Tuesday, February 24, 2009

Watch out for the Doctrine of Necessaries

Sam and Audrey married each other in 1996, it was a second marriage for both of them. After they'd been married for 8 years, Sam was diagnosed with cancer and he received treatment for the disease at a local hospital. Sam had health insurance which paid for most, but not all of his medical bills. Sam got behind on paying his personal debts, including the hospital bill. Eventually, Sam, not with Audrey,filed for Chapter 7 bankruptcy protection from his creditors. At the time of the bankruptcy filing, over half of Sam’s unsecured debt was for medical bills associated with his cancer treatment. Sam’s debts were discharged in early 2006. Sam died in the spring of 2007. Following Sam’s death, the hospital sued Audrey to recover Sam’s unpaid medical expenses and the hospital won. See, Moses Cone Memorial Hospital Operating Corp. v. Hawley , an opinion of the North Carolina Court of Appeals which was filed on February 17, 2009.

I imagine that you might find the result described above to be unfair and shocking. How can Audrey be responsible for debts for which Sam, himself, had he lived, would not have been liable? The answer to that question is something called the doctrine of necessaries.

The necessaries doctrine comes from the English common law duty of a husband to provide for the necessary expenses of his wife and child. In modern day North Carolina, the doctrine imposes liability on a gender-neutral basis. What this means is that one spouse is personally liable for the necessary expenses incurred by his/her spouse.

According to the noted North Carolina legal scholar, Suzanne Reynolds, courts in other states have found necessaries to include such things as, medical care, funeral expenses, food, clothing, shelter, and transportation. Here in North Carolina, the "necessary" at issue in most appellate cases involves medical services.

To prevail under the theory of the doctrine of necessaries: the provider of the necessary services or goods must show: that (1) services or goods were provided to the spouse; (2) the services or goods were necessary for the health and well-being of the receiving spouse; (3) the person against whom the action is brought was married to the person to whom the necessary services or goods were provided at the time such services were provided; and (4) the payment for the necessaries has not been made.

There is an exception to the doctrine of necessities for separated spouses. However, merely being separated is not enough. In order for a spouse to take advantage of the separation exception, he/she must show that the provider of the necessary services or goods, e.g. the hospital, had actual notice of the parties’ separation at the time the services were rendered or the goods supplied.

If we continue to see an increase in the State's unemployment rates, I wonder if we will also see more creditors using the doctrine of necessaries as a way to recover unpaid debts.











Monday, February 16, 2009

Ways to Avoid Identity Theft

Consider the following tips if you want to avoid identity theft:

Place the entire contents of your wallet on a photocopier and reproduce both sides of all of your credit cards, drivers license, etc. That way, if you lose your wallet, you will have a record of what it contained. Keep the copy in a safe place.


When speaking on your cell phone in a public place, be careful not to give out personal identifying information such as your date of birth, your social security number, your credit card number, etc. You never know who might overhear your end of the conversation and take advantage of your identifying information

PERSONAL CHECKS

If you pay your credit card bill(s) by personal check, do not put the entire credit card account number on the "For" line of the check. Instead, just put the last four digits of your account number.

Include your work phone number on your personal checks instead of your home telephone number. Similarly, you may want to consider having your work address or a P.O. Box listed on your personal checks rather than your home address.

Some authors have suggested that instead of having your full name printed on your personal check that you should just use you initials and last name, e.g. M. J. Smith rather than Mary Jane Smith.

NEVER have your Social Security Number printed on your checks.

DO NOT have your Driver's license number printed on your checks.

CREDIT CARDS

Do not sign the back of your credit cards. Instead put "Photo ID required".

Keep a an up-to date list of all of your credit cards. On this list include the name of the credit card company, your account number and the toll free phone number for each card. Keep your list in a safe place. By having the list readily available, if your credit card is lost or stolen, you will have the necessary information so you can immediately call your credit card company and cancel the account.

If you lose a credit card call the credit card company IMMEDIATELY to cancel the card.

If you lose a credit card call all three of the major national credit reporting agencies immediately to place a fraud alert on your name. here are the toll-free numbers for the agencies: Equifax: 1-800-525-6285 Experian (formerly TRW): 1-888-397-3742 TransUnion: 1-800-680-7289.

The fraud alert will cause any company that checks your credit to know that your information has been stolen/lost and the company will phone you to obtain your authorization before issuing new credit.

SOCIAL SECURITY CARD

If your social security card is stolen, call the Social Security Administration at 1-800-0271.

Sunday, February 15, 2009

What is Famly Law and why do you need a Family Law Attorney?

Family Law is an area of law practice that includes, but is not limited to all of the following issues:

  • Prenuptial Agreements
  • Domestic Partnership Agreements
  • Separation and Property Settlement Agreements
  • Divorce
  • Equitable Distribution of Property
  • Adoptions
  • Paternity Matters
  • Legitimation of a child born outside of wedlock
  • Child Custody and Visitation (including claims by Grandparents and certain other Third Parties)
  • Child Support
  • Spousal support.

A competent Family Attorney must be familiar with divorce tax issues, the effects of divorce on the ownership of real estate, the somewhat arcane and complex rules that govern the division of retirements assets, child development issues and what must be considered when determining the best interests of the children. If one or both of the parties has stock options, it takes special expertise to know how to go about valuing and dividing them.

Because of the complexity of the legal issues that arise, Family Law is not something a lawyer should "dabble" in. To do so leads to a very real likelihood that his or her client will be ill served. From the perspective of protecting yourself and your future, you owe it to yourself to engage the services of a lawyer who has the requisite experience and with whom you feel that you can work.

It is possible, with competent legal representation, for your divorce case to proceed smoothly and with little or no acrimony. It has been my experience that while there are some couples who are bound and determined to fight, most people, if given proper guidance, will be able to bring their hurt feelings under control and work through a divorce settlement to the advantage of everyone concerned. I doubt that you would try to give yourself a root canal or that many of you would attempt to rewire your home for electricity. Instead, realizing that you did not have the knowledge and expertise to do so, you would call on the endodontist for your root canal and you would get an electrician to rewire your house. Similarly, you proceed at your peril when you attempt to navigate a separation and divorce without the guidance of a qualified Family Lawyer.

In these tough economic times, you may wonder whether you can afford to retain a lawyer. It is my definite belief that you really cannot afford not to at least consult with a qualified Family Law attorney before you take any drastic steps such as moving out of the marital home.