NO. Medicaid planning is no more illegal than seeking the advice of an accountant or tax attorney to minimize your income taxes. The government sets the law for taxes and for qualifying for Medicaid. These requirements change on a regular basis. It is important to seek the advice of a competent professional in order to take advantage of all the law allows.
The NY Times has an interesting article about James Gandolfini’s will. In particular, it points out some common mistakes that are made in the will of many in the general public. For example, leaving property to someone not of age to properly decide what to do with the property, not making allowances for who is required to pay for upkeep of shared property, and problems with ownership of foreign property.
Below find an interesting article detailing information from divorce records about divorce in England in the mid 1800’s. It is quite interesting to see how things have changed.
http://www.dailymail.co.uk/news/article-2266296/Mrs-Robinsons-Disgrace-How-Victorian-wife-got-away-adultery-saying-sexual-hallucination.html
The Georgia Court of Appeals has ruled in favor of the firm’s client in the case of Namgoong v. Williams, issuing a reversal of the trial court’s verdict. Firm attorney David Stuart represented Namgoong on the appeal. Further information to follow.
How do you Modify a Service Contract Already Executed? By Jeff Willison.
What is a contract? People always talk about contracts as things people sign, but that’s not always the case. Whether it is on paper or during a conversation about buying a car, couch, or leasing an apartment, so long as there is a valid offer, acceptance, and consideration, a valid contract may be formed. However, when you agree to do something (i.e. a service contract), once both parties agree that a contract exists, how do you change the terms? For example, say you agree to mow someone’s yard for the summer. You both put it in writing that you will mow the grass twice a week for $50 each time from June 1st till September 1st. However, the person you made the agreement is willing to offer you $75 each time to mow it three times a week after he finds out that twice a week is not enough.
Do you chuck the original contract and write another one? The answer is you may modify the original contract. Georgia law defines a modification as “[a] change or alteration, which introduces new elements into the details, or cancels some of them, but leaves the general purpose and effect of the subject-matter of a contract intact.” Evans v. Henson, 73 Ga. App. 494, 494, 37 S.E.2d 164 (Ga. Ct. App. 1946). Does this sound familiar? Let’s break down our fact pattern: you both agreed to mow the lawn for $50, twice a week and the client wants to increase the amount to $75 if you mow the grass three times a week. The change of fee and frequency is a change or alteration which introduces new elements (i.e. more money and more work), but the general purpose of the agreement is to mow the client’s lawn. This is a modification to a service contract.
You may be asking yourself: “So, what if the client makes an agreement to do this, I rely on it by mowing the grass three times a week, but he only pays me $50?” Georgia law recognizes that a written contract may be modified by mutual consent of the parties, which “need not be expressed in words, in writing or signed, but the parties must manifest their intent to modify the original contract.” Ryder Truck Lines, Inc. v. Scott, 129 Ga. App. 871, 873-74, 201 S.E.2d 672 (Ga. Ct. App. 1973).
How do you manifest an intent? The simple explanation for this phrase is: a contract modification may be shown through action. While writing is always the preferred method, it’s not the only way. If you mow the lawn three times a week, instead of two like the original contract stated, you have shown your intent to change the agreement or agreeing to the contract’s new terms. In addition, if the client does not inform you that the modification is invalid or does not challenge you in some way, he/she has agreed or waived their ability to challenge the modification based on assent and is bound to the terms of the modification. The ultimate decision maker of whether the contract has been modified in a court of law is the fact finder (i.e. a jury or a judge in a nonjury trial).
So, how do you get the money if he doesn’t pay? Well, the short answer is the filing of a breach of contract action. Keep in mind that just because a contract is valid and enforceable doesn’t mean that the opposing party will just pay or go along with the terms as agreed or modified. A breach of contract action can be complex and it always makes sense to consult with an attorney to help guide you through the procedure and the associated costs.
If you have any questions, contact Jeff Willison.
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ALIMONY—THE BASICS By Jeff Willison
The following is an overview of Alimony as it exists in the State of Georgia. The Georgia system of alimony differs from many around the country. Most people may think that alimony is forever or until the person receiving alimony has remarried. This is NOT the case in Georgia! There are several different structures for alimony in the State of Georgia.
Temporary Alimony
Under Georgia law:
“Whenever an action for divorce or for permanent alimony is pending, either party may apply at any time to the presiding judge of the court in which the same is pending, by petition, for an order granting the party temporary alimony pending the issuance of a final judgment in the case. After hearing both parties and the evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the parties and the facts of the case may justify.” O.C.G.A. 19-6-3(a) (2010).
So what does that mean? If you’re applying for permanent alimony, there are ways to keep yourself afloat until you can become totally independent. Georgia courts recognize that some spouses are stay at home parents or completely financially dependent upon their spouse. The court may award “temporary alimony.” The goal of temporary alimony is to help transition the former spouse to the world, and rejoin the field in which he/she may have been a part of before or during the marriage, or attain a brand new skill. Temporary alimony has a specific end date. Most of the time that means when the spouse has shown an ability to function independent from support of the former spouse.
While the Court is not required to order other forms of alimony to be paid at the same amount as the temporary alimony, this is often the result, so if temporary alimony is sought, it is best to bring your best case at the time of the hearing.
Lump-Sum Alimony
This type of alimony is sometimes called, “alimony in gross.” This option gives you the best way to keep a “distance” between you and your former spouse by winding everything up at one time. The court, in its discretion, may award alimony in one lump sum instead of over a period of time. Lump sum alimony may be something to consider if no children are involved and the former spouse is capable of paying all at once. The court will order a single sum to be paid by a specific date and the matter would be closed.
Periodic Alimony
Periodic alimony functions in much the same way as lump-sum alimony, except that the Court awards the alimony in regular payments (usually monthly). The benefits to getting payments may be the regular and consistent form of income. The downside of periodic alimony is if the spouse ordered to pay the alimony fails to pay, resulting in hardship (permanent or temporary) and additional legal proceedings; in some cases, the bird in the hand may beat two in the bush.
The court awards a total amount and then distributes the money based on the former spouse’s ability to pay on a monthly basis.
Permanent Alimony
Permanent alimony is the traditional form of alimony. In Georgia, this award is rare. The court will take the length of the marriage, the individual incomes of the spouses, age of the dependent spouse, health of the dependent spouse, and many other factors into account prior to an award of permanent alimony. Permanent alimony is awarded in cases where the spouses have been married for many years and the opportunity for the dependent spouse to support themselves individually is unlikely with any other form of alimony. A court is unlikely to award such alimony unless drastic circumstances exist. The payment of permanent alimony is normally structured in an installment capacity, but the court may modify the payments or the award if the circumstances warrant such change.
Modification
What if you get an award of alimony under the original divorce settlement, may the courts ever change it? Well, the answer is yes and no. The only type of alimony that is modifiable is permanent alimony. O.C.G.A. § 19-6-19(c) provides that:
“When an action for revision of a judgment for permanent alimony under this section is pending, the court in its discretion may allow, upon motion, the temporary modification of such a judgment, pending the final trial on the petition. In considering an application for temporary modification under this subsection, the court shall consider evidence of any changed circumstances of the parties and the reasonable probability of the petitioner obtaining revision upon final trial. The order granting temporary modification shall be subject to revision by the court at any time before final trial.”
What does all that mean? Georgia courts will look at drastic change in financial circumstances of the dependent spouse or the supporting spouse and modify the original order of permanent alimony, accordingly. However, after you file a petition for modification to increase, the court may take emergency action on a temporary basis if the circumstances warrant it. Keep in mind, this standard has a very high bar and time limits apply. Under Georgia law:
“No petition may be filed by the wife under this Code section within a period of two years from the date of the filing of a previous petition by the wife under this Code section. No petition may be filed by the husband under this Code section within a period of two years from the date of the filing of a previous petition by the husband under this Code section.” O.C.G.A. §19-6-19 (2016).
What does that mean? The Georgia courts will only look at modifications once every two years so it is important to make sure that the circumstances are drastic and would merit a modification of the original order.
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One of the most basic ways in which a creditor can destroy their chances of collecting on a construction lien is to include the costs of filing the lien itself in the total that is due on the project. Georgia law holds that the amount on the lien cannot exceed the contract price, and adding the lien costs into the total due will violate this provision. A lien is supposed to be for the labor services, or materials actually furnished on the particular job; legal and administrative expenses incurred in filing a lien do not count as services provided on a construction job. While you might be able to seek to recover such amounts directly from the contractor or owner in collections or in the event of litigation, you can’t collect the fees as part of any lien recovery. While there are some loopholes to this rule that may not doom your case in the event you included the lien fee in the total due, these loopholes are not cheap to use and not 100% perfect. At the end of the day, this is an avoidable error, and not including the lien fee in your total due could save you from a large headache. If you have any questions about construction liens, please contact our firm for advice specific to your particular case. All advice on this blog is general in nature and not intended as specific advice to your particular case or situation.
One common mistake we find is where the credit manager sends over a file for litigation without an updated spreadsheet or accounting showing each and every charge and payment made by the Defendant back to the point where the Defendant had a zero balance. We have seen cases where a client will allow a customer to buy $2o,000 or $50,000 worth of product every month, never paying off the previous balance in full before the next order is placed. Unraveling the payment stream can become a nightmare and is not the task best left to your attorney. If the case is an hourly case, the attorney will bill you significant time trying to decode your accounting system. If the case is a contingency case, the attorney will spend unnecessary hours on the case, and become discouraged from the paperwork. Worse, your opponent will turn the messy paperwork against you, accusing you of poor bookkeeping, claiming they have paid the bill. Even worse, the Judge is not going to spend the time it takes to decode a complex payment history, and may deny the creditor summary judgment, forcing a case to trial. In the long run, the creditor will either have to straighten out its own books or accept less money than it is owed to settle the account. Having a clean set of books increases a creditor’s chances of being paid in full, and a proper spreadsheet or summary bill increases the creditor’s chances of being paid.
The third mistake we see when it comes to filing and collecting a debt in Georgia with a lawsuit is the credit manager not updating and keeping current information on the customer. We see cases in which the creditor did business with “Joe’s Tires” for ten years, but in that ten years the original “Joe’s Tires, LLC” was dissolved and the customer reopened as “Joe’s Tires of Kennesaw, LLC”, often without skipping a beat and with no major difference seen by customers or suppliers to the tire shop. While we can still file suit on the debt as an open account, we may lose many of the preferential legal provisions in the credit agreement, thus potentially making a lawsuit take longer and cost more money. Additionally, often the original credit agreements contain serious penalties for late payment, interest on unpaid balances, and attorney’s fees in the event the creditor hires an attorney to collect the debt by filing a lawsuit. If I have to proceed simply as an open account, these add-on charges may be lost. It is important for a credit manager to update its customer’s credit applications on a regular basis.
Another common mistake we find is that the credit manager did not record and bill the debt in the proper legal name of the customer. We recommend, along with taking a credit application, that the credit manager pull up the corporate name supplied by the customer and verify the name of the company with the Secretary of State’s office. Additionally, it’s generally a good idea to see if the owners of the company have opened any new companies or similarly named companies. It’s particularly troubling to get a judgment against Joe’s Tires, LLC to find out that the business lease and assets are held by Joe’s Tires of Marietta, LLC, and that the customer applied for credit in the name of an entity with little to no assets. A simple check with the Secretary of State may prevent such a catastrophic error. A credit manager that takes steps to properly “know the customer” at the beginning of the relationship makes my job in collecting a debt much easier.
Believe it or not, one of the biggest mistakes I see occurs when the employee in charge of hiring the attorney to file the commercial debt collection lawsuit in Georgia does not actually know the true legal name of the company where he/she works! You would think this is a rare issue, but it has come up more than I would like to remember. Often times companies merge or are sold, and the longtime employee continues to call the company by its “old” or “former” name. A lawsuit should be brought in the name of the proper company, and, ideally, not in a trade name for the company. A good credit manager will provide the attorney with a copy of the company’s current registration with the Secretary of State at the time the case is placed for collection.
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