some “valid reasons” to stop suspected illegals (or you) expressed by SCOTUS. The Supreme Court of United States stated in US v. Brignoni-Ponce (1975):

. . . officers on roving patrol may stop vehicles . . . if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.

So no crime is needed if they can state specific reasons that support their suspicion. The court went onto details some “valid” explanations.

Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider:

(1) the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns of traffic on the particular road, and previous experience with alien traffic are all relevant.

(2) They also may consider information about recent illegal border crossings in the area.

(3) The driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.

(4) Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. The vehicle may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide.

(5) Trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut.

Here are the new Rules of the Road for all “Mexican-looking” residents and citizens:

(1) Do not drive a vehicle; inevitably, everybody violates some traffic offense.

(2) If you must drive,  drive only Mazda Miatas or other two passenger vehicles; otherwise, vehicles like station wagons, vans, or SUVs may raise suspicion that you are trafficking in illegal aliens.

(3) Drive by yourself; otherwise, your vehicle may appear to be heavily loaded.

(4) Do not allow passengers to recline or sleep in your car because it may look like they are hiding.

(4) And most important, do not dress like those in Mexico and particularly avoid the infamous “Mexican” haircut.

To the contrary, to quote Justice Jackson in Brinegar v. United States:

These, I protest, are not mere second-class rights, but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.

Another Successful Non-Money Bail Pre-Trial Release Program

Most people released under Yakima County’s pretrial release program did not go on to commit new crimes while awaiting trial — similar to the rate of people released on bail before the program was implemented, a recent study of the program revealed.

Across the nation, money bail is being challenged. Alternative programs exist. This article details the success of the Yakima County.

Since February 2016, Yakima County has been allowing low-risk offenders to be released from custody pending trial, with varying degrees of court-mandated supervision based on the nature of the crime and how likely they were to commit another offense or skip court dates if released. Some defendants only received reminder phone calls about court dates, while higher-risk offenders were required to check in with court staff on a weekly basis and undergo drug testing.

A telephone call seems a lot less expensive than holding these inmates in jail.

The pretrial assessments should be a piece of the broader puzzle for improving American pre-trial procedures. As argued by these statisticians:

Bail decisions have traditionally been made by judges relying on intuition and personal preference, in a hasty process that often lasts just a few minutes. In New York City, the strictest judges are more than twice as likely to demand bail as the most lenient ones.

To combat such arbitrariness, judges in some cities now receive algorithmically generated scores that rate a defendant’s risk of skipping trial or committing a violent crime if released. Judges are free to exercise discretion, but algorithms bring a measure of consistency and evenhandedness to the process.

The use of these algorithms often yields immediate and tangible benefits: Jail populations, for example, can decline without adversely affecting public safety.

In one recent experiment, agencies in Virginia were randomly selected to use an algorithm that rated both defendants’ likelihood of skipping trial and their likelihood of being arrested if released. Nearly twice as many defendants were released, and there was no increase in pretrial crime.

New Jersey similarly reformed its bail system this year, adopting algorithmic tools that contributed to a 16 percent drop in its pretrial jail population, again with no increase in crime.

See also the positive reports from New Orleans as well:

The bail bonds industry has argued that financial collateral is the only effective way to ensure defendants return to court for their trial. Starting in the spring, the Orleans Parish criminal district court decided to test this theory with a pilot program that came close to approximating what it would be like if the court eliminated bail altogether. It used a risk assessment tool to identify who was most likely to return to court without incident—and then it released them without making them pay.

The result? People released in the pilot returned to court at roughly the same rate as defendants in other commissioners’ courtrooms, according to a new report by the civilian court monitoring group Court Watch Nola. The rearrest rate was also comparable, although somewhat higher, at 4.5% rather than 2.9%. In all, 9 people out of 201 people in the program were arrested again after they were released without bail.

The findings help debunk warnings by opponents that replacing money bail will release dangerous criminals into the streets and allow fugitives to flee from justice. . .

“This means that the biggest reason we are paying so much for unnecessary incarceration is to incarcerate defendants who will likely return to court and are not a danger to public safety,” Levine said.

“Low risk” is defined in New Orleans by a risk assessment tool developed by the Vera Institute that analyzes data like prior missed court appearances, criminal history, age, and residency to predict the likelihood that a defendant will be re-arrested or fail to appear in court if released before their trial.

Over the six months of the program, jail stays dropped dramatically for these defendants. In March, before the program began, low-risk defendants were sitting in jail for an average of twelve days–plenty of time to destabilize a life. That quickly dropped to four days. By June, the average jail stay was two days.

Historically, Alabama has merely employed a money bail schedule. This bail schedule needs to be challenged at every opportunity. Rule 7 states as follows:

The following schedule is established as a general rule for circuit, district and municipal courts in setting bail for persons charged with bailable offenses. Except where release is required in the minimum schedule amount pursuant to the Rules of Criminal Procedure, courts should exercise discretion in setting bail above or below the scheduled amounts.

BAIL SCHEDULE

Recommended Range

Felonies:

  • Capital felony: $50,000 to No Bail Allowed
  • Murder: $15,000 to $150,000
  • Class A felony: $10,000 to $60,000
  • Class B felony: $5,000 to $30,000
  • Class C felony: $ 2,500 to $ 15,000
  • Drug manufacturing and trafficking: $5,000 to $1,500,000
  • Class D felony: $1,000 to $10,000

Misdemeanors (not included elsewhere in the schedule):

  • Class A misdemeanor: $300 to $ 6,000
  • Class B misdemeanor: $300 to $3,000
  • Class C misdemeanor: $300 to $1,000
  • Violation: $ 300 to $ 500
Municipal Ordinance Violations: $300 to $1,000
Traffic- Related Offenses: DUI: $1,000 to $7,500

 

New Laws Affecting Divorce Litigation in Alabama (Alimony)

As I discussed in a previous post, the Alabama legislature passed new legislation affecting several areas of divorce litigation. Today, I will discuss the substantial changes to alimony rules. Major caveat: The new statute applies only to divorces filed on or after January 1, 2018. (At the end, I also briefly mention the impact of the new tax bill for alimony as well.)

Alabama’s law governing alimony is covered in Ala. Code §§ 30-2-51 through 30-2-55. 30-2-51 still covers the rules for alimony upon divorce. On Jan 1, 2018, a revised § 30-2-51 took effect.

But first, what is alimony? Alimony is separate and distinct from the equitable division of marital property. Alimony is an amount the court orders one person in a divorce to pay their ex-spouse in order to maintain their spouse in the standard of living they were accustomed to during the marriage.

In Alabama, there is no statutory for formula like other states. (See this multi-state calculator for a sample.) The American Academy of Matrimonial Lawyers suggests the following formula:

Take 30 percent of the payer’s gross income minus 20 percent of the payee’s gross income. That amount, when added to the gross income of the payee, should not exceed 40 percent of the combined gross incomes of the parties. The AAML suggests calculating duration of the award by multiplying the length of the marriage by a certain numerical factor.

A most helpful case in understanding periodic alimony is the case of Rieger v. Rieger, 147 So. 2d 421 (Ala. Civ. App. 2013). The Rieger Court began its analysis by noting that not every divorce spouse is entitled to periodic alimony, thus it is not mandatory. Instead, the decision of whether to award period alimony rests solely within the discretion of the court.

While I think practically remains the law, this technically has changed. The new statue requires  the court to award (“the court shall award”) rehabilitative or periodic alimony the court “expressly” finds certain conditions are present in the case. (The conditions give judges a lot of wiggle room through broad language.) If those conditions are present, the judge is mandated to award rehabilitative alimony, unless he expressly finds its not feasible, for a period not to exceed 5 years. If the court finds rehabilitative alimony is not feasible, then the court shall award periodic alimony. Otherwise, if a party can prove that they cannot maintain the “status quo” yet the other side can’t pay, the court can reserve jurisdiction for alimony.

The statute no where defines rehabilitative alimony versus periodic alimony. Prior cases have defined rehabilitative alimony as “a sub-class of periodic alimony” that allows a spouse “time to reestablish a self-supporting status.” See Giardina v. Giardina, 987 So. 2d 606

The Reiger court noted that property divisions should be equitable, not equal, and lists a series of factors which a court should use to determine alimony. These factors include: “the earning capacities of the parties, their future prospects, their ages, health, and station in life; the length of the parties’ marriage; and the source, value, and type of marital property.”

The goal of the court, then, should be to determine whether the spouse petitioning for alimony has demonstrated an actual need for support in order to sustain the standard of living enjoyed during the marriage (“preserve the economic status quo” in language of the new statute) and whether the responding spouse can and should meet that burden.  While a divorce judge has a great deal of discretion in deciding whether to award alimony, the court may act arbitrarily and capriciously by denying it when the petitioning spouse has shown a need and the responding spouse has the ability to
pay.

To prove the need for periodic alimony, a spouse must show that he or she will be “unable to sustain the parties’ former marital lifestyle” absent the support. The party must establish what the standard and mode of living was during the marriage as well as the nature of the costs of maintaining that standard. The spouse should then show his or her own individual assets, including the separate estate, marital property received as part of the
settlement or property division, and wage-earning capacity, again, taking into account the age, health, education and work experience of the petitioning spouse as well as prevailing economic conditions, as well as any rehabilitative alimony or benefits used for assistance in maintaining
and obtaining employment. There is an express list of items now including the special one: “if the party has primary physical custody of the child of the marriage whose condition or circumstances make it appropriate that the party not be required to seek employment outside the home.” If the spouse can show that, while using his or her assets, there is an inability to routinely meet all of the financial costs of maintaining the former marital standard of living, then the need for additional support is proven.

The second major step: the judge must next determine whether the other spouse can pay that amount and, if not, what amount the spouse could regularly meet.  The Rieger suggested judges should use net, rather than gross, monthly income as the basis for their calculation. The statute now mandates net income. In determining ability to pay, the court should take into account all of the responding spouses financial obligations, including those created by the divorce. The court must take into account the responding spouse’s ability to maintain the former marital lifestyle as well.

Per the new statute, lastly the court must determine the “equitable amount.” Since it is rare that one income is as good as two, it is rare that a responding spouse will be able to fully meet the needs of the petitioning spouse. Because of this, the court should determine the amount that the responding spouse can “fairly pay” consistently.The new statute delineates matters such as length of marriage, relative fault, prior contributions, lost opportunities, and excessive expenditures during the marriage.

Duration of alimony obligation, per the new statute, is now presumptively the length of the marriage. Unless however, the marriage lasted longer than 20 years, then there is no time limit.

The new statute does not alter these broad principles which have been present in precedential case law, but have irregularly been applied.

§ 30-2-52 remains unchanged; it still states that if the divorce is granted in favor of one spouse due to misconduct by the other spouse, the court may take that into consideration when determining the amount of alimony, but may not include any property acquired prior to the marriage or by inheritance or gift.

§ 30-2-55 similarly remains unchanged: it still states that periodic alimony shall terminate upon petition showing proof that the spouse receiving alimony has either remarried or is cohabitation with a member of the opposite sex. However, the new statue states that alimony can be modified on a showing of material change of circumstances.

Another major change, I think, in the new statute is a specific provision which allows a party to specifically obtain alimony and recover court expenses incurred in pursuit of pendente lite alimony or “equitable access to the marital property” before trial. Often, one party will leverage control of assets so that their spouse cannot retain counsel. The statute seems to grant an ex parte (without notice to the other side) right to obtain pre-trial alimony “in case of an emergency.”

IMPACT OF NEW TAX LAW ON ALIMONY

On top of these state level changes, Congress passed a new tax code which impacts alimony. Per CNN Money:

The final version of the tax plan . . . eliminates the tax deduction for alimony payments. Divorce lawyers say this move could make ending marriages an even more drawn-out and expensive process, and the change could be particularly painful for lower-income couples.

How will this impact alimony litigation? listen to this one divorce attorney:

“This deduction is a major, major factor in negotiating a settlement, and in terms of what a judge will give. This will dramatically change the landscape,” said Taub.

While alimony is getting statistically rarer, Taub said it still figures into most of the divorces he works on in his New York-based practice. Many of his cases involve long-term marriages and high-earning couples where one spouse — typically the wife — stayed at home to raise children.

Some 12 million tax returns claimed a deduction for paying alimony in 2015, according to IRS statistics. . .

“Payers will be less likely to agree to pay alimony because they will not get the tax break that they had previously received and judges will take the tax consequences into consideration as well, and I believe will order less alimony,” said Mary Kay Kisthardt, a professor of matrimonial law at the University of Missouri-Kansas City School of Law.

The January Talk Every Family Should Have: The Possible $77,563 Annual Nursing Home bill

There is an article in Forbes which aptly raises the “The January Talk Every Family Should Have.” The articles leads off:

It doesn’t matter where you are in life, you need to look ahead. Getting old is no ice cream cone and you need to talk about it.

When it comes to long-term care, the subject will impact every family. That’s a guarantee. You will have to manage or care for older relatives — and yourself. With Americans living longer, it’s a given. . .

The reason why you need a January family pow-wow on this subject is that there is no long-term care safety net in the U.S. Social Security and Medicare don’t cover it and most of it is paid for out of pocket by families.

Long-term care is possibly the most critical threat to a family’s long-term financial well-being. Many plan for retirement and even heavily invest in life insurance; however, the possibility of the need for a nursing home or even assisted living is completely overlooked. Why is this converasation so hard?

Kathryn Lawler, who manages aging and health resources for the Atlanta Regional Commission in Georgia, says, “Even in my own family, as an aging professional talking with my own father, I find it remarkable how much anxiety I have about returning to this conversation that, yes, we had a couple years ago, but you have to keep having it: ‘Has anything changed in your plans, Dad? Do these documents need to get updated?’ I mean, who wants to keep doing this? It’s so hard.”

Let’s look at the numbers:

Long-term care expenses are running more than double the rate of inflation. A decent nursing home costs more than $100,000 a year.

Assisted living and home care are less expensive, but are not covered by Medicaid, which only kicks in if you’ve spent down most of your nest egg.

Long-term care is highly fragmented in this country, but there’s almost no public funding for it. Veterans can obtain some help and it really helps if you have a guaranteed pension.

Many expect Medicare to pay for long-term care, but it does not except in a very narrow set of circumstances and then only for up to 100 days.

The Genworth Cost of Care Survey for 2017 found the following median costs for long-term care in Alabama:

  • Homemaker Services: $106 per day
  • Adult Day Health Care: $26 per day
  • Assisted Living Facilty with Private Bedroom: $36,684 per year
  • Nursing Home, Semi-private room: $73,000 per year
  • Nursing Home, Private room: $77,563 per year

Can your family cover these costs for 2, 3, 5 years? The average stay in a nursing home is 835 days, according to the National Care Planning Council. A separate statistic provided by the National Investment Center (NIC) in their 2010 Investment Guide cited the average length of stay in assisted living as 29 months. A few years of long-term care can easily exhaust the entire value of a family’s life savings.

In another article entitled “Talking to your Parents about Ling Term Care

Of all the reasons people find it hard to plan for their later years, the hardest to overcome might be a degree of disbelief that life will change.

The parents of accountant Carolyn Kramer’s “were never going to go to a nursing home,” she says, because “nothing was ever going to happen to them.”

They worked hard, saved diligently and expected to live out their days in their home in South Wales, N.Y. They made it clear that if their children ever placed them in a nursing home, they’d take it as a betrayal.

But they never talked about alternatives, or a Plan B if living self-sufficiently at home was no longer possible.

“[Most people] have no clue that there are all of these different levels of care, and what’s provided at each level,” says Menzies, who helped Kramer’s family make a Plan B when the need became urgent. “They hear ‘nursing home’,” Menzies adds, as soon as there’s any need for help.

What is your family’s game plan? What contingency planning needs to be performed? What happens in the case of dementia, debilitating conditions or Alzheimer’s? What happens when the elder spouse can no longer physically maneuver their husband around the house safely?

There are options: personal service contracts, life estate deeds, etc.

 

Time to Challenge Alabama’s Bond Schedule in Every Court in Every Case

Exorbitant bail is the default in many courts in America, even though judges aren’t actually required to set it.

In Alabama, it certainly is.

It is reported that one court in Louisiana had minimum bail floors:

Cantrell has acknowledged that he refuses to set bail lower than $2,500, no matter the facts of a case. “We don’t go any lower than $2,500 in this court,” he told one defense attorney in 2016. When attorneys object to this practice, Cantrell sometimes threatens to hold them in contempt of court—for which they could serve jail time themselves.

A great article in the Atlantic highlights a legal development in New York, though:

Public defenders in Brooklyn are in the process of launching a new initiative intended to disrupt this pattern. When a judge sets bail that a defendant can’t afford, the Brooklyn Defenders Service will systematically challenge the judge’s order. If that fails, they’ll appeal it. The goal of the project is to begin to repair New York City’s long-criticized bail system by persuading and incentivizing judges to focus on bail’s essential purpose: It’s collateral meant to guarantee a criminal defendant’s return to court, not punishment for a person accused of a crime.

It is time that Alabama lawyers, not merely seek a bond reduction, but to challenge the constitutionality of money bail altogether.

Here are the basics of the Brooklyn Defenders’ approach: An associate with the law firm Kramer Levin Naftalis & Frankel, which is partnering with the organization, will work pro bono with one of the public defenders to document each client’s finances, background, and community ties. They will then present their findings to a judge and either argue that bail is unnecessary or propose a form of bail the client can realistically meet. Where bail remains outside of the defendant’s financial reach, they will challenge the ruling in an appeals court.

Alabama lawyers must be willing to disrupt the status quo.

Public defenders concede that defense attorneys share some of the blame: From the outset, overworked criminal-defense lawyers lacked the time and resources to dig into their clients’ backgrounds and challenge the many bail determinations that departed from the law.

Litigation has proved successful too:

Recently, lawsuits challenging money bail have spread across the country. Many of the cases have been spearheaded by Alec Karakatsanis, who worked as a public defender for four and a half years before focusing on fighting back against what he calls mass “human caging.” He brought his first money-bail case, against Clanton, Alabama, in early 2015. The organizations that Karakatsanis works with have filed at least a dozen suits challenging bail, with 10 already settled in their favor. While Karakatsanis argues that the impact has been limited, there have been victories. After he filed a class-action lawsuit against Cook County, Illinois, the county’s chief judge issued an order that eliminated the practice of setting bail amounts so high that people end up in jail.

It is all too easy to forget the consequences of being jailed:

Our willingness to lock up legally innocent people has huge—and often dire—consequences for those who are arrested. Jail keeps them from their work and family responsibilities, which in turn leads to missing rent and car payments. Those who end up detained, after all, have median incomes that put them in the poorest one-third of the country. Missing even a few days of work can be catastrophic. “The negative impact of jail starts to accrue after the first 24 hours, and it’s really bad by the third day,” says Cherise Fanno Burdeen, CEO of the Pretrial Justice Institute.

And the pernicious effects of being jailed don’t stop there. Those who are detained before trial are far more likely to plead guilty—a desperate attempt to regain their freedom, even if temporarily—and end up being sentenced to serve time. Wilkeitha Washington, known by her friends as Keedy, has a gregarious demeanor that doesn’t fade when she recounts her time in the Orleans Parish jail. But the pain she’s experienced is still evident. After she was arrested for cocaine possession, her bail was set at $5,500—more than she could pay, so Washington sat in jail for weeks. But “jail” is hardly the right word to describe the facilities. The inmates were housed in outdoor tents with scarcely any protection from the elements. “Mosquito bites, rats, roaches…. Anything could bite us,” she recalls. “A dog don’t like to be in a cage, so just picture a human being in a cage.” When Washington had to decide whether to plead innocent and take her case to trial or plead guilty and get out of jail then and there, she chose the latter. “I know if I really try to fight this, I could probably win,” she says. But by giving up, she was guaranteed to go home and return to her four children. Washington got out of jail, but she later went back behind bars to serve out her sentence.

At a minimum, if charged with a crime,  you need to be prepared to evidence connections to community, employment prospects, history of appearances at prior hearings.  If a violent crime is alleged, present a plan to assure you will not contact the victim.